Restoration of Rights, Pardon, Expungement & Sealing
Last updated: January 8, 2018
I. Restoration of Civil/Firearms Rights
A. Civil rights
“No person who has been convicted of a felony involving moral turpitude may register, remain registered, or vote except upon completion of the sentence.” Ga. Const. art. II, § 1, para. III(a). The right to vote is restored automatically “upon completion of the sentence.” Id. “No person . . . who has been convicted of a felony involving moral turpitude” may hold public office “unless that person’s civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude . . . .” Ga. Const. art. II, § 2, para. III. The right to sit on a jury is regained by pardon or restoration of civil rights. 1983 Ga. Op. Att’y Gen. 69 (No. 83-33), 1983 WL 41667 (May 27, 1983). The legislature may supersede the effect of a pardon in some cases. See Ga. Peace Officer Standards & Training Council v. Mullis, 281 S.E.2d 569, 571 (Ga. 1981) (constitutional prohibition against felony offenders holding an appointment of honor or trust, such as position of deputy sheriff, unless pardoned, did not prevent General Assembly from making conviction absolute bar to qualification as peace officer, since General Assembly was authorized by law to provide for higher qualifications for the officers) (citing Ga. Code Ann. § 92A-2108(d)). Juvenile delinquency adjudications do “not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.” Ga. Code Ann., § 15-11-72.
A person convicted of a felony in any jurisdiction cannot receive, possess or transport a firearm, unless pardoned. See Ga. Code Ann. § 16-11-131(b)-(c). A “firearm” is defined as “any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.” Id. Such a person is also prohibited from receiving a license to carry a “weapon” (defined to include both a knife and a handgun), unless pardoned. § 16-11-129(b)(2)(B).1 In 2010, the legislature amended the license to carry weapons law contained in § 16-11-129, creating a new subsection applicable to first offenders:
If first offender treatment without adjudication of guilt for a conviction [related to certain drug offenses] was entered and such sentence was successfully completed and such person has not had any other conviction since the completion of such sentence and for at least five years immediately preceding the date of the application, he or she shall be eligible for a weapons carry license . . . .
II. Discretionary Restoration Mechanisms
A. Executive pardon
The power to pardon and to remove disabilities is vested in the state Board of Pardons and Paroles, although it may be prohibited from issuing a pardon or superseded by the legislature in cases involving recidivists and persons serving life sentences. Ga. Const. art. IV, § 2, para. II; see generally Ga. Peace Officer Standards & Training Council v. Mullis, supra. The Governor is expressly precluded from exercising power or authority over pardons. Ga. Code Ann. § 42-9-56. In addition to pardons and sentence commutations, the Board may issue “Restoration of Civil and Political Rights” to felony offenders (including out-of-state and federal convictions). Board instructions and pardon application form, available at http://pap.georgia.gov/pardons-restoration-rights.
Board of Pardons and Paroles
The Board is composed of five full-time members appointed by the Governor and confirmed by the senate. Ga. Code Ann. §§ 42-9-2, 42-9-5. The Board chooses its own chairman, and also makes parole determinations. Id. § 42-9-6; Ga. Const. art. IV, § 2, para. II. The Board must report annually to legislature, the Attorney General and the Governor. Ga. Code Ann. § 42-9-19. The Board decides cases by majority vote, and in a written opinion. Id. §§ 42-9-42(a) and (b).
For restoration of rights, the applicant must have completed sentence (including fine), have no pending charges, and completed two years without any criminal involvement. For a full pardon, the applicant must have completed a five-year waiting period after completion of sentence (including probated sentence) with no criminal involvement. For sex offenders the waiting period is 10 years. Waiver of the waiting period is available “if the waiting period is shown to be detrimental to the applicant’s livelihood by delaying his or her qualifying for employment in his or her chosen profession.” Ga. Comp. R. & Regs. 475-3-.10(3) (pardon) and (6) (restoration of rights). See also Board instructions, supra. Restoration of rights is available to federal and out-of-state offenders as long as the applicant is residing in the state. Ga. Comp. R. & Regs. 475-3-.10(6). Under Board policy, misdemeanants may apply for a pardon only if they are subject to deportation because of their conviction. Source: Georgia Board of Pardons and Paroles.
Pardon is “a declaration of record that a person is relieved from the legal consequences of a particular conviction.” Ga. Comp. R. & Regs. 475-3-.10(3). “It restores civil and political rights and removes all legal disabilities resulting from the conviction.” Id. A full pardon relieves “those pardoned from civil and political disabilities imposed because of their convictions,” Ga. Code Ann. § 42-9-54), and also relieves licensing and employment restrictions. A pardon, however, does not restore a convicted felony offender to a public office he was forced to relinquish as a result of the conviction. Morris v. Hartsfield, 197 S.E. 251, 253 (Ga. 1938). If the applicant requests restoration of firearms rights, this must be explicitly stated in the pardon. See “Firearms,” infra. Restoration of rights affects only basic civil rights (jury, public office). A pardon does not expunge, remove, or erase the crime from the person’s record. See http://pap.georgia.gov/pardons-restoration-rights.
The Board generally considers cases on a paper record without an in-person hearing, though it has the power to conduct public hearings. An investigator for the Board conducts an in person interview. It also acts by majority vote by written decision, and gives no reasons. Ga. Code Ann. § 42-9-42. To request a full pardon, information and an application form can be obtained at http://pap.georgia.gov/pardons-restoration-rights. The form itself is at http://pap.georgia.gov/sites/pap.georgia.gov/files/ParoleConsideration/PardonApplicationRevisedJanuary2015%20_1_%20working%20link%20to%20voter%20seal%20added%20Owens.pdf. Clemency requests are screened by Board staff. And requests deemed meritorious are forwarded to Board members for individual review and decision. Effective January 1, 2015 a new longer form for pardon is required, which requests extensive information about an applicant’s personal life, financial and employment history, civil involvement, and reasons for seeking a pardon. The Board website advises that a waiver of the eligibility waiting period may be granted if necessary to secure employment, and that it is not necessary to have a lawyer to apply. http://pap.georgia.gov/pardons-restoration-rights. The Board indicates that processing a pardon application takes 6 to 9 months, on average, and may take longer based on the Board’s workload. See id.
Firearm privileges are restored only if a pardon expressly authorizes the receipt, possession, or transportation of a firearm. Ga. Code Ann. § 16-11-131(c). Federal and out-of-state pardons are specifically recognized. Id. A pardon applicant may request that the pardon be specially worded to restore this firearm right, but he must provide in detail his reason for the request, and provide letters from three “citizens of unquestioned integrity.” See Applications for Restoration of Rights at 2, http://pap.georgia.gov/pardons-restoration-rights. Applicants must be interviewed by a Board staff member. Id. Restoration “cannot be granted for any offense in which a firearm was used or possessed.” Id. Alternative procedure involving the Board of Public Safety are available where relief is granted under federal law, including the exception in federal law for antitrust and trade violations. § 16-11-131(d). Persons sentenced under First Offender Act without an adjudication of guilt regain rights automatically upon completion of sentence, and misdemeanants do not lose rights. § 16-11-131(f).
Sex offender registration
A separate form is provided for those required to register as a sex offender. https://pap.georgia.gov/sites/pap.georgia.gov/files/ParoleConsideration/PardonApplicationforRegisteredSexOffendersRevisedJanuary2015%20_1_%20voter%20link%20seal%20Owens.pdf.
The Board’s work is described in Steve Visser, Convicted Look to the State for Forgiveness, Atlanta Journal-Constitution (Dec. 20, 2010), available at http://www.ajc.com/news/convicted-look-to-the-782143.html.
Frequency of grants
|Applications received||Pardon w/o firearms||Pardon w/ firearms||Immigration pardons||Restoration of rights|
|2015||Data pending||374 (total)||Data pending||107|
|2011||No data||817 (total)||No data||117|
Source: Georgia Board of Pardons and Paroles.
State Board of Pardons and Paroles
2 Martin Luther King, Jr. Drive
S.E. Balcony Level, East Tower
Atlanta, GA 30334-4909
Tel: (404) 651-5198 (direct), (404) 657-9350 (general)
B. Judicial sealing or expungement
1. “Exoneration” and sealing under the “First Offender Act”
First felony offenders prosecuted under Georgia law may be placed on probation or sentenced to confinement without an adjudication of guilt. Ga. Code Ann. § 42-8-60(a). Certain serious violent offenses and sex offenses are not eligible. Upon successful completion of probation or sentence, the offender is discharged without adjudication, which “completely exonerate[s] the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties.” § 42-8-62(a). While those sentenced to confinement are considered “convicted” during the period of incarceration, § 42-8-65(c), after discharge the offender is “not  considered to have a criminal conviction,” § 42-8-62(a), and “is to suffer no adverse [effect] upon his civil rights or liberties.” 1990 Ga. Op. Att’y Gen. No. U90-6, 1990 WL 600184 (Feb. 27, 1990). In addition, an offender sentenced to probation under this scheme is not disqualified from jury service during the probation period, id., or from voting, 1974 Ga. Op. Att’y Gen. 48 (1974). A discharge without adjudication restores firearms privileges, § 16-11-131(f), and the conviction cannot generally be used to disqualify the offender from employment or from public or private office. § 42-8-63. However, discharge may be used to disqualify an individual from employment if the individual was charged with certain offenses of a sexual nature and the employment is a) with a school, child welfare agency, or other childcare provider; b) with a nursing home, assisted living community, personal care home, or otherwise involves care for the elderly; or c) with a facility that serves the mentally ill or developmentally disabled. § 42-8-63.1. In 2016. the range of offenses potentially leading to disqualification was narrowed. Id.
Sealing: In 2016, concerned that “methods used to prevent first offenders from having a public record have been outpaced by technology and the expanded use of private companies that conduct background checks,”2 the legislature enacted § 42-8-62.1, which provides multiple methods for limiting public access to first offender records, including sealing court records. The statute even provides for the possibility of sealing the court file at the beginning of the first offender sentence, instead of at its completion. § 42-8-62.1(b). The record would be unsealed if first offender status is revoked. The new sealing authority supplements the authority in Ga. Code Ann. § 35-3-34, which restricts access to first offender records in the state records repository “for crimes relating to first offenders . . . where offenders have been exonerated and discharged without court adjudications of guilt, except as specifically authorized by Code Section 35-3-34.1 or other law.” (See discussion below.) The exceptions relate to employment with a public school, child care center, nursing home, and other facilities for vulnerable populations. § 35-3-34.1(a). Prior to the passage of § 42-8-62.1, this authority did not apply to court records.
Predicate effect: For any future prosecutions, a finding of guilt for a discharged offense “may be pleaded and proven as if an adjudication of guilt had been entered and relief had not been granted” to discharge the offender pursuant to this procedure. § 42-8-65(a).
2. Record restriction and sealing for non-conviction records
A new scheme of limiting public access to criminal records enacted in May 2012 became effective in July 2013. See 2012 Ga. Laws Act 709, 6-2 (H.B. 1176), codified at Ga. Code Ann. § 35-3-37. The new law provides for “record restriction” instead of “expungement” of non-conviction records, including cases where charges dismissed court records of deferred adjudication cases (see below), and of certain misdemeanor records. See also Bill Rankin, Ga. bill would hide arrest information, Atlanta Journal-Constitution, March 26, 2012, available at http://www.policeone.com/legal/articles/5325010-Ga-bill-would-hide-arrest-information/ (noting the new law would no longer give prosecutors sole discretion to approve or deny expungement applications).3 “Restrict” means that the criminal history record information held by the Criminal Information Center shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment, and shall not be disclosed or otherwise made available to any private persons or businesses, or to licensing boards. See Ga. Code Ann. § 35-3-37(a)(6); see also §§ 35-3-34, 35-3-35.
Sealing of court records after restriction: While record restriction does not affect court records, individuals whose records are restricted may petition for sealing of court records. See § 35-3-37(m). Sealing may be granted if the court finds that “the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.” Id.
Record restriction and sealing is available in the following cases:
First offender drug possession
Record restriction is available to a person who pleaded guilty to or was found guilty of drug possession, who has not previously been convicted of a drug offense, who successfully completed the terms and conditions of his probation. Ga. Code Ann. §§ 35-3-37(h)(2)(B), 16-13-2.
Youthful offender misdemeanors
Record restriction is available to persons convicted of a misdemeanor or series of misdemeanors arising out of the same incident while less than 21 years of age, after five years of law-abiding conduct. See Ga. Code Ann. § 35-3-37(j)(4)(A). Record restriction will not be appropriate in case of conviction for certain sexual offenses, theft, and serious traffic offenses. § 35-3-37(j)(4)(B).
Effective July 1, 2016, record restriction authority was extended to Georgia’s system of “Accountability Courts,” authorizing diversion in drug, veterans, mental health and other specialized treatment courts, after five years of law-abiding conduct. See Ga. Code Ann. §§ 35-3-37(h)(2)(C), 15-1-20(b).
Records of the Crime Information Center of charges dismissed before a charging instrument is filed are automatically restricted once the Center is notified that the case has been closed. Ga. Code Ann. § 35-3-37(h)(1) Restriction is available absent notification of closure after varying time frames depending on the seriousness of the charges (2 years for misdemeanors, four years for most felonies, 7 years for serious felonies). Id. Records dismissed after a charging instrument is filed may be automatically restricted if all charges are dismissed . § 35-3-37(h)(2)(A). Exceptions apply for certain dispositions. § 35-3-37(i). Records of felony charges dismissed pursuant to a plea to a misdemeanor may be restricted after four years. § 35-3-37(j)(1). Acquittals will be restricted, unless, within ten days of the verdict, the prosecuting attorney demonstrates to the trial court through clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record information being publicly available . § 35-3-37(h)(2)(E).
Correction of records
Persons may request that their criminal history record be modified, corrected, supplemented, or amended if the information is inaccurate, incomplete, or misleading. See Ga. Code Ann. §§ 35-3-37(b)-(g)). Additionally, the law provides that under certain circumstances before or after indictment, access to a person’s criminal history record information (including any fingerprints or photographs of the person taken in conjunction with the arrest) shall be restricted. See §§ 35-3-37(h)-(j)). For example, record restriction will be available to a person whose case was never referred for further prosecution or was dismissed. See § 35-3-37(h)(1).
3. Sealing for juvenile adjudications
Sealing of juvenile records is governed by Ga. Code Ann. § 15-11-701. Juveniles have the right to seal their records, and the court must order automatic sealing of a file after a case is dismissed or handled through informal adjudication. § 15-11-701(a). A juvenile adjudicated delinquent or unruly must petition to have the record sealed. § 15-11-701(b). Such juveniles are eligible for expungement upon a court’s finding that two years have passed since final discharge, there has been no subsequent adjudication or conviction involving moral turpitude, no proceeding or charges are pending, and the juvenile has been rehabilitated. Id. Once sealed, the proceeding is treated as if it never occurred, and the juvenile may indicate that no record exists. § 15-11-701(d).
C. Administrative certificate
2014 legislation created a Program and Treatment Completion Certificate issued by the Board of Corrections. “Such certificate shall symbolize an offender’s achievements toward successful reentry into society.” Ga. Code Ann. § 42-2-5.2(c). The certificate is intended to encourage hiring, licensing, and admission to schools and other programs by offering protections for those engaging certificate holders against liability for the actions of those with certificates. See Ga. Code Ann § 51-1-54(b). Certificates are issued according rules promulgated by the board. “The board’s rules and regulations relating to the issuance of such certificate shall take into account an offender’s disciplinary record and any other factor the board deems relevant to an individual’s qualification for such certificate.” Id. Eligibility considerations and requirements are specified by the board. Id. By statute, persons convicted of a serious violent offense are ineligible. Id. Certificates were created under a section of the Code that also requires the Board of Corrections to implement reentry programs for “adult offenders.” It is unclear whether certification is tied explicitly to completion of such programs or whether persons not under the jurisdiction of the Board of Corrections are eligible for such certificates. The Board has yet to promulgate rules governing eligibility.
III. Nondiscrimination in Licensing and Employment
A. Non-discrimination & ban-the-box in state employment
On February 23, 2015, Governor Nathan Deal signed an executive order eliminating a question about criminal record from applications for state employment. See https://gov.georgia.gov/sites/gov.georgia.gov/files/related_files/document/02.23.15.03.pdf. The order states that the new policy should
establish practices that
- prohibit the use of a criminal record as an automatic bar to employment;
- prevent the use of an application form that inappropriately excludes and discriminates against qualified job applicants;
- promote the accurate use and interpretation of a criminal record; and
- provide qualified applicants with the opportunity to discuss any inaccuracies, contest the content and relevance of a criminal record, and provide information that demonstrates
The new policy “[s]hall not affect applications for sensitive governmental positions in which a criminal history would be an immediate disqualification and initial disclosure on such applications shall still be required.”
B. Professional licensure
Professional licensing boards may deny or revoke a license of a person convicted of a felony or a crime involving moral turpitude, or of a person arrested, charged and sentenced for such offenses pursuant to the first offender statute or where adjudication of guilt was otherwise withheld. Ga. Code Ann § 43-1-19(3), (4). However, effective July 1, 2016:
No professional licensing board shall refuse to grant a license to an applicant therfor or shall revoke the license of a person licensed by that board due solely or in part to a conviction of any felony or due to any arrest, charge, and sentence for the commission of any felony unless such felony directly relates to the occupation for which the license is sought or held.
§ 43-1-19(p) (as amended by SB-367, §10-1 (2016)). A board shall consider the following factors when determining whether a felony “directly relates” to the occupation:
(A) The nature and seriousness of the felony and the relationship of the felony to the occupation for which the license is sought or held;
(B) The age of the person at the time the felony was committed;
(C) The length of time elapsed since the felony was committed;
(D) All circumstances relative to the felony, including, but not limited to, mitigating circumstances or social conditions surrounding the commission of the felony; and
(E) Evidence of rehabilitation and present fitness to perform the duties of the occupation for which the license is sought or held.
Id. No similar limitation applies to consideration of crimes involving moral turpitude.
Juvenile delinquency adjudications do “not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.” § 15-11-606.
C. Negligence liability
Employers, schools, licensing boards and others that engage persons that have received a pardon or “Program and Treatment Completion Certificate” receive protection from liability in civil suits based on the actions of the pardoned person or certificate holder. Per Ga. Code Ann. § 51-1-54(b):
Issuance of a Program and Treatment Completion Certificate by the Department of Corrections or the granting of a pardon from the State Board of Pardons and Paroles as provided in the Constitution and Code Section 42-9-42 shall create a presumption of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise engaging in activity with the individual to whom the Program and Treatment Completion Certificate was issued or the pardon was granted. Such presumption may be rebutted by relevant evidence which extends beyond the scope of the Program and Treatment Completion Certificate or pardon and which was known or should have been known by the person against whom negligence is asserted.
- Ga. Code Ann. § 16-11-131(d) provides an administrative procedure for restoration of firearms rights by the Board of Public Safety, for persons who have had their federal firearms rights restored by ATF, or who have been convicted of certain white-collar crimes that do not give rise to federal firearms disability (“antitrust violations, unfair trade practices, or restraint of trade”). This section is rarely used as a practical matter and all applications for firearms relief are handled through the Board of Pardons and Paroles.
- See Report of the Georgia Council on Criminal Justice Reform, February 2016, at 7.
- Prior to July 2013 expungement was available for non-conviction records where an individual was not prosecuted or where charges were dismissed only if no other criminal charges were pending against the individual and the individual had not been previously convicted of the same or similar offense in Georgia or elsewhere in the United States within the past five years, excluding any period of incarceration. Ga. Code Ann. § 35-3-37(d)(3). Upon receipt of a written request for expungement, the agency was required to provide a copy of the request to the prosecuting attorney, who was required to review the request to determine if it met the statutory criteria for expungement. § 35-3-37(d).