[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 9 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 9
To provide for the vacating of certain convictions and expungement of
certain arrests of victims of human trafficking.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 17, 2022
Mrs. Gillibrand (for herself and Mr. Portman) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To provide for the vacating of certain convictions and expungement of
certain arrests of victims of human trafficking.
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 ``Trafficking Survivors Relief Act of
2022''.
SEC. 2. FEDERAL EXPUNGEMENT FOR VICTIMS OF TRAFFICKING.
(a) In General.--Chapter 237 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 3772. Motion to vacate; expungement; mitigating factors
``(a) Definitions.--In this section--
``(1) the term `child' means an individual who has not
attained 18 years of age;
``(2) the term `covered prisoner' means an individual who--
``(A) was convicted of a level A offense or level B
offense;
``(B) was sentenced to a term of imprisonment for
the offense described in subparagraph (A); and
``(C) is imprisoned under such term of
imprisonment;
``(3) the terms `employee' and `officer' have the meanings
given the terms in section 2105 of title 5;
``(4) the term `Federal offense' means an offense that is
punishable under Federal law;
``(5) the term `level A offense' means a Federal offense
that is not a violent crime;
``(6) the term `level B offense'--
``(A) means a Federal offense that is a violent
crime; and
``(B) does not include a Federal offense that is a
violent crime of which a child was a victim;
``(7) the term `level C offense' means any Federal offense
that is not a level A offense;
``(8) the term `victim of trafficking' has the meaning
given that term in section 103 of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7102); and
``(9) the term `violent crime' has the meaning given that
term in section 103 of the Juvenile Justice and Delinquency
Prevention Act of 1974 (34 U.S.C. 11103).
``(b) Motions To Vacate Convictions or Expunge Arrests.--
``(1) In general.--
``(A) Convictions of level a offenses.--A person
convicted of any level A offense (or an attorney
representing such a person) may move the court that
imposed the sentence for the level A offense to vacate
the judgment of conviction if the level A offense was
committed as a direct result of the person having been
a victim of trafficking.
``(B) Arrests for level a offenses.--A person
arrested for any level A offense (or an attorney
representing such a person) may move the district court
of the United States for the district and division
embracing the place where the person was arrested to
expunge all records of the arrest if the conduct or
alleged conduct of the person that resulted in the
arrest was directly related to the person having been a
victim of trafficking.
``(C) Arrests for level c offenses.--A person
arrested for any level C offense (or an attorney
representing such a person) may move the district court
of the United States for the district and division
embracing the place where the person was arrested to
expunge all records of the arrest if--
``(i) the conduct or alleged conduct of the
movant that resulted in the arrest was directly
related to the movant having been a victim of
trafficking; and
``(ii)(I) the movant was acquitted of the
level C offense;
``(II) the Government did not pursue or
dismissed criminal charges against the movant
for the level C offense; or
``(III)(aa) the charges against the movant
for the level C offense were reduced to an
offense that is a level A offense; and
``(bb) the movant was acquitted of the
level A offense, the Government did not pursue
or dismissed criminal charges against the
movant for the level A offense, or any
subsequent conviction of the level A offense
was vacated.
``(2) Contents of motion.--A motion described in paragraph
(1) shall--
``(A) be in writing;
``(B) describe any supporting evidence;
``(C) state the offense; and
``(D) include copies of any documents showing that
the movant is entitled to relief under this section.
``(3) Hearing.--
``(A) Mandatory hearing.--
``(i) Motion in opposition.--Not later than
30 days after the date on which a motion is
filed under paragraph (1), the Government may
file a motion in opposition of the motion filed
under paragraph (1).
``(ii) Mandatory hearing.--If the
Government files a motion described in clause
(i), not later than 15 days after the date on
which the motion is filed, the court shall hold
a hearing on the motion.
``(B) Discretionary hearing.--If the Government
does not file a motion described in subparagraph
(A)(i), the court may hold a hearing on the motion not
later than 45 days after the date on which a motion is
filed under paragraph (1).
``(4) Factors.--
``(A) Vacating convictions of level a offenses.--
The court may grant a motion under paragraph (1)(A) if,
after notice to the Government and an opportunity to be
heard, the court finds, by a preponderance of the
evidence, that--
``(i) the movant was convicted of a level A
offense; and
``(ii) the participation in the level A
offense by the movant was a direct result of
the movant having been a victim of trafficking.
``(B) Expunging arrests for level a offenses.--The
court may grant a motion under paragraph (1)(B) if,
after notice to the Government and an opportunity to be
heard, the court finds, by a preponderance of the
evidence, that--
``(i) the movant was arrested for a level A
offense; and
``(ii) the conduct or alleged conduct that
resulted in the arrest was directly related to
the movant having been a victim of trafficking.
``(C) Expunging arrests for level c offenses.--The
court may grant a motion under paragraph (1)(C) if,
after notice to the Government and an opportunity to be
heard, the court finds, by a preponderance of the
evidence, that--
``(i) the movant was arrested for a level C
offense and the conduct or alleged conduct that
resulted in the arrest was directly related to
the movant having been a victim of trafficking;
and
``(ii)(I) the movant was acquitted of the
level C offense;
``(II) the Government did not pursue or
dismissed criminal charges against the movant
for the level C offense; or
``(III)(aa) the charges against the movant
for the level C offense were reduced to a level
A offense; and
``(bb) the movant was acquitted of the
level A offense, the Government did not pursue
or dismissed criminal charges against the
movant for the level A offense, or any
subsequent conviction of that level A offense
was vacated.
``(5) Supporting evidence.--
``(A) Rebuttable presumption.--For purposes of this
subsection, there shall be a rebuttable presumption
that the movant is a victim of trafficking if the
movant includes in the motion--
``(i) a copy of an official record,
certification, or eligibility letter from a
Federal, State, Tribal, or local proceeding,
including an approval notice or an enforcement
certification generated from a Federal
immigration proceeding, that shows that the
movant was a victim of trafficking, including a
victim of a trafficker charged with a violation
of chapter 77; or
``(ii) an affidavit or sworn testimony from
a trained professional staff member of a victim
services organization, an attorney, a member of
the clergy, a medical professional, or another
professional from whom the movant has sought
assistance in addressing the trauma associated
with being a victim of trafficking.
``(B) Other evidence.--
``(i) In general.--For purposes of this
section, in determining whether the movant is a
victim of trafficking, the court may consider
any other evidence the court determines is of
sufficient credibility and probative value,
including an affidavit or sworn testimony of
the movant.
``(ii) Affidavit or sworn testimony of
movant sufficient evidence.--The affidavit or
sworn testimony of the movant described in
clause (i) shall be sufficient evidence to
vacate a conviction or expunge an arrest under
this section if the court determines that--
``(I) the affidavit or sworn
testimony is credible; and
``(II) no other evidence is readily
available.
``(6) Conviction or arrest of other persons not required.--
It shall not be necessary that any person other than the movant
be convicted of or arrested for an offense before the movant
may file a motion under paragraph (1).
``(7) Denial of motion.--
``(A) In general.--If the court denies a motion
filed under paragraph (1), the denial shall be without
prejudice.
``(B) Reasons for denial.--If the court denies a
motion filed under paragraph (1), the court shall state
the reasons for the denial in writing.
``(C) Reasonable time to cure deficiencies in
motion.--If the motion was denied due to a curable
deficiency in the motion, the court shall allow the
movant sufficient time to cure the deficiency.
``(8) Appeal.--An order granting or denying a motion under
this section may be appealed in accordance with section 1291 of
title 28.
``(c) Vacatur of Convictions.--
``(1) In general.--If the court grants a motion to vacate a
conviction of a level A offense under subsection (b), the court
shall immediately--
``(A) vacate the conviction for cause;
``(B) set aside the verdict and enter a judgment of
acquittal;
``(C) enter an expungement order that directs that
there be expunged from all official records all
references to--
``(i) the arrest of the movant for the
level A offense;
``(ii) the institution of criminal
proceedings against the movant relating to the
level A offense; and
``(iii) the results of the proceedings; and
``(D) return to the movant any fine, fee, cost, or
restitution associated with the conviction and paid by
the movant.
``(2) Effect.--If a conviction is vacated under an order
entered under paragraph (1)--
``(A) the conviction shall not be regarded as a
conviction under Federal law and the movant for whom
the conviction was vacated shall be considered to have
the status occupied by the movant before the arrest or
the institution of the criminal proceedings related to
such conviction; and
``(B) no alien may be removed, determined to be
inadmissible, or lose any immigration benefit because
of such conviction, arrest, or institution of criminal
proceedings, or any related conduct.
``(d) Expungement of Arrests.--
``(1) In general.--If the court grants a motion to expunge
all records of an arrest for an offense under subsection (b),
the court shall immediately enter an expungement order that
directs that there be expunged from all official records all
references to--
``(A) the arrest of the movant for the offense;
``(B) the institution of any criminal proceedings
against the movant relating to the offense; and
``(C) the results of the proceedings, if any.
``(2) Effect.--If an arrest is expunged under an order
entered under paragraph (1)--
``(A) the arrest shall not be regarded as an arrest
under Federal law and the movant for whom the arrest is
expunged shall be considered to have the status
occupied by the movant before the arrest or the
institution of the criminal proceedings related to such
arrest, if any; and
``(B) no alien may be removed, determined to be
inadmissible, or lose any immigration benefit because
of arrest or institution of criminal proceedings, if
any.
``(e) Mitigating Factors.--
``(1) In general.--The court that imposed sentence for a
level A offense or level B offense upon a covered prisoner may
reduce the term of imprisonment for the offense--
``(A) upon--
``(i) motion by the covered prisoner or the
Director of the Bureau of Prisons; or
``(ii) the court's own motion;
``(B) after notice to the Government;
``(C) after considering--
``(i) the factors set forth in section
3553(a);
``(ii) the nature and seriousness of the
danger to any person, if applicable; and
``(iii) the community, or any crime
victims; and
``(D) if the court finds, by a preponderance of the
evidence, that the covered prisoner committed the
offense as a direct result of the covered prisoner
having been a victim of trafficking.
``(2) Rebuttable presumption.--For the purposes of this
subsection, there shall be a rebuttable presumption that a
covered prisoner is a victim of trafficking if the covered
prisoner provides--
``(A) a copy of an official record, certification,
or eligibility letter from a Federal, State, Tribal, or
local proceeding, including an approval notice or an
enforcement certification generated from a Federal
immigration proceeding, that shows that the covered
prisoner was a victim of trafficking, including a
victim of a trafficker charged with a violation of
chapter 77; or
``(B) an affidavit or sworn testimony from a
trained professional staff member of a victim services
organization, an attorney, a member of the clergy, a
medical professional, or another professional from whom
the covered prisoner has sought assistance in
addressing the trauma associated with being a victim of
trafficking.
``(3) Requirement.--Any proceeding under this subsection
shall be subject to section 3771.
``(4) Particularized inquiry.--For any motion under
paragraph (1), the Government shall conduct a particularized
inquiry of the facts and circumstances of the original
sentencing of the covered prisoner in order to assess whether a
reduction in sentence would be consistent with this section.
``(f) Additional Actions by Court.--The court shall, upon granting
a motion under this section, take any additional action necessary to
grant the movant full relief.
``(g) No Fees.--A person may not be required to pay a filing fee,
service charge, copay fee, processing fee, or any other charge for
filing a motion under this section.
``(h) Confidentiality of Movant.--
``(1) In general.--A motion under this section and any
documents, pleadings, or orders relating to the motion shall be
filed under seal.
``(2) Information not available for public inspection.--An
officer or employee may make not make available for public
inspection any report, paper, picture, photograph, court file,
or other document, in the custody or possession of the officer
or employee, that identifies the movant.
``(i) Applicability.--This section shall apply to any conviction or
arrest occurring before, on, or after the date of enactment of this
section.''.
(b) Technical and Conforming Amendment.--The table of sections of
chapter 237 of title 18, United States Code, is amended by adding at
the end the following:
``3772. Motion to vacate; expungement; mitigating factors.''.
SEC. 3. REPORTS.
(a) United States Attorney Motions for Vacatur or Expungement.--Not
later than 1 year after the date of enactment of this Act, each United
States attorney shall submit to the Attorney General a report that
details--
(1) the number of motions for vacatur or expungement filed
under section 3772 of title 18, United States Code, as added by
section 2, in the district of the United States attorney; and
(2) for each motion described in paragraph (1)--
(A) the underlying offense;
(B) the response of the United States attorney to
the motion; and
(C) the final determination of the court with
respect to the motion.
(b) United States Attorney Training on Human Trafficking
Indicators.--Not later than 1 year after the date of enactment of this
Act, the Attorney General shall submit to Congress a report that
details all professional training received by United States attorneys
on indicators of human trafficking during the preceding 12-month
period.
(c) Government Accountability Office.--Not later than 3 years after
the date of enactment of this Act, the Comptroller General of the
United States shall submit to Congress a report that--
(1) assesses the impact of the enactment of section 3772 of
title 18, United States Code, as added by section 2; and
(2) includes--
(A) the number of human trafficking survivors who
have filed motions for vacatur or expungement under
such section 3772;
(B) the final determination of each court that
adjudicated a motion described in subparagraph (A);
(C) recommendations to increase access to post-
conviction relief for human trafficking survivors with
Federal criminal records; and
(D) recommendations for improving the
implementation and tracking of professional training of
United States attorneys on indicators of human
trafficking.
SEC. 4. USE OF GRANTS FOR POST-CONVICTION RELIEF REPRESENTATION.
The Office of Justice Programs or the Office on Violence Against
Women, in awarding a grant that may be used for legal representation,
may not prohibit a recipient from using the grant for legal
representation for post-conviction relief.
SEC. 5. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) this Act is a first step to address the changing
tactics of human traffickers, who are using forced criminality
as a form of force, fraud, and coercion in their human
trafficking enterprises; and
(2) Congress is committed to continuing to find solutions
as needed to thwart human traffickers and protect survivors of
human trafficking.
SEC. 6. HUMAN TRAFFICKING DEFENSE.
(a) In General.--Chapter 1 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 18. Human trafficking defense
``(a) Definition.--In this section, the term `covered Federal
offense' means a level A offense or level B offense, as those terms are
defined in section 3772.
``(b) Presumption of Duress.--In a prosecution for a covered
Federal offense, a defendant who establishes by clear and convincing
evidence that the defendant was a victim of trafficking at the time at
which the defendant committed the offense shall create a rebuttable
presumption that the offense was induced by duress.
``(c) Record or Proceeding Under Seal.--In any proceeding in which
a defense under subsection (b) is raised, any record or part of the
proceeding related to the defense shall, on motion, be placed under
seal until such time as a conviction is entered for the offense.
``(d) Post-Conviction Relief.--A failure to assert, or failed
assertion of, a defense under subsection (b) by an individual who is
convicted of a covered Federal offense may not preclude the individual
from asserting as a mitigating factor, at sentencing or in a proceeding
for any post-conviction relief, that at the time of the commission of
the offense, the defendant was a victim of trafficking and committed
the offense under duress.
``(e) Federal Aid.--A failure to assert, or failed assertion of, a
defense under subsection (b) by an individual who is convicted of a
covered Federal offense may not be used for the purpose of
disqualifying the individual from participating in any federally funded
program that aids victims of human trafficking.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 1 of title 18, United States Code, is amended by adding at the
end the following:
``18. Human trafficking defense.''.
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