A mistake doesn’t have to be a life sentence.
That’s the promise of Georgia’s First Offender Act, which is meant to give residents who find themselves facing their first misdemeanor or qualifying felony charge a chance to avoid the stigma that comes with having a criminal record.
First enacted in 1968, the law is a type of deferred adjudication program where a judge can offer certain defendants a reduced sentence — such as a fine or probation — rather than a conviction. There are some limits — with charges like DUIs, serious violent felonies and certain sexual offenses among those that are considered disqualifying — but every year, between 8,000 and 11,000 Georgians enter a first offender plea.
But until this month, records for first offender pleas were generally sealed upon completion of the program instead of at the time of sentencing, meaning that they could be publicly available for years before being removed from public view.
According to Rep. Leesa Hagan, a Lyons Republican who sponsored a bill updating the First Offender Act this year, that meant that private background check companies could gain access to court records before they were sealed and store them in an internal database. Those records could then come up during background checks, causing trouble for participants in the program who were told their records would not be public.
“What our goal was with the bill was just to make sure that information wouldn’t be out there forever if they successfully completed their sentence,” Hagan said. “So having the records sealed at sentencing felt like a way to accomplish that.”
House Bill 162 was signed into law by Gov. Brian Kemp in May and took effect in July. It ensures that first offender records are sealed at the same time the plea deal is entered and cannot be accessed by private background check companies.
The Georgia Justice Project, which advocated for the bill’s passage, says the new legislation will modernize a law that was not functioning as it was originally intended to.
“This is a law that was written in the 1960s before the internet, before the private background check industry existed in the way that it does now,” Georgia Justice Project legal director Brenda Smeeton said in an interview. “So those records would pop up, and people would be denied job opportunities or housing over something that was supposed to be a second chance.”
There are some caveats to the new rules, however. If someone with a first offender plea fails to complete probation or any program requirements, a judge can unseal their records and hand down a conviction. However, Smeeton said the vast majority of people with a first offender plea successfully complete the program, with only 5% of participants having their first offender status revoked.
For those who successfully complete the program, access to the records will be limited to judges, prosecutors, defense attorneys and law enforcement agencies. The records will also surface during background checks for firearm licenses and purchases.
But many supporters of the bill are hopeful that the update will help the decades-old law function as intended.
Sara Stewart, a defense attorney who chairs the Georgia Association of Criminal Defense Lawyers’ legislative committee, said that under the original statute, her clients’ records resurfacing “contributed to them missing employment opportunities or having to explain exactly what happened” to potential employers.
“I think that’s one of the big ways that HB 162 helps,” she said. “It gives more power to that ability to say, ‘no, I’ve never been convicted of a crime.’”
Policies like Georgia’s first offender program, Stewart added, can also benefit communities as a whole by ensuring that people don’t get caught in what she calls a “revolving door” of convictions and reoffenses.
“Making it easier for people to find stable housing in areas they want to be in and gainful employment puts them in position to remove themselves from that cycle of reoffending,” she said.
This story was provided by WABE media partner the Georgia Recorder.
