[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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