There has been recent media coverage regarding projects to prevent criminal histories from affecting employment opportunities for individuals. This includes “Ban the Box” and other projects intended to help individuals who have a criminal history be able to get back in to the workforce and be productive members of society.
The Legislature in Georgia has recognized that people make mistakes, especially in their younger years. Based on this, the Legislature enacted laws that went in to effect July 1, 2013, to provide a solution for younger offenders who made a mistake.
These laws allow for the restriction of criminal histories of certain individuals. Restricting a criminal history is a fancy way to say that the arrest and conviction will be hidden from most criminal history searches in Georgia.
When an offense on a criminal history is restricted, the only agencies that can see the information on an official Georgia criminal history are judicial officials, criminal justice agencies (for law enforcement or criminal investigative purposes), or criminal justice agencies for hiring. That means that private individuals or businesses will not be able to view an item that has been restricted on the official Georgia criminal history.
To be eligible for a restriction of an offense that was committed as a young person, there are a number of criteria: the person seeking the restriction must have been under the age of 21 at the time of conviction; the conviction that the person is seeking restriction of must be a misdemeanor or a series of misdemeanors that all arose out of the same incident; the person must have successfully completed the terms of his or her sentence; and the person must not have been arrested for anything, other than a non-serious traffic offense, for at least five years.
There are certain misdemeanors that are excluded from those eligible for restriction. Those are primarily sexual offenses, crimes related to minors and theft offenses (except shoplifting). Also excluded are serious traffic offenses, such as driving under the influence, reckless driving, fleeing or attempting to elude a police officer and aggressive driving.
An individual who qualifies for this type of restriction of his or her criminal history must file a formal court action in the Superior Court of the county where the conviction occurred. A formal court hearing may be scheduled before a judge, who will hear evidence from the side requesting the restriction and from the prosecutor.
After hearing that evidence, the judge will determine whether granting an order restricting the offense is appropriate. In deciding if it is appropriate, the judge will take in to account the conduct of the person whose criminal history is seeking restriction and the public’s interest in the criminal history being publicly available.
If the request is approved, the information needs to be sent to the Georgia Crime Information Center. GCIC will then update the official criminal history record and notify the arresting agency that the information has been restricted. The arresting agency will then be required to restrict any records regarding the arrest. Additionally, an individual who has been approved for a criminal history restriction can send the approved restriction to the jail that housed him or her, to request that those records be restricted.
When seeking a restriction of their criminal history, people often forget the fact that the clerk of court also maintains public records of all cases that have gone to court in that county. This law also has a mechanism to have these records restricted, if the case has otherwise been restricted.
This process cannot be completed until the charges have been restricted from an individual’s criminal history. Similar to the request in Superior Court, an individual would have to file a court action in the court where the case was originally pending, which could be a different court.
While completing a criminal history restriction can eliminate the traditional means that employers may use to locate criminal histories, it is not perfect. There are companies that obtain these records as soon as they are created and store them in databases that can be searched for a fee.
There are also newspapers that publish the photos of arrestees. Once the information is out there, it is nearly impossible to completely remove it, but this can help individuals who made mistakes as a teen and young adult move forward.
This is a reprinting of an article written by Paul Ghanouni for the Cherokee Tribune, which was published December 6, 2014. The original article can be found here.