DAs battle arrest records bill
Backers say effort to restrict public’s right to view records would protect people who were wrongly accused
By Kathleen Baydala Joyner, Staff Reporte
Prosecutors are fighting a bill backed by criminal defense lawyers that would restrict the public’s right to view arrest records in cases that resulted in no prosecution or conviction.
Kermit N. McManus, district attorney for the Conasauga Judicial Circuit, said prosecutors are concerned that House Bill 402 would improperly conceal some suspects’ records and take away prosecutors’ authority to determine which records should be kept out of the public eye.
“You’re talking about the government keeping information from the public,” McManus told the House Judiciary Non-Civil Committee during an Aug. 17 hearing. “We don’t think the government should be keeping vital information from the public … where there is a compelling reason not to do so.”
McManus, a legislative liaison for the Prosecuting Attorneys’ Council and District Attorneys Association, also said that both groups are working on a substitute version of the bill to be considered when the General Assembly—which was in town for a special session—reconvenes in January.
The bill’s sponsor, Rep. Mark Hatfield, R-Waycross, said the bill would protect people who were wrongly accused or found not guilty of crimes.
“There are people who find themselves in a position where they can’t find employment because their criminal history shows that they were charged with x, y and z, though they were not convicted,” said Hatfield, who said he sponsored the bill on behalf of the Georgia Justice Project and the Georgia Association of Criminal Defense Lawyers,
In its latest version, HB 402 would require the Georgia Crime Information Center, the statewide criminal database, and court clerks to restrict automatically non-law enforcement access to arrest records in cases where the arresting law enforcement agency never referred the suspect’s case for prosecution or the prosecuting agency dismissed it.
While general public access of GCIC records already is restricted, those records often are caught in sweeps by companies or software programs used for background searches. Also, the public may access many criminal records at courthouses.
Under the current law, people who have been acquitted of criminal charges or whose charges were dismissed may seek to have their records expunged with the approval of the prosecuting attorney.
“We’ve been trying to get changes to the expungement laws for years because of the recent proliferation of private companies searching records. Our clients who are arrested and acquitted or their charges do not go forward are prevented from getting jobs or housing,” said GACDL lobbyist Sandra L. Michaels. “Anybody can take out a warrant and have somebody arrested even if there is no basis, and that will be on your record and a lot of employers are reluctant to hire you if you have an arrest record even if that arrest was bogus.”
The bill also would restrict access to arrest records in the these types of cases: those dismissed after indictment, nolle prossed or placed on the dead docket and at least a year has passed; cases in which the defendant was sentenced to a penalty other than death but had the conviction reversed in trial court or on appeal; and cases in which the grand jury returned two no bills.
Records would not be automatically restricted in cases that are dismissed because of a plea deal or in which the defendant is acquitted of some charges but not others.
The bill also states that if the conduct resulting in arrest is part of a pattern of criminal activity that was prosecuted in other states or countries, then the suspect’s arrest records would remain open to the public. Arrest records in cases that are dropped because the suspect has diplomatic or other immunity also would remain open.
McManus, the Conasauga DA, said the bill goes too far.
“There may be a good reason a case isn’t reprosecuted that has nothing to do with guilt or innocence,” he said. “There may have been a motion to suppress that kept certain evidence from coming into trial or a material witness may not have been available due to death or other means.
“You don’t want a baby sitter who has been charged with child molestation but was acquitted because the child could not be a witness or some other reason,” McManus added.
Besides making more case dispositions qualify for expungement, the bill’s backers also want to revise the process for restricting public access to arrest records. (Some lawmakers casually referred to this process as expungement, though the records would not actually be destroyed or erased.)
“The expungement process now is a process that is fairly nebulous. It’s a limited remedy and throws the responsibility primarily in the laps of prosecutors to deal with,” said Hatfield, who went into private practice after serving as an assistant district attorney.
Hatfield then said his previous discussions with prosecuting attorneys led him to believe that they “wanted to be free of that process.”
The process also can be lengthy and expensive, said Georgia Justice Project attorney Marissa McCall Dodson.
Under the most recent draft of the proposed new law, anyone whose arrest records aren’t automatically restricted may petition superior courts to restrict access if he believes there are “extraordinary circumstances” that would warrant it.
McManus said he believes Hatfield’s statement about prosecutors not wanting the burden of approving which arrest records should be restricted is a “misinterpretation of comments made a year or so ago.”
“We do want to be involved in the expungement process,” McManus said.
Rep. Ed Setzler, R-Acworth, challenged whether prosecutors should make the determination, suggesting that duty should belong to judges.
“It’s akin to the losing team getting to decide which highlights are put on SportsCenter,” said Setzler, one of the members of the Judiciary Non-Civil Committee who is not an attorney.
But McManus fired back. “Unless the case has gone to trial, the judge doesn’t know anything about it; and they shouldn’t,” he said.
Hatfield ended the committee hearing discussion on his bill by promising to continue to work with prosecutor and defense attorney groups to hammer out a balance between the right of public information for public safety and protecting people who are kept from finding employment due to unfair or unproven accusations.