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Criminal Cases

Consequences of a Felony Conviction

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The effects of a felony conviction are too numerous to mention. In addition, laws change, and felony consequences change with them.

 

Firstly, a conviction in Maine is forever. The state currently does NOT have a method to expunge records that would, after a certain period, allow the slate to be wiped clean and put a person back to a position of having a conviction-free record. Attempts have been made to make this happen, but so far without success.

Consequences of simply being charged

Simply being arrested and charged has consequences. There are websites that store information about cases, and it may be raised in background checks. Being convicted (by plea or after a trial), means a person will have a ‘criminal record.’

 

Possession of a Firearm

A felony conviction prohibits someone from possessing a firearm. 18 U.S.C. §922(g)(1); 15 M.R.S. §393. Under Maine law, a “conviction” means “acceptance of a guilty plea or nolo contendere or a verdict or finding of guilt.” 15 M.R.S. §.393(1)(D). This prohibition is also for life.

There are also many ways that someone can be at risk of a charge when near a firearm and having a felony conviction. Possession of a firearm by a felon may be “actual or constructive.” Constructive possession means the “power and intention to exercise control and dominion over a firearm.” The person who has direct physical control over a thing over a given time is in legal possession of it. You can be in constructive possession over a firearm by exercising control over the firearm without actually possessing it. Possession can be sole or joint.

 

Needless to say, there are many ways a felon can be in possession of a firearm. The federal government takes possession of a firearm by a felon very seriously and will prosecute. In short, this prohibition is severe as is the potential consequence.

Government Programs

A person convicted of a felony may become unable to participate in various federal programs as a result of a felony conviction. This can include student loans, federal housing, federally granted licenses, certain Social Security benefits and food stamps. Section 8 housing may also be affected by certain convictions.

Voting Rights

Voting rights are governed by State law. There is no prohibition in the U.S. Constitution regarding voting rights. There are not voting restriction in Maine, but a felony conviction in Maine may affect an ability to vote elsewhere.

Travel Restrictions

Other countries may restrict travel for someone with any conviction, including a felony. Canada, for example, has recently tightened the restrictions of visitors and what would prohibit entry.

Employment

The Maine Human Rights Commission and the EEOC interpret Title VII of the Civil Rights Act to prohibit employment policies that exclude people solely on the basis of their conviction. For certain jobs and professions, a felony conviction makes licensing difficult, however. For example, I think it would be very difficult to attain admission to the Bar to be an attorney. There are similar requirements for teachers, accountants, doctors, nurses, care givers, and other professions that are regulated. See 5 M.R.S.A. §5301–5303 precluding certain professional licenses for up to 3 years in some cases and 10 years in others after completion of sentence including probation. The same may be true regarding certain other jobs, particularly those which are government or military related, or require the individual to be bonded.

•  Convictions of offenses involving dishonesty, breach of trust, or money laundering disqualify an individual from working for institutions that are insured by the Federal Deposit Insurance Corporation. See 12 U.S.C. §1829.

•   Federal laws bar certain classes of felons from working in the insurance industry without having received permission from an insurance regulatory official. See 8 U.S.C. §1033(c)(2).

•   Certain classes of felons are barred, for 13 years after conviction or the end of imprisonment if sentenced for a term of longer than 13 years, from holding any of several positions in a union or other organization that manages an employee benefit plan, including serving as an officer of the union or a director of the unions governing board. See 29 U.S.C. §§504, 1111.

•   Federal law also prohibits those convicted of certain crimes from providing healthcare services for which they will receive payment from Medicare. See 42 U.S.C. §1320a-7, or from working for the generic drug industry. See 21 U.S.C. §335a.

•  A federal law that requires criminal history background checks for individuals who provide care for children. See 42 U.S.C. §13041. In addition, the Federal Child Protection Act, 42 U.S.C. §5119(a), authorizes states to enact statutes concerning the facilitation of criminal background checks of persons who work with children.

•  Those in a state “licensed profession, trade or occupation” can be denied licensing. See 5 U.S.C. §§5301-5303. This covers a broad range of occupations so look carefully at the statute. Consideration of the conviction in an analysis of “fitness to practice” lasts three years from final discharge from the correctional system which generally means three years after completion of probation or supervised release. For those in the medical fields, the period is ten years.

•  Since September 11, 2001, numerous efforts have been made to increase aviation security. Federal laws requiring background checks have been passed to ensure safety of travelers and airport employees. See 49 U.S.C. §§44935; 44936.


A recent law (26 M.R.S. §600-A) has stopped Maine employers from asking about previous convictions on a job application form, and from stating on that form or in an advertisement that a person with a conviction / a criminal history that an applicant may not apply or be considered for the position. Questions about convictions can only be done during an interview if the person is deemed to be qualified. There are exceptions to that if federal or state law or regulation creates a disqualification for certain offenses, or a person may not be employed for a conviction, as long as the questions are only limited to particular convictions based on relevant offenses. The same exception to the law applies if a law or regulation requires a background check for a prospective employee. Ask me for specific advice on this if this may be applicable to you.

Credibility

In any future legal proceeding, civil or criminal, a felony conviction can be used to impeach (undermine) someone's credibility. This is merely an evidentiary rule if a convicted felon is called as a witness in any type of a court proceeding. This remains true for 15 years from the date of conviction or 10 years from the date of release under the Maine Rules of Evidence. The Federal Rule is limited to 10 years with some exceptions. The time period may be longer in other states.

Social Security Benefits

A felony conviction will result in the suspension of SS benefits (disability or retirement) during any term of imprisonment. The SS Act bars payment of SS benefits to incarcerated felons. The statute does not concern misdemeanors, so a misdemeanor conviction does not affect benefits, even during a jail sentence. Upon beginning supervised release or probation, you may have payments reinstated by presenting your release papers to an SS office. A fully suspended sentence or a sentence on probation, even following a felony conviction, does NOT affect SS benefits. Once a sentence is completed a felony conviction should not affect  future rights to social security benefits under current law. There is no way of knowing what laws Congress may try and pass in the future.

DNA Database

Convictions of certain crimes in Maine state courts require that the defendant provide a blood sample for DNA typing to be added to a law enforcement database. See 25 M.R.S.A. §1574. For convictions after October 1, 2001 a DNA sample must be provided following any felony conviction, as well as any misdemeanor “sex” crime such as unlawful sexual contact, visual sexual aggression against a child, sexual misconduct with a child under14 years of age, or any lesser included offense of any crime of those listed if the greater offense is initially charged. “Lesser included offense” has the same meaning as in 17-A M.R.S.A. §13-A. This law has been upheld in both state and federal courts although it has yet to have been challenged in the Maine Law Court. DNA samples are being required of those convicted of almost all federal crimes as well.

Sex Offender Registration

Sex Offender Registration is mandatory after conviction of many Maine crimes and Federal crimes. If you someone is accused of a sex crime, this is a potential implication of a conviction for that crime. This is true for misdemeanor sex crimes as well.

Enhanced Future Sentences

Most states and federal law impose longer sentences on individuals with prior convictions. The amount of increase varies but has been getting longer. Some states have punitive “three strikes” type laws that can result in sentences of up to life imprisonment.

 

Denial of Student Loans / Federal Programs

Under federal law (21 U.S.C. §862 and 862a), those convicted of certain drug related offenses may be ineligible for certain federal benefits. This can include grants, professional licenses or contracts but not Social Security, retirement or Veteran benefits. Benefits such as food stamps or student loans, however, can be lost.

Future Collateral Consequences

The courts have consistently ruled that even after the “punishment” portion of a criminal conviction is over, certain collateral consequences can apply, even if such consequences WERE NOT in existence at the time of the conviction.

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