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Potential Reforms Considered For Mainers With A Criminal Record

Stock image: PIxabay

First steps are being considered by Maine legislators to help those with a criminal past escape their mistakes - and limit how employers can ask job applicants about their criminal history.

At present, the criminal records of those convicted of crimes in Maine are held in perpetuity over the heads of those convicted of crimes. There is currently no mechanism to expunge records in the state - only how to limit access. Expungement effectively means the slate is wiped clean, and after the process you can say you do not have a criminal record for the relevant offense. The lack of an expungement mechanism in Maine is in complete contrast to other New England states (see the relevant legislation in Vermont, New Hampshire (which calls the process annulment), Massachusetts, Rhode Island, and Connecticut (which calls the process erasure, rather than expungement)).

The legislature has proposed establishing a 23-member Criminal Records Review Committee that could result in reform. However, it’s merely a first step towards proposed legislation. Members of the committee (or their representatives) would include the Attorney General, Commissioners of Health and Human Services, Corrections, and Public Safety, as well as organizations representing prosecutors, defense lawyers, legal advisors to immigrants, sheriffs, and others.

The committee, if established, would examine how other states allow expungement of criminal histories, whether there should be a time limit on the availability of criminal records, and who should have access to records if an access time limit applies. It would also look at how the state should treat offenses that are now decriminalized.

If the committee set up, it would then submit a report to the Joint Standing Committee on Judiciary with findings and recommendations, including suggested legislation, before November 4 this year - in time for the next legislative session. At time of writing this post, the proposal was being considered by the Committee on Judiciary. Check progress here.

However, even if the uncertain hurdle of actually establishing the committee is overcome, there is also a huge funding catch. For the committee to then actually do its work, according to the current proposal, only a tiny budget of tax dollars has been allocated for the committee and outside funding would be needed. If that funding is not forthcoming within 30 days of an approval to form it, no meetings can be held. The one-time costs allocated for this committee in the current proposal is just $2,750, hence the need for extra funding.

As already stated, Maine is becoming an outlier (and is alone in New England) in not allowing expungement. For additional context, other countries adopt this ‘expungement’ process automatically. The United Kingdom starts a clock upon conviction for minor crimes, which is set by statute and is directly related to the sentence given. After a statutory period (connected to the disposition of the offense) a conviction is regarded as ‘spent’ and, except for certain jobs, does not have to be declared (prison sentences over four years are never ‘spent’). A convicted person does not have to go to court seeking expungement. the statutory structure simply allows the convicted person to not have to declare the conviction (or legally be asked about it) and he/she is then allowed to resume a law-abiding life if there are no other convictions.

Applications for jobs by those with a criminal history.

Another important potential reform bill currently being considered would restrict when potential employers could inquire about a job applicant’s criminal history. This proposal would effectively ‘ban the box’ to stop applicants being taken out of consideration for positions merely for having checked a box on an application form that they had a criminal conviction.

If an applicant gets to the interview stage, the applicant could then be asked about a criminal history. It isn’t a perfect solution - but at least a recognition that people can make mistakes and may need additional help to at least get in the door.

Maine is one of a minority of eighteen states (with New Hampshire being the only other New England state) that has no such state-wide law to 'ban the box'. The other seventeen states are Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Mississippi, Montana, New Hampshire, North Carolina, South Carolina, South Dakota, Texas, West Virginia, and Wyoming.

The proposed law would also stop employers from advertising that those with convictions need not apply for the promoted position. It also gives a nominal ‘right to explain’ to an applicant, although the wording of this part of the proposed law does not state what that opportunity to explain means in practice.

As always there are also exceptions. Certain types of application forms for jobs that are subject to state or federal regulation about a person’s criminal history could be used inquire about previous convictions. This could be allowed if a conviction is relevant to the job or the employer is required by law to conduct a background check. The restriction on advertising mentioned above would also not apply in those circumstances.

The bill would also provide a ‘right of action’ in court for discrimination that could be brought by an applicant or the state’s Department of Labor. Enforcement action powers are also given to the Attorney General’s office. However, the applicable civil fines (not less than $100 and no more than $500 for each offense) are small.

Check progress of this proposal here.


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