A dispute about online briefings for legislators is shedding light on Gov. Janet Mills’ policies concerning the release of prison inmates during the coronavirus public health emergency.
Last week, a tip to a Portland Press Herald reporter concerning scheduled briefings by Corrections Commissioner Randy Liberty to separate groups of Democratic and Republican legislators led to the revelation that nine such briefings had taken place without public notice, apparently in violation of state right-to-know laws.
The governor’s office then announced that no further briefings would be held “until it is able to work with the Legislature to determine the best process to respond to their questions in a transparent way,” acknowledging that “the coronavirus has temporarily shifted the way that government business is conducted.”
This left unanswered the question of why separate briefings, by caucus, occurred for members of committees that usually meet together – in this case, primarily the Judiciary and the Criminal Justice and Public Safety committees.
Liberty, in a phone interview eight minutes after a reporter’s emailed request, answered all policy questions freely. But he referred questions about the briefings to the governor’s office, which declined to answer.
The apparent reason, as several legislators pointed out, was that the law provides an exemption concerning legislative business for caucus discussions. That might have made the briefings legal, although that isn’t an explanation the administration chose to use.
Sen. Mike Carpenter, D-Houlton, co-chairman of the Judiciary Committee and a former state attorney general, said he found Liberty’s briefing useful, and that it hadn’t occurred to him it might have been outside statutory norms.
“The information was helpful, and was clearly presented,” Carpenter said. “There wasn’t anything that needed to be kept from the public.”
Indeed, once the right-to-know issue was raised, Liberty supplied all the briefing materials to the press; they cover state policies and planning for the coronavirus outbreak.
Rep. Charlotte Warren, D-Hallowell, who co-chairs the Criminal Justice panel, wasn’t as satisfied by the administration’s explanations, or by policy decisions behind them.
“For 30 days, we kept quiet,” she said. “We knew about the enormity of the tasks that had to be done, and we wanted to allow space for them to work.”
Warren pointed out that in several other states governors have used their commutation powers freely to speed release of inmates near the end of their sentences, considered low risk, or who have medical conditions leaving them susceptible to COVID-19 infections.
These states include New Mexico, Colorado, Kentucky and Illinois. Kentucky Gov. Andy Beshear, for instance, issued an executive order providing conditional commutations, finding “it is necessary to reduce the inmate population in the overcrowded state prisons.”
U.S. Attorney General William Barr recommended that some federal prisoners be transferred to home confinement; one of the first to become eligible was Michael Cohen, President Donald Trump’s former personal attorney, who is serving a three-year sentence.
Mills has specifically ruled out any such releases and said she will not use her commutation powers in the crisis.
Instead, Maine is relying solely on its program for supervised community confinement, which allows early release for inmates who have served at least half their sentence. Liberty said that, in a typical year, 25 inmates would become eligible by this time of year, but that 89 have been designated, with 69 actually released.
Maine also authorizes electronic monitoring similar to the federal program, but it hasn’t been used for years, and Liberty said there are no plans to resume. “It’s my belief that if a judge has ordered incarceration,” he said, “it’s not our job to second-guess that decision.”
Overall, the state prison inmate population has been reduced by 7 percent, and county jail numbers by 37 percent, for a combined 22 percent reduction among county and state facilities. Liberty says those figures are comparable to other states.
Warren takes a different view.
“We should be setting numerical goals for how many people can be safely confined, and then constructing a plan to accomplish that,” she said.
That isn’t the course the administration has taken and, so far, there have been no confirmed COVID-19 cases among the 2,000-plus inmates in state prisons – although only 17 have been tested, after exhibiting symptoms. One staff member, a substance abuse counselor for a health-care contractor, tested positive but has returned to work after a 14-day quarantine.
Liberty said he’s satisfied that precautions are adequate; the prison workshops have produced 6,000 masks and other protective equipment. Their use is mandatory when six feet of physical distancing cannot be maintained. The administration also agreed to pay additional hourly stipends whenever staff must be in close contact with inmates.
Behind the disagreements with reform-minded legislators and the administration are differing long-term goals. Criminal justice reformers say far fewer Mainers should be behind bars, and that public safety can still be assured.
Bills that remain pending once legislators return for a special session include a measure to close the Long Creek Youth Development Center, rather than adopt the administration’s proposal to transfer women now incarcerated in Windham to the South Portland youth prison.
Even there, though, Liberty said there’s been progress.
“The daily count at Long Creek has been reduced from 48 to 30,” he said. “And the sheriffs are doing a good job of charging and offering bail, rather than arresting and confining people before trial.”
Whether these reductions prove lasting or disappear once coronavirus fades, may depend on decisions that can be made only when the Legislature is back at work and administration briefings can proceed in the normal way.
Douglas Rooks has covered Maine issues for 35 years as a reporter, editorial writer, columnist and former editor of Maine Times.