dissenting.
I must respectfully dissent. In delivering a fatal blow to the second branch of 17-A M.R.S.A. § 1255(2), the majority repeats the error of the Superior Court justice by violating the most basic principle of statutory construction and ignoring the unique characteristics of a protective sentence. Stated simply, the statute has been misinterpreted to create, rather than avoid, constitutional confrontation.
In numerous opinions, this Court has affirmed the obligation to construe and interpret a statute so as to sustain it rather than defeat it. As was stated most recently:
We start from the fundamental precepts that courts will, if possible “construe legislative enactments so as to avoid a danger of unconstitutionality” and that the central purpose of statutory construction is “to save, not destroy.” State v. Davenport, Me., 326 A.2d 1, 5-6 (1974).
State v. Crocker, Me., 435 A.2d 58, 63 (1981). The same fundamental precept has been stated even more explicitly:
The duty of this Court is to determine if these provisions of the Act are susceptible of a reasonable interpretation which would satisfy constitutional requirements. If there is such an interpretation, we are bound to adopt that interpretation as it sustains the statute.
Portland Pipe Line Corp. v. Environmental Improvement Comm’n, Me., 307 A.2d 1, 15 (1973). This Court must assume that the legislature, in enacting any law, does so with full knowledge of constitutional restrictions and with an intent to act within those restrictions. See Martin v. Maine Savings Bank, 154 Me. 259, 147 A.2d 131 (1958). The presumption which attaches to legislative enactments should lead the judiciary inexorably to accept the reasonable interpretation of an enactment which will uphold the legislative act. The statute presented in the instant case lends itself to such a reasonable interpretation within the bounds of the constitution.
The majority adopts as the only possible interpretation of section 1255(2) that interpretation stated by the Superior Court, namely, the authority to “modify a sentence, after it had been imposed, on the ground of changes in the attitude or behavior of the offender.” Such a conclusion overlooks and disregards an alternative “reasonable interpretation” which in my judgment is even more consonant with the express language of the statute and which presents no constitutional infirmity.
One must approach section 1255(2) with an understanding that it was developed as an integral part of a total revision of the laws relating to crime and punishment which resulted in the adoption of the Maine Criminal Code. The advent of determinate *804sentencing and the abolition of parole presented the likelihood of longer sentences involving substantially more actual confinement. For the first time the Code identified the goals of sentencing and specifically included protection of the public in addition to factors reflecting the aims of deterrence, rehabilitation and punishment.1 Since the so-called protective sentence forms the basis for any authority which a court might have under the second branch of section 1255(2), it is necessary to understand how it differs from a sentence designed to serve other aims.
One will not find any comprehensive discussion of protective sentences in the case law of Maine or most other states because of the absence of a system for effective appellate review of sentencing. One of the benefits of full appellate scrutiny would be a decisional discourse and an evolving body of law dealing with the principles of sentencing. See M. Frankel, Criminal Sentences 75-85 (1973). There is, however, a body of literature in the area of criminal sentencing which provides substantial information concerning the type of sentence referred to in section 1255(2). A protective sentence is defined as serving the aim of incapacitation. The length of the sentence alone incapacitates the defendant from committing any further criminal acts.
To the extent that the intent of the sentence is purely incapacitative, ‘attention is not focused on the reduction of the offender’s propensity for future criminal acts; rather the offender is controlled so as to preclude his opportunity for such behavior at least while under the authority of the state.’
M. Gottfredson, D. Gottfredson Decision-making in Criminal Justice, p. 174 (1980).
A comparative view of the use of this principle of sentencing may be found in N. Walker, Sentencing In A Rational Society (1971). The author recounts that at one point in the history of Germany and Britain, certain offenders first served a term of detention appropriate to accomplish retribution for the crime and then went on to serve the prophylactic portion of the sentence designed to incapacitate. The author points out that the common element in most penal codes which provide for such prophylactic sentences is the requirement that there be evidence that the offender is unlikely to respond to ordinary penal measures. The Criminal Justice Act of 1967 in England is summarized by the author and is identified as the latest and most elaborate definition of a class of offenders subject to protective sentencing:
(i) the offender must have been convicted on at least four separate occasions of any offence punishable with two or more years’ imprisonment;
(ii) the convictions must have occurred since his twenty-first birthday;
(iii) they must have taken place in a higher court;
(iv) the custodial sentences imposed must have added up to not less than five years, and included at least one of three years or more or at least two of two years or more;
(v) the offence for which the precautionary sentence is imposed must have been committed within three years of his last conviction or release from custody for an offence punishable with at least two years’ imprisonment.
Supra, at 133. The author’s description of the path leading to increased prominence of protection as a justification for sentencing may aptly describe the experience in Maine:
As retribution and general deterrence become unfashionable justifications for imprisonment, the emphasis shifts to correction and protection. And when the corrective efficacy — at least of long sentences — begins to be questioned, the only safe ground left is protection. Parallel with these trends can be seen a change in the conception of protective sentences. In the nineteenth century, when most prison sentences were by our standards *805very long, it was unnecessary to devise special precautionary sentences. As they shortened, a demand was created for longer ones in the case of certain offenders, who were defined either as habitual criminals or as being likely to commit certain particularly objectionable crimes.
Supra, at 132.
Unlike the English Parliament, the Maine legislature chose not to specify the precise factual basis upon which a prophylactic or protective sentence should be considered. However, the existence and importance of the concept is demonstrated by its prominent inclusion in the general aims of sentencing, and there is no doubt that such prophylactic sentences are imposed by the Superior Court in appropriate circumstances.
Review of authoritative writings on the subject of criminal sentencing and the language of the statute lead me firmly to the opinion that the Maine legislature focused strictly upon the protective sentence in enacting the second branch of section 1255(2). The legislature authorized resentencing only if the sentencing judge found that he had misapprehended the amount of time incapacity was required for societal protection. Such authority would not extend to every criminal sentence of incarceration but would be confined to those sentences which were truly prophylactic. The absence of statutory definition increases the difficulty in objectively identifying such a sentence but does not render it impossible. The offender is one who is deemed to be incorrigible or at least unlikely to respond to ordinary penal measures. His sentence is longer in duration than would be necessary to serve the purposes of deterrence, rehabilitation or punishment. The sentencing judge, to some extent, ignores the needs of the individual defendant and measures the need of society to be protected. The resulting sentence is for a substantial number of years, usually in excess of five, since any shorter period would hardly serve any legitimate need for protection.2 It is important to note that since the determination of incorrigibility and the need for protection rests exclusively with the sentencing judge, unguided by statute, only he may know whether protection entered the sentencing equation.
Three factors give rise to the need for a means of error correction: (1) the specific inclusion of societal protection in the general aims of sentencing; (2) determinate sentencing ranging from one day to twenty years for certain offenses; and (3) the abolition of parole. Section 1255(2) is the sole legislative response to what would otherwise be a fertile field for egregious injustice. The almost boundless discretion granted to the sentencing judge in imposing a protective sentence is checked only by that judge’s ability and authority to correct errors. This slim thread the majority now removes.
One must look at criminal sentencing as a fluid process encompassing both sentence imposition and correction rather than as a series of independent static events. Such a view not only fulfills the intent of the legislature to provide a means of relief from injustice, it avoids constitutional confrontation. While the majority acknowledges that the legislature may authorize the courts to correct factual errors, it concludes that section 1255(2) cannot reasonably be interpreted to achieve that result. Rather, it is concluded that the statute can only be interpreted as an impermissible attempt to invade the pardon power of the executive branch of government.3 In my judgment the error in such a construction arises from overreading the following language of the statute: “If, as a result of the department’s evaluation of such person’s progress toward *806a noncriminal way of life, the department is satisfied that the sentence of the court may have been based upon a misapprehension,” it may file a petition. This provision prescribes the administrative preconditions to the filing of a petition but does not describe the factual basis upon which relief could be predicated. The import of the statute is clear. If a defendant’s conduct in prison suggests to the satisfaction of the department that the court may have misapprehended the necessity for a prophylactic sentence, then a petition may be filed. At that point the sentencing judge, under the terms of the statute, is entitled to consider whether he was acting on the basis of a misapprehension at the time of sentencing. Significantly, the judge is not called upon to consider whether the good conduct of the defendant entitled him to relief from the sentence previously imposed. Rather, he is required to consider once again the decision to impose a prophylactic sentence and determine whether he misapprehended the factual basis upon which it rested. The defendant’s “progress toward a noncriminal way of life,” having triggered the filing of the petition, does not enter into the determination of error correction.
Finally, the majority rules that there could be no factual error to correct. I would agree that the judge’s decision to impose a prophylactic sentence is not itself a finding of fact, but rather a judgmental conclusion based upon facts. I do not agree that the “misapprehension” referred to in section 1255(2) therefore means no more than misprediction. Since the sentencing provisions of Maine law afford the judge substantial latitude in considering which facts may persuade him to impose a prophylactic sentence, it is axiomatic that the provision for error correction concerning those foundational facts must be of equal latitude.
I would reverse the Superior Court’s dismissal of the petition for modification of Gary Hunter’s sentence and remand for the sentencing judge to determine whether the sentence imposed was protective, and if so, whether his decision was based upon factual misapprehension.
. 17-A M.R.S.A. § 1151(1) speaks of “the restraint of convicted persons when required in the interest of public safety.”
. It is not certain that the sentence involved in the instant case is protective or prophylactic. Since the Superior Court dismissed the petition, that issue was not aired.
. Given the interpretation espoused herein, the issue of separation of powers does not arise. There is authority to support the proposition that sentence modification does not impinge upon the pardoning power. See State v. Nardini, 21 Cr.L.Rep. 2194, Conn.Sup.Ct., 396 A.2d 447 (1982).