An Act To Amend the Maine Criminal Code as Recommended by the Criminal Law Advisory Commission
Maine Legislature, Session 121, LD 1020
Committee: Criminal Justice and Public Safety
Amends: 17-A MRSA §106, 17-A MRSA §107, 17-A MRSA §210, 17-A MRSA §451, 17-A MRSA §452, 17-A MRSA §454, 17-A MRSA §1108, 17-A MRSA §1158, 17-A MRSA §1159, 17-A MRSA §1252, 17-A MRSA §1252-B, 17-A MRSA §1302, 17-A MRSA §1352, 17-A MRSA §1355

Legislative Document 
No. 1020 
H.P.741 
House of Representatives, February 25,2003 
An Act To Amend the Maine Criminal Code as Recommended by 
the Criminal Law Advisory Commission 
Reported by Representative BUNKER of Kossuth Township for the Criminal Law 
Advisory Commission pursuant to the Maine Revised Statutes, Title 17 -A, section 1354, 
subsection 2. 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed under Joint Rule 218. 
Printed on recycled paper 
7JJ~ 
1J7.17ltU~ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 17-A MRSA §106, sub-§I-A is enacted to read: 
I-A. 
For purposes of subsection 1, "reasonable degree of 
force" is an objective standard. 
To constitute 
a 
reasonable 
degree of force, the physical force applied to the person may 
result in no more than transient discomfort or minor temporary 
marks on that person. 
Sec. 2. 17-A MRSA §106, sub-§4, as enacted by PL 1975, c. 499, 
§1, is amended to read: 
4. 
The justification extended in subsections ±T 2 and 3 
does not apply to the p1:il:'pese;l;1:i± intentional or reckless use of 
force that creates a substantial risk of death, serious bodily 
injurYT or extraordinary pain. 
Sec. 3. 17-A MRSA §107, as amended by PL 1995, c. 215, §§2 
and 3, is further amended to read: 
§107. Physical force in law enforcement 
1. 
A law enforcement officer is justified in using 
a 
reasonable degree of nondeadly force upon another person: 
A. 
When and to the extent that Be the officer reasonably 
believes it necessary to effect an arrest or to prevent the 
escape from custody of an arrested person, unless Be the 
officer knows that the arrest or detention is illegal: or 
B. 
To defend himself or herself or a 3rd person from what 
Be the officer reasonably believes to be the imminent use of 
unlawful 
nondeadly 
force 
encountered while attempting to 
effect such an arrest or while seeking to prevent such an 
escape. 
2. 
A law enforcement officer is justified in using deadly 
force only when Be the officer reasonably believes such force is 
necessary: 
A. 
To defend himself or herself or a 3rd person from what 
Be the officer reasonably believes is the imminent use of 
unlawful deadly force: or 
B. 
To effect an arrest or prevent the escape from arrest of 
a 
person 
when 
the 
law 
enforcement 
officer 
reasonably 
believes that the person has committed a crime involving the 
use or threatened use of deadly force, is using a dangerous 
weapon in attempting to escape or otherwise indicates that 
the person is likely to 
inflict serious bodily 
delay; and 
endanger seriously human life or to 
injury unless 
apprehended without 
(1) 
The law enforcement officer has made reasonable 
efforts to advise the person that the officer is a law 
enforcement officer attempting to effect an arrest or 
prevent the escape 
from arrest and the officer has 
reasonable grounds to believe that the person is aware 
of this advice; or 
(2) 
The 
law enforcement officer reasonably believes 
that the person to be arrested otherwise knows that the 
officer is 
a 
law enforcement officer attempting to 
effect an arrest or prevent the escape from arrest. 
For purposes of this paragraph, "a reasonable belief that 
another has committed a 
crime involving use or threatened 
use of deadly force" means such reasonable belief in facts, 
circumstances and the law which, if true, would constitute 
such 
an 
offense 
by 
that 
person. 
If 
the 
facts 
and 
circumstances reasonably believed would not constitute such 
an offense, an erroneous but reasonable belief that the law 
is otherwise justifies the use of deadly force to make an 
arrest or prevent an escape. 
3. 
A 
private 
person 
who 
has 
been directed 
by 
a 
law 
enforcement officer to assist Bim the officer in effecting an 
arrest or preventing an escape 
from 
custody is justified in 
usingtl.. 
A. 
A reasonable degree of nondeadly force when and to the 
extent that Be the private person reasonably believes such 
to be necessary to carry out the officer's direction, unless 
Be the private person believes the arrest is illegal; or 
B. 
Deadly force only when Be the private person reasonably 
believes such to be necessary to defend himself or herself 
or a 3rd person from what Be the private person reasonably 
believes to be the imminent use of unlawful deadly force, or 
when the law enforcement officer directs Bim the private 
person 
to 
use 
deadly 
force 
and 
Be 
the 
private 
person 
believes 
s~eB the officer 
Bimsel~ is authorized to 
use 
deadly force under the circumstances. 
4. 
A private person acting on his or her own is justified 
in using: 
A. 
A reasonable degree of nondeadly force upon another when 
and to the extent that Be 
the private person reasonably 
believes it necessary to effect an arrest or detention waiea 
~ 
is lawful for aim the private person to make or prevent 
the escape from such an arrest or detention; or 
B. 
Deadly force only when the private person reasonably 
believes such force is necessary: 
(1) 
To defend ae the person or a 3rd person from 
the 
private citizen 
reasonably believes 
to 
be 
imminent use of unlawful deadly force; or 
what 
the 
(2) 
To effect a lawful arrest or prevent the escape 
from such arrest of a person who in fact: 
(a) 
Has 
threatened 
committed 
use of 
dangerous weapon in 
a 
crime involving the use or 
deadly force, 
or is using 
a 
attempting to escape; and 
(b) 
The 
private 
citizen 
has 
made 
reasonable 
efforts to advise the person that the citizen is a 
private citizen attempting to effect an arrest or 
prevent the escape from arrest and has reasonable 
grounds to believe the person is aware of this 
advice or the citizen reasonably believes that the 
person to be arrested otherwise 
knows 
that the 
citizen is a private citizen attempting to effect 
an arrest or prevent the escape from arrest. 
5. 
Except where otherwise expressly provided, a corrections 
officer, corrections supervisor or law enforcement officer in a 
facility where persons are confined, pursuant to an order of a 
court or as a result of an arrest, is justified in using deadly 
force against such persons under the circumstances described in 
subsection 2. 
The officer or another individual responsible for 
the custody, care or treatment of those persons is justified in 
using a 
reasonable degree of nondeadly force when and to the 
extent the officer or 
the 
individual 
reasonably believes it 
necessary to prevent any escape from custody or to enforce the 
rules of the facility. 
5-A. 
A corrections officer, corrections supervisor or law 
enforcement officer is justified in using deadly force against a 
person 
confined 
in 
the 
Maine 
State 
Prison 
el'---t-he---Mai-ae 
GeFFeetieaa±-~~~-t~~~---Wal'l'ea when the officer or supervisor 
reasonably believes that deadly force is necessary to prevent an 
escape 
from 
custody. 
The 
officer 
or 
supervisor 
shall 
make 
reasonable efforts to advise the person that if the attempt to 
escape does not stop immediately, 
deadly force will be used. 
This 
subsection 
does 
not 
authorize 
any 
corrections officer, 
corrections supervisor or law enforcement officer who 
is not 
employed by a state agency to use deadly force. 
7. 
Use of force that is not justifiable under this section 
in effecting an arrest does not render illegal an arrest that is 
otherwise legal and the use of such unjustifiable force does not 
render inadmissible anything seized incident to a legal arrest. 
8. 
Nothing in this section constitutes justification for 
conduct 
by 
a 
law 
enforcement 
officer 
or 
a 
private 
person 
amounting to an offense against innocent persons whom ae the 
officer or private person is not seeking to arrest or retain in 
custody. 
Sec. 4. 17-A MRSA §210, sub-§l, as amended by PL 2001, c. 383, 
§ll and affected by §156, is further amended to read: 
1. 
A person is guilty of terrorizing if that person in fact 
communicates to any person a threat to commit or to cause to be 
committed a crime of violence dangerous to human life, against 
the person to whom the communication is made or another, and the 
natural and probable consequence of such a threat, whether or not 
such consequence in fact occurs, is: 
A. 
To place the person to whom the threat is communicated 
or the person threatened in reasonable fear that the crime 
will be committed. 
Violation of this paragraph is a Class D 
crime; or 
B. 
To cause evacuation of a building, place of assembly or 
facility of public transport or to cause the occupants of a 
building 
to 
be 
moved 
to 
or 
required 
to 
remain 
in 
a 
designated secured area. 
Violation of this paragraph is a 
Class C crime. 
Sec. 5. 17-A MRSA §451, sub-§3-A, as enacted by PL 1981, c. 
317, §13, is repealed. 
Sec. 6. 17-A MRSA §452. sub-§2-A, as amended by PL 1983, c. 
450, §3, is repealed. 
Sec. 7. 17-A MRSA §454, sub-§l, ~A, as amended by PL 2001, c. 
383, §63 and affected by §156, is further amended to read: 
A. 
Induces or otherwise causes, or attempts to induce or 
cause, a witness oi informant: 
(1) 
To testify or inform ~alsely in a manner the actor 
knows to be false; or 
(2 ) 
To withhold testimony, information or evidence. 
Violation of this paragraph is a Class C crime; 
Sec. 8. 17-A MRSA §1108, sub-§5, as enacted by PL 2001, c. 
419, §20, is amended to read: 
5. 
For purposes of the causation required by subsection 1, 
engaging in an act of deception described in subsection 
2, 
paragraph A or B is-~-t.-o--.aave gives rise to a ]?ermissible 
inference under the Maine Rules of Evidence, Rule 303, that the 
act of dece]?tion in fact resulted in the acquisition of any drugs 
prescribed 
to 
that 
person 
by 
that 
prescribing 
health 
care 
provider or person acting under the direction or supervision of 
that prescribing health care provider. 
Sec. 9. 17-A MRSA §1158, first" as repealed and replaced by 
PL 2001, c. 667, Pt. A, 
§37 and affected by §38, is amended to 
read: 
As 
part 
of 
every 
~aa~eH~--et--eeRvie~ieH--aRa sentence 
imposed, a firearm must be forfeited to the State if that firearm: 
Sec. 10. 17-A MRSA §1159 is enacted to read: 
§1159. 
Recalcitrant witness in execution of sentence 
involving impriSOnment 
In 
the 
event 
a 
witness 
in 
a 
grand 
jury 
or 
criminal 
proceeding has been ordered confined by a court of record in the 
State as a remedial sanction for refusing to comply with an order 
of the court to testify or provide evidence, and that witness is 
already in execution of an undischarged term of imprisonment on a 
sentence in the State, that court may order that the undischarged 
term of imprisonment be tolled for the duration of the coercive 
imprisonment. 
Sec. 11. 17-A MRSA §1252, sub-§2, llA, as amended by PL 1995, 
c. 473, §1, is repealed and the following enacted in its place: 
A. 
In the case of a Class A crime, the court shall set a 
definite 
period 
not 
to 
exceed 
years. 
The 
Supreme 
Judicial Court may establish sentencing factors within the 
sentencing range; 
Sec. 12. 17-A MRSA §1252. sub-§4-A, as repealed and replaced 
by PL 2001, c. 667, Pt. A, §39 and affected by §40, is amended to 
read: 
4-A. 
If the State pleads and proves that, at the time any 
crime, 
excluding murder, 
under chapter 
9, 
11, 
or 
was 
commi tted, the defendant had been convicted of 2 or more crimes 
violating chapter 9, 11, 13 or 27 or essentially similar crimes 
in other jurisdictions, the sentencing class for the crime is one 
class higher than it would otherwise be. 
In the case of a Class 
A crime, the sentencing class is not increased, but the prior 
record must be given serious consideration by the court when 
imposing 
a 
sentence. 
Section 
9-A governs 
the 
use 
of prior 
convictions when determining a sentence, except that, for the 
purposes of this subsection, the dates of prior convictions may 
have occurred at any time. 
This subsection does not apply to 
section 2l0-A if the prior convictions have already served to 
enhance the sentencing class under section 210-A, subsection L 
paragraph C. 
Sec. 13. 17-A MRSA §1252-B, as repealed and replaced by PL 
1995, c. 433, §l, is repealed. 
Sec. 14. 17-A MRSA §1302, sub-§I, as enacted by PL 1999, c. 
367, §3, is amended to read: 
1. 
In determining the amount of a fine, unless the fine 
amount is mandatory, and in determining the method of payment of 
a fine, the court shall take into account the present and future 
financial capacity of the offender to pay the fine and the nature 
of the financial burden that payment of the fine will impose on 
the offender or a dependent of the offender, if any. 
Sec. 15. 17-A MRSA §1352. sub-§3. as enacted by PL 1975, c. 
740, §124, is amended to read: 
3. 
In the event of the death or resignation of 
member, 
the vacancy for Ris the member's unexpired term 
must be filled by the Attorney General. 
aBY 
~ 
sRa;!,;!, 
Sec. 16. 17-A MRSA §1355, sub-§I, as enacted by PL 1975, c. 
740, §124, is amended to read: 
1. 
The Attorney General shall notify all members of the 
time and place of the first meeting. At that time the commission 
shall organize, elect a 6RaitffiaB chair, viee-eRaitffiaB vice-chair 
and secretary-treasurer and adopt rules as to the administration 
of the commission and its affairs. The commission shall maintain 
such financial records as may be required by the State Auditor. 
Sec. 17. Effective date. 
That section of this Act that repeals 
the Maine Revised Statutes, Title 17-A, 
section 1252-B takes 
effect January 1, 2004. 
SUMMARY 
Section 
defines 
"reasonable 
degree 
of 
force" 
in 
the 
context of the use of physical force by a parent, foster parent, 
guardian or other similar person responsible for the long-term 
general care and welfare of a 
person, 
as limited to applying 
physical force to a person that at most results in transient pain 
or minor temporary marks on that person. 
As enacted, the Maine 
Revised 
Statutes, 
Ti tIe 
-A, 
section 
106, 
subsection 
I-A 
reflects current Maine case law respecting use of physical force 
by a parent to prevent or punish a child's misconduct. 
See State 
v. York, 
2001 ME 30,766 A.2d 570. 
In section 2, in light of 
this new Title 17-A, section 106, subsection I-A definition, the 
reference to subsection 1 is removed from Title 17 -A, 
section 
106, subsection 4. 
The word "purposeful" is replaced with the 
equivalent 
word 
"intentional" 
in 
Title 
-A, 
section 
106, 
subsection 4 to reflect Maine Criminal Code language usage. 
See 
Title 17-A, section 2, subsection 15. 
Section 3 amends the law regarding the use of physical force 
in law enforcement in 3 ways. 
First, it adds the word "unlawful" 
to the law to specify that a law enforcement officer or private 
person 
may 
use 
force 
upon 
another 
when 
the 
law 
enforcement 
officer or private person reasonably believes that there exists 
an imminent use of "unlawful" force by another. 
The addition of 
"unlawful" makes this law consistent with other use of force 
provisions in Chapter 5 of the Maine Criminal Code. 
Second, this 
section strikes an outdated reference to the Maine Correctional 
Institution -
Warren. 
Third, the section makes the Maine Revised 
Statutes, Ti tIe 17 -A, section 107 gender neutral in conformance 
with drafting standards. 
Section 
adds 
the 
phrase 
"in 
fact" 
before 
the 
word 
"communicates" in the Maine Revised Statutes, Title 17-A, section 
210, subsection 1 to clarify that no culpable mental state need 
be proved. 
The addition mirrors Maine case law. 
See State v. 
Porter, 384 A.2d 429, 433-434 (Me. 1978), 
Sections 5 and 6 repeal the Maine Revised Statutes, Title 
-A, 
section 451, 
subsection 3-A and section 452, 
subsection 
2-A. 
Each subsection was 
intended to continue in effect the 
traditional "2 witness" rule as set forth in State v. Farrington, 
A.2d 396, 401 (Me. 1980). 
See State v. Anthoine, 2002 ME 22, 
~f8, 789 A.2d 1277,1279, n.2. 
However, neither section of law 
accurately expresses the rule or any exception to the rule. 
Both 
provisions are deleted in favor of allowing State v. Farrington 
and subsequent cases to speak to the rule and any exception to it. 
Section 7 clarifies the Maine Revised Statutes, Title 17-A, 
section 454, subsection 1, paragraph A, which concerns tampering 
with a witness, informant, juror or victim, by specifying that 
the 
actor 
must 
be 
aware 
at the 
time 
the 
actor 
induces 
or 
otherwise causes, or attempts to cause, a witness or informant to 
testify or inform falsely that such testimony or information is 
false. 
Section 8 
amends the Maine Revised Statutes, Title 17-A, 
section 1108, 
subsection 5, 
which concerns acquiring drugs by 
deception, to clarify that the trier of fact is permitted, as 
authorized by the Maine Rules of Evidence, Rule 303(b), to infer 
the causation element of "acquiring" from the act of deception 
described in Title 17-A, section 1108, subsection 2, paragraph A 
or 
B. 
The 
section is 
not 
intended to create 
a 
conclusive 
presumption. 
Section 9 strikes from the Maine Revised Statutes, Title 
-A, section 1158, which concerns the forfeiture of firearms, 
the 
reference 
to 
the 
"judgment 
of 
conviction" 
to 
eliminate 
confusion. 
The forfeiture of a firearm is part of the sentence 
while the sentence is part of the judgment. 
See the Maine Rules 
of Criminal Procedure, Rule 32(b). 
Section 10 provides for the tolling of 
a 
Maine sentence 
involving imprisonment in the event the person in execution of 
that sentence is 
a 
recalcitrant witness in 
a 
grand jury or 
criminal proceeding in a 
Maine court of record and has been 
ordered into coercive imprisonment as 
a 
remedial sanction for 
refusing to comply with an order of the court to testify or to 
provide evidence. 
In 1988 the Legislature doubled the maximum 
sentence of 
imprisonment for Class A crimes from 20 years to 40 years. 
See 
Public 
Law 
1987, 
chapter 
808, 
codified as 
the Maine 
Revised 
Statutes, Title 17-A, section 1252, subsection 2, paragraph A. 
In 1991 the Law Court examined the legislative history of that 
Act 
and determined that the legislative intent was 
to 
"make 
available two discrete ranges of sentences for Class A crimes." 
See State v. Lewis, 590 A.2d 149, 151 (Me. 1991). 
Most Class A 
crime sentences were intended to remain in the original 0 to 20 
year range, while the "expanded range" of 20-40 year sentences 
was 
reserved 
"only 
for 
the 
most 
heinous 
and violent 
crimes 
committed against a person" (590 A.2d at 151). 
The sentencing 
court 
was 
to 
apply 
this 
"heinousness" 
standard 
"in 
its 
discretion" as a sentencing factor, subject to appellate review 
(590 A.2d at 151). 
This two-tier system has been placed under a constitutional 
cloud by the decision of the United States Supreme Court in 
Apprendi v. 
New Jersey, 
U. S. 
(2000), which held that 
sentencing 
factors 
increasing 
punishment 
beyond 
the 
maximum 
authorized must be treated as elements of crimes to be pleaded 
and proved beyond a reasonable doubt rather than as sentencing 
factors. 
Since the "heinousness" standard can be interpreted as 
increasing the 
maximum 
punishment of 
up 
to 
years 
to the 
"expanded 
range" 
of 
to 
years, 
it 
is 
potentially 
unconstitutional absent legislative correction. 
The new Title 17-A, section 1252, subsection 2, paragraph A 
eliminates 
the constitutional doubts 
by replacing 
the 2-tier 
system with 
a 
single sentencing range, 
while preserving the 
Supreme Judicial Court's discretion to establish and enforce, 
through 
appellate 
review, 
sentencing 
factors 
that 
avoid 
excessively harsh sentences. 
It is not intended that this change 
modify current sentencing practices. 
Section 12 clarifies that if the State pleads and proves 
that an actor has 2 or more prior convictions for stalking under 
the Maine Revised Statutes, Title 17-A, section 210-A, the State 
may not plead and prove further sentencing class enhancement 
under Title 17-A, section 1252. 
Effective January 1, 2004, section 13 eliminates the current 
requirement under the Maine Revised Statutes, Title 17-A, section 
1252-B that deductions for good time and meritorious good time be 
taken into consideration when a sentencing alternative involving 
imprisonment is requested or recommended by a party or imposed by 
a court. 
In 1988 
the 113th Legislature enacted the Maine 
Revised 
Statutes, Title 17-A, section 1252-B, which for the first time 
expressly 
precluded 
a 
sentencing 
court 
from 
ignoring 
administrative awards for good time and meritorious good time III 
the sentencing decision and instead required that such awards be 
considered. 
See Public Law 1987, chapter 808, section 2. 
Seven years later, in 1995, the 117th Legislature enacted 
the Maine Revised Statutes, Title 17 -A, section 1253, subsection 
8, 
which 
on or after October 
1, 
1995 
markedly 
reduced 
the 
statutory deductions for 
good time 
and meritorious 
good 
time 
authorized under that same section. 
See Public Law 1995, chapter 
433, 
section 4. 
The resulting disparity In an administrative 
award 
of 
good 
time 
and 
meritorious 
good 
time 
for 
persons 
committing 
crimes prior to October 
1, 
1995 
and 
for 
persons 
committing crimes on and after that date is illustrated by the 
following: 
A person who 
committed a 
crime before October 1, 
1995, and subsequently was sentenced to a term of imprisonment of 
more than 6 months, and receives maximum deductions under section 
1253, subsections 3, 4 and 5, or about 180 days a year, will 
serve about 
57% 
of the 
term of 
imprisonment. 
A person who 
commits a crime on or after October 1, 1995, and subsequently is 
sentenced to 
a 
term of imprisonment of more 
than 
months, 
receiving maximum deductions under section 1253, subsection 8, or 
about 
days 
a 
year, will serve about 
85°1> 
of the term of 
imprisonment. 
At 
the 
same 
time 
that 
the 
Legislature 
prospectively sharply reduced good time and meritorious good time 
awards, because sentencing courts since 1988 had been required to 
take 
good 
time 
and 
meritorious 
good 
time 
deductions 
into 
consideration in their 
sentencing decisions, 
the 
Legislature 
repealed and replaced Maine Revised Statutes, Title 17-A, section 
1252-B 
to 
address 
the disparity. 
As 
replaced, 
Title 
17-A, 
section 1252-B designated the existing provisions as subsection 1 
with added specific reference to the deductions applicable to 
crimes committed prior to October 1, 1995, namely section 1253, 
subsections 3, 
3-B, 
and 
5, 
and added a 
subsection 2 that 
addressed the disparity in deductions created by section 1253, 
subsection 8. 
See Public Law 1995, chapter 433, section 1. 
The 
Legislature directed in subsection 2 that to the extent that 
longer terms of imprisonment have previously been imposed in an 
effort to compensate for the impact of substantial good time and 
meritorious good time deductions, an adjustment must be made in 
the sentencing process for crimes committed on or after October 
1, 
1995 in view of the substantially reduced deduction under 
subsection 8. 
By January 1, 2004, the Maine Revised Statutes, Title 17 -A, 
section l252-B, 
subsection 
will have been 
law for over 
years. 
During 
this 
transitional 
period, 
a 
large 
number 
of 
sentences subject to adjustment for the substantially reduced 
deductions have been imposed. 
That body of sentences serves to 
inform a court's sentencing decision rather than the pre-1995 
sentences. 
With its intended legislative purpose accomplished, 
this directive is no longer necessary. 
Repealing Title l7-A, 
section 
1252-B 
is 
necessary 
to 
accomplish 
the 
intended 
fundamental policy change of allowing both the parties and the 
sentencing court to ignore administrative awards for good time 
and meritorious good time when a sentencing alternative involving 
imprisonment is requested or recommended by a party or imposed by 
a court. 
Section 
amends 
the 
criteria 
for 
imposing 
fines 
to 
expressly recognize 
the existing limitation upon 
the court's 
discretion in the event the fine amount is mandatory and thus the 
convicted offender must be sentenced to pay the fine amounts 
required under the Maine Revised Statutes, Title 17 -A, sections 
1201 and 1301. 
Section 16 amends the Maine Revised Statutes, Title 17 -A, 
chapter 55, which concerns the Criminal Law Advisory Commission, 
to make section 1352, subsection 3 gender neutral. 
Section 17 amends the Maine Revised Statutes, Title 17 -A, 
chapter 55, which concerns the Criminal Law Advisory Commission, 
to make section 1355, subsection 1 gender neutral.