Maine Lawmakers Weigh Bills To Expunge And Seal Marijuana Conviction Records

“Now that cannabis is legal and profitable in this state, how do we reckon with the injustice perpetuated by its illegal activity dating back to the 1970s with the proliferation of the War on Drugs policies in the United States?”

By Emma Davis, Maine Morning Star

Maine legalized recreational marijuana use in 2017, however the criminal records Mainers have for possession and cultivation from before legalization remain.

The Judiciary Committee heard proposals on Friday that would seal those records as well as make permanent a committee tasked to review issues with expunging criminal records and finding ways to prevent past convictions from holding people back from being productive members of their communities.

The four bills are based on recommendations from a report that the Criminal Records Review Committee shared earlier this session.

LD 2252 would make the committee permanent as the Criminal Records Review Commission. LD 2218 and LD 2236 would allow for those with criminal records to apply to have that information sealed under a post judgment motion. LD 2269 specifically addresses convictions related to marijuana before legalization, allowing records to be automatically sealed if they are no longer crimes under current law.

House Speaker Rachel Talbot Ross (D-Portland), who authored the original legislation creating the committee, on Friday voiced support for each of the four proposals.

“Now that cannabis is legal and profitable in this state, how do we reckon with the injustice perpetuated by its illegal activity dating back to the 1970s with the proliferation of the War on Drugs policies in the United States?” Talbot Ross asked. “Millions of Americans were subjected to harsh and extreme sentencing policies that caused an overwhelming increase in our prison population, criminalization and lifelong criminal records, disrupting or altogether eliminating their access to adequate resources and support to live healthy lives.”

People of color, those living in poverty and other socially excluded groups such as women have been disproportionately targeted, Talbot Ross added.

“This history moves on in the form of criminal records, which continue to perpetuate harm for individuals, families, and communities,” she said, joining several others in urging the committee to cease this enduring history by advancing the bills before it.

While public testimony overwhelmingly favored the bills, some took issue with the automatic sealing of records that would be authorized by LD 2269, arguing it would violate the right of the public to access records of criminal proceedings under the First Amendment.

Criminal Records Review Commission

The Judiciary Committee put forth LD 2252 based on the recommendation of the Criminal Records Review Committee to make the body a consistency within state government, as opposed to a one or two session task-force style commission, said committee chair Rep. Matt Moonen (D-Portland).

The Criminal Records Review Commission, as is the case with the existing committee, would be made up of 29 members including legislators, executive department commissioners and other representatives from various organizations related to the issues of mental health, civil liberties, survivors of sexual exploitation, among others.

The commission would be charged with reviewing laws and procedures about criminal history record information and could submit legislation for consideration at the start of each regular session. The commission could also make recommendations to various state entities, including the Department of Public Safety, the Supreme Judicial Court, and the judicial branch’s advisory committee on the Maine Rules of Unified Criminal Procedure, among others.

Under current law, Peter Lehman, legislative coordinator for the Maine Prisoner Advocacy Organization and someone who was formerly incarcerated, argued that “a person convicted of a crime receives a life sentence, because we make criminal records so publicly available.”

Changing this structure permanently will require permanent focus, Lehman said.

“The experience of those of us who have served on those committees is that the subject is too complex with too many subtleties for members to master in a short time,” Lehman explained. “In addition, we have come to realize that the issues involved are so fundamental to achieving justice that an ongoing study and careful temperate action is necessary.”

Representatives from numerous other policy organizations also voiced support on Friday, including the Maine Prosecutors Association, American Civil Liberties Union of Maine, GLBTQ Legal Advocates & Defenders, MaineTransNet and Portland Outright.

Michael Kebede, policy counsel for ACLU of Maine, who has represented the ACLU on the committee, said “the group has not come close to exhaustively studying and deliberating about criminal records sealing.”

Automatically sealing criminal records

LD 2269 received the most pushback during Friday’s public hearing. This bill would create a process to automatically seal or make confidential criminal records for convictions for marijuana possession and related crimes committed from January 1, 2001 to January 30, 2017, the effective date of Maine’s first adult use cannabis law.

Judith Meyer, editor of the Sun Journal, spoke on behalf of the Maine Press Association in opposition, stating that the automatic sealing of records would be a violation of the First Amendment guarantee that the public has a right to access records of criminal proceedings.

“The Maine Press Association does not object to sealing court files with a careful balance between privacy and public interests,” Meyer said. “It’s the automating of such a seal that is our objection.”

In contrast, the other two bills for records sealing that are being considered—LD 2218 and LD 2236—contain a post judgment motion review process, meaning a person has to apply to have their case sealed.

“These are proper balanced tests against privacy and First Amendment rights,” Meyer said of those bills, urging the committee to consider First Amendment implications of automatic sealing, “particularly since there are bills before us that would establish the same results through the existing process of post judgment motion.”

Julie Finn from the State of Maine Judicial Branch also shared concerns about LD 2269, though spoke neither for nor against.

“It is clear that extensive sealing of records cannot be done without significant additional resources in order to avoid transferring court clerk’s from their existing duties processing existing pending cases,” Finn said. “Doing so would of course worsen the backlog.”

Removing age prerequisites and expanding crimes eligible for sealing

Under current law, a person must have been between 18 and 28 years old at the time of a crime to qualify to have their criminal history record information sealed under a post-judgment motion. LD 2218 would remove the age requirements to qualify to do so.

LD 2236 specifically addresses convictions related to marijuana. It would add to the definition of “eligible criminal conviction” in Maine statute that any Class D crime related to unlawfully possessing or cultivating marijuana committed before January 30, 2017, is eligible for a person to file a post-judgment motion to seal criminal history record information.

Overall, Talbot Ross said these pieces of legislation contribute to a cause she believes to be of great importance: “The careful and judicious treatment of criminal records, with an eye towards the adverse effects that our criminal records can have on the life of those carrying those records.”

Editor’s Note: Maine Press Association represents about 50 newspapers and digital news outlets in the state, including Maine Morning Star.

This story was first published by Maine Morning Star.

As White House Hosts Marijuana Pardon Recipients, It’s Time For Bolder Action From Biden (Op-Ed)