[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 5047 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 5047

To require automatic sealing of certain criminal records, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 17, 2020

 Mr. Casey (for himself and Ms. Ernst) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To require automatic sealing of certain criminal records, 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 Slate Act of 2020''.

SEC. 2. SEALING OF CERTAIN RECORDS.

    (a) Amendment.--Subchapter A of chapter 227 of title 18, United 
States Code, is amended by adding at the end the following:
``Sec. 3560. Automatic sealing of certain records
    ``(a) Definitions.--In this section--
            ``(1) the term `covered individual' means an individual 
        who--
                    ``(A) is not a sex offender;
                    ``(B) has been--
                            ``(i) arrested for a Federal offense for 
                        which the individual was not convicted; or
                            ``(ii) convicted of an offense under 
                        section 404 of the Controlled Substances Act 
                        (21 U.S.C. 844);
                    ``(C) in the case of a conviction described in 
                subparagraph (B)(ii), has fulfilled each requirement of 
                the sentence for the offense, including--
                            ``(i) completing each term of imprisonment, 
                        probation, or supervised release; and
                            ``(ii) satisfying each condition of 
                        imprisonment, probation, or supervised release; 
                        and
                    ``(D) has not been convicted for any offense 
                related to treason, terrorism, access and transmission 
                of sensitive defense information, or other national 
                security related convictions; and
            ``(2) the term `sex offender' has the meaning given the 
        term in section 111 of the Adam Walsh Child Protection and 
        Safety Act of 2006 (34 U.S.C. 20911).
    ``(b) Automatic Sealing for Certain Arrests and Other Offenses.--
            ``(1) In general.--At the time of sentencing of a covered 
        individual for a conviction pursuant to section 404 of the 
        Controlled Substances Act (21 U.S.C. 844), the court shall 
        enter an order that each record and portion thereof that 
        relates to the offense shall be sealed automatically on the 
        date that is 1 year after the covered individual fulfills each 
        requirement of the sentence, including--
                    ``(A) completing each term of imprisonment, 
                probation, or supervised release; and
                    ``(B) satisfying each condition of imprisonment, 
                probation, or supervised release.
            ``(2) Acquittal; determination not to file charges.--
                    ``(A) Acquittal.--Not later than 60 days after the 
                date on which a covered individual is acquitted, 
                exonerated, or otherwise subject to a judgment which 
                did not result in a conviction for a Federal offense, 
                each record or portion thereof that relates to the 
                Federal offense shall be sealed automatically.
                    ``(B) Determination not to file charges.--
                            ``(i) In general.--If a covered individual 
                        is arrested for a Federal offense and the 
                        Government does not file charges against the 
                        covered individual in relation to the Federal 
                        offense before the date that is 180 days after 
                        the date on which the arrest was made, each 
                        record or portion thereof that relates to the 
                        arrest and Federal offense shall be sealed 
                        automatically on such date.
                            ``(ii) Unsealing for filing of charges.--At 
                        the request of the Government, a court may 
                        unseal a record sealed under clause (i) solely 
                        for the purpose of allowing the Government to 
                        file charges against the covered individual in 
                        relation to the Federal offense described in 
                        such clause.
                            ``(iii) Limitation.--If a record is 
                        unsealed under clause (ii), the record may only 
                        be resealed in accordance with paragraph (1) or 
                        subparagraph (A) of this paragraph.
    ``(c) Notice of Automatic Sealing.--Not later than 60 days after 
the date on which an individual is arrested for a Federal offense, the 
Attorney General shall, in writing, inform the individual of the 
automatic sealing of records and the effect of such sealing under this 
section.
    ``(d) Effect of Sealing Order.--
            ``(1) Protection from access.--Except as provided in 
        paragraph (4), a record that has been sealed under subsection 
        (b) shall not be accessible to any person.
            ``(2) Protection from perjury laws.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), a covered individual with respect to 
                whom a record has been sealed under subsection (b) 
                shall not be required to disclose such information, and 
                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 under section 1001, 1621, 1622, or 1623, for 
                failing to recite or acknowledge any information that 
                has been sealed with respect to the offense, or respond 
                to any inquiry made of the covered individual, relating 
                to the protected information.
                    ``(B) Exception.--A covered individual shall 
                disclose information contained in a record that has 
                been sealed under subsection (b)--
                            ``(i) when testifying in court; or
                            ``(ii) in connection with employment 
                        described in subclause (I) or (II) of paragraph 
                        (4)(A)(ii) that the individual is seeking.
            ``(3) Background checks.--Except as provided in paragraph 
        (4), a sealed record of a covered individual shall not be 
        included in any background check conducted on the covered 
        individual.
            ``(4) Law enforcement and court exception.--
                    ``(A) Access.--An officer or employee of a law 
                enforcement agency or a court may access a sealed 
                record of a covered individual in the possession of the 
                agency or court, or another law enforcement agency or 
                court, solely--
                            ``(i) for investigatory or prosecutorial 
                        purposes; or
                            ``(ii) for a background check that relates 
                        to--
                                    ``(I) employment with a law 
                                enforcement agency;
                                    ``(II) any position that a Federal 
                                agency designates as a national 
                                security position; or
                                    ``(III) the manufacture, 
                                importation, sale, transfer, 
                                possession, or carrying of firearms, 
                                explosives, or ammunition.
                    ``(B) Disclosure.--An officer or employee of a law 
                enforcement agency or a court may disclose information 
                contained in a sealed record only in order to carry out 
                the purposes described in subparagraph (A).
    ``(e) Penalty for Unauthorized Disclosure.--
            ``(1) In general.--Whoever knowingly accesses or discloses 
        information contained in a sealed record in a manner that is 
        prohibited under this section, shall be fined under this title, 
        imprisoned for not more than 1 year, or both.
            ``(2) Rule of construction.--Nothing in this subsection 
        prevents a covered individual or an individual who was the 
        crime victim (as such term is defined in section 3771(e)) from 
        accessing or disclosing information contained in a sealed 
        record.
    ``(f) Rulemaking.--The Attorney General shall, by rule, establish a 
process to ensure that any record in the possession of a Federal agency 
required to be sealed under this section, is automatically sealed in 
accordance with this section.
    ``(g) Applicability.--This section shall apply to an arrest that 
occurred or conviction that was entered before, on, or after the date 
of enactment of this section. Not later than 2 years after the date of 
the enactment of this section, the Attorney General shall ensure that 
any record related to an arrest that occurred or conviction that was 
entered prior to the automatic sealing of such a record, which record 
is required to be sealed under this section, is so sealed.
    ``(h) Employer Immunity From Liability.--An employer who employs or 
otherwise engages an individual whose criminal records were sealed 
pursuant to this section shall be immune from liability for any claim 
arising out of the misconduct of the individual, if the misconduct 
relates to the portion of the criminal records that were sealed 
pursuant to this section.
    ``(i) Establishment of Partnerships.--
            ``(1) In general.--The Administrative Office of the United 
        States Courts may enter into a contract with or make grants to 
        an organization with expertise in creating digital and 
        technological systems to develop an efficient and effective 
        process for automatically sealing records in accordance with 
        this section.
            ``(2) Authorization of appropriations.--There are 
        authorized to be appropriated $2,000,000 to carry out this 
        subsection.
``Sec. 3560A. Sealing of certain records upon petition
    ``(a) Definitions.--In this section--
            ``(1) the term `covered nonviolent offense' means a Federal 
        criminal offense that is not--
                    ``(A) a crime of violence (as defined in subsection 
                (a) of section 16); or
                    ``(B) a sex offense (as that term is defined in 
                section 111 of the Sex Offender Registration and 
                Notification Act (34 U.S.C. 20911));
            ``(2) the term `eligible individual' means an individual 
        who--
                    ``(A) has been convicted of a covered nonviolent 
                offense;
                    ``(B) has fulfilled each requirement of the 
                sentence for the covered nonviolent offense, 
                including--
                            ``(i) completing each term of imprisonment, 
                        probation, or supervised release; and
                            ``(ii) satisfying each condition of 
                        imprisonment, probation, or supervised release;
                    ``(C) has not been convicted of more than 2 
                felonies that are covered nonviolent offenses, 
                including any such convictions that have been sealed 
                (except that for purposes of this subparagraph, two or 
                more felony convictions that are covered nonviolent 
                offenses arising out of the same act, or acts committed 
                at the same time, shall be treated as one felony 
                conviction);
                    ``(D) has not been convicted of any felony that is 
                not a covered nonviolent offense; and
                    ``(E) has not been convicted for any offense 
                related to treason, terrorism, access and transmission 
                of sensitive defense information, or other national 
                security related convictions;
            ``(3) the term `petitioner' means an individual who files a 
        sealing petition;
            ``(4) the term `protected information', with respect to a 
        covered nonviolent 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);
            ``(5) the term `sealing hearing' means a hearing held under 
        subsection (c)(2); and
            ``(6) the term `sealing petition' means a petition for a 
        sealing order filed under subsection (b).
    ``(b) Right To File Sealing Petition.--
            ``(1) In general.--On and after the date that is 1 year 
        after the date on which the eligible individual has fulfilled 
        each requirement described in subsection (a)(2)(B), an eligible 
        individual may file a petition for a sealing order with respect 
        to a covered nonviolent offense in a district court of the 
        United States.
            ``(2) Notice of opportunity to file petition.--
                    ``(A) 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 of the 
                sentence for the offense as described in subsection 
                (a)(2)(B), the court in which the individual is 
                convicted shall, in writing, inform the individual, on 
                each date described in subparagraph (B), of--
                            ``(i) that potential eligibility;
                            ``(ii) the necessary procedures for filing 
                        the sealing petition; and
                            ``(iii) the benefits of sealing a record.
                    ``(B) Dates.--The dates described in this 
                subparagraph are--
                            ``(i) the date on which the individual is 
                        convicted; and
                            ``(ii) the date on which the individual has 
                        completed every term of imprisonment, 
                        probation, or supervised release relating to 
                        the offense.
    ``(c) Procedures.--
            ``(1) Notification to prosecutor.--If an individual files a 
        petition under subsection (b), 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 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
                            ``(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.
                            ``(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--
                            ``(i) shall 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;
                            ``(ii) may not consider any non-Federal 
                        nonviolent crimes for which the petitioner has 
                        been arrested or proceeded against, or of which 
                        the petitioner has been convicted; and
                            ``(iii) shall 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.
            ``(4) Waiting period after denial.--If the district court 
        denies a sealing petition, the petitioner may not file a new 
        sealing petition with respect to the same offense until the 
        date that is 2 years after the date of the denial.
            ``(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) Effect of sealing.--Subsections (d) and (e) of 
        section 3560 shall apply to any record that is sealed under 
        this section.
            ``(8) Public defender eligibility.--
                    ``(A) In general.--The district court shall 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.
    ``(d) Rule of Construction.--Nothing in this section may be 
construed to require a covered individual (as such term is defined in 
section 3560) to submit a sealing petition with respect to records 
required to be automatically sealed under section 3560.
    ``(e) Reporting.--Not later than 2 years after the date of 
enactment of this section, and each year thereafter, each district 
court of the United States shall issue a public report that--
            ``(1) describes--
                    ``(A) the number of sealing petitions granted and 
                denied under this section; and
                    ``(B) the number of instances in which the office 
                of a United States attorney supported or opposed a 
                sealing petition;
            ``(2) includes any supporting data that the court 
        determines relevant and that does not name any petitioner; and
            ``(3) disaggregates all relevant data by race, ethnicity, 
        gender, and the nature of the offense.
    ``(f) Employer Immunity From Liability.--An employer who employs or 
otherwise engages an individual whose criminal records were sealed 
pursuant to this section shall be immune from liability for any claim 
arising out of the misconduct of the individual, if the misconduct 
relates to the portion of the criminal records that were sealed 
pursuant to this section.''.
    (b) Table of Sections.--The table of sections for subchapter A of 
chapter 227 of title 18, United States Code, is amended by inserting 
after the item relating to section 3559 the following:

``3560. Automatic sealing of certain records.
``3560A. Sealing of certain records upon petition.''.
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