Legality of closure challenged

The state's attorney general, the Washington County commissioners and the county's legislators are challenging in court the unilateral decision by Governor LePage and the Department of Corrections (DOC) to close the Downeast Correctional Facility (DCF) without warning on the morning of February 9. On that morning 63 prisoners were moved out of county to another facility and 39 staff put on administrative leave for 10 days with lay‑off on March 3.
Washington County Commission Chair Chris Gardner says the decision made by the governor "to send guns in to shut down the Downeast Correctional Facility is probably one of the darkest political days this county has seen in a generation."
The county commissioners and the county's legislators believe in the importance of the facility to the DOC's infrastructure as a minimum-security prison where inmates receive rehabilitation through the development of job skills as they transition back to society. However, at the heart of the lawsuits against the closure that have been filed by the attorney general's office and by the county commissioners is the process used to do so by the governor and the DOC.
The long‑term fate of the minimum‑security prison has been a legislative and DOC discussion point for a number of years, with budget appropriations and bills leaving a path worthy of a Minoan maze. However, as reported in the Portland Press Herald, the attorney general is arguing in a lawsuit filed in the Kennebec County Superior Court that the DOC commissioner "had no legal authority to close Downeast Correctional Facility." The suit continues, "The facility's existence, function and purposes are written into statute. ... An executive branch agency may not unilaterally dismantle a program established by the legislature and certainly not while the program remains funded." DCF currently is funded in the state's biennial budget through June 2018.
Gardner explains further, "The underlying reason of the county's lawsuit is, first, does the governor have the authority to close it?" While the DOC has the right to move prisoners around and change programs, the commissioners question whether the DOC and the governor have the legal authority to shutter a prison when the facility has been written into law. The commissioners believe that's a legislative function.
The second part of the county's action was to seek an injunction to protect the DOC in an "as‑is" state. Gardner explains, "The commissioners made the decision based on the governor's past statements back in 2017... that in effect said he would put a bulldozer through it if that's what it took. We wanted to be sure that governor didn't flatten the place," leaving the legislature without a reason to pursue the matter further. On February 13, the DOC began removing equipment from the facility, including bunks.
After the county filed its request for an injunction in Kennebec County Superior Court, the DOC agreed in writing to leave the facility as‑is and not remove any more equipment other than perishables and medications. Gardner says that this agreement means the maintenance will continue, the power will be left on and more. "The court took notice of the letter so that's what's in effect now." Meanwhile, the lawsuits filed by the county commissioners and the AG's office, to determine whether the governor had the authority to close the facility, continue.
DCF funding and legislative bills
Meanwhile, Senator Joyce Maker of Calais, Rep. Will Tuell of East Machias, Rep. Anne Perry of Calais and Rep. Robert Alley of Beals have been focused on LD 1704, which would fund DCF through 2019. The bill received near-unanimous support from the Criminal Justice and Public Safety Committee; however, it has not sailed so smoothly since. In the initial votes on LD 1704, the House voted 87‑59 in favor, and the Senate was 31‑3 in favor. While the bill was approved in the House, it did not get the 101 votes needed to be passed as emergency legislation. And as it proceeds it will need a two‑thirds majority in both chambers to override an expected veto from the governor and also will need to be approved by the Appropriations Committee.
In addition, Maker has sponsored an emergency bill, LD 1841, "An Act to Authorize a Pre‑release Facility in Washington County." She explains the reasoning behind the new bill. In 2016 the legislature passed and the governor signed a bill, LD 1447, for a $149 million facility bond with language to fund a pre‑release facility in Washington County. There was no language in the bill that specified the facility has to be new.
Maker says she is sponsoring LD 1841 to move the previously approved LD 1447 forward, "because nothing has been done in that regard. In fact, although they have spent $15 million in the account toward the Windham [prison], which I think was for architectural design, there has been nothing done [with the pre‑release facility]. We were under the impression that during the capital repairs and improvement, DCF would be open. We were told that it would probably take five years to achieve their goal. There then would be a facility for a pre‑release center in Washington County, and DCF would most likely be closed, but if you look at this [LD 1447 language] it doesn't state a new facility."

Prison costs per inmate and bed counts
The governor's main argument for closing DCF has been its expense. However, Gardner feels strongly that the numbers being referenced "aren't real." The commissioners are working on gathering financial information to determine whether or not DCF is a financially stable institution or if it does in fact cost more to run than other facilities. "We're not interested in charity to Washington County. We believe this facility is a good deal for the State of Maine." If, after the number crunching, it proves that the prison costs too much to run then the commissioners would abide by the decision.
However, getting the numbers is not so simple, Gardner says. "Obviously, the official numbers are coming from the DOC," he states. "Some would argue that the DOC has been less than forthcoming."
Rep. Will Tuell has provided numbers given to him by DCF employee Maggie Marshall of Roque Bluffs that illustrate the financial viability of the prison if run at full capacity of 149 beds. In 2015 the DOC began reducing the number of prisoners at the facility, which has skewed the per inmate operating expense to the high side. With the numbers provided for the 2017‑2018 budget of $5.315 million with 63 prisoners, the cost per prisoner per day is $231. However, the numbers show that the actual cost was $3.988 million with a $173 cost per prisoner per day. If the prison were at full capacity at 149 inmates, the cost would $73.33 per prisoner per day, illustrating the ease with which the per-day cost per inmate can skyrocket or drop according to total inmate enrollment.
In addition the prison's operating costs have been consistently under budget. In 2013‑2015 the two‑year budget was $11.755 million with an actual cost of $9.948 million. Savings of $1.82 million were returned to the state's General Fund. In the biennial budget of 2015‑2017 the prison's budget was $10.233 million, and the actual costs were $9.498 million with $735,247 returned to the General Fund. These numbers do not take into account the 20% returned to the General Fund from gross earnings from prisoners employed and learning job skills. The numbers estimate that looking at just 60 inmates earning minimum wage at 40 hours per week for a year would return a minimum of almost $1 million to the General Fund.
Another argument used to close DCF has been its age and state of repair. Notes furnished by Tuell suggest otherwise. The heating system was replaced in 2013 and over 100 windows were replaced in 2015. The result was a decrease in heating fuel consumption by 50%, from about 67,000 gallons to averaging less than 35,000 gallons per year. The approximate savings have been $63,000 per year.
Prison beds around the state have been another contentious issue. Gardner says, "We are also looking at need. The bed count in the state is such that we can't afford to lose the 140 or so at DCF."
In testimony provided to the legislature during a public hearing, it was pointed out that as of January 29 there were 141 vacant male beds in the state prison system. From that number needed to be subtracted 85 available beds at DCF, the assumption being that they would not be available because of closure, and the 12 available beds at another medium/maximum prison. This left 31 available beds, assuming that they could accommodate minimum-security inmates. The testimony draws the numbers to conclusion by noting that there were not enough beds available for the 64 DCF prisoners. Additional testimony pointed out that prison inmate numbers do not remain static, with, as illustration, the prison population increasing by 22 the week of December 4, 2017, and a note that it is consistently increasing despite ebbs and flows.