Panel Explores When To Expunge Records

On behalf of Raymond Giudice, P.C. posted to Criminal Defense and Expungement on October 13, 2013.

Should a middle-aged woman who was convicted of drunken driving when she was 21 have to tell her prospective employer, even if she’s never committed another offense?

Should a man who pleaded guilty to misdemeanor marijuana possession after prosecutors dropped his armed robbery charge have to wait four years before applying for expungement of his record?

Should a private background check company be allowed to continue to disclose someone’s criminal records even if the court has subsequently restricted access to them?

Those are questions that a study committee of state senators, many of whom are lawyers, are hoping to tackle before the beginning of the next legislative session in January. The committee held its first of at least five meetings Tuesday across the street from the Capitol.

Senator Josh McKoon, R-Columbus, chairs the expungement panel and the Senate Judiciary Committee. A practicing attorney, McKoon acknowledged reforms were made during the last two sessions. House Bills 1176 and 349, passed during the 2012 and 2013 sessions, expanded the types of criminal records that are eligible for expungement, restriction and correction.

The bills also shifted the burden of expungement from the subject to the agencies that keep the records, but most of those reforms focused on people who had been arrested but never convicted by outlining which agencies are responsible for expungment and what records are eligible. McKoon said he believes there needs to be attention paid to ex-convicts who want to re-enter the community and the workforce.

“Once somebody has committed an offense and paid their debt to society, how difficult do we really want to make it for that person to navigate the process of becoming a tax-paying member of society with employment and opportunities?” McKoon asked.

The other committee members are Senate Judiciary Non-Civil Committee Chairman Jesse Stone, R-Waynesboro, a lawyer; Interstate Cooperation Committee Chairman Hardie Davis, D-Augusta, a pastor and business owner; Senator Butch Miller, R-Gainesville, an auto dealer; and Urban Affairs Committee Chairman Ronald Ramsey, D-Decatur, a lawyer.

During Tuesday’s hearing, a man who identified himself as Thomas Weaver of Canton testified that he has struggled finding employment after a recent conviction for carrying a firearm at a public gathering. In 2010, a year after his conviction, the Georgia General Assembly repealed the prohibition against carrying guns at public gatherings and replaced it with a narrower list of carry restrictions.

“I have to continue to tell employers that I have this firearm charge, [and] I’ve only found one who is willing to hire me,” Weaver said. “Interestingly, this charge is no longer a charge at all. So, I’m asking this committee if it would consider legislation … to provide that a person’s record or index maintained by the GCIC [Georgia Crime Information Center] cannot be [released] if it references a crime that has subsequently been repealed or that the state no longer considers a crime at all.”

There are still several shortcomings in how Georgia approaches the expungement or restriction of criminal records, Georgia Justice Project staff attorney Marissa Dodson told the committee. The Georgia Justice Project is a nonprofit organization of the State Bar of Georgia that represents indigent defendants.

Defendants who successfully finish drug and mental health court programs must wait five years after their dispositions before they can apply for records restriction, which prevents the public dissemination of their criminal records.

“It takes two years to complete accountability court with intensive supervision,” Hall County Superior Court Judge Kathlene Gosselin, who chairs the Council of Superior Court Judges’ legislative committee, said in support of Dodson’s critique.

“They need a boost right then to look for a job. I don’t see why they have to wait five years” when those who complete a regular sentence and probation do not, Gosselin said.

Someone arrested for a felony plus an unrelated misdemeanor and who is convicted of the misdemeanor, even if the felony charge is dropped, must wait four years before applying for restriction or expungement, said Dodson. Also, employers may still ask job candidates about their criminal backgrounds even if they have successfully petitioned to the courts to seal those records from the public.

Because Georgia is an at-will employment state, employers may fire someone for failing to disclose a criminal background even if their records are sealed and the offense is minor, she said.

Eight of the 12 southeastern states, including Florida, Tennessee and North Carolina, currently have laws protecting former convicts with expunged records from having to disclose them, according to Georgia Justice Project research. Dodson asked the committee to consider protections that it could provide ex-cons with sealed records so they don’t have to disclose those records or encourage employers to look beyond a checked box on an application that indicates a prior conviction.

Dodson also asked the committee to consider regulations on private companies that purchase records in bulk from state agencies and then disseminate criminal records even after courts have sealed them. Those regulations could require the companies to have procedures in place about when and how they would update and remove restricted records from their files, she said.

A representative of the Prosecuting Attorneys’ Council of Georgia testified before the committee and did not overtly oppose any of the recommendations. However, the PAC did advocate for additional exemptions to records restriction eligibility, which would some keep records public, including when prosecutors dismiss cases but other charges are pending or when a case is dismissed because the defendant has spent time in jail for at least as long as the defendant would have received as a sentence. Without these exceptions, suggested PAC lawyer Gary Bergman, prosecutors may feel forced to proceed with a trial.

The Senate study committee plans to hold at least four more meetings before Dec. 31, which is also its deadline for suggesting legislation to Senate leadership. The committee’s endeavors may garner support from the governor, who has directed his criminal justice reform council to study the problem of convict re-entry in Georgia.

During the State Bar of Georgia’s annual conference in June, Governor Nathan Deal called on lawyers to support efforts helping convicts find jobs and housing, which would keep them from re-offending.

“This is something we can try to do legislatively and do with cooperation among state agencies, but it is also going to involve a public element. I cannot think of any better group to be vocal supporters of this undertaking than the State Bar of Georgia,” Deal told the bar, of which he is a member.

He indicated that one approach he might support is criminal record expungement for people with long-ago convictions who have not re-offended. “The [expungement] process now is cumbersome and a difficult process to deal with,” Deal said.

SOURCE: Daily Report, “Panel Explores When to Expunge Records,” Kathleen Baydala Joyner, September 25, 2013