[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 423 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                 S. 423

 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

                            February 7, 2019

  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 E--Sealing of Criminal Records

``Sec.
``3641. Definitions.
``3642. Sealing petition.
``3643. Effect of sealing order.
``Sec. 3641. 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 3642(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 3642(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 3643, 
                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 3642(b)(2);
            ``(9) the term `sealing petition' means a petition for a 
        sealing order filed under section 3642(a); and
            ``(10) the term `substance use disorder peer mentorship 
        program' means a peer mentorship program at a covered treatment 
        program.
``Sec. 3642. 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 
                                3641(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 
                        3641(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 
                                3641(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. 3643. 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 3642(a) of title 18, United States Code, as added by subsection 
(a), shall apply with respect to a qualifying offense (as defined in 
section 3641(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 
3642(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:

``E. Sealing of Criminal Records............................    3641''.

SEC. 3. STATE INCENTIVES.

    (a) COPS Grants Priority.--Section 1701 of title I of the Omnibus 
Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10381) 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 (n), 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:
    ``(n) 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 (34 U.S.C. 10381(c)(4)), as added by subsection 
(a).
                                 <all>