[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 104 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 104
To provide for the vacating of certain convictions and expungement of
certain arrests of victims of human trafficking.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 11, 2017
Mrs. Gillibrand (for herself, Mr. Portman, Mr. Rubio, and Mr.
Blumenthal) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide for the vacating of certain convictions and expungement of
certain arrests of victims of human trafficking.
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 ``Trafficking Survivors Relief Act of
2017''.
SEC. 2. FEDERAL EXPUNGEMENT FOR VICTIMS OF TRAFFICKING.
(a) In General.--Chapter 237 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 3772. Motion to vacate; expungement; mitigating factors
``(a) Definitions.--In this section--
``(1) the term `child' means an individual who has not
attained 18 years of age;
``(2) the term `covered offense'--
``(A) means a Federal offense that is not--
``(i) a violent crime; or
``(ii) an offense of which a child was a
victim; and
``(B) includes--
``(i) a conspiracy to commit an offense
described in subparagraph (A)(i) of which a
child was not a victim; and
``(ii) a conspiracy to commit an offense
described in subparagraph (A)(ii) that is not a
violent crime;
``(3) the term `covered prisoner' means an individual who--
``(A) was convicted of a noncovered offense before
the date of enactment of this section;
``(B) was sentenced to a term of imprisonment for
the noncovered offense; and
``(C) is imprisoned under such term of
imprisonment;
``(4) the term `eligible entity' includes--
``(A) a legal aid society or legal services
organization that provides indigent legal services;
``(B) a nonprofit organization that provides legal
services to victims of trafficking; and
``(C) a public defender's office;
``(5) the terms `employee' and `officer' have the meanings
given the terms in section 2105 of title 5;
``(6) the term `Federal offense' means an offense that is
punishable under Federal law or the laws of the District of
Columbia;
``(7) the term `noncovered offense'--
``(A) means a Federal offense that is a violent
crime;
``(B) does not include a Federal offense that is a
violent crime of which a child was a victim; and
``(C) includes a conspiracy to commit an offense
described in subparagraph (B);
``(8) the term `victim of trafficking' has the meaning
given that term in section 103 of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7102); and
``(9) term `violent crime' has the meaning given that term
in section 103 of the Juvenile Justice and Delinquency
Prevention Act of 1974 (42 U.S.C. 5603).
``(b) Motions To Vacate Convictions or Expunge Arrests.--
``(1) In general.--
``(A) Convictions of covered offenses.--A person
convicted of any covered offense (or an eligible entity
representing such a person) may move the court which
imposed the sentence for the covered offense to vacate
the judgment of conviction if the covered offense was
committed as a direct result of the person having been
a victim of trafficking.
``(B) Arrests for covered offenses.--A person
arrested for any covered offense (or an eligible entity
representing such a person) may move the district court
for the district and division embracing the place where
the person was arrested to expunge all records of the
arrest if the conduct or alleged conduct of the person
which resulted in the arrest was directly related to
the person having been a victim of trafficking.
``(C) Arrests for noncovered offenses.--A person
arrested for any noncovered offense (or an eligible
entity representing such a person) may move the
district court for the district and division embracing
the place where the person was arrested to expunge all
records of the arrest if--
``(i) the conduct or alleged conduct of the
person which resulted in the arrest was
directly related to the person having been a
victim of trafficking; and
``(ii)(I) the person is acquitted of the
noncovered offense;
``(II) the Government does not pursue or
dismisses criminal charges against the person
for the noncovered offense; or
``(III)(aa) the charges against the person
for the noncovered offense are reduced to an
offense that is a covered offense; and
``(bb) the person is acquitted of the
covered offense, the Government does not pursue
or dismisses criminal charges against the
person for the covered offense, or any
subsequent conviction of the covered offense is
vacated.
``(2) Contents of motion.--A motion described in paragraph
(1) shall--
``(A) be in writing;
``(B) describe any supporting evidence;
``(C) state the offense; and
``(D) include copies of any documents showing that
the movant is entitled to relief under this section.
``(3) Hearing.--
``(A) Mandatory hearing.--
``(i) Motion in opposition.--Not later than
30 days after the date on which a motion is
filed under paragraph (1), the Government may
file a motion in opposition of the motion filed
under paragraph (1).
``(ii) Mandatory hearing.--If the
Government files a motion described in clause
(i), not later than 15 days after the date on
which the motion is filed, the court shall hold
a hearing on the motion.
``(B) Discretionary hearing.--If the Government
does not file a motion described in subparagraph
(A)(i), the court may hold a hearing on the motion not
later than 45 days after the date on which a motion is
filed under paragraph (1).
``(4) Factors.--
``(A) Vacating convictions of covered offenses.--
The court may grant a motion under paragraph (1)(A) if,
after notice to the Government and an opportunity to be
heard, the court finds, by clear and convincing
evidence, that--
``(i) the movant was convicted of a covered
offense; and
``(ii) the participation in the covered
offense by the movant was a direct result of
the movant having been a victim of trafficking.
``(B) Expunging arrests for covered offenses.--The
court may grant a motion under paragraph (1)(B) if,
after notice to the Government and an opportunity to be
heard, the court finds, by clear and convincing
evidence, that--
``(i) the movant was arrested for a covered
offense; and
``(ii) the conduct or alleged conduct which
resulted in the arrest was directly related to
the movant having been a victim of trafficking.
``(C) Expunging arrests for noncovered offenses.--
The court may grant a motion under paragraph (1)(C) if,
after notice to the Government and an opportunity to be
heard, the court finds, by clear and convincing
evidence, that--
``(i) the movant was arrested for a
noncovered offense and the conduct or alleged
conduct which resulted in the arrest was
directly related to the movant having been a
victim of trafficking; and
``(ii)(I) the person is acquitted of the
noncovered offense;
``(II) the Government does not pursue or
dismisses criminal charges against the person
for the covered offense; or
``(III)(aa) the charges against the person
for the noncovered offense are reduced to a
covered offense; and
``(bb) the person is acquitted of the
covered offense, the Government does not pursue
or dismissed criminal charges against the
person for the covered offense, or any
subsequent conviction of that covered offense
is vacated.
``(5) Supporting evidence.--
``(A) Rebuttable presumption.--For purposes of this
section, there shall be a rebuttable presumption that
the movant is a victim of trafficking if the movant
includes in the motion--
``(i) a copy of an official record,
certification, or eligibility letter from a
Federal, State, tribal, or local proceeding,
including an approval notice or an enforcement
certification generated from a Federal
immigration proceeding, that shows that the
movant was a victim of trafficking, including a
victim of a trafficker charged with a violation
of chapter 77; or
``(ii) an affidavit or sworn testimony from
a trained professional staff member of a victim
services organization, an attorney, a member of
the clergy, or a medical or other professional
from whom the movant has sought assistance in
addressing the trauma associated with being a
victim of trafficking.
``(B) Other evidence.--
``(i) In general.--For purposes of this
section, in determining whether the movant is a
victim of trafficking, the court may consider
any other evidence the court determines is of
sufficient credibility and probative value,
including an affidavit or sworn testimony of
the movant.
``(ii) Affidavit or sworn testimony of
movant sufficient evidence.--The affidavit or
sworn testimony of the movant described in
clause (i) shall be sufficient evidence to
vacate a conviction or expunge an arrest under
this section if the court determines that--
``(I) the affidavit or sworn
testimony is credible; and
``(II) no other evidence is readily
available.
``(6) Conviction or arrest of other persons not required.--
It shall not be necessary that any person other than the movant
be convicted of or arrested for a covered offense before the
movant may file a motion under paragraph (1).
``(7) Denial of motion.--
``(A) In general.--If the court denies a motion
filed under paragraph (1), the denial shall be without
prejudice.
``(B) Reasons for denial.--If the court denies a
motion filed under paragraph (1), the court shall state
the reasons for the denial in writing.
``(C) Reasonable time to cure deficiencies in
motion.--If the motion was denied due to a curable
deficiency in the motion, the court shall allow the
movant sufficient time for the movant to cure the
deficiency.
``(8) Appeal.--An order granting or denying a motion under
this section may be appealed in accordance with section 1291 of
title 28 and section 3731 of this title.
``(c) Vacatur of Convictions.--
``(1) In general.--If the court grants a motion to vacate a
conviction under subsection (b), the court shall immediately
vacate the conviction for cause, set aside the verdict and
enter a judgment of acquittal, and enter an expungement order
that directs that there be expunged from all official records
all references to--
``(A) the arrest of the person for the covered
offense;
``(B) the institution of criminal proceedings
against the person relating to the covered offense; and
``(C) the results of the proceedings.
``(2) Effect.--If a conviction is vacated under an order
entered under paragraph (1)--
``(A) the conviction shall not be regarded as a
conviction under Federal law and the person for whom
the conviction was vacated shall be considered to have
the status occupied by the person before the arrest or
the institution of the criminal proceedings related to
such conviction; and
``(B) no alien may be removed, determined to be
inadmissible, or lose any immigration benefit because
of such conviction, arrest, or institution of criminal
proceedings.
``(d) Expungement of Arrests.--
``(1) In general.--If the court grants a motion to expunge
an arrest under subsection (b), the court shall immediately
enter an expungement order that directs that there be expunged
from all official records all references to--
``(A) the arrest of the person for the covered
offense;
``(B) the institution of any criminal proceedings
against the person relating to the covered offense; and
``(C) the results of the proceedings, if any.
``(2) Effect.--If an arrest is expunged under an order
entered under paragraph (1)--
``(A) the arrest shall not be regarded as an arrest
under Federal law and the person for whom the arrest is
expunged shall be considered to have the status
occupied by the person before the arrest or the
institution of the criminal proceedings related to such
arrest, if any; and
``(B) no alien may be removed, determined to be
inadmissible, or lose any immigration benefit because
of arrest or institution of criminal proceedings, if
any.
``(e) Mitigating Factors.--
``(1) In general.--The court which imposed sentence for a
noncovered offense upon a covered prisoner may reduce the term
of imprisonment for the noncovered offense--
``(A) upon motion by a covered prisoner, the
Director of the Bureau of Prisons, or the court's own
motion;
``(B) after notice to the Government;
``(C) after considering--
``(i) the factors set forth in section
3553(a);
``(ii) the nature and seriousness of the
danger to any person; and
``(iii) the community, or any crime
victims; and
``(D) if the court finds, by clear and convincing
evidence, that the covered prisoner committed the
noncovered offense as a direct result of the covered
prisoner having been a victim of trafficking.
``(2) Rebuttable presumption.--For the purposes of this
subsection, there shall be a rebuttable presumption that a
covered prisoner is a victim of trafficking if the covered
prisoner provides--
``(A) a copy of an official record, certification,
or eligibility letter from a Federal, State, tribal, or
local proceeding, including an approval notice or an
enforcement certification generated from a Federal
immigration proceeding, that shows that the covered
prisoner was a victim of trafficking, including a
victim of a trafficker charged with a violation of
chapter 77; or
``(B) an affidavit or sworn testimony from a
trained professional staff member of a victim services
organization, an attorney, a member of the clergy, or a
medical or other professional from whom the covered
prisoner has sought assistance in addressing the trauma
associated with being a victim of trafficking.
``(3) Requirement.--Any proceeding under this subsection
shall be subject to section 3771.
``(4) Particularized inquiry.--For any motion under
paragraph (1), the Government shall conduct a particularized
inquiry of the facts and circumstances of the original
sentencing of the covered prisoner in order to assess whether a
reduction in sentence would be consistent with this section.
``(f) Additional Actions by Court.--The court may, upon granting a
motion under this section take such additional action as the court
determines is appropriate.
``(g) Confidentiality of Movant.--
``(1) In general.--A motion under this section and any
documents, pleadings, or orders relating to the motion shall be
filed under seal.
``(2) Information not available for public inspection.--No
officer or employee may make any report, paper, picture,
photograph, court file or other document, in the custody or
possession of the officer or employee, that identifies the
movant available for public inspection.
``(h) Applicability.--This section shall apply to any conviction or
arrest occurring before, on, or after the date of enactment of this
section.''.
(b) Technical and Conforming Amendment.--The table of sections of
chapter 237 of title 18, United States Code, is amended by adding at
the end the following:
``3772. Motion to vacate; expungement; mitigating factors.''.
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