[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8557 Introduced in House (IH)]

<DOC>






117th CONGRESS
  2d Session
                                H. R. 8557

 To amend Federal law to create an expungement mechanism and a process 
to petition for expungement for low-level violations of the Controlled 
   Substances Act as it relates to marijuana, to study the impact of 
              expungements issued, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 28, 2022

Mr. Carter of Louisiana (for himself and Mr. Rodney Davis of Illinois) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend Federal law to create an expungement mechanism and a process 
to petition for expungement for low-level violations of the Controlled 
   Substances Act as it relates to marijuana, to study the impact of 
              expungements issued, 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 ``Marijuana Misdemeanor Expungement 
Act''.

SEC. 2. DEFINITIONS.

    (a) Definitions.--As used in this section:
            (1) Criminal justice agency.--The term ``criminal justice 
        agency'' means--
                    (A) a Federal or State court;
                    (B) a governmental agency or any subunit thereof 
                that--
                            (i) performs the administration of criminal 
                        justice pursuant to a statute or Executive 
                        order, and allocates a substantial part of its 
                        annual budget to the administration of criminal 
                        justice;
                            (ii) is designated by Congress, the 
                        President, the Attorney General of the United 
                        States, the Federal Bureau of Investigation, or 
                        other appropriate Federal official, to perform 
                        centralized recordkeeping functions for 
                        official records, including the collection, 
                        storage, maintenance, updating, and 
                        dissemination of such records and responding to 
                        requests for information in or about such 
                        records; or
                            (iii) is designated by the Governor or 
                        other appropriate executive official or the 
                        legislature of a State to perform centralized 
                        recordkeeping functions for official records, 
                        including the collection, storage, maintenance, 
                        updating, and dissemination of such records and 
                        responding to requests for information in or 
                        about such records; and
                    (C) a Federal or State inspector general in his or 
                her review of other criminal justice agencies.
            (2) Official record.--
                    (A) The term ``official record'' means any 
                documentation or other information on an individual, in 
                electronic or physical form, consisting of identifiable 
                descriptions or notations by criminal justice agencies 
                about that individual, regarding--
                            (i) detection activities, investigations 
                        (including police questioning and searches and 
                        seizures), and arrests conducted by criminal 
                        justice agencies, as well as their decisions 
                        not to refer cases for legal proceedings;
                            (ii) institution of legal proceedings by 
                        indictment, complaint, information, other 
                        formal criminal charge, summons or citation, 
                        and notice of civil penalty; and
                            (iii) legal results or consequences of 
                        clauses (i) and (ii), including court-ordered 
                        detention, pretrial and post-trial release, 
                        diversion, non-prosecution or deferred 
                        prosecution, deferred adjudication, pleas 
                        (e.g., not-guilty pleas, guilty pleas, and nolo 
                        contendere), nolle prosequi, competence 
                        findings, dismissal, acquittal, conviction, 
                        mistrial, juvenile adjudication, sentencing, 
                        correctional supervision, rehabilitation, 
                        probation, parole, release, and civil penalty.
                    (B) The term does not include identification 
                information, such as fingerprint records, if such 
                information does not indicate involvement of the 
                individual with an ``expungable event'' as defined by 
                subsection (a)(8).
            (3) Expunge.--The term ``expunge'' means to remove an 
        official record and any references to such record in another 
        official record (including an official index or list) or in 
        other public records, except for publicly available court 
        opinions and legal briefs.
            (4) Seal.--The term ``seal'' means to store securely any 
        expunged records possessed by the court issuing the expungement 
        order to prevent access to such records except pursuant to 
        subsection (e) or by further order of the court.
            (5) Sequester.--The term ``sequester'' means to retain an 
        unaltered nonpublic copy of an official record and any other 
        record or index subject to an expungement order, and to store 
        such records in a separate, secure area to prevent access to 
        those records except pursuant to subsection (e) or by further 
        order of the court issuing the expungement order.
            (6) Redact.--The term ``redact'' means to remove or obscure 
        from an official record any references to an expunged record, 
        including, as necessary and consistent with subsection 
        (a)(2)(B), any identifying information.
            (7) Marijuana.--The term ``marijuana'' means the substance 
        defined as ``marihuana'' in 21 U.S.C. 802(16) and also defined 
        or referred to as ``marijuana'' (e.g., 18 U.S.C. 1791(d)(1)(B), 
        21 U.S.C. 863(d)) and ``tetrahydrocannabinols'' (e.g., 21 
        U.S.C. 812(c)).
            (8) Expungable event.--
                    (A) The term ``expungable event'' means an arrest, 
                the initiation of legal proceedings, and any legal 
                results or consequences, as defined by subsection 
                (a)(2)(A)(i)-(iii), for violating, attempting to 
                violate, or conspiring to violate the following, as 
                well as sentencing (including probation) and imposition 
                of civil penalty pursuant to the following:
                            (i) 21 U.S.C. 841(b)(4).
                            (ii) 21 U.S.C. 842(c)(2), where the 
                        controlled substance was marijuana.
                            (iii) 21 U.S.C. 844(a), where the 
                        controlled substance was marijuana.
                            (iv) 21 U.S.C. 844a, where the controlled 
                        substance was marijuana.
                            (v) 18 U.S.C. 13, where the underlying act 
                        or omission involves marijuana, including 
                        marijuana-related drug paraphernalia (as 
                        defined by 21 U.S.C. 863), and results in a 
                        Federal misdemeanor or civil penalty.
                            (vi) 18 U.S.C. 3607, where the controlled 
                        substance was marijuana.
                            (vii) Any other Federal misdemeanor, petty 
                        offense, infraction, or civil penalty involving 
                        marijuana, including marijuana-related drug 
                        paraphernalia, in which the conduct 
                        constituting the offense did not involve the 
                        use, attempted use, or threatened use of 
                        physical force against the person or property 
                        of another.
                    (B) To be considered an expungable event for 
                purposes of subsections (b) and (c)--
                            (i) at least one year must have passed 
                        since the date of the arrest or since the last 
                        docket entry in the case (except for technical 
                        or unrelated entries and other minor issues, as 
                        determined by the court), whichever is latest; 
                        and
                            (ii) the court must not have been informed 
                        by the Attorney General of the United States, 
                        the United States Attorney for the relevant 
                        district, the Federal Bureau of Investigation, 
                        or another Federal criminal justice agency, 
                        that the case is ongoing or the individual has 
                        evaded prosecution.

SEC. 3. COURT REVIEW FOR EXPUNGEMENT.

    (a) Procedures.--Not later than 1 year after the date of the 
enactment of this section, the Chief Justice of the United States shall 
promulgate procedures or practices for the review, expungement, 
sealing, sequester, and redaction of official records pursuant to and 
consistent with this section, and to facilitate the study of such 
records pursuant to subsection (e). In determining such procedures or 
practices, the Chief Justice of the United States and his or her 
designees--which, at the discretion of the Chief Justice, may include 
the Administrative Office of the United States Courts, the Federal 
Judicial Center, and the Judicial Conference of the United States--may 
consult with relevant entities, including the Attorney General of the 
United States and his or her designees (including Federal Bureau of 
Prisons and any agency, as defined by 18 U.S.C. 6, within the United 
States Department of Justice), representatives of the United States 
Sentencing Commission, representatives of the Federal Defenders 
Organizations, nonpartisan scholars and subject-matter experts, and, 
for purposes of subsection (e), the Comptroller General of the United 
States and his or her designees.
    (b) Review.--Not later than 2 years after the date of the enactment 
of this section, each Federal district shall conduct a comprehensive 
review and issue an order expunging, sealing, and sequestering--
            (1) each official record for an expungable event; and
            (2) other official record(s) related to or referencing an 
        expungable event, unless such other official record is for or 
        related to a felony or a misdemeanor unrelated to marijuana, in 
        which case the court shall redact from such other official 
        record any reference to the expunged official record, and seal 
        or order the sequester of an unaltered nonpublic copy of such 
        other official record.
    (c) Notification of Expungement.--
            (1) Government.--Not later than 7 days after issuing an 
        expungement order, to notify affected criminal justice agencies 
        and to facilitate the timely update of relevant records, the 
        court shall send a copy of the final order to--
                    (A) the Attorney General of the United States, the 
                United States Attorney for that district, and the 
                relevant criminal justice agency (as defined by 
                subsection (a)(1)(B)(ii)); and
                    (B) the relevant criminal justice agency (as 
                defined by subsection (a)(1)(B)(iii)) that serves the 
                jurisdiction in which the expungable event occurred or, 
                if no such agency exists, the chief law enforcement 
                officer of the State in which the expungable event 
                occurred.
            (2) Individuals.--
                    (A) Pursuant to procedures or practices established 
                under subsection (b)(1)--
                            (i) notification about the expungement of 
                        official record(s) and the effect of such 
                        expungement shall be provided to individuals 
                        whose arrest, legal proceedings, and any legal 
                        results or consequences, as defined by 
                        subsection (a)(2)(A)(i)-(iii), have been 
                        expunged; and/or
                            (ii) a reasonable process shall be 
                        available so that such individuals may inquire 
                        as to whether an arrest, legal proceedings, and 
                        any legal results or consequences have been 
                        expunged and, if so, the effect of such 
                        expungement.
                    (B) Upon motion or written request of an individual 
                whose arrest, legal proceedings, and any legal results 
                or consequences, as defined by subsection (a)(2)(A)(i)-
                (iii), have been expunged pursuant to this subsection, 
                the court shall send a copy of the final order to--
                            (i) the relevant criminal justice agency 
                        (as defined by subsection (a)(1)(B)(iii)) that 
                        serves the jurisdiction in which the individual 
                        resides or, if no such agency exists, the chief 
                        law enforcement officer of the State in which 
                        the individual resides; and
                            (ii) any local law enforcement agency that 
                        serves the jurisdiction in which the individual 
                        resides.
            (3) No new records.--Any notifications pursuant to 
        paragraphs (1) and (2) shall not be or become publicly 
        accessible records that identify the individual subject of the 
        expungement order, and such notifications shall not be used by 
        criminal justice agencies except for purposes of complying with 
        this section and court orders issued pursuant to it.
    (d) Appeal.--The Attorney General of the United States and the 
United States Attorney for the district from which the expungement 
order was issued may appeal an order, within 60 days of its issuance, 
to the United States Circuit Court of Appeals for that district.

SEC. 4. PETITIONING COURT FOR EXPUNGEMENT.

    (a) Petition.--At any point after the date of enactment of this 
section, any individual with an official record for an expungable event 
may file a motion for expungement in the court for the Federal district 
in which the arrest, legal proceedings, and any legal results or 
consequences, as defined by subsection (a)(2)(A)(i)-(iii), was 
obtained. A petition filed pro se shall be construed liberally so as to 
ensure substantial justice (see, e.g., Erickson v. Pardus, 551 U.S. 89, 
94 (2007) (per curiam)).
    (b) Service and Response.--The clerk of the court shall serve that 
petition on the United States Attorney for that district. Not later 
than 60 days after service of such petition, the United States Attorney 
may submit a response to the Petitioner's motion.
    (c) Representation and Fees.--No fee shall be imposed for filing a 
petition in any proceeding provided for under this subsection. If an 
indigent Petitioner submits a facially viable claim for expungement 
that nonetheless requires the assistance of legal counsel for purposes 
of filing a superseding petition, presenting evidence in support of the 
petition, or responding to the Government, counsel shall be appointed 
to represent the individual in proceedings under this subsection.
    (d) Evidence and Standard of Proof.--The Petitioner and the 
Government may file with the court relevant evidence relating to the 
petition. Notwithstanding any Federal rule of evidence or procedure, 
the court shall have discretion in admitting and evaluating the 
petition and any evidence submitted by a Petitioner pro se (cf. Haines 
v. Kerner, 404 U.S. 519, 520 (1972)). The Petitioner bears the initial 
burden to establish a prima facie case that the official record in 
question is for an expungable event, at which point the burden shifts 
to the Government to establish by a preponderance of the evidence that 
the official record is not for an expungable event or the requirements 
for expungement have not been met. If the Government fails to meet this 
burden, or if the Government fails to respond to the petition, the 
court shall enter an appropriate expungement order unless it finds by a 
preponderance of the evidence that the interests of justice and of 
public safety weigh against expungement.
    (e) Expungement Order.--If required under this section, the court 
shall order the expungement, sealing, sequester, and redaction of 
official records of the arrest, legal proceedings, and any legal 
results or consequences, as defined by subsection (a)(2)(A)(i)-(iii). 
The court may also order the expungement, sealing, sequester, and 
redaction of another official record related to or referencing an 
expungable event, unless such other official record is for or related 
to a felony or a misdemeanor unrelated to marijuana, in which case the 
court shall redact from such other official record any reference to the 
expunged official record, and seal or order the sequester of an 
unaltered nonpublic copy of such other official record.
    (f) Notification of Expungement.--
            (1) Not later than 7 days after granting an expungement 
        petition, to facilitate the timely update of relevant records, 
        the court shall send a copy of the petition and final order 
        to--
                    (A) the Attorney General of the United States, the 
                United States Attorney for that district, and the 
                relevant criminal justice agency (as defined by 
                subsection (a)(1)(B)(ii)); and
                    (B) the relevant criminal justice agency (as 
                defined by subsection (a)(1)(B)(iii)) that serves the 
                jurisdiction in which the expungable event occurred or, 
                if no such agency exists, the chief law enforcement 
                officer of the State in which the expungable event 
                occurred.
            (2) Upon motion or written request of a Petitioner whose 
        expungement petition was granted, the court shall send a copy 
        of the petition and final order to--
                    (A) the relevant criminal justice agency (as 
                defined by subsection (a)(1)(B)(iii)) that serves the 
                jurisdiction in which the Petitioner resides or, if no 
                such agency exists, the chief law enforcement officer 
                of the State in which the Petitioner resides, when such 
                criminal justice agency or chief law enforcement 
                officer is different from those notified pursuant to 
                subsection (c)(6)(A)(ii)); and
                    (B) any local law enforcement agency that serves 
                the jurisdiction in which the Petitioner resides.
            (3) Notifications pursuant to this subsection shall not be 
        or become publicly accessible records about the expungable 
        event, including information identifying the individual subject 
        of the expungement order; and such notifications shall not be 
        used by criminal justice agencies except for purposes of 
        complying with this section and court orders issued pursuant to 
        it.
    (g) Appeal.--The Attorney General of the United States and the 
United States Attorney for the district in which the expungement order 
was issued may appeal an order within 60 days of its issuance to the 
United States Circuit Court of Appeals for that district. Within 60 
days of the denial of his or her petition, the Petitioner may appeal 
that denial to the United States Circuit Court of Appeals for that 
district.

SEC. 5. EFFECT OF EXPUNGEMENT.

    (a) In General.--An order of expungement shall restore the affected 
individual, in the contemplation of the law, to the status he or she 
occupied before such arrest, legal proceedings, and any legal results 
or consequences, as defined by subsection (a)(2)(A)(i)-(iii), for an 
expungable event.
    (b) Self-Disclosure.--An affected individual may treat the expunged 
arrest, legal proceedings, and any legal results or consequences, as 
defined by subsection (a)(2)(A)(i)-(iii), as if it never occurred and 
shall not be held thereafter under any provision of law to be guilty of 
perjury, false swearing, or making a false statement for failure to 
disclose, recite, or acknowledge such official record.
    (c) Disqualification.--The fact that an individual has an official 
record, including a conviction, for an expungable event shall not 
operate as a disqualification of such individual to pursue or engage in 
any lawful activity, occupation, or profession.
    (d) Limitations.--
            (1) Expungement under this section does not include an 
        official record of conduct constituting a felony or a 
        misdemeanor unrelated to marijuana, and such official record 
        may be accessed, with any redactions, pursuant to this section 
        or by further order of the court issuing the expungement order.
            (2) Nothing in this section is intended to create a right 
        to compensation, restitution, or any other monetary damages.
    (e) Compliance.--
            (1) This section and courts orders issued pursuant to it 
        shall apply to--
                    (A) criminal justice agencies in the Federal 
                Government;
                    (B) other Federal agencies in possession of 
                expunged documents or related official documents;
                    (C) State criminal justice agencies subject to 
                Federal law, due to the powers delegated to the Federal 
                Government by the Constitution of the United States, 
                due to voluntary agreement of the relevant State, and/
                or due to that State's acceptance of relevant Federal 
                funding--
                            (i) where such Federal law may include in 
                        relevant part: 28 CFR 0.85(j); 28 CFR part 20 
                        (Criminal Justice Information Systems); 28 CFR 
                        part 23 (Criminal Intelligence Systems 
                        Operating Policies); 28 CFR part 25(A) (The 
                        National Instant Criminal Background Check 
                        System); 28 CFR 50.12 (Exchange of FBI 
                        identification records); 5 U.S.C. 9101; 18 
                        U.S.C. 922; 28 U.S.C. 534; 34 U.S.C. chapter 
                        101 (Justice System Improvement); 34 U.S.C. 
                        chapter 403 (Criminal Justice Identification, 
                        Information, and Communication); 34 U.S.C. 
                        chapter 409 (National Instant Criminal 
                        Background Check System); 34 U.S.C. chapter 411 
                        (Access to Criminal History and Identification 
                        Records); 34 U.S.C. 40102; 34 U.S.C. 40743; 34 
                        U.S.C. 12592(d); and
                            (ii) where such Federal law and its 
                        application are consistent with relevant 
                        decisions of the Supreme Court of the United 
                        States, including: South Dakota v. Dole, 483 
                        U.S. 203 (1987); New York v. United States, 505 
                        U.S. 144 (1992); Printz v. United States, 521 
                        U.S. 898 (1997); Reno v. Condon, 528 U.S. 141 
                        (2000); National Federation of Independent 
                        Business v. Sebelius, 567 U.S. 519 (2012); and 
                        Murphy v. National Collegiate Athletic 
                        Association, 138 S. Ct. 1461 (2018); and
                    (D) any consumer credit agency (as defined by 15 
                U.S.C. 1681a(f)) subject to the Fair Credit Reporting 
                Act, 15 U.S.C. 1681 et seq.
            (2) Individuals, agencies, and other entities or 
        organizations covered by subsection (d)(4)(A)--
                    (A) shall comply with a court order issued pursuant 
                to this section and, to the extent possible, conform 
                their official records to be consistent with such 
                order;
                    (B) shall respond to any inquiries as though the 
                expunged records do not exist; and
                    (C) shall not disseminate, use internally, or 
                reveal the existence of expunged records for any 
                purpose, except as authorized under this section or by 
                further order of the court issuing the expungement 
                order.

SEC. 6. ACCESS, STUDY, AND SUPPORT.

    (a) Access.--Any expungement of an individual's official record for 
an expungable event or any related sealing, sequester, and redaction of 
relevant records pertaining to that individual, may be made available 
only--
            (1) to that individual or to such individual's designated 
        agent;
            (2) to the Chief Justice of the United States and his or 
        her designees (including for support under subsection 
        (e)(3)(A));
            (3) to the Comptroller General of the United States and his 
        or her designees (including for support under subsection 
        (e)(3)(B)) for purposes of conducting the study described in 
        subsection (e)(3);
            (4) to a criminal justice agency (as defined by subsection 
        (a)(1)), for the exclusive purpose of--
                    (A) maintaining accurate official records; and
                    (B) investigating or prosecuting an individual or 
                for conducting a background check on an individual who 
                has applied for employment by such criminal justice 
                agency, but only when the relevant official record is 
                of conduct constituting a felony or a misdemeanor 
                unrelated to marijuana and such record has appropriate 
                redactions of any reference to official records 
                expunged pursuant to this section; and
            (5) to the United States Department of Justice's Office of 
        Justice Programs (and its units or subunits), and to qualified 
        academic researchers from relevant schools and centers at 
        accredited nonprofit universities and colleges, for purpose of 
        research, evaluative, or statistical activities pursuant to an 
        agreement with the Chief Justice of the United States and his 
        or her designees (including the Administrative Office of the 
        United States Courts) that specifically authorizes access to 
        the information, limits the use of the information to research, 
        evaluative, or statistical purposes, and insures the 
        confidentiality and security of the information consistent with 
        this section and with Federal law.
    (b) Study.--The Comptroller General of the United States, in 
consultation with the United States Secretary of Health and Human 
Services, shall conduct a study of arrests, legal proceedings, and any 
legal results or consequences, as defined by subsection (a)(2)(A)(i)-
(iii), for Federal marijuana-related misdemeanors, petty offenses, 
infractions, and civil penalties.
            (1) Demographics.--Such study shall include information 
        about the age, race, ethnicity, sex, and gender identity of 
        those individuals with an official record for an expungable 
        event, as well as information about the type of community such 
        individuals dwell in and such other demographic information as 
        the Comptroller General determines should be included.
            (2) Report.--Not later than 2 years after the date of the 
        enactment of this section, the Comptroller General of the 
        United States shall report to Congress the results of the study 
        conducted under this subsection. In consultation with the Chief 
        Justice of the Supreme Court, the Comptroller General of the 
        United States shall also report to Congress on the 
        implementation of this section, including issues relevant to 
        future expungement efforts (e.g., expungement of Federal 
        marijuana-related felonies, expungement of Federal offenses for 
        other controlled substances, models for automatic record-
        clearing and for general expungement).
    (c) Support.--In addition to Federal funding and other resources 
afforded for staffing and implementation of this section--
            (1) at the discretion of the Chief Justice of the United 
        States and his or her designees (including the court for the 
        district at issue) and pursuant to rules and procedures 
        established by the Chief Justice, legal researchers and law 
        students from eligible nonprofit law schools accredited by the 
        American Bar Association, as well as academic researchers and 
        students from other relevant schools and centers at accredited 
        nonprofit colleges and universities, may be retained (including 
        on a pro bono basis) to conduct research and provide other 
        support for the implementation of this section; and
            (2) at the discretion of the Comptroller General of the 
        United States and his or her designees and pursuant to rules 
        and procedures established by the Comptroller General, legal 
        researchers and law students from eligible nonprofit law 
        schools accredited by the American Bar Association, as well as 
        academic researchers and students from other relevant schools 
        and centers at accredited nonprofit colleges and universities, 
        may be retained (including on a pro bono basis) to conduct 
        research and provide other support for the study described in 
        subsection (e)(2).

SEC. 7. PARDON REFERRAL.

     After issuing an order of expungement under subsection (b) or 
subsection (c), upon a finding of good cause, the court may refer the 
case or petition to the President of the United States and his or her 
designees (including the Pardon Attorney of the United States, 
notwithstanding 28 CFR part 1 (Executive Clemency)), for review 
consistent with the authority granted to the President under article 
II, section 2 of the Constitution of the United States.

SEC. 8. INAPPLICABILITY.

     The Administrative Procedure Act, 5 U.S.C. 551 et seq., and the 
Federal Advisory Committee Act, 5 U.S.C. Appendix, shall not apply to 
this section and to orders or other actions taken pursuant to it.

SEC. 9. INTERPRETATION AND SEVERABILITY.

    (a) Nothing in this section should be construed to preempt or 
supersede the laws of any State with respect to its authority to define 
and enforce the criminal law of that State, or with respect to any 
power reserved to the States respectively, or to the people, or to any 
citizen as a right, under the Constitution of the United States. This 
section does not annul, alter, or affect, or exempt any person subject 
to this section from complying with, the laws of any State, except to 
the extent that those laws are inconsistent with the provisions of this 
section, and then only to the extent of the inconsistency. This section 
shall not in any way abridge or alter the remedies now existing at 
common law or by statute, but consistent with subsection (d)(3)(B), the 
provisions of this section are in addition to such remedies.
    (b) If any provision of this section or the application thereof to 
any person or circumstance is held invalid, the remainder of this 
section, or the application of that provision to persons or 
circumstances other than those as to which it is held invalid, is not 
affected thereby.

SEC. 10. EFFECTIVE DATE.

     This Act and the amendments made by this Act shall take effect 180 
days after the date of enactment of this Act.
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