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Aspects of Maine’s Criminal Justice Operations
What are the components of Maine’s criminal legal operations? How does the system work, from arrest, to bail, to finding a lawyer, to sentencing, to the policies and practices that determine and structure incarceration, to reentry? These short essays, contributed by lawyers, advocates, currently and formerly incarcerated people, students, policy experts, and educators, break down Maine’s criminal justice operations. Together they tell a mosaic story of how carcerality operates in Maine.
History of Bail
We are used to the idea of someone posting bail in order to leave jail after they’ve been arrested. However, this was never how bail worked.
The purpose of bail for centuries was to keep people out of jail. A key foundation of the criminal legal system is the presumption of innocence. Bail was a way to get a defendant to come to court, without the state depriving them of their liberty before it had met its burden at trial.
For centuries, a person was released after arrest for non-capital crimes, and would only forfeit money for failing to appear at their trial. Defendants did not have to pay in order to be released.
In the early twentieth century, as more people left their hometowns and social networks for the frontier and in burgeoning cities, defendants could not rely on their networks to pay for their bail if they failed to appear. Instead, systems of commercial bail bondsmen developed. This was a key transformation because now, bail became something a defendant had to pay a bail bondsman in order to be released from jail.
Another change, in reaction to the civil rights struggle, was creating “public safety” as a consideration before releasing a person on bail. Bail had always been about ensuring a defendant would appear in court, not a determination about public safety, or a tool to keep people incarcerated because of a “public safety” risk. The public safety purpose of bail was enshrined in the Bail Reform Act of 1984, resulting in a dramatic increase in pretrial detention, with a disproportionate impact on communities of color. (This report from Massachusetts offers just one specific example.)
While Maine does not have a system of commercial bail bondsmen, we still lock up many people pretrial simply because they cannot afford to buy their freedom.
In Maine, a bail commissioner sets bail for a pretrial defendant after considering several factors, including public safety. In making this determination, the bail commissioner does not confer with the defendant, but will speak on the phone with the arresting officer. The defendant is not usually a party to this call, no lawyer is present, and no records are kept except of the final cash bail amount and any conditions of release.
Although bail commissioners play a central role as gatekeepers to pretrial liberty, they have very little training, supervision or compensation. Bail commissioners are appointed by the chief judge of the district court, and the only qualifications are Maine residency and the absence of a conflict of interest. Bail commissioners are required to receive training in the statute, but it is not specific about what exactly training requires. Reports suggest a bail commissioner only undergoes one day of training. The only compensation they receive is a $60 fee — charged to the defendant — when they set bail.
Although the Maine Bail Code specifies numerous factors that bail commissioners must consider in setting bail, in practice they do not always adhere to this process. As a result, setting bail is a haphazard process inflected by personal opinion and bias.
Right to Counsel
Maine is currently the only state in this country without a public defender system. In lieu of a public defense system, the Maine legislature created the Maine Commission on Indigent Legal Services (MCILS) in 2009. MCILS is an independent commission whose purpose is “to provide efficient, high-quality representation to indigent criminal defendants, juvenile defendants and children and parents in child protective cases, consistent with federal and state constitutional and statutory obligations.” This statute goes on to say that the commission shall work to ensure the delivery of indigent legal services by qualified and competent counsel in a manner that is fair and consistent throughout the State and to ensure adequate funding of a statewide system of indigent legal services.” Finally, these services “must be provided and managed in a fiscally responsible manner, free from undue political interference and conflicts of interest.”
Instead of a public defender system, MCILS operates a “lawyer of the day” system. Essentially, MCILS rosters private attorneys that then serve as lawyers of the day who appear at a court’s docket. These lawyer of the day attorneys “appear at 48-hour hearings for in custody defendants and at initial appearance for out of custody defendants, and the attorneys are present throughout the court’s docket.” Depending on the county in Maine, there are either “attorneys who regularly fill the lawyer of the day role, while other [counties] do it on a semi-rotational basis.” If, after this first appearance, the court determines that the defendant qualifies as indigent, then consistent representation is appointed. This system is also replicated in the juvenile justice system for juveniles alleged to have committed a crime.
However, the 2019 Sixth Amendment Center report on the “Right to Counsel in Maine” found that “MCILS’ ‘lawyer of the day’ system primarily serves the need to move court dockets, while resulting in a lack of continuous representation to the detriment of defendants. There is often a critical gap in representation while a substantive lawyer is identified and appointed.” There is continued and sustained concern around public defense in Maine, resulting in efforts (see here, here, and here) by Maine’s legislature to address the issues highlighted in the Sixth Amendment Center report.
School to Prison Pipeline
The School-to-Prison Pipeline is a term for the observed trend in which students experience involvement in the criminal or youth justice system as a result of school disciplinary policies that rely on law enforcement to address student behavior or conduct. One critical element of the School-to-Prison Pipeline is the presence of School Resource Officers (SROs) or law enforcement officers embedded in school settings.
Though there is a lack of data in Maine on the relationship between the presence of SROs and arrests, national research has connected the use of SROs with increases in juvenile arrests, finding that schools with law enforcement present on campus report 3.5 times as many arrests as schools without. This connection between the use of SROs is particularly found for students of color, students with learning disabilities, and students from other vulnerable populations who may be socially marginalized or economically disadvantaged.
The increased likelihood of arrests in schools with SROs is worrisome due to the connections between arrest and educational disconnection and disengagement, and further connections between educational disengagement or “drop out” and involvement with the criminal justice system. In Maine, a recent report on SROs found a need for more data and evaluation, as well as increased oversight to understand the potential impact of SROs on student outcomes.
Incarcerated students in Maine’s five prisons may take part in high school equivalency, undergraduate, and graduate courses.
HiSET is the high school equivalency program of choice and it is available to residents who did not obtain a high school degree prior to entering the carceral system. In Maine, 48% of those who are incarcerated in recent years lacked a high school degree at the time of their first incarceration. HiSET education is available to eligible adults, and approximately 10% of incarcerated men and 15% of incarcerated women take HiSET courses each year. HiSET classes are offered in all five prisons, although not in any jails, by Department of Corrections (DOC) teachers, who also arrange for students to take the HiSET exam when they feel prepared.
Providing HiSET preparation and exams in the prisons increases the likelihood that residents will continue their education toward a college degree. Access to college degree programs depends on a variety of factors, including, but not limited to, funding and financial aid, DOC capacity, student security status, and the technological infrastructure available at the prisons.
The 1994 national crime bill eradicated Pell Grants for incarcerated people, but the Sunshine Lady Foundation began paying for college level courses in Maine State Prison in 2006. In 2016, the U.S. government created the Second Chance Pell program, which paid for incarcerated residents to attend classes toward an Associate Degree at a small number of colleges and universities. The University of Maine at Augusta became a Second Chance Pell institution in 2016, and when Second Chance Pell policy began allowing funds to be used toward a Bachelor’s Degree some students transitioned into four-year undergraduate degree programs. UMA was also granted the ability to begin programming in additional DOC facilities and, as of 2021, UMA college-level courses are now available in all five prisons. UMA has awarded over 160 undergraduate degrees since 2006.
In 2020, Washington County Community College also became a Second Chance Pell institution, which offers students the opportunity to choose between undergraduate programming that will best support their educational and professional goals.
Increasing numbers of incarcerated students are now interested in seeking graduate degrees, but Second Chance Pell does not cover the costs of graduate school. Funding opportunities are extremely limited for incarcerated students because they are not eligible for loans and it is difficult for them to participate in research or teaching assistantships. Despite these obstacles, as of 2021, several incarcerated students in Maine are pursuing a Master’s program and one student is currently enrolled in a PhD program. The Second Chance Pell experiment was successful: recidivism for those who received college degrees while incarcerated in the state of Maine was under 5% (compared to more than 50% for those who without a college education). Beginning late summer of 2022, Pell will be reinstated and the number of students who can receive a college education will significantly increase. The landscape of higher education in prison will likely continue to grow and improve in the years to come.
Youth under the age of 18 who enter the juvenile justice system have committed offenses that would otherwise be considered crimes if the conduct had been committed by adults. The Maine Juvenile Court, established in 1931, handles these cases which are treated under the law differently than adults. Per In re Gault, youth have the right to representation, but unlike the primarily punitive purpose of the adult system, the main purpose of the juvenile system is to provide young offenders with care, guidance, appropriate treatment and services, as well as consequences for their actions. Youth whose cases are not dismissed or diverted come under the jurisdiction of the Maine Department of Corrections which operates Maine’s only youth prison, the Long Creek Youth Development Center, and is responsible for providing juvenile services consistent with the Maine Juvenile Code.
Long Creek Youth Development Center (Long Creek), formerly known as the Maine Youth Center, was established in 1853. Originally known as the Boys’ Training Center, the facility was opened as a reform school for boys with working farms. In 1976, incarcerated girls housed at the Stevens School for Girls in Hallowell were transferred to the Center and by an act of the Legislature, the center was renamed to the Maine Youth Center. At that time, children and youth were arrested and incarcerated for a range of offenses that apply to adults, but also for things like truancy and running away from home.
In the 1970s, Maine embarked on a comprehensive review of Maine’s juvenile system. Several studies were commissioned and the legislature established the Commission to Revise the Statutes Relating to Juveniles in 1975 to make recommendations to Maine’s Juvenile Code. In line with the major federal reform, in 1977 the Maine legislature passed reforms that decriminalized “status offenses” for youth and enhanced diversion.
In the 1990s, at the height of the “superpredator” myth, states were uniformly adopting policies and practices that were more punitive and Maine was no different. Allegations of inhumane use of restraints and isolation on children incarcerated in the Maine Youth Center were first made in 1998, when Amnesty International started a letter-writing campaign against the institution. An outside review confirmed the allegations finding that the Center had a “prison-like culture” that returned children to their communities in worse condition than when they were admitted.
In 1998, legislation was approved to create new two facilities: a 164-bed Southern Maine Juvenile Facility at a cost of $25.3 million and 140-bed Northern Maine Juvenile Facility for $25 million. In 2002, Long Creek opened on the grounds of the old Maine Youth Center in South Portland, and Mountain View Youth Development Center was built adjacent to the Charleston Correctional Facility in Charleston. By 2015, the youth population at Mountain View dropped to 9 youth, leading to the closure of that facility and the transfer of the remaining youth to Long Creek. The Mountain View facility is currently being used to house young adult offenders.
A 2020 assessment of Maine juvenile justice system found that the state effectively used diversion to drastically reduce the number of youth detained and committed at Long Creek, but is less successful in its use of alternatives to incarceration, finding that approximately half of the youth detained at Long Creek are there because there is no appropriate alternative available. It also documented long lengths of stay for low-risk youth in particular. There was also evidence of other system failures with nearly two-thirds of youth incarcerated having had prior involvement in the child welfare or children’s behavioral health systems. Consistent with national trends, Maine’s juvenile justice system disproportionately impacts youth of color, LGBTQ+GNC youth and youth with disabilities.
Today, Long Creek houses detained and committed girls and boys ages 11 – 21, with a daily population that hovers around 25-35 youth. In 2021, the Legislature approved several measures to further reduce the use of incarceration, including a resolve calling for a plan to close the facility by July 2023 and reinvest its $18 million operating budget in a continuum of community-based care. The measure was vetoed by Governor Mills.
Sealing and Expungement
Maine does not have expungement of criminal records for adults or juveniles. Sealing a juvenile record is possible in Maine, but this practice has historically been widely underutilized and misunderstood. The only option for sealing of adult records is to obtain a pardon.
In 2017, a report released by the University of Southern Maine’s Muskie School of Public Service titled Unsealed Fate: The Unintended Consequences of Inadequate Safeguarding of Juvenile Records in Maine examined issues around confidentiality of juvenile records in the state. The report found widespread confusion about the sealing process both within and without the legal system and made a number of recommendations to address improvements to policy and practice that would both increase confidentiality protections and decrease the potential for collateral consequences.
Following the report, several policy and practice changes have been made to increase juvenile records confidentiality. These include extensive system stakeholder education, code revisions to increase clarity around the handling of juvenile records, and eliminating certain loopholes that allow public access to juvenile records. In Spring 2021, electronic juvenile case records and e-filing processes will start through Maine eCourts. Judicial rule limits public access to certain juvenile records, but the electronic format renews concerns about record safeguarding and confidentiality and potential unintended consequences that will need to be monitored as the new system is implemented.
In the punitive ‘tough-on-crime’ era that produced mass incarceration, Maine abolished parole in 1976, becoming the first state in the country to do so. Currently, Maine is the only state in New England, and one of only sixteen in the nation, without parole. Yet the sentences given out are similar to those handed out in states with parole. Maine has not adjusted its sentencing to reflect the lack of parole, and in combination with ‘tough-on-crime’ policies that expanded the length of some sentences and the types of offenses that carry a life sentence, sentences in Maine have gotten longer but opportunities for early release have disappeared. Since 1976, the Department of Corrections has not released a single person before their original sentence date. This pattern has a particular impact on poor people who cannot afford a lawyer, because Maine does not adequately fund the public defender system.
Maine’s crimes are classified as either (in order of seriousness) A, B, C, D, and F. A, B, and C classifications are felonies. Class A felonies are punishable by up to 30 years, unless there are other aggravating factors, Class B felonies by up to 10 years and Class C felonies by up to 5 years (note the word choice as we are in a cycle of punishment rather than rehabilitation). Most crimes in Maine, with the exception of murder, do not have mandatory minimums, so in talking with many inmates here inside you will find men with the same charges with wildly varying sentences. This is because judges, being human, can look at the same cases and feel that different sentences (punishments) are necessary. Obviously human bias and the quality of the defense make a huge difference in sentencing, with a particular impact on poor people and people of color.
Maine’s lack of parole has contributed to overcrowding at the county jails and state prison. Even more impactful – and even more concerning to the public, who will interact with the majority of those incarcerated at the conclusion of their sentences – is a lack of programming available to incarcerated people for developing emotional, work-related, intellectual, and social skills. When parole was eliminated, rehabilitation-oriented programming dried up also. Consequently, a disturbing trend here at the prison is the lack of motivation on the part of inmates to participate in the programs that do exist. I cannot count how many times I have heard incarcerated men express contempt for the programs here or any attempts to earn ‘goodtime’. The majority of men here are ok with doing their time day for day. Parole would change this hopeless attitude immediately as it would give incarcerated people a tangible goal to work towards.
Parole is a system that works to the benefit of all involved. Parole would give the DOC the ability to say “we have done our job and any inmate who gets parole has EARNED it”. Without parole, we as a society are just throwing people away and choosing punishment and revenge over rehabilitation and repair.
According to Kay Pranis, restorative justice is a justice “that is not about getting even, but about getting well. A justice that seeks to transform broken lives, relationships, and communities, rather than shatter them further. A justice that seeks reconciliation, rather than a deepening of conflict. A healing justice rather than a harming justice” (Davis, 14).
Our current criminal legal system is based on retribution. Rather than seeking to understand what harm was done—including the “why” behind it—the current system seeks to find out who needs to be punished for breaking what law. It is a system of “criminals” and “victims”. The human beings, in all their complexity and nuance, are removed from the equation. The person who caused harm in their community becomes the “Defendant” and the person/people harmed in the commission of the crime are effectively removed from the entire process, replaced by the “State”. Thus, it becomes “State v. Defendant”.
Restorative justice asks different questions, with the ultimate goal of bringing healing to all parties involved. Rather than asking, “What law was broken?”; “Who broke that law?”; and “What punishment fits the crime committed?”, restorative justice asks, “Who has been harmed?”; “How has each party been affected by that harm?”; and “How can we work together to bring healing to all parties involved?”
While others exist, the most common restorative justice processes are:
- – Victim-Offender Mediation: impartial mediators create dialogue between the offender and victim with the goal to find appropriate restitution for the harm caused by the offense (Llamas and Larson, 15).
- – Victim-Offender Panels: discussions between a group of victims and offenders who did not participate in the offenses against those victims (Llamas and Larson, 15).
Depending on what is appropriate for the situation (collectively determined by those affected by the harm caused), restorative justice processes can be used either as a replacement for incarceration, or as a supplement to incarceration.
“Restorative justice provides an opportunity for those who harm and those harmed to empathize with one another, rather than foster hostility between them and their communities. It encourages the responsible person and the community, where appropriate, to take responsibility for actions resulting in harm and make amends. Restorative justice processes invite individuals and the community to take steps to prevent recurrence. Ultimately, it offers processes where the person harmed and all impacted parties can begin to heal.” (Davis, 26-27)
In our current system, this approach has not made it beyond schools and small-town, nonviolent juvenile cases. Some efforts are being made within penal institutions like Maine State Prison, Warren, to institute restorative values of R.E.S.P.E.C.T. – Respect; Empathy; Safe (spaces); Personal accountability; Equality; Community; Trust (Stowe). This takes the form of comprehensive educational and practicum course programming and a Restorative Practices Steering Committee. However, the task of transforming a punishment-focused culture is a herculean one. Partnerships are forming, inside and outside the facility, but progress is slow and resistance is high. Thankfully, hope is a powerful driver of change, and the work continues.
In 2010, legal organizations and activists in Maine led a successful campaign to reform the use of solitary confinement at the Maine State Prison.
For decades, the Maine State Prison used solitary confinement regularly to discipline prisoners for various rule violations – from fighting to moving too slowly in the lunch line – or to adjudicate an incident between prisoners. For example, if two prisoners got into a fight, both would be put in solitary pending an investigation. There was no meaningful procedure or notice to people held in solitary about the length of their confinement and how they could challenge it.
Solitary involved holding a person in an 86 square foot cell with limited natural light for 23 hours per day, and 24 hours per day on the weekends. People in solitary did not have access to human contact, even proxies for human contact, such as television, radio and reading materials. The cell walls were too thick to allow conversation with a neighbor in solitary.
Long-term isolation produces effects similar to those produced by physical torture. It leads to increases in suicide rates, and deterioration of mental health – including obsessive thoughts, agitation, irritability and difficulty tolerating external stimulation. Long-term isolation makes healthy people sick, and makes people with mental illness worse.
The reformers, which included Maine Prisoners Advocacy Coalition (MPAC), the ACLU of Maine and the ACLU National Prison Project and Disability Rights Maine used legislation, advocacy and litigation to negotiate significant changes to how the Maine Department of Corrections used solitary confinement.
As a result of the successful reform movement, solitary confinement is no longer the default punishment at the Maine State Prison. Rather, it is the punishment of last resort when no other option is adequate. Even in situations where prisoners are sent to solitary confinement, corrections staff is required to work with prisoners to develop a road map of behavior that will lead back to the general population. Staff have been given new training and skill-building opportunities for managing difficult prisoners and challenging situations.
Since these reforms, fewer people are sent to solitary, prisoners sent to solitary spend less time there, prisoners in solitary are given access to more care and services to prevent deterioration of mental health and prisoners in solitary are given a clear path, based on achievable goals, for exiting solitary. But, significant challenges remain. Maine DOC is not required to report on the use of solitary to any oversight body, so there is no way to know for certain how many people are sent to solitary every year, the length of their stays, or the reason for putting them there.
Recently, the Maine Supreme Court recognized that the use of “administrative segregation” can raise significant due process concerns. Reducing the use of solitary confinement remains a long-term challenge in Maine, and across the country.
Work in Prison
Last Spring, Maine was caught in a controversy about incarcerated people who were collecting unemployment after their workplaces closed during the COVID-19 pandemic. Governor Janet Mills called the unemployment payments “appalling” and “bad public policy”, while prisoners’ and workers’ rights advocates defended incarcerated workers’ right to the same unemployment benefits of any worker who lost their jobs at the same business. The issue put a spotlight on the often invisible work of incarcerated people.
In the United States, forced labor as a punishment is enshrined in the 13th Amendment to the constitution which abolished slavery except in the case of punishment for a crime. Most incarcerated people who work are not doing so for private corporations despite popular narratives that this is a driver of mass incarceration. The reality is that only a small fraction of incarcerated people are working for private companies. While the idea of private corporations exploiting prison labor for profit is morally reprehensible, it is not a driving cause of mass incarceration or becoming a primary source of workers for corporations looking for ever-cheaper labor due to the previous gains of labor unions.
Rather, incarcerated workers do what some have called the “reproductive labor” of the prison; this means cooking the meals, cleaning and janitorial work, mowing the grass and other landscaping that keeps the prison running and saves the state money. However, federal courts have ruled that incarcerated people who work for the prison itself are not employees under the Fair Labor Standards Act, and therefore are not eligible for the minimum wage, workers compensation, or the right to organize a union. In 2015, the Maine State Prison listed 295 paid positions (of a total population of about 800 people). Kitchen worker salaries at that time were paid between $15-$200 a month, while industries or woodshop wages were listed as $1 to $3.75 an hour.
Some incarcerated workers are allowed to take jobs for private corporations outside the prison, as part of a program called work-release. Unlike the work done in and for the prison, these workers are covered by the Fair Labor Standards Act and, therefore, make the prevailing wage and are protected by things like workers compensation. It was these workers who lost their jobs during the pandemic and applied for and received unemployment when they were laid off. Incarcerated people are eligible for this program only if they meet specific requirements and are in the last four months of their incarceration. In Maine, they are required to pay 25% of their wages to any victim restitution or fines they have, set 10% of their wages aside for release, and pay 20% of their wages for “room and board” at the prison.
Although incarcerated workers are not allowed to form a union, they are still organizing. Nationally, and in Maine, incarcerated workers and outside advocates have pushed for better pay and working conditions, for the prisons to address racial discrimination related to work, and for other improvements to conditions in the prison. Some incarcerated workers even organized strikes.
The workplace vulnerability of criminalized people doesn’t end when they are released from prison. Formerly incarcerated people, especially Black and Brown people, are severely discriminated against in hiring, making it very hard to become economically stable after they are released from prison or jail. Policies like Ban the Box, which forbids employers from asking if an employee has a felony on job applications, can help people seeking employment get their foot in the door. Formerly incarcerated people have won Ban the Box legislation in 36 states and more than 150 cities. A ‘ban the box‘ bill sponsored by State Rep. Rachel Talbot Ross was voted into law in Maine in 2021.
The Cost of Communication
The woman waits for the phone to ring. Daily calls from her husband in prison are her lifeline. She writes to him every day, but hearing his voice and telling him that she loves him sustains them both. But there is no call today. There is no call the next day. She calls the warden’s office and leaves a message. She prays, and her faith comforts her, but she doesn’t know why he hasn’t called. There is no response to her message.
She finally gets a call from him: he had a medical incident. He was moved to the medical unit of the prison and was not allowed to call out until today. His voice has changed, and she knows that he is in pain. She knows the call is monitored and he must be careful what is said.
There has been a death in the family and a cousin of the resident calls the prison office to have her notified. The person answering the phone tells the cousin he’ll give her the message. She never gets the message. Three months later, the birthday card she sent to her beloved aunt is returned for ‘no forwarding.’ She calls her cousin to find out if her aunt has moved. She is devastated to learn that her aunt has passed away and dissolves into tears. When she yells at the Corrections Officer who neglected to give her the message, she faces disciplinary action and is sent to the pods. No one apologizes for the message not being delivered timely, and no one on staff offers any sympathy for her loss.
Currently, the Maine Department of Corrections charges $.09 per minute for phone calls, even though the actual cost to the Department is $.025, creating a profit of $.065 for every minute. In the county jails, telephone costs vary across the state but all are more expensive than the DOC and some charge a $4.00 “connection fee” for the first minute. The average cost of a 15-minute phone call from county jails is $5. Money must be put into the account by someone on the outside, but the depositor doesn’t have access to the account to know how much is left. The resident has access to the account balance but then has to tell the depositor. If the account is too low to make a call, they can only write to the depositor for more funds. No direct calls to the residents are allowed, and many residents have no one to put money on their accounts.
While price-gouging and making money off of families with incarcerated loved ones is wrong, the cost of communication for family and friends who have an incarcerated loved one is not just the dollar amount. The human costs are in the isolation and dehumanization inherent in all incarceration. Because of costs and time limits on phone calls, many families cannot maintain phone contact between children and incarcerated parents, causing long-term harm to children. Calls are monitored and recorded. There is no privacy, even between husband and wife or parent and child. Anything said can be used against the resident at any time, and any comments about Corrections Officers or staff can be grounds for disciplinary action.
Maintaining contact with loved ones on the outside is critical to successful reentry and reducing recidivism, and yet MDOC’s telephone policies do the opposite. We expect sane behavior from people who have been subjected to inhuman treatment. As a society, we can do better.
Child Welfare System
The family regulation system, commonly known as the child welfare system, is the part of government that surveils and monitors the behavior of parents, terminates parental rights, removes children from homes into foster or institutional care, and determines placements for children whose parents are incarcerated. Critics use the term “family policing system” to draw attention to the emphasis on surveillance, monitoring, and criminalization of parents, especially Black and Brown mothers and mothers who use drugs.
Reproductive Justice movement leader and legal scholar, Dr. Dorothy Roberts, has written extensively on how the United States’ history of family separation and destruction of familial bonds began with enslavement of African and African American peoples and genocide and child removal to residential schools for Indigenous peoples. Today, this system continues to disproportionately harm Black, Brown, Indigenous and poor families.
Eight percent of children in Maine – the highest percentage in New England – have had an incarcerated parent. Having an incarcerated parent is considered an “adverse childhood experience”, which can elevate the risk of depression, anxiety, poverty, homelessness, and incarceration. The incarceration of mothers, in particular, has a profoundly negative impact on children.
A majority of women incarcerated in Maine are mothers or primary caregivers, and a significant majority are serving time for drug-related offenses. A parent’s rights can be permanently terminated by the state based on length of a sentence alone, thanks to the Adoption & Safe Families Act (ASFA), federal legislation enacted in 1997, which requires states to move toward termination if a child is in foster placement for 15 of the last 22 months and incentivizes separation over reunification. Termination of parental rights (TPR) is often referred to as “the civil death penalty” for its devastating impacts on parents and children.
There is a growing national movement to abolish the family policing system, which has been identified as a perpetrator of profound harm enforcing U.S. drug war policies, and a system whose racial disparities mirror those of the U.S. jail and prison systems. Here in Maine, organizations working to reduce incarceration and the criminalization of drug use point to the adverse effects on children of incarcerating their parents. Instead of investing in incarceration, these studies call for an investment in things that support keeping families intact, like housing, mental health treatment, treatment for substance use disorders, educational opportunities, and employment.
Dying in Prison
Although Maine does not have the death penalty, there are many who will nonetheless come to the end of their life while incarcerated. Crime has declined, arrests are down and yet, with the exception of the year of COVID-19, our prison population continues to climb. Since the early 1980s, sentences for the same crime are 20% longer and parole has been abolished. As a result, our inmate population is aging. Recognizing this trend, Maine has added an assisted living unit at Mountain View Correctional facility and a hospice program at Maine State Prison. Other states have spent tens of millions of dollars building medical and long-term care facilities for aging, infirm and terminally ill inmates – people who may be using walkers or wheelchairs, suffering from dementia, or unable to rise from a bed and who long ago ceased being a threat to their community. Unfortunately, eldercare in prisons is not licensed in the same way that eldercare facilities outside of prisons are, and guards and some attendants are not trained in working with people afflicted with dementia or Alzheimer’s.
Maine has a policy that allows the Department of Corrections to place the infirm and terminally ill in community confinement in nursing homes and long-term care facilities. Yet the state has not used this provision in years. Incarcerated Mainers die alone without the comfort of loved ones or the opportunity to make amends or to simply say goodbye.
No one should die alone.
Re-Entry from Federal Prison
The transition experience from incarceration to release back to society varies widely among members of the incarcerated population, reflecting a number of factors based in part on the type of crime, the length and terms of the re-entry facility and subsequent probation (if any), social and educational background of the individual person and their personal goals and ambitions once released to the public, racial and cultural background, and status as part of an immigrant or marginalized population, among others. As a result, it remains challenging to both create a re-entry policy that addresses the standards of the Bureau of Prisons (BOP) and navigate the difficult and often conflicting information given to formerly incarcerated persons. Many individuals succeed only through extreme perseverance and patience despite the lofty goals set by government agencies.
Currently, most individuals returning to society from incarceration in a federal prison are given six months or less of time within a Federal Re-entry facility, known colloquially as a halfway house. Within six months of their release from federal prison, the BOP offers a mandatory series of classes to start the re-entry process that cover a variety of subjects ranging from basic finance, to parenting instruction and family concerns, to technological changes. (These unfortunately were suspended during the COVID pandemic.) Religious Services also offers programs geared towards re-entry, such as with spiritual guidance or placement with a mentor from outside the BOP to provide practical and spiritual instruction and guidance for employment and education. Access to these programs depends on whether they are actually offered at the BOP facility and whether there are volunteer mentors available.
Currently, the State of Maine has only one halfway house, the Pharos House, located in Portland. As a re-entry facility for people leaving federal prison, the staff must follow the strictures of the federal government as all residents are still in the custody of the BOP until their release. Length of residence at the re-entry facility is based upon the crime of an individual, their terms of release, and the length of their sentence. It is expected that all residents seek employment and workshops are offered relating to finding job opportunities, creating resumes, and how to conduct oneself in a job interview. One staff person serves as a mentor in this capacity and notifies residents about educational, employment, and other professional opportunities. A case manager places an individual within a series of tiers for access to general society through exercise, shopping, educational, and religious programs, with each tier allowing for increased time and access to community resources. Some crimes do not allow these opportunities, and some individuals are not given personal permission based upon their criminal history, decided in part by the rules set in place by the BOP and also the personal discretion by the director of the facility.
After a varying amount of time, residents may receive home confinement, where a resident is released to the home but must wear an ankle monitor and check-in twice daily with the halfway house. Residents whose residence is more than 100 miles from Portland are placed within the jurisdiction of their subsequent Probation Officer, though these individuals receive often no home confinement and remain in residence at the re-entry.
The goals of re-entry center on reintegrating an incarcerated person with the public and to demonstrate to the BOP that an individual is not engaging in criminal activity, though with varying measures of success due to the ratio of staff to individuals in their supervision. The staff often do not have resources to offer those residents interested in employment and educational opportunities other than printed flyers of job opportunities in the Portland area placed on a bulletin board. Much of the success of an inmate is determined by that person’s personal desire to re-integrate and succeed by seeking out agencies and opportunities for themselves such as the Eastern Maine Development Corporation (EMDC) or the Maine Apprenticeship Program. As a result, success varies widely among an already disparate population of formerly incarcerated persons and numerous challenges present themselves within the structure of a system designed to ease this transition.
It is very important to note that most reentry in Maine is from the state system or local county jails, which offer none of these halfway house facilities or supports.
Immigrants with and without legal status can be detained and deported if they are found to be in violation of immigration law. If someone in Maine is detained by Immigration and Customs Enforcement (ICE), they are typically held at Cumberland County Jail in Portland for a short period of time before being transferred to a federal detention center in another state while the government decides whether or not to deport them.
Unlike the criminal legal system, in which defendants are provided with a free lawyer if they cannot afford one, in the immigration system, immigrants facing deportation (also known as “removal”) do not have the right to court-appointed counsel. As a result, the majority of immigrants in removal proceedings in Immigration Court are unrepresented. Lack of legal representation tends to have a profound impact on an immigrant’s ability to remain in the United States and immigrants with legal representation are much more likely to succeed in Immigration Court. Because of the enormous backlog in the immigration court system, these cases can take years before they reach a final decision.
Federal immigration law created a double punishment for immigrants who have interacted with the criminal legal system. These policies impose draconian penalties on non-citizens with criminal records, regardless of whether they are undocumented or have a green card, and include the possibility of being ripped from their homes and detained, deported, and barred from ever returning to the United States. Immigration penalties and detention occur after an individual has served prison time for their criminal conviction, thus imposing a fundamentally unfair double penalty also known as the prison-to-deportation pipeline. Even minor infractions such as petty crimes related to homelessness or traffic violations can result in removal proceedings. The structural racism inherent to the U.S. criminal legal system has significant consequences for Black immigrants, since Black immigrants are more likely than other immigrants to be detained and deported due to an interaction with law enforcement.
U.S. immigration law also includes many criminal bars to status, so noncitizens who have had an interaction with the criminal legal system could then be prevented from gaining status in this country. By imposing criminal bars to permanent status or even work permits, our government is imposing the racially biased criminal legal system on immigrants and hurting Black and Brown immigrants.
Customs and Border Protection (CBP) checkpoints in Maine have increased since 2016, along with increased immigration enforcement by ICE. When immigrants are incarcerated for simply not having status, they are removed from their communities and subjected to harmful conditions in detention facilities. Maine immigrants, their families, and their neighbors have felt increased stress and fear over ICE and CBP indiscriminately arresting and detaining non-citizens. Reforms to remove criminal bars to immigration status, and to end immigration detention and the use of racially biased facial recognition technologies by ICE, would reverse these harmful effects and enable immigrants and their communities to feel safer and more secure.
Essay contributions by Amanda Nowack, Dan, DrewChristopher Joy, Jan Collins, Jess Mizzi, Jill Ward, Julia Brown, Leo Hylton, Marnie Roy, Meagan Sway, Nikos Pappas, qainat khan, and Zachary Heiden.
Due to official policy, we are prohibited from sharing the full names of some of the incarcerated people who participated in this project.