Georgia’s First Offender Act to Apply Retroactively

Second Chance LawSecond Chance Law

In 1968, the Georgia legislature enacted the First Offenders Act, a law meant to give certain first-time, non-criminal defendants the chance to obtain gainful employment.   Often referred to as the “second chance law,” the Act allows eligible defendants to enter a plea of “guilty” or “nolo contendre” to the charge, and be placed on probation as a first offender.  The judge withholds the adjudication of guilt that would normally follow and instead defers judgment in the case and sentences the defendant to a term of probation or jail time (or a combination of both) along with other conditions. Upon successful completion of the sentence conditions, a discharge is filed which “completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties.”  As a result, the individual does not have a criminal conviction, is not a convicted felon, may continue to vote, own or possess lawfully a firearm, and maintain other rights or liberties that would be lost with a felony conviction.  A defendant who fails the conditions of probation can receive up to the maximum sentence allowed.  The law also prohibits public and private employers from denying a job on the basis of a criminal offense that was discharged under the Act.

One of the intended benefits of the Act is that those who successfully complete the program have no criminal record to disclose to prospective employers.  Yet, over the decades, criminal justice reform advocates have argued that many criminal defendants who were eligible for first offender treatment under the Act were not being informed of their eligibility.  These uninformed defendants ended up with criminal convictions that could be uncovered by a prospective employer conducting a criminal background check.  Advocates therefore argued that the intent of the First Offender Act was being thwarted.

In response to these concerns, and in an effort to implement criminal justice reform that will reduce recidivism, Georgia has passed legislation overhauling its probation system.  That legislation also makes the First Offender Act retroactive in application.  As a consequence, any individual who would have been eligible under the First Offender Act at the time of conviction, may now petition the Georgia Bureau of Investigation to modify his or her criminal record.  Such modification requires approval of the court and the prosecutor.

In spite of this revision to the Act, certain criminal defendants are still ineligible for first offender treatment:

  • Individuals charged with a serious violent felony;
  • Individuals charged with a sexual offense;
  • Individuals charged with sexual exploitation of a minor;
  • Individuals charged with electronically furnishing obscene material to a minor;
  • Individuals charged with computer pornography and child exploitation;
  • Individuals charged with DUI; and
  • Individuals charged with certain violent, sexual and abuse offenses.

In addition, certain jobs such as teaching, child care, elder care and law enforcement are exempt under the Act when the defendant is charged with certain violent, sexual or abuse charges.

What does this mean for employers?

More individuals will have their first-time, non-violent criminal convictions discharged, making them more eligible for employment.  Employers should make sure, before disqualifying a job applicant on the basis of a prior criminal conviction, to ensure that the applicant is not protected by the Act.

Contributor:  Vida L. Thomas, Attorney at Law | Weintraub Tobin