By Gilbert Morales, Reference GRA
On January 1, 2021, Georgia’s “Second Chance” law went into effect. The new law improves an individual’s ability to restrict and seal certain criminal convictions from the general public, a process commonly referred to as expungement. According to the Georgia Justice Project, “Georgia finally joins 41 other states that allow an individual an opportunity to expunge certain convictions after a period of time.” The new law is the latest development in a decade-long push to facilitate rehabilitation for former offenders. Advocates contend that public access to all convictions, even minor offenses, poses a substantial barrier to a former offender’s rehabilitation. Allowing access to an individual’s criminal history can limit job opportunities and housing eligibility, increasing the chances for that individual to re-offend.
Advocates say the new law is a step forward. Unlike Georgia’s previous “record restriction” law that only allowed court petitions for sealing offenses that did not result in a conviction and made a narrow exception for misdemeanor convictions committed by individuals under 21, the new law allows individuals to seal two misdemeanor convictions with limited age restrictions. So long as an individual has not reoffended and 4 years have passed since completing their sentence, they can petition the court to seal their misdemeanor conviction. The law does not cover all misdemeanors. Notably, misdemeanors involving sex crimes are excluded from consideration. Moreover, all family violence battery convictions are excluded unless the individual was under 21 years old at the time of the arrest.
Felonies and Pardons
The new law also covers felony convictions that were pardoned by the State Board of Pardons & Paroles. So long as the pardon was not for a serious violent felony or sexual offense, an individual can petition the court to seal the record of that conviction. An individual must wait 5 years after they have completed their sentence before petitioning the court and cannot have re-offended during those 5 years.
A petitioner seeking to restrict and seal a misdemeanor conviction must petition the court that handled the case. For felony convictions, individuals must first obtain a pardon and then file a petition in the original sentencing court. In sealing documents, the court will consider the harm to the individual versus the public interest in knowing about the conviction. An important caveat to remember is that although a record may be restricted and sealed from the general public, law enforcement and prosecutors retain access to those records.
An important wrinkle in the new law is the liability protection for employers hiring individuals with criminal backgrounds. Liability protection addresses the fear by some employers that hiring someone with a criminal background who then commits a workplace offense will lead to a claim against the employer for negligent hiring. Whether this fear is well-founded is up for debate and another blog entry, nevertheless, it is a major feature of the new law.
The Second Chance law is a major opportunity for former offenders to build back their lives. By allowing misdemeanor convictions and felony pardons to be petitioned, the law enlarges the pool of individuals that can have their records restricted and sealed. The hope is that the new law enables these individuals to integrate back into society. That being said, there are always places where the law can expand such as applying record restrictions to felony convictions that are not pardoned. As one advocate from the Georgia Justice Project stated, although the Second Chance law is a step forward in the right direction, “it is only the beginning.”
To Learn More
The Georgia Justice Project is hosting free sessions to help people understand their criminal history and what they can do about it on the first Friday of each month in 2021. For more information and contact information for them, go to https://www.gjp.org/first-fridays/. Also, to locate additional legal aid that may be available for pro se and self-represented litigants the legal services in Atlanta & the Metro-Atlanta Area Legal, check out our Legal Services in Atlanta & the Metro-Atlanta Area Legal Library Guide (LibGuide).
NOTE: This post is an update to 2017’s post on the same subject https://theblackacretimes.com/2017/10/24/criminal-background-checks-georgia-law/.