According to popular myth, all criminal convictions are black Sharpie marks that forever stain permanent records. In many cases, that’s true. But in some cases, relief is available. So, from this perspective, a conviction isn’t always a conviction.
The direct consequences of a criminal conviction usually include, at a minimum, extended court supervision and a large fine. The indirect consequences are often much worse. Assaults, even misdemeanor assaults, are a good example. A conviction usually means problems in family court, even years after the conviction. Additionally, assaults often involve deportation and exclusion matters.
Legally, judges and court officials must only warn defendants about the direct consequences of a criminal conviction. A Marietta criminal defense attorney warns defendants about the indirect consequences and help them prepare for these effects. In many cases, an attorney can limit collateral consequences or even eliminate them altogether. It’s hard enough to live life without a stain on a permanent record. Formal or informal expungement makes life a lot easier to deal with.
Collateral Criminal Consequences
One advocacy group defines these effects as “legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other rights, benefits, and opportunities.” Let’s unpack that dense definition.
Employment effects are usually the worst collateral consequences. To limit these effects, many jurisdictions have passed “ban the box” laws which prohibit employers from asking about criminal histories during screening interviews.
These laws may have had the opposite effect. Since information is unavailable, many employers make age and ethnicity-based assumptions. In other words, some employers automatically brand all applicants who fit a certain profile. Additionally, even in ban-the-box areas, employers can still ask about such matters later in the process. So, in the words of one advocate, bosses can still legally discriminate. They just can’t discriminate as quickly.
On a similar note, usually as a policy matter, many state agencies don’t issue licenses to people with certain criminal convictions on their records, no ifs, ands, or buts.
The same Sharpie mark that creates lost business opportunities often creates lost financing opportunities. Many banks don’t loan money to people with criminal records, once again as a policy matter. That’s especially true if the loan applicant was convicted of a crime of moral turpitude. Basically, these banks assume that if the applicant was dishonest once, the applicant is a dishonest person.
As for lost educational opportunities, criminal records don’t technically derail student aid applications, at least in most cases. However, a criminal past basically forces an applicant to the end of the line. By the time the applicant’s number is called, the money is often gone.
Formal Relief
For many people with criminal convictions, it’s a good time to be alive. Georgia’s 2020 Second Chance Law significantly expanded the formal expungement and sealing mechanism in the Peachtree State. This law ended the cumbersome application process, at least for offenses committed after July 2013.
Additionally, it gave almost complete discretion to prosecutors. That sounds like a bad thing, but in this context, it’s usually a good thing. Typically, prosecutors try hard to convict as many defendants as possible. That’s the only way to move up the corporate ladder. After the judge’s gavel falls, most prosecutors don’t care what happens to most defendants. So, the change makes it easier for a Marietta criminal defense lawyer to obtain relief.
Most non-sex crime misdemeanor are eligible for record restriction, even if the applicant has multiple convictions. DUIs and family violence assaults usually aren’t eligible, although there are some exceptions.
Felonies are a bit more complex. Restriction is a one-time deal. Any prior conviction usually ruins the deal. Additionally, these applicants must receive pardons before they apply. That’s daunting, but it’s not as daunting as many people think it is. Typically, if the defendant’s sentence expired more than five years previously and the defendant has made some life changes (found religion, got a new job, moved to a new area, stopped drinking, etc.), the governor often signs off on these requests. That’s especially true if the pardon application jives with the governor’s political agenda.
Record restriction is basically record sealing. Only judicial and law enforcement agencies, along with a few state licensing agencies, have access to these records. As far as employers, lenders, and other members of the general public are concerned, the record doesn’t exist. In fact, if anyone asks about a sealed record, the person can legally answer “I don’t have a criminal history.”
We mentioned that prosecutors have almost complete discretion to grant these restriction applications. Usually, when applicants file for relief, prosecutors reach out to prison officials or probation officers. If these officials agree with the application, or at least don’t oppose it, prosecutors often rubber-stamp it.
Informal Relief
Deferred disposition is usually available in all misdemeanors and all felonies, especially if the defendant has a good defense. Basically, deferred disposition is automatic, but limited, record restriction.
Most criminal offenses involve procedural, substantive, and/or affirmative defenses. The defense doesn’t have to be strong enough to hold up in court. Instead, it must only be strong enough for a Marietta criminal defense lawyer to use it as a poker chip during pretrial settlement negotiations. All good poker players know that you can bluff your way into a win, even if your hand isn’t the greatest.
Procedurally, when a defendant pleads guilty, the judge accepts the plea and sentences the defendant. But the judge doesn’t utter those magic words “I find you guilty of XYZ.” Instead, the judge defers this part of the proceeding until probation expires. If the defendant successfully completed probation, which isn’t the same thing as perfectly completing probation, the judge dismisses the case.
So, the judicial record goes away. However, the arrest record remains. If a landlord, employer, or lender asks about the arrest record later, we usually tell people to rather offhandedly say “I hired a Marietta criminal defense lawyer, and the lawyer took care of it.” That’s basically a true statement.
Early discharge from probation sometimes comes into play, especially in felony cases. Technically, a judge can discharge a defendant probation on the same day the judge hands down the sentence. Usually, a judge won’t take such action unless the defendant has completed about half the term, has paid all money due, and has an exemplary court supervision record.
Criminal convictions don’t always forever stain permanent records. For a free consultation with an experienced criminal defense attorney in Marietta, contact the Phillips Law Firm, LLC. Convenient payment plans are available.
