“As we continue to think this through, there are quite a few state precedents for ‘clean slate’ legislation to move forward.”
By Emma Davis, Maine Morning Star
More people in Maine gained the ability to seal their criminal histories earlier this month.
Two laws took effect on August 9. One removed the age-related prerequisite for sealing criminal history, and the other allows people to apply to get their criminal histories for now-legal marijuana crimes sealed.
“This is a great first step for people to clean the slate in terms of their history for employment, as well as other purposes,” said criminal defense attorney Matthew Morgan, a partner at McKee Morgan.
However, Morgan noted that it is important for people to understand the fine print of the post-judgement sealing process. “There still will be some professional licensing agencies and law enforcement that will be able to access these records,” Morgan explained, “but otherwise they will be sealed, and people are allowed to indicate they do not have a criminal record based on the sealing.”
Morgan’s office has started contacting former clients who they believe to be eligible to apply to get their records sealed under these new laws. They cannot yet estimate how many people will take advantage of their newfound ability to seal criminal histories, given that the changes only took effect this month.
Barbara Cardone, director of legal affairs and public relations for the Maine Judicial Branch, declined to provide data on the number of people who have requested to have their criminal records sealed under the new parameters. “Our data analysts are absorbed with internal projects, and we have been told that they are not available to put together statistics for outside requests until these projects are finished,” Cardone wrote in an email.
These two changes were based on recommendations from the Criminal Records Review Committee, which Morgan sits on. The Legislature temporarily established the committee to consider ways to limit public access to criminal records specifically related to nonviolent crimes and those involving the use of marijuana.
Maine legalized recreational marijuana use in 2017, however, Mainers’ criminal records for possession and cultivation prior to legalization remain.
The committee’s final meeting is scheduled for November 19, and it is soliciting public feedback on a number of other potential proposals to adjust criminal record sealing eligibility as well as how convictions for conduct that has been decriminalized should be treated by the state, among others.
“The committee is still meeting, receiving public comments and looking at ways to make people more aware of the existing law,” Morgan said, “as well as continuing for many years now to discuss ways to improve the sealing laws in Maine, in particular the possibility of an automatic sealing.”
Last session, legislators also considered a bill that would have automatically sealed criminal record information for marijuana-related crimes that are no longer illegal.
Lawmakers voted down that proposal, which had also been recommended by the Criminal Records Review Committee, after objections over cost and potential First Amendment violations.
Julie Finn, a judicial branch analyst, said automatic sealing could not be done without significant additional resources. The change was estimated to cost $633,185 for the 2024–25 fiscal year, with ongoing appropriations needed to pay the salaries of additional employees to review and seal records.
In contrast, neither of the laws passed had fiscal notes, as it is assumed that any associated costs can be absorbed within existing appropriations. On the Senate floor during the chamber vote for the bill, Sen. Anne Carney (D-Cumberland) said no additional funds are needed because record sealing requests are not common. “The sad thing about this process, actually, is that it’s not used as often,” Carney said.
The Maine Press Association and other entities had concerns that automatically sealing records would violate the right of the public to access records of criminal proceedings under the First Amendment, in contrast to the two laws that passed that keep some documentation of a conviction in the public domain by requiring a post-judgment motion review process.
The Maine Press Association represents about 50 newspapers and digital news outlets in the state, including Maine Morning Star.
The committee discussed other state models for automatic sealing during its latest meeting on August 13.
Many states have had petition-based record sealing on the books for years, but at least 12 states have laws that allow for automated sealing, otherwise known as “clean slate” record sealing, said Darlene Shores Lynch, senior legislative researcher for the Office of Policy and Legal Analysis.
This generally means that someone from the state reviews records based on eligibility criteria—usually misdemeanors, less serious felonies and pardons—and determines which are eligible for sealing. Convictions involving violent acts, domestic abuse or that require sex offender registration are generally not eligible for this type of automated sealing, nor petition-based sealing.
Pennsylvania was an early adopter of “clean slate” record sealing, passing its law in 2018, though it actually took several more years for the process to get underway. New York is the latest state to adopt such a law with its passage in 2023, though that law affords a three-year rollout.
Specific eligibility criteria varies from state to state. Most states do what Maine’s proposal had sought to do: seal criminal histories, meaning generally retaining the record but closing it to public inspection and largely excluding it from use for employment, housing and other purposes.
Some states offer complete erasure, but fewer actually destroy records and only do so under very specific eligibility criteria. The destruction of criminal records is only afforded through a petition-based process, however, not automatically, Shores Lynch told the committee.
“As we continue to think this through, there are quite a few state precedents for ‘clean slate’ legislation to move forward,” said Speaker of the Maine House Rachel Talbot Ross (D-Portland), particularly noting precedent as it relates to concerns about this type of legislation violating constitutional rights.
Members of the public also provided input during this latest meeting, urging the committee to again recommend to the Legislature automatic sealing as well as eligibility expansion beyond the lowest level of misdemeanors.
“Many of you know and understand the disproportionate imprisonment of people of color and marginalized groups and criminal records only further perpetuate this unjust and biased reality, since in many instances serving one’s time doesn’t mean that they go free at the end but instead looks like a lifetime sentence of stigmatization,” said Molly Hoisser, a manager with Restorative Justice Project Maine, which supports people through the process of exiting incarceration.
The committee is scheduled to meet two times—September 24 and October 8—before its final meeting on November 19. The public can provide public comments during these meetings, or submit written comments via email to [email protected] before 5 p.m. on November 18.
This story was first published by Maine Morning Star.
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