When Peter Lehman got out of prison nearly 20 years ago, it was a more private time.
“Twenty years ago, if you wanted to find out about someone’s criminal record, you would need to go through criminal records by hand,” said Lehman, now the legislative coordinator for the Maine Prisoner Advocacy Coalition. “We didn’t have the access to criminal records that we do now.”
Mugshots on Facebook, jail logs on newspaper websites, online registries: Lehman said that in the modern world, the ways that people’s criminal records stick with them even after they’ve served their sentences can be a life sentence in itself, especially when these records come up as they try to get housing or employment.
“There’s some point at which they say, ‘I should be able to move on with my life and put this behind me,’” Lehman said.
Maine lawmakers are considering a bill that would not do away with online exposure, but would give some people convicted of certain low-level, nonviolent crimes an avenue to seal their criminal records after they’ve served their time.
The bill would apply to most Class E offenses, low-level crimes with the lowest sentencing requirements, that being six months incarceration. In Maine, data from the judiciary shows the most commonly charged Class E crimes are violations of a person’s condition of release from jail, shoplifting and operating a vehicle without a license. The bill does not allow for the sealing of most records related to sexual assault or domestic violence.
Those wishing to seal their records would need to have been between the ages of 18 and 28 at the time they committed their crimes and would have to wait four years after completing their sentences to file motions in the courts where their criminal cases were considered, requesting that the records be sealed.
The person applying would file a motion in court, typically represented by an attorney. Whoever prosecuted the person in the case – a district attorney’s office or the attorney general’s office – would be able to oppose the request.
The court must hold a hearing on the motion and, if it determines all the requirements have been met, it may seal the criminal history record information and issue an order certifying the determination.
When criminal records under the bill are sealed, the information becomes confidential to the public. That doesn’t mean it goes away. Relevant state agencies, including those in law enforcement and the Secretary of State’s Office, would still have access as necessary. There’s also an exception for victims of the crime to access the records. Criminal justice agencies can still disseminate the records to necessary state agencies, certain professional licensing boards and others where fingerprint-based background checks are necessary.
Maine is one of only a handful of states without any sort of process to allow people to request their criminal records be sealed or expunged. But this hasn’t always been the case. From 2017 to the end of 2020, the state ran a pilot record sealing program, during which a court approved the sealing of 26 people’s records. There were 55 applications for record sealing, and a few were still pending at the end of 2021.
The process for the pilot was essentially the same as the process described in the most recent bill, where individuals wanting to seal their records would file a motion in court.
After that pilot ended, the Legislature created a Criminal Records Review Committee made up of a wide range of stakeholders – including representatives from the media, law enforcement and legal aid organizations, civil rights advocates and the formerly incarcerated to consider the issues involved in sealing and expunging criminal records, and to make recommendations.
Drawing on that group’s work, lawmakers considered a measure in 2021 that would have allowed a wider swath of low-level, mostly nonviolent crimes to be eligible for record sealing.
That bill did not succeed, but a new, narrower version of it, which would have offered an avenue to record sealing for fewer types of crimes, was introduced in 2022.
Its scope was narrowed further after objections from the governor’s office. The narrower version now being considered removed Class D crimes, which carry nearly twice as much incarceration time and include offenses like operating under the influence.
Lehman of the Maine Prisoner Advocacy Coalition has argued that the bill’s scope is now too narrow, applying to too few offenses.
Why, Lehman asked in testimony to the Judiciary Committee, should a hardware store have access to criminal records for a sexual offense, for example, when it’s not relevant to the job?
“This bill is only better than nothing,” Lehman said of the bill’s current version.
Judy Meyer, executive director of the Sun Journal, the Kennebec Journal and the Morning Sentinel, served on the Criminal Records Review Committee and addressed lawmakers on behalf of the Maine Freedom of Information Coalition, which aims to spread awareness of the First Amendment and citizens’ rights to public information. The coalition, she said, does not oppose a process to seal criminal records for low-level crimes with little victimization. But she has concerns about inequities in the bill, which doesn’t require assigned counsel to help indigent people navigate the courts and seal their records.
“We are knowingly putting into (the) bill, ‘If you can afford a lawyer, it’s clear sailing to get your records sealed,'” Meyer said. “It traps people who live in poverty with their criminal records for all time.”
Previous legislation has covered other issues people face after they are sentenced and incarcerated.
A law passed last year prohibits Maine employers from asking about job applicants’ criminal history during the application process.
The American Civil Liberties Union of Maine supports L.D. 1310, the bill to allow some records to be sealed.
Michael Kebede, its policy counsel, called it a step forward to the “golden standard,” which for him would mean the sealing of all types of criminal records, unless specifically excluded in state law.
“This is what we could get now,” Kebede said. “And this also gives the state and the judiciary … practice. It gives them something to point to when, down the road, we ask for the golden standard. It gives the state some experience in the area so we’re not acting totally in the dark when a future legislator introduces a golden standard.”
Meyer, who said she and the Maine Freedom of Information Coalition support an avenue for some people to seal their records, argues that at some point the public’s right to know begins to outweigh one individual’s rights to seal a criminal past.
“I do think there are legitimate public interests in having access to public records that go beyond the defendant’s need to restart their life,” Meyer said. “When those records are pulled out of the public view, the public loses that ability to understand the prosecutorial process. The public has a huge interest in knowing how that process works.”
The Judiciary Committee agreed to send the bill to the full House on March 10. Both the Maine House and Senate would need to approve the bill and the governor would need to sign it for it to become law.
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