On a spring afternoon in 2020, Maine State Prison inmate Steve Anctil was feeding seagulls with a friend on his way back from chow, as they had done each day for weeks, when a correctional officer came running out of a shed yelling for them to stop. Anctil claims he did and continued on to his pod. When he got there he was told to “tag in” — stay locked in his cell for the rest of recreation — for disobeying an order.

Anctil was later written up for “refusing to obey” and “disorderly behavior.” In his disciplinary hearing on the matter, the hearing officer did not review the video surveillance footage he had requested as evidence, nor, Anctil says, did the officer allow him to question witnesses or write down his grounds for appeal. He was found guilty and was sanctioned.

“A review of the video footage would have proven that I had not thrown, tossed, dropped, etc., any [food] item once Mr. Starkweather began yelling at me, in contrast to what he claimed, and proven that I had not stated anything to any … staff in contrast to what he claimed,” Anctil wrote in his appeal of the decision in Knox County Superior Court.

Hearing Officer Gabriel Millard wrote in the documentation of the hearing that he based his decision on the staff report and that he excluded the video footage because “reports suffice.”

“Millard refused to review my written statements,” Anctil wrote in his complaint. “He glanced at them for less than 5 seconds, then placed them face down on the desk. In response to my attempts to politely ask him questions, Millard aggressively raised his voice and told me, ‘What’s your statement, or I’m gonna kick you out [of the hearing].’”

The steps that Anctil says he was denied fall into the broad category of due process, basic protections that are given to defendants facing prosecution. These protections were extended to prison disciplinary proceedings by the U.S. Supreme Court in 1974, and are also required by Maine statute. Experts in prison discipline say honoring these rights not only helps prison staff accurately determine whether the alleged violation occurred, but can also serve a rehabilitative purpose: inmates who perceive the system as just are more likely to live within the law after release.

When I spoke with Maine State Prison Warden Matthew Magnusson last week about due process, he expressed a similar view. He emphasized the importance of fairness in disciplinary proceedings and said there are several reviews built into the process to ensure department policy and due process are being followed.

“I think the only way the discipline process works is if a majority of our population feels it’s fair and just,” he said. “There’s always going to be people that receive a write-up, that may not feel the discipline process is fair and just at that point. I think we need to have as many of the checks and balances — the appeal process, the outside [court] appeals — that we can have so the population does feel it’s a fair and just system.”

Prisoners have been contacting me with allegations of widespread due process violations for years but since the proceedings of the prison’s internal disciplinary court are not public, they are not open to public scrutiny. The only exception comes when prisoners are able to navigate the complicated process of appealing to outside courts. Those cases that are appealed in court are public and provide a narrow window into the way discipline is administered at Maine State Prison.

In my review of a sampling of the past five years of “Rule 80-C appeals of final agency action” from the prison in Knox and Kennebec superior courts, I found cases being reversed for such due process violations as inmates not being permitted to call or question witnesses, the alleged behavior not meeting the definition of the violation, and the hearing officer basing guilty decisions on evidence not presented at the hearings. Some of the appeals are dismissed when, for instance, the justices find that excluding the witnesses was reasonable, such as when they attempt to contact them but are unsuccessful.

When the appeal is successful, the guilty finding is vacated and the cases are remanded, or sent back to the prison for a new hearing. Often the Attorney General’s Office, which represents the Department of Corrections in these appeals, cannot defend the due process violations and asks for the case to be remanded.

While the courts have overturned individual disciplinary actions in appeals, it is unclear whether this has any effect on the prison’s disciplinary practices as a whole. Despite harshly worded orders, cases continue to be overturned for similar due process violations.

In a 2015 order, Kennebec Superior Court Justice William Stokes wrote that the due process rights of inmates to call and question witnesses “do not exist for the convenience of the Hearing Officer,” but rather “so as to effectuate the goal of providing a fair and impartial hearing.”

The following year, Stokes wrote in a separate case that it was not reasonable for the hearing officer to deny an inmate the right to question an officer simply because the officer had submitted a written report.

He said this implies that any witness who submits a report could be excluded, effectively eliminating the right of inmates to question them, and undermining the prison’s ability to provide an impartial hearing required by statute.

In a 2017 order, Knox Superior Court Justice Bruce Mallonee wrote that the department demonstrated a “fundamental misunderstanding” of the importance of the rights to call and question witnesses in a case where the accusing officer did not testify, thus depriving the inmate of the opportunity to cross-examine him.

Despite these admonitions from the courts, cases were still being remanded in 2019 and 2020 for not allowing inmates to call and question witnesses.

In 2019 an inmate found guilty of trafficking appealed because the decision was based on a confidential report that was not summarized at the hearing, he was not permitted to call witnesses with no reason given, he was given less than the required 24 hours’ notice of his hearing, and the officer “verbally assaulted” him and ejected him from the hearing when he tried to bring up issues for appeal. The AG’s Office requested the case be remanded because the DOC admitted that “at least one” of the claims — “that he was denied the right to call a witness without sufficient justification” — had merit.

That same year, an inmate appealed a guilty finding of “influencing staff,” for allegedly asking a case worker to bring in creatine, an athletic supplement. The case was remanded because the hearing officer excluded witnesses whose testimony would have shown the staff person’s bias and ulterior motive for the accusation, which, Justice Stokes explained, “is never collateral or irrelevant,” according to Maine precedent.

A 2020 appeal of a trafficking charge was remanded because the hearing officer took a witness off speakerphone so that the accused inmate could not hear the testimony or ask the witness questions.

In Steve Anctil’s case about feeding seagulls, the AG’s office asked for the court to remand the case because the hearing officer could not remember if he had allowed Anctil to question the witness. Justice Mallonee vacated and remanded the case in an order dated Dec. 23, 2020.

Magnusson suggested that the cases appealed in superior court are not representative of disciplinary proceedings as a whole because a very small percentage are appealed in court and even fewer are reversed. He also pointed to checks and balances built into the disciplinary process to catch procedural and due process errors along the way.

After a staff person writes up an inmate for a violation, he said, a supervisor checks and approves the initial write-up. A third staff person conducts an investigation and passes it on to the hearing officer, who then reviews the write-up and investigation for any procedural errors, such as time limits being missed. While the number of write-ups the supervisor throws out is not tracked, Magnusson said 14% of cases are dismissed by the hearing officer.

Captain Harold Abbott, a hearing officer, told me in 2019 that he has prisoners who work for him as “counsel substitutes” who can represent inmates in hearings. He said they are trained in the policy and spot errors in write-ups.

After the hearing, the inmate may appeal the decision internally, at which point the deputy warden reviews the whole case again and then discusses the case with the warden. At that stage, he said, only about 2% of cases are reversed.

In addition, Magnusson said staff were recently retrained when the disciplinary policy was revised in 2019.

“Any time that we have policies that are revised or changed, the AG’s office looks at any law changes, then they come in and they actually do the training for certain policies, and the discipline policy is one of them,” he said.

During the pandemic, he said, discipline has gone down. From June 2020 through May 2021, less than half of the population, 49%, received any write-ups, and 22% of the population received just one write-up in that time, he said.

Another reason for the low number of appeals could be the obstacles prisoners face. Working alone and without internet access, they must meet all the requirements: exhausting the internal appeals process, filing within 30 days of the final decision, serving the defendant by certified mail in that timeframe, meeting deadlines for filing subsequent briefs, and paying a $175 filing fee, though the court may waive this fee or set up a payment plan.

In a 2015 grievance, two inmates said they were discussing appealing a disciplinary action in court when a correctional officer told them the expense of court fees would amount to “incurring a debt,” a violation of prison rules. (Most prison inmates do not have paying jobs.) In the grievance response, a supervisor confirmed that the incurring debt violation includes court filing fees and would result in disciplinary action.

Magnusson, who has been warden at the prison since 2019, said that while he does not know of anyone who has been prohibited from appealing in court for that reason, if he were to receive a grievance claiming that they were, he would seek guidance from the Attorney General’s office.

He said the definition of the incurring-a-debt violation has recently been amended to allow inmates enrolling in master’s degree programs to take on student loans, but he was not certain if it includes court filing fees.

In the cases that did make it to court, the due process errors were not caught in any of the reviews by prison staff. Whether they are rare exceptions, as the department claims, or more widespread is hard to tell.

Prisoners did not always have due process rights. It wasn’t until the 1960s that the U.S. Supreme Court began ruling that constitutional protections applied within prison walls. In the landmark 1974 case Wolff v. McDonnell the Court ruled that due process protections do apply to prison disciplinary proceedings, but to a limited extent.

They ruled that while “the full panoply of rights due to a defendant [in criminal prosecutions] do not apply,” a few minimum elements of due process are required. Inmates must be given at least 24 hours’ advance written notice of the charge and hearing, and written reasons for the decision. The ruling also extended to inmates the right to call witnesses and present evidence, but with a broad exception: “when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.”

Magnusson gave an example of why prisons might need this leeway. If an inmate wishes to review surveillance footage, he might learn the locations of cameras and any blindspots. The request could be denied for this reason, but Magnusson said they allow another staff person to view the video footage and summarize it for the inmate.

The justices wrote in Wolff that they were trying to strike a balance “between institutional needs and generally applicable constitutional requirements.” They also expressed the hope that by allowing flexibility — or, as they put it, “not encasing disciplinary proceedings in an inflexible constitutional straightjacket” — the type of adversarial proceedings typical of criminal trials would be avoided, thus advancing rehabilitative goals.

In his dissent to the Wolff decision, Justice Thurgood Marshall argued that leaving the rights to call witnesses and present evidence to the officer’s discretion made these rights unenforceable, and the result would be that inmates would often be left with nothing to defend themselves beyond their own word. Without these rights guaranteed, he wrote, disciplinary boards “cannot resolve factual issues in any rational or accurate way.”

In later rulings, the courts have allowed hearing officers to base a decision on the accusing staff’s report alone when the inmate didn’t call witnesses or offer evidence, or the hearing officer acted reasonably in denying their requests to do so. When it is down to a guard’s word against the inmate’s, courts ruled, more weight may be given to the officer’s word because the inmate has a vested interest in being found not guilty, and thus more of an incentive to lie.

Prison discipline differs from criminal prosecution in the standard of proof required. Rather than proof “beyond a reasonable doubt,” as is required in criminal trials, Maine’s standard for prison discipline is a “preponderance of evidence.” In most of the hearing reports I reviewed, the documented reason for the decision is written as a form of: “I do believe it is more probable than not that the incident occurred, based on the staff report.”

Some prisoners have tried to take their challenges a step further than 80-C appeals, but their attempts to encourage systematic changes in the discipline process at Maine State Prison through civil suits have been unsuccessful because of the many legal hurdles to these types of claims and the courts’ reluctance to step in in anything but the most extreme circumstances.

For one thing, the disciplinary hearing officer, deputy warden and other prison staff are protected by qualified immunities (“quasi-judicial immunity” and “discretionary and intentional act immunity”).

Another obstacle is that a prisoner must be deprived of property (as in a fine) or a “liberty interest” (good time) to trigger due process protections. But all it takes is for the DOC to return these and the constitutional claims are dismissed as moot. This is what happened in the 2015 federal case Machiavelli v. Abbott. Inmate Anthony Machiavelli was fined $75 in addition to other sanctions for allegedly encouraging prisoners to slow down during distribution of medicine. Because he was not able to call witnesses in his hearing, the DOC returned his $75 when he filed his 80-C appeal. He then filed a federal lawsuit to have disciplinary hearings recorded and made available for prisoners for filing appeals and to require the hearing officer “admit” to violating the disciplinary policy and his due process rights, among other requests. But because his fine was returned, his due process protections were not triggered and his case was dismissed.

If the inmate did not receive a fine or lose good time, due process protections would also be triggered if he could show that his punishment caused “significant hardship” that was “atypical of prison experience,” the standards set by the U.S. Supreme Court case Sandin v. Connor. That ruling specified that being locked in a cell for 23 hours a day for 30 days — the most common sanction imposed at MSP, according to my analysis of sanctions reports for 2014–2018 obtained through a freedom of access request — is neither a significant hardship nor atypical of prison life.

These challenges can be seen in parallel state and federal lawsuits filed in 2018 by then MSP inmate James Wilbur, a convicted identity thief who had gained a reputation among prisoners as the go-to person for help with legal work, including appeals of disciplinary actions.

Wilbur began receiving write-ups for his work, but since providing legal assistance is not listed as a violation, it was couched in other charges: “giving and receiving,” the violation that prohibits sharing among inmates; “equipment,” for using education computers to work on other inmates’ cases; “refusing to obey,” or the catch-all, “possession, other.”

“There’s nothing in policy, there’s nothing in protocol that absolutely prohibits that,” Wilbur said in an interview in 2019, “but that’s something that they started grabbing onto — forgive me if this sounds prideful — once they started realizing how effective I was in advocating for other prisoners. That ended up putting kind of a target on my back.”

In his lawsuits, Wilbur alleged due process violations, excessive punishment and abusive application of the disciplinary policy, among other claims.

He could only base his suit on his own experience, so he listed 22 write-ups he received between December 2016 and June 2018, and said many of these were for assisting other inmates with legal work. (Documentation of these write-ups were not included in the case files, but during a visit to the prison I did run into one of the officers who wrote him up, and he said, “He knows he is not supposed to be doing that.”) For these, Wilbur said he served a total of 120 days confined to his cell without electronics for 23 hours per day, lost privileges, lost seven months’ worth of earned good time, and was barred from completing his bachelor’s degree in religious studies through a distance learning program.

The state moved to dismiss Wilbur’s claims of due process violations because each of the resulting segregation punishments was not greater than 30 days. Wilbur urged justice Mallonee to consider the cumulative effect of all the disciplinary actions he faced.

“It is only through viewing the totality of [my] disciplinary record that a claim for constitutional and due process violations can be asserted,” he wrote.

As for excessive punishment, he told me that in the seven different states he had done time, he’s never seen anything like the way discipline is administered here.

“In Florida, they have a really hostile, abusive system,” he said, “but I think a key distinguishing thing [is that] Florida has so many issues they’re dealing with in terms of severe security issues, that they’re not writing people up for having an alarm clock or bringing an apple back from chow hall or standing by a table, or being disrespectful to a CO [correctional officer]. And Maine makes a habit of it.…

“Guys are losing good time, being put on segregation status, they are losing job assignments,” he said. “It’s devastating…. Now the prisoner can’t work for a year, they can’t do program assignments, they get stuck in a really horrible living environment. Everything is taken from them, so now there’s no incentive; there’s nothing to build them up.”

But the courts do not take up whether the punishment was commensurate with the offense. For an excessive punishment claim to be accepted, the defendants’ conduct must be “repugnant to the conscience of mankind” or demonstrate “deliberate indifference toward a prison condition that posed a substantial risk of serious harm.” The disciplinary sanctions Maine uses — loss of good time, cell lock-up and fines — do not meet that bar.

Wilbur’s federal suit was dismissed in November 2019. He dropped the state suit in April 2020, shortly before his sentence at Maine State Prison was complete, saying that he did not feel that justice could be achieved.

Another inmate filed a civil suit in Knox County Superior Court in June 2020 for a disciplinary hearing where he was found guilty of threatening for something he wrote on a sick-call form, and as a result was moved to a housing unit for dangerous prisoners and lost his paying job. He claims his statement was misinterpreted, and that in his hearing he was not allowed to review evidence against him and was not allowed to call witnesses. He sought to have his original housing assignment and paying job restored. But he then requested that the court dismiss his case because, he wrote, he was facing retaliation for filing it and without a paying job he could not afford the $175 filing fee despite the court setting up a payment plan.

It appears from the cases I’ve reviewed that the threat of successful civil lawsuits is so minimal that it would not discourage the violation of due process. And it is unclear whether the reversal of individual cases in 80-C appeals in superior courts has an impact on prison disciplinary practices in general.

The last time the disciplinary policy was revised, in 2019, public commenters called for outside review of disciplinary hearings.

The closest example I could find of outside review is Oregon’s disciplinary process, where the Inspector General’s Office regularly reviews cases. That office is a separate division of the Oregon Department of Corrections than prison administration, and disciplinary hearing officers in the prisons report to the inspector general, rather than the prison superintendent.

“There is a very clear separation between the IG’s office and the other divisions,” said Melissa Nofzinger, Assistant Inspector General in Oregon.” We’re kind of the watchdog for the department, and I will tell you that we take that very seriously.”

She said her team reviews disciplinary cases and tries to catch every due process mistake, at which point they would overturn the decision and send it back to be corrected. Unlike in Maine, where the AG’s Office only steps in after the case is appealed in superior court, Oregon’s inspector general reviews cases before they are appealed because, Nofzinger said, litigating disciplinary appeals is “incredibly expensive.”

“The goal is to truly catch those errors, and if they’re not errors, if they’re deliberate, then there’s an accountability piece for me on my staff,” she said. “I’m often reminding them what the job of the hearing officer is: It’s to maintain safe and secure prisons by making sure that these adults in our custody are getting true due process.”

Such a body in Maine could provide greater transparency to the prison disciplinary process, which is hidden from outside scrutiny except for the cases that make it to court, and would not rely on the inmates themselves mounting challenges. It could verify the DOC’s claim that due process violations are rare exceptions, and reduce the burden on the courts in processing appeals.