It seemed like a harmless legislative proposal to help victims of human trafficking. But after the Maine Legislative Council said Oct. 30 the bill proposed by Rep. Amy Volk, R-Scarborough, would not be taken up during the second session of the Legislature, which starts in January, the matter devolved into a partisan horror show. Some Republicans accused majority Democrats of waging a war on women. Conservative women’s groups held a rally at the State House. The heads of the state’s Democratic and Republican parties traded jabs, and people shared their opinions in columns in the BDN.
But so far the fighting has avoided the real problem: The well-intentioned bill, which aimed to expunge the prostitution convictions of sex trafficking victims, would probably be unconstitutional in Maine.
For better or worse, the Maine Constitution is stricter than constitutions in other states when it comes to the separation of powers of government — the legislative, judicial and executive branches. If the Legislature were to pass a law that states a court can scrub a conviction — whether for prostitution or not — from someone’s record, it could be argued it would infringe on the governor’s constitutional right to grant pardons. That right “is one of the constitutional requirements of the executive branch. It’s exclusive to the executive branch,” Attorney General Janet Mills said.
The Maine Constitution states, “The powers of this government shall be divided into 3 distinct departments, the legislative, executive and judicial. … No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others.” One of the powers belonging to the executive, not the judicial, branch is the ability to forgive convictions: “The Governor shall have power to remit after conviction all forfeitures and penalties, and to grant reprieves, commutations and pardons.”
These constitutional provisions have been challenged before, without success. In the 1982 case of State v. Hunter, the Department of Corrections urged the court to not even go so far as to vacate a conviction but, rather, reduce the prison sentence of a man named Gary Hunter, who was serving eight years for homicide. Based on statute re-written in 1975 that aimed to allow greater review of sentences, the department argued Hunter had an exemplary record, had participated in alcohol counseling and was a full-time student at the Bangor Theological Seminary — and so deserved to be resentenced.
The Supreme Judicial Court disagreed, however, saying the statute encroached upon the power of the executive branch to commute sentences. It declared the statute unconstitutional. Though Volk’s proposed bill has a noble purpose to better the lives of sex trafficking victims, if it passed it would likely be vulnerable to a similar successful court challenge.
If legislators want to have a debate about whether it’s wise to create a loophole for one crime and likely face a legal challenge because of it, then the Legislative Council should let Volk’s bill through, when it hears appeals next week, for consideration by the Legislature. But no Republican nor Democrat should be using the bill to score political points. Volk’s proposal is far more complicated than it first appears.
We fully support the idea that people who are being trafficked shouldn’t face charges of prostitution and shouldn’t have those convictions on their record. They shouldn’t be treated as criminals when they are the victims. That is one reason why the governor’s pardon power exists. Though lead attorneys in Maine are unaware of any prostitution convictions involving people who said they were victims of trafficking, if there were, Gov. Paul LePage could justifiably issue a pardon.
There are also options available to district attorneys. They have discretion about who to charge, or they can dismiss charges already brought.
Of course the state must continually improve its response to better prevent trafficking and serve victims. And it is making changes. After legislation passed in the spring, Maine now has a crime of “aggravated sex trafficking,” which makes more resources available to survivors and increases penalties for traffickers. Recently, a coalition led by social service agency Preble Street won a $400,000 grant to provide case management, legal and health services, and outreach for victims of human trafficking in Cumberland and York counties.
Instead of creating an expungement exception for one crime, which could cause expensive, complicated and unnecessary legal problems, the state might rather focus on how best to train prosecutors to identify when people who appear to be prostitutes are actually victims of sex trafficking — and focus on best strategies for prosecuting pimps. The state could also do more to ensure quality services for victims are in place across the state. Those tactics have the benefit of being both needed and constitutional.