I 111th CONGRESS 2d Session H. R. 5492 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.

1.

Short title

This Act may be cited as the Fresh Start Act of 2010.

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: 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.

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.

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.

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.

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.

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.Expungement3631 . (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.

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. .