[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4916 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 4916

  To amend title 18, United States Code, to divert certain parents of 
     minor children, expectant parents, and other caregivers from 
  incarceration and into comprehensive programs providing resources, 
    services, and training to those individuals and their families.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 18, 2020

   Mr. Wyden introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To amend title 18, United States Code, to divert certain parents of 
     minor children, expectant parents, and other caregivers from 
  incarceration and into comprehensive programs providing resources, 
    services, and training to those individuals and their families.

    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 ``Finding Alternatives to Mass 
Incarceration: Lives Improved by Ending Separation Act of 2020'' or the 
``FAMILIES Act''.

SEC. 2. PURPOSE.

    The purpose of this Act is to divert parents of minor children, 
expectant parents, and other caregivers from incarceration if those 
individuals, and society, would be better served by the individuals 
entering into a comprehensive community supervision program that would 
provide resources, services, and training to them and their families.

SEC. 3. FAMILIES DIVERSION PROGRAM.

    (a) In General.--Chapter 227 of title 18, United States Code, is 
amended--
            (1) in subchapter A--
                    (A) in section 3551--
                            (i) in subsection (b)--
                                    (I) in paragraph (2), by striking 
                                ``or'' at the end;
                                    (II) in paragraph (3), by striking 
                                the period at the end and inserting ``; 
                                or'';
                                    (III) by inserting after paragraph 
                                (3) the following:
            ``(4) participation in the FAMILIES Program as authorized 
        by subchapter E.''; and
                                    (IV) in the undesignated matter 
                                following paragraph (4), as so added--
                                            (aa) by striking ``A 
                                        sentence'' and inserting 
                                        ``Subject to subsection (d), a 
                                        sentence''; and
                                            (bb) by striking ``A 
                                        sanction'' and inserting 
                                        ``Subjection to subsection (d), 
                                        a sanction''; and
                            (ii) by adding at the end the following:
    ``(d) Imposition of Fines and Sanctions in Addition to 
Participation in FAMILIES Program.--
            ``(1) In general.--If the court sentences an individual to 
        participation in the FAMILIES Program under subchapter E, the 
        court may not impose a sentence to pay a fine, or impose a 
        sanction under section 3554 (relating to criminal forfeiture), 
        3555 (relating to notice to victims), or 3556 (relating to 
        restitution), unless the court considers the factors under 
        paragraph (2) of this subsection.
            ``(2) Considerations.--Before imposing a sentence to pay a 
        fine, or imposing a sanction under section 3554, 3555, or 3556, 
        on an individual described in paragraph (1) of this subsection, 
        the court shall--
                    ``(A) weigh the importance of the fine or sanction 
                against--
                            ``(i) the ability of the individual to 
                        afford the fine, forfeiture, cost of giving 
                        notice, or restitution, as applicable; and
                            ``(ii) the impact of the fine or sanction 
                        on the ability of the individual to succeed in 
                        the FAMILIES Program; and
                    ``(B) take all necessary steps to ensure that the 
                success of the individual in the FAMILIES Program is 
                not hindered by financial obstacles.
            ``(3) No mandatory restitution.--Notwithstanding section 
        3663A, an order of restitution under that section with respect 
        to an individual described in paragraph (1) of this subsection 
        shall be at the discretion of the court and shall be subject to 
        the requirements of this subsection.''; and
                    (B) in section 3553--
                            (i) by redesignating subsections (b) 
                        through (g) as subsections (c) through (h), 
                        respectively;
                            (ii) by inserting after subsection (a) the 
                        following:
    ``(b) Consideration of Diversion to FAMILIES Program.--
            ``(1) Determination.--Notwithstanding any other provision 
        of this section, other than subsection (c), and notwithstanding 
        any minimum term of imprisonment required to be imposed under 
        any other provision of law, in the case of a defendant who is 
        an eligible individual (as defined in section 3590), the court 
        shall determine, in accordance with paragraph (2), whether the 
        defendant, and society, would be best served by diverting the 
        defendant into the FAMILIES Program under subchapter E instead 
        of sentencing the defendant to a term of probation under 
        subchapter B or a term of imprisonment under subchapter D.
            ``(2) Factors.--
                    ``(A) In general.--In making the determination 
                under paragraph (1), the court shall consider, in 
                addition to other factors the court determines 
                relevant--
                            ``(i) whether the defendant has significant 
                        parental responsibilities, including 
                        significant expected parental responsibilities 
                        in the case of an individual who is pregnant or 
                        the spouse or dating partner of such an 
                        individual;
                            ``(ii) whether the defendant has 
                        significant caregiving responsibilities with 
                        respect to an adult dependent;
                            ``(iii) whether the defendant poses no 
                        apparent risk of harm to any identifiable child 
                        with respect to whom the defendant has 
                        significant parental responsibilities;
                            ``(iv) whether the defendant poses no 
                        apparent risk of harm to any identifiable adult 
                        dependent with respect to whom the defendant 
                        has significant caregiving responsibilities;
                            ``(v) a statement, if available, regarding 
                        the impact that a sentence of probation or 
                        imprisonment would have on the family of the 
                        defendant;
                            ``(vi) the nature of the offense as it 
                        relates to the future rehabilitation of the 
                        defendant;
                            ``(vii) the defendant's ties to the 
                        community;
                            ``(viii) a statement from the victim 
                        regarding the impact of the offense on the 
                        victim; and
                            ``(ix) any prior criminal history of the 
                        defendant.
                    ``(B) Rule of construction.--The court shall not be 
                required to find that each factor described in 
                subparagraph (A) weighs in favor of the participation 
                of the defendant in the FAMILIES Program in order to 
                determine that the defendant, and society, would be 
                best served by diverting the defendant into the 
                FAMILIES Program.
            ``(3) Findings of fact.--At the time of sentencing a 
        defendant who is an eligible individual (as defined in section 
        3590), the court, in stating in open court the reasons for its 
        imposition of the particular sentence under subsection (c), 
        shall include its determination under paragraph (1) of this 
        subsection as to whether the defendant, and society, would be 
        best served by diverting the defendant into the FAMILIES 
        Program under subchapter E, including findings of fact 
        supporting that determination.'';
                            (iii) in subsection (c), as so 
                        redesignated, by striking ``or (c)'' and 
                        inserting ``or (d)'';
                            (iv) in subsection (d), as so redesignated, 
                        by striking ``or (b)'' and inserting ``or 
                        (c)''; and
                            (v) in subsection (e)(3), as so 
                        redesignated, by striking ``subsection (c)'' 
                        and inserting ``subsection (d)''; and
            (2) by adding at the end the following:

                    ``Subchapter E--FAMILIES Program

``Sec. 3590. Definitions
    ``In this subchapter--
            ``(1) the term `child abuse and neglect' has the meaning 
        given the term in section 3 of the Child Abuse Prevention and 
        Treatment Act (42 U.S.C. 5101 note; Public Law 93-247);
            ``(2) the term `dating partner' has the meaning given the 
        term in section 40002(a) of the Violence Against Women Act of 
        1994 (34 U.S.C. 12291(a));
            ``(3) the term `domestic violence' has the meaning given 
        the term in section 40002(a) of the Violence Against Women Act 
        of 1994 (34 U.S.C. 12291(a));
            ``(4) the term `electronic means' includes telephone, 
        teleconference, and videoconference;
            ``(5) the term `eligible individual' means an individual 
        who is--
                    ``(A) a parent of a minor child;
                    ``(B) pregnant;
                    ``(C) a caregiver for a minor child or other minor 
                relative;
                    ``(D) a caregiver for an individual with 
                disabilities;
                    ``(E) a caregiver for an elderly family member; or
                    ``(F) the spouse or dating partner of an individual 
                who is--
                            ``(i) a parent of a minor child; or
                            ``(ii) pregnant;
            ``(6) the term `FAMILIES Program' means the program 
        established under section 3590B;
            ``(7) the term `minor', with respect to an individual, 
        means the individual is under the age of 18;
            ``(8) the term `Office' means the Office of Probation and 
        Pretrial Services of the Administrative Office of the United 
        States Courts;
            ``(9) the term `participant' means an eligible individual 
        who is participating in the FAMILIES Program;
            ``(10) the term `Secretary' means the Secretary of Health 
        and Human Services; and
            ``(11) the term `trauma-informed decision making' means 
        decision making--
                    ``(A) informed by an organizational structure and 
                treatment framework that involves understanding, 
                recognizing, and responding to the effects of all types 
                of trauma; and
                    ``(B) in accordance with recognized principles of a 
                trauma-informed approach and trauma-specific 
                interventions to address the consequences of trauma and 
                facilitate healing.
``Sec. 3590A. Sentencing
    ``(a) Imposition of Sentence.--If an eligible individual is found 
guilty of an offense and the court makes an affirmative determination 
under section 3553(b)(1), the court shall impose a sentence for the 
offense that includes participation in the FAMILIES Program instead of 
a term of probation under subchapter B or a term of imprisonment under 
subchapter D.
    ``(b) Consideration of Special FAMILIES Program and Expungement 
Procedures.--In imposing a sentence under subsection (a), the court 
shall consider whether to utilize the procedures under section 3590D in 
light of the personal history of the defendant and whether a record of 
the arrest, criminal proceedings, or conviction for the offense and the 
associated collateral consequences would harm the defendant and the 
ability of the defendant to perform caregiving duties.
    ``(c) Identifying Programs and Services.--
            ``(1) In general.--In imposing a sentence under subsection 
        (a), the court, in collaboration with the Office and the 
        Secretary, shall identify the programs and services that the 
        defendant shall be required to complete in order to 
        successfully complete the FAMILIES Program.
            ``(2) User fees and other costs.--
                    ``(A) In general.--In identifying the programs and 
                services that a defendant shall be required to complete 
                under the Families Program, the court may not impose on 
                the defendant any user fee or other cost relating to 
                those programs and services unless the court considers 
                the factors under subparagraph (B).
                    ``(B) Considerations.--Before imposing any user fee 
                or other cost relating to programs and services under 
                the Families Program on a defendant, the court shall--
                            ``(i) weigh the importance of the fee or 
                        other cost against--
                                    ``(I) the ability of the defendant 
                                to afford the fee or other cost; and
                                    ``(II) the impact of the fee or 
                                other cost on the ability of the 
                                defendant to succeed in the FAMILIES 
                                Program; and
                            ``(ii) take all necessary steps to ensure 
                        that the success of the defendant in the 
                        FAMILIES Program is not hindered by financial 
                        obstacles.
    ``(d) Training for Judges.--The Secretary, in collaboration with 
the Attorney General and the United States Sentencing Commission, shall 
develop training for judges of the district courts on how to implement 
the FAMILIES Program, which shall include training on--
            ``(1) trauma-informed decision making;
            ``(2) child development, family dynamics, and the effects 
        of parental separation;
            ``(3) domestic violence;
            ``(4) child abuse and neglect;
            ``(5) substance abuse and addiction;
            ``(6) mental health;
            ``(7) cultural competence; and
            ``(8) examining bias.
``Sec. 3590B. FAMILIES Program
    ``(a) Establishment.--The Office, in cooperation with the Director 
of the Administrative Office of the United States Courts, the Attorney 
General, the Secretary, and the Chief of the Defender Services Office 
of the Administrative Office of the United States Courts, shall 
establish and operate the FAMILIES Program for purposes of this 
subchapter.
    ``(b) Contents.--The FAMILIES Program shall include--
            ``(1) education programs, including--
                    ``(A) general educational development (commonly 
                known as `GED') programs; and
                    ``(B) postsecondary education programs, including 
                enrollment in community college coursework;
            ``(2) employment counseling and job-seeking activities;
            ``(3) subsidized jobs programs;
            ``(4) in-home parenting and skill-based programs;
            ``(5) substance abuse and mental health treatment programs, 
        including medication-assisted treatment programs that make 
        available not less than 2 drugs that have been approved under 
        the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et 
        seq.) or section 351 of the Public Health Service Act (42 
        U.S.C. 262) for the treatment of an opioid use disorder; and
            ``(6) two-generation model programs that address needs of 
        both the parent and the child.
    ``(c) Collaboration With State and Local Governments.--The Office, 
the Director of the Administrative Office of the United States Courts, 
the Attorney General, and the Secretary shall collaborate with State 
and local governmental agencies and nonprofit organizations to offer 
comprehensive community supervision programs and services to a 
participant under the FAMILIES Program in areas close to the place of 
residence of the participant.
    ``(d) Connection to Services.--The court that sentences an eligible 
individual to participate in the FAMILIES Program, to the extent 
practicable, shall connect the eligible individual to services and 
programs that will meet the basic needs of the individual and the 
family of the individual, as appropriate, including--
            ``(1) health care services, including assistance with 
        enrollment in health insurance;
            ``(2) housing assistance;
            ``(3) services to help the individual enroll in--
                    ``(A) the special supplemental nutrition program 
                for women, infants, and children established by section 
                17 of the Child Nutrition Act of 1966 (42 U.S.C. 1786) 
                (commonly known as the `WIC Program');
                    ``(B) the supplemental nutrition assistance program 
                under the Food and Nutrition Act of 2008 (7 U.S.C. 2011 
                et seq.) (commonly known as the `SNAP Program');
                    ``(C) the program of block grants for States for 
                temporary assistance for needy families established 
                under part A of title IV of the Social Security Act (42 
                U.S.C. 601 et seq.) (commonly known as the `TANF 
                Program');
                    ``(D) disability insurance benefits under title II 
                of the Social Security Act (42 U.S.C. 401 et seq.), or 
                other benefits payable under such title on the basis of 
                a disability; and
                    ``(E) supplemental security income benefits under 
                title XVI of the Social Security Act (42 U.S.C. 1381 et 
                seq.);
            ``(4) evidence-based substance use disorder treatment, 
        including medication-assisted treatment described in subsection 
        (b)(5), and harm reduction services; and
            ``(5) any other service or program that the court 
        determines necessary to meet the basic needs of the individual 
        and the family of the individual, including family therapy or 
        counseling services.
    ``(e) Operation During Emergencies.--
            ``(1) In general.--To the extent practicable, during a 
        period of a national or State public health emergency, 
        including the COVID-19 pandemic, the FAMILIES Program may be 
        conducted solely by electronic means.
            ``(2) Inability to participate.--During a period described 
        in paragraph (1), if an element of the FAMILIES Program is not 
        available by electronic means--
                    ``(A) a participant shall not be penalized for 
                being unable to participate in the unavailable element; 
                and
                    ``(B) the Office may offer a participant described 
                in subparagraph (A) the opportunity to participate in 
                other elements of the FAMILIES Program that can be 
                conducted solely by electronic means.
``Sec. 3590C. Continuation or revocation of participation
    ``(a) In General.--If the defendant violates a condition of 
participation in the FAMILIES Program at any time prior to completion 
of the program, the court may, after conducting a hearing, considering 
the factors set forth in section 3553(a) to the extent that they are 
applicable, and considering whether the programmatic requirements of 
the sentence need to be modified in order for the defendant to be 
successful--
            ``(1) continue the participation of the defendant in the 
        FAMILIES Program, with or without extending the term or 
        modifying or enlarging the conditions; or
            ``(2) revoke the sentence and resentence the defendant 
        under subchapter A.
    ``(b) Right to Counsel.--
            ``(1) In general.--At a hearing conducted under subsection 
        (a), the defendant shall have the right to be represented by 
        counsel.
            ``(2) Court-provided counsel.--
                    ``(A) In general.--If the defendant is financially 
                unable to obtain representation by counsel for the 
                hearing under subsection (a), the court shall appoint 
                counsel to represent the defendant in the hearing.
                    ``(B) Appointment; compensation.--Appointment and 
                compensation of counsel under subparagraph (A) shall be 
                in accordance with section 3006A.
    ``(c) Substance Use Disorder Relapse.--If a defendant participating 
in the FAMILIES Program who is recovering from a substance use disorder 
suffers a relapse, the court--
            ``(1) shall notify each service provider that is working 
        with the defendant under the FAMILIES Program; and
            ``(2) may not revoke the sentence of the defendant or 
        otherwise penalize the defendant under subsection (a) solely 
        because of the relapse.
``Sec. 3590D. Pre-judgment sentence and expungement procedures
    ``(a) Pre-Judgment Sentence.--
            ``(1) In general.--If an eligible individual is found 
        guilty of an offense and the court makes an affirmative 
        determination under sections 3553(b)(1) and 3590A(b), the court 
        may, with the consent of the individual, sentence the 
        individual to participation in the FAMILIES Program for a term 
        to be determined by the court without entering a judgment of 
        conviction.
            ``(2) Early discharge.--At any time before the expiration 
        of the term of the sentence under paragraph (1), if the 
        individual has not violated a condition of participation in the 
        FAMILIES Program, the court may, without entering a judgment of 
        conviction, dismiss the proceedings against the individual and 
        discharge the individual from the FAMILIES Program.
            ``(3) Timely discharge.--At the expiration of the term of 
        the sentence under paragraph (1), if the individual has not 
        violated a condition of participation in the FAMILIES Program, 
        the court shall, without entering a judgment of conviction, 
        dismiss the proceedings against the individual and discharge 
        the individual from the FAMILIES Program.
            ``(4) Revocation.--If the individual violates a condition 
        of participation in the FAMILIES Program, the court shall 
        proceed in accordance with the provisions of section 3590C.
    ``(b) Collateral Consequences.--A disposition under subsection (a), 
or a conviction that is the subject of an expungement order under 
subsection (c), shall not be considered a conviction for the purpose of 
a disqualification or a disability imposed by law upon conviction of a 
crime, or for any other purpose.
    ``(c) Expungement of Record of Disposition.--
            ``(1) In general.--If the case against an individual is the 
        subject of a disposition under subsection (a), and the 
        individual was less than 21 years old at the time of the 
        offense, the court shall enter an expungement order upon 
        dismissing the proceedings against the individual and 
        discharging the individual from the FAMILIES Program.
            ``(2) Contents of order.--An expungement order entered 
        under paragraph (1) shall direct that there be expunged from 
        all official records all references to the arrest of the 
        individual for the offense, the institution of criminal 
        proceedings against the individual, and the results thereof.
            ``(3) Effect.--The effect of an expungement order entered 
        under paragraph (1) shall be to restore the individual, in the 
        contemplation of the law, to the status the individual occupied 
        before the arrest or institution of criminal proceedings.
            ``(4) Protection from perjury laws.--An individual 
        concerning whom an expungement order has been entered under 
        paragraph (1) shall not be held thereafter under any provision 
        of law to be guilty of perjury, false swearing, or making a 
        false statement by reason of the failure of the individual to 
        recite or acknowledge the arrests or institution of criminal 
        proceedings for the offense, or the results thereof, in 
        response to an inquiry made of the individual for any 
        purpose.''.
    (b) Technical and Conforming Amendments.--Chapter 227 of title 18, 
United States Code, is amended--
            (1) by striking the matter between the chapter heading and 
        the heading for subchapter A and inserting the following:

                   ``subchapter a--general provisions

``Sec.
``3551. Authorized sentences.
``3552. Presentence reports.
``3553. Imposition of a sentence.
``3554. Order of criminal forfeiture.
``3555. Order of notice to victims.
``3556. Order of restitution.
``3557. Review of a sentence.
``3558. Implementation of a sentence.
``3559. Sentencing classification of offenses.
                       ``subchapter b--probation

``3561. Sentence of probation.
``3562. Imposition of a sentence of probation.
``3563. Conditions of probation.
``3564. Running of a term of probation.
``3565. Revocation of probation.
``3566. Implementation of a sentence of probation.
                         ``subchapter c--fines

``3571. Sentence of fine.
``3572. Imposition of a sentence of fine and related matters.
``3573. Petition of the government for modification or remission.
``3574. Implementation of a sentence of fine.
                      ``subchapter d--imprisonment

``3581. Sentence of imprisonment.
``3582. Imposition of a sentence of imprisonment.
``3583. Inclusion of a term of supervised release after imprisonment.
``3584. Multiple sentences of imprisonment.
``3585. Calculation of a term of imprisonment.
``3586. Implementation of a sentence of imprisonment.
                    ``subchapter e--families program

``3590. Definitions.
``3590A. Sentencing.
``3590B. FAMILIES Program.
``3590C. Continuation or revocation of participation.
``3590D. Pre-judgment sentence and expungement procedures.''.
            (2) by striking the matter between section 3559 and the 
        heading for subchapter B;
            (3) by striking the matter between section 3566 and the 
        heading for subchapter C; and
            (4) by striking the matter between section 3574 and the 
        heading for subchapter D.
    (c) State Grant Program.--
            (1) Definition.--In this subsection, the term ``Attorney 
        General'' means the Attorney General, acting through the 
        Director of the Bureau of Justice Assistance.
            (2) Authority.--The Attorney General shall make grants to 
        States to replicate, on a larger scale, successful State 
        parenting sentencing alternatives (commonly known as ``PSA'') 
        programs that have the potential to keep parents out of prison.
            (3) Appropriation.--There is appropriated, out of amounts 
        in the Treasury not otherwise appropriated, for fiscal year 
        2020, to remain available until expended, $20,000,000 to the 
        Attorney General to carry out paragraph (2).
    (d) Studies.--
            (1) Office of planning, research and evaluation study.--
                    (A) In general.--Not later than 2 years after the 
                date of enactment of this Act, the Office of Planning, 
                Research and Evaluation of the Department of Health and 
                Human Services, in collaboration with the National 
                Institute of Justice, shall study and publish a report 
                on the effects of incarceration on children of 
                incarcerated parents.
                    (B) Appropriation.--Out of amounts in the Treasury 
                not otherwise appropriated, there is appropriated to 
                the Office of Planning, Research and Evaluation of the 
                Department of Health and Human Services to carry out 
                the study under subparagraph (A), $1,000,000 for fiscal 
                year 2021, to remain available until expended.
            (2) GAO study.--Not later than 2 years after the date of 
        enactment of this Act, the Comptroller General of the United 
        States shall examine the implementation of the FAMILIES Program 
        under subchapter E of chapter 227 of title 18, United States 
        Code (as added by subsection (a)), focusing on demographic data 
        and profiles of program participants in order to--
                    (A) determine--
                            (i) who is receiving the benefits of the 
                        program;
                            (ii) that program services are equitably 
                        available to all eligible individuals; and
                            (iii) how program services can be better 
                        directed to eligible individuals who would 
                        otherwise be sentenced to a term of probation 
                        or a term of imprisonment; and
                    (B) examine access to the FAMILIES Program for 
                Black, Latinx or Hispanic, Native American, Asian 
                American, and Pacific Islander communities.
    (e) Appropriations.--
            (1) Implementation.--Out of amounts in the Treasury not 
        otherwise appropriated, there is appropriated to the Office of 
        Probation and Pretrial Services of the Administrative Office of 
        the United States Courts to carry out the FAMILIES Program 
        established under section 3590B of title 18, United States 
        Code, as added by subsection (a) of this section, $100,000,000 
        for fiscal year 2021, to remain available until expended.
            (2) Training.--Out of amounts in the Treasury not otherwise 
        appropriated, there is appropriated to the Secretary of Health 
        and Human Services to develop training for judges under section 
        3590A(d) of title 18, United States Code, as added by 
        subsection (a) of this section, $5,000,000 for fiscal year 
        2021, to remain available until expended.
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