[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 511 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 511
To provide for the sealing of records relating to Federal nonviolent
criminal offenses related to substance use disorders, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 2, 2017
Mr. Manchin introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide for the sealing of records relating to Federal nonviolent
criminal offenses related to substance use disorders, 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 ``Clean Start Act''.
SEC. 2. SEALING OF CRIMINAL RECORDS.
(a) In General.--Chapter 229 of title 18, United States Code, is
amended by adding at the end the following:
``Subchapter D--Sealing of Criminal Records
``Sec.
``3631. Definitions.
``3632. Sealing petition.
``3633. Effect of sealing order.
``Sec. 3631. Definitions
``In this subchapter--
``(1) the term `covered nonviolent offense' means a Federal
criminal offense that is not--
``(A) a crime of violence (as that term is defined
in section 16);
``(B) a sex offense (as that term is defined in
section 111 of the Sex Offender Registration and
Notification Act (42 U.S.C. 16911));
``(C) an offense involving a victim under the age
of 18 years; or
``(D) a serious drug offense (as that term is
defined in section 3559(c)(2));
``(2) the term `covered treatment program' means a
substance use disorder treatment program or recovery support
program that is licensed, certified, or accredited by a State
or national accreditation body, including peer-driven and
sober-living programs;
``(3) the term `eligible individual' means an individual
who--
``(A) has been arrested for or convicted of a
qualifying offense;
``(B) in the case of a conviction described in
subparagraph (A)--
``(i) has fulfilled each requirement of the
sentence for the qualifying offense,
including--
``(I) completing each term of
imprisonment, probation, or supervised
release; and
``(II) satisfying each condition of
imprisonment, probation, or supervised
release;
``(ii) has satisfactorily completed a
covered treatment program; and
``(iii) has rendered service for a period
of not less than 180 days--
``(I) as a peer mentor in a
substance use disorder peer mentorship
program; or
``(II) if service described in
subclause (I) is not practicable, as a
volunteer;
``(C) has not been convicted of more than 2
felonies that are covered nonviolent offenses,
including any such convictions that have been sealed;
and
``(D) has not been convicted of any felony that is
not a covered nonviolent offense;
``(4) the term `petitioner' means an individual who files a
sealing petition;
``(5) the term `protected information', with respect to a
qualifying offense, means any reference to--
``(A) an arrest, conviction, or sentence of an
individual for the offense;
``(B) the institution of criminal proceedings
against an individual for the offense; or
``(C) the result of criminal proceedings described
in subparagraph (B);
``(6) the term `qualifying offense' means--
``(A) a covered nonviolent offense committed by an
individual whose substance use disorder is a
substantial contributing factor in the commission of
the offense, as determined by a court reviewing a
sealing petition with respect to the offense under
section 3632(b)(3)(A)(i); or
``(B) in the case of an arrest for an offense that
does not result in a conviction, a covered nonviolent
offense with respect to which the act that would have
constituted the offense is committed by an individual
whose substance use disorder is a substantial
contributing factor in the commission of the act, as
determined by a court reviewing a sealing petition with
respect to the offense under section 3632(b)(3)(A)(i);
``(7) the term `seal'--
``(A) means--
``(i) to close a record from public viewing
so that the record cannot be examined except by
court order; and
``(ii) to physically seal the record shut
and label the record `SEALED' or, in the case
of an electronic record, the substantive
equivalent; and
``(B) has the effect described in section 3633,
including--
``(i) the right to treat the offense to
which a sealed record relates, and any arrest,
criminal proceeding, conviction, or sentence
relating to the offense, as if it never
occurred; and
``(ii) protection from civil and criminal
perjury, false swearing, and false statement
laws with respect to a sealed record;
``(8) the term `sealing hearing' means a hearing held under
section 3632(b)(2);
``(9) the term `sealing petition' means a petition for a
sealing order filed under section 3632(a); and
``(10) the term `substance use disorder peer mentorship
program' means a peer mentorship program at a covered treatment
program.
``Sec. 3632. Sealing petition
``(a) Right To File Sealing Petition.--
``(1) Date of eligibility.--
``(A) Convicted individuals.--
``(i) In general.--On and after the date
that is 3 years after the applicable date under
clause (ii), an eligible individual who was
convicted of a qualifying offense and has not
been arrested for or convicted of a substance
use-related offense since that applicable date
may file a petition for a sealing order with
respect to the qualifying offense in a district
court of the United States.
``(ii) Applicable date.--The applicable
date--
``(I) for an eligible individual
who was convicted of a qualifying
offense and sentenced to a term of
imprisonment, probation, or supervised
release is the date on which the
eligible individual has fulfilled each
requirement under section
3631(3)(B)(i); and
``(II) for an eligible individual
who was convicted of a qualifying
offense and not sentenced to a term of
imprisonment, probation, or supervised
release is the date on which the case
relating to the qualifying offense is
disposed of.
``(iii) Violation of 3-year good behavior
requirement.--
``(I) In general.--An eligible
individual who is prohibited from
filing a petition for a sealing order
with respect to a qualifying offense
under clause (i) because the individual
is arrested for or convicted of a
substance use-related offense on or
after the applicable date under clause
(ii) may file such a petition on or
after the date as of which not less
than 3 years have elapsed since the
last such arrest or conviction.
``(II) Rule of construction.--
Nothing in subclause (I) shall be
construed to allow an eligible
individual to file more than 1 petition
for a sealing order with respect to a
particular qualifying offense.
``(B) Individuals not convicted.--An eligible
individual who is arrested for but not convicted of a
qualifying offense may file a petition for a sealing
order with respect to the qualifying offense in a
district court of the United States on and after the
date on which the case relating to the offense is
disposed of.
``(2) Notice of opportunity to file petition.--
``(A) Convicted individuals.--
``(i) In general.--If an individual is
convicted of a covered nonviolent offense and
will potentially be eligible to file a sealing
petition with respect to the offense upon
fulfilling each requirement under section
3631(3)(B), the court in which the individual
is convicted shall, in writing, inform the
individual, on each date described in clause
(ii) of this subparagraph, of--
``(I) that potential eligibility;
``(II) the necessary procedures for
filing the sealing petition; and
``(III) the benefits of sealing a
record, including protection from civil
and criminal perjury, false swearing,
and false statement laws with respect
to the record.
``(ii) Dates.--The dates described in this
clause are--
``(I) the date on which the
individual is convicted; and
``(II) the date on which the
individual has fulfilled each
requirement under section
3631(3)(B)(i).
``(B) Individuals not convicted.--
``(i) Arrest only.--If an individual is
arrested for a covered nonviolent offense,
criminal proceedings are not instituted against
the individual for the offense, and the
individual is potentially eligible to file a
sealing petition with respect to the offense,
on the date on which the case relating to the
offense is disposed of, the arresting authority
shall, in writing, inform the individual of--
``(I) that potential eligibility;
``(II) the necessary procedures for
filing the sealing petition; and
``(III) the benefits of sealing a
record, including protection from civil
and criminal perjury, false swearing,
and false statement laws with respect
to the record.
``(ii) Court proceedings.--If an individual
is arrested for a covered nonviolent offense,
criminal proceedings are instituted against the
individual for the offense, the individual is
not convicted of the offense, and the
individual is potentially eligible to file a
sealing petition with respect to the offense,
on the date on which the case relating to the
offense is disposed of, the court in which the
criminal proceedings take place shall, in
writing, inform the individual of--
``(I) that potential eligibility;
``(II) the necessary procedures for
filing the sealing petition; and
``(III) the benefits of sealing a
record, including protection from civil
and criminal perjury, false swearing,
and false statement laws with respect
to the record.
``(b) Procedures.--
``(1) Notification to prosecutor and other individuals.--If
an individual files a petition under subsection (a) with
respect to a qualifying offense, the district court in which
the petition is filed shall provide notice of the petition--
``(A) to the office of the United States attorney
that prosecuted or would have prosecuted the petitioner
for the offense; and
``(B) upon the request of the petitioner, to any
other individual that the petitioner determines may
testify as to the--
``(i) conduct of the petitioner since the
date of the offense or arrest; or
``(ii) reasons that the sealing order
should be entered.
``(2) Hearing.--
``(A) In general.--Not later than 180 days after
the date on which an individual files a sealing
petition, the district court shall--
``(i) except as provided in subparagraph
(D), conduct a hearing in accordance with
subparagraph (B); and
``(ii) determine whether to enter a sealing
order for the individual in accordance with
paragraph (3).
``(B) Opportunity to testify and offer evidence.--
``(i) Petitioner.--The petitioner may
testify or offer evidence at the sealing
hearing in support of sealing, including
evidence of ongoing sobriety.
``(ii) Prosecutor.--The office of a United
States attorney that receives notice under
paragraph (1)(A) may send a representative to
testify or offer evidence at the sealing
hearing in support of or against sealing.
``(iii) Other individuals.--An individual
who receives notice under paragraph (1)(B) may
testify or offer evidence at the sealing
hearing as to the issues described in clauses
(i) and (ii) of that paragraph.
``(C) Magistrate judges.--A magistrate judge may
preside over a hearing under this paragraph.
``(D) Waiver of hearing.--If the petitioner and the
United States attorney that receives notice under
paragraph (1)(A) so agree, the court shall make a
determination under paragraph (3) without a hearing.
``(3) Basis for decision.--
``(A) In general.--In determining whether to enter
a sealing order with respect to protected information
relating to a covered nonviolent offense, the court
shall--
``(i) determine whether the offense is a
qualifying offense based on evidence that the
petitioner suffered from an active substance
use disorder at the time of the commission of
the offense;
``(ii) consider--
``(I) the petition and any
documents in the possession of the
court; and
``(II) all the evidence and
testimony presented at the sealing
hearing, if such a hearing is
conducted; and
``(iii) balance--
``(I)(aa) the interest of public
knowledge and safety; and
``(bb) the legitimate interest, if
any, of the Government in maintaining
the accessibility of the protected
information, including any potential
impact of sealing the protected
information on Federal licensure,
permit, or employment restrictions;
against
``(II)(aa) the conduct and
demonstrated desire of the petitioner
to be rehabilitated and positively
contribute to the community; and
``(bb) the interest of the
petitioner in having the protected
information sealed, including the harm
of the protected information to the
ability of the petitioner to secure and
maintain employment.
``(B) Burden on government.--The burden shall be on
the Government to show that the interests under
subclause (I) of subparagraph (A)(iii) outweigh the
interests of the petitioner under subclause (II) of
that subparagraph.
``(C) Reasoning.--The court shall provide the
petitioner and the Government with a written decision
explaining the reasons for the determination made under
subparagraph (A).
``(4) Appeal.--A denial of a sealing petition by a district
court under this section shall be subject to review by a court
of appeals in accordance with section 1291 of title 28.
``(5) Universal form.--The Director of the Administrative
Office of the United States Courts shall create a universal
form, available over the Internet and in paper form, that an
individual may use to file a sealing petition.
``(6) Fee waiver.--The Director of the Administrative
Office of the United States Courts shall by regulation
establish a minimally burdensome process under which indigent
petitioners may obtain a waiver of any fee for filing a sealing
petition.
``(7) Reporting.--Not later than 2 years after the date of
enactment of this subchapter, and each year thereafter, each
district court of the United States shall publish and submit to
the Committee on the Judiciary of the Senate and the Committee
on the Judiciary of the House of Representatives a report
that--
``(A) describes--
``(i) the number of sealing petitions
granted and denied under this section;
``(ii) the number of instances in which the
office of a United States attorney supported or
opposed a sealing petition; and
``(iii) the number and amount of fees
assessed and waived under this section;
``(B) includes any supporting data that--
``(i) the court determines relevant; and
``(ii) does not name any petitioner; and
``(C) disaggregates all relevant data by race,
ethnicity, gender, and the nature of the offense.
``(8) Public defender eligibility.--
``(A) In general.--The district court may, in its
discretion, appoint counsel in accordance with the plan
of the district court in operation under section 3006A
to represent a petitioner for purposes of this section.
``(B) Considerations.--In making a determination
whether to appoint counsel under subparagraph (A), the
court shall consider--
``(i) the anticipated complexity of the
sealing hearing, including the number and type
of witnesses called to advocate against the
sealing of the protected information of the
petitioner; and
``(ii) the potential for adverse testimony
by a victim or a representative of the office
of the United States attorney.
``Sec. 3633. Effect of sealing order
``(a) In General.--Except as provided in this section, if a
district court of the United States enters a sealing order with respect
to a qualifying offense, the offense and any arrest, criminal
proceeding, conviction, or sentence relating to the offense shall be
treated as if it never occurred.
``(b) Verification of Sealing.--If a district court of the United
States enters a sealing order with respect to a qualifying offense, the
court shall--
``(1) send a copy of the sealing order to each entity or
person known to the court that possesses a record containing
protected information that relates to the offense, including
each--
``(A) law enforcement agency; and
``(B) public or private correctional or detention
facility;
``(2) in the sealing order, require each entity or person
described in paragraph (1) to--
``(A) seal the record in accordance with this
section; and
``(B) submit a written certification to the court,
under penalty of perjury, that the entity or person has
sealed each paper and electronic copy of the record;
``(3) seal each paper and electronic copy of the record in
the possession of the court; and
``(4) after receiving a written certification from each
entity or person under paragraph (2)(B), notify the petitioner
that each entity or person described in paragraph (1) has
sealed each paper and electronic copy of the record.
``(c) Protection From Perjury Laws.--Except as provided in
subsection (f)(3)(A), a petitioner with respect to whom a sealing order
has been entered for a qualifying offense shall not be subject to
prosecution under any civil or criminal provision of Federal or State
law relating to perjury, false swearing, or making a false statement,
including section 1001, 1621, 1622, or 1623, for failing to recite or
acknowledge any protected information with respect to the offense or
respond to any inquiry made of the petitioner, relating to the
protected information, for any purpose.
``(d) Attorney General Nonpublic Records.--The Attorney General--
``(1) shall maintain a nonpublic record of all protected
information that has been sealed under this subchapter; and
``(2) may access or utilize protected information only--
``(A) for legitimate investigative purposes;
``(B) in defense of any civil suit arising out of
the facts of the arrest or subsequent proceedings; or
``(C) if the Attorney General determines that
disclosure is necessary to serve the interests of
justice, public safety, or national security.
``(e) Law Enforcement Access.--A Federal or State law enforcement
agency may access a record that is sealed under this subchapter
solely--
``(1) to determine whether the individual to whom the
record relates is eligible for a first-time-offender diversion
program;
``(2) for investigatory, prosecutorial, or Federal
supervision purposes; or
``(3) for a background check that relates to law
enforcement employment or any employment that requires a
government security clearance.
``(f) Prohibition on Disclosure.--
``(1) Prohibition.--Except as provided in paragraph (3), it
shall be unlawful to intentionally make or attempt to make an
unauthorized disclosure of any protected information from a
record that has been sealed under this subchapter.
``(2) Penalty.--Any person who violates paragraph (1) shall
be fined under this title, imprisoned for not more than 1 year,
or both.
``(3) Exceptions.--
``(A) Background checks.--An individual who is the
subject of a record sealed under this subchapter shall,
and a Federal or State law enforcement agency that
possesses such a record may, disclose the record in the
case of a background check for--
``(i) law enforcement employment; or
``(ii) any position that a Federal agency
designates as a--
``(I) national security position;
or
``(II) high-risk, public trust
position.
``(B) Disclosure to armed forces.--A person may
disclose protected information from a record sealed
under this subchapter to the Secretaries of the
military departments (or the Secretary of Homeland
Security with respect to the Coast Guard when it is not
operating as a service in the Navy) for the purpose of
vetting an enlistment or commission, or with regard to
any member of the Armed Forces.
``(C) Criminal and juvenile proceedings.--A
prosecutor may disclose protected information from a
record sealed under this subchapter if the information
pertains to a potential witness in a Federal or State--
``(i) criminal proceeding; or
``(ii) juvenile delinquency proceeding.
``(D) Authorization for individual to disclose own
record.--An individual who is the subject of a record
sealed under this subchapter may choose to disclose the
record.''.
(b) Applicability.--The right to file a sealing petition under
section 3632(a) of title 18, United States Code, as added by subsection
(a), shall apply with respect to a qualifying offense (as defined in
section 3631(a) of such title) that is committed or alleged to have
been committed before, on, or after the date of enactment of this Act.
(c) Transition Period for Hearings Deadline.--During the 1-year
period beginning on the date of enactment of this Act, section
3632(b)(2)(A) of title 18, United States Code, as added by subsection
(a), shall be applied by substituting ``1 year'' for ``180 days''.
(d) Technical and Conforming Amendment.--The table of subchapters
for chapter 229 of title 18, United States Code, is amended by adding
at the end the following:
``D. Sealing of Criminal Records............................ 3631''.
SEC. 3. STATE INCENTIVES.
(a) COPS Grants Priority.--Section 1701 of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd) is
amended--
(1) in subsection (c)--
(A) in paragraph (2), by striking ``or'' at the
end;
(B) in paragraph (3), by striking the period at the
end and inserting ``; or''; and
(C) by adding at the end the following:
``(4) subject to subsection (l), from an applicant in a
State that has in effect--
``(A) a law relating to the sealing of adult
records that is substantially similar to, or more
generous to the former offender than, the amendments
made by section 2 of the Clean Start Act; or
``(B) a law that allows an individual who has
successfully sealed a criminal record to be free from
civil and criminal perjury laws.''; and
(2) by adding at the end the following:
``(l) Degree of Priority Relating to Sealing Laws Commensurate With
Degree of Compliance.--If the Attorney General, in awarding grants
under this part, gives preferential consideration to any application as
authorized under subsection (c)(4), the Attorney General shall base the
degree of preferential consideration given to an application from an
applicant in a particular State on the number of subparagraphs under
subsection (c)(4) that the State has satisfied, relative to the number
of such subparagraphs that each other State has satisfied.''.
(b) Attorney General Guidelines and Technical Assistance.--The
Attorney General shall issue guidelines and provide technical
assistance to assist States in complying with the incentive under
section 1701(c)(4) of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3796dd(c)(2)), as added by subsection
(a).
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