Restoration of Rights & Record Relief
Last updated: Ooctober 25, 2022
I. Loss & restoration of civil/firearms rights
A. Civil rights
Voting: “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 term “moral turpitude” has been interpreted to cover any felony.1 The right to vote is restored automatically “upon completion of the sentence.” Id. An Attorney General opinion interprets “completion of the sentence” to include payment of a fine that is imposed as “a separate sentence in addition to a sentence of incarceration or a sentence of probation.” Ga. Op. Att’y Gen. No. 84-33, 1984 WL 59904 (May 24, 1984). Per the Secretary of State, “Convicted felons are not eligible to register and vote in the State of Georgia except upon completion of the sentence, including any probation, parole, or payment of fines owed.” FAQs, Georgia Sec’y of State (last accessed October 25, 2022), https://sos.ga.gov/page/elections-faq#Voting. In the past, the Secretary of State’s website has pointed out that this requirement does not include fines “cancelled upon completion of [the] term of incarceration, probation, or parole (e.g., when the fines were imposed ‘as a condition of probation,’ they are automatically cancelled upon completion of probation.” See FAQs, Georgia Sec’y of State (last accessed Nov. 23, 2020), https://sos.ga.gov/index.php/elections/faq; see also Voting, Georgia Justice Project (last accessed Nov. 23, 2020), https://www.gjp.org/voting/ (“If you are not sure if you have outstanding fines or if your sentence is complete, contact your original DCS probation office.”).
Office: “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.
Jury: The right to sit on a jury is lost upon conviction and regained by pardon or restoration of civil rights. Ga. Code Ann. § 15-12-40.
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 persons with felony convictions 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).2 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 . . . .
§ 16-11-129(b)(3). Firearm privileges are restored by pardon or restoration of rights but only if the pardon or restoration expressly authorizes the receipt, possession, or transportation of a firearm. Ga. Code Ann. § 16-11-131(c). See Part II below.
II. Pardon policy & practice
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 over of granting of pardons or paroles. Ga. Code Ann. § 42-9-56. In addition to pardons and sentence commutations, the Board may issue “Restoration of Civil and Political Rights” to people with felony convictions (including out-of-state and federal convictions). Board instructions and pardon application forms, available at http://pap.georgia.gov/pardons-restoration-rights. As of August 2018, there are two different application forms: one for “General Pardon and Restoration of Rights,” and the other a “Registered Sex Offender Pardon Application.”
The Board of Pardons and Paroles 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 fines and restitution), 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 five years. For persons with sex offenses 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 for federal and out-of-state offenses 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.
Effective in 2020, record restriction and sealing are now available for felony convictions that have been pardoned, except for violent or sexual offenses, as long as there are no intervening convictions. See 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 person to a public office he was forced to relinquish as a result of a felony 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. A pardon may remove a person’s sex offender registration obligation. Restoration of rights affects only basic civil rights (jury, public office, notary public), but may also restore firearms rights if specifically requested. The board may also grant a pardon to avoid deportation (though a pardon that does not restore firearms rights may not be considered “full and unconditional” by immigration authorities.
In and of itself, a pardon does not expunge, remove, or erase the crime from the person’s record. See http://pap.georgia.gov/pardons-restoration-rights. However, in 2020, SB288 made felony convictions that have been pardoned eligible for record restriction, except for serious violent felonies or sexual offenses, as long as there have been no convictions since the pardon and no charges are pending. Proposed Ga. Code Ann. § 35-3-37(j)(6).
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 August 21, 2018, a new pardon application 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.
The Board’s work is described in Steve Visser, Convicted Look to the State for Forgiveness, Atlanta Journal-Constitution (Dec. 20, 2010), available at https://www.ajc.com/news/local/convicted-look-the-state-for-forgiveness/ZhgsmaPHlyvueJRmaPLECK/.
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).
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. These applicants must also provide a current copy of their most recent risk level evaluation as assigned by the Sexual Offender Registration Review Board (SORRB), provide a psychosexual evaluation, and submit to a disclosure polygraph as part of the application process.
G. Frequency of grants
The Board’s annual reports contain statistics on the number of pardons and restorations of civil and political rights. https://pap.georgia.gov/annual-reports. About 60% of pardon grants also specifically restore firearms rights. In marked contrast to the patterns in other states that grant pardons routinely and regularly, the total number of pardon applications has decreased steadily since 2013, when 3231 applications were received, and 2018, when only 647 applications were received. On the other hand, in the past two years a larger percentage of applications has been granted: thus, for example, in 2013 a total of 1349 applications were granted (about 40% of all applications) and in 2018 a total of 482 applications were granted (about 75% of all applications), with a relatively constant distribution among the several categories of relief. In general, in this 5-year period the most frequent type of relief granted was a pardon with firearms restored, the next was a pardon without firearms, and the least frequent type of relief was restoration of rights with or without firearms restored.
Given the 2020 extension of record sealing relief to pardoned convictions by SB288, one may predictably expect the volume of cases to increase substantially.
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)
III. Expungement, sealing & other record relief
A. Record restriction and sealing: convictions
In July 2013, a new scheme of limiting public access to criminal records became effective. See 2012 Ga. Laws Act 709, 6-2 (H.B. 1176), codified at Ga. Code Ann. § 35-3-37. In 2020, this scheme was substantially expanded by SB288, signed into law on August 5, 2020. As originally enacted, the 2013 law provided for automatic administrative “record restriction” of non-conviction records, including cases where charges were dismissed and cases involving diversion.3 Youthful misdemeanants and drug possessors with no prior conviction were entitled under the 2013 law to petition the court for restriction and sealing. “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. In 2016 the law was expanded to cover participants in accountability courts.
The 2020 expansion extended the law to adult misdemeanors and pardoned felonies. These provisions are more fully described below.
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 pursuant to Ga. Code Ann. § 35-3-37(m). Sealing will 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. In September 2018, the Georgia Court of Appeals held that a trial court had abused its discretion when it refused to apply the balancing test in § 35-3-37(m) and declined to seal an eligible first offender conviction record based on its general disagreement with the policy embodied in the sealing law. See Doe v. State, 819 S.E.2d 58 (Ga. Ct. App. 2018) (“The views expressed by the trial judge from the bench . . . . clearly show that the trial court was disinclined to weigh the public’s interest in access to Doe’s court record in particular against the harm to his privacy, because the trial judge favored the transparency of criminal records in general, while acknowledging that the court’s views were ‘not the law.'”). Under the 2013 law, prosecutors no longer have sole discretion to approve or deny sealing applications. See also Bill Rankin, Ga. bill would hide arrest information, Atlanta Journal-Constitution, March 26, 2012, available athttp://www.policeone.com/legal/articles/5325010-Ga-bill-would-hide-arrest-information/.
Eligibility: Record restriction and sealing are available in the following types of convictions:
Pardoned felony convictions: On August 5, 2020, SB288 was signed into law by the governor, making felony convictions that have been pardoned eligible for record restriction, except for serious violent felonies or sexual offenses, as as long as there have been no convictions since the pardon and no charges are pending. Ga. Code Ann. § 35-3-37(j)(6). Petitions must be filed in the court where the conviction was obtained, the prosecuting attorney should be notified, and, “if a hearing is requested, such hearing shall be held within 90 days . . . .” “The court shall hear evidence and shall grant an order restricting such criminal history record information if it determines that the harm otherwise resulting to the individual clearly outweighs the public’s interest in the criminal history record information being publicly available.” Id. Given the frequency with which felonies are pardoned in Georgia (see part II above), this is an important extension of record relief.
Victims of human trafficking: Per a 2020 bill (SB 435), record restriction, sealing, and/or vacatur of convictions that occurred while a person was a victim of trafficking, are available on petition to the sentencing court. §§ 17-10-21; 35-3-37(j)(6). To apply to vacate the conviction, the person must not have any outstanding warrants, and must wait 6 months after sentencing for a misdemeanor and 1 year after completion of sentence for a felony (these requirements do not apply to a petition for record restrictions alone). Certain official documentation creates a presumption that the defendant was a victim of trafficking; otherwise, if the prosecutor objects, the defendant must show this by a preponderance of the evidence. If vacatur is granted, the court must also grant record restriction, and any fines and fines that have been paid by the defendant are refunded.
Misdemeanors and conditional discharges: Also, SB288 expanded the range of records eligible for restriction to include many non-violent misdemeanors and conditional discharges. This bill extends to adults an authority that applied only to “youthful offenders” in the original 2013 law, modifies the waiting period by shortening it substantially, and also deletes conditions on eligibility based on prior convictions. Ga. Code Ann. § 35-3-37(j)(4)(A). An individual is eligible to apply when they have “completed the terms of [their] sentence and has not been convicted of any crime in any jurisdiction for at least four years prior to filing a petition,” and has no pending charges. (Under the original law, the waiting period was five years without an arrest running from completion of sentence.) A provision disqualifying anyone ever convicted of certain serious offenses in current law was deleted. Granting the order would no longer be discretionary if the court determines that “the harm otherwise resulting to the individual clearly outweighs the public’s interest.” Record restriction would not be “appropriate” in case of conviction for certain sexual offenses, theft, and serious traffic offenses, although youthful offenders may seek restriction for some offenses involving family violence. § 35-3-37(j)(4)(B). A new subsection (C) would limit relief to two misdemeanors, or a series of misdemeanors arising from a single incident, in a lifetime. Eligibility and procedures for restricting the records of a conditional discharge for first offense substance abuse is at § 3-3-23(c).
“First offender” drug possession: Record restriction and sealing are available on petition to the court 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.
B. Record restriction and sealing: non-convictions
Pretrial release and diversion: Ga. Code Ann., § 42-3-72 authorizes courts to release a person charged with “a felony for which bond is permissible” prior to conviction and upon recognizance to the supervision of a pretrial release or diversion program established and operated by DCS under § 42-3-71 after an investigation and upon recommendation of the staff of the pretrial release or diversion program. (Prosecutors also have authority to operate diversion courts under contract with the Labor Department: “The authority to establish and operate pretrial release and diversion programs granted to DCS under this article shall not affect the authority of the Georgia Department of Labor to enter into agreements with district attorneys of the several judicial circuits of this state for the purpose of establishing and operating pretrial intervention programs in such judicial circuits.” § 42-3-73.)
Accountability courts: 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). Graduates of accountability courts also have advantages in the professional licensing process. See Ga. Code Ann. §43-1-19(p).
Non-conviction records: Records of the Crime Information Center of charges dismissed before a charging instrument is filed are, for arrests on after July 1, 2013, automatically restricted once the Center is notified that the case has been closed (for arrests prior to July 1, 2013 a written application is required). Ga. Code Ann. § 35-3-37(h)(1). Restriction is available upon request 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 are automatically restricted if all charges “were dismissed, nolle prossed, or reduced to a violation of a local ordinance.” § 35-3-37(h)(2)(A). Exceptions apply for certain dispositions. § 35-3-37(i).
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 because either (i) The prosecuting attorney was barred from introducing material evidence against the individual on legal grounds,” or (ii) The individual was formally charged with the same or similar offense within the previous five years. § 35-3-37(h)(2)(E).
While record restriction does not affect court records, individuals whose records are restricted may petition for sealing of court records pursuant to Ga. Code Ann. § 35-3-37(m). See section III.A above for more information.
Partial sealing of non-convicted charges: Records of felony charges dismissed pursuant to a plea to a misdemeanor may be restricted after four years. § 35-3-37(j)(1).
B. Deferred adjudication and sealing under the “First Offender Act”
Persons with first felony offenses 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 person 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 person 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, a person 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 person 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,”4 the legislature enacted § 42-8-62.1, which provides multiple methods for limiting public access to “first offender” records, including sealing court records under authority of § 35-3-37. See discussion below. 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.” 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 person pursuant to this procedure. § 42-8-65(a).
C. 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).
D. Juvenile Records
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).
Juvenile victims of human trafficking
An order of adjudication of delinquency by a court may be modified or vacated if the child was adjudicated for a delinquent act for a sexual crime as defined in Code Section 16-3-6 and such crime resulted from the child being trafficked for sexual servitude in violation of Code Section 16-5-46, or a victim of sexual exploitation. Ga. Code Ann. § 15-11-32(d). In addition, on application of such person, the court shall order the sealing of the files and records in the proceeding, including those specified in Code Sections 15-11-702 and 15-11-708. § 15-11-701(c).
E. 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.
IV. Criminal record in employment & licensing
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 have authority to deny or revoke licensure to a person convicted of a felony or a crime involving moral turpitude, including to a person arrested, charged and sentenced for such offenses pursuant to the “first offender” statute or where adjudication of guilt was otherwise withheld, or where a person is under supervision. Ga. Code Ann § 43-1-19(a)(3), (4). However, notwithstanding these provisions, under § 43-1-19(q) the conviction or other disqualifying disposition must be “directly related” to the occupation for which licensure is sought. Subsection (q) added by SB-367, §10-1 (2016)). In 2021, being under supervision for a felony or crime of moral turpitude was added to the dispositions that must be directly related to the licensed occupation, except for crimes of violence and crimes requiring registration as a sex offenses. See SB-114.
Under § 43-1-19(q)(2), a board must consider the following factors when determining whether a felony or crime or moral turpitude “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.
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.
- There is no definitive judicial decision from the Georgia courts giving the term this broad interpretation, see, e.g., Lewis v. Georgia, 243 Ga. 443 (1979), but the interpretation seems to have been accepted by advocacy organization in the State. See, e.g., Georgia Justice Project, Criminal Records and Voting FAQs, https://www.gjp.org/criminal-records-voting-psa/.
- 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.
- Prior to July 2013 expungement was available for non-conviction records where an individual was not prosecuted or where charges were dismissed, but 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).
- See Report of the Georgia Council on Criminal Justice Reform, February 2016, at 7.