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Less Than Equal: State officials, including prejudiced human-rights commissioners, block Prisoner complaints

This story has a bias. It’s in favor of human rights for all people.

So if you think it’s proper for prison guards to call African-American prisoners “niggers” and gay prisoners “fags,” then this story may not be for you. If, however, you think that prisoners deserve to be treated as human beings while they pay what the old movies call “their debt to society” — that they still have some rights despite being deprived of their freedom — then please read on.

Complaints about harassment on racial and sexual-orientation grounds within Maine’s public institutions would normally get a hearing before the Maine Human Rights Commission. A prisoner at the Maine State Prison, Jonathan Dix, recently made such a complaint. He accused guards of allowing him to be called a “monkey” and “dirty nigger.”

Commission executive director Patricia Ryan and chief attorney John Gause wanted to accept Dix’s case and others like it. But for six years their gubernatorially appointed citizen commissioners, including a former prison warden, Paul Vestal — who is now the commission chairman — have blocked all prisoner harassment complaints from being heard. In doing so, they have lessened prisoners’ remedies against a variety of crimes such as demands for sexual favors or threats of racial violence or gay-bashing. Such misdeeds are not unknown in prison settings.

At their August 10, 2009 meeting, rejecting Ryan’s and Gause’s argument, the commissioners voted to continue to block prisoner complaints. In their discussion, Vestal and Commissioner Kenneth Fredette overtly expressed prejudice against prisoners. Vestal dismissed their complaints wholesale because, he suggested, as a class of people prisoners are too untrustworthy for their claims to be taken seriously.

Before 2003, prisoner human-rights complaints had been treated like those coming from any other government agency or business in Maine. But that year the commissioners accepted an argument from the attorney general’s office, then headed by Steve Rowe — who is now running for governor — that they should take away this human-rights-law avenue of redress from both state prisoners and county-jail prisoners (though many of the latter haven’t even been convicted of a crime and, while awaiting trial, are presumed innocent).

Rowe’s office relied mainly on a 2002 opinion by a now-retired Maine Superior Court judge, John Atwood, a former district attorney, state commissioner of public safety, and current member of the state prison’s secretive Board of Visitors, whose chairman recently admitted the board had not been living up to its mandate to report on prison conditions.

This year Ryan and Gause’s pitch to their commissioners was that other court decisions, including those of Maine’s and Vermont’s highest courts, had trumped Atwood’s ruling. Their argument, if successful, would have restored a hearing before the commission to a broad swath of people — gays, African Americans, women, Native Americans, and other often-discriminated-against people who happen to be prisoners. The complaints had kept coming in. “We were getting concerned about some of these prison and jail cases stacking up,” Ryan said in an interview.

But at the August meeting it was a representative of the new AG, Janet Mills — a Democrat like Rowe — who won the day with a memo that prisoners should not be able to file harassment complaints, citing, once again, Atwood’s decision. Both the AG’s and Atwood’s view of why prisoners don’t qualify for a hearing rely on a technical point: that a prison is not the type of building in which the law prohibits such persecution. But, politically, Mills’s argument had the practical effect of supporting Vestal’s and Fredette’s bias.

Given their clearly expressed prejudice, it would be hard to see how the commissioners, who are supposed to play a judge-like role in discrimination cases, could give a prisoner a fair hearing anyway.

‘Hostile environments’

Under the Maine Human Rights Act, discrimination on grounds of race, gender, sexual orientation, religion, physical or mental disability, color, national origin, or ancestry is illegal in Maine’s government (and many other) buildings because, in the law’s language, they are “public accommodations,” and racial or sexual slurs, for example, may create an illegal “hostile environment” in such places. (Under a separate provision of the law, disabled people are protected in all “public entities” including prisons and jails.) The commission works to resolve discrimination complaints involving — besides public accommodations — employment, education, housing, credit, and place-name issues. If a resolution to a valid complaint isn’t reached, the commission or the complainant may sue the perpetrators in court. The commission usually initiates between five and ten lawsuits a year.

Minority-group prisoners and their advocates for years have protested bias by guards and corrections administrators. The National Association for the Advancement of Colored People, for example, has had a long-running battle with the state Department of Corrections over alleged racial slurs by prison guards and the ability of the Maine State Prison NAACP chapter to have meetings and raise money. Recently a bisexual prisoner at the Warren prison complained to the Phoenix about guards using words like “fag” — a slur that, by identifying a prisoner as gay, he said, could prove dangerous in a maximum-security prison. In the past, Indians had complained of various expressions of prejudice including being forbidden to have sweat lodges, smudging ceremonies, and other religious practices.

(After much effort on the part of Native Americans and their advocates — including a lawsuit and legislative action — the prison in recent years has allowed sweat lodges and other ceremonies. And very recently, after removing Warden Jeffrey Merrill and taking the reins of the prison, state Corrections commissioner Martin Magnusson says he’s allowing prisoner organizations to become more active, including the NAACP chapter.)

Prisoners may still go to the Maine Human Rights Commission to complain about prison or jail employment, educa-tion, and disability discrimination, and they have the option of directly filing lawsuits opposing harassment and other civ-il-rights violations under the Maine Human Rights Act. But doing this or filing federal civil-rights lawsuits can be costly, lengthy, and require legal expertise that many prisoners don’t have (because of lack of funds most prisoners have to represent themselves). In federal lawsuits, prisoners also have to overcome many procedural hurdles as a result of the Prison Litigation Reform Act, a mid-1990s law signed by President Bill Clinton that was designed to make it harder for them to go to court.

AG versus commission staff

Mills herself would not directly say why she sent Martha Hallisey-Swift, an assistant AG, to make the argument she did, only tersely stating in an e-mail that “a prison is not a place of ‘public accommodation’ under the law.” Rowe, who was AG from 2001 to 2008, when Mills succeeded him, said in a statement issued by his campaign, “Any change recommended by the Office of the Attorney General in 2003 would have been a direct result of the Superior Court decision of November 2002 and not as a result of some sort of policy change in the office” — though the statement also said Rowe didn’t recollect the issue.

The late-2002 court decision to which Rowe referred was Napier v. Department of Corrections, in which Justice Atwood dismissed part of a discrimination claim by Maine State Prison prisoners Philip Napier and David Mason against the prison because “a prison is not fully open to the public” and it “offers no services to the general public” and so isn’t a public accommodation.

But the human rights commission attorney, Gause — who had represented Napier and Mason while in private practice — argued that Atwood’s decision no longer had to be followed. He wrote a memo to executive director Ryan citing different precedents from those cited by Hallisey-Swift, including a 2007 decision by the Maine Supreme Judicial Court and a 2006 Vermont Supreme Court decision. Gause also used different logic from Atwood’s to arrive at the conclusion that government buildings like jails and prisons could be considered places of public accommodation even if all the public couldn’t circulate everywhere in them — as the public couldn’t, for example, in a courthouse, which in the law is given as an example of a place of public accommodation. And Gause noted that places of public accommodation are not limited to buildings where services are given to the general public. He cited country clubs as an example.

But in their brief discussion before their three-to-two decision, the commissioners didn’t deal much with legal arguments.

The dominating figure in the vote was the chairman, Vestal, of Plymouth, a 19-year commission veteran. He waved away “jailhouse lawyer” prisoner complaints with “It used to be they’d use cigarettes to buy testimony. I don’t know what they’re using now.”

Also thinking little of prisoner human-rights complaints in general was Commissioner Fredette, a Newport lawyer, who observed, “Once they get into jail they have not a lot to do,” so they file frivolous complaints. “If you don’t like a particular person, you can file a complaint.”

Two commissioners, Sallie Chandler, of Lebanon, and Joseph Perry, of Searsport, supported the staff’s position, but said little at the meeting. Commissioner A. Mavourneen Thompson, of Peaks Island, cast the deciding vote, saying she would defer to Vestal’s “personal expertise.”

Thus, the majority of the commissioners — all of them appointed by Democratic Governor John Baldacci — simply didn’t think prisoners deserved the human-rights protections the commission could have offered them.

“It’s inconceivable to me that the State of Maine can say to businesses that discrimination is illegal and then discriminate itself in its own operation,” comments Zachary Heiden, staff attorney for the Maine Civil Liberties Union. “I hope that’s not the law, but if it is, then that needs to be changed.”

This article originally appeared in the Portland Phoenix. It is reprinted here with the author’s permission.

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