A true second chance

Published 8:00 am Tuesday, January 19, 2021

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In July 2020, I wrote a column about Senate Bill 288 (SB 288). At the time, the governor had not signed it and I was concerned. However, the governor ended up signing the bill that can help many Georgians remove the stigma of having a criminal conviction, obtain better employment, pay taxes, take care of their families, reduce the welfare rolls in Georgia, and simply move on with their lives.

SB 288 adds language to O.C.G.A 35-3-37. The new law, which took effect just a couple of weeks ago, increases the number of criminal records that can be sealed. The law now allows certain misdemeanors and nonviolent felonies to qualify for a record restriction (sometimes referred to as an “expungement).

More than 4 million Georgia residents had a criminal record in 2016, according to the Georgia Center for Opportunity (GCO). Georgia is joining 41 other states that have eased record-sealing restrictions.

“It is vital that we continue to reform Georgia’s criminal justice system so that reformation and reintegration is the goal, and not just punishment,” said Corey Burres, GCO’s vice president of communications. “With SB 288, we are making real efforts to help past offenders access opportunities that may not be available to them due to their criminal record.”

O.C.G.A. 35-3-37 is a lengthy statute. Below you will find the most important aspects to the new law. Subsection (j) (1) provides: When an individual had a felony charge dismissed or nolle prossed or was found not guilty of such charge but was convicted of a misdemeanor offense that was not a lesser included offense of the felony charge, such individual may petition the court in which he or she was accused or convicted, as applicable, or, if such charge was dismissed, the superior court in the county where the arrest occurred to restrict access to criminal history record information for the felony charge within four years of the arrest. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the arresting law enforcement agency and the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if the court determines that the misdemeanor conviction was not a lesser included offense of the felony charge and that the harm otherwise resulting to the individual clearly outweighs the public interest in the criminal history record information being publicly available.

When a record is restricted/sealed, the offense is not visible to employers or the general public. Attorneys and criminal justice agencies must obtain a court order before viewing a person’s criminal history.

There are several excluded misdemeanor offenses, including family violence simple assault, family violence stalking, public indecency, sexual battery, and DUI. Individuals convicted of these and other misdemeanors will not be eligible for restriction and record-sealing. Additionally, those who have been pardoned for nonviolent felony offenses can apply for a record restriction under the law. The procedure is similar to the misdemeanor provisions above.

This new law also grants liability protection for employers who hire former felons.

Think about the impact this new law will have on individuals and our economy. For years, I have been contacted by people with criminal histories seeking to restrict or seal their records. Most of the time, I had to turn them away because the law did not provide them relief. Today, the relief is there. If you fall into a category that makes a past criminal offense eligible for restriction, there is no reason to not take action.