A. Civil rights
The right to vote is not lost even upon incarceration. The right to serve on a jury is also not lost. See Me. Rev. Stat. Ann. Tit. 14, § 1211 (providing disqualifications for jury service, none of which refer to criminal history).1 The right to hold office is also not lost, although a judgment of conviction may include an order disqualifying the defendant from office. Me. Rev Stat. Ann tit. 17-A, 1152(4).
Firearm privileges are lost upon conviction of a crime punishable by a term of one year or more, or a juvenile adjudication involving violence or a firearm. Me. Rev. Stat. Ann. tit. 15, § 393(1), paragraphs (A-1) and (C). The Commissioner of Public Safety has the authority, five years from the date of discharge, to grant a permit to carry a “black powder weapon.” tit. 15, § 393(2).2 A juvenile with a non-violent disqualifying conviction under paragraph A-1 is disqualified only for a period of 3 years following completion of any disposition imposed or until that person reaches 18 years of age. A person subject to the provisions of paragraphs A-1 or C as may apply for a permit to carry a firearm, but may not be issued a permit to carry a concealed handgun.
C. Sex Offender Registration
The lifetime registration and quarterly verification requirements of the 1999 sex offender registration act may not be retroactively imposed upon offenders sentenced under the 1991 and 1995 acts. See State v. Letalien, 985 A.2d 4 (Maine 2009) (holding that retroactive application of requirements violates ex post facto provision of Maine Constitution since the effect of requirements is essentially punitive).
II. Discretionary Restoration Mechanisms
A. Executive pardon
The governor has authority to pardon, except in cases of impeachment, subject to regulation “relative to the manner of applying.” Me. Const. art. V, pt. 1, § 11.1 The governor is assisted by the non-statutory Governor’s Board on Executive Clemency, composed of three members appointed by the governor. Me. Exec. Order 25 FY 11/12 (Nov. 1, 2011), available at http://www.maine.gov/tools/whatsnew/index.php?topic=Gov_Executive_Orders&id=321981&v=article2011. The Board is tasked with making recommendations to the governor on each pardon petition, and has the power to hold public hearings on such petitions. Id. The final decision on clemency petitions rests solely with the governor.2 Id.
The Board shall consist of three persons appointed by the Governor to serve at his pleasure. The Chair of the Board shall be designated by the Governor. All members of the Board will be Maine citizens who have demonstrated humanitarian concern as well as thorough knowledge of the criminal justice system, and who have demonstrated such qualities in their private and professional lives that would assist them in evaluating the rehabilitation of persons convicted under our criminal justice laws.
The Department of Corrections (DOC) administers the governor’s pardon power. Frequently asked questions about eligibility, the application process, and the effect of pardons are available at http://www.maine.gov/corrections/adult/pardon/. The Parole Board is authorized, “when requested by the Governor,” to investigate pardon cases, and to make recommendations to the Governor. Me. Rev. Stat. Ann. tit. 34-A, § 5210(4). All information gathered by the Parole Board is confidential. Id. In practice, the Governor’s Board on Executive Clemency holds pardon hearings and makes the recommendations to the governor while the Parole Board assists with investigations. See Governor’s Board of on Executive Clemency, General Information Regarding Executive Clemency (2008), available at http://www.maine.gov/corrections/adult/pardon/pardon%20application%20final.pdf; Exec. Order 25 FY 11/12, supra.
Petitions will not be considered until five years after the completion of the petitioner’s sentence. Adult Community Corrections, Maine Department of Corrections, http://www.maine.gov/corrections/adult/pardon. Petitions to pardon DUI offenses will not be considered, nor will petitions seeking a pardon solely to regain gun rights, to be removed from the state’s sex offender registry,3 or to enter Canada. Further, petitions “seeking a pardon for one criminal conviction when the Petitioner has one or more additional serious criminal convictions that are not included in the Petitioner’s application for a pardon will not be heard.” Id.
The pardon application form requires a description of “exceptional” circumstances warranting a pardon. Petition for Executive Clemency (2008), available at http://www.maine.gov/corrections/adult/pardon/pardon%20application%20final.pdf.
A pardon lifts automatic legal barriers and evidences rehabilitation. Because Maine has no expungement law, criminal records are not “wiped clean” by a pardon. Instead, information concerning the pardoned conviction is considered “non-conviction” data and is available only under the conditions or circumstances set forth in Me. Rev. Stat. Ann. tit. 16, §§ 611-622. Ten years after the final discharge of their sentence, a pardoned person may apply to the State Bureau of Identification to have all references to the pardoned crime deleted from the Federal Bureau of Investigation’s identification record. 15, § 2167 (2011). See also tit. 34-A, § 1125-A(6)(c) (sex offender registration no longer required after pardon).
Pardon application forms and instructions are available at http://www.maine.gov/corrections/adult/pardon. Petitions are sent to the Department of Corrections, which initiates a preliminary background check on the petitioner by the State Bureau of Identification. General Information Regarding Executive Clemency, The Governor’s Board on Executive Clemency then reviews the petitions and decides whether to grant a hearing before the Board. Id. If a hearing is granted, the Parole Board conducts a more thorough background investigation which includes an interview with the petitioner, and may also include interviews with third parties including the petitioner’s family, friends, and co-workers. Id. The only statutory regulation of the pardon process is that, prior to the hearing, written notice of the petition for pardon must be given “to the Attorney General and the district attorney for the county where the case was tried at least 4 weeks before the time of the hearing.” Me. Rev. Stat. Ann. tit. 15, § 2161 (2011). Petitioners must post a notice of the hearing in a newspaper in the county where the conviction occurred at least four weeks before the hearing. Id. See also General Information Regarding Executive Clemency, supra.
The hearing on the petition is public, and allows the Board to ask the petitioner “about matters involving the Petitioner’s application for clemency, including the reason why clemency is being sought and the circumstances surrounding the crime(s) for which a pardon or commutation is being requested.” See General Information Regarding Executive Clemency, supra. After the hearing, the Board meets in Executive Session to discuss the petitioner’s case, and then transmits its recommendation to the governor. The Board meets at least three times each year. Id. The entire process, from the time the application is received until a final decision is issued, usually takes a minimum of six months, and “could take as much as a year or longer.” Id. If the petition is denied, the petitioner must wait one year to reapply. Id.
Frequency of Grants
As of January 2018, Governor Lepage had reportedly granted pardons to only 30 individuals since taking office in 2011, all grants coming in his first two years in office. The website of the Maine Board on Executive Clemency contains no information on the number of pardon applications granted and denied, though newspaper reports indicate that hundreds have applied for relief.4 In 2012, the Board received nearly 160 pardon petitions, and granted hearings on just over a quarter of those petitions. Of the petitions heard, the Board recommended 18 to the Governor, 11 of which were granted. During his eight years in office (2002-2011), Governor Baldacci granted 131 pardons, 51 in his final year in office. About 50 people are granted hearings each year, and of them about 25% are granted pardon. Governor Baldacci regarded pardons as exceptional, primarily useful for “working people,” for whom pardons make a significant difference in their life (employment, particularly nurses and teachers; immigration cases). Two of his final pardons went to individuals seeking pardon to avoid deportation.5 Angus King pardoned about the same number during the preceding eight years, with some individuals receiving multiple pardons, according to information supplied by the Secretary of State’s Office. Gov. Joseph Brennan approved about 300 requests for pardons and commutations, according to Bangor Daily News articles from the 1994 campaign.
Questions regarding pardons may be directed to:
Department of Corrections
Division of Adult Community Services
111 State House Station
Augusta, Maine 04333
B. Judicial sealing or expungement
State law makes no provision for sealing or expungement of adult convictions, other than conviction for class E crimes committed while a person was 18 years old or older but younger than 21.
Sealing of youthful Class E convictions
Under a new 2015 law, courts may seal the records of convictions for Class E crimes (misdemeanors) that were committed while a person was 18 years old or older but younger than 21 if the person has not been convicted of any other offenses and has no charges pending. Me. Rev. Stat. Ann. tit. 15, §§ 2251, 2255. Sexual assault offenses are ineligible. § 2251. A 4-year waiting period applies from the time of completion of sentence. § 2252. Sealing is mandatory if the court finds that the person meets all eligibility criteria. § 2254(5). If a person is convicted of an offense subsequent to sealing, then the sealed records must be unsealed. § 2254(7). Sealed records may not be disseminated to anyone except other than criminal justice agencies. § 2255. A person whose record is sealed “may respond to inquiries from other than criminal justice agencies by not disclosing its existence without being subject to any sanctions.” § 2256. A sunset provision in the law is set to repeal this sealing authority on Oct. 1, 2019. See § 2259.
“A person who has pled guilty to a Class C, Class D or Class E crime and who consents to a deferred disposition in writing is eligible for a deferred disposition.” Me. Rev. Stat. Ann. tit. 17-A, § 1348. “Following the acceptance of a plea of guilty for a crime for which a person is eligible for a deferred disposition under section 1348, the court may order sentencing deferred to a date certain or determinable and impose requirements upon the person, to be in effect during the period of deferment, considered by the court to be reasonable and appropriate to assist the person to lead a law-abiding life.” § 1348-A. Upon successful completion of the period of deferment, the prosecutor may file a motion permitting the defendant to withdraw the plea, and dismiss the charges. § 1348-B. Other dispositional options may be available, such as knocking down a felony to a misdemeanor. No provision for expungement, except that the record then becomes a non-conviction record not available to the public except upon specific request.
Sealing of juvenile records
See Me. Rev. Stat. Ann. tit. 15, § 3308. An individual may petition the court to seal all juvenile adjudication records at least three years have passed since the end of the juvenile’s disposition, there have been no subsequent adjudications or convictions since the disposition, and there are no pending charges. tit. 15, §§ 3308(8)(A)(1)–(3). The court may rule against sealing if it determines that the public’s right to information substantially outweighs the juvenile’s privacy interest. tit. 15, § 3308(8)(B). Once sealed, a juvenile may deny existence of the record. tit. 15, § 3308(8)(D).
Dissemination of non-conviction records
Substantial changes were made to Maine’s Criminal History Record Information Act in June 2013. See 2013 Me. Legis. Serv. Ch. 267 (H.P. 1070) (L.D. 1493) (effective Oct. 9, 2013). As under the prior version of the Act, non-conviction records are not generally available to the public after one year, so long as no prosecution is pending and a person is not a fugitive from justice. See Me. Rev. Stat. Ann. tit. 16, §§ 703(2), 705; see also tit. 16, §§ 611, 613 (2012) (prior version). However, under the new law, disclosure of such information may be made to “[a]ny person who makes a specific inquiry . . . as to whether a named individual was summonsed, arrested or detained or had formal criminal charges initiated on a specific date.” tit. 16, § 705(1)(E).
III. Nondiscrimination in Licensing and Employment
Maine limits consideration of conviction in determining eligibility for the granting of any occupational license, registration or permit issued by the State, placing stricter limits on less serious offenses and generally barring consideration of dated convictions. Under Me. Rev. Stat. Ann. tit. 5, § 5301(1), licensing agencies may take into consideration criminal history record information from Maine or elsewhere relating to certain convictions that have not been set aside or for which a full and free pardon has not been granted, but “the existence of such information shall not operate as an automatic bar to being licensed, registered or permitted to practice any profession, trade or occupation.”
Section 5301(2) further limits consideration of certain minor convictions: convictions for which incarceration for less than a year is authorized may be considered only if the offense “directly relates” to the license, or if the offense involves dishonesty or false statement. Convictions of a sexual nature may be considered in connection with certain types of health care licenses. However, under § 5302 convictions specified in § 5301(2) may be taken into account if the licensing agency determines that the individual “has not been sufficiently rehabilitated to warrant the public trust.” In such event, the licensing agency “shall explicitly state in writing the reasons for a decision which prohibits the applicant, licensee, registrant or permit holder from practicing the profession, trade or occupation if that decision is based in whole or in part on conviction of any crime described in section 5301, subsection 2.”
Section 5303 provides that licensing authorities may consider only recent convictions (within the last three or ten years, depending on the type of license sought, with a longer period for health care and law enforcement licenses).6 “Beyond the [3-year][10-year] period, ex-offender applicants or licensees with no additional convictions are to be considered in the same manner as applicants or licensees possessing no prior criminal record for the purposes of licensing decisions.” § 5303(1), (2)(A). There is no time limitation for consideration of an applicant’s or licensee’s conduct that gave rise to the criminal conviction if that conduct is otherwise a ground for disciplinary action. §5303(1)(, (2)(B).
No similar limitations on public or private employment.
- The Maine Supreme Court has held statutes purporting to reduce prison terms through good time or judicial resentencing to be an unconstitutional usurpation of governor’s clemency authority. See Chestnut v. State, 524 A.2d 1216, 1219-20 (Me. 1987); State v. Hunter, 447 A.2d 797, 801-803 (Me. 1982).
- In 1977, Amendment 129 to the Maine constitution eliminated the requirement that the governor obtain the advice of the quasi-legislative Executive Council before issuing a pardon. Me. Con. Res. 1975, c.4 See also In re Pardoning Power of Governor & Council, 27 A. 463 (Me. 1892) (governor not required to seek concurrence of the justices of the supreme court, noting separation of powers concerns). In 1995, freed of these venerable limits on his pardon power, Governor Angus King created the Board on Executive Clemency. See E.O, 8-94/95, January 27, 1995 (on file with author).
- Cf. Me. Rev. Stat. Ann. tit. 34-A, § 1125-A(6)(c) (2011) (registration no longer required after pardon).
- According to a 2013 article in the Bangor Daily News, “the [Department of Corrections] has not yet received any signed paperwork from the governor’s office. So, while the pardons are signed, an employment or criminal background check would not yet indicate that any [of the pardons] exist.” Judy Meyer, Hundreds seek pardons of criminal conviction in Maine each year, but few are granted, Bangor Daily News, June 2, 2013, available at http://bangordailynews.com/2013/06/02/news/state/hundreds-seek-pardons-of-criminal-convictions-in-maine-each-year-but-few-are-granted.
- See Kevin Miller, As clock runs out on his term, Baldacci grants final pardons, Bangor Daily News, Jan. 5, 2011, available at http://new.bangordailynews.com/2011/01/05/politics/as-clock-runs-out-on-his-term-baldacci-grants-final-pardons/
- E.g., § 5303(1): “THREE-YEAR LIMITS. Except as set forth in this subsection and subsection 2, the procedures outlined in sections 5301 and 5302 for the consideration of prior criminal conviction as an element of fitness to practice a licensed profession, trade or occupation shall apply within 3 years of the applicant’s or licensee’s final discharge, if any, from the correctional system. Beyond the 3-year period, ex-offender applicants or licensees with no additional convictions are to be considered in the same manner as applicants or licensees possessing no prior criminal record for the purposes of licensing decisions. There is no time limitation for consideration of an applicant’s or licensee’s conduct which gave rise to the criminal conviction if that conduct is otherwise a ground for disciplinary action against a licensee.”
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