The First Offender Act: Why are so many election indictment defendants using it?
Having first-offender status is valuable - it allows a conviction to disappear after a person’s time or probation is served
ATLANTA, Ga. (Atlanta News First) - Some of the defendants in the sweeping Georgia election indictment are using a lesser-known Georgia statute to ensure their convictions disappear after their probations are served.
The First Offender Act has been around in the state for decades and allows first-time crime committers to ask for a judge’s permission to be sentenced under it. Passed in the late 1960s, the act wipes a person’s state criminal record clean after their time – whether it’s probation or actual jail time – is complete.
“If they serve out their probation without committing any other crimes, they have the benefit of basically having the entire conviction go away,” said Caren Myers Morrison, a law professor at Georgia State University. “These are very sweet deals for the defendants.”
Morrison was a prosecutor in Georgia for a time, crafted plea deals, and tried many cases under the First Offender Act.
Four defendants in the election indictment – Kenneth Chesebro, Sidney Powell, Scott Hall and Jenna Ellis – have taken plea deals, with at least three of them – Chesebro, Powell, and Hall – getting first offender status.
It means the guilty pleas won’t show up on applications for jobs, loans, housing, school, or the military as long as the agreed-upon sentence has been completed with no missteps. Chesebro and Powell, who are both lawyers, may even be able to retain their licenses to practice law despite the serious nature of the charges.
First-offender status is only available to individuals who have never committed a felony before and can only be used once. But in the case of the indictment defendants, it may have been the right move, experts say.
“As a general matter, you save it for a felony,” said Matthew Cavedon, a fellow at Emory Law School and a former public defender in the Gainesville area. “If you are well into your career, well into adulthood, you don’t have anything on your record, and the misdemeanor is something significant around an election conspiracy, that actually might be the case where I’m not at all surprised that you’re going to ask for first offender.”
The essential expungement of the conviction only applies in Georgia, as the First Offender Act is a state law. Federal law does not recognize it. But it’s nonetheless a powerful tool for criminal defense that Cavedon said more people should know about, and not just those with high-powered attorneys.
“It is good that there is more flexibility now, Georgia’s been a leader on a lot of those kinds of issues,” he said. “It is good to be aware that in Georgia, especially on drug crimes but frankly on a lot of crimes, there are ways to get through even a proven case or even a guilty plea, without having a conviction on your record, so that you can move forward with schooling, with housing, with working, with doing all those good things.”
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