The Infallible Man Does Not Exist, Meditations on the First Offender Act

by Joshua Brownlee

What do Mathew Broderick, Will Smith, Chuck Berry, Woody Harrelson, Stephen Fry, and Jay Z have in common? They were all given a second chance.

  • Mathew Broderick- Careless driving (reduced from vehicular homicide)
  • Will Smith- Aggravated Assault
  • Chuck Berry- Armed Robbery
  • Woody Harrelson- Disorderly Conduct and Resisting Arrest
  • Stephen Fry- Credit Card Fraud
  • Jay Z- Aggravated Assault (Stabbing)

It’s not just famous people. If we search the histories of our lives we find friends and family (maybe ourselves) that were lucky enough to catch a break. In Georgia we have a specific statute that has been around for 40 years that is meant to help people start over. O.C.G.A. § 42-8-60, or more widely known as First Offender Act. First Offender status doesn’t have an effect on the prison or probation sentence itself. First Offender comes into play after the sentence has been completed. When a defendant enters a plea of guilty under First Offender he or she must complete the confinement, special terms, treatment, and fines of the sentence. After they complete the sentence, the case is discharged without an adjudication of guilt. More specifically it states in O.C.G.A. § 42-8-62:

Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction. It shall be the duty of the clerk of court to enter on the criminal docket and all other records of the court pertaining thereto the following:
“Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry and except with regard to employment providing care for minor children or elderly persons as specified in Code Section 42-8-63.1; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-62”.

This is a life changing opportunity for many people. The second chance is limited to those who commit nonviolent crimes and it does not apply to sexual crimes against minors. That means more than half of the famous people listed above wouldn’t be eligible for First Offender in Georgia. Not having a felony conviction is a big deal. It means that after a person completes their sentence they can apply for jobs without having to say they are a convicted felon. It means they can vote and be a normal citizen and reintegrate as a productive member of society.

So why am I blogging about a Georgia Law that helps people? Unfortunately, the internet profits from suffering and fear. Many websites troll for mugshots and criminal records making it difficult to get away from a mistake that happened decades ago. In an effort to help First Offenders reintegrate without looking over their shoulder the Georgia Legislature is currently reviewing SB 367. The new legislation will expand privacy protections of people who complete the terms of First Offender. Upon sentencing, the First Offender can have their records sealed including their mug shots. The Atlanta Journal Constitution recently ran a story criticizing the new bill called Second Chance for Criminals, closed files for public. The article focuses on one bad actor who took advantage of First Offender and broke the law again. The basic premise of the article is once someone commits a crime we should always be allowed to know because most people never change. No doubt Jay Z and Mathew Broderick are just waiting for the right moment to unleash their next wave of destruction. Never mind that Jay Z and Mathew Broderick are famous people that make tons of money and are married to women who make even more money. It’s hard to feel too bad for them. They are celebrities and in exchange for being rich and famous, everybody knows their business.

99.99% of First Offenders aren’t rich and famous, they are fairly regular people that just want to get back to their families and live a normal life. Without sealing their records they can’t do that. It doesn’t matter if they become a lawyer, doctor, nurse, mechanic, business owner, or stay at home parent. There will always be a picture and article condemning them to a past they would rather forget. Will bad people take advantage of First Offender? Yes, some people don’t learn. But a lot of people do learn and do great things with their life. It’s important to remember, the records are sealed from the public not law enforcement and judges. You want to see some fireworks in a court room? Watch a judge sentence someone for screwing up First Offender. The AJC article lays out the details of a woman who used First Offender as a cover for her next crime spree. The employer is justifiably angry at being ripped off and lashes out at the First Offender statute. The anger in the article portrays this woman as if she is the sole fruit of the tree. It’s true, bad people will break the law again and again, but not all people that break the law are bad people. It is silly to take an opportunity from tens of thousands of individuals because a few people re-offend. You won’t hear from the people who successfully completed First Offender in the AJC article because they are focused on moving on with their lives. My clients who have taken a plea under First Offender weren’t mentioned in the AJC article. So to our good friends at the AJC, I respectfully end with one of history’s better conclusions:

Now my charms are all o’erthrown,
And what strength I have’s mine own,
Which is most faint. Now ’tis true
I must be here confined by you
Or sent to Naples. Let me not,
Since I have my dukedom got,
And pardoned the deceiver, dwell
In this bare island by your spell;
But release me from my bands
With the help of your good hands.
Gentle breath of yours my sails
Must fill, or else my project fails,
Which was to please. Now I want
Spirits to enforce, art to enchant;
And my ending is despair
Unless I be relieved by prayer,
Which pierces so, that it assaults
Mercy itself, and frees all faults.
As you from crimes would pardoned be,
Let your indulgence set me free

– Epilogue of Prospero, Shakespeare’s The Tempest

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