Soon records on criminal charges that never led to a conviction or records of a case resolved in drug court will be restricted to the public, available only to law enforcement, when a new Georgia law takes effect July 1.
The move to expunge certain records was included in legislation passed last year making sweeping reforms to the criminal justice system.
Supporters of the change said it gives second chances to find a job or housing that otherwise would be unavailable because of the stigma of criminal charges, even if there is no conviction.
But prosecutors, law enforcement and advocates for open government worry that closing such records will prevent the public from tracking the successes of prosecutors or the quality of the police investigation.
“You’ll never be able to see if a prosecutor is … canning cases,” said Putman County Sheriff Howard Sills, president of the Georgia Sheriffs Association. “It’s revisionist history. It makes something that happened go away.”
The overall goal of the law was to reform those who can be saved through court programs and other alternatives to prison and to lock up only the more serious criminals. Citizens would be safer while also spending less to support the prison system were the arguments used in pushing the reforms based on the recommendations of Special Council on Criminal Justice Reform.
But section six of the law was crafted with the individual in mind.
The change will help rebuild lives if they are cleared or have completed their sentences in alternatice programs, said Atlanta civil rights attorney Gerry Weber.
“A criminal history, which may just be an arrest that ultimately ended in dropped charges, is a monkey on someone’s back,” Weber said “It can haunt them in employment and other areas of their lives… There are areas where the public’s right to know is frustrated, but the overall purpose is not having minor [criminal charges] … haunt someone for the rest of their lives.”
Floyd County’s top prosecutor Leigh Patterson, president of the District Attorneys’ Association of Georgia, acknowledges section six was designed with individuals in mind but notes it also affects other aspects of the system.
“That portion of the bill seems to have been written with more of an eye to the individual and how it affects that person rather than how it affects victims of crime or the police or prosecutors,” said Hall County top prosecutor Leigh Patterson, president of the District Attorneys’ Association of Georgia.
She said the DAs also were concerned about the administrative burden on the courts. Patterson said information that had been redacted from public records could still be in the public domain because data mining companies like Equifax and LexusNexus would already have initial arrest records and there is no way to pull it back.
Under current law, a prosecutor decides whether to accept or reject a request to have records expunged.
But once the change kicks in some records will be automatically restricted, including case information on indexes like court dockets. Records will be restricted when a law enforcement agency does not forward a case for prosecution or when a DA declines to prosecute. Restrictions will be placed on cases that a grand jury declines twice to indict or when someone is acquitted of all charges in one case. Records of those who successfully complete the requirements of mental health or drug courts also will be redacted.
Hollie Manheimer, executive director of the Georgia First Amendment Foundation said one downside would be the difficulty of researching records to see if prosecutors are or are not pursuing certain charges or if there is evidence of racial bias in certain charges.
“In many circumstances, it calls for automatically sealing all criminal records, including routine police records… There would be no way to evaluate whether that result was fair to the victims of the crime or to determine if the police acted improperly in the first place,” she said. “It creates a real risk that a lot of decisions made by police and prosecutors will be secret forever.”
Records would remain public however, when only some charges are dropped as part of a plea agreement that still leads to a conviction on other counts, a judge bars material evidence on legal grounds, or on an arrest related to a pattern of criminal activity prosecuted elsewhere.