[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5492 Introduced in House (IH)]
111th CONGRESS
2d Session
H. R. 5492
To permit expungement of records of certain nonviolent criminal
offenses, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 9, 2010
Mr. Cohen (for himself, Mr. Conyers, Mr. Davis of Illinois, Mr.
Cleaver, Mr. Jackson of Illinois, Ms. Fudge, Mr. Gutierrez, Ms. Moore
of Wisconsin, Mr. Payne, Mr. Rangel, Mr. Watt, Mr. Johnson of Georgia,
Ms. Lee of California, Mr. Delahunt, and Mr. Hastings of Florida)
introduced the following bill; which was referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To permit expungement of records of certain nonviolent criminal
offenses, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fresh Start Act of 2010''.
SEC. 2. EXPUNGEMENT OF CRIMINAL RECORDS FOR CERTAIN NONVIOLENT
OFFENDERS.
(a) In General.--Chapter 229 of title 18, United States Code, is
amended by inserting after subchapter C the following new subchapter:
``SUBCHAPTER D--EXPUNGEMENT
``Sec.
``3631. Expungement of certain criminal records in limited
circumstances.
``3632. Requirements for expungement.
``3633. Procedure for expungement.
``3634. Effect of expungement.
``3635. Reversal of expunged records.
``Sec. 3631. Expungement of certain criminal records in limited
circumstances
``(a) In General.--Any eligible individual convicted of a
nonviolent offense may file a petition under this subchapter for
expungement with regard to that nonviolent offense.
``(b) Definition of Nonviolent Offense.--In this subchapter, the
term `nonviolent offense' means any offense under this title that--
``(1) is not a crime of violence (as such term is defined
in section 16 of title 18, United States Code); or
``(2) is not an offense that, by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing the
offense.
``Sec. 3632. Requirements for expungement
``An individual is eligible for expungement under this subchapter
if that individual--
``(1) at the time of filing, had never been convicted of
any criminal offense (including any offense under State law)
other than the nonviolent offense for which expungement is
sought; and
``(2) has fulfilled all requirements of the sentence of the
court in which the individual was convicted of that nonviolent
offense, including--
``(A) paying all fines, restitutions, or
assessments;
``(B) completion of any term of imprisonment or
period of probation;
``(C) meeting all conditions of a supervised
release; and
``(D) if so required by the terms of the sentence,
remaining free from dependency on or abuse of alcohol
or a controlled substance for a period of not less than
1 year.
``Sec. 3633. Procedure for expungement
``(a) Petition.--A petition for expungement may be filed only in
the court in which the petitioner was convicted of the nonviolent
offense for which expungement is sought. The clerk of the court shall
serve that petition on the United States Attorney for that district.
Except as provided under subsection (d), not later than 60 days after
service of such petition, the United States Attorney may submit
recommendations to the court and provide a copy of those
recommendations to the petitioner.
``(b) Submission of Evidence.--The petitioner and the Government
may file with the court evidence relating to the petition.
``(c) Basis for Decision.--In making a decision on the petition,
the court shall consider all evidence and weigh the interests of the
petitioner against the best interests of justice and public safety.
``(d) Subsequent Petition.--If the court denies the petition, the
petitioner may not file another such petition until the date that is 2
years after the date of such denial.
``(e) Mandatory Grant of Petition.--
``(1) In general.--Except as provided in paragraph (2), the
court shall grant the petition of an eligible petitioner who
files the petition on a date that is not earlier than the date
that is 7 years after the date on which the petitioner has
fulfilled all requirements of the sentence. The United States
Attorney may not submit recommendations under subsection (a)
with regard to that petition.
``(2) Exceptions.--The court may not grant under this
subsection the petition of a petitioner who has committed a
nonviolent offense that is one of the following:
``(A) Any offense under this title that causes the
petitioner to be required to register under the Sexual
Offender Registration and Notification Act.
``(B) Any offense under this title that causes a
victim or victims to sustain a loss of not less than
$10,000.
``Sec. 3634. Effect of expungement
``(a) In General.--An order granting expungement under this
subchapter shall restore the individual concerned, in the contemplation
of the law, to the status such individual occupied before the arrest or
institution of criminal proceedings for the nonviolent offense that was
the subject of the expungement.
``(b) No Disqualification; Statements.--An individual whose
petition under this subchapter is granted shall not be required to
divulge information pertaining to the nonviolent offense with regard to
which expungement is sought, nor shall such individual be held under
any provision of law guilty of perjury, false answering, or making a
false statement by reason of the failure of the individual to recite or
acknowledge such arrest or institution of criminal proceedings, or
results thereof, in response to an inquiry made of the individual for
any purpose. The fact that such individual has been convicted of the
nonviolent offense concerned shall not operate as a disqualification of
such individual to pursue or engage in any lawful activity, occupation,
or profession.
``(c) Records Expunged or Sealed.--Except as provided under section
3635, on the grant of a petition under this subchapter, the following
shall be expunged:
``(1) Any official record relating to the arrest of the
petitioner, the institution of criminal proceedings against the
petitioner, or the results thereof (including conviction) for
the nonviolent offense with regard to which expungement is
sought.
``(2) Any reference in any official record to the arrest of
the petitioner, the institution of criminal proceedings against
the petitioner, or the results thereof (including conviction)
for the nonviolent offense with regard to which expungement is
sought.
``(d) Exceptions.--The Attorney General may make rules providing
for exceptions to subsection (c) as the Attorney General determines
necessary to serve the interests of justice and public safety.
``(e) Reversal of Expungement.--The records or references expunged
under this subchapter shall be restored by operation of law as public
records and may be used in all court proceedings if the individual is
convicted of any Federal or State offense after the date of
expungement.
``Sec. 3635. Disclosure of expunged records
``(a) Record of Disposition To Be Retained.--The Attorney General
shall retain an unaltered nonpublic copy of--
``(1) any record that is expunged; and
``(2) any record containing a reference that is expunged.
``(b) Law Enforcement Purposes.--The Attorney General shall
maintain a nonpublic index of the records described under subsection
(a) containing, for each such record, only the name of, and
alphanumeric identifiers that relate to, the individual who is the
subject of such record, the word `expunged', and the name of the
person, agency, office, or department that has custody of the expunged
record, and shall not name the offense committed. The index shall be
made available only to an entity to which records may be made available
under subsection (d) or to any Federal or State law enforcement agency
that has custody of such records.
``(c) Authorized Disclosures.--
``(1) In general.--Except as provided in paragraph (2), any
record described in subsection (a) pertaining to an individual
may be made available only--
``(A) to a Federal or State court or Federal,
State, or local law enforcement agency, in the case of
a criminal investigation or prosecution of an
individual or in conducting a background check on an
individual who has applied for employment by such court
or agency; or
``(B) to any State or local agency with
responsibility for the issuance of licenses to possess
firearms, in the case of an individual applying for
such a license.
``(2) Authorized disclosure to individuals.--On application
of the individual to whom a record described under subsection
(a) pertains, that record may be made available to the
individual.
``(d) Punishment for Improper Disclosure.--Whoever intentionally
makes or attempts to make a disclosure, other than a disclosure
authorized under subsection (c), of any record or reference that is
expunged under this subchapter shall be fined under this title or
imprisoned not more than one year, or both.''.
(b) Clerical Amendment.--The table of subchapters at the beginning
of chapter 229 of title 18, United States Code, is amended by adding at
the end the following item:
``D. Expungement............................................ 3631''.
(c) Effective Date.--The amendments made by this Act shall apply to
individuals convicted of an offense before, on, or after the date of
enactment of this Act.
SEC. 3. INCENTIVE PAYMENTS UNDER THE BYRNE GRANTS PROGRAM FOR STATES TO
IMPLEMENT CERTAIN EXPUNGEMENT PROCEDURES AND
REQUIREMENTS.
Section 505 of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3755) is amended by adding at the end
the following new subsection:
``(i) Payment Incentives for States To Implement Certain
Expungement Procedures and Requirements.--
``(1) Payment incentives.--
``(A) Bonus.--In the case of a State that receives
funds for a fiscal year (beginning with fiscal year
2011) under this subpart and that has in effect
throughout the State for such fiscal year laws to
provide for expungement with respect to certain
criminal records that are substantially similar to the
Federal rights, procedures, requirements, effects, and
penalties set forth in subchapter D of Chapter 229 of
title 18, United States Code, the amount of funds that
would otherwise be allocated under this subpart to such
State for such fiscal year shall be increased by 5
percent.
``(B) Penalty.--In the case of a State that
receives funds for a fiscal year (beginning with fiscal
year 2011) under this subpart and that does not have in
effect throughout the State for such fiscal year laws
to provide for expungement with respect to certain
criminal records that are substantially similar to the
Federal rights, procedures, requirements, effects, and
penalties set forth in subchapter D of Chapter 229 of
title 18, United States Code, the amount of such funds
that would otherwise be allocated under this subpart to
such State for such fiscal year shall be decreased by 5
percent.
``(2) Reports.--The Attorney General shall submit to the
Committee of the Judiciary of the House of Representatives and
the Committee of the Judiciary of the Senate an annual report
(which shall be made publicly available) that, with respect to
the year involved--
``(A) lists the States that have (and those States
which do not have) in effect throughout the State laws
to provide for expungement with respect to certain
criminal records that are substantially similar to the
Federal rights, procedures, requirements, effects, and
penalties set forth in subchapter D of Chapter 229 of
title 18, United States Code; and
``(B) describes the increases granted to States
under paragraph (1)(A), the penalties imposed on States
under paragraph (1)(B), and the amounts that States
being penalized under paragraph (1)(B) would have
received if such States had in effect laws described in
subparagraph (A) of this paragraph.
``(3) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection for each of the
fiscal years 2011 through 2015, in addition to funds made
available under section 508, such sums as may be necessary, but
not to exceed the amount that is 5 percent of the total amount
appropriated pursuant to such section for such fiscal year.''.
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