[The following post was written for a Georgia-based publication, but I thought it likely applied to other states. PLEASE NOTE: the fake mug shot at left was posed for by the photographer, who is not related to the author of this post. -- Ed.]
Late one night, one of my sons was picked up by police in the parking lot at a Wal-Mart in downtown Atlanta. Video cameras showed he was with a group of young people who “forgot” to pay as they strolled out of the store with a cart full of camping equipment.
He was waiting at the car for his friends to finish shopping and claimed he had no idea they didn’t intend to pay for their goods. Police arrested the entire group, leaving it up to the courts to sort the innocent from the guilty. After a frantic middle of the night phone call where he INSISTED he was innocent of shoplifting, we bailed him out of jail with $1,500 in cash, and about a month later the case was heard by a judge and the charges against him were dismissed.
Despite the fact that he was never charged with a crime, his mug shot from the Fulton County Jail lives on forever and it’s the first thing that pops up when a potential employer does a Google search. Ouch! That’s when we discovered the convoluted and difficult process of getting a record expunged. Not everyone is eligible for expungement, but it’s worth the time and effort. This kind of thing can haunt you the rest of your life as you apply for jobs, ask for financial aid or fill out a rental agreement.
Seems like double jeopardy for the person involved.
OK, so here’s the state’s attitude in these kinds of matters: We’re going to arrest you for a crime we think you committed. When the judge finds out you really didn’t commit a crime, you’re let go without even an apology, despite the fact you were treated like a criminal when they handcuffed you, transported you in the back of a cop car to a jail where they strip-searched, finger-printed and then threw you in a jail cell with a couple hundred of Atlanta’s scariest individuals.
In a lot of cases people wanting to expunge their records have to hire an attorney to work through the legal system. A lot of people can’t afford this, so they turn to agencies such as the Georgia Justice Project that helped more than 600 people last year navigate the current clunky system to have their records expunged from the public records.
According to the Georgia Code, the person who’s the subject of the records must request the expungement. Since our son was arrested these are the steps he needs to follow to get his record back to the pristine condition it was in before this interlude with the criminal justice system:
In the case of a person arrested and not convicted, they may make a written request for expungement to the original agency having jurisdiction in the case. Upon receipt of the written request, the agency shall provide a copy of the request to the proper prosecuting attorney. The prosecuting attorney will then review the request to determine if it meets the criteria for expungement. If the request meets those criteria, the prosecuting attorney will then review the records of the arrest to determine if any of the material must be preserved in order to protect the constitutional rights of an accused. If the agency declines to expunge the arrest record, the individual may file an action in the superior court where the agency is located.
I don’t know about you, but I think the whole entire process would work so very much better if they’d just automatically expunge the records of people whose cases are dismissed. Does this system seem fair to you? Georgia state Rep. Jay Neal plans to introduce a bill in the 2012 state legislative session which would automatically restrict public access to records of any arrest or criminal charges that didn’t result in a conviction. It all makes total sense to me.
My boy is not the only one in Georgia this has happened to, and Georgia isn’t the only place where this kind of thing happens. It turns out that in other parts of the country too, you are guilty after proven innocent.
Here are some thoughts from a Kentucky attorney named Julie Kaelin who knows a thing or two about the issue, having worked in the Louisville public defender’s office for years:
“The only answer (in my humble opinion) is to have a way of truly segregating records in a manner that allows a person to move on with his or her life, but allows for access to and knowledge of the conviction by the defendant, the clerks, prosecutors, and judges. I have no easy answer to that, as it doesn’t make much sense to charge the person money who has had the case against them dropped… What does make sense is helping people get their foot in the door—not tripping them on their way in. Remember, I’m not talking about people who have long criminal records or even just two offenses in their past. This is for the mom who thought she could get to the bank in time to cover a check, or the kid who was in the back seat of a car he didn’t know was stolen. I don’t feel the need to ban them from productive society…”
She makes so much sense. Now if the Georgia Legislature can just show as much wisdom.
Related Post: Addressing the Collateral Consequences of Convictions for Young Offenders
Cherie K. Miller lives on a lake in Georgia with her husband, Steve, and a blended family of seven sons, two dogs, two leopard geckos and one freakishly grumpy 17-year-old cat, named Kitty. Steve & Cherie have a nonprofit organization that provides compelling character development curriculum for use by parents, in schools, or other community organizations.
Photo at top: mr · p, under Creative Commons license.
Updated: February 08 2018