CRIMINAL RECORDS REVIEW COMMITTEE Meeting Agenda

Additional information and materials are available on the Committee’s webpage at:

https://legislature.maine.gov/criminal-records-review-committee-131st-legislature

CRIMINAL RECORDS REVIEW COMMITTEE

Meeting Agenda

Tuesday, July 16, 2024

9:00a.m. – 4:00p.m.

Maine State House, Room 228 (AFA) and via Zoom

Streaming: https://legislature.maine.gov/Audio/#228

1. Welcome and Introductions

• Senator Donna Bailey, Senate Chair

• Speaker Rachel Talbot Ross, House Chair

2. Review of Committee Duties and Interim Study Process

• Office of Policy and Legal Analysis, Staff

3. Update on Outcome of Interim Report Recommendations

• Office of Policy and Legal Analysis, Staff

• Amanda Doherty, Maine Judicial Branch

• Amy McCollett, State Bureau of Identification, DPS

4. Summary of Current Process for Sealing Criminal Records

• Office of Policy and Legal Analysis, Staff

5. Lunch

6. Separation of Powers Issues Related to Clean Slate Legislation

• Derek P. Langhauser, Esq.

7. Requesting an Opinion of the Justices

• Darek M. Grant, Secretary of the Senate

• Robert B. Hunt, Clerk of the House

8. Discussion and Planning for Next Meeting

Future Meetings

 Tuesday, August 13, 9:00 a.m. (Hybrid: State House Room 228 and Zoom)

 Tuesday, September 24, (Hybrid: State House Room 228 and Zoom)

 Tuesday, October 8, (Hybrid: State House Room 228 and Zoom)



Tuesday, November 19, (Hybrid: State House Room 228 and Zoom)

CRIMINAL RECORDS REVIEW COMMITTEE

Established by Resolve 2023, Chapter 103

Membership List

Name

Representation

Senator Donna Bailey,

Senate Chair

Senate member, appointed by the President of the Senate

Speaker Rachel Talbot

Ross, House Chair

House member, appointed by the Speaker of the House

Senator Eric Brakey

Senate member, appointed by the President of the Senate

Representative David

Boyer

House member, appointed by the Speaker of the House

Foster Bates

Representative of a civil right organization whose primary mission

includes the advancement of racial justice, appointed by the

President of the Senate

Anna Welch

Representative of an organization that provides legal assistance on

immigration, appointed by the President of the Senate

Jason Parent

Representative of an organization whose primary mission is to

address issues related to poverty, appointed by the President of the

Senate

Andrea Mancuso

Representative of a statewide nonprofit organization whose mission

includes advocating for victims and survivors or domestic violence,

appointed by the President of the Senate

Tess Parks

Representative of a substance use disorder treatment or recovery

community, appointed by the President of the Senate

Joseph Jackson

Representative of an adult and juvenile prisoner’s rights

organization, appointed by the President of the Senate

Dan MacLeod

Representative of newspaper and other press interests, appointed by

the President of the Senate

Tim Moore

Representative of broadcasting interests, appointed by the Speaker

of the House

Melissa Martin

Representative of a statewide nonprofit organization whose mission

includes advocating for victims and survivors or sexual assault,

appointed by the Speaker of the House

Pedro Vazquez

Representative of an organization that provides free civil legal

assistance to citizens of the State with low incomes, appointed by

the Speaker of the House

Hannah Longley

Representative of a mental health advocacy organization, appointed

by the Speaker of the House

Michael Kebede

Representative of a civil liberties organization whose primary

mission is the protection of civil liberties, appointed by the Speaker

of the House

CRIMINAL RECORDS REVIEW COMMITTEE

Established by Resolve 2023, Chapter 103

Amanda Comeau

Representative of a nonprofit organization whose primary mission is

to advocate for victims and survivors of sexual exploitation and sex

trafficking, appointed by the Speaker of the House

Jill Ward

Representative of an organization involved in advocating for

juvenile justice reform, appointed by the Speaker of the House

Judith Meyer

Representative of a public records access advocacy organization,

appointed by the Speaker of the House

Kent Avery

Attorney General or the Attorney General’s designee

William Montejo

Commissioner of Health and Human Services or the commissioner’s

designee

Amy McCollett

Commissioner of Public Safety or the commissioner’s designee

Samuel Prawer

Commissioner of Corrections or the commissioner’s designee

Maeghan Maloney

President of the Maine Prosecutor’s Association or the president’s

designee

Matthew Morgan

President of the Maine Association of Criminal Defense Lawyers or

the president’s designee

Sheriff Joel Merry

President of the Maine Sheriffs’ Association or the president’s

designee

Chief Jason Moen

President of the Maine Chiefs of Police Association or the

president’s designee

Representative Erin

Sheehan

Chair of the Right to Know Advisory Committee or the chair’s

designee

Amanda Doherty

Member of the Judicial Branch designated by the Chief Justice of

the Supreme Judicial Court

CRIMINAL RECORDS REVIEW COMMITTEE

Member Introductions (2024)

Name Brief Introduction

Senator Donna Bailey,

Senate Chair

Chair, Health Coverage, Insurance and Financial Services Committee and

Member, Judiciary Committee.

Speaker Rachel Talbot

Ross

, House

Chair

Speaker of the House.

Senator Eric Brakey Member, Judiciary Committee.

Representative David

Boyer

Member, Veterans and Legal Affairs Committee. Previously served as the

Marijuana Policy Project’s Maine Director and the campaign manager of

Yes on 1: Regulate and Tax Marijuana, which legalized cannabis in Maine

in 2016.

Foster Bates President, MSP NAACP.

Anna Welch Founding Director of Maine Law’s Refugee and Human Rights Clinic and

Managing Co-Director of the Cumberland Legal Aid Clinic. Through our

student attorneys, we engage in broader advocacy and direct representation

of low-income individuals on criminal, youth, and civil (including

immigration) matters.

Jason Parent Executive Director / Chief Executive Officer, Aroostook County Action

Program (ACAP). ACAP represents vulnerable populations in the rural rim

counties of our state, specifically including customers both in the Aroostook

County Jail and others incarcerated after release to assist with all facets of

community re

integration.

Andrea Mancuso Public Policy Director, Maine Coalition to End Domestic Violence.

Tess Parks Policy Organizer, Maine Recovery Advocacy Project (ME-RAP). ME-RAP

is a bipartisan grassroots network dedicated to lifting the voices of people in

recovery through community

driven and policy

based solutions.

Joseph Jackson Executive Director, Maine Prisoner Advocacy Coalition (MPAC). MPAC

engages in direct action and advocacy with the Maine Department of

Corrections on behalf of incarcerated citizens and their families.

Dan MacLeod Executive Editor, Bangor Daily News.

Tim Moore President / Chief Executive Officer of the Maine Association of

Broadcasters.

Melissa Martin Public Policy and Legal Director at the Maine Coalition Against Sexual

Assault. Represented survivors of sexual violence for many years in civil

legal proceedings prior to joining MECASA.

Pedro Vasquez Pine Tree Legal Assistance. Lifelong human rights defender; serving on

this committee as a representative of an organization that provides free civil

legal assistance to citizens of the State with low incomes.

Hannah Longley

Devon Gross (when

Hannah is

unavailable)

Director of Advocacy and Crisis Intervention, National Alliance on Mental

Illness (NAMI) Maine. Licensed Clinical Social Worker with over 15 years

of clinical experience, collaborating across various facets of the mental

health system, including the intersection of mental health and the criminal

justice system.

Special Project and Data Specialist at NAMI Maine. Devon collaborates

with mental health providers, law enforcement, and community members,

interacts with data related to the mental health system, and actively

CRIMINAL RECORDS REVIEW COMMITTEE

Member Introductions (2024)

advocates for mental health through her involvement in the NAMI Maine

policy team.

Michael Kebede Policy Counsel, ACLU Maine.

Amanda Comeau Director, Survivor Speak USA. Anti-trafficking facilitator, advocate and

mentor who works with women to help them get treatment and find housing.

Jill Ward Director, Center for Youth Policy & Law at Maine Law. Attorney and

advocate with more than 25 years’ experience in juvenile justice reform;

contributed to recent changes to the Maine Juvenile Code around juvenile

record confidentiality and sealing.

Judith Meyer Vice President, Maine Freedom of Information Coalition, a nonprofit entity

that advocates for and educates on public access.

Kent Avery Designee of Attorney General. Assistant Attorney General, Criminal

Division. Previously Assistant District Attorney for seven years and

criminal defense attorney for three years. Currently represents Maine State

Police and Fire Marshal’s Office.

William “Bill”

Montejo

Director, Division of Licensing and Certification, Maine Department of

Health and Human Services.

Amy McCollett Business System Administrator, Department of Public Safety, Maine State

Police, State Bureau of Identification. Gathers and analyzes state and

federal rules and laws in order to properly assist with building, testing and

implementing computer system processes in order to supply Identity History

information (criminal history checks or rap sheets) to the public and law

enforcement communities as required by law.

Samuel Prawer Sam Prawer is the Director of Government Affairs at the Maine Department

of Corrections, serving on the Criminal Records Review Committee as the

Commissioner’s designee.

Maeghan Maloney President, Maine Prosecutors Association and District Attorney for

Kennebec and Somerset counties.

Matthew Morgan President-Elect, Maine Association of Criminal Defense Lawyers (MACDL)

and a practicing criminal defense attorney in both Maine state and federal

courts.

Sheriff Joel Merry Past President, Maine Sheriffs Association and Sheriff of Sagadahoc

County. Has served as Sheriff for 16 years as well as on a number of

committees that have provided reports to the Legislature. Has also worked

with the Administrative Office of the Courts on the issue of fingerprint

compliance for law enforcement agencies.

Chief Jason Moen President, Maine Chiefs of Police Association and Chief of the Auburn

Police Department. Chief Moen has served the City of Auburn for the past

29 years, 6 as Chief. He also serves on several MCOPA committees,

including the Legislative Committee.

Representative Erin

Sheehan

Chair, Right to Know Advisory Committee and Member, Judiciary

Committee

Amanda Doherty Manager of Criminal Process & Specialty Dockets, Maine Judicial Branch.

Prior to current position, served as a prosecutor for almost seven years and

in criminal defense for almost a decade before that.

Page 1 - 131LR2256(03)

STATE OF MAINE

_____

IN THE YEAR OF OUR LORD

TWO THOUSAND TWENTY-THREE

_____

H.P. 1047 - L.D. 1622

Resolve, to Reestablish the Criminal Records Review Committee

Sec. 1. Review committee established. Resolved: That the Criminal Records

Review Committee, referred to in this resolve as "the review committee," is established.

Sec. 2. Review committee membership. Resolved: That, notwithstanding Joint

Rule 353, the review committee consists of the following members:

1. Two members of the Senate, appointed by the President of the Senate, including

one member from each of the 2 parties holding the largest number of seats in the

Legislature;

2. Two members of the House of Representatives, appointed by the Speaker of the

House of Representatives, including one member from each of the 2 parties holding the

largest number of seats in the Legislature;

3. The Attorney General or the Attorney General's designee;

4. The Commissioner of Health and Human Services or the commissioner's designee;

5. The Commissioner of Public Safety or the commissioner's designee;

6. The Commissioner of Corrections or the commissioner's designee;

7. The President of the Maine Prosecutors Association or the president's designee;

8. The President of the Maine Association of Criminal Defense Lawyers or the

president's designee;

9. The President of the Maine Sheriffs' Association or the president's designee;

10. The President of the Maine Chiefs of Police Association or the president's

designee;

11. The chair of the Right To Know Advisory Committee or the chair's designee;

12. A representative of a civil rights organization whose primary mission includes the

advancement of racial justice, appointed by the President of the Senate;

13. A representative of an organization that provides legal assistance on immigration,

appointed by the President of the Senate;

LAW WITHOUT

GOVERNOR'S

SIGNATURE

JULY 19, 2023

CHAPTER

103

RESOLVES

Page 2 - 131LR2256(03)

14. A representative of an organization whose primary mission is to address issues

related to poverty, appointed by the President of the Senate;

15. A representative of a statewide nonprofit organization whose mission includes

advocating for victims and survivors of domestic violence, appointed by the President of

the Senate;

16. A representative of a substance use disorder treatment or recovery community,

appointed by the President of the Senate;

17. A representative of an adult and juvenile prisoners' rights organization, appointed

by the President of the Senate;

18. A representative of newspaper and other press interests, appointed by the President

of the Senate;

19. A representative of broadcasting interests, appointed by the Speaker of the House

of Representatives;

20. A representative of a statewide nonprofit organization whose mission includes

advocating for victims and survivors of sexual assault, appointed by the Speaker of the

House of Representatives;

21. A representative of an organization that provides free civil legal assistance to

citizens of the State with low incomes, appointed by the Speaker of the House of

Representatives;

22. A representative of a mental health advocacy organization, appointed by the

Speaker of the House of Representatives;

23. A representative of a civil liberties organization whose primary mission is the

protection of civil liberties, appointed by the Speaker of the House of Representatives;

24. A representative of a nonprofit organization whose primary mission is to advocate

for victims and survivors of sexual exploitation and sex trafficking, appointed by the

Speaker of the House of Representatives;

25. A representative of an organization involved in advocating for juvenile justice

reform, appointed by the Speaker of the House of Representatives; and

26. A representative of a public records access advocacy organization, appointed by

the Speaker of the House of Representatives.

The review committee shall invite the Chief Justice of the Supreme Judicial Court to

designate a member of the judicial branch to serve as a member of the committee.

Sec. 3. Chairs. Resolved: That the first-named Senate member is the Senate chair

and the first-named House of Representatives member is the House chair of the review

committee.

Sec. 4. Appointments; convening of review committee. Resolved: That all

appointments must be made no later than 30 days following the effective date of this

resolve. The appointing authorities shall notify the Executive Director of the Legislative

Council once all appointments have been completed. After appointment of all members,

the chairs shall call and convene the first meeting of the review committee. If 30 days or

more after the effective date of this resolve a majority of but not all appointments have

Page 3 - 131LR2256(03)

been made, the chairs may request authority and the Legislative Council may grant

authority for the review committee to meet and conduct its business.

Sec. 5. Duties. Resolved: That the review committee shall:

1. Review activities in other states that address the expungement, sealing, vacating of

and otherwise limiting public access to criminal records;

2. Consider so-called clean slate legislation options;

3. Consider whether the following convictions should be subject to different treatment:

A. Convictions for conduct that has been decriminalized in this State over the last 10

years and conduct that is currently under consideration for decriminalization;

B. Convictions for conduct that is nonviolent or involves the use of marijuana; and

C. Convictions for conduct that was committed by victims and survivors of sexual

exploitation and sex trafficking;

4. Consider whether there is a time limit after which some or all criminal records

should not be publicly available;

5. Invite comments and suggestions from interested parties, including but not limited

to victim advocates and prison and correctional reform organizations;

6. Review existing information about the harms and benefits of making criminal

records confidential, including the use and dissemination of those records;

7. Invite comments and suggestions concerning the procedures to limit public

accessibility of criminal records;

8. Consider who, if anyone, should continue to have access to criminal records that are

not publicly available;

9. Develop options to manage criminal records; and

10. Review and consider criminal records expungement legislation referred to the Joint

Standing Committee on Judiciary during the 131st Legislature, including, but not limited

to, legislative documents 848, 1550, 1646 and 1789.

Sec. 6. Staff assistance. Resolved: That the Legislative Council shall provide

necessary staffing services to the review committee, except that Legislative Council staff

support is not authorized when the Legislature is in regular or special session.

Sec. 7. Interim report. Resolved: That, no later than December 6, 2023, the

review committee shall submit to the Joint Standing Committee on Judiciary an interim

report that includes, but is not limited to, its findings and recommendations, including

suggested legislation, regarding the expungement, sealing, vacating of and otherwise

limiting public access to criminal records related to convictions for conduct that is

nonviolent or involves the use of marijuana. The joint standing committee may report out

legislation related to the report to the Second Regular Session of the 131st Legislature.

Sec. 8. Final report. Resolved: That, no later than November 6, 2024, the review

committee shall submit to the joint standing committee of the Legislature having

jurisdiction over judiciary matters a final report that includes its findings and

recommendations not included in the interim report, including suggested legislation. The

Page 4 - 131LR2256(03)

joint standing committee may report out legislation related to the report to the 132nd

Legislature in 2025.

 
Criminal Records Review Committee - 131st
Legislature
(Resolve 2023, c. 103)

2024 Meeting Dates and Materials:
Tuesday, July 16, 2024 at 9:00 a.m., State House Room 228 (AFA)
Livestream available here: https://legislature.maine.gov/Audio/#228
Tuesday, August 13, 2024 at 9:00 a.m., State House Room 228 (AFA)
Tuesday, September 24, 2024 at 9:00 a.m., State House Room 228 (AFA)
Tuesday, October 8, 2024 at 9:00 a.m., State House Room 228 (AFA)
Tuesday, November 19, 2024 at 9:00 a.m., State House Room 228 (AFA)
2023 Meeting Dates and Materials:
Monday, November 13, 2023 at 9:00 a.m., State House, Rm 228 (AFA)
Archived meeting video
Wednesday, November 29, 2023 at 9:00 a.m., State House, Rm 228 (AFA)
Archived meeting video
Monday, December 11, 2023 at 9:00 a.m., State House, Rm 228 (AFA)
Archived meeting video
Interim Criminal Records Review Committee Report (January 2024)
For reference, here is the link to the 2021 Criminal Records Review Committeewebsite.

Please use the following link to subscribe to the interested parties e-mail list for this study:
[email protected]
OtherCommittee Information:
Background Materials
CommitteeMembers(membership will be updated soon)
CommitteeStaff
Janet Stocco, OPLA
Sophia Paddon, OPLA
Janet Stocco and Sophia Paddon may be reached by phone at 207-287-1670 oror by email using the
email addresses linked above.
About Oice of Policy and
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enacted laws)
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(Completed Studies)
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7/8/24, 11:47 AM
Criminal Records Review Committee - 131st Legislature | Maine State Legislature
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1/2

CRIMINAL RECORDS REVIEW COMMITTEE

Update on Recommendations from January 2024 Interim Report

Prepared by the Office of Policy and Legal Analysis (July 2024) 1

Recommendation

Outcome

Recommendation 1. Establish a permanent commission based on the Criminal

Records Review Committee. (unanimous of CRRC members voting)

Appendix J to the Interim Report proposed draft legislation to implement this

recommendation by:

• Establishing a permanent Criminal Records Review Commission, with similar

membership to the current CRRC.

• The permanent CRRC would have express authority to (a) submit legislation

relating to criminal history record information at the start of each session and

(b) make recommendations to the Department of Public Safety, Chief Justice

and Advisory Committee on Maine Rules of Unified Criminal Procedure.

Not Met.

The Judiciary Committee introduced and held a public hearing on

L.D. 2252

, An Act to Establish the Criminal Records Review

Commission, which was based on the proposal in Appendix J.

A majority of the Judiciary Committee voted in favor of the bill,

which was amended to fund the cost of Legislators serving on the

committee with an approx. $3,500 per year ongoing General Fund

appropriation. LD 2252 remained on the Special Appropriations

Table when the Second Regular Session of the Legislature

adjourned on May 10, 2024.

Recommendation 2. Establish a process to automatically seal criminal

convictions for Class D and Class E crimes relating to marijuana possession

and cultivation contained in electronic records. (CRRC vote: 15-6; 4 abstained;

4 absent)

Appendix K to the Interim Report proposed draft legislation to implement this

recommendation by:

• Establishing a process to automatically seal convictions for Class D and Class

E crimes related to marijuana possession and cultivation for crimes committed

after Jan. 1, 2001 (when electronic records were in use) but before Jan. 30,

2017 (the effective date of the State’s adult recreational use of cannabis law).

• Automatic sealing would only be available to a defendant not currently facing

criminal charges and only if the defendant had not either been convicted of a

crime or had a criminal charge dismissed as a result of deferred disposition

after fully satisfying the sentence for the most recent conviction to be sealed.

• SBI would be required to examine all criminal history record information in its

files at least monthly to identify convictions potentially eligible for sealing and

transmit that information to the Administrative Office of the Courts. The AOC

would then gather all information in its files related to the identified

convictions and transfer that information to the court of conviction for a

judicial determination whether the conviction qualifies for automatic sealing.

Not Met.

The Judiciary Committee introduced and held a public hearing on

LD 2269

, An Act to Automatically Seal Criminal History Record

Information for Class D and Class E Crimes Relating to

Marijuana Possession and Cultivation , which was based on the

proposal in Appendix K.

A majority of the Judiciary Committee voted that LD 2269 “Ought

Not to Pass.” This recommendation was accepted by both the

Senate and the House of Representatives.

Note: A minority of the Judiciary Committee voted in favor of an

amended version of LD 2269, which tweaked the definition of an

“eligible criminal conviction” to ensure it includes only crimes no

longer considered illegal under Maine’s adult use cannabis laws.

This amended version of the bill was accompanied by a fiscal note

requiring approximately $150,000 in funding to the Department of

Public Safety in the first fiscal year for a paralegal position and

one-time programming costs and approximately $480,000 in

funding to the Judicial Branch in the first fiscal year for 2 limited-

period law clerk positions, active retired judge compensation and

other temporary staffing. If this version of the bill had been

enacted, a portion of these costs would have been ongoing.

CRIMINAL RECORDS REVIEW COMMITTEE

Update on Recommendations from January 2024 Interim Report

Prepared by the Office of Policy and Legal Analysis (July 2024) 2

• The automatic sealing order would have the same effect as an order sealing a

record under the current motion to seal process: The conviction would be

treated as confidential criminal history record information and defendant

would be authorized by law to respond to inquiries from persons other than

criminal justice agencies by not disclosing the existence of the conviction.

Recommendation 3. Add convictions for Class D crimes relating to marijuana

possession and cultivation to the list of eligible criminal convictions for which

a person can submit a motion to seal criminal history record information

related to the conviction. (CRRC vote: 17-3; 6 abstained; 3 absent)

Appendix L to the Interim Report proposed draft legislation to implement this

recommendation by:

• Amending the definition of “eligible criminal conviction” in the law

identifying the types of convictions for which a defendant may file a post-

judgment motion to seal criminal history record information—to newly

include any Class D crime related to unlawfully possessing or cultivating

marijuana that were committed before Jan. 30, 2017, the effective date of the

State’s adult recreational use of cannabis law.

• All other requirements under current law for filing a post-judgment motion to

seal—i.e., defendant has no current pending criminal charges and 4 years have

passed since defendant was discharged with no subsequent criminal

convictions or dismissals as a result of deferred disposition—would apply to

these new Class D convictions.

Met.

The Judiciary Committee introduced and held a public hearing on

LD 2236

, An Act to Expand the List of Crimes Eligible for a Post-

judgment Motion to Seal Criminal History Record Information to

Include Convictions for Possession and Cultivation of Marijuana,

which was based on the proposal in Appendix L.

A majority of the Judiciary Committee voted in favor of an

amended version of LD 2236, which tweaked the definition of

“eligible criminal conviction” to ensure the newly included Class

D crimes include only those crimes no longer considered illegal

under Maine’s adult use cannabis laws.

The amended bill was enacted as Public Law 2023, chapter 639

Recommendation 4. Increase public outreach and notifications to qualified

persons for the current post-judgment motion to seal criminal history record

information. (unanimous of CRRC members voting)

The CRRC sent a letter to Chief Justice Stanfill, which is included in Appendix M

to the Interim Report, requesting that the Maine Judicial Branch:

• Revise court form (CR-218), used by defendants filing a post-judgment motion

to seal, to clarify that a defendant is not required to be represented by an

attorney to file the motion.

• Expand public outreach by (a) updating the criminal law and other relevant

sections of the Judicial Branch website to provide information on the post-

(Information on progress toward implementing this

recommendation will be provided by the Maine Judicial Branch

and Department of Public Safety.)

CRIMINAL RECORDS REVIEW COMMITTEE

Update on Recommendations from January 2024 Interim Report

Prepared by the Office of Policy and Legal Analysis (July 2024) 3

judgment motion to seal process and (b) providing information on the process

to criminal defendants and others involved in the judicial system through any

other resources the branch feels appropriate and helpful.

The CRRC sent a letter to Commissioner Sauschuck, which is included in

Appendix N to the Interim Report, requesting that the Department of Public Safety

expand public outreach on the post-judgment motion to seal process by:

• Updating the SBI website to provide general information on the post-judgment

motion to seal process;

• Updating relevant forms and materials used by SBI and provided to convicted

persons informing them of this process; and

• Creating a system whereby individuals seeking their own criminal history

record information (CHRI) are informed they may be eligible to have their

CHRI sealed.

Recommendation 5. Remove the statutory prerequisite that a person must

have been aged 18 to 27 years when they committed the underlying crime in

order to be eligible to have the person’s criminal history record information

sealed. (unanimous of CRRC members voting)

Appendix O to the Interim Report proposed draft legislation to implement this

recommendation by:

• Repealing the requirement that a defendant convicted of a crime must have

been at least 18 years of age but less than 28 years of age at the time the crime

was committed to qualify to file a post-judgment motion to seal the criminal

history record information related to the conviction.

Met.

The Judiciary Committee introduced and held a public hearing on

LD 2218

, An Act to Remove the Age-related Statutory Prerequisite

for Sealing Criminal History Record Information, which was

based on the proposal in Appendix O.

A majority of the Judiciary Committee voted in favor LD 2218

and the bill was enacted as Public Law 2023, chapter 66

Recommendations for further CRRC discussion this year (see Interim Report pages 13-14):

• Examine potential separation of powers issues related to clean slate legislation

• Examine additional options for clean slate legislation, including:

o Who should be eligible for record sealing or expungement—including the types of criminal convictions that may be sealed and other

requirements defendants must meet to qualify for sealing. See Sections 5(3) & (4) of Resolve 2023, chapter 103 (CRRC duties).

CRIMINAL RECORDS REVIEW COMMITTEE

Update on Recommendations from January 2024 Interim Report

Prepared by the Office of Policy and Legal Analysis (July 2024) 4

o Consider Senator Brakey’s suggestion to allow a person convicted of Class E and Class D marijuana possession or cultivation offenses that are

no longer illegal in the State to petition for “expungement” of “personally identifiable information” related to these convictions.

o Clarify the intent of the CRRC with respect to what “sealing,” “expungement” or the selected language means, given that the use of the term

“expunge” in other states’ clean slate laws may not match the layperson’s understanding of these terms.

o Consider the mechanisms for sealing or expunging conviction records and where the relevant records are held—for example, conviction

records may be held not only by SBI but also by courts, law enforcement agencies, licensing agencies and the Department of Corrections.

o Consider that, even if a government record of conviction is sealed or expunged, information regarding the underlying arrest or conviction often

remains available through news media, social media and other sources.

• Examine the collateral consequences of criminal convictions, including, for example, the use (sometimes required by law) of CHRI when individuals

apply for jobs, apartments, benefits or professional licenses.

Note: Additional Relevant Legislation Enacted in 2024.

Public Law 2023, chapter 560 (LD 747), An Act Regarding the Reporting of Adult Name Changes by the Probate Courts to the State Bureau of

Identification (emergency effective March 25, 2024), establishes a uniform process for county probate courts to report adult name change orders to SBI.

• All adults seeking a name change in probate court must undergo a criminal history record check. If the adult is currently on probation, parole or

supervised release or is required to register as a sex offender, there is a rebuttable presumption against granting the name change.

• A probate court may make the name change order confidential if the adult’s interest in confidentiality outweighs the public interest in disclosure.

There is a presumption against making the order confidential if the adult was convicted of a Class D or Class E crime in the past 5 years or a more

serious crime within the past 10 years and the order may not be made confidential if the adult is currently on probation, parole or supervised release or

is required to register as a sex offender.

• Beginning Jan. 1, 2025, probate courts must electronically transmit all adult name change orders to SBI, unless in a particular case the court finds

extraordinary circumstances that a confidential adult name change order should not be transmitted to SBI.

• In response to a request for an adult’s public CHRI, a Maine criminal justice agency may disseminate information associated with each of the adult’s

former and current legal names unless a name change order was made confidential (either through the process above or any other provision of law). If

the name change order is confidential, a Maine criminal justice agency may not disclose to any requester who is not authorized to receive confidential

CHRI either (a) the existence of the name change or(b) any CHRI associated with a legal name of the adult that is not included within the request.

• This law does not affect how an adult must respond to an inquiry about the adult’s past criminal convictions.

Prepared by the Office of Policy and Legal Analysis (July 2024)

Title 15 Chapter 310-A:

POST-JUDGMENT MOTION TO SEAL CRIMINAL HISTORY RECORD

For all Persons

see §2262

The criminal conviction is an eligible

criminal conviction

(Class E crime other than a sexual

assault under Title 17-A, ch 11; or

Beginning 8/9/24 Class D Marijuana

cultivation and possesion offenses

that are no longer illegal)

4 years have passed since the person

has fully satisfied each of the

sentencing alternatives imposed for

the eligible criminal conviction

Has not been convicted of another

crime in ME or had a criminal charge

dismissed as a result of a deferred

disposition since the time the person

fully satisfied all sentencing

alternatives for the eligible conviction

Has not been convicted of a crime in

another jurisdiction since the time the

person fully satisfied all sentencing

alternatives for the eligible conviction

Does not have any presently pending

criminal charges

Until 8/9/24, must have been

between the ages 18-27 when crime

was committed

For persons convicted of engaging in

prostitution under former 17-A M.R.S.A.

§ 853-A

see §2262-A

The criminal conviction is an eligible

criminal conviction

(Class E conviction of 17-A M.R.S.A.

§853-A)

The person has not been convicted

of a violation of Title 17-A, section

852, 853, 853-B or 855 or for

engaging in substantially similar

conduct in another jurisdiction.

•§852: Aggravated Sex Trafficking

•§853: Sex Trafficking

•§853-B: Engaging person for

prostituion

•§855: Commercia Sexual

exploitation of minor or person

with mental disability

At least 1 year has passed since the

person has fully satisfied each of

the sentencing alternatives

imposed for the eligible criminal

conviction

Prepared by the Office of Policy and Legal Analysis (July 2024)

Motion and Hearing Process

1. Filing Motion

Motion filed in underlying criminal proceeding, then set for hearing by clerk

2. Hearing

• The person filing has the right to be represented by counsel but is not

entitled to assignment of counsel at state expense

• State represented by prosecutorial office from the underlying proceeding,

or different office under agreement

• Evidence may include testimony, affidavits and reliable hearsay permitted

by the court. Maine Rules of Evidence do not apply.

• Burden on person filing motion to establish by a preponderance of the

evidence they have met the requirements in section 2262 or 2262-A

3. Order & Written Findings

• If person filing motion meets burden, court issues a written order sealing

the CHRI of the eligible criminal conviction that was the subject of the

motion

• If person does not meet burden, court issues order denying motion; such

order must contain written findings of fact supporting the court’s

determination

• A copy of the court's written order must be provided to the person and the

prosecutorial office that represented the State

4. Notification to State Bureau of Investigation

If the court orders the sealing of the CHRI for the eligible criminal conviction

that was the subject of the motion, the court electronically transmits notice

of the court’s order to SBI.

Upon receipt, SBI must promptly amend its records marking the CHRI for that

conviction as “confidential.” SBI shall send notification of compliance with

this subsection to the person's last known address.

Prepared by the Office of Policy and Legal Analysis (July 2024)

After the Sealing of a CHRI

Sealed CHRI may not be disclosed by SBI to the public, but a criminal justice agency may,

under the special restrictions in MRSA 15 §2265, disseminate the sealed CHRI to:

• The person who is the subject of the criminal conviction or their designee

• A criminal justice agency for the purpose of the administration of criminal justice

and criminal justice agency employment:

o Use of the sealed CHRI by an attorney for the State or for another

jurisdiction as part of a prosecution of the person for a new crime,

including use in a charging instrument or other public court document and

in open court

o Use of the sealed CHRI as permitted by the Maine Rules of Evidence and to

comply with discovery requirements of the Maine Rules of Civil Procedure

and the Maine Rules of Unified Criminal Procedure

• Secretary of State to ensure compliance with state and federal motor vehicle laws

• The victim or victims of the crime related to the conviction or

o If the victim is a minor, to the parent(s), guardian or legal custodian

o Immediate family member, guardian, legal custodian or attorney

representing the victim if they cannot act on their own behalf due to

death, age, physical or mental disease or disorder, intellectual disability,

etc.

• The Dept. of Professional and Financial Regulation, Bureau of Insurance, Bureau of

Consumer Credit Protection, Bureau of Financial Institutions and Office of

Securities to ensure compliance with applicable parts of the Maine Consumer

Credit Code, and any state or federal requirement to perform criminal background

checks by those agencies

• Licensing agencies conducting criminal history record checks for licensees,

registrants and applicants for licensure or registration

• A financial institution if the financial institution is required by federal or state law,

regulation or rule to conduct a criminal history record check for the position for

which a prospective employee or prospective board member is applying

• An entity that is required by federal or state law to conduct a fingerprint-based

criminal history record check

For the terms of dissemination and use of Confidential Criminal History Record Information

See pg. 10

Prepared by the Office of Policy and Legal Analysis (July 2024)

Loss of Eligibility

If a person is convicted of a new crime in Maine or in another jurisdiction, CHRI must be

unsealed. In the event of a new criminal conviction, the person must promptly file a written

notice in the underlying criminal proceeding of the person’s disqualification from eligibility. If

the person fails to file written notice and the court becomes aware of a new criminal conviction,

the court must offer the person an opportunity to request hearing to contest fact of new

conviction.

Notice of New Crime

If the court orders the unsealing of the record under this section, the court shall electronically

transmit notice of the court's order to the Department of Public Safety, Bureau of State Police,

State Bureau of Identification. The State Bureau of Identification upon receipt of the notice shall

promptly amend its records relating to the person's criminal history record information relating to

that criminal conviction to unseal the record. The State Bureau of Identification shall send

notification of compliance with that requirement to the person's last known address.

Requests a Hearing

The person has burden of proving by

clear and convincing evidence that

they have not been convicted of

another crime since having CHRI sealed

➢ If burden satisfied, court issues

written order certifying this

determination. A copy of the

court's written order must be

provided to the person and the

prosecutorial office that

represented the State.

➢ If burden not met, court issues

a written order unsealing the

CHRI, with written findings of

fact

Does Not Request a Hearing

Court shall determine that the person

has not satisfied the burden of proof

and shall find that the person has been

convicted of the new crime and as a

consequence is no longer eligible for

the sealing order

Court shall issue a written order

unsealing the CHRI, with written

findings of fact. A copy of the order

must be provided to the person and

the prosecutorial office that

represented the State.

MAINE JUDICIAL BRANCH

ADA Notice: The Maine Judicial Branch complies with the Americans with Disabilities Act (ADA). If you need a reasonable

accommodation, contact the Court Access Coordinator, accessibility@courts.maine.gov, or a court clerk.

Language Services: For language assistance and interpreters, contact a court clerk or [email protected].

CR-218, Rev. 11/22

Page 1 of 1

www.courts.maine.gov

Motion to Seal Criminal History

STATE OF MAINE

“X” the court for filing:

Superior Court District Court

Unified Criminal Docket

County:

Defendant

Location (Town):

Docket No.:

Defendant’s DOB (mm/dd/yyyy):

MOTION TO SEAL CRIMINAL HISTORY

(CRIME COMMITTED BETWEEN AGES 18-27)

15 M.R.S. §§ 2263-2264

Now comes the defendant and moves, pursuant to 15 M.R.S.§ 2263, to seal Defendant’s criminal history. In

support of this motion, Defendant states:

1. Defendant was convicted of the Class E crime of (name of crime)

on (mm/dd/yyyy) . This crime is eligible for sealing under 15 M.R.S. §

2261(6).

2. Defendant’s date of birth is (mm/dd/yyyy) and Defendant’s age at time

of commission of crime was 18-27 years old.

3. It has been at least 4 years since Defendant fully completed the sentence imposed, including any

incarceration, probation, administrative release, license suspension, fine payments, restitution and/or

community service.

4. Defendant has no other adult criminal convictions in Maine and has not had a case dismissed as the

result of a deferred disposition since completing their sentence for this offence.

5. Defendant has no other criminal convictions in another state or jurisdiction since completing their

sentence for this offense.

6. Defendant has no pending criminal charges in Maine or in another jurisdiction.

Defendant moves this Court to order special restrictions on dissemination and use of Defendant’s criminal

history record information relating to Defendant’s prior criminal conviction in this matter.

Date (mm/dd/yyyy):

►

Defendant’s Signature

Defendant’s Attorney and Maine Bar No.

Defendant’s Mailing Address

Prepared by the Office of Policy and Legal Analysis (July 2024)

Example Class E Crimes in Maine

Title 17-A – Maine Criminal Code

• § 151 – Criminal conspiracy

▪ where most serious crime that is the object of the conspiracy is a Class E or Class D

crime

• § 152 – Criminal attempt

▪ where the crime is a Class E or Class D crime

• § 353(1)(A) – Theft by unauthorized taking or transfer

▪ where the value of the property is less than or equal to $500, the person is unarmed,

the property stolen is not a firearm or explosive device, and the person does not have

2 or more certain prior convictions

• § 354(1)(A) – Theft by deception

▪ where the value of the property is less than or equal to $500, the person is unarmed,

the property stolen is not a firearm or explosive device, and the person does not have

2 or more certain prior convictions

• § 354-A(1)(A) – Insurance deception

▪ where the value of the property is less than or equal to $500, the person is unarmed,

the property stolen is not a firearm or explosive device, and the person does not have

2 or more certain prior convictions

• § 356-A(1)(A) – Theft of lost, mislaid or mistakenly delivered property

▪ where the value of the property is less than or equal to $500, the person is unarmed,

the property stolen is not a firearm or explosive device, and the person does not have

2 or more certain prior convictions

• § 357(1)(A) – Theft of services

▪ where the value of the services is less than or equal to $500, the person is unarmed,

and the person does not have 2 or more certain prior convictions

• § 358(1)(A) – Theft by misapplication of property

▪ where the value of the property is less than or equal to $500, the person is unarmed,

the property stolen is not a firearm or explosive device, and the person does not have

2 or more certain prior convictions

• § 359(1)(A) – Receiving stolen property

▪ where the value of the property is less than or equal to $500, the person is unarmed,

the property stolen is not a firearm or explosive device, and the person does not have

2 or more certain prior convictions

• § 402(1)(B) – Criminal trespass

▪ Unless the person enters any dwelling place (Class D)

• § 403(1)(A) – Possession or transfer of burglar’s tools

• § 404 – Trespass by motor vehicle

• § 457 – Impersonating a public servant

• § 501-A – Disorderly conduct

• § 502(2)(B) – Failure to disperse

▪ where person is in the immediate vicinity of, and not a participant in, disorderly

conduct

• § 504 – Unlawful assembly

Prepared by the Office of Policy and Legal Analysis (July 2024)

• § 505 – Obstructing public ways

• § 506 – Harassment by telephone or by electronic communication devices

▪ Except in situations involving the sending of an image or video of a sexual act where

the recipient is under 14, 14 or 15 and actor is at least 5 years older, or person called

or contacted suffers from a mental disability known to the actor

• § 506-A(1)(A) – Harassment

▪ Except where the person has two or more prior Maine convictions involving the same

victim or the victim’s family (Class C)

• § 512 – Failure to report treatment of a gunshot wound

• § 513 – Maintaining an unprotected well

• § 514 – Abandoning an airtight container

• § 515 – Unlawful prize fighting

• § 516 – Champerty

• § 517 – Creating a police standoff

• § 551 – Bigamy

• § 552 – Nonsupport of dependents

▪ where the value of the property is less than or equal to $500, the person is unarmed,

the property stolen is not a firearm or explosive device, and the person does not have

2 or more certain prior convictions

• § 605 – Improper gifts to public servants

• § 606 – Improper compensation for services

• § 608 – Official Oppression

• § 609 – Misuse of information

• § 704 – Possession of forgery devices

• § 705 – Criminal simulation

▪ Except in certain situations involving altering the make, model or serial number of a

firearm or transporting such firearm

• § 706 – Suppressing recordable instrument

• § 707 – Falsifying private records

• § 708(A)(1) – Negotiating a worthless instrument

▪ Elevated to higher class crimes in certain situations

• § 751-B(1)(A) – Refusing to submit to arrest or detention

▪ Refuses to stop on request or signal of a law enforcement officer.

• § 753 – Hindering apprehension or prosecution

▪ When assisting person charged or liable to be charged with Class E or Class D crime

• § 757-A – Trafficking of tobacco in adult correctional facilities

• § 757-B – Trafficking of alcohol in adult correctional facilities

• § 760 – Failure to report sexual assault of person in custody

• § 853-B(1)(A) – Engaging person for prostitution

• § 854(1)(A)((1))-((2)) – Indecent conduct

• § 907(1)(A) – Possession or transfer of theft devices

• § 1002-A – Criminal use of laser pointers

▪ When is causes a reasonable person to suffer intimidation, annoyance or alarm

• § 1003 – Criminal use of noxious substance

• § 1107(2)(E)-(F) – Unlawful possession of scheduled drugs

Prepared by the Office of Policy and Legal Analysis (July 2024)

▪ schedule Y and schedule Z drugs

• § 1111-A – Use of drug paraphernalia (trafficking or furnishing)

▪ Trafficking or furnishing to a person who is at least 16 years of age, or advertising to

promote the sale of drug paraphernalia

• § 1116 – Trafficking or furnishing imitation scheduled drugs

▪ To a person at least 18 years of age

• § 1117 – Cultivating marijuana

▪ Five or fewer plants, unless authorized under Title 22, chapter 558-C or Title 28-B

Title 29-A – Motor Vehicles and Traffic

• § 1954 – Failure to meet dump truck equipment standards

• § 2411 – Operating while license suspended or revoked (OAS)

▪ Exception in certain circumstances depending on the underlying reason for the

suspension (traffic infraction)

• § 2413(1) – Driving to endanger

• § 2414(2) – Refusing to stop for a law enforcement officer

• § 2415 – Operating under foreign license during suspension or revocation (commits OAS)

• § 2417 – Suspended registration

Prepared by the Office of Policy and Legal Analysis (July 2024)

Sentencing Alternatives Imposed under 17-A M.R.S.A. § 1502(2)

• Split sentence of imprisonment with probation

• Fine

• Suspended term of imprisonment

• Term of imprisonment

• Fine in addition to other sentencing alternatives

• Community service

• Fine with administrative release

• Suspended term of imprisonment with administrative release

• Split sentence of imprisonment with administrative release

• Term of imprisonment followed by supervised release

• Deferred disposition

• Restitution

• Sanction (for organizations only)

Prepared by the Office of Policy and Legal Analysis (July 2024)

Dissemination and Use of Confidential Criminal History Record Information

Title 15 §2265: Sealed Convictions.

A criminal justice agency may disseminate the sealed CHRI to:

• The person who is the subject of the criminal conviction or that person's designee

• A criminal justice agency for the purpose of the administration of criminal justice and

criminal justice agency employment

o Dissemination and use of the criminal history record information relating to the

sealed record by an attorney for the State or for another jurisdiction as part of a

prosecution of the person for a new crime, including use in a charging instrument

or other public court document and in open court

o Dissemination and use of the criminal history record information relating to the

sealed record as permitted by the Maine Rules of Evidence and to comply with

discovery requirements of the Maine Rules of Civil Procedure and the Maine

Rules of Unified Criminal Procedure

• Secretary of State to ensure compliance with state and federal motor vehicle laws

• The victim or victims of the crime related to the conviction or

o If the victim is a minor, to the parent or parents, guardian or legal custodian of the

victim

o an immediate family member, guardian, legal custodian or attorney representing

the victim if they cannot act on the victim's own behalf due to death, age, physical

or mental disease or disorder, intellectual disability or autism or other reason

• The Department of Professional and Financial Regulation, Bureau of Insurance, Bureau

of Consumer Credit Protection, Bureau of Financial Institutions and Office of Securities

to ensure compliance with applicable parts of the Maine Consumer Credit Code, and any

state or federal requirement to perform criminal background checks by those agencies

• Licensing agencies conducting criminal history record checks for licensees, registrants

and applicants for licensure or registration by the agencies

• A financial institution if the financial institution is required by federal or state law,

regulation or rule to conduct a criminal history record check for the position for which a

prospective employee or prospective board member is applying

• An entity that is required by federal or state law to conduct a fingerprint-based criminal

history record check

Title 16 §705: All Confidential CHRI.

A criminal justice agency may disseminate confidential CHRI to:

• Other criminal justice agencies for the purpose of the administration of criminal justice

and criminal justice agency employment

• Any person for any purpose when expressly authorized by a statute, executive order,

court rule, court decision or court order containing language specifically referring to

confidential CHRI

Prepared by the Office of Policy and Legal Analysis (July 2024)

• Any person with a specific agreement with a criminal justice agency to provide services

required for the administration of criminal justice or to conduct investigations

determining the employment suitability of prospective law enforcement officers. The

agreement must specifically authorize access to data, limit the use of the data to purposes

for which given, ensure security and confidentiality of the data consistent with this

chapter and provide sanctions for any violation

• Any person for the express purpose of research, evaluation or statistical purposes or

under an agreement with the criminal justice agency. The agreement must specifically

authorize access to data, limit the use of the data to purposes for which given, ensure

security and confidentiality of the data consistent with this chapter and provide sanctions

for any violation

• Any person who makes a specific inquiry to the criminal justice agency as to whether a

named individual was summonsed, arrested or detained or had formal criminal charges

initiated on a specific date.

• The public for the purpose of announcing the fact of a specific disposition that is

confidential criminal history record information within 30 days of the date of occurrence

of that disposition or at any point in time if the person to whom the disposition relates

specifically authorizes that it be made public

• A public entity for purposes of international travel, such as issuing visas and granting of

citizenship

MRS Title 15, Chapter 310-A. POST-JUDGMENT MOTION TO SEAL CRIMINAL HISTORY RECORD

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Updated to reflect legislation

enacted in the Second Regular

Session of the 131

Legislature

CHAPTER 310-A

POST-JUDGMENT MOTION TO SEAL CRIMINAL HISTORY RECORD

§2261. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the

following meanings. [PL 2021, c. 674, §1 (NEW).]

1. Administration of criminal justice. "Administration of criminal justice" has the same meaning

as in Title 16, section 703, subsection 1.

[PL 2021, c. 674, §1 (NEW).]

2. Another jurisdiction. "Another jurisdiction" has the same meaning as in Title 17‑A, section 2,

subsection 3‑B.

[PL 2021, c. 674, §1 (NEW).]

3. Criminal history record information. "Criminal history record information" has the same

meaning as in Title 16, section 703, subsection 3.

[PL 2021, c. 674, §1 (NEW).]

4. Criminal justice agency. "Criminal justice agency" has the same meaning as in Title 16, section

703, subsection 4.

[PL 2021, c. 674, §1 (NEW).]

5. Dissemination. "Dissemination" has the same meaning as in Title 16, section 703, subsection

[PL 2021, c. 674, §1 (NEW).]

6. Eligible criminal conviction. "Eligible criminal conviction" means a conviction for a current

or former Class E crime, except a conviction for a current or former Class E crime under Title 17‑A,

chapter 11.

[PL 2023, c. 639, §1 (REPEALED & REPLACED).]

6. Eligible criminal conviction. "Eligible criminal conviction" means:

A. A conviction for a current or former Class E crime, except a conviction for a current or former

Class E crime under Title 17-A, chapter 11; and

B. A conviction for a crime when the crime was committed prior to January 30, 2017 for:

(1) Aggravated trafficking, furnishing or cultivation of scheduled drugs under Title 17-A,

former section 1105 when the person was convicted of cultivating scheduled drugs, the

scheduled drug was marijuana and the crime committed was a Class D crime;

(2) Aggravated cultivating of marijuana under Title 17-A, section 1105-D, subsection 1,

paragraph A, subparagraph (4);

(3) Aggravated cultivating of marijuana under Title 17-A, section 1105-D, subsection 1,

paragraph B-1, subparagraph (4);

(4) Aggravated cultivating of marijuana under Title 17-A, section 1105-D, subsection 1,

paragraph D, subparagraph (4); and

(5) Unlawful possession of a scheduled drug under Title 17-A, former section 1107 when that

drug was marijuana and the underlying crime was a Class D crime.

[PL 2023, c. 639, §1 (NEW).]

MRS Title 15, Chapter 310-A. POST-JUDGMENT MOTION TO SEAL CRIMINAL HISTORY RECORD

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7. Sealed record. "Sealed record" means the criminal history record information relating to a

specific criminal conviction that a court has ordered to be sealed under section 2264.

[PL 2021, c. 674, §1 (NEW).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW). PL 2023, c. 639, §1 (AMD).

§2262. Statutory prerequisites for sealing criminal history record information

Except as provided in section 2262‑A, criminal history record information relating to a specific

criminal conviction may be sealed under this chapter only if: [PL 2023, c. 409, §1 (AMD).]

1. Eligible criminal conviction. The criminal conviction is an eligible criminal conviction;

[PL 2021, c. 674, §1 (NEW).]

2. Time since sentence fully satisfied. At least 4 years have passed since the person has fully

satisfied each of the sentencing alternatives imposed under Title 17‑A, section 1502, subsection 2 for

the eligible criminal conviction;

[PL 2021, c. 674, §1 (NEW).]

3. Other convictions in this State. The person has not been convicted of another crime in this

State and has not had a criminal charge dismissed as a result of a deferred disposition pursuant to Title

17-A, former chapter 54-F or Title 17‑A, chapter 67, subchapter 4 since the time at which the person

fully satisfied each of the sentencing alternatives imposed under Title 17‑A, section 1502, subsection 2

for the person's most recent eligible criminal conviction up until the time of the order;

[PL 2021, c. 674, §1 (NEW).]

4. Convictions in another jurisdiction. The person has not been convicted of a crime in another

jurisdiction since the time at which the person fully satisfied each of the sentencing alternatives imposed

under Title 17‑A, section 1502, subsection 2 for the person's most recent eligible criminal conviction

up until the time of the order; and

[PL 2021, c. 674, §1 (NEW); P.L. 2023, c. 666, §1 (AMD).]

5. Pending criminal charges. The person does not have any presently pending criminal charges

in this State or in another jurisdiction; and.

[PL 2021, c. 674, §1 (NEW); P.L. 2023, c. 666, §2 (AMD).]

6. Age of person at time of commission. At the time of the commission of the crime underlying

the eligible criminal conviction, the person had in fact attained 18 years of age but had not attained 28

years of age.

[PL 2023, c. 666, §3 (REPEALED).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW). PL 2023, c. 409, §1 (AMD). PL 2023, c. 666, §§1 to 3 (AMD).

§2262-A. Special statutory prerequisites for sealing criminal history record information related

to engaging in prostitution

Criminal history record information relating to a criminal conviction for engaging in prostitution

under Title 17‑A, former section 853-A must be sealed under this chapter if: [PL 2023, c. 409, §2

(NEW).]

1. Eligible criminal conviction. The criminal conviction is an eligible criminal conviction;

[PL 2023, c. 409, §2 (NEW).]

2. Time since sentence fully satisfied. At least one year has passed since the person has fully

satisfied each of the sentencing alternatives imposed under Title 17‑A, section 1502, subsection 2 for

the eligible criminal conviction; and

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[PL 2023, c. 409, §2 (NEW).]

3. Other convictions. The person has not been convicted of a violation of Title 17‑A, section 852,

853, 853‑B or 855 or for engaging in substantially similar conduct in another jurisdiction.

[PL 2023, c. 409, §2 (NEW).]

SECTION HISTORY

PL 2023, c. 409, §2 (NEW).

§2263. Motion; persons who may file

A person may file a written motion seeking a court order sealing the person's criminal history record

information relating to a specific criminal conviction in the underlying criminal proceeding based on a

court determination that the person satisfies the statutory prerequisites specified in section 2262 or

2262‑A. The written motion must briefly address each of the statutory prerequisites. [PL 2023, c.

409, §3 (AMD).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW). PL 2023, c. 409, §3 (AMD).

§2264. Motion and hearing; process

1. Filing motion. A motion filed pursuant to section 2263 must be filed in the underlying criminal

proceeding. After the motion is filed, the clerk shall set the motion for hearing.

[PL 2021, c. 674, §1 (NEW).]

2. Counsel. The person filing a motion pursuant to section 2263 has the right to be represented by

counsel but is not entitled to assignment of counsel at state expense.

[PL 2021, c. 674, §1 (NEW).]

3. Representation of State. The prosecutorial office that represented the State in the underlying

criminal proceeding may represent the State for purposes of this chapter. On a case-by-case basis, a

different prosecutorial office may represent the State on agreement between the 2 prosecutorial offices.

[PL 2021, c. 674, §1 (NEW).]

4. Evidence. The Maine Rules of Evidence do not apply to a hearing on a motion under this

section. Evidence presented by the participants at the hearing may include testimony, affidavits and

other reliable hearsay evidence as permitted by the court.

[PL 2021, c. 674, §1 (NEW).]

5. Hearing; order; written findings. The court shall hold a hearing on a motion filed under this

section. At the conclusion of the hearing, if the court determines that the person who filed the motion

has established by a preponderance of the evidence each of the statutory prerequisites specified in

section 2262 or 2262‑A, the court shall grant the motion and shall issue a written order sealing the

criminal history record information of the eligible criminal conviction that was the subject of the

motion. If, at the conclusion of the hearing, the court determines that the person has not established

one or more of the statutory prerequisites specified in section 2262 or 2262‑A, the court shall issue a

written order denying the motion. The order must contain written findings of fact supporting the court's

determination. A copy of the court's written order must be provided to the person and the prosecutorial

office that represented the State pursuant to subsection 3.

[PL 2023, c. 409, §4 (AMD).]

6. Notice to State Bureau of Identification. If the court issues an order under subsection 5 that

includes the sealing of a criminal conviction maintained by the State Bureau of Identification pursuant

to Title 25, section 1541 and previously transmitted by the court pursuant to Title 25, section 1547, the

court shall electronically transmit notice of the court's order to the Department of Public Safety, Bureau

of State Police, State Bureau of Identification. Upon receipt of the notice, the State Bureau of

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Identification shall promptly amend its records relating to the person's eligible criminal conviction to

reflect that the criminal history record information relating to that criminal conviction is sealed and that

dissemination is governed by section 2265. The State Bureau of Identification shall send notification

of compliance with this subsection to the person's last known address.

[PL 2021, c. 674, §1 (NEW).]

7. Subsequent new criminal conviction; automatic loss of eligibility; person's duty to notify.

Notwithstanding a court order sealing the criminal history record information pursuant to subsection 5,

if at any time subsequent to the court's order the person is convicted of a new crime in this State or in

another jurisdiction, the criminal history record information must be unsealed.

A. In the event of a new criminal conviction, the person shall promptly file a written notice in the

underlying criminal proceeding of the person's disqualification from eligibility, identifying the new

conviction, including the jurisdiction, court and docket number of the new criminal proceeding. If

the person fails to file the required written notice and the court learns of the existence of the new

criminal conviction, the court shall notify the person of the apparent existence of the new conviction

and offer the person an opportunity to request a hearing to contest the fact of a new conviction. [PL

2021, c. 674, §1 (NEW).]

B. If the person requests a hearing under paragraph A, the court shall, after giving notice to the

person and the appropriate prosecutorial office, hold a hearing. At the hearing, the person has the

burden of proving by clear and convincing evidence that the person has not been convicted of a

crime subsequent to issuance of the sealing order. At the conclusion of the hearing, if the court

determines that the person has not satisfied the burden of proof, it shall find that the person has

been newly convicted of the crime and as a consequence is no longer eligible for the sealing order

and shall issue a written order unsealing the criminal history record information, with written

findings of fact. If, at the conclusion of the hearing, the court determines that the person has

satisfied the burden of proof, it shall find that the person has not been convicted of the new crime

and issue a written order certifying this determination. A copy of the court's written order must be

provided to the person and the prosecutorial office that represented the State. [PL 2021, c. 674,

§1 (NEW).]

C. If the person does not request a hearing under paragraph A, the court shall determine that the

person has not satisfied the burden of proof and the court shall find that the person has been

convicted of the new crime and as a consequence is no longer eligible for the sealing order and

shall issue a written order unsealing the criminal history record information, with written findings

of fact. A copy of the court's written order must be provided to the person and the prosecutorial

office that represented the State. [PL 2021, c. 674, §1 (NEW).]

[PL 2021, c. 674, §1 (NEW).]

8. Notice of new crime. If the court orders the unsealing of the record under this section, the court

shall electronically transmit notice of the court's order to the Department of Public Safety, Bureau of

State Police, State Bureau of Identification. The State Bureau of Identification upon receipt of the

notice shall promptly amend its records relating to the person's criminal history record information

relating to that criminal conviction to unseal the record. The State Bureau of Identification shall send

notification of compliance with that requirement to the person's last known address.

[PL 2021, c. 674, §1 (NEW).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW). PL 2023, c. 409, §4 (AMD).

§2265. Special restrictions on dissemination and use of criminal history record information

Notwithstanding Title 16, section 704, the criminal history record information relating to a criminal

conviction sealed under section 2264 is confidential, must be treated as confidential criminal history

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record information for the purposes of dissemination to the public under Title 16, section 705 and may

not be disseminated by a criminal justice agency, whether directly or through any intermediary, except

as provided in Title 16, section 705 and as set out in this section. In addition to the dissemination

authorized by Title 16, section 705, a criminal justice agency may disseminate the sealed criminal

history record information to: [PL 2021, c. 674, §1 (NEW).]

1. Subject of conviction. The person who is the subject of the criminal conviction or that person's

designee;

[PL 2021, c. 674, §1 (NEW).]

2. Criminal justice agency. A criminal justice agency for the purpose of the administration of

criminal justice and criminal justice agency employment. For the purposes of this subsection,

dissemination to a criminal justice agency for the purpose of the administration of criminal justice

includes:

A. Dissemination and use of the criminal history record information relating to the sealed record

by an attorney for the State or for another jurisdiction as part of a prosecution of the person for a

new crime, including use in a charging instrument or other public court document and in open

court; and [PL 2021, c. 674, §1 (NEW).]

B. Dissemination and use of the criminal history record information relating to the sealed record

as permitted by the Maine Rules of Evidence and to comply with discovery requirements of the

Maine Rules of Civil Procedure and the Maine Rules of Unified Criminal Procedure; [PL 2021,

c. 674, §1 (NEW).]

[PL 2021, c. 674, §1 (NEW).]

3. Secretary of State. The Secretary of State to ensure compliance with state and federal motor

vehicle laws;

[PL 2021, c. 674, §1 (NEW).]

4. Victims. The victim or victims of the crime related to the conviction or:

A. If the victim is a minor, to the parent or parents, guardian or legal custodian of the victim; or

[PL 2021, c. 674, §1 (NEW).]

B. If the victim cannot act on the victim's own behalf due to death, age, physical or mental disease

or disorder, intellectual disability or autism or other reason, to an immediate family member,

guardian, legal custodian or attorney representing the victim; [PL 2021, c. 674, §1 (NEW).]

[PL 2021, c. 674, §1 (NEW).]

5. Financial services regulatory agencies. The Department of Professional and Financial

Regulation, Bureau of Insurance, Bureau of Consumer Credit Protection, Bureau of Financial

Institutions and Office of Securities to ensure compliance with Titles 9‑A, 9‑B, 10, 24, 24‑A and 32, as

applicable, and any state or federal requirement to perform criminal background checks by those

agencies;

[PL 2021, c. 674, §1 (NEW).]

6. Professional licensing agencies. Licensing agencies conducting criminal history record checks

for licensees, registrants and applicants for licensure or registration by the agencies; licensing agencies

performing regulatory functions enumerated in Title 5, section 5303, subsection 2; and the State Board

of Veterinary Medicine pursuant to Title 32, chapter 71‑A to conduct a background check for a licensee;

[PL 2021, c. 674, §1 (NEW).]

7. Financial institutions. A financial institution if the financial institution is required by federal

or state law, regulation or rule to conduct a criminal history record check for the position for which a

prospective employee or prospective board member is applying; or

[PL 2021, c. 674, §1 (NEW).]

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8. Subject to fingerprinting. An entity that is required by federal or state law to conduct a

fingerprint-based criminal history record check pursuant to Title 25, section 1542‑A.

[PL 2021, c. 674, §1 (NEW).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW).

§2266. Limited disclosure of eligible criminal conviction

A person whose eligible criminal conviction is the subject of a sealing order under section 2264

may respond to inquiries from persons other than criminal justice agencies and other than entities that

are authorized to obtain the sealed criminal history record information under section 2265 by not

disclosing the existence of the eligible criminal conviction without being subject to any sanctions under

the laws of this State. Other than when responding to criminal justice agencies or when under oath

while being prosecuted for a subsequent crime, a person whose criminal conviction is sealed does not

violate Title 17‑A, section 451, 452 or 453 by not disclosing the sealed criminal conviction. [PL 2021,

c. 674, §1 (NEW).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW).

§2267. Review of determination of eligibility; review of determination of subsequent criminal

conviction

A written order entered under section 2264, subsection 5 or 7 may be reviewed by the Supreme

Judicial Court. [PL 2021, c. 674, §1 (NEW).]

1. Appeal by person. A person aggrieved by a written order under section 2264, subsection 5 or

7 may not appeal as of right. The time for taking the appeal and the manner and any conditions for the

taking of the appeal are as the Supreme Judicial Court provides by rule.

[PL 2021, c. 674, §1 (NEW).]

2. Appeal by State. If the State is aggrieved by a written order under section 2264, subsection 5

or 7, it may appeal as of right, and a certificate of approval by the Attorney General is not required. The

time for taking the appeal and the manner and any conditions for the taking of the appeal are as the

Supreme Judicial Court provides by rule.

[PL 2021, c. 674, §1 (NEW).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW).

§2268. Eligible criminal conviction sealed under former chapter 310

Notwithstanding Title 16, section 704, the criminal history record information relating to a criminal

conviction for which the court has determined the person is entitled to special restrictions on

dissemination and use under former section 2254 is confidential and may not be disseminated by a

criminal justice agency, whether directly or through any intermediary, except to the person who is the

subject of the criminal conviction or that person's designee and to a criminal justice agency for the

purpose of the administration of criminal justice and criminal justice agency employment. For the

purposes of this section, dissemination to a criminal justice agency for the purpose of the administration

of criminal justice includes dissemination and use of the criminal history record information relating to

the qualifying criminal conviction by an attorney for the State or for another jurisdiction as part of a

prosecution of the person for a new crime, including use in a charging instrument or other public court

document and in open court. [PL 2021, c. 674, §1 (NEW).]

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Section 2264, subsection 7 applies to a criminal conviction for which the court has determined the

person is entitled to special restrictions on dissemination and use under former section 2254 if the

person is convicted of a new crime. [PL 2021, c. 674, §1 (NEW).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW).

§2269. Violation

A person who, in violation of section 2265 or 2268, intentionally disseminates sealed criminal

history record information relating to a criminal conviction knowing it to be in violation of section 2265

or 2268 is guilty of unlawful dissemination of sealed records. Violation of this section is a Class E

crime. [PL 2021, c. 674, §1 (NEW).]

SECTION HISTORY

PL 2021, c. 674, §1 (NEW).

The State of Maine claims a copyright in its codified statutes. If you intend to republish this material, we require that you include

the following disclaimer in your publication:

All copyrights and other rights to statutory text are reserved by the State of Maine. The text included in this publication reflects

changes made through the First Regular and First Special Session of the 131st Maine Legislature and is current through November

1. 2023. The text is subject to change without notice. It is a version that has not been officially certified by the Secretary of State.

Refer to the Maine Revised Statutes Annotated and supplements for certified text.

The Office of the Revisor of Statutes also requests that you send us one copy of any statutory publication you may produce. Our

goal is not to restrict publishing activity, but to keep track of who is publishing what, to identify any needless duplication and to

preserve the State's copyright rights.

PLEASE NOTE: The Revisor's Office cannot perform research for or provide legal advice or interpretation of Maine law to the

public. If you need legal assistance, please contact a qualified attorney.

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Updated to reflect legislation

enacted in the Second Regular

Session of the 131

Legislature

CHAPTER 7

CRIMINAL HISTORY RECORD INFORMATION ACT

§701. Short title

This chapter may be known and cited as "the Criminal History Record Information Act." [PL

2013, c. 267, Pt. A, §2 (NEW).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW).

§702. Scope; application

This chapter governs the dissemination of criminal history record information by a Maine criminal

justice agency. This chapter establishes 2 distinct categories of criminal history record information and

provides for the dissemination of each: [PL 2013, c. 267, Pt. A, §2 (NEW).]

1. Public criminal history record information. Public criminal history record information, the

dissemination of which is governed by section 704; and

[PL 2013, c. 267, Pt. A, §2 (NEW).]

2. Confidential criminal history record information. Confidential criminal history record

information, the dissemination of which is governed by section 705.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW).

§703. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the

following meanings. [PL 2013, c. 267, Pt. A, §2 (NEW).]

1. Administration of criminal justice. "Administration of criminal justice" means activities

relating to the apprehension or summonsing, detention, pretrial release, post-trial release, prosecution,

adjudication, sentencing, correctional custody and supervision or rehabilitation of accused persons or

convicted criminal offenders. "Administration of criminal justice" includes the collection, storage and

dissemination of criminal history record information.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

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; [PL 2013, c. 267, Pt. A, §2 (NEW).]

B. Information disclosing that the responsible law enforcement agency or officer has elected not

to refer a matter to a prosecutor; [PL 2013, c. 267, Pt. A, §2 (NEW).]

C. Information disclosing that the responsible prosecutorial office or prosecutor has elected not to

initiate or approve criminal proceedings; [PL 2013, c. 267, Pt. A, §2 (NEW).]

D. Information disclosing that a grand jury has determined that there is insufficient evidence to

warrant the return of a formal charge; [PL 2013, c. 267, Pt. A, §2 (NEW).]

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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; [PL 2013, c. 507, §1 (AMD).]

F. Information disclosing that a criminal charge has been filed, if more than one year has elapsed

since the date of the filing; [PL 2013, c. 507, §2 (AMD).]

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; [PL 2013, c. 267,

Pt. A, §2 (NEW).]

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; [PL 2013, c. 267, Pt. A, §2 (NEW).]

I. Information disclosing that a criminal proceeding has terminated in a mistrial with prejudice;

[PL 2013, c. 267, Pt. A, §2 (NEW).]

J. Information disclosing that a criminal proceeding has terminated based on lack of subject matter

jurisdiction; [PL 2013, c. 267, Pt. A, §2 (NEW).]

K. Information disclosing that a criminal proceeding has been terminated because the court lacked

jurisdiction over the defendant; and [PL 2013, c. 267, Pt. A, §2 (NEW).]

L. Information disclosing that a person has petitioned for and been granted a full and free pardon.

[PL 2017, c. 432, Pt. B, §1 (AMD).]

3. Criminal history record information. "Criminal history record information" means

information of record collected by a criminal justice agency or at the direction of a criminal justice

agency or kept in the custody of a criminal justice agency that connects a specific, identifiable person,

including a juvenile treated by statute as an adult for criminal prosecution purposes, with formal

involvement in the criminal justice system either as an accused or as a convicted criminal offender.

"Criminal history record information" includes, but is not limited to, identifiable descriptions or

notations of: summonses and arrests; detention; bail; formal criminal charges such as complaints,

informations and indictments; any disposition stemming from such charges; post-plea or post-

adjudication sentencing; involuntary commitment; execution of and completion of any sentencing

alternatives imposed; release and discharge from involuntary commitment; any related pretrial and

post-trial appeals, collateral attacks and petitions; and petitions for and warrants of pardons,

commutations, reprieves and amnesties. "Criminal history record information" does not include:

identification information such as fingerprints, palmprints, footprints or photographic records to the

extent that the information does not indicate formal involvement of the specific individual in the

criminal justice system; information of record of civil proceedings, including traffic infractions and

other civil violations; intelligence and investigative record information as defined in section 803; or

information of record of juvenile crime proceedings or their equivalent. Specific information regarding

a juvenile crime proceeding is not criminal history record information notwithstanding that a juvenile

has been bound over and treated as an adult or that by statute specific information regarding a juvenile

crime proceeding is usable in a subsequent adult criminal proceeding. "Formal involvement in the

criminal justice system either as an accused or as a convicted criminal offender" means being within

the jurisdiction of the criminal justice system commencing with arrest, summons or initiation of formal

criminal charges and concluding with the completion of every sentencing alternative imposed as

punishment or final discharge from an involuntary commitment based upon a finding of not criminally

responsible by reason of insanity or its equivalent.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

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4. Criminal justice agency. "Criminal justice agency" means a federal, state or State of Maine

government agency or any subunit of a government agency at any governmental level that performs the

administration of criminal justice pursuant to a statute or executive order. "Criminal justice agency"

includes federal courts, Maine courts, courts in any other state, the Department of the Attorney General,

district attorneys' offices and the equivalent departments or offices in any federal or state jurisdiction.

"Criminal justice agency" also includes any equivalent agency at any level of Canadian government

and the government of any federally recognized Indian tribe.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

5. Disposition. "Disposition" means information of record disclosing that a criminal proceeding

has been concluded, although not necessarily finalized, and the specific nature of the concluding event.

"Disposition" includes, but is not limited to: an acquittal; a dismissal, with or without prejudice; the

filing of a charge by agreement of the parties or by a court; the determination that a defendant is

currently a fugitive from justice; a conviction, including the acceptance by a court of a plea of guilty or

nolo contendere; a deferred disposition; a proceeding indefinitely continued or dismissed due to a

defendant's incompetence; a finding of not criminally responsible by reason of insanity or its equivalent;

a mistrial, with or without prejudice; a new trial ordered; an arrest of judgment; a sentence imposition;

a resentencing ordered; an execution of and completion of any sentence alternatives imposed, including

but not limited to fines, restitution, correctional custody and supervision, and administrative release; a

release or discharge from a commitment based upon a finding of not criminally responsible by reason

of insanity or its equivalent; the death of the defendant; any related pretrial and post-trial appeals,

collateral attacks and petitions; a pardon, commutation, reprieve or amnesty; and extradition.

"Disposition" also includes information of record disclosing that the responsible law enforcement

agency or officer has elected not to refer a matter to a prosecutor, that the responsible prosecutorial

office or prosecutor has elected not to initiate or approve criminal proceedings or that a grand jury has

determined that there is insufficient evidence to warrant the return of a formal charge.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

6. Dissemination. "Dissemination" means the transmission of information by any means,

including but not limited to orally, in writing or electronically, by or to anyone outside the criminal

justice agency that maintains the information.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

7. Executive order. "Executive order" means an order of the President of the United States or the

chief executive of a state that has the force of law and that is published in a manner permitting regular

public access.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

8. Public criminal history record information. "Public criminal history record information"

means criminal history record information that is not confidential criminal history record information,

including information recorded pursuant to section 706.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

9. State. "State" means any state of the United States, the District of Columbia, the

Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States

Virgin Islands, Guam and American Samoa. "State" also includes the federal government of Canada

and any provincial government of Canada and the government of any federally recognized Indian tribe.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

10. Statute. "Statute" means an Act of Congress or an act of a state legislature or a provision of

the Constitution of the United States or the constitution of a state.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

SECTION HISTORY

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PL 2013, c. 267, Pt. A, §2 (NEW). PL 2013, c. 507, §§1, 2 (AMD). PL 2017, c. 432, Pt. B, §1

(AMD).

§704. Dissemination of public criminal history record information

1. Generally. Public criminal history record information is public for purposes of Title 1, chapter

13. Public criminal history record information may be disseminated by a Maine criminal justice agency

to any person or public or private entity for any purpose. Public criminal history record information is

public whether it relates to a crime for which a person is currently within the jurisdiction of the criminal

justice system or it relates to a crime for which a person is no longer within that jurisdiction. There is

no time limitation on dissemination of public criminal history record information.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

2. Required inquiry to State Bureau of Identification. A Maine criminal justice agency, other

than a court, shall query the Department of Public Safety, State Bureau of Identification before

disseminating any public criminal history record information for a noncriminal justice purpose to

ensure that the most up-to-date disposition information is being used. "Noncriminal justice purpose"

means a purpose other than for the administration of criminal justice or criminal justice agency

employment.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

3. Public criminal history record information of person whose legal name has been changed.

Except as provided in this subsection, a Maine criminal justice agency may disseminate public criminal

history record information associated with each former and current legal name of a person whose name

has been changed to any person or public or private entity for any purpose. If an order changing the

person's name was made confidential under Title 18-C, section 1-701, subsection 3-A or any other

provision of law, a Maine criminal justice agency:

A. May not disclose the existence or nonexistence of the person's legal name change to any person

or public or private agency that is not authorized to receive confidential criminal history record

information under section 705; and

B. In response to a request for public criminal history record information from any person or public

or private agency that is not authorized to receive confidential criminal history record information

under section 705, may not disseminate public criminal history record information about a person

that is associated with any legal name of the person not included within the request.

[PL 2023, c. 560, §B-1 (NEW).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW). PL 2023, c. 560, §B-1 (AMD).

§705. Dissemination of confidential criminal history record information

1. Generally. A Maine criminal justice agency, whether directly or through any intermediary,

may disseminate confidential criminal history record information only to:

A. Other criminal justice agencies for the purpose of the administration of criminal justice and

criminal justice agency employment; [PL 2013, c. 267, Pt. A, §2 (NEW).]

B. Any person for any purpose when expressly authorized by a statute, executive order, court rule,

court decision or court order containing language specifically referring to confidential criminal

history record information or one or more of the types of confidential criminal history record

information; [PL 2013, c. 267, Pt. A, §2 (NEW).]

C. Any person with a specific agreement with a criminal justice agency to provide services required

for the administration of criminal justice or to conduct investigations determining the employment

suitability of prospective law enforcement officers. The agreement must specifically authorize

access to data, limit the use of the data to purposes for which given, ensure security and

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confidentiality of the data consistent with this chapter and provide sanctions for any violations;

[PL 2013, c. 267, Pt. A, §2 (NEW).]

D. Any person for the express purpose of research, evaluation or statistical purposes or under an

agreement with the criminal justice agency. The agreement must specifically authorize access to

confidential criminal history record information, limit the use of the information to research,

evaluation or statistical purposes, ensure the confidentiality and security of the information

consistent with this chapter and provide sanctions for any violations; [PL 2013, c. 267, Pt. A, §2

(NEW).]

E. Any person who makes a specific inquiry to the criminal justice agency as to whether a named

individual was summonsed, arrested or detained or had formal criminal charges initiated on a

specific date; [PL 2013, c. 267, Pt. A, §2 (NEW).]

F. The public for the purpose of announcing the fact of a specific disposition that is confidential

criminal history record information, other than that described in section 703, subsection 2,

paragraph A, within 30 days of the date of occurrence of that disposition or at any point in time if

the person to whom the disposition relates specifically authorizes that it be made public; and [PL

2013, c. 267, Pt. A, §2 (NEW).]

G. A public entity for purposes of international travel, such as issuing visas and granting of

citizenship. [PL 2013, c. 267, Pt. A, §2 (NEW).]

[PL 2013, c. 267, Pt. A, §2 (NEW).]

2. Confirming existence or nonexistence of information. A Maine criminal justice agency may

not confirm the existence or nonexistence of confidential criminal history record information to any

person or public or private entity that would not be eligible to receive the information itself.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

3. Required inquiry to State Bureau of Identification. A Maine criminal justice agency, other

than a court, shall query the Department of Public Safety, State Bureau of Identification before

disseminating any confidential criminal history record information for a noncriminal justice purpose to

ensure that the most up-to-date disposition information is being used. "Noncriminal justice purpose"

means a purpose other than for the administration of criminal justice or criminal justice agency

employment.

[PL 2013, c. 507, §3 (AMD).]

4. Confidential criminal history record information of person whose legal name has been

changed. Regardless of whether the order changing a person's name was made confidential under Title

18-C, section 1-701, subsection 3-A or any other provision of law, a Maine criminal justice agency may

disseminate confidential criminal history record information associated with each former and current

legal name of a person whose name has been changed to any person or public or private entity that is

authorized to receive confidential criminal history record information under subsection 1-A.

[PL 2023, c. 560, §B-2 (NEW).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW). PL 2013, c. 507, §3 (AMD). PL 2023, c. 560, §B-2 (AMD).

§706. Public information about persons detained following arrest

1. Requirement of record. A Maine criminal justice agency that maintains a holding facility, as

defined in Title 34‑A, section 1001, subsection 9, or other facility for pretrial detention shall record the

following information concerning each person delivered to it for pretrial detention for any period of

time:

A. The identity of the arrested person, including the person's name, year of birth, residence and

occupation, if any; [PL 2013, c. 267, Pt. A, §2 (NEW).]

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B. The statutory or customary description of the crime or crimes for which the person was arrested

including the date and geographic location where the crime is alleged to have occurred; [PL 2013,

c. 267, Pt. A, §2 (NEW).]

C. The date, time and place of the arrest; and [PL 2013, c. 267, Pt. A, §2 (NEW).]

D. The circumstances of the arrest including, when applicable, the physical force used in making

the arrest, the resistance made to the arrest, what weapons were involved, the arrested person's

refusal to submit and the pursuit by the arresting officers. [PL 2013, c. 267, Pt. A, §2 (NEW).]

[PL 2013, c. 267, Pt. A, §2 (NEW).]

2. Time and method of recording. A Maine criminal justice agency shall record the information

under subsection 1 immediately upon delivery of an arrested person to the criminal justice agency for

detention. The criminal justice agency shall record and maintain the information in chronological order

and keep the information in a suitable, permanent record. The information required by this section may

be combined by a sheriff with the record required by Title 30‑A, section 1505.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

3. Information public. The information required to be recorded and maintained by this section is

public criminal history record information.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW).

§707. Unlawful dissemination of confidential criminal history record information

1. Offense. A person is guilty of unlawful dissemination of confidential criminal history record

information if the person intentionally disseminates confidential criminal history record information

knowing it to be in violation of any of the provisions of this chapter.

[PL 2021, c. 293, Pt. B, §4 (AMD).]

2. Classification. Unlawful dissemination of confidential criminal history record information is a

Class E crime.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW). PL 2015, c. 354, §2 (AMD). PL 2021, c. 293, Pt. B, §4

(AMD).

§708. Inapplicability of this chapter to criminal history record information contained in certain

records

This chapter does not apply to criminal history record information contained in: [PL 2013, c. 267,

Pt. A, §2 (NEW).]

1. Posters, announcements, lists. Posters, announcements or lists used for identifying or

apprehending fugitives from justice or wanted persons;

[PL 2013, c. 267, Pt. A, §2 (NEW).]

2. Records of entry. Records of entry, such as calls for service, formerly known as "police

blotters," that are maintained by criminal justice agencies, that are compiled and organized

chronologically and that are required by law or long-standing custom to be made public;

[PL 2013, c. 267, Pt. A, §2 (NEW).]

3. Records of public judicial proceedings. Records of public judicial proceedings:

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A. Retained at or by the District Court, Superior Court or Supreme Judicial Court. Public access

to and dissemination of such records for inspection and copying are as provided by rule or

administrative order of the Supreme Judicial Court; and [PL 2013, c. 267, Pt. A, §2 (NEW).]

B. From federal courts and courts of other states; [PL 2013, c. 267, Pt. A, §2 (NEW).]

[PL 2013, c. 267, Pt. A, §2 (NEW).]

4. Published opinions. Published court or administrative opinions not impounded or otherwise

declared confidential;

[PL 2013, c. 267, Pt. A, §2 (NEW).]

5. Records of public proceedings. Records of public administrative or legislative proceedings;

[PL 2013, c. 267, Pt. A, §2 (NEW).]

6. Records of traffic crimes. Records of traffic crimes maintained by the Secretary of State or by

a state department of transportation or motor vehicles or the equivalent thereof for the purposes of

regulating the issuance, suspension, revocation or renewal of a driver's, pilot's or other operator's

license; and

[PL 2013, c. 267, Pt. A, §2 (NEW).]

7. Pardons, other than full and free pardons, commutations, reprieves and amnesties.

Petitions for and warrants of pardons, commutations, reprieves and amnesties other than warrants of

full and free pardons and their respective petitions.

[PL 2017, c. 432, Pt. B, §2 (AMD).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW). PL 2017, c. 432, Pt. B, §2 (AMD).

§709. Right to access and review

1. Inspection. If a Maine criminal justice agency maintains criminal history record information

about a person, the person or the person's attorney may inspect the criminal history record information.

A criminal justice agency may prescribe reasonable hours and locations at which the right may be

exercised and any additional restrictions, including satisfactory verification of identity by fingerprint

comparison, as are reasonably necessary to ensure the security and confidentiality of the criminal

history record information and to verify the identity of the person seeking to inspect that information.

The criminal justice agency shall supply the person or the person's attorney with a copy of the criminal

history record information pertaining to the person on request and payment of a reasonable fee.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

2. Review. A person or the person's attorney may request amendment or correction of criminal

history record information concerning the person by addressing, either in person or in writing, the

request to the criminal justice agency in which the information is maintained. The request must indicate

the particular record involved, the nature of the amendment or correction sought and the justification

for the amendment or correction.

On receipt of a request, the criminal justice agency shall take necessary steps to determine whether the

questioned criminal history record information is accurate and complete. If investigation reveals that

the questioned criminal history record information is inaccurate or incomplete, the criminal justice

agency shall immediately correct the error or deficiency.

Not later than 15 days, excluding Saturdays, Sundays and legal public holidays, after the receipt of a

request, the criminal justice agency shall notify the requesting person in writing either that the criminal

justice agency has corrected the error or deficiency or that it refuses to make the requested amendment

or correction. The notice of refusal must include the reasons for the refusal, the procedure established

by the criminal justice agency for requesting a review by the head of the criminal justice agency of that

refusal and the name and business address of that official.

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[PL 2013, c. 267, Pt. A, §2 (NEW).]

3. Administrative appeal. If there is a request for review, the head of the criminal justice agency

shall, not later than 30 days from the date of the request, excluding Saturdays, Sundays and legal public

holidays, complete the review and either make the requested amendment or correction or refuse to do

so. If the head of the criminal justice agency refuses to make the requested amendment or correction,

the head of the criminal justice agency shall permit the requesting person to file with the criminal justice

agency a concise statement setting forth the reasons for the disagreement with the refusal. The head of

the criminal justice agency shall also notify the person of the provisions for judicial review of the

reviewing official's determination under subsection 4.

Disputed criminal history record information disseminated by the criminal justice agency with which

the requesting person has filed a statement of disagreement must clearly reflect notice of the dispute

after the filing of such a statement. A copy of the statement must be included, along with, if the criminal

justice agency determines it appropriate, a copy of a concise statement of the criminal justice agency's

reasons for not making the amendment or correction requested.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

4. Judicial review. If an administrative appeal brought pursuant to subsection 3 is denied by the

head of the criminal justice agency, that decision is final agency action subject to appeal to the Superior

Court in accordance with Title 5, chapter 375, subchapter 7 and the Maine Rules of Civil Procedure,

Rule 80C.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

5. Notification. When a criminal justice agency has amended or corrected a person's criminal

history record information in response to a written request as provided in subsection 2 or a court order,

the criminal justice agency shall, within 30 days thereof, advise all prior recipients who have received

that information within the year prior to the amendment or correction that the amendment or correction

has been made. The criminal justice agency shall also notify the person who is the subject of the

amended or corrected criminal history record information of compliance with this subsection and the

prior recipients notified.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

6. Right of access and review of court records. This section does not apply to the right of access

and review by a person or the person's attorney of criminal history record information about that person

retained at or by the District Court, Superior Court or Supreme Judicial Court. Access and review of

court records retained by the District Court, Superior Court or Supreme Judicial Court are as provided

by rule or administrative order of the Supreme Judicial Court.

[PL 2013, c. 267, Pt. A, §2 (NEW).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW).

§710. Application to prior Maine criminal history record information

The provisions of this chapter apply to criminal history record information in existence before July

29, 1976, including that which has been previously expunged under any other provision of Maine law,

as well as to criminal history record information in existence on July 29, 1976 and thereafter. [PL

2013, c. 267, Pt. A, §2 (NEW).]

SECTION HISTORY

PL 2013, c. 267, Pt. A, §2 (NEW).

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The State of Maine claims a copyright in its codified statutes. If you intend to republish this material, we require that you include

the following disclaimer in your publication:

All copyrights and other rights to statutory text are reserved by the State of Maine. The text included in this publication reflects

changes made through the First Regular and First Special Session of the 131st Maine Legislature and is current through November

1. 2023. The text is subject to change without notice. It is a version that has not been officially certified by the Secretary of State.

Refer to the Maine Revised Statutes Annotated and supplements for certified text.

The Office of the Revisor of Statutes also requests that you send us one copy of any statutory publication you may produce. Our

goal is not to restrict publishing activity, but to keep track of who is publishing what, to identify any needless duplication and to

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PLEASE NOTE: The Revisor's Office cannot perform research for or provide legal advice or interpretation of Maine law to the

public. If you need legal assistance, please contact a qualified attorney.

Prepared for Criminal Records Review Committee (July 16, 2024 Meeting)

CRIMINAL RECORDS REVIEW COMMITTEE

Excerpts from the Constitution of Maine

related to Separation of Powers Issues

Article III.

Distribution of Powers.

Section 1. Powers distributed. The powers of this government shall be divided into 3

distinct departments, the legislative, executive and judicial.

Section 2. To be kept separate. No person or persons, belonging to one of these

departments, shall exercise any of the powers properly belonging to either of the others, except

in the cases herein expressly directed or permitted.

Article V.

Part First.

Executive Power.

Section 1. Governor. The supreme executive power of this State shall be vested in a

Governor.

…

Section 11. Power to pardon and remit penalties, etc.; conditions. The Governor shall

have power to remit after conviction all forfeitures and penalties, and to grant reprieves,

commutations and pardons, except in cases of impeachment, upon such conditions, and with

such restrictions and limitations as may be deemed proper, subject to such regulations as may be

provided by law, relative to the manner of applying for pardons. Such power to grant reprieves,

commutations and pardons shall include offenses of juvenile delinquency.

Article VI.

Judicial Power.

Section 1. Courts. The judicial power of this State shall be vested in a Supreme Judicial

Court, and such other courts as the Legislature shall from time to time establish.

State v. Hunter, 447 A.2d 797 (1982)

447 A.2d 797

Supreme Judicial Court of Maine.

STATE of Maine

Gary HUNTER

This case was prosecuted below and also appealed

under the caption In re Gary Hunter. We have

renamed the case to reflect the fact that this

proceeding is conceptually a continuation of the

prior criminal proceeding, State of Maine v. Gary

Hunter, in which Gary Hunter was sentenced.

If the statute under which the present petition

was brought were constitutionally valid, any

affirmative judicial action pursuant to it would be a

resentencing of defendant and hence a modification

of the judgment entered in the original criminal

proceeding.

Argued May 6, 1982.

Decided July 14, 1982.

Synopsis

Department of Corrections petitioned for modification of

prisoner's sentence. The Superior Court, Aroostook County,

dismissed petition, and Department appealed. The Supreme

Judicial Court, McKusick, C. J., held that resentencing

statute, as sought to be applied on basis of inmate's “progress

toward a noncriminal way of life,” was unconstitutional

attempt to invest judiciary with commutation power expressly

and exclusively granted by State Constitution to Governor.

Affirmed.

Wathen, J., filed dissenting opinion.

Procedural Posture(s): On Appeal.

Attorneys and Law Firms

*797 Gail Ogilvie, Asst. Atty. Gen., Augusta (orally), Janet

T. Mills, Dist. Atty., Auburn (orally), James E. Tierney, Atty.

Gen., Rufus E. Brown, Deputy Atty. Gen., Pasquale Perrino,

Asst. Atty. Gen., Augusta, for Dept. of Corrections.

Vafiades, Brountas & Kominsky, Marvin H. Glazier (orally),

Bangor, for defendant.

*798 Before McKUSICK, C. J., and NICHOLS,

ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

Opinion

McKUSICK, Chief Justice.

In this case the Law Court addresses for the first time

the question whether section 1255 of the Criminal Code,

providing for judicial resentencing on the basis of a

previously convicted person's “progress toward a noncriminal

way of life,” passes muster with the separation of powers

clauses of the Maine Constitution. We hold that, as sought to

be applied here for the resentencing of Gary Hunter, section

1255 is an unconstitutional attempt to invest the judiciary

with a power expressly and exclusively granted by the Maine

Constitution to the Governor. We accordingly affirm the

Superior Court's dismissal of the Department of Corrections'

petition for modification of Gary Hunter's sentence.

The resentencing statute, 17–A M.R.S.A. § 1255

(Supp.1981),

reads in full as follows:

With the rest of the Maine Criminal Code, the

resentencing statute now numbered as section 1255

was enacted by the legislature in 1975, to be

effective May 1, 1976. At that time, and until

October, 1981, it appeared in identical form as

section 1154 of the Code. This opinion will refer to

the section by the current numbering.

Sentences in excess of one year deemed tentative

1. When a person has been sentenced to imprisonment

for a term in excess of one year and such imprisonment

has not been suspended, the sentence is deemed

tentative, to the extent provided in this section.

2. If, as a result of the department's evaluation of such

person's progress toward a noncriminal way of life, the

department is satisfied that the sentence of the court

may have been based upon a misapprehension as to the

history, character or physical or mental condition of the

offender, or as to the amount of time that would be

necessary to provide for protection of the public from

such offender, the department may file in the sentencing

court a petition to resentence the offender. The petition

shall set forth the information as to the offender that

is deemed to warrant his resentence and shall include

State v. Hunter, 447 A.2d 797 (1982)

a recommendation as to the sentence that should be

imposed.

3. The court may, in its discretion, dismiss a petition

filed under subsection 2 without a hearing if it

deems the information set forth insufficient to warrant

reconsideration of the sentence. If the court finds the

petition warrants such reconsideration, it shall cause a

copy of the petition to be served on the offender, the

district attorney, the Attorney General and the victim of

the crime or, in the case of a criminal homicide, on the

victim's next of kin, all of whom shall have the right to

be heard on the issue.

4. If the court grants a petition filed under subsection

2, it shall resentence the offender and may impose any

sentence not exceeding the original sentence that was

imposed. The period of his being in the custody of

the department prior to resentence shall be applied in

satisfaction of the revised sentence.

5. For all purposes other than this section, a sentence of

imprisonment has the same finality when it is imposed

that it would have if this section were not in force.

Nothing in this section may alter the remedies provided

by law for appealing a sentence, or for vacating or

correcting an illegal sentence. As used in this section,

“court” means the judge who imposed the original

sentence, unless he is disabled or otherwise unavailable,

in which case it means any judge exercising similar

jurisdiction.

On March 14, 1978, in Superior Court (Aroostook County),

Gary Hunter pleaded guilty to fourth degree homicide. The

court sentenced him to imprisonment at the Maine State

Prison for eight years.

Three years after Hunter began serving his term, the

Department of Corrections filed a petition with the Superior

Court, pursuant to section 1255, urging the court to reconsider

Hunter's sentence for the following reasons:

*799 Gary Hunter has made

substantial progress towards a

noncriminal way of life since

his imprisonment in March, 1978.

Mr. Hunter has an exemplary

prison record. In addition, he has

participated in alcohol counseling,

the Alcoholics Anonymous program

and the Yokefellow spiritual growth

group. He shows considerable insight

into his prior alcoholic dependency

which was the major factor in his

criminal conduct. Currently he resides

at the Bangor Pre-Release Center,

is a full-time student at the Bangor

Theological Seminary and works on

a part-time basis at the Seminary

in the maintenance department. In

light of Mr. Hunter's performance and

progress, the sentencing judge may

have misapprehended the amount of

time necessary to protect the public

from him.

On the basis of those considerations, the department urged the

court to resentence Hunter, placing him on probation for the

remainder of his eight-year term on condition that he continue

alcohol counseling.

The Superior Court dismissed the petition, holding that

insofar as the statute attempted to give the court jurisdiction to

“modify a sentence, after it had been imposed, on the ground

of changes in the attitude or behavior of the offender,” it

usurped the executive power to grant pardons, reprieves, and

commutations of sentences. The Department of Corrections

has appealed.

Appellee State of Maine was represented on this

appeal by the former Assistant Attorney General

who prosecuted Hunter in the proceeding in which

he was originally sentenced. Hunter's appointed

counsel who represented him in that original

proceeding also represented him on this appeal,

appearing at oral argument and joining the brief

filed by appellant Department of Corrections.

The pertinent provisions of the Maine Constitution are

explicit and restrictive. Article III, entitled “Distribution of

Powers,” commands separation of the powers of government

among the three great branches with a double emphasis:

section 1 declares that the governmental powers “shall

be divided into three distinct departments, the legislative,

executive and judicial”; and then section 2 expressly prohibits

any person “belonging to one of these departments [from]

exercis[ing] any of the powers properly belonging to either

State v. Hunter, 447 A.2d 797 (1982)

of the others, except in the cases herein expressly directed or

permitted.” (Emphasis added)

Articles IV, V, and VI of the Maine Constitution specify

the powers of the three distinct departments, legislative,

executive and judicial, respectively. Article VI merely speaks

of the “judicial power of this State” being vested in

the Supreme Judicial Court and such other courts as the

legislature may establish. As here relevant, Article V, which

spells out in detail the powers of the executive branch, is very

specific in vesting the Governor with comprehensive power

to modify sentences:

He [the Governor] shall have power

to remit after conviction all forfeitures

and penalties, and to grant reprieves,

commutations and pardons, except in

cases of impeachment, upon such

conditions, and with such restrictions

and limitations as may be deemed

proper ....

(Emphasis added) Me.Const. art. V, pt. 1, § 11.

Because of article III, section 2, the separation of

governmental powers mandated by the Maine Constitution

is much more rigorous than the same principle as applied to

the federal government. The United States Constitution has

no provision corresponding to article III, section 2 of the

Maine Constitution, explicitly requiring that no one person

exercise the powers of more than one of the three branches

of government. Rather, at the federal level the separation of

powers principle is inferred from the overall constitutional

structure. Because the federal principle is implicit only, rather

than explicit, it may be appropriate in that governmental

structure to take a functional rather than a formal approach to

separation of powers questions: the inquiry is whether a given

departure from strict separation has the effect of impairing

the integrity or ability to function of the branch to which a

power has *800 been constitutionally granted, or the effect

of vesting excessive or unchecked authority in the branch that

has assumed the power. See L. Tribe, American Constitutional

Law, § 2–2 at 15 (1978); 1 K. Davis, Administrative Law,

§ 2.6 at 81 (2d ed. 1978). Under the Maine Constitution,

however, our inquiry is narrower: has the power in issue

been explicitly granted to one branch of state government,

and to no other branch? If so, article III, section 2 forbids

another branch to exercise that power.

In People v. Herrera,

183 Colo. 155, 516 P.2d 626 (1973), the Colorado Supreme

Court, interpreting constitutional language equivalent to the

double emphasis of our own article III on separation of

powers, held that a statute that attempted to give the courts

power to reduce sentences after they had been imposed, was

unconstitutional as an invasion of the executive power to

grant commutations. In the case before us, our task is to

determine whether the authority to revise sentences granted

the courts by section 1255 falls within “the judicial power”

envisioned by the Maine Constitution, article VI, section 1,

or whether it falls within the commutation powers that the

constitution has expressly granted only to the executive under

article V, part 1, section 11.

Our approach is akin to one of the tests used by

federal courts for determining whether an issue is

nonjusticiable as a “political question”: whether

there is a “textually demonstrable constitutional

commitment” of the issue to another branch of the

government. Baker v. Carr, 369 U.S. 186, 217, 82

S.Ct. 691, 710, 7 L.Ed.2d 663 (1962) (explaining

why the “guarantee clause,” U.S.Const. art. IV § 4,

is nonjusticiable).

In an analysis of section 1255, it is significant that subsection

2 on its face provides two different bases for judicial

modification of a sentence previously imposed: it permits

resentencing either (i) if the sentence was based on a

“misapprehension as to the history, character or physical or

mental condition of the offender”; or (ii) if the sentence was

based on a misapprehension “as to the amount of time that

would be necessary to provide for protection of the public

from such offender.” The first basis for resentencing appears

to contemplate that it would be used only when the sentencing

judge becomes aware that he was factually mistaken as to

circumstances that existed at the time of the sentencing and

were of some influence in his sentencing decision. On the

other hand, the second basis for resentencing provided by

section 1255(2) contemplates that the judge will change the

sentence because he concludes, in view of the offender's good

behavior while serving his sentence, that he no longer poses

a threat to society. Plainly, the Department of Corrections

seeks resentencing of Gary Hunter under the second basis

specified by section 1255(2). In any event, either basis is

by subsection 2 subject to being triggered only “as a result

of the department's evaluation of [the offender's] progress

toward a noncriminal way of life”; and the threshold summary

dismissal by the sentencing judge occurs, by subsection

State v. Hunter, 447 A.2d 797 (1982)

3, if he determines that the information provided by the

department as to the offender's progress is “insufficient to

warrant reconsideration of the sentence.”

One's understanding of section 1255

can be improved by

examining the metamorphoses that the resentencing proposal

went through during the course of the work of the Criminal

Law Revision Commission. The draft of June 16, 1972,

presented by *801 the Commission's Chief Counsel was

radically different from section 1255 presented to and enacted

by the legislature in 1975 as part of the Code. Sentences

were open to be modified for only one year, only the first

basis for resentencing now set forth in section 1255(2) was

proposed, and the triggering event was the department's

examination and classification of the prisoner “upon his

arrival at a correctional facility, or shortly thereafter.”

The

Chief Counsel's comment accompanying that initial draft

identified its source as the Massachusetts Criminal Code,

chapter 264, section 5. Its ancestry in section 7.08 of the

Model Penal Code (1962) is also obvious. The resentencing

section went through at least two intermediate drafts before

it reached the form of present section 1255 in the draft of

August 28, 1974. In the draft of May 28, 1974, any time

restriction on resentencing was removed from subsection 1,

and in subsection 2 there were two separate triggering events

to correspond to the two separate bases for resentencing that

had by then been injected.

The final Commission draft

eliminated the separate trigger “as a result of examination and

classification by the Department,” which had been from the

start matched up to the first basis for resentencing. Thus, one

might well conclude that the Commission intended thereafter

that only the inmate's “progress toward a noncriminal way of

life” would trigger resentencing on either of the two bases

provided in what is now section 1255(2).

Section 1255 has been called “a masterpiece

of breathtaking ambiguity.” Zarr, Sentencing, 28

Me.L.Rev. 117, 144 (1976).

That June 16, 1972, draft read in part as follows:

A. When a person has been sentenced to

imprisonment for a term in excess of one year,

the sentence shall be deemed tentative, to the

extent provided in this section, for a period of

one year following imposition of the sentence.

B. If, as a result of examination and classification

by the Department of Mental Health and

Corrections of a person under sentence of

imprisonment for a term in excess of one year,

the Department is satisfied that the sentence

of the court may have been based upon a

misapprehension as to the history, character, or

physical or mental condition of the offender,

the Department, during the period specified in

subsection A, may file in the sentencing court a

petition to resentence the offender. The petition

shall set forth the information as to the offender

that is deemed to warrant his resentence and may

include a recommendation as to the sentence that

should be imposed.

The other three subsections of that draft read

substantially the same as the present section

1255(3)–(5).

The language quoted in the text is from the Chief

Counsel's comment that accompanied the June 16,

1972, draft.

The “Comment-1975” attached to section 1154 (the

predecessor of section 1255) is an abridgment of

that 1972 comment. The radical changes later made

in the resentencing provision before the Criminal

Law Revision Commission submitted it to the

legislature render that comment nearly useless in

explaining the present section 1255.

Subsection 2 of the May 28, 1974, draft read as

follows:

If, as a result of examination and classification

by the Department of Mental Health and

Corrections of a person under an imprisonment

sentence, or as a result of the Department's

subsequent evaluation of such person's progress

toward a non-criminal way of life, the

Department is satisfied that the sentence of

the court may have been based upon a

misapprehension as to the history, character, or

physical or mental condition of the offender,

or as to the amount of time that would be

necessary to provide for protection of the public

from such offender, the Department may file

in the sentencing court a petition to resentence

the offender. The petition shall set forth the

information as to the offender that is deemed

to warrant his resentence and may include a

recommendation as to the sentence that should

be imposed.

State v. Hunter, 447 A.2d 797 (1982)

Since “a misapprehension as to the history,

character or physical or mental condition of the

offender” is not the basis on which the department

seeks resentencing for Gary Hunter, we are not

called upon to pass upon the constitutionality of

that portion of section 1255. In any future case

of resentencing sought under that first basis, two

questions would have to be answered affirmatively

before the constitutionality issue is even reached:

(i) Is there any authorization in section 1255(2)

for resentencing on the first basis when the

misapprehension or mistake of fact comes to light

otherwise than “as a result of the department's

evaluation of [the inmate's] progress toward a

noncriminal way of life”; and (ii) even if so, is

the provision for resentencing on the first basis

severable from the provision for resentencing on

the second basis, which we in the instant case hold

violates the Maine Constitution? See 1 M.R.S.A.

§ 71(8) (1979) (rule of statutory construction on

severability).

Appellant Department of Corrections argues that the two

bases for resentencing set forth in section 1255(2) are

collapsed into one, for purposes of constitutional appraisal,

by the statutory application of the term “misapprehension”

to both. Because both bases for judicial action under section

1255 involve no more than correction of “misapprehension”

or error at the time of sentencing, the statute grants, the

Department urges, only powers that fall within the realm of

traditional judicial activity.

We cannot agree. A trial judge's decision as to what sentence

is necessary to protect the public from an offender is not

a *802 finding of fact, but a judgmental conclusion from

facts. It is a prediction, the judge's best guess at the time,

of the appropriate sentence in all the circumstances. Unlike

the foundational or evidentiary facts on which the judge's

conclusion rests, his sentencing decision cannot be said to be

an objective “fact” having an existence independent of the

judicial proceeding. Correction of error in the foundational

facts found at the time of sentencing is qualitatively different

from altering the sentence years later on the basis of

the offender's subsequent behavior. In the latter situation,

“misapprehension” means no more than misprediction; it has

little or nothing to do with the traditional concept of the

correction of judicial error.

Both in Maine and in other jurisdictions, trial courts have

been recognized as having certain limited authority to correct

errors in the foundational facts on which the sentence was

based. Even in the absence of statutes, courts have exercised

an inherent power to correct a sentence within a short time

after its entry. A criminal judgment at common law was said

to be still “in the bosom of the court” and modifiable, so

long as the offender had not begun to serve his sentence

and the term of court in which the judgment had been

entered had not yet expired. See State v. Blanchard, 156

Me. 30, 52, 159 A.2d 304, 316 (1960). With adoption of

our Rules of Criminal Procedure in 1965, terms of court

ceased to have any significance in cutting off the jurisdiction

of a sentencing court, M.R.Crim.P. 45(c); and thereafter

M.R.Crim.P. 35 has expressly permitted a justice to correct a

sentence he had entered at any time prior to commencement

of its execution. In other jurisdictions, courts have by judicial

decision relaxed one or both of the traditional time limits

on the inherent judicial power to revise sentences. See, e.g.,

State v. Thomson, 110 N.H. 190, 263 A.2d 675 (1970) (court

may review sentence after term of court in which it was

imposed has expired, if defendant has not yet begun to serve

his sentence); United States v. Benz, 282 U.S. 304, 51 S.Ct.

113, 75 L.Ed. 354 (1931) (court may review sentence after

defendant has begun serving his sentence, as long as the

term of court in which the sentence was imposed has not

expired); State v. White, 71 N.M. 342, 378 P.2d 379 (1963)

(same); Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625 (1970)

(court may review sentence within a year after it is imposed

—subsequently modified to 90 days—even though defendant

has begun serving the sentence and the term of court has

expired).

Those authorities, however, provide no support for the

validity under the Maine Constitution of the use of section

1255 to modify a sentence based on the behavior of the

offender during incarceration. Such application of the statute

duplicates a part of the Governor's power to commute a

criminal sentence. The power of commutation is a companion

of the executive's pardoning power; it differs from his

pardoning power in that it leaves the judgment of guilt

intact, only substituting a less severe punishment for the

punishment originally decreed. In exercising any power of

clemency, the Governor is not limited to the considerations

that are permitted to the courts by section 1255(2). Rather,

the chief executive, acting for the public welfare and the

benefit of the convict, has complete discretion and may

exercise his power for whatever reasons he thinks appropriate.

See 59 Am.Jur.2d Pardon & Parole §§ 7, 13, 65 (1971);

Baston v. Robbins, 153 Me. 128, 135 A.2d 279 (1957);

Hoffa v. Saxbe, 378 F.Supp. 1221 (D.D.C.1974); State v.

State v. Hunter, 447 A.2d 797 (1982)

Chase, 329 So.2d 434, 437 (La.1976); People v. Herrera,

supra; Commonwealth v. Arsenault, 361 Mass. 287, 291–92,

280 N.E.2d 129, 132 (1972). The court in Hoffa v. Saxbe

undertook an extensive review of the historical development

of the executive clemency power, which was first developed

in England. The court noted that

the King's pardon was the sole device for altering

punishment according to “the situation and circumstances

of the offender” [quoting W. Blackstone, Commentaries,

book IV at 397 (Cooley, 4th ed. 1899) ]. As such the royal

pardoning power was in fact a predecessor of the *803

modern criminal justice devices of probation and parole.

378 F.Supp. at 1228.

The power granted by section 1255(2) is not as broad

as the executive commutation power, because the court is

restricted in the factors that it may consider. Nonetheless,

the power to reduce an offender's sentence on the basis of

his post-conviction behavior is not part of the traditional

judicial power; rather, it is encompassed within the executive

commutation power. See Doyon v. State, 158 Me. 190, 198–

99, 181 A.2d 586, 590, cert. denied, 371 U.S. 849, 83 S.Ct. 85,

9 L.Ed.2d 84 (1962) (distinguishing correction of error in trial

and sentence, properly within the jurisdiction of the courts,

from the executive power of commutation). The Maine

Constitution in article V, part 1, section 11, has expressly

given the commutation power to the executive, and not to

the judiciary. Under article III of the Maine Constitution, that

power may be exercised only by the executive branch.

The entry must be:

Superior Court's dismissal of the Department of Corrections'

petition for resentencing of Gary Hunter under 17–A

M.R.S.A. § 1255 affirmed.

NICHOLS, ROBERTS, CARTER and VIOLETTE, JJ.,

concurring.

WATHEN, J., dissenting.

WATHEN, Justice, dissenting.

I must respectfully dissent. In delivering a fatal blow to the

second branch of 17–A M.R.S.A. § 1255(2), the majority

repeats the error of the Superior Court justice by violating the

most basic principle of statutory construction and ignoring the

unique characteristics of a protective sentence. Stated simply,

the statute has been misinterpreted to create, rather than avoid,

constitutional confrontation.

In numerous opinions, this Court has affirmed the obligation

to construe and interpret a statute so as to sustain it rather than

defeat it. As was stated most recently:

We start from the fundamental precepts that courts will, if

possible “construe legislative enactments so as to avoid a

danger of unconstitutionality” and that the central purpose

of statutory construction is “to save, not destroy.” State v.

Davenport, Me., 326 A.2d 1, 5–6 (1974).

State v. Crocker, Me., 435 A.2d 58, 63 (1981). The same

fundamental precept has been stated even more explicitly:

The duty of this Court is to

determine if these provisions of the

Act are susceptible of a reasonable

interpretation which would satisfy

constitutional requirements. If there is

such an interpretation, we are bound to

adopt that interpretation as it sustains

the statute.

Portland Pipe Line Corp. v. Environmental Improvement

Comm'n, Me., 307 A.2d 1, 15 (1973). This Court must assume

that the legislature, in enacting any law, does so with full

knowledge of constitutional restrictions and with an intent

to act within those restrictions. See Martin v. Maine Savings

Bank, 154 Me. 259, 147 A.2d 131 (1958). The presumption

which attaches to legislative enactments should lead the

judiciary inexorably to accept the reasonable interpretation of

an enactment which will uphold the legislative act. The statute

presented in the instant case lends itself to such a reasonable

interpretation within the bounds of the constitution.

The majority adopts as the only possible interpretation of

section 1255(2) that interpretation stated by the Superior

Court, namely, the authority to “modify a sentence, after it

had been imposed, on the ground of changes in the attitude or

behavior of the offender.” Such a conclusion overlooks and

disregards an alternative “reasonable interpretation” which

in my judgment is even more consonant with the express

language of the statute and which presents no constitutional

infirmity.

State v. Hunter, 447 A.2d 797 (1982)

One must approach section 1255(2) with an understanding

that it was developed as an integral part of a total

revision of the laws relating to crime and punishment which

resulted in the adoption of the Maine Criminal Code. The

advent of determinate *804 sentencing and the abolition

of parole presented the likelihood of longer sentences

involving substantially more actual confinement. For the

first time the Code identified the goals of sentencing and

specifically included protection of the public in addition to

factors reflecting the aims of deterrence, rehabilitation and

punishment.

Since the so-called protective sentence forms

the basis for any authority which a court might have under

the second branch of section 1255(2), it is necessary to

understand how it differs from a sentence designed to serve

other aims.

17–A M.R.S.A. § 1151(1) speaks of “the restraint

of convicted persons when required in the interest

of public safety.”

One will not find any comprehensive discussion of protective

sentences in the case law of Maine or most other states

because of the absence of a system for effective appellate

review of sentencing. One of the benefits of full appellate

scrutiny would be a decisional discourse and an evolving

body of law dealing with the principles of sentencing. See

M. Frankel, Criminal Sentences 75–85 (1973). There is,

however, a body of literature in the area of criminal sentencing

which provides substantial information concerning the type

of sentence referred to in section 1255(2). A protective

sentence is defined as serving the aim of incapacitation. The

length of the sentence alone incapacitates the defendant from

committing any further criminal acts.

To the extent that the intent of the sentence is purely

incapacitative, ‘attention is not focused on the reduction

of the offender's propensity for future criminal acts; rather

the offender is controlled so as to preclude his opportunity

for such behavior at least while under the authority of the

state.’

M. Gottfredson, D. Gottfredson Decisionmaking in Criminal

Justice, p. 174 (1980).

A comparative view of the use of this principle of sentencing

may be found in N. Walker, Sentencing In A Rational Society

(1971). The author recounts that at one point in the history of

Germany and Britain, certain offenders first served a term of

detention appropriate to accomplish retribution for the crime

and then went on to serve the prophylactic portion of the

sentence designed to incapacitate. The author points out that

the common element in most penal codes which provide for

such prophylactic sentences is the requirement that there be

evidence that the offender is unlikely to respond to ordinary

penal measures. The Criminal Justice Act of 1967 in England

is summarized by the author and is identified as the latest and

most elaborate definition of a class of offenders subject to

protective sentencing:

(i) the offender must have been convicted on at least four

separate occasions of any offence punishable with two or

more years' imprisonment;

(ii) the convictions must have occurred since his twenty-

first birthday;

(iii) they must have taken place in a higher court;

(iv) the custodial sentences imposed must have added up to

not less than five years, and included at least one of three

years or more or at least two of two years or more;

(v) the offence for which the precautionary sentence is

imposed must have been committed within three years of

his last conviction or release from custody for an offence

punishable with at least two years' imprisonment.

Supra, at 133. The author's description of the path leading

to increased prominence of protection as a justification for

sentencing may aptly describe the experience in Maine:

As retribution and general deterrence

become unfashionable justifications

for imprisonment, the emphasis shifts

to correction and protection. And

when the corrective efficacy—at least

of long sentences—begins to be

questioned, the only safe ground

left is protection. Parallel with these

trends can be seen a change in the

conception of protective sentences.

In the nineteenth century, when

most prison sentences were by

our standards *805 very long, it

was unnecessary to devise special

precautionary sentences. As they

shortened, a demand was created for

longer ones in the case of certain

offenders, who were defined either

State v. Hunter, 447 A.2d 797 (1982)

as habitual criminals or as being

likely to commit certain particularly

objectionable crimes.

Supra, at 132.

Unlike the English Parliament, the Maine legislature chose

not to specify the precise factual basis upon which a

prophylactic or protective sentence should be considered.

However, the existence and importance of the concept is

demonstrated by its prominent inclusion in the general aims

of sentencing, and there is no doubt that such prophylactic

sentences are imposed by the Superior Court in appropriate

circumstances.

Review of authoritative writings on the subject of criminal

sentencing and the language of the statute lead me firmly to

the opinion that the Maine legislature focused strictly upon

the protective sentence in enacting the second branch of

section 1255(2). The legislature authorized resentencing only

if the sentencing judge found that he had misapprehended

the amount of time incapacity was required for societal

protection. Such authority would not extend to every criminal

sentence of incarceration but would be confined to those

sentences which were truly prophylactic. The absence of

statutory definition increases the difficulty in objectively

identifying such a sentence but does not render it impossible.

The offender is one who is deemed to be incorrigible or at least

unlikely to respond to ordinary penal measures. His sentence

is longer in duration than would be necessary to serve the

purposes of deterrence, rehabilitation or punishment. The

sentencing judge, to some extent, ignores the needs of the

individual defendant and measures the need of society to be

protected. The resulting sentence is for a substantial number

of years, usually in excess of five, since any shorter period

would hardly serve any legitimate need for protection.

It is important to note that since the determination of

incorrigibility and the need for protection rests exclusively

with the sentencing judge, unguided by statute, only he may

know whether protection entered the sentencing equation.

It is not certain that the sentence involved in the

instant case is protective or prophylactic. Since the

Superior Court dismissed the petition, that issue

was not aired.

Three factors give rise to the need for a means of error

correction: (1) the specific inclusion of societal protection in

the general aims of sentencing; (2) determinate sentencing

ranging from one day to twenty years for certain offenses;

and (3) the abolition of parole. Section 1255(2) is the sole

legislative response to what would otherwise be a fertile

field for egregious injustice. The almost boundless discretion

granted to the sentencing judge in imposing a protective

sentence is checked only by that judge's ability and authority

to correct errors. This slim thread the majority now removes.

One must look at criminal sentencing as a fluid process

encompassing both sentence imposition and correction rather

than as a series of independent static events. Such a view not

only fulfills the intent of the legislature to provide a means

of relief from injustice, it avoids constitutional confrontation.

While the majority acknowledges that the legislature may

authorize the courts to correct factual errors, it concludes that

section 1255(2) cannot reasonably be interpreted to achieve

that result. Rather, it is concluded that the statute can only

be interpreted as an impermissible attempt to invade the

pardon power of the executive branch of government.

my judgment the error in such a construction arises from

overreading the following language of the statute: “If, as a

result of the department's evaluation of such person's progress

toward *806 a noncriminal way of life, the department

is satisfied that the sentence of the court may have been

based upon a misapprehension,” it may file a petition. This

provision prescribes the administrative preconditions to the

filing of a petition but does not describe the factual basis

upon which relief could be predicated. The import of the

statute is clear. If a defendant's conduct in prison suggests

to the satisfaction of the department that the court may have

misapprehended the necessity for a prophylactic sentence,

then a petition may be filed. At that point the sentencing

judge, under the terms of the statute, is entitled to consider

whether he was acting on the basis of a misapprehension at

the time of sentencing. Significantly, the judge is not called

upon to consider whether the good conduct of the defendant

entitled him to relief from the sentence previously imposed.

Rather, he is required to consider once again the decision

to impose a prophylactic sentence and determine whether

he misapprehended the factual basis upon which it rested.

The defendant's “progress toward a noncriminal way of life,”

having triggered the filing of the petition, does not enter into

the determination of error correction.

Given the interpretation espoused herein, the issue

of separation of powers does not arise. There is

authority to support the proposition that sentence

modification does not impinge upon the pardoning

State v. Hunter, 447 A.2d 797 (1982)

power. See State v. Nardini, 21 Cr.L.Rep. 2194,

Conn.Sup.Ct., 445 A.2d 304 (1982).

Finally, the majority rules that there could be no factual

error to correct. I would agree that the judge's decision to

impose a prophylactic sentence is not itself a finding of fact,

but rather a judgmental conclusion based upon facts. I do

not agree that the “misapprehension” referred to in section

1255(2) therefore means no more than misprediction. Since

the sentencing provisions of Maine law afford the judge

substantial latitude in considering which facts may persuade

him to impose a prophylactic sentence, it is axiomatic that the

provision for error correction concerning those foundational

facts must be of equal latitude.

I would reverse the Superior Court's dismissal of the petition

for modification of Gary Hunter's sentence and remand for the

sentencing judge to determine whether the sentence imposed

was protective, and if so, whether his decision was based upon

factual misapprehension.

All Citations

447 A.2d 797

Bossie v. State, 488 A.2d 477 (1985)

488 A.2d 477

Supreme Judicial Court of Maine.

David BOSSIE, et al.

STATE of Maine.

Argued Sept. 17, 1984.

Decided Feb. 27, 1985.

Synopsis

Prisoners' petitions for postconviction review were denied by

the Superior Court, Penobscot, Aroostook, Washington, York,

and Cumberland Counties, and they appealed. The Supreme

Judicial Court, Wathen, J., held that statute increasing “good-

time” reductions available to prisoners, which is expressly

applicable to persons committed to custody before its

effective date as to portions of sentence remaining to be

served after effective date, had effect of commuting lengths

of existing sentences and did not merely change computation

of sentences to be imposes; therefore, such statute was an

exercise by legislature of power, granted to governor, to

commute sentences, in violation of separation of powers

provision of State Constitution.

Affirmed.

Procedural Posture(s): On Appeal.

Attorneys and Law Firms

*478 Sherrilynn S. Smith (orally), Waterville, for plaintiff.

Charles K. Leadbetter (orally), Anita M. St. Onge, Asst.

Attys. Gen., Augusta, for defendant.

Before McKUSICK, C.J., and ROBERTS, VIOLETTE,

WATHEN, GLASSMAN and SCOLNIK, JJ.

Opinion

WATHEN, Justice.

On this consolidated appeal arising from an order of the

Superior Court (Kennebec County) denying six consolidated

Petitions for Post-Conviction Review, three of the six

defendants below appeal to the Law Court pursuant to 15

M.R.S.A. § 2131 (Supp.1983–1984) and M.R.Crim.P. 76. On

appeal, petitioners contend that the Superior Court erred in

deciding that a recently enacted statutory formula for the

calculation of good-time reductions in prior sentences is an

unconstitutional exercise of legislative power in conflict with

the exclusive power of the executive to commute sentences.

We agree with the order of the Superior Court and deny the

appeal.

The three petitioners, David Bossie, Matthew R. Downing,

and Kenneth D. Rancourt were convicted and placed in

custody when the calculation of “good-time” reductions

(for faithfully observing rules and requirements) in their

sentences was controlled by 17–A M.R.S.A. § 1253(3–A)

(as last amended by P.L.1977, ch. 510, § 81).

Under this

section, each defendant received credit for good-time at the

end of each thirty day period of incarceration. The effect

of the method of calculation under section 1253(3–A) was

potentially to reduce a prisoner's total sentence by ¼, 40 days

credit for 30 days served. Section 1253(3–A) was repealed

and replaced by 17–A M.R.S.A. § 1253(3) (Supp.1983–

1984) (as amended *479 by P.L.1983, ch. 456).

Under

the new method of calculating good-time, 10 days per month

is credited up front before the time is actually served. The

effect of section 1253(3) is potentially to reduce sentences by

about ⅓, 30 days credit for every 20 days served. Although

the effective date of amended section 1253(3) was October

1, 1983, the final sentence of section 1253(3) makes the

subsection applicable to persons committed to the custody of

the Department of Corrections before the effective date, as to

the portions of their sentences remaining to be served after

the effective date.

17–A M.R.S.A. § 1253(3–A) (as last amended by

P.L.1977, ch. 510, § 81) provides:

Each person sentenced, on or after January

1, 1978, to imprisonment for more than 6

months shall earn a reduction of 10 days from

his sentence for each month during which

he has faithfully observed all the rules and

requirements of the institution in which he has

been imprisoned. Each month the supervising

officer of each institution shall cause to be

posted a list of all such persons who have

earned reductions from their sentences during

the previous month. If any such person does not

earn all of his reduction from his sentence in any

month, a notation of such action shall be entered

on a cumulative record of such actions in the

person's permanent file.

Bossie v. State, 488 A.2d 477 (1985)

17–A M.R.S.A. § 1253(3) (Supp.1983–1984) (as

amended by P.L.1983, ch. 456) provides:

Beginning October 1, 1983, each person

sentenced, to imprisonment for more than 6

months shall be entitled to receive a deduction

of 10 days per month calculated from the

first day of his delivery into the custody of

the department, to include the full length of

the unsuspended portion of his sentence, for

observing all the rules of the department and

institution, except this provision shall not apply

to the suspended portion of a person's sentence

pursuant to split sentences under section 1203.

All persons committed to the custody of

the Department of Corrections prior to the

effective date of this subsection shall have these

provisions applied prospectively to the portion

of their sentences remaining to be served.

Petitioners initiated post-conviction review proceedings

claiming that they were entitled to good-time reductions

calculated in accord with section 1253(3) from the

commencement date of their sentences. They alleged that

the method used by the Maine Department of Corrections to

calculate their good-time credits pursuant to section 1253(3)

violated their rights to equal protection of the laws under

both the United States and Maine Constitutions.

The

Superior Court declined to address the merits of petitioners'

contentions and held that the last sentence of section 1253(3)

(making the section applicable to the portion of sentences

remaining to be served after the effective date) was an

unconstitutional legislative encroachment on the executive's

commutation power. The Superior Court held that section

1253(3–A) remained in effect for all persons sentenced before

October 1, 1983.

The Department of Corrections interprets the

phrase “the portion of their sentence remaining to

be served” to mean the portion of their sentence

remaining to be served after deducting tentative

good-time credits assigned under pre-October 1,

1983 law.

Our analysis begins with the basic principle of statutory

construction that this Court is bound to avoid an

unconstitutional interpretation of a statute if a reasonable

interpretation of the statute would satisfy constitutional

requirements. See State v. Crocker, 435 A.2d 58, 63

(Me.1981); State v. Davenport, 326 A.2d 1, 5–6 (Me.1974);

Portland Pipe Line Corp. v. Environmental Improvement

Comm'n, 307 A.2d 1, 15 (Me.1973). The petitioners assert

that the last sentence of section 1253(3) reasonably could be

interpreted to be a mere exercise of the legislature's traditional

power to compute the length of sentences prospectively

rather than a commutation of sentences already imposed.

The petitioners take an overly technical approach to statutory

construction.

As a practical matter, good-time credits have the undeniable

effect of reducing the length of sentences. See Weaver v.

Graham, 450 U.S. 24, 31–32, 101 S.Ct. 960, 965–966, 67

L.Ed.2d 17 (1981). Thus, good-time credits are an integral

part of the sentence, and changing the calculation of good-

time changes the effective length of a sentence.

See id at

32, 101 S.Ct. at 966; State v. Blanchard, 156 Me. 30, 50–51,

159 A.2d 304, 315 (1960). Because good-time credits affect

the lengths of sentences and because the legislature purported

to increase the amount of good-time credits available for

prisoners already in the custody *480 of the Department of

Corrections at the effective date of the statute, section 1253(3)

shortened (commuted) the lengths of existing sentences and

did not merely change the computation of sentences to be

imposed.

17–A M.R.S.A. § 1254(1) (1983) provides:

An imprisoned person shall be unconditionally

released and discharged upon the expiration of

his sentence, minus the deductions authorized

under section 1253.

Article V, part 1, section 11 of the Maine Constitution

grants the Governor the power to commute sentences. The

legislature has no explicit constitutional authority in this area.

Although the petitioners recognize that article III, section

2 of the Maine Constitution provides for a strict separation

of powers between the three branches of government, the

petitioners contend that even if section 1253(3) constitutes

a legislative commutation of sentences, the separation of

powers provisions of the Maine Constitution do not preclude

the legislature from acting in this area.

In State v. Hunter, 447 A.2d 797, 803 (Me.1982), a case

declaring unconstitutional a statute providing for judicial

resentencing, we said “that the power to reduce an offender's

sentence on the basis of his post-conviction behavior ... is

Bossie v. State, 488 A.2d 477 (1985)

encompassed within the executive's commutation power.”

Furthermore, the Hunter Court explained that because article

III, section 2 explicitly requires that no one person exercise

the powers of more than one of the three branches of

government, separation of powers issues must be dealt with

in a formal rather than functional manner. The resulting

test under the Maine Constitution is a narrow one: “has the

power in issue been explicitly granted to one branch of state

government, and to no other branch? If so, article III, section

2 forbids another branch to exercise that power.” State v.

Hunter, 447 A.2d at 800. The statute before us violates the

constitutional prohibition.

Petitioners seek to distinguish State v. Hunter on the ground

that the judiciary's power to commute sentences was there

involved, while this case concerns the legislature's power to

commute sentences. Because of the legislature's traditional

authority to establish the length of sentences for offenses

committed in the future and because legislative power is

defined by limitation and not by grant, the petitioners contend

that the constitutional grant of the power to commute to the

executive does not eliminate the legislature's residual amnesty

power. Petitioners argue that because of the absence of an

explicit restriction on the legislature's general amnesty power,

such power may be exercised by the legislature as long as its

exercise does not interfere with the executive's commutation

power. See Baston v. Robbins, 153 Me. 128, 129, 135 A.2d

279, 281 (1957) (art. V, pt. 1, § 11 prevents the legislature

from controlling, regulating, or interfering with Governor's

pardoning powers).

Even if the legislature does have a general amnesty power,

something we do not decide, the legislature's power could not

extend to the commutation of sentences, an area explicitly and

exclusively granted to the executive. See Me. Const. art. V, pt.

1, § 11; State v. Hunter, 447 A.2d at 800, 803. The very fact of

a branch other than the executive branch acting to commute

sentences is an interference with the executive's explicit and

exclusive grant of the commutation power. See Me. Const.

art. III, § 2.

II.

The petitioners next argue that section 1253(3) does not

interfere with the Governor's exclusive power to commute

sentences because the Governor's signature on the legislation

constituted a general commutation rather than the ultimate

step in the legislative process. The legislative history of

section 1253(3) reveals, however, that the legislature never

intended the statute to be an alternative method of applying

to the Governor for a reduction in sentence. Nor is there any

evidence that the Governor intended that his signature would

be a blanket exercise of his commutation power, rather than an

exercise of his duty under article IV, part 3, section 2 either to

sign into law or to veto legislation presented to him from both

houses of the legislature. A *481 statutory enactment does

not lose its status as an act of the legislature merely because

the Governor signs the bill into law.

III.

Finally, the petitioners assert that the state is estopped from

challenging the constitutionality of section 1253(3). Their

contention is without merit. The law of Maine is in accord

with the general rule that when the legislature acts in its

governmental or sovereign capacity, the doctrine of estoppel

does not apply. John Donnelly & Sons v. Maller, 453 F.Supp.

1272 (D.Me.), rev'd on other grounds 639 F.2d 6, aff'd 453

U.S. 916, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981).

The entry must be:

Judgment affirmed.

All concurring.

All Citations

488 A.2d 477

Gilbert v. State, 505 A.2d 1326 (1986)

505 A.2d 1326

Supreme Judicial Court of Maine.

Andre Roger GILBERT

STATE of Maine.

Argued Nov. 19, 1985.

Decided Feb. 28, 1986.

Synopsis

Prisoner brought petition for postconviction relief. The

Superior Court, Cumberland County, dismissed petition, and

prisoner appealed. The Supreme Judicial Court, McKusick,

C.J., held that: (1) statutory amendments, providing that

parole board could grant full discharge to prisoner if

he successfully served ten years of parole, could not

constitutionally be applied to prisoner who was required to

serve full life sentence at time of conviction, and (2) parole

provisions, which would have allowed parole board to grant

defendant parole after 15 years in prison, could be severed

from unconstitutional portions of statutory amendments and

constitutionally applied to prisoner.

Vacated and remanded.

Procedural Posture(s): On Appeal.

Attorneys and Law Firms

*1326 Verrill & Dana, Kurt E. Olafsen (orally), Charles A.

Harvey, Portland, for plaintiff.

James E. Tierney, Atty. Gen., Joseph A. Wannemacher

(orally), Asst. Atty. Gen., Criminal Div., Augusta, for

defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS,

WATHEN and SCOLNIK, JJ.

Opinion

McKUSICK, Chief Justice.

In his petition for post-conviction relief, Andre Roger Gilbert,

who in 1951 was sentenced *1327 for life to Maine State

Prison, contends that the Parole Board erred in 1975 in

revoking his prior parole and in consistently denying him

parole ever since. On the authority of Bossie v. State, 488 A.2d

477 (Me.1985), the Superior Court (Cumberland County)

dismissed Gilbert's petition on the ground that the relief he

seeks, parole and ultimate discharge, is of the type that neither

the court nor the Parole Board has any power to grant to

him because he was sentenced to life imprisonment at a

time when the applicable statutes denied parole to a “lifer.”

On Gilbert's appeal, we vacate that dismissal, holding that

parole, without discharge, of a lifer pursuant to a parole statute

enacted subsequent to his sentencing does not constitute an

unconstitutional encroachment on the Governor's exclusive

power of commutation.

On June 29, 1951, Gilbert was convicted of murder and given

the life sentence then mandated by R.S. ch. 117, § 1 (1944). In

addition, the statute governing parole in 1951, R.S. ch. 136, §

12 (1944), made Gilbert ineligible for parole at any time.

After Gilbert's imprisonment, however, the legislature passed

a succession of amendments that extended parole eligibility

to persons serving life sentences. In 1953 a lifer was made

eligible for parole after 30 years of imprisonment. P.L. 1953,

ch. 382. In 1959, further revisions allowed a lifer to reduce

that 30-year minimum by good behavior, and also vested the

Parole Board with discretionary authority to give him a full

discharge from his life sentence after he had successfully

completed 10 years of parole. P.L. 1959, ch. 312, §§ 6, 13.

Moreover, in 1969 the 30-year minimum was cut to 15 years,

and that new minimum could be further reduced by good

behavior. P.L. 1969, ch. 280.

The substance of the post-1951 amendments as

applicable to a person in Gilbert's circumstance

is encompassed within 34–A M.R.S.A. §§

5801–5810 (Supp.1985–1986). See id. § 5803(3)

(lifer eligible for parole board hearing prior to

expiration of 15 years of imprisonment, less

deduction for good behavior), and § 5809 (no

discharge for lifer in less than 10 years after release

on parole).

By the terms of these amendments to the parole statute, all

enacted after his 1951 mandatory sentence for life, Gilbert,

having served 18 years in prison, became in 1969 eligible for

parole and eventual discharge. In fact, Gilbert was paroled

several times between 1969 and 1973. In 1975, however,

Gilbert pleaded guilty to aggravated assault and battery,

Gilbert v. State, 505 A.2d 1326 (1986)

committed while he was on parole, and was given a sentence

of 2 ½ to 5 years to be served consecutively with his life

sentence. Because of the new crime, the Parole Board revoked

Gilbert's parole. At all times since, the Parole Board has

denied his repeated requests to be paroled.

On March 5, 1984, Gilbert filed in the Superior Court the

petition for post-conviction review that is the subject of

this appeal. He challenged, inter alia, the validity of the

Parole Board's revocation of his parole and the legality of

his 1975 sentence. The Superior Court refused to reach the

substantive issues that Gilbert attempted to raise. Instead, the

court held that he should never have been granted parole, and

never hereafter may be granted parole, because application

of the post-1951 parole statute amendments to Gilbert, who

was sentenced to a mandatory life imprisonment without the

possibility of parole, infringes upon the Governor's exclusive

constitutional power to commute sentences after conviction.

In light of that holding, the Superior Court dismissed Gilbert's

petition.

II.

The Maine Constitution explicitly vests the Governor

with the exclusive power to reduce criminal sentences

after conviction *1328 through the use of reprieves,

commutations, and pardons. Me.Const. art. V, pt. 1, § 11

(1985).

Article III, section 2 of the Maine Constitution,

moreover, provides for the strict separation of powers

between the three branches. State v. Hunter, 447 A.2d 797,

799–800 (Me.1982). As a result, a legislative enactment that

works a sentence reduction equivalent to a commutation will

be viewed as an unconstitutional violation of the separation

of powers. Bossie v. State, 488 A.2d at 480.

Me.Const.art V, pt. 1, § 11 (1985) provides:

[The Governor] shall have power to remit after

conviction all forfeitures and penalties, and to

grant reprieves, commutations and pardons, except

in cases of impeachment, upon such conditions,

and with such restrictions and limitations as may

be deemed proper, subject to such regulations as

may be provided by law, relative to the manner

of applying for pardons. Such power to grant

reprieves, commutations and pardons shall include

offenses of juvenile delinquency.

In Bossie, for example, we struck down as unconstitutional

a statute increasing “good time” deductions available to

prisoners committed to custody before its effective date. The

new statute violated the separation of powers between the

legislature and the Governor because when applied to inmates

sentenced before its enactment, it acted to commute the length

of existing sentences. In this case, therefore, we must address

the question whether the amendments in the parole scheme

made after Gilbert's 1951 sentencing and incarceration act as

a commutation of his sentence.

As we noted in Bossie, legislative acts that “commute”

sentences are those that shorten the length of time a previously

convicted and sentenced inmate must serve. 488 A.2d at 479–

80. Parole, however, does not shorten the length of a sentence.

Instead, parole is a change in the manner in which a sentence

is served in that the parolee remains under the custody of

the institution from which he is released but executes the

unexpired portion of his sentence outside of confinement.

Collins v. State, 161 Me. 445, 451, 213 A.2d 835, 838 (1965).

See also Hartley v. State, 249 A.2d 38, 39–40 (Me.1969); see

generally 59 Am.Jur.2d Pardon and Parole §§ 78–81 (1971).

Unlike a commutation, the release on parole is conditional,

and the parolee is subject both to the continuing supervision

of his parole officer and to the threat of return to prison to

serve out his sentence there if he violates a condition of parole.

Collins, 161 Me. at 451, 213 A.2d at 838. As we explained in

Mottram v. State, 232 A.2d 809, 813–14 (Me.1967):

Parole ... is a legislative program

of rehabilitation and restoration of

persons convicted of crime to useful

membership in society. The purpose of

the law is to offer the institutionalized

convict the opportunity to make good

on his own outside the prison walls

but under the immediate supervision of

the probation-parole officer to whom

the parolee must report and whose

guidance he may seek at all times. ...

To the extent that the parolee must

strictly observe all the conditions of

his parole and remain within the

area of permitted enlargement of the

prison walls consistent with effective

supervision, he is not a totally free

man.

Gilbert v. State, 505 A.2d 1326 (1986)

See also Morrissey v. Brewer, 408 U.S. 471, 477–78 (1972),

92 S.Ct. 2593, 2598, 33 L.Ed.2d 484; Davidson v. United

States, 598 F.Supp. 926, 928 (N.D.Ind.1984); see generally

Note, Parole Revocation in the Federal System, 56 Geo.L.J.

705 (1968). Because of the inherent differences between

parole and commutation, a grant of parole to Gilbert on the

authority of amendments passed after his conviction would

not amount to a commutation of his sentence in violation of

the constitutional demands of separation of powers.

III.

We cannot, however, reach the same conclusion as to

the constitutionality *1329 of applying to Gilbert the

discharge provision of the post-1951 amendments. In 1959,

the legislature enacted a discharge provision permitting the

Parole Board to make a complete and unequivocal reduction

in a lifer's sentence after 10 years of parole.

P.L. 1959, ch.

312, § 13; now 34–A M.R.S.A. § 5809 (Supp.1985–1986).

Once the Parole Board discharges a lifer, he is no longer

subject to any of the conditions that attach to parole; he

becomes a totally free man. If applied to Gilbert, who was

convicted and sentenced to life imprisonment before the 1959

amendments took effect, the 10-year discharge provision

would act to release him completely from his sentence, which

when imposed in 1951 was by law to terminate only on

his death. Like the “good time” law in Bossie, therefore,

the discharge provision would act as a commutation of

Gilbert's sentence and thereby usurp a power that the Maine

Constitution vests exclusively in the Governor. Cf. Kent

County Prosecutor v. Kent County Sheriff, 350 N.W.2d 298,

301, 133 Mich.App. 611 (1984) (Michigan jail overcrowding

act, which allowed county sheriff to reduce sentences of

inmates already convicted, held to contravene the governor's

exclusive commutation power); Boston v. Black, 340 N.W.2d

401, 408, 215 Neb. 701 (1983) (application of legislatively

created good time sentence reduction provisions to inmates

sentenced previously acts to interfere with separation of

powers in violation of the Nebraska constitution).

Between 1953 and 1959, lifers were entitled to the

same maximum parole period as all other inmates,

i.e., 4 years, and were eligible for automatic

discharge thereafter. R.S. ch. 136, §§ 17, 24 (1944).

This situation came about when the legislature

amended R.S. ch. 136, § 12 (1944) so that the

general parole provisions would apply, after 30

years of imprisonment, to any lifer who had never

been convicted of any other capital crime. P.L.

1953, ch. 382. See part I of this opinion.

IV.

Even if application of the 10-year discharge provision to

Gilbert would be unconstitutional, the Parole Board is not for

that reason barred from granting Gilbert parole. The discharge

provision is severable from the rest of the parole amendments,

and the application of the discharge provision to Gilbert may

be declared unconstitutional without affecting the validity

of applying the parole provisions to him. See, e.g., State v.

Norton, 335 A.2d 607, 617 (Me.1975). In 1959, the year

in which the 10-year discharge provision was enacted, the

legislature also passed a severability clause stating:

The provisions of the statutes are

severable. The provisions of any

session law are severable. If any

provision of the statutes or of a session

law is invalid, or if the application of

either to any person or circumstance is

invalid, such invalidity shall not affect

other provisions or applications which

can be given effect without the invalid

provision or application.

P.L. 1959, ch. 363, § 4.

The legislature codified the

longstanding common law rule of severability which held

that “ ‘[w]here an unconstitutional and invalid portion of a

statute is separable from and independent of a part which is

valid the former may be rejected and the latter may stand.’

” LaFleur ex rel. Anderson v. Frost, 146 Me. 270, 289, 80

A.2d 407, 416 (1951) (quoting Hamilton v. Portland Pier Site

District, 120 Me. 15, 24, 112 A. 836, 840 (1921)). Under

the common law rule of severability and its codification in

1959, the post-1951 parole provisions can be validly applied

to Gilbert even though the discharge provisions were declared

null and void as to him.

Both the discharge provision and the severability

clause became effective on September 12, 1959.

P.L. 1959, ch. 363, § 4 is now codified at 1

M.R.S.A. § 71(8) (1979).

Gilbert v. State, 505 A.2d 1326 (1986)

The entry is:

Judgment vacated.

Remanded to the Superior Court for further proceedings

consistent with the opinion herein.

All concurring.

All Citations

505 A.2d 1326

Maine Policy Review Maine Policy Review

Volume 33 Issue 1

2024

An Extraordinary Pardon An Extraordinary Pardon

Derek P. Langhauser

[email protected]

Follow this and additional works at: https://digitalcommons.library.umaine.edu/mpr

Recommended Citation Recommended Citation

Langhauser, Derek P. . "An Extraordinary Pardon."

Maine Policy Review

33.1 (2024) ,

https://digitalcommons.library.umaine.edu/mpr/vol33/iss1/2.

This Commentary is brought to you for free and open access by DigitalCommons@UMaine.

MAINE POLICY REVIEW•Vol. 33, No. 1•2024 1

COMMENTARY

An Extraordinary Pardon

by Derek P. Langhauser

INTRODUCTION

hen Janet T. Mills rst began

serving as governor of Maine

in 2019, her Board on Executive Clem-

ency received an unusual petition for a

pardon. e brother of a tribal advocate

who died in 2014 requested a post-

humous pardon for a conviction for a

seemingly insignicant crime that his

brother received in 1969. A like petition

led with the preceding governor was

denied without a hearing.

To Governor Mills and her Clem-

ency Board, the petition raised several

provocative questions. Why seek

redemption posthumously aer 50

years? What happened in the oender’s

life during all that time? Why was his

modest oense met with such severe

consequences back then? Why was a

seemingly minor case pursued by the

state’s highest law enforcement

ocials?

To answer these questions, the

board granted a hearing. ereaer, the

governor asked me, as her chief legal

counsel, to look into the matter more

closely. What the governor concluded in

the end is set forth and explained in this

commentary. e fact that the governor

has her own extensive prosecutorial

experience, including serving as the

state’s attorney general, made her con-

clusions all the more interesting.

More broadly, this pardon raised

the prole of the little-noticed clemency

powers. Even though the clemency

power dates back to the original version

of the Maine State Constitution and is

among the most discretionary powers

that a governor has, there has been little

caselaw, scholarship, or commentary on

its use.

Unlike legislation, which is

inherently conceptual, a pardon is

highly personal. A pardon is not the

making of a law, it is an act that judges

the prior application of the law. Because

it is highly personal, it is therefore much

more connective, especially when

granted as a matter of principle to rec-

tify a wrong with an impact still resonat-

ing aer the passage of 50 years. Pardons

such as these have the ability to fuel

policy discussion and progress. Indeed,

since this pardon was issued the gover-

nor and legislature have enacted no

fewer than ve statutes to address a vari-

ety of issues that aect tribal/state

relations.

e purpose of this commentary is

threefold. First, it describes the theory,

origin, purpose, and process of the par-

don power generally. Second, it dis-

cusses the story behind this particular

pardon. ird, it explains how this par-

don helped advance subsequent policy

actions.

THE PARDON POWER

he Maine Constitution confers

upon the governor the authority

to “remit aer conviction all forfeitures

and penalties, and to grant reprieves,

commutations and pardons, except

in cases of impeachment, upon such

conditions, and with such restrictions

and limitations as may be deemed

proper.”



These four powers—remit,

reprieve, commute, and pardon—are

collectively known as the clemency

powers. Pardons are by far the most

commonly used of these powers. Details

about the pardon power and process are

generally not well known. While very

little Maine caselaw interprets this

power, a meaningful number of federal

cases interpret the analogous federal

power of the president.

Indeed, in the

rst case to be decided concerning the

federal pardoning power, Chief Justice

Marshall, speaking for the Supreme

Court of the United States, said, “[T]his

power had been exercised from time

immemorial [as] an act of grace, pro-

ceeding from the power entrusted with

the execution of the laws, which exempts

the individual, on whom it is bestowed,

from the punishment the law inﬂicts for

a crime he has committed.”

In perhaps its most basic terms, a

pardon is a formal expression of forgive-

ness.

A pardon typically says that the

positive things that a person has done

since the time of their conviction

deserve recognition from the govern-

ment that convicted them. As a matter

of law, a pardon relieves a person of any

legal penalties or restrictions that are

attached to or ow from the conviction.

For example, in many states, certain

criminal convictions can restrict a per-

son’s ability to vote, hold oce, serve on

a jury, testify in court, hold certain jobs,

or possess a rearm.

Pardons help peo-

ple clear these and related obstacles to

adoption, housing, school admissions,

immigration status, volunteering, and

occupational licenses.

Pardons apply only to criminal, not

civil, oenses. ey apply to misde-

meanor, felony, adult, and juvenile

oenses alike. State pardons only apply

to state, not federal, oenses; a state

pardon does not immunize (but may

help) a person facing a federal proceed-

ing (such as deportation). Pardons can

only be given once the acts constituting

the crime have been committed. ey

MAINE POLICY REVIEW•Vol. 32, No. 2•2023 2

COMMENTARY: EXTRAORDINARY PARDON

cannot be given proactively before the

commission of such acts because that

would constitute an exemption from or

dispensation of the laws in violation of a

separate constitutional provision

expressly prohibiting such suspension

by the executive.

at said, a pardon can be issued

any time aer the criminal act is com-

mitted, but the eect of a pardon

depends upon when thereaer it is

issued. If a pardon is issued before the

person is arrested, the pardon preempts

any arrest and charges. If it is aer an

arrest, it frees the person if they are

held. If it is aer charges are led, it

eectively dismisses the charges. If it is

otherwise given before conviction, it

ends the prosecution. If it is aer con-

viction, the pardon eliminates the penal-

ties, such as nes, forfeitures, probation,

or incarceration. Finally, pardons can be

absolute or contain conditions (prece-

dent or subsequent), or other restric-

tions and limitations, so the recipient

may still be bound to comply with any of

the above or other restrictions that the

governor preserves.

Judicial interpretation of the legal

signicance of pardons has shied over

time, shaping the contours of the law in

interesting and unexpected ways. For

example, a pardon does not expunge a

record of a conviction, cancel the under-

lying nding of guilt, eradicate any

moral turpitude involved in such guilt,

or create any factual ction that convic-

tion did not occur. It does not wipe out

the lack of honesty or irresponsibility

inherent in the factual predicates that

supported the conviction. A pardon

does not prevent the pardoned oense

from being counted as a prior oense in

future charges or sentences. Aer a par-

don, the fact of conviction cannot be

taken into account in subsequent pro-

ceedings, but the fact that the crime was

committed may still be considered. A

pardon does not imply that a person was

wrongfully convicted by the justice sys-

tem or otherwise proclaim their inno-

cence. On the contrary, acceptance of a

pardon is regarded as a confession of

guilt, or at least acceptance of the exis-

tence of facts from which a judgment of

guilt would follow.

One interesting and recurring ques-

tion where opinions divide is the eect

of a pardon on a person’s answer to the

question, typically on an employment

application, of whether the person has

ever been convicted of a crime. As a

matter of law, the answer is “no” because

the pardon vitiates the conviction. But

morally, which is how, for example, a

prospective employer may be judging it,

the better answer might be “yes,” con-

tinuing with “I was convicted but par-

doned because of how insignicant my

crime was and/or how many great

things I have done since.”

e power to pardon is currently

delegated exclusively to the governor.

e original 1820 version shared the

power “with the advice and consent of

the (Governor’s) council,” but that

requirement was eliminated in 1977

when the governor’s council was elimi-

nated.

Maine is among the minority of

states (joined by two other states and

the District of Columbia) that align with

the United States in having no statuto-

rily required advisory process such that

the locus of the power to pardon rests

exclusively with the executive. Twen-

ty-two states share power between the

governor and a board, nineteen require

a consulting relationship, and six states

have an independent board.

Because the power in Maine is now

exclusive to the executive, the doctrine

of separation of powers prevents the

legislature and judiciary from taking any

action that eectively usurps the power

by limiting, conditioning, or blocking its

use. For this same reason, there is very

little room for judicial review of the par-

don process or its decisions.

Accordingly, a governor’s discretion in

deciding whether or not to pardon has

few recognized limits. One limit is that a

conditional pardon cannot impose a

condition that is “illegal, immoral or

impossible to perform.”

As second

limit may be that a governor cannot par-

don him or herself (for other than

impeachment, which is already expressly

excluded by the Constitution). Such

self-dealing may violate the governor’s

duty to faithfully execute the laws

because the very concept of faithfulness

includes a duciary duty that by deni-

tion excludes tolerance for self-dealing.

Other than that, executive discre-

tion of whether and, if so, how to issue a

pardon is very broad. As a practical

matter, pardons are relatively infrequent

and the standard of persuasion is high. A

governor typically must be persuaded to

a degree of meaningful certainty that the

oense was modest enough to be forgiv-

able and that the individual has the

maturity, character, and discipline to

behave well indenitely so that the deci-

sion will reect well on society, the

individual, and the governor alike. For

these reasons, pardons are typically not

given for violent, sexual, abusive, OUI,

or other egregious or dangerous

oenses, and they are typically not given

if a desired purpose is to restore the

right to possess a rearm.

Decisions therefore typically focus

on the demonstrated character of the

person as weighed against the age and

severity of their oense. Pardons are

most oen given as recognition of reha-

bilitation for good deeds done since

conviction. ey are also given for

mercy, to clear criminal records and

restore the pardoned individual’s good

name, for favor to political or personal

associates, or for citizen or governmen-

tal healing, as with President Ford’s par-

don of Richard Nixon. A pardon is

ultimately a determination that the pub-

lic welfare will be better served by

MAINE POLICY REVIEW•Vol. 32, No. 2•2023 3

COMMENTARY: EXTRAORDINARY PARDON

inicting less than what the conviction

originally xed.

It is common for certain types of

presidential or gubernatorial pardons to

trigger related policy debates and

changes in related law. Grants, and per-

haps more aptly, denials of pardons

oen trigger policy discussions about

the proper balance of the roles of pun-

ishment, deterrence, and rehabilitation

in criminal justice system, particularly

sentencing. is is to be expected. e

concepts of grace, favor, forgiveness,

reformation, and mercy as part of the

criminal justice ambit have deep histori-

cal roots that date back to Mosaic,

Greek, and Roman laws. Indeed, it was

English law that adopted and rened

these ancient concepts and applied

them to the American colonies before

the Revolutionary War in 1776. In 1791,

the Framers of the US Constitution then

incorporated for the president a clem-

ency clause based largely on this English

model.

ere was little debate at the fed-

eral Constitutional Convention of the

pardon power. e Framers primarily

discussed three issues: whether to share

the executive’s power with the legisla-

tive branch, and whether to exclude

treason and impeachment as pardonable

oenses. For the reasons explained by

Alexander Hamilton in

Federalist No.

74,

the power was given solely to the

executive, treason was included, and

impeachment was excluded.

While

Maine followed these leads as well as

other principles of the English tradition,

the Framers of the Maine Constitution

were not, as Maine’s leading state consti-

tutional scholar observed, “mere copy-

ists” (Tinkle 2013), so they chose a

clemency clause that was more explicit

and detailed than its federal

counterparts.

e process for requesting and con-

sidering pardons in Maine is established

by statute, executive order, and agency

procedures.

It starts with a person sub-

mitting a petition form to the Depart-

ment of Corrections (Maine GBEC

2019). Approximately four times per

year, the Governor’s Board on Executive

Clemency reviews these petitions along

with the department’s personal and pro-

fessional background reports, selects

cases for hearings, holds hearings, and

makes recommendations to the gover-

nor. Granted pardons are memorialized

on a warrant that is led with various

governmental and law enforcement

agencies around the state. e whole

process typically takes about a year, and

persons denied a pardon must wait one

year before reapplying. Over the last 20

years, annual clemency petition rates

have varied from a low of about 60 to a

high of over 200, with the boards com-

monly granting hearings to approxi-

mately 10 petitions per meeting. Despite

these uctuations, recent Maine gover-

nors have been relatively consistent in

how oen they grant pardons, as their

grant rates do not vary appreciably.

PARDON OF DONALD GELLERS

n 2019, a family attorney led a pardon

petition for Donald C. Gellers, also

known as Tuvia Ben-Shmul Yosef, for

his 1969 conviction for the constructive

possession of six marijuana cigarettes

(Oce of the Governor 2020). e case

was extraordinary for several reasons.

First, it was a posthumous pardon; Mr.

Gellers passed away in 2014 at age 78.

It was clear that the governor had the

authority to issue a posthumous pardon,

but it did not appear that a posthumous

pardon had ever been issued in Maine

before. Second, it had been over 50

years since Mr. Gellers was convicted,

a much longer time than that for which

pardons are typically granted. Finally,

because so much time had passed, the

le consisted of hundreds of pages

of court documents, court opinions,

news accounts, letters, and statutes for

review.

In 1963 aer being honorably dis-

charged from the New York National

Guard, Mr. Gellers came to Maine to live

and practice law. He settled in Eastport

where he opened his law oce. He soon

came to represent the Native American

tribal leaders and tribal members who

“could not nd counsel elsewhere

during a time of great prejudice and dis-

crimination; a time when few if any

others were willing to help the tribal

members with their legal problems”

(Oce of Governor 2020). During his

eight years in Eastport, Mr. Gellers

worked tirelessly for the Native Ameri-

can people, oen for little or no pay.

In 1968, Mr. Gellers led what was

the beginning of the momentous land

claims suit on behalf of the Passama-

quoddy tribe. By 1975, the subject mat-

ter of this claim would be decided in a

landmark opinion by the federal appeals

court in Boston in a related case that led

to an $81.5 million settlement codied

by Congress in 1980.

Before that would

come to pass, between 1968 and 1971,

Mr. Gellers worked on local tribal mat-

ters of all kinds. He represented peaceful

protesters, helped rehome native chil-

dren from non-native homes, and chal-

lenged state jurisdiction of minor

oenses committed on a reservation. He

advocated for state ocials to repair

leaking sewage systems and implored

Princeton barbers to cut tribal mem-

bers’ hair. He lobbied to repeal laws

prohibiting tribal members from hunt-

ing on their own land and advocated for

the state to create a new Indian Aairs

Department. He also helped prompt an

investigation of an “unscrupulous state

ocial who had eective powers of life

and death over tribal members through

his control of access to food, medical

care, and fuel” (Oce of Governor

2020).

MAINE POLICY REVIEW•Vol. 32, No. 2•2023 4

COMMENTARY: EXTRAORDINARY PARDON

In 1969, Mr. Gellers was convicted

and subsequently disbarred from prac-

ticing law in Maine for unlawful con-

structive possession of six marijuana

cigarettes that were found in his home.

ereaer, he emigrated to Israel where

he was admitted without reservation to

practicing law aer a personal review of

the circumstances surrounding his

Maine conviction by the Principal Legal

Assistant to the Attorney General of

Israel. Mr. Gellers also studied to

become a rabbi and later moved back to

New York. In 1989, aer disclosing all

the circumstances of his Maine convic-

tion, the United States Court of Appeals

for the First Circuit issued him a certi-

cate of good standing. By then, though,

his work had moved from attorney to

rabbi, and up until his death in 2014, Mr.

Gellers used his faith to continue to help

“people without means; people without

ready access to help; people seeking the

solace of faith from the burdens of their

lives” (Oce of the Governor 2020).

It was in part for all these “tireless

eorts to help others the whole of his

life–both for his eight years in Maine

and in the 35 years since his conviction”

that Governor Mills pardoned Mr.

Gellers (Oce of the Governor 2020).

But there was also another reason, and

the governor spoke directly to it:

Many have long claimed that a motiva-

tion to arrest Mr. Gellers was not just to

enforce the state’s criminal laws, but also

to thwart his outspoken political and le-

gal advocacy. Aer reviewing the histor-

ic record of this case, I nd that there is

merit to this claim.

Mr. Gellers and his houseguest, Alfred

Cox, were arrested immediately aer

Mr. Gellers led the original land claims

lawsuit on behalf of the Passamaquod-

dy Tribe. e charge was unlawful con-

structive possession of six marijuana

cigarettes that were found in Mr. Gellers’

home. Mr. Gellers was convicted on only

one of his three counts, sentenced to two

to four years imprisonment and, because

he now had a felony conviction, he was

disbarred from practicing law in Maine.

Even the chief of the State Police in pub-

lic comments at the time recognized

that a felony charge for small personal

possession was “so severe” that it was

“dicult to get proper adjudication[s].”

is is why, even before Mr. Gellers’ tri-

al started, the legislature was working

on a bill to downgrade the oense to a

misdemeanor. is new law, PL 1969,

c. 443, took eect

two years before

[em-

phasis added] Mr. Gellers’ appeal was

decided and

three years before

[emphasis

added] his disbarment was ordered. It is

not clear why this signicant and time-

ly change in the law did not temper the

state’s discretion in prosecuting and dis-

barring Mr. Gellers.

ree additional facts inform our obser-

vations in this case. First, Mr. Gellers’

arrest, trial and appellate oral argument

were all handled by the State’s top of-

cials; a unique level of attention to a

small personal possession case.

Second, although the State consistently

defended at both trial and on appeal its

decision to charge Mr. Gellers as a felon,

it did not in the end insist that he serve

his two to four-year felony sentence. Mr.

Gellers instead le the country without

the State either trying to stop or extra-

dite him back. It would have been only

the felony conviction, regardless of time

served, that was needed, and was in fact

used, to disbar Mr. Gellers and thereby

end his advocacy in Maine.

Finally, the penalty for the co-defendant,

Mr. Cox, was only to forfeit the $500 bail

that had been posted for him. So, in the

end, Mr. Cox simply forfeited that mini-

mal bail while Mr. Gellers was deprived

of his entire livelihood. is is true even

though Mr. Cox was the one who was in

actual possession of the six marijuana

cigarettes. But Mr. Cox was also not the

legal and social advocate that Mr. Gellers

was. (Oce of the Governor 2020)

Legal professionals no less promi-

nent than the US Court of Appeals for

the First Circuit and the principal legal

assistant to a national attorney general

could agree in seeing that Mr. Gellers’

Maine oense was insignicant and not

worthy of any profound permanent

punishment as felony conviction and

ongoing disbarment. Mindful of this and

all of the above, the governor came to

this principled conclusion:

While this pardon cannot undo the many

adverse consequences that this convic-

tion had upon Mr. Gellers’ life, it can

bestow formal forgiveness for his viola-

tion of law and remove the stigma of that

conviction. Let it also remind us of these

guiding truths: at, when enforcing

the law, proportionality is an essential

component of fundamental fairness, and

that fundamental fairness is the essential

moral and legal promise that a thought-

ful government makes to its people. And

that history will long judge whether and

how that promise is kept. (Oce of the

Governor 2020)

POLICY DEVELOPMENTS

SINCE THE GELLERS’ PARDON

residential and gubernatorial

pardons oen trigger related policy

debates and changes in policy or law.

For example, federal pardons for

oenses by draees have oen been

regarded as policy statements on the

war the draees were conscripted to

support.

State pardons for immigrants

have recently been viewed as state-

ments on federal enforcement actions at

the border. Federal pardons of oenses

related to highly charged political

times have been viewed as salves for

old wounds. State pardons of juvenile

oenses may be regarded as bellwethers

for larger policy issues regarding juve-

nile justice. And pardons for many

types of oenses, or more aptly denial

of such pardons, oen trigger policy

debates about the proper balance of the

roles of punishment, deterrence, and

rehabilitation in criminal sentencing.

e Gellers’ pardon was issued in

January 2020, just before the pandemic

started. In Governor Mills’ first

MAINE POLICY REVIEW•Vol. 32, No. 2•2023 5

COMMENTARY: EXTRAORDINARY PARDON

legislative session in 2019, two tribal-re-

lated measures became law with her

active support: an act banning Native

American mascots in schools and an act

governing water quality standards to

protect sustenance shing (“Sustenance

Fishing Act”). e Sustenance Fishing

Act was highly substantive, an accom-

plishment of national signicance that

was the product of months of intense

negotiations. en, in her second ses-

sion in 2020 when the Gellers’ pardon

was being issued, the governor drew on

her deep criminal law expertise to dra

legislation extending jurisdiction of

tribal courts to prosecutions of domes-

tic violence oenders.

e pandemic in 2020 brought a

prompt end to the regular process of

lawmaking. It was in this space that per-

haps the Gellers’ pardon helped con-

tinue the momentum of the previous

sessions. Unlike legislation, which is

inherently conceptual, a pardon is

highly personal and therefore much

more connective, especially when

granted as a matter of principle to rec-

tify a wrong with an impact still resonat-

ing aer the passage of 50 years.

e rst regular session of 130th

Maine State Legislature in January 2022

marked the legislature’s return to more

regular lawmaking activities. In that ses-

sion, the governor, legislature, and

tribes worked to enact an important law

that addressed drinking water issues on

the Pleasant Point Reservation. ey

also collaborated to enact a law that gave

certain tax benets to tribal communi-

ties and an opportunity to benet from

online sports wagering and other bene-

ts.

is legislation was lengthy and

the result of extended negotiation. It

provided the four tribes exclusive rights

to operate online sports wagering in

Maine and established a nationally

unique tribal-state collaboration process

that requires state agencies to collabo-

rate with the tribes on issues in which

the tribes have a unique and substantial

interest. Maine is now the only state in

the country that has codied such a pro-

cess beyond mere policy.

In the following session in 2023, the

governor, legislature, and tribes again

worked together. Although agreement

was not reached on one bill,

three

other measures did become law. e

rst improved the functioning of the

Maine Indian Tribal-State Commission.

A second extended to the Mi’kmaq

Nation the same rights and benets

enjoyed by other Wabanaki Nations in

Maine. is too was substantial legisla-

tion that also applied to the Houlton

Band of Maliseet Indians. ose tribes

had limited jurisdictional authority pre-

viously, and this bill put them on equal

footing with the Penobscot Nation and

Passamaquoddy Tribe. Finally, a third

enactor, the Maine Indian Child Welfare

Act, preserved the rights of Indian fami-

lies during custody and child welfare

proceedings involving Indian children.

In the 2024 legislative session, col-

laborative work on other issues contin-

ued. e First Annual State and Tribal

Summiton November 17, 2023, hosted

by the governor at the Blaine House

helped continue the dialogue between

the state and the tribes. And at the time

this article was printed, the Tribes, Gov-

ernor, and Judiciary Committee agreed

to recommend to the House and Senate

a measure that would authorize tribal

courts to prosecute certain crimes com-

mitted on tribal land involving, in most

cases, at least one member of a federally

recognized tribe.

Work on matters

with complex legal consequences is

always iterative, but the clear progress

since 2019 continues.

CONCLUSION

nlike legislation, which is inher-

ently conceptual, a pardon is

highly personal and therefore oen

much more connective, especially

when granted as a matter of principle

to rectify a wrong with an impact still

resonating aer the passage of 50 years.

e governor’s posthumous pardon

in 2020 for the 1969 oense involving

tribal advocate Donald Gellers was an

important statement of principles that

were both personal to Mr. Gellers and

broader to tribal/state relations. Since

then, the governor, the tribes, and the

legislature have in relatively short order

enacted at least ve noteworthy tribal/

state measures. Perhaps it was that

pardon, a historical act of principle and

grace, that contributed to the worthy

progress in tribal/state relations.

ACKNOWLEDGMENTS

The author acknowledges the excellent

research by Nancy Rabasca of Cleaves Law

Library and thoughtful reviews by attorney

Holly Peterson in contributing to this article. +

NOTES

1 There is still reason to agree with the

conclusion of a 1939 report by the US

Attorney General that there has “never

been an adequate treatment of the subject

of pardon. [It] has been a neglected

orphan, allowed to grow without benefit of

careful grooming which has been accorded

other branches of law” (Ruckman 1995: 2).

2 Me. Const. art. V, pt. 1, §11.

3 To

remit

means to cancel or refrain from

exacting or inflicting a debt or other

punishment. These requests are rare. To

reprieve

means to cancel or postpone a

punishment. This power was designed

primarily for application to death penalty

sentences, which Maine authorized when

the Constitution was adopted in 1820. This

provision was effectively mooted when

the death penalty was finally abolished

(after a preceding repeal and restoration)

in 1887. Only the remaining two are active

today. A

commutation

is a reduction of a

judicial sentence to one less severe. These

requests are relatively few, and a grant

is very rare.

Pardons

represent the vast

majority of petitions.

U.S. Const. art. II, § 2 provides that

the president “shall have power to grant

reprieves and pardons for offenses against

the United States, except in cases of

impeachment.”

MAINE POLICY REVIEW•Vol. 32, No. 2•2023 6

COMMENTARY: EXTRAORDINARY PARDON

U.S. v. Wilson,

32 U.S. 150, 160 (1833).

5 The related concept of amnesty is essen-

tially identical to pardon in ultimate effect.

The principal distinction is that amnesty

typically is extended to classes of persons

instead of single individuals (

Brown v.

Walker,

161 U.S. 591, 601–02 [1896];

Knote v.

United States,

95 U.S. 149, 152–53 [1877]).

6 The only of these restrictions that Maine

has is firearm dispossession (15 MRS §

393).

7 Sources for this paragraph are (in order of

appearance) found in

Angle v. Chicago, St.

P., M. & O. Ry. Co.,

151 U.S. 1, 19 (1894)(“An

executive may pardon and thus relieve a

wrongdoer from the punishment the public

exacts for the wrong, but neither executive

nor legislature can pardon a private wrong,

or relieve the wrongdoer from civil liability

to the individual he has wronged.”);

In re

Bocchiaro,

49 F. Supp. 37, 38 (W.D.N.Y.

1943);

Ex parteGarland,

71 U.S. 333, 380

(1866); and Me. Const. art. I, § 13.

8 The Maine Constitution expressly limits

remissions to “after conviction,” but that

limitation does not appear to apply to

pardons (art. V, pt. 1, § 11). The express

authority to issue conditional pardons was

added by constitutional Amendment XV in

1876 (

Accord U.S. v. Wilson,

32 U.S. 150, 161

[1833];

Kavalin v. White,

44 F.2d 49, 51 [10th

Cir. 1930]). Note that a person who objects

to a condition can reject the pardon (

Hoa

v. Saxbe,

378 F. Supp. 1221, 1241-42 [D.D.C.

1974]).

9 Sources for this paragraph are (in order of

appearance) found in

Pardoning Power,

11 Op. Atty. Gen. 228 (1865);

Hirschberg

v. Commodity Futures Trading,

414

F.3d 679, 682 (7th Cir. 2006) (denying a

commodity futures trading license for that

reason);

Carlesi v. New York,

233 U.S. 51,

59 (1914)(pardoned offense could still be

considered as an aggravating circum-

stance under a state habitual-offender law);

Grossgold v. Supreme Court of Illinois,

557 F.2d 122 (7th Cir. 1977) (denying a law

license for that reason). See also

United

States v. Flynn,

507 F. Supp. 3d 116, 136

(D.D.C. 2020).

10 Me. Const. amend. CXXIX. A related provi-

sion requiring the governor to provide

the legislature with certain information

about acts of clemency was eliminated by

Amendment XC in 1964.

11 See Restoration of Rights Project, “50-State

Comparison: Pardon Policy & Practice.”

https://ccresourcecenter.org/state

-restoration-profiles/50-state

-comparisoncharacteristics-of-pardon

-authorities-2/.

12 The Maine Constitution expressly provides

that the legislature can only regulate the

manner of applying for a pardon (Me.

Const. art. V, pt. 1, § 11). To that end, the

legislature has enacted 15 MRS §§ 2161-67.

Otherwise, because the power flows from

the Constitution, it can only be altered

by constitutional amendment (

Schick v.

Reed,

419 U.S. 256, 266 [1974]). For case

examples of usurpations regarding the

related commutation power, see

Bossie v.

State,

488 A.2d 477 (Me. 1985);

Baston v.

Robbins,

153 Me. 128 (1957) (intrusion by

the legislature);

State v. Hunter,

447 Me.

797 (1982) (intrusion by the legislature and

the courts);

State v. Sturgis,

110 Me. 96

(1912) (intrusion by the courts);

Austin v.

State,

663 A.2d 62 (Me. 1995) (intrusion by

the parole board);

Solesbee v. Balkcom,

339 U.S. 9, 12 (1950) (judicial review).

13 See Tinkle (2013) and

Accord, Conditional

Pardons,

1 Op. Atty. Gen. 482 (1821).

14 For example, Governor LePage reportedly

granted late pardons—without public

hearings—to his late mentor’s grandson

and a former friendly lawmaker (Villenueve

2019a).

In declining to overturn President Ford’s

pardon of former President Nixon, a federal

judge made this observation:

In view of fact that public clamor over former

President’s alleged misdeeds in office had

not immediately subsided on his resignation

and that at the same time the country was in

grips of apparently uncontrollable inflationary

spiral and an energy crisis of unprecedented

proportions, it was not unreasonable for the

successor to the office to conclude that the

public interest required that positive steps

be taken to end the division caused by the

scandal and to shift the focus of attention

to the more pressing social and economic

problems [by] taking steps to restore the tran-

quility of the commonwealth by a well-timed

offer of pardon (

Murphy v. Ford,

390 F. Supp.

1372, 1374 [W.D. Mich. 1975]).

Biddle v. Perovich,274 U.S. 480, 486 (1927).

15 For an excellent if not seminal historical

account of the development of clemency

powers, see US DOJ (1939). See also, U.S.

Const. art. II, § 2. For federal clemency

procedural rules, see 28 C.F.R. pt. 1, §§

1.1-.11.

Federalist No. 74.

As regards which branch

should have the power, those against

giving the legislature a role in the pardon

process argued that a body “governed

too much by the passions of the moment”

was “utterly unfit for the purpose” and

that such individualized determinations

would be inconsistent with the legislative

role (Farrand 1911: 626). Executive-held

power was desirable because such a

power “should be as little as possible

fettered or embarrassed” to ensure “easy

access to exceptions in favour of unfortu-

nate guilt;” that a single person would be

“a more eligible dispenser of the mercy

of the government than a body of men”

who “might often encourage each other

in an act of obduracy, and might be less

sensible to the apprehension of suspicion

or censure for an injudicious or affected

clemency”(Farrand 1911: 626).

State v. Hunter,

447 Me. 797, 802-03 (1982)

(English tradition). Tinkle (2013: 9) also

noted Thomas Jefferson’s praise of the

Maine Constitution for its tight language

and “wisdom in every point.”

18 See 15 MRS §§ 2161-67, Me. Exec. Order

No. 6 FY 19/20 (Mar. 6, 2019); https://www.

maine.gov/corrections/pardonboard.

19 Maine governors have a long tradition of

using advisory panels to review and make

recommendations on petitions for pardon

or clemency. The current board consists

of five persons appointed by the governor

who are “Maine citizens who have knowl-

edge of the criminal justice system and the

interests served by conferring clemency

in appropriate cases” (Me. Exec. Order

No. 6 FY 19/20). The petitions selected for

hearing, the hearing, and the warrant for

any pardons granted by a governor are

public records and meetings. The other

petitions, board deliberations and recom-

mendations, the governor’s deliberations,

and all other related records are confiden-

tial by law (Me. Exec. Order No. 6 FY 19/20;

1 MRS § 402(2)(F) and (3)(J) and § 403(6)).

This approach is designed to respect the

legitimate privacy interests of the peti-

tioners. For example, during their respec-

tive eight years, Republican Governor

LePage issued at least 240 pardons to 112

people. Democratic Governor Baldacci

issued approximately 218 pardons to 141

people. Independent Governor King issued

154 pardons to 100 people. See Villeneuve

(2019b).

20 Litigated in

Joint Tribal Council of the

Passamaquoddy Tribe v. Morton,

528 F.2d

370 (1st Cir. 1975) and codified by Congress

in 25 U.S.C. §§ 1721-25.

21 Of these experiences Mr. Gellers wrote to

friends:

I was dealing with a people [who] had

known so many defeats that hope, itself, was

a victory. . . . Before I came, Indians died of

malnutrition, and burned up in their shacks.

Getting arrested for anything meant getting

convicted. Living meant begging the Welfare

MAINE POLICY REVIEW•Vol. 32, No. 2•2023 7

COMMENTARY: EXTRAORDINARY PARDON

Indian Agent for groceries and clothes, having

children taken from parents and placed for

adoption in non-Indian homes, not voting for

the Legislature or serving on juries, and [only]

occasionally talking about treaty rights no

one ever respected. I [helped stop] all that,

and [I did] it peacefully (Office of Governor

2020).

22 For example, general war-related amnes-

ties were issued by Presidents Washington,

Adams, Madison, Lincoln, Andrew Johnson,

and Theodore Roosevelt.

23 PL 2019 Ch. 123 (mascots); PL 2019, Ch.

463 (fishing); PL 2020, Ch. 621 (tribal court

jurisdiction).

24 PL 2022, Ch. 650 (drinking water); PL

2022, Ch. 681 (sports betting).

25 LD 2004 (proposing a variety of complex

measures); objections stated in Governor

Mills’s veto letter and in her radio address:

https://www.maine.gov/governor/mills

/news/radio_address/why-i-vetoed-ld

-2004-2023-07-07; the legislature sustained

the objections.

26 PL 2023, Ch. 370 (Maine Indian Tribal-State

Commission); PL 2023, Ch. 369 (Mi’kmaq

Nation); PL 2023, Ch. 359 (child custody).

27 Committee Amendment (Majority Ought

to Pass as Amended Report in 2024) to LD

2007 (carried over from 2023).

REFERENCES

Farrand, Max, ed. 1911.

The Records of the Federal

Convention of 1787.

New Haven, CT: Yale

University Press.

Maine GBEC (Governor’s Board on Executive

Clemency). 2019. “General Information

Regarding Executive Clemency.” Augusta:

Maine Department of Corrections. https://

www.maine.gov/corrections/pardonboard.

Office of Governor Janet T. Mills. 2020. “Governor

Mills Issues Posthumous Pardon for Former

Passamaquoddy Advocate Donald Gellers.”

News release, January 7, 2020. https://www

.maine.gov/governor/mills/news/governor

-mills-issues-posthumous-pardon-former

-passamaquoddy-advocate-donald

-gellers-2020-01.

Ruckman, P.S. 1995. Federal Executive Clemency

in United States, 1789–1995: A Preliminary

Report. https://ssrn.com/abstract=2214593.

Tinkle, Marshal J. 2013.

The Maine State

Constitution,

2nd edition. New York: Oxford

University Press.

US DOJ (Department of Justice). 1939.

Attorney

General’s Survey of Release Procedures,

Vol. 3: Pardon.

Washington, DC: Government

Printing Office.

Villenueve, Marina. 2019a. “LePage Granted Late

Pardons without Traditional Public Hearing.”

Portland Press Herald,

April 14, 2019.

Villenueve, Marina. 2019b. “LePage Pardoned His

Late Mentor’s Grandson, 111 Others for Range

of Crimes.”

Portland Press Herald,

March 27,

2019.

Derek Langhauser

is a Maine attorney

who has been chief legal counsel to Maine

Governors Mills and McKernan, special

counsel to a US Senator, and law clerk to two

state Supreme Court Justices. He teaches

constitutional law, is a member of the Council

of the American Law Institute, a Fellow of

American Bar Foundation, and a Fellow

of the National Association of College and

University Attorneys.

Prepared by Nonpartisan staff, OPLA, 7/9/2024 1

Clemency Provisions in State Constitutions and Statutes

In six states (AL, CT, GA, ID, SC and UT), clemency power resides solely with an independent board. In 4 states (FL, MN, NE, NV), the Governor shares clemency power with a

board, whose membership includes the Governor. In 10 states (AZ, DE, LA, MA, NH, OK, PA, RI, SD and TX) the board acts as a gatekeeper on the Governor’s clemency decisions.

In 8 states (AK, AR, KS, MI, MO, MT, OH and WA), the Governor is required to consult with the board on clemency decisions. In 19 states (CA, CO, HI, IL, IN, IA, KY, MD, MI,

NJ, NM, NY, NC, ND, TN, VT, VA, WV and WY) the Governor may consult with a board on clemency decisions. In 2 states (OR and WI), there is no board advisory process.

State

Constitutional Provisions Regarding Clemency

Statutory Provisions Regarding Clemency and the

Effect of a Pardon on a Criminal Record

Clemency Provisions Involving

the Legislature

Maine

The Governor shall have power to remit after conviction all

forfeitures and penalties, and to grant reprieves, commutations and

pardons, except in cases of impeachment, upon such conditions, and

with such restrictions and limitations as may be deemed proper,

subject to such regulations as may be provided by law, relative to the

manner of applying for pardons. Such power to grant reprieves,

commutations and pardons shall include offenses of juvenile

delinquency. Me. Const. Art. V, pt. 1, §11

• The Probation and Parole Board is authorized, “when

requested by the Governor,” to investigate pardon

cases, and to make recommendations to the

Governor. All information gathered by the Division

is confidential. Me. Rev. Stat. Ann. tit. 34-A, 5210

(4)

• The Governor is assisted by the non-statutory

Governor’s Board on Executive Clemency,

composed of three members appointed by the

Governor. The Board is tasked with making

recommendations to the governor on each pardon

petition, and by executive order is charged with

holding public hearings on such petitions. The final

decision on a clemency petition rests solely with the

Governor. Me. Exec. Order 25 FY 11/12 (Nov. 1,

2011); DOC Pardon Board and Executive Clemency

website

Criminal justice agency records concerning a pardoned

conviction are considered confidential and are available

only under certain conditions. 16 MRSA §705

. Ten years

after the final discharge of 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. M.R.S.A. 15 §2167

Alabama

The Governor shall have power to grant reprieves and commutations

to persons under sentence of death. Ala. Const. Amendment 38

• The Legislature created the Board of Pardon and

Parole to administer pardons and parole, remission of

fines and forfeitures and make decisions on

probation. The Board is composed of three members

appointed by the Governor with confirmation by the

state senate. The chairperson is designated by the

governor.

Ala. Code §§15-22-20 et seq.

• The Board must make a full annual report to the

Governor. Ala. Code §15-22-24(b)

The Legislature shall have power

to provide for and to regulate the

administration of pardons, paroles,

remission of fines and forfeitures

and may authorize the courts

having criminal jurisdiction to

suspend sentence and to order

probation.

Ala. Const. Amendment

Prepared by Nonpartisan staff, OPLA, 7/9/2024 2

State

Constitutional Provisions Regarding Clemency

Statutory Provisions Regarding Clemency and the

Effect of a Pardon on a Criminal Record

Clemency Provisions Involving

the Legislature

A person who been granted a certificate of pardon with

restoration of civil and political rights for a conviction

from the Board of Pardons and Paroles may apply to have

conviction records expunged 180 days after a pardon was

granted. Ala. Code §15-27-2 (c)

Alaska

Subject to procedure prescribed by law, the Governor may grant

pardons, commutations and reprieves, and may suspend and remit

fines and forfeitures.

AK Const. Art. 3, § 21

The Governor may not grant executive clemency to a

person unless the governor has first provided notice of

consideration of executive clemency to the board of

parole for investigation and at least 120 days have

elapsed since the notice. Alaska Stat. Ann. §33.20.080

Arizona

The Governor shall have power to grant reprieves, commutation and

pardons, after convictions, for all offenses except treason and cases of

impeachment, upon such conditions and with such restrictions and

limitations as may be provided by law. AZ Const. Art. 5 §5

No reprieve, commutation or pardon may be granted by

the governor unless it has first been recommended by the

Board of Executive Clemency.

A.R.S. §31-402

Arkansas

In all criminal and penal cases, except in those of treason and

impeachment, the Governor shall have power to grant reprieves,

commutations of sentence and pardons, after conviction.

AR Const.

Art. 6, §18

The Post-Prison Transfer Board is required to conduct an

investigation on an application for a pardon,

commutation of sentence, reprieve, respite or remission

of fine or forfeiture and make a recommendation to the

Governor. Ark. Code Ann. §16-93-204

Most pardoned offenses are sealed immediately, but

certain serious offenses may not be sealed even if

pardoned. Ark. Code Ann. §16-90-1411

California

Subject to application procedures provided by statute, the Governor,

on conditions the Governor deems proper, may grant a reprieve,

pardon and commutation, after sentence, except in case of

impeachment. The Governor may not grant a pardon or commutation

to a person twice convicted of a felony except on recommendation of

the Supreme Court, 4 judges concurring.

CA Const. Art. 5, §8

(a)Upon request of the Governor, the Board of Parole

Hearings shall investigate and report on all applications

for reprieves, pardons and commutations of sentence and

shall make such recommendations to the Governor with

reference thereto as it may seem advisable. (b)The Board

may make recommendations to the Governor at any time

regarding applications for pardon or commutation, and

the Governor may request investigation into candidates

for pardon or commutation at any time.

Ca. Pen. Code §4812

The Governor shall report to the

Legislature each reprieve, pardon

and commutation granted, stating

the pertinent facts and the reasons

for granting it.

CA Const. Art. 5,

§8

Colorado

The Governor shall have power to grant reprieves, commutations and

pardons after conviction, for all offenses except treason, and except in

case of impeachment, subject to such regulations as may be

prescribed by law relative to the manner of applying for pardons, but

the Governor shall in every case where he may exercise this power,

send to the general assembly at its first session thereafter, a transcript

of the petition, all proceedings, and the reasons for his action.

Colo. Const. Art. IV, §7

(1) Before the Governor approves an application, it must

be first submitted to the present district attorney of the

district in which the applicant was convicted and to the

judge who sentenced and the attorney who prosecuted at

the trial of the applicant, if available, for such comment

as they may deem proper concerning the merits of the

application, so as to provide the Governor with

information upon which to base the Governor’s action.

The Governor shall make reasonable efforts to locate the

The Governor must send to the

general assembly at its first session

after a reprieve, commutation or

pardon is issued, a transcript of the

petition, all proceedings, and the

reasons for the action.

Colo. Const. Art. IV, §7

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judge who sentenced and the attorney who prosecuted at

the trial of the applicant and shall afford them a

reasonable time, not less than fourteen days, to comment

on such applications. The Governor has sole discretion in

evaluating said comments and in soliciting other

comments the Governor deems appropriate.

(2) The Governor may grant pardons to a class of

defendants who were convicted of the possession of up to

two ounces of marijuana. The requirements of subsection

(1) of this section do not apply to defendants who were

convicted of the possession of up to two ounces of

marijuana, but the Governor may make any inquiry as

deemed appropriate to seek any relevant information

necessary from any person or agency to reach an

informed decision.

C.R.S. 16-17-102

A pardoned conviction may be sealed by the court. Colo.

Rev. Stat. §16-17-103; §24-72-710

Connecticut

An independent board appointed by Governor exercises pardon

power. CT Gen Stat § 54-124a.

The Board of Pardons and Paroles shall have independent

decision-making authority to (1) grant or deny parole, (2)

establish conditions of parole or special parole

supervision, (3) rescind or revoke parole or special parole

in accordance, (4) grant commutations of punishment or

releases, conditioned or absolute, in the case of any

person convicted of any offense against the state and

commutations from the penalty of death, (5) discharge

any person on parole or inmate eligible for parole from

the custody of the Commissioner of Correction, and (6)

terminate special parole in accordance with section 54-

129. CT Gen Stat §54-124a.

When an individual is granted an “Absolute Pardon”, an

“erasure” of court records relating to the offense is the

result. Conn. Gen. Stat. §§ 54-142a(d)

Delaware

The Governor shall have power to remit fines and forfeitures and to

grant reprieves, commutations of sentence and pardons, except in

cases of impeachment; but no pardon, or reprieve for more than six

months, shall be granted, nor sentence commuted, except upon the

recommendation in writing of a majority of the Board of Pardons

after full hearing; and such recommendation, with the reasons

The Governor cannot grant a pardon or commutation in

the absence of an affirmative recommendation of a

majority of the

Board of Pardons after a full hearing, but

the Governor is not bound to accept the Board’s

affirmative recommendation, and exercises independent

judgment in all cases submitted to him or her following

The Governor shall fully set forth

in writing the grounds of all

reprieves, pardons and remissions,

to be entered in the register of his

or her official acts and laid before

the General Assembly at its next

session. DE Const. Art. 7, §1

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therefore at length, shall be filed and recorded in the office of the

Secretary of State, who shall forthwith notify the Governor thereof.

DE Const. Art. 7, §1

an affirmative recommendation by the Board. DE Const.

Art. 7, §1

A person convicted of a crime, other than those

specifically excluded involving serious violence, who is

thereafter unconditionally pardoned may request a

discretionary expungement pursuant to Del. Code Ann.

Tit. 11, §4375

Florida

Except in cases of treason and in cases where impeachment results in

conviction, the Governor may, by executive order filed with the

custodian of state records, suspend collection of fines and forfeitures,

grant reprieves not exceeding sixty days and, with the approval of two

members of the cabinet, grant full or conditional pardons, restore civil

rights, commute punishment, and remit fines and forfeitures for

offenses.

FL Const. Art. 4 §8(a); Fla. Stat. §§940.01

The Governor and two members of the Cabinet are

constituted as a Clemency Board. FL Const. Art. 4 §8(a);

Fla. Stat. §§940.01

• In cases of treason the

Governor may grant reprieves

until adjournment of the

regular session of the

Legislature convening next

after the conviction, at which

session the Legislature may

grant a pardon or further

reprieve; otherwise, the

sentence shall be executed. FL

Const. Art. 4 §8(b)

• The Governor must report to

the Legislature each

restoration and pardon granted

at the beginning of each

legislative session. Fla. Stat.

§940.01

Georgia

An independent board appointed by the Governor exercises pardon

power. Ga. Code Ann. §42-9-56

The State Board of Pardons and Paroles shall be vested

with the power of executive clemency, including the

powers to grant reprieves, pardons and paroles; to

commute penalties; to remove disabilities imposed by

law; and to remit any part of a sentence for any offense

against the state after conviction.

GA Const. Art. 4, §2,

¶II

Felony convictions that have been pardoned are eligible

for “record restriction,” except for serious violent

felonies or sexual offenses, as long as there have been no

convictions since the pardon and no charges are

pending. Ga. Code Ann. §35-3-37(j)(7) Individuals

whose records are “restricted” may petition for the

sealing of court records. Ga. Code Ann. §35-3-37 (m)

• The Board of Pardons and

Paroles may be prohibited

from issuing a pardon for

offenses superseded by the

Legislature in cases involving

recidivists and persons serving

life sentences. GA Const. Art.

4, §2, ¶II

• The Board must annually

report to the Legislature, the

Attorney General and the

Governor. Ga. Code Ann. §42-

9-19

Hawaii

The Governor may grant reprieves, commutations and pardons,

after conviction, for all offenses, subject to regulation by law as to the

manner of applying for the same. The Legislature may, by general

The Governor may seek the recommendation of the

director of public safety and the Hawaii State Paroling

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law, authorize the Governor to grant pardons before conviction. HI

Const. Art. 5, §5

Authority, but the Governor’s pardon power is

independent. Haw. Rev. Stat. §353-72

Idaho

The Governor shall have power to grant respites or reprieves in all

cases of convictions for offenses against the state, except treason or

conviction on impeachment, but such respites or reprieves shall not

extend beyond the next session of the board of pardons; and such

board shall at such session continue or determine such respite or

reprieve, or they may commute or pardon the offense, as herein

provided. Idaho Const. Art. IV, § 7; Idaho Code Ann. §20-1015

Such board (the Idaho Commission for Pardons and

Parole) as may hereafter be created or provided by

legislative enactment shall constitute a board to be

known as the board of pardons. Said board, or a

majority thereof, shall have power to remit fines and

forfeitures, and, only as provided by statute, to grant

commutations and pardons after conviction and

judgment, either absolutely or upon such conditions as

they may impose in all cases of offenses against the

state except treason or conviction on impeachment.

Idaho Const. Art. IV, §7

The Legislature shall by law

prescribe the sessions of said

board and the manner in which

application shall be made, and

regulated proceedings thereon,

but no fine or forfeiture shall be

remitted, and no commutation or

pardon granted, except by the

decision of a majority of said

board, after a full hearing in open

session, and until previous notice

of the time and place of such

hearing and the release applied

for shall have been given by

publication in some newspaper of

general circulation at least once a

week for four weeks. The

proceedings and decision of the

board shall be reduced to writing

and with their reasons for their

action in each case, and the

dissent of any member who may

disagree, signed by him, and

filed, with all papers used upon

the hearing, in the office of the

secretary of state.

Idaho Code Ann. §20-1004, §20-

1016

Illinois

The Governor may grant reprieves, commutations and pardons, after

conviction, for all offenses on such terms as the Governor thinks

proper. The manner of applying therefore may be regulated by

law. IL Const. Art. 5, §12

• The Prisoner Review Board (PRB) makes

recommendations to the Governor with respect to

pardon, reprieve or commutations. 730 Ill. Comp.

Stat. Ann. 5/3-3-1(a)(3)

• The PRB hears all requests for pardon, reprieve or

commutation, and makes confidential

recommendations to the Governor. 730 Ill. Comp.

Stat. Ann. 5/3-3-2(6)

A pardon authorizes judicial expungement, if provided in

the terms of the pardon. 20 Ill. Comp. Stat. Ann.

2630/5.2 (16)(e)

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Indiana

The Governor shall have the power to grant reprieves, commutations

and pardons, after conviction, for all offences except treason and

cases of impeachment, subject to such regulations as may be provided

by law.

Ind. Const. Art. 5, §17

• The Parole Board submits to the Governor its

recommendation regarding an application for

commutation of sentence, pardon, reprieve or

remission of fine or forfeiture. Ind. Code § 11-9-2-2

• This does not limit the constitutional power of the

Governor to grant pardons, reprieves, commutations

or remissions of fines and forfeitures. Ind. Code §11-

9-2-3

The Indiana Supreme Court has held that a pardon

essentially wipes out both the punishment prescribed for

the offense and the guilt of the offender. Kelley v. State,

185 N.E. 453, 458-59 (Ind. 1933).

• Upon conviction for treason,

the Governor shall have power

to suspend the execution of the

sentence, until the case shall

be reported to the General

Assembly, at its next meeting;

when the General Assembly

shall either grant a pardon,

commute the sentence, direct

the execution of the sentence,

or grant a further reprieve.

• The General Assembly may,

by law, constitute a council, to

be composed of officers of

State, without whose advice

and consent the Governor

shall not have power to grant

pardons, in any case, except

such as may, by law, be left to

his sole power.

• The Governor is required to

report to the General

Assembly, at its next meeting,

each case of reprieve,

commutation, or pardon

granted, and also the names of

all persons in whose favor

remission of fines and

forfeitures shall have been

made, and the several amounts

remitted.

Ind Const. Art. 5,

§17

Iowa

• The Governor shall have power to grant reprieves, commutations

and pardons, after conviction, for all offences except treason and

cases of impeachment, subject to such regulations as may be

provided by law. The Governor shall have power to remit fines

and forfeitures, under such regulations as may be prescribed by

law. Iowa Const. Art. IV, §16

• The power of the Governor under the Constitution of the State of

Iowa to grant a reprieve, pardon, commutation of sentence,

remission of fines and forfeitures or restoration of the rights of

citizenship shall not be impaired. Iowa Code §914.1

• The Board of Parole shall periodically review all

applications by persons convicted of criminal

offenses and shall recommend to the Governor the

reprieve, pardon, commutation of sentence,

remission of fines or forfeitures or restoration of the

rights of citizenship for persons who have by their

conduct given satisfactory evidence that they will

become or continue to be law-abiding citizens.

• The Board of Parole shall, upon request of the

Governor, take charge of all correspondence in

reference to an application filed with the Governor

• Governor reports to

Legislature on pardons issued

and reasons. Iowa Const. Art.

IV, §16

• Upon conviction for treason,

the Governor shall have

power to suspend the

execution of the sentence until

the case shall be reported to

the General Assembly at its

next meeting, when the

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and shall, after careful investigation, provide the

Governor with the board’s advice and

recommendation concerning any person for whom

the board has not previously issued a

recommendation. Iowa Code §914.3

• The Governor shall respond to all recommendations

made by the board of parole within ninety days of

the receipt of the recommendation. The response

shall state whether or not the recommendation will

be granted and shall specifically set out the reasons

for such action. If the Governor does not grant the

recommendation, the recommendation shall be

returned to the board of parole and may be refiled

with the Governor at any time. Any recommendation

may be withdrawn by the board of parole at any time

prior to its being granted. However, if the board

withdraws a recommendation, a statement of the

withdrawal, and the reasons upon which it was

based, shall be entered in the proper records of the

board. Iowa Code §914.4

General Assembly shall either

grant a pardon, commute the

sentence, direct the execution

of the sentence or grant a

further reprieve. Iowa Const.

Art. IV, §16

Kansas

The pardoning power shall be vested in the Governor, under

regulations and restrictions prescribed by law. Kan. Const. Art. I, §7

All applications for pardon or commutation of sentence

shall be referred to the Kansas Prisoner Review Board.

The board shall examine each case and submit a report,

together with such information as the Board may have

concerning the applicant, to the Governor within 120

days after referral to the board. The Governor shall not

grant or deny any such application until the Governor has

received the report of the Board or until 120 days after

the referral to the Board, whichever time is the shorter.

Kan. Stat. Ann. §22 3701(d)

The Governor at each regular

session of the Legislature, shall

communicate to both houses of the

Legislature a list of all persons

pardoned during the preceding

year, with a statement of the

offense of which each was

convicted, the time of

imprisonment or amount of fine,

and the condition, if any, upon

which such pardon was granted.

Kan. Stat. Ann. §22-3703.

Kentucky

The Governor shall have power to remit fines and forfeitures,

commute sentences, grant reprieves and pardons, except in case of

impeachment, and the Governor shall file with each application

therefore a statement of the reasons for his decision thereon, which

application and statement shall always be open to public inspection.

On request of the Governor, the Kentucky Parole Board

shall investigate and report to the Governor with respect

to any case of pardon, commutation of sentence, reprieve

or remission of fine or forfeiture. Ky. Rev. Stat. Ann. §

439.450

A full pardon is now grounds for vacatur and

expungement. Ky. Rev. Stat. Ann. §431.073(1)(c)

The General Assembly has the

power to grant a pardon in cases of

treason. Ky. Const. §77

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Louisiana

The Governor may grant reprieves to persons convicted of offenses

against the state and, upon favorable recommendation of the Board of

Pardons, may commute sentences, pardon those convicted of offenses

against the state, and remit fines and forfeitures imposed for such

offenses. However, a first offender convicted of a non-violent crime,

or convicted of aggravated battery, second degree battery, aggravated

assault, mingling harmful substances, aggravated criminal damage to

property, purse snatching, extortion, or illegal use of weapons or

dangerous instrumentalities never previously convicted of a felony

shall be pardoned automatically upon completion of the sentence,

without a recommendation of the Board of Pardons and without

action by the Governor. La. Const. Art. IV, § 5(E)(1); La. Rev. Stat.

Ann. § 15:572(A)

The Governor’s constitutional power to pardon depends

upon prior favorable recommendation of the Board of

Pardons. The Governor appoints the five board members,

with confirmation by the state senate. The Governor

choses the chair of the Board. La. Const. Art. IV, §

5(E)(1); La. Rev. Stat. Ann. § 15:572(A)

An individual receiving a first offender pardon may file a

motion for expungement, except for crimes of violence or

of a sexual nature, without waiting 10 years

LA Code

Crim. Pro. Art. 978 (A)(3) and (B)(3)(e)

Maryland

The Governor shall have the power to grant reprieves and pardons,

except in cases of impeachment, and in cases, in which the Governor

is prohibited by other Articles of this Constitution; and to remit fines

and forfeitures for offences against the State; but shall not remit the

principal or interest of any debt due the State, except in cases of fines

and forfeitures; and before granting a nolle prosequi, or pardon, the

Governor shall give notice, in one or more newspapers, of the

application made for it, and of the day on, or after which, his decision

will be given; and in every case, in which the Governor exercises this

power, the Governor shall report to either Branch of the Legislature,

whenever required, the petitions, recommendations and reasons,

which influenced the Governor’s decision. Md. Const. Art. II, §20;

Md. Code Ann., Correctional Services §7-601

A court may expunge the record if the person has been

convicted of only one criminal act and that act is not a

crime of violence; and is granted a full and unconditional

pardon by the Governor. Md. Code Crim. Proc. §10-

105(8)

The Governor reports to either

Branch of the Legislature,

whenever required, the petitions,

recommendations and reasons

which influenced the Governor’s

decision.

Md. Const. Art. II, §20

Massachusetts

The power of pardoning offences, except such as persons may be

convicted of before the Senate by an impeachment of the House, shall

be in the Governor, by and with the advice of the council, provided,

that if the offence is a felony the General Court shall have power to

prescribe the terms and conditions upon which a pardon may be

granted; but no charter of pardon, granted by the Governor, with

advice of the council before conviction, shall avail the party pleading

the same, notwithstanding any general or particular expressions

contained therein, descriptive of the offence or offences intended to

be pardoned.

Mass. Const. pt. 2, ch. II, sec. I, Art. VIII, as amended

by Article LXXIII

• The Governor’s Council, also known as the

Executive Council, provides advice and consent on

pardons to the Governor.

Mass. Const. pt. 2, ch. II,

sec. I, Art. VIII, as amended by Article LXXIII

• The Parole Board acts as an advisory board of

pardons in a case in which the petitioner is confined

in a correctional institution of the commonwealth

and makes recommendations on a pardon to the

Governor. Mass. Gen. Laws ch. 127, §154

The Governor, upon granting a pardon, orders the records

of a state conviction sealed; thereafter, the records of the

conviction may not be accessed by the public, and its

existence may be denied for most purposes.

Mass. Gen.

Laws ch. 127, §152.

• The General Court has

pardoning power over

impeachment and felony

offenses. Mass. Const. pt. 2,

ch. II, sec. I, Art. VIII, as

amended by Article LXXIII

• The Governor shall, at the end

of each calendar year, transmit

to the General Court, by filing

with the clerk of either branch,

a list of pardons granted with

the advice and consent of the

council during such calendar

year, together with action of

the advisory board of pardons

concerning each such pardon,

and together with a list of any

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revocations of pardons made

under this section. Mass. Gen.

Laws ch. 127, §152

Michigan

The Governor shall have power to grant reprieves, commutations and

pardons after convictions for all offenses, except cases of

impeachment, upon such conditions and limitations as the Governor

may direct, subject to procedures and regulations prescribed by law.

Mich. Const. Art. 5, §14

One member of the Parole Board may interview a

prisoner serving a sentence for murder in the first degree

or a sentence of imprisonment for life without parole at

the conclusion of 10 calendar years and make a

recommendation to the Governor on a reprieve,

commutation or pardon. Mich. Comp. Laws §791.244

The Governor is required to inform

the Legislature annually of each

reprieve, commutation and pardon

granted, with reasons. Mich.

Const. Art. 5, §14

Minnesota

The Governor, the Attorney General and the Chief Justice of the

Supreme Court constitute a Board of Pardons. The Board’s powers

and duties shall be defined and regulated by law. The Governor in

conjunction with the Board of Pardons has power to grant reprieves

and pardons after conviction for an offense against the state, except in

cases of impeachment.

Minn. Const. Art. V, §7

The Clemency Review Commission reviews each eligible

clemency application and waiver request that it receives

and recommends to the board, in writing, whether to

grant or deny the application or waiver request, with each

member's vote reported.

Minn. Stat. § 638.09

When a pardon has been granted by the state Board of

Pardons, all records relating to the case are automatically

expunged, without the need to file a petition. Minn. Stat.

§609A.035

Mississippi

In all criminal and penal cases, excepting those of treason and

impeachment, the Governor shall have power to grant reprieves and

pardons, to remit fines, and in cases of forfeiture, to stay the

collection until the end of the next session of the Legislature, and by

and with the consent of the Senate to remit forfeitures. In cases of

treason the Governor shall have power to grant reprieves, and by and

with consent of the Senate, but may respite the sentence until the end

of the next session of the Legislature; but no pardon shall be granted

before conviction; and in cases of felony, after conviction no pardon

shall be granted until the applicant therefore shall have published for

thirty days, in some newspaper in the county where the crime was

committed, and in case there be no newspaper published in said

county, then in an adjoining county, the petition for pardon, setting

forth therein the reasons why such pardon should be granted.

Mississippi Constitution Art. 5, §124

The State Parole Board has exclusive responsibility for

investigating clemency recommendations upon request of

the Governor.

Miss. Code §47-7-5 (3)

The Senate must consent to

remittal of forfeitures and pardons

in the cases of treason. Mississippi

Constitution Art. 5, §124

Missouri

The Governor shall have power to grant reprieves, commutations and

pardons, after conviction, for all offenses except treason and cases of

impeachment, upon such conditions and with such restrictions and

limitations as he may deem proper, subject to provisions of law as to

the manner of applying for pardons. The power to pardon shall not

include the power to parole.

Mo. Const. Art. IV, § 7

Parole board must be consulted, but the Board’s advice is

not binding on the Governor, and the Governor’s pardon

power is not dependent upon a favorable Board

recommendation. Mo. Rev. Stat. §217.800.2

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Montana

The Governor may grant reprieves, commutations and pardons,

restore citizenship and suspend and remit fines and forfeitures subject

to procedures provided by law.

Mont. Const. Art. VI, §12

The Governor may grant pardons and commutations, and

must consult with the Board of Pardons and Parole, but

the Governor may grant clemency even if the Board

recommends denial. The Governor may also direct the

Board to conduct an investigation on application for

clemency when it has declined to do so. Mont. Code

Ann. §§46-23-104(4 ), 46-23-301(4)

The Governor reports to the

Legislature each case of remission

of fine or forfeiture, respite,

commutation or pardon granted

since the previous report, stating

the name of the convict, the crime

of which the convict was

convicted, the sentence and its date,

the date of remission,

commutation, pardon, or respite,

with the reason for granting the

same, and the objection, if any, of

any of the members of the board

made to the action. Mont. Code

Ann. §46-23-316.

Nebraska

The Governor, Attorney General and Secretary of State, sitting as a

board, shall have power to remit fines and forfeitures and to grant

respites, reprieves, pardons or commutations in all cases of conviction

for offenses against the laws of the state, except treason and cases of

impeachment. Neb. Const. Art. IV, §13

• The Governor acts as chair of the Board of Pardons.

Neb. Rev. Stat. §83-1,126

• The Board of Pardons is not subject to the Nebraska

Administrative Procedure Act, and its constitutional

powers cannot be limited or modified by any act of

the Legislature or of the Nebraska courts. Neb. Rev.

Stat. §83-1,134

• The Board of Parole may advise the Governor,

Attorney General and Secretary of State on the

merits of any application for remission, respite,

reprieve, pardon or commutation, but such advice

shall not be binding on them. Neb. Const. Art. IV,

§13

Any person who has received a pardon may file a motion

with the sentencing court for an order to seal the record.

Neb. Rev. Stat. §29-3523(5)

The Governor shall have power to

suspend the execution of the

sentence imposed for treason until

the case can be reported to the

Legislature at its next session,

when the Legislature shall either

grant a pardon, or commute the

sentence or direct the execution, or

grant a further reprieve. Neb.

Const. Art. IV, §13

Nevada

• The Governor shall have the power to suspend the collection of

fines and forfeitures and grant reprieves for a period not exceeding

sixty days dating from the time of conviction, for all offenses,

except in cases of impeachment. Nev. Const. Art. 5, §13

• The Governor, Justices of the Supreme Court, and Attorney

eneral shall constitute the State Board of Pardons

Commissioners; The State Board of Pardons Commissioners may,

upon such conditions and with such limitations and restrictions as

they may think proper, remit fines and forfeitures, commute

punishments and grant pardons, after convictions, in all cases,

except treason and impeachments, subject to such regulations as

A majority of the members of the State Board of Pardons

Commissioners is sufficient for any action taken by the

State Board of Pardons Commissioners.

Nev. Const. Art.

5, §14

1. If a court and the Central Repository for Nevada

Records of Criminal History receive a certified copy of

an unconditional pardon from the State Board of Pardons

Commissioners, the court and the Central Repository for

Nevada Records of Criminal History shall seal all records

• Upon conviction for treason

the Governor shall have power

to suspend the execution of the

sentence until the case shall be

reported to the Legislature at

its next meeting, when the

Legislature shall either

pardon, direct the execution of

the sentence or grant a further

reprieve. And if the

Legislature should fail or

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may be provided by law relative to the manner of applying for

pardons; Except as may be provided by law, a sentence of death or

a sentence of life imprisonment without possibility of parole may

not be commuted to a sentence which would allow parole. Nev.

Const. Art. 5, §14; Nev. Rev. Stat. §213.010

of criminal history subject to the pardon.

2. If a person receives a pardon from the State Board of

Pardons Commissioners, the person may submit a written

petition, accompanied by proof of the pardon, to any

court in which the person was convicted for the sealing of

all records of criminal history in its possession and in the

possession of any agency of criminal justice relating to

the charges for which the person received the pardon.

Nev. Rev. Stat. §179.273

refuse to make final

disposition of such case, the

sentence shall be enforced at

such time and place as the

Governor by order may direct.

Nev. Const. Art. 5, §13

• The Governor shall

communicate to the

Legislature, at the beginning

of every session, every case of

fine or forfeiture remitted, or

reprieve, pardon or

commutation granted, stating

the name of the convict, the

crime of which the individual

was convicted, the sentence,

its date and the date of the

remission, commutation,

pardon or reprieve. Nev.

Const. Art. 5, §13

• The Legislature is authorized

to pass laws conferring upon

the district courts authority to

suspend the execution of

sentences, fix the conditions

for, and to grant probation,

and within the minimum and

maximum periods authorized

by law, fix the sentence to be

served by the person convicted

of crime in said courts. Nev.

Const. Art. 5, §14

New

Hampshire

The power of pardoning offenses, except such as persons may be

convicted of before the Senate, by impeachment of the House, shall

be in the Governor, by and with the advice of council: But no charter

of pardon, granted by the Governor, with advice of the council, before

conviction, shall avail the party pleading the same, notwithstanding

any general or particular expressions contained therein, descriptive of

the offense or offenses intended to be pardoned. N.H. Const. pt. 2,

Art. 52

The Executive Council is composed of five members,

biennially elected from each of five counties of the state,

“for advising the governor in the executive part of

government.” N.H. Const. pt. 2, Art. 60

The Legislature has pardon power

in cases of impeachment. N.H.

Const. pt. 2, Art. 52

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New Jersey

• The Governor may grant pardons and reprieves in all cases other

than impeachment and treason, and may suspend and remit fines

and forfeitures. A commission or other body may be established

by law to aid and advise the Governor in the exercise of

executive clemency. N.J. Const. Art. V, §2, ¶1

• The Governor may also act to restore civil and all other rights,

except the right to hold office. N.J. Stat. Ann. §2A:167-5

The Constitution allows for the creation of a commission

to assist and advise the Governor on pardons, but such a

commission has not been created.

On or before March 1 of each year,

the Governor shall report to the

Legislature each reprieve, pardon

and commutation granted, stating

the name of the convicted person,

the crime for which the person was

convicted, the sentence imposed,

its date, the date of the pardon,

reprieve or commutation and the

reasons for granting the same. N.J.

Stat. §2A:167-3.1

New Mexico

Subject to such regulations as may be prescribed by law, the

Governor shall have power to grant reprieves and pardons, after

conviction for all offenses except treason and in cases of

impeachment.

N.M. Const. Art. V, §6

On request of the Governor, the Parole Board shall

investigate and report to the Governor with respect to any

case of pardon, commutation of sentence or reprieve.

N.M. Stat. Ann. §31-21-17

New York

• The Governor shall have the power to grant reprieves,

commutations and pardons after conviction, for all offenses

except treason and cases of impeachment, upon such conditions

and with such restrictions and limitations, as the Governor may

think proper, subject to such regulations as may be provided by

law relative to the manner of applying for pardons. N.Y. Const.

Art 4, §4

• Upon conviction for treason, the Governor shall have power to

suspend the execution of the sentence, until the case shall be

reported to the Legislature at its next meeting, when the

Legislature shall either pardon, or commute the sentence, direct

the execution of the sentence, or grant a further reprieve. N.Y.

Const. Art 4, §4

The Board of Parole must advise the Governor on

clemency cases if requested by the Governor.

N.Y. § Exec. Law 259-c

• The Legislature shall either

pardon, or commute the

sentence, direct the execution

of the sentence or grant a

further reprieve in convictions

for treason. N.Y. Const. Art 4,

§4

• The Governor shall annually

communicate to the

Legislature each case of

reprieve, commutation or

pardon granted, stating the

name of the convict, the crime

of which the convict was

convicted, the sentence and its

date and the date of the

commutation, pardon or

reprieve. N.Y. Const. Art 4,

§4

North

Carolina

The Governor may grant reprieves, commutations, and pardons, after

conviction, for all offenses (except in cases of impeachment), upon

such conditions as the Governor may think proper, subject to

regulations prescribed by law relative to the manner of applying for

pardons. The terms reprieves, commutations, and pardons shall not

include paroles.

N.C. Const. Art. III, 5(6)

The Post Release Supervision and Parole Committee has

authority to assist the Governor in exercising the

authority in granting reprieves, commutations and

pardons, and shall perform such other services as may be

required by the Governor in exercising the powers of

executive clemency.

N.C. Gen. Stat. §143B-1490(a)

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A person who receives a pardon of innocence may

petition the court in which he was convicted for an

expunction of records. N.C. Gen. Stat. §15A-149

North Dakota

The Governor may grant reprieves, commutations and pardons. The

Governor may delegate this power in a manner provided by law. N.D.

Const. Art. 5, §7

The Governor may (but is not required to) appoint a

“pardon advisory board,” consisting of the state Attorney

General, two members of the Parole Board, and two

citizens. N.D. Cent. Code § 12-55.1-02.

Ohio

The Governor shall have power, after conviction, to grant reprieves,

commutations and pardons, for all crimes and offenses, except treason

and cases of impeachment, upon such conditions as the Governor may

think proper; subject, however, to such regulations, as to the manner

of applying for commutations and pardons, as may be prescribed by

law.

Ohio Const. Art. III, §11

All applications for pardon or other clemency be made in

writing to the Adult Parole Authority (part of the Parole

and Community Services Division of the Department of

Rehabilitation and Correction), which is required by law

to investigate and make a recommendation to the

Governor on every application. Those recommendations

are advisory only. Ohio Rev. Code Ann. §2967.07

Any person who is granted by the Governor under an

absolute and entire pardon, a partial pardon or a pardon

upon conditions precedent or subsequent may apply to

the court for an order to seal the person’s official records

in the case in which the person was convicted of the

offense for which any of those types of pardons are

granted. The application may be filed at any time after an

absolute and entire pardon or a partial pardon is granted

or at any time after all of the conditions precedent or

subsequent to the pardon are met. Ohio Rev. Code

§2953.33 (A)(3)

• Upon conviction for treason,

the Governor may suspend the

execution of the sentence, and

report the case to the General

Assembly, at its next meeting,

when the General Assembly

shall either pardon, commute

the sentence, direct its

execution or grant a further

reprieve. Ohio Const. Art. III,

§11

• The Governor shall

communicate to the General

Assembly, at every regular

session, each case of reprieve,

commutation or pardon

granted, stating the name and

crime of the convict, the

sentence, its date and the date

of the commutation, pardon,

or reprieve, with the

Governor's reasons therefore.

Ohio Const. Art. III, §11

Oklahoma

• The Governor shall have the power to grant, after conviction and

after favorable recommendation by a majority vote of the Pardon

and Parole Board, commutations, pardons and paroles for all

offenses, except cases of impeachment, upon such conditions and

with such restrictions and limitations as the Governor may deem

proper, subject to such regulations as may be prescribed by law.

Provided, the Governor shall not have the power to grant paroles

if a person has been sentenced to death or sentenced to life

imprisonment without parole. Okla. Const. Art. VI, §10

The Governor may not grant a commutation, pardon or

parole without an affirmative vote of the Pardon and

Parole Board. Okla. Const. Art. VI, §10

Anyone pardoned may file a motion of expungement of

their criminal record. 22 Okla. Stat. Ann. §18(A)(4). A

person who was under 18 at the time of conviction who is

The Governor shall communicate

to the Legislature, at each regular

session, each case of reprieve,

commutation, parole or pardon

granted, stating the name of the

person receiving clemency, the

crime of which the person was

convicted, the date and place of

conviction, and the date of

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• The Governor shall have power to grant after conviction,

reprieves or leaves of absence not to exceed sixty (60) days,

without the action of the Pardon and Parole Board. Okla. Const.

Art. VI, §10

pardoned may also have their conviction expunged. 22

Okla. Stat. §18(A)(6)

commutation, pardon, parole or

reprieve. Okla. Const. Art. VI, §10

Oregon

• The Governor shall have power to grant reprieves, commutations,

and pardons, after conviction, for all offences (sic) except

treason, subject to such regulations as may be provided by law.

• Upon conviction for treason, the Governor shall have power to

suspend the execution of the sentence until the case shall be

reported to the Legislative Assembly, at its next meeting, when

the Legislative Assembly shall either grant a pardon, commute

the sentence, direct the execution of the sentence or grant a

farther (sic) reprieve.

• The Governor shall have power to remit fines and forfeitures,

under such regulations as may be prescribed by law. Or. Const.

Art. V, §14; Or. Rev. Stat. §144.649

An individual who has been granted a pardon

automatically has their criminal conviction sealed. ORS

§144.653 The Governor is required to inform courts

when a pardon is granted so the court may seal the

record; the Governor must inform the courts of pardons

granted in the previous five years to enable them to seal a

conviction record and individuals convicted before that

time are authorized to apply to the court for sealing of a

record. ORS §144.654

• The Legislative Assembly

shall either grant a pardon,

commute the sentence, direct

the execution of the sentence

or grant a farther (sic)

reprieve

for convictions for treason.

• The Governor shall report to

the Legislative Assembly at its

next meeting each case of

reprieve, commutation or

pardon granted, and the

reasons for granting the same;

and also, the names of all

persons in whose favor

remission of fines and

forfeitures shall have been

made, and the several amounts

remitted. Or. Const. Art. V,

§14

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Pennsylvania

(a)In all criminal cases except impeachment the Governor shall have

power to remit fines and forfeitures, to grant reprieves, commutation

of sentences and pardons; but no pardon shall be granted, nor

sentence commuted, except on the recommendation in writing of a

majority of the Board of Pardons, and, in the case of a sentence of

death or life imprisonment, on the unanimous recommendation in

writing of the Board of Pardons, after full hearing in open session,

upon due public notice. The recommendation, with the reasons

therefore at length, shall be delivered to the Governor and a copy

thereof shall be kept on file in the office of the Lieutenant Governor

in a docket kept for that purpose.

Pa. Const. Art IV, §9

• The Governor may not grant a pardon nor commute

a sentence without a recommendation in writing of

the majority of the Board of Pardons.

• The Governor may not grant a pardon nor commute

a sentence of death or life without a unanimous

recommendation in writing of the Board of Pardons.

Pa. Const. Art IV, §9

Pardoned convictions are automatically expunged. 18

PA. C.S. §9122(a)(2.1), (a.1)

Rhode Island

The Governor, by and with the advice and consent of the Senate, shall

hereafter exclusively exercise the pardoning power, except in case of

impeachment, to the same extent as such power is now exercised by

the General Assembly. R.I. Const. Art. IX, §13; RI Gen L § 13-10-1

Consent of the state Senate is

required for the Governor to issue

a pardon. R.I. Const. Art. IX, §13

South

Carolina

With respect to clemency, the Governor shall have the power only to

grant reprieves and to commute a sentence of death to that of life

imprisonment. The granting of all other clemency shall be regulated

and provided for by law. S.C. Const. Art. IV, §14

The Governor has the authority to grant reprieves and

commute death sentences, but all other clemency

authority is vested by statute in the Probation, Parole, and

Pardon Board. S.C. Code Ann. §24-21-920 et. seq.

South Dakota

The Governor may, except as to convictions on impeachment, grant

pardons, commutations and reprieves, and may suspend and remit

fines and forfeitures. S.D. Const. Article IV, § 3

• According to the Supreme Court of South Dakota,

there are two legally distinct types of pardons in

South Dakota. Doe v. Nelson, 680 N.W.2d 302, 313

(S.D. 2004). Under the first type of pardon, the

Governor may act independently and privately. S.D.

Const. Article IV, § 3 Under the second type, the

Governor may pursue the public route recognized in

the South Dakota Code and delegate, by executive

order, authority to make pardon recommendations to

the Board of Pardons and Paroles. S.D. Codified

Laws § 24-14-1 et seq. Only pardons granted by this

second route result in sealing of the record of the

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conviction and, after an additional five years, the

pardon itself.

• The Board may also recommend to the Governor

first offender “exceptional pardons.” S.D. Codified

Laws §24-14-8.

When a person has been pardoned, all official records

relating to the pardoned person’s arrest, indictment or

information, trial, finding of guilt, application for a

pardon, and the proceedings of the Board of Pardons and

Paroles are sealed. S.D. Codified Laws §24-14-11

Tennessee

The Governor shall have power to grant reprieves and pardons, after

conviction, except in cases of impeachment. Tennessee Constitution

Art. III, §6; Tenn. Code § 40-27-101

• The Governor may be advised by Board of Probation

and Parole, but its role does not limit the pardoning

power of the Governor. Tenn. Code Ann. §§ 40-28-

104(a)(10), 40-28-128.

• The Governor is required to notify the Attorney

General and relevant district attorney before any

grant of executive clemency is made public, and they

in turn are required to notify the victim. Tenn. Code

Ann. §40-27-110

A person who was convicted of a nonviolent crime after

January 1, 1980 and received a pardon may petition for

expungement of their criminal record. TN Code §40-32-

101

The Governor is required to keep a

record of the reasons for each

clemency grant and associated

documents, and “submit the same

to the General Assembly when

requested.” Tenn. Code Ann. §40-

27-107

Texas

• In all criminal cases, except treason and impeachment, the

Governor shall have power, after conviction or successful

completion of a term of deferred adjudication community

supervision, on the written signed recommendation and advice of

the Board of Pardons and Paroles, or a majority thereof, to grant

reprieves and commutations of punishment and pardons; and

under such rules as the Legislature may prescribe, and upon the

written recommendation and advice of a majority of the Board of

Pardons and Paroles, the Governor shall have the power to remit

fines and forfeitures. Tex. Const. Art. 4, §11; Chapter 48 of the

Texas Code of Criminal Procedure

• The Governor shall have the power to grant one reprieve in any

capital case for a period not to exceed thirty (30) days; and he

shall have power to revoke conditional pardons. Tex. Const. Art.

4, §11; Chapter 48 of the Texas Code of Criminal Procedure

The Governor may not issue a pardon except upon

affirmative written recommendation from a majority of

the members of the Board of Pardons and Paroles, except

for a one-time 30-day reprieve in a capital case. Tex.

Const. Art. 4, §11; Chapter 48 of the Texas Code of

Criminal Procedure

A pardon is grounds for an expungement order. Tex.

Code Crim. Proc. Art. 55.01(a)(1)B)(i). A person

receiving a full pardon after a conviction is entitled to an

expunction of all arrest records relating to the conviction.

An applicant is required to request an expunction from

the appropriate state court.

With the advice and consent of the

Legislature, the Governor may

grant reprieves, commutations of

punishment and pardons in cases

of treason. Tex. Const. Art. 4, §11

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Utah

The Governor may grant respites or reprieves in all cases of

convictions for offenses against the state except treason or conviction

on impeachment. These respites or reprieves may not extend beyond

the next session of the board. At that session, the board shall continue

or determine the respite or reprieve, commute the punishment or

pardon the offense as provided in this section.

Utah Const. Art. VII,

§12(3)(a)

(1)

There is created a Board of Pardons and Parole. The

Governor shall appoint the members of the board

with the consent of the Senate. The terms of office

shall be as provided by statute.

(2)

(a)

The Board of Pardons and Parole, by

majority vote and upon other conditions as

provided by statute, may grant parole,

remit fines, forfeitures, and restitution

orders, commute punishments and grant

pardons after convictions, in all cases

except treason and impeachments, subject

to regulations as provided by statute.

(b)

A fine, forfeiture or restitution order may

not be remitted and a commutation, parole

or pardon may not be granted except after

a full hearing before the board, in open

session, and after previous notice of the

time and place of the hearing has been

given.

(c)

The proceedings and decisions of the

board, the reasons therefore in each case,

and the dissent of any member who may

disagree shall be recorded and filed as

provided by statute with all papers used

upon the hearing. Utah Const. Art. VII,

§12

Upon granting a pardon, the board shall

issue an expungement order, directing any

criminal justice agency to remove the

recipient's identifying information relating

to the expunged convictions from its

records. Utah Code Ann. §77-27-5.1

In cases of conviction for treason,

the Governor may suspend

execution of the sentence until the

case is reported to the Legislature

at its next annual general session,

when the Legislature shall pardon

or commute the sentence, or direct

its execution. If the Legislature

takes no action on the case before

adjournment of that session, the

sentence shall be executed.

Utah

Const. Art. VII, §12

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Vermont

The Governor shall have power to grant pardons and remit fines in all

cases whatsoever, except in treason, in which the Governor shall have

power to grant reprieves, but not to pardon, until after the end of the

next session of the General Assembly; and except in cases of

impeachment, in which the Governor shall not grant reprieve or

pardon, and there shall be no remission, or mitigation of punishment,

but by act of legislation.

Vt. Const. CH. II, §20

On request of the Governor, the Parole Board acts as an

advisory board to assist or act for the Governor in

investigating or hearing matters pertaining to pardons,

and may make recommendations the Governor regarding

such matters. Vt. Stat. Ann. tit. 28, §453

The Legislature has the power to

grant a pardon in cases of

impeachment and approve a

Governor’s pardon in cases of

treason. Vt. Const. CH. II, §20

Virginia

The Governor shall have power to remit fines and penalties under

such rules and regulations as may be prescribed by law; to grant

reprieves and pardons after conviction except when the prosecution

has been carried on by the House of Delegates; to remove political

disabilities consequent upon conviction for offenses committed prior

or subsequent to the adoption of this Constitution; and to commute

capital punishment. Va. Const. Art. V, §12; Va. Code §53.1-229

An “absolute” pardon is generally granted only for

innocence. An “absolute” pardon entitles a person to

automatic judicial expungement of police and court

records related to the charge and conviction without a

petition required to be filed with the court. Va. Code

Ann. §19.2-392.2(I)

• The Legislature has pardoning

power in cases where

prosecution has been carried

on by the House of Delegates.

• The Governor is required to

“communicate to the General

Assembly, at each regular

session, particulars of every

case of fine or penalty

remitted, of reprieve or pardon

granted, and of punishment

commuted, with his reasons

for remitting, granting, or

commuting the same.” Va.

Const. Art. V, §12

Washington

The pardoning power shall be vested in the Governor under such

regulations and restrictions as may be prescribed by law. Wash.

Const. Art. III, §9

The Clemency and Pardons Board receives petitions from

individuals, organizations and the Department of

Corrections for review and commutation of sentences and

pardoning of offenders in extraordinary cases, and then

makes recommendations to the Governor. Wash. Rev.

Code §§ 9.94A.885 (1)

A pardon has the effect of vacating the conviction and

limiting public access to the record. Wash. Rev. Code §

9.94A.030(11)(b)

The Governor shall have power to

remit fines and forfeitures, under

such regulations as may be

prescribed by law, and shall report

to the Legislature at its next

meeting each case of reprieve,

commutation or pardon granted,

and the reasons for granting the

same, and also the names of all

persons in whose favor remission

of fines and forfeitures shall have

been made, and the several

amounts remitted and the reasons

for the remission. Wash. Const.

Art. III, §11, Wash. Rev. Code

§10.01.12

West Virginia

The Governor shall have power to remit fines and penalties in such

cases and under such regulations as may be prescribed by law; to

commute capital punishment and, except where the prosecution has

been carried on by the House of Delegates to grant reprieves and

pardons after conviction; but the Governor shall communicate to the

The Parole Board has authority, if requested by the

Governor, to investigate and consider all applications for

pardon, reprieve or commutation and to make

recommendations thereon to the Governor. W. Va. Code

§62-12-13 (o) and (p)

• The Legislature has pardoning

power in cases where

prosecution has been carried

on by the House of Delegates.

W.Va. Const. Art. 7, §11

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Clemency Provisions Involving

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Legislature at each session the particulars of every case of fine or

penalty remitted, or punishment commuted and of reprieve or pardon

granted, with reasons.

W.Va. Const. Art. 7, §11

Persons granted a full and unconditional pardon may

apply for expungement from the circuit court in which

they were convicted one year after the pardon was

granted and at least five years after discharge from

sentence, with certain exceptions for violent crimes. W.

Va. Code §5-1-16a(a)

• The Governor is required to

report the particulars of every

clemency grant to the

Legislature, with reasons for

the grant.

W. Va. Code § 5-1-

16.

Wisconsin

The Governor shall have power to grant reprieves, commutations and

pardons, after conviction, for all offenses, except treason and cases of

impeachment, upon such conditions and with such restrictions and

limitations as the Governor may think proper, subject to such

regulations as may be provided by law relative to the manner of

applying for pardons.

Wis. Const. art V, § 6

• Upon conviction for treason,

the Governor shall have the

power to suspend the

execution of the sentence until

the case shall be reported to

the Legislature at its next

meeting, when the Legislature

shall either pardon, or

commute the sentence, direct

the execution of the sentence,

or grant a further reprieve.

• The Governor shall annually

communicate to the

Legislature each case of

reprieve, commutation or

pardon granted, stating the

name of the convict, the crime

of which the individual was

convicted, the sentence and its

date and the date of the

commutation, pardon or

reprieve, with reasons for

granting the same.

Wis. Const.

Art V, § 6

• The Legislature has enacted

statutory requirements as to

notice and publication of

applications for pardons. Wis.

Stat. § 304.09(3)

Wyoming

The Governor shall have power to remit fines and forfeitures, to grant

reprieves, commutations and pardons after conviction, for all offenses

except treason and cases of impeachment; but the Legislature may by

law regulate the manner in which the remission of fines, pardons,

commutations and reprieves may be applied for.

Wyo. Const. Art. IV,

§5

• Upon conviction for treason

the Governor shall have power

to suspend the execution of

sentence until the case is

reported to the Legislature at

its next regular session, when

the Legislature shall either

pardon, or commute the

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Clemency Provisions Involving

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sentence, direct the execution

of the sentence or grant further

reprieve.

Wyo. Const. Art. IV,

§5

• The Legislature may by law

regulate the manner in which

the remission of fines,

pardons, commutations and

reprieves may be applied for.

Wyo. Const. Art. IV, §5

• The Legislature may by law

create a penalty of life

imprisonment without parole

for specified crimes which

sentence shall not be subject to

commutation by the Governor.

Wyo. Const. Art. IV, §5

• The Legislature may in

addition limit commutation of

a death sentence to a sentence

of life imprisonment without

parole which sentence shall

not be subject to further

commutation. In no event shall

the inherent power of the

Governor to grant a pardon be

limited or curtailed. Wyo.

Const. Art. 3, §53

• The Governor shall

communicate to the

Legislature at each regular

session each case of remission

of fine, reprieve, commutation

or pardon granted, stating the

name of the convict, the crime

for which the individual was

convicted, the sentence and its

date and the date of the

remission, commutation,

pardon or reprieve with

reasons for granting the same.

Wyo. Const. Art. IV, §5

CRIMINAL RECORDS REVIEW COMMITTEE

Prepared for Criminal Records Review Committee (July 16, 2024 Meeting)

Excerpt from the Constitution of Maine:

Authority to Request an Opinion of the Justices

Article VI.

Judicial Power.

Section 3. To give opinion when required by Governor or either Branch of the Legislature. The

Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and

upon solemn occasions, when required by the Governor, Senate or House of Representatives.

Excerpts from recent Opinions of the Justice

A. Authority to Issue an Advisory Opinion

[¶9] The Maine Constitution places limitations on the authority of the Justices to provide advisory opinions,

which represent the advice of the participating individual Justices. Opinion of the Justices, 2017 ME 100, ¶ 9,

162 A.3d 188; see Me. Const. art. VI, § 3. Such opinions are not binding in future cases and have no

conclusive effect. Opinion of the Justices, 2017 ME 100, ¶ 9, 162 A.3d 188. They may, however, provide

necessary guidance and analysis for decision-making by the other branches of government. Id. “The tension

between the constitutionally required separation of powers and the constitutionally provided authority of the

Justices of the Maine Supreme Judicial Court to provide official but nonbinding advice to the other Branches

is addressed through the balance articulated in the requirements (1) setting out who may seek the Justices’

advice, (2) inquiring whether that advice is sought as to important questions of law, and (3) providing that a

solemn occasion must exist for the Justices’ provision of such advice.” Id. ¶ 17; see Me. Const. art. VI, § 3.

The Justices must strictly observe these limitations on their authority. Opinion of the Justices, 2017 ME 100, ¶

17, 162 A.3d 188.

Opinion of the Justices, 2023 ME 34, ¶¶ 8-9, 295 A.3d 1212, 1218–19.

c. Solemn Occasion

[¶ 21] … Over time … several guideposts have emerged to inform the Justices’ exercise of their

constitutionally provided authority to offer non-binding advice. These guideposts are judge-made parameters,

not articulated in the Constitution. They each spring from a judicial effort to assure that we do not overstep

our bounds with an unconstitutional foray into the clearly defined territory of the Legislative or Executive

Branch.

i. Unusual Exigency

[¶ 22] We have determined that a solemn occasion is one that “arises when questions are of a serious and

immediate nature, and the situation presents an unusual exigency.”

There must, in other words, be some

urgency that requires the Justices to provide advice to the other Branches. This aspect of the solemn occasion

analysis is similar to the next element—that the issue be one of live gravity—but is subtly distinct in that it

also addresses the requirement of a serious and unusual situation and infuses an element of temporal

consideration.

ii. Live Gravity

[¶ 23] The question presented must be one of “live gravity,” that is, one “of instant, not past nor future,

concern.”

The live gravity requirement precludes us from providing advice that “would relate to matters

merely tentative, hypothetical and abstract.”

The questioning Branch must be faced with the current need to

CRIMINAL RECORDS REVIEW COMMITTEE

Prepared for Criminal Records Review Committee (July 16, 2024 Meeting)

act.

For example, we declined to answer questions propounded by the House regarding the Governor’s

authority to override a veto when the Governor had not yet purported to veto any legislation.

Similarly, we

have declined to answer when the questioning body adjourned and therefore was unable to receive the

answer

and when the proposed legislation at issue had already expired and was therefore no longer before

the Legislature for consideration.

To do so “would be an unwarrantable interference with the duties and

functions of such future [Legislature or Governor].”

iii. A Branch Must Ask for Itself

[¶ 24] A questioning entity may not seek an Advisory Opinion relating to the power, duty, or authority of

another Branch of government because the body presenting the question has no ability to act in response to

the Advisory Opinion.

We will therefore decline to answer a question when one Branch of government

seeks our advice regarding the authority of another Branch to undertake an action.

iv. Not Tentative, Hypothetical, or Remote

[¶ 25] Questions that “relate to matters merely tentative [or] hypothetical” present no solemn occasion.

Similarly, the question cannot be based on a contingency “so extremely remote that it need hardly be taken

into consideration.”

v. Specific and Limited

[¶ 26] The questions presented must be “sufficiently precise that we can determine the exact nature of the

inquiry.”

The Justices must understand from the question presented what provisions of law they are being

asked to examine.

Abstract or generalized questions about the constitutionality of a provision pursuant to the

Maine or United States Constitution are not appropriate subjects for an Advisory Opinion.

The question also

must be based on clear and compelling facts as established only in the order or record provided by the

questioning body; otherwise, the question implicates too broad a range of potential factual and legal

possibilities.

Justices will decline to answer questions when their resolution involves the determination of

facts and the application of other provisions of law beyond those that have generated the inquiry.

vi. Not Overly Complex

[¶ 27] Similarly, the Justices do not answer questions that are too complex to be answered in the absence of a

case or controversy. In one matter, for example, the Justices opined, “The questions presented here require an

analysis of intersecting laws, constitutional provisions, and facts. The complexity of the varying

considerations renders it impossible for us to be confident of the law and other circumstances to such a degree

as to leave no room for reasonable doubt.”

vii. Not Subject to the Tug of Litigation

[¶ 28] The question presented must be a matter applicable to the general public rather than private parties; it is

“inexpedient to prejudice the question before any occasion has arisen calling for its legal determination.”

Similarly, the question presents no solemn occasion when it inquires whether the Law Court will overrule a

prior decision.

viii. Doubt as to the Body’s Authority

[¶ 29] A question presents a solemn occasion when the questioning body—the House, the Senate, or the

Governor—”has serious doubts” as to its own authority to take some action pursuant to the Maine

Constitution or existing statutes.

Exemplifying this principle, we have provided Advisory Opinions when

the House, Senate, or Governor seeks an opinion as to the constitutionality of legislation currently pending

before that body because, in those instances, the questioner seeks our guidance in determining its authority to

approve the pending bill.

Opinion of the Justices, 2017 ME 100, ¶¶ 20-31, 162 A.3d 188, 201–04, as revised (Sept. 19, 2017) (footnotes

omitted).