Memorandum: Criminal Records Review Issues
To: Senator Donna Bailey
Representative Rachel Talbot Ross
Criminal Records Review Committee
From: Donald G. Alexander
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Date: December 6, 2021
Re: Issues Before the Criminal Records Review Committee
Pursuant to Resolves 2021, ch. 121, the Criminal Records Review
Committee has objectives to consider (i) options for expungement, sealing,
vacating or otherwise limiting or barring public access to criminal records; (ii)
“clean slate” legislation; (iii) whether, after some time limit, “some or all
criminal records should not be publicly available;” (iv) information “about the
harms and benefits of making criminal records confidential;” and (v) “who, if
anyone, should continue to have access to criminal records that are not publicly
available.”
Viewing the materials provided for the Committee meetings and some
discussions at Committee meetings to date, the principal objectives of the
Committee appear to be identification of ways that limiting access to criminal
history records may assist individuals with criminal records to move toward
full participation in society by improving their access to employment, credit,
housing, security clearances, professional licensing, education, and
opportunities to participate in adult guardianships or conservatorships, or
become adoptive or foster parents where criminal records now pose a bar or at
least a challenge to consideration of individuals’ applications in these areas.
The proposals before the Committee to achieve these objectives focus
primarily on amendment of the criminal records statutes, though the
Committee materials also suggest the Committee may propose amendments to
professional licensing or housing access statutes to limit criminal records
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Associate Justice (Retired), Maine Supreme Judicial Court; Member, Maine Commission on Indigent
Legal Services; Member Maine Uniform Law Commission. The observations in this memorandum are
personal and do not represent the position of any Court, the MCILS, or any other agency or
organization.
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barriers and perhaps a constitutional amendment of some purpose, possibly to
have some legislative involvement in pardoning or commutation decisions.
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Pending proposals address both adult and juvenile criminal record history.
However, this memo does not separately address juvenile records proposals in
any detail, as access to juvenile records is already significantly limited. P.L.
2021, ch. 365, enacted significant amendments to clarify and limit access to
juvenile court proceedings and case records.
One proposal meriting particularly serious consideration appears to be
LD 1459 which would adopt 15 M.R.S.A. ch. 310-A to allow persons to petition
the court to limit or bar dissemination of their criminal history record, subject
to detailed conditions and limitations. This legislation would apply statewide
and replace a pilot program, applicable in only a few courts, that expired in
2019. Other proposals being considered include: LD 473 to condition
landlords’ participation in the rental assistance program on their agreement
not to consider potential tenants’ criminal history, credit score, or rental
history; and LR 2503 to limit consideration of prior convictions for drug
offenses in licensing to grow or sell marijuana and related products.
Current Law
The Criminal History Record Information Act, 16 M.R.S.A. §§ 701 – 710,
addresses criminal history records and access to those records in considerable
detail. In § 703(2) it specifies what criminal records are confidential, meaning
public access to such records is limited. Sub-§ 2 states:
2. Confidential criminal history record information. "Confidential
criminal history record information" means criminal history record
information of the following types:
A. Unless the person remains a fugitive from justice, summons and arrest
information without disposition if an interval of more than one year has
elapsed since the date the person was summonsed or arrested and no
active prosecution of a criminal charge stemming from the summons or
arrest is pending;
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The Committee materials include a provision from the Colorado Constitution, but that provision
only requires that the Legislature receive notice of and explanation of pardon or commutation
decisions. It does not appear to give the Legislature pardon or commutation authority or require
legislative approval. In Maine the Governor’s exclusive authority to pardon individuals or commute
sentences is stated in Art. V. Pt. 1, § 11 of the Maine Constitution and 15 M.R.S.A. §§ 2161-2163.
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B. Information disclosing that the responsible law enforcement agency
or officer has elected not to refer a matter to a prosecutor;
C. Information disclosing that the responsible prosecutorial office or
prosecutor has elected not to initiate or approve criminal proceedings;
D. Information disclosing that a grand jury has determined that there is
insufficient evidence to warrant the return of a formal charge;
E. Information disclosing that a criminal proceeding has been postponed
for a period of more than one year or dismissed because the person
charged is found by the court to be mentally incompetent to stand trial or
to be sentenced;
F. Information disclosing that a criminal charge has been filed, if more
than one year has elapsed since the date of the filing;
G. Information disclosing that a criminal charge has been dismissed by a
court with prejudice or dismissed with finality by a prosecutor other than
as part of a plea agreement;
H. Information disclosing that a person has been acquitted of a criminal
charge. A verdict or accepted plea of not criminally responsible by reason
of insanity, or its equivalent, is not an acquittal of the criminal charge;
I. Information disclosing that a criminal proceeding has terminated in a
mistrial with prejudice;
J. Information disclosing that a criminal proceeding has terminated
based on lack of subject matter jurisdiction;
K. Information disclosing that a criminal proceeding has been terminated
because the court lacked jurisdiction over the defendant; and
L. Information disclosing that a person has petitioned for and been
granted a full and free pardon.
Section 703(3) then provides a 28-line definition of what is and is not
“Criminal history record information.”
Section 705 states many exceptions to the confidentiality requirements
for law enforcement and other statutorily authorized agencies and purposes,
and even for public dissemination of information indicating a dismissal,
acquittal, or other final termination of a proceeding.
A criminal records review would do well to clarify the definition of
“Criminal history record information” and the exceptions to the confidentiality
requirement, particularly as the courts and the State move more towards a
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digital record keeping system that may make identification and separation of
individual items in a court docket, file, or registry of actions more challenging.
Many other statutes also address access to and use of criminal records.
For example, 5 M.R.S.A. § 5301 addresses how the many State professional
licensing boards may disqualify an applicant for a professional license because
of a criminal record. The criminal records which may be considered in deciding
whether or not to issue a professional license include:
A. Convictions for which incarceration for less than one year may be
imposed and which involve dishonesty or false statement;
B. Convictions for which incarceration for less than one year may be
imposed and which directly relate to the trade or occupation for which the
license or permit is sought;
C. Convictions for which no incarceration can be imposed and which
directly relate to the trade or occupation for which the license or permit is
sought;
D. Convictions for which incarceration for one year or more may be
imposed; or
E. Convictions for which incarceration for less than one year may be
imposed and that involve sexual misconduct by an applicant for [a long list of
health, personal care, and counselling related licenses, and also the Board of
Trustees of the Maine Criminal Justice Academy.]”
Beyond these general statutes, many statutes relate to individual
licensing, employment, or assistance decisions that require some criminal
history record check and mandate some disqualifications from eligibility. The
Committee has already received from the Director of the State Bureau of
Identification a substantial list of Maine statutes authorizing national criminal
history records checks through the FBI, followed by a list of federal statutes
authorizing or requiring such records checks for various federally supported
activities. Significant alteration of these criminal records check and
qualification requirements may be a bit of a challenge, particularly when
federal requirements are involved.
The challenges to limiting access to criminal records have been
addressed in detail in written documents and appearances before the
Committee by the Commissioner of the Department of Professional and
Financial Regulation, the Director of the State Bureau of Identification in the
Maine Department of Public Safety, the Director of the Office of Child and
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Family Services in the Department of Health and Human Services, and the
Superintendent of the Bureau of Insurance in the DPFR. These materials
demonstrate the importance of criminal records checks and qualification limits
based on criminal records to protect integrity and public safety in many
programs.
Issues for a Maine Criminal Records Program
A. Information in the Public Domain
Solutions to concerns about criminal records (or other records of court
actions) limiting one’s ability to fully participate in society must recognize the
capacity of any individual to use digital technology to find information that is a
matter of public record. Potential employers, credit bureaus, security clearance
investigations, lending institutions, landlords, even potential dating partners,
may conduct digital and social media records searches to see what they can
learn about a person before entering or approving a professional license,
security clearance, or a business or personal relationship. Access to and use of
such information, once it is in the public domain, cannot be limited by access
and confidentiality requirements applicable only to records in court or
government agency files or data bases.
In Maine, much information identifying individual encounters with law
enforcement and the justice system is published in local newspapers and on
news websites before the matter reaches the courts and, sometimes, before
final decisions to prosecute or not prosecute have been made. See, for example,
the following from Central Maine Newspapers: (1) Dec. 4, 2021, p. B3, “Police”
report indicating four persons arrested for specified reasons, and including the
person’s name, age, and place of residence; (2) Dec. 3, 2021, p. B3, “Police”
report indicating six persons arrested for specified reasons, and including the
person’s name, age, and place of residence; (3) Dec. 2, 2021, p. B3, item headed
“Somerset County Grand Jury Indicts 30 People on 86 Counts,” beginning with
a report about an individual indicted for calling in bomb threats, then listing all
30 individuals indicted with their name, age, place of residence and the charge
or charges against them, and concluding with a statement: “An indictment is
not a finding of guilt, but an indication there is enough evidence to move
forward with a trial.” Print and online news in Maine regularly includes reports
of particular events that result in individuals being charged with a crime or
require other police involvement.
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In this public reporting, identifying individuals charged with even minor
crimes, Maine, and other states with similar demographics, may differ from
large metropolitan areas where public news reporting identifying individuals
charged with minor crimes is rare, if it occurs at all. That difference may need
to be recognized in developing ideas to accomplish the Committee’s objectives.
Google searches of the publicly identified individuals today or 10 years from
now may indicate the names and criminal charges of those individuals, even if
the charge was dismissed or had a final resolution that would render the
criminal record of that individual confidential under the current CHRIA.
If a criminal record is made private or is expunged, a person doing a
digital records check may be left with what was in the newspaper, social media,
or online information source, and may not learn of a perhaps lesser offense, or
decision not to prosecute, that would have been reflected in the expunged
record. Some potential employers, licensing authorities, or others seeking
records of one’s past, seeing a Google search report of an arrest or indictment,
and having a choice to interview several applicants for a job or to rent an
apartment, may not consider the applicant with the criminal record further.
The present confidentiality exception in CHIRA to allow disclosure that
an action was finally dismissed, or resulted in an acquittal, allows a member of
the public with a legitimate need to know to learn how a charge against an
individual resolved, but only if the person elects to check.
An example of an issue once a record becomes part of the public domain:
In 2008 or 2009, the Law Court vacated a conviction for a sex offense. At a
retrial, the person charged was acquitted. Reading CHIRA indicating that
criminal records resulting in an acquittal are confidential, the person or his
representative asked that the Law Court opinion vacating the conviction after
the first trial be removed from the public record on the Court’s website and in
the many legal publications circulating broadly. Because the opinion was in the
published public record, the person was advised that the opinion could not be
removed from the websites, electronic research services, and books where it
was available for research.
Records of filings and adjudications of civil actions such as debt
collections, foreclosures, evictions, and damages judgments similarly become
part of the public record once they are reported in the press or online or are
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collected from the courts by credit bureaus, landlord organizations, or other
entities outside the control of the courts and government agencies.
B. Employment, Credit, Licensing, and Other Application Forms.
Present or proposed laws making criminal records confidential with a
goal of improving opportunities to be considered for employment, credit,
professional licensing, education or other matters do not reach the job, credit,
education, or licensing application process. Such applications regularly ask
about arrests or charges, not convictions, with the applicant then invited to
provide any explanation about the arrest or charge. Some application forms
ask broader questions covering participation in any civil or criminal action.
Following is a question from the Legislative Staff Questionnaire for
Gubernatorial Nominees that was used in early 2021
ARE YOU OR HAVE YOU EVER BEEN A PARTY OF CIVIL OR CRIMINAL COURT LITIGATION
EITHER PERSONALLY OR AS AN OFFICER OR A CORPORATION, ASSOCIATION, OR OTHER
LEGAL ENTITY? DESCRIBE THE CIRCUMSTANCES OF ANY SUCH LITIGATION?
Such questionnaires require an honest applicant to disclose prior
encounters with the criminal justice system, even if the official court or SBI
record is confidential or expunged – and even if there has been a pardon. The
pardon or case dismissal may be part of an explanation of the event, but the
event must be disclosed.
C. Alternatives to Consider
(1) If the goal of legislation is to limit consideration of a prior criminal
record after passage of a certain amount of time and with an appropriate
demonstration of rehabilitation or change in life, one alternative would be to
legislate to bar consideration of the record of a particular crime in
consideration of an application for employment, credit, security clearance,
housing, professional licensing, education, or other activity where the criminal
record might be considered.
That is the approach suggested in LD 473, proposing to bar consideration
of criminal records in rental assistance applications, or LR 2503, proposing to
limit consideration of prior drug conviction records in applications for licenses
to grow or sell marijuana. Such limitations are likely to work only in
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government administered programs or licensing activities, and even in such
programs, the limitations may prove problematic when there are several
applicants for a position and discretionary choices must be made.
(2) An alternative might be to create a State program that would allow
persons, after passage of a certain amount of time after conviction for certain
crimes, to participate in a program leading to a certificate of rehabilitation or
change of life from the circumstances that led to commission of the crime. This
could be disclosed on applications and let the issue be considered by the
potential employer or other person or entity considering the application for
employment, licensing, credit, security clearance, housing, education or other
activity. Such a rehabilitation or qualification certificate might be addressed as
part of consideration of LD 1459, that would authorize persons to petition to
limit public access to criminal records. Such early disclosure, and with a
certificate of rehabilitation or qualification, would likely promote more
favorable consideration than would be the case when a potential employer,
landlord or other person later learns of a charge or conviction for the first time
in a Google search.
(3) The accuracy of criminal records and whether they are up to date is
a continuing problem. A criminal record for a single charge may be reviewed
and adjusted by local police, county corrections officials, District Attorneys,
courts, the State Bureau of Identification, the Department of Corrections and
others. The Criminal Records Review Committee may want to consider
whether to take some action to improve criminal record accuracy and currency.
The Uniform Law Commission has proposed a Uniform Criminal Records
Accuracy Act. Attachment 1 is a summary of that Act. A copy of the draft Act
can also be provided if consideration of the Act is deemed appropriate, although
the draft appears a little more complicated than may be needed for Maine.
