Incarcerated Mainers are pushing back against a longstanding loophole in the Department of Corrections’ disciplinary policy that allows staff to issue punishments before and regardless of a finding of guilt.
“It flat out just denies incarcerated people their due process rights,” said Foster Bates, president of the Maine State Prison branch of the NAACP.
Language to this effect can be found in the department’s disciplinary policies dating back to at least 1991, but Bates and other incarcerated residents are bringing it up as the department is accepting public comment on proposed changes to the rule, which is set to close Friday.
Discretion in prison discipline is a common feature across the country, though it is not always explicitly written into policies as seen in Maine, prison policy experts said.
“Sometimes if you say, ‘Oh well, that’s normal,’ people are like, ‘Oh well, then this is a non-issue.’ But it actually is a very big issue because it’s ripe for abuse,” said Brian Nam-Sonenstein, senior editor and researcher at the think tank Prison Policy Initiative. “It allows significant leverage for corrections officers over incarcerated people without any real recourse.”
In case law and in practice, a lot of discretion is afforded to corrections departments under the guise of safety and security. Phrases to that effect are sprinkled throughout Maine’s policy.
While Bates and others argue the disciplinary loophole does not pass constitutional muster, as Nam-Sonenstein put it, “It’s only going to be unconstitutional if a judge finds it unconstitutional, and the pathway to court is so absurd and shrinking year by year that it’s almost just not even a question that we’re seriously asking at this point.”
In response to requests for comment regarding pushback on the policy, spokesperson Jill O’Brien said the department cannot engage in discussions related to policy revisions outside of the rulemaking process. At the end of the public comment period, the department is required to respond in writing to all comments.
The Maine State Prison NAACP branch plans to put in a legislative request for a bill to require the Department of Corrections to change its rulemaking process for all disciplinary and grievance rules so they require review and approval of the Legislature.
Currently, in Maine and most states, prison disciplinary policies are proposed and adopted by the state corrections departments, with little outside oversight.
The loophole
During the sparsely attended Aug. 11 hearing on proposed disciplinary policy changes, activist Luca Melon read the letters of incarcerated Mainers who called for the department to strike this section of the policy.
“The Department of Corrections cannot lawfully create a regulatory loophole that allows administrative actions to override formal acquittals and bypass its own binding disciplinary procedures,” a group of incarcerated residents wrote in a letter.
The clause they’re referring to is found at the end of the nearly 40-page document. If an incarcerated person has engaged in “conduct constituting a disciplinary violation,” the department can take any action it deems necessary in the interest of that person, the prison population, or general safety, security or orderly management.
Some examples include changing an incarcerated person’s custody level, transferring them to another housing unit or facility, changing their housing status, dropping their privilege level, modifying their case plan or issuing a “resident performance report.” The latter is a negative report that impacts an incarcerated person’s “good time,” which are earned sentence deductions based on good behavior and participation in rehabilitation programs, among other things.
The department can also restrict, suspend — and if the proposed change is adopted, terminate — privileges such as accessing mail, phones, in-person or video visits, and internet access.
The policy specifies that that ability applies “regardless of whether the disciplinary process is initiated and, if initiated, regardless of whether there is an informal resolution or formal resolution of the violation. A dismissal or a finding of not guilty does not preclude taking any such action.”
In other words, as Nam-Sonenstein put it, “someone can be subject to these sanctions before paperwork is ever filed, if it’s ever filed. Even if the person is found not guilty or their write up is dismissed, the policy suggests they are in no way guaranteed any kind of restoration or credit for those earlier sanctions.”
Nam-Sonenstein sees this feature as perpetuating prejudice against incarcerated people, feeding “biases that tend towards this more draconian treatment that just has no actual constructive productive feature to it,” he said.
The final sentence of this provision of the Maine policy reads, “Such action is not in the nature of a disciplinary sanction.”
That strikes Corene Kendrick, deputy director of the ACLU National Prison Project, as illogical.
“Those are sanctions, everything that they’ve described,” Kendrick said.
Bates, with Maine State Prison’s NAACP branch, agreed.
“How is restricting my communication with my family, my loved ones, in the best interest of me if I was found not guilty of a write-up?” Bates said. “It doesn’t make any sense.”
Kendrick and Nam-Sonenstein both pointed out that Maine’s policy appears to lack guardrails and time limits for pre-adjudicated actions, as long as staff perceive there to be a threat to the security and orderly operations of the prison.
Many prisons issue short-term sanctions, such as being moved to another unit, between the time a disciplinary report and a hearing occurs, Kendrick said.
“That sort of short-term detention would pass constitutional muster,” she said. “But this idea that even after the charges have been dismissed or you’ve been found not guilty, we’re still going to punish you, that kind of flies in the face of just basic procedural due process.”
Time limits are outlined in the Maine policy once a formal disciplinary sanction starts. For example, officers must determine if an incarcerated resident should remain in segregation if it lasts longer than 30 days, though that decision is still left up to prison staff.
Compounding factors
Earl “Buddy” Bieler, who has been incarcerated in Maine State Prison for almost 20 years, said the disciplinary practices have come a long way during his time there, but inconsistencies in their application remain, which are often dependent on who is on staff at the time and the inmate’s relationship with them.
“The ‘good ol’ boys’ system is still here,” Bieler said. “I would like to see the process be more fair and more straightforward.”
Prison disciplinary systems are often insular, with staff having the authority to define and punish infractions, presenting the possibility for retaliation.
That lack of independent oversight is why Bieler, other incarcerated Mainers and activists supported a bill earlier this year that sought to create a corrections ombudsman role. But the version that passed was significantly scaled back, only shoring up the limited, existing avenues for monitoring what happens in prisons.
As incarcerated Mainers have previously told Maine Morning Star, they face barriers, such as cost and a lack of knowledge of how to navigate the system, that hinder their ability to challenge sanctions in the first place. The Prison Litigation Reform Act, a federal law enacted in 1996, also makes it harder for incarcerated people to file civil rights lawsuits in federal court.
“This stuff is such a Sisyphean task in most places that a lot of incarcerated people are either just like, ‘I’m not even going to bother. The risk is too high.’ Or, ‘the likelihood of success is too low,’” Nam-Sonenstein said.
In 2024, there were at least 18 grievances filed in state or federal court against the Department of Corrections or its facilities, and in 2025, there were at least 12. The Maine Department of Corrections did not respond to requests about how often people who are found to be not guilty or have charges dismissed then go on to have punishments taken against them. Nationally, it is rare for incarcerated people to win lawsuits.
Like pre-trail detentions can pressure people into accepting plea bargains because they want to end their detentions, pre-adjudicated sanctions can pressure people to plead guilty or no contest regardless of guilt because of a desire to be shown leniency, Nam-Sonenstein said.
“The purpose of the disciplinary policy is to discipline incarcerated people, and outwardly, what that’s marketed as is making sure people are behaving themselves and not hurting each other,” Nam-Sonenstein said. “But what it really is doing is training people to give up and training people to essentially accept whatever abuse is hurled at them.”