[Congressional Record Volume 164, Number 198 (Monday, December 17, 2018)]
[Senate]
[Pages S7668-S7670]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4126. Mr. MANCHIN submitted an amendment intended to be proposed
to amendment SA 4108 proposed by Mr. McConnell (for Mr. Grassley) to
the bill S. 756, to reauthorize and amend the Marine Debris Act to
promote international action to reduce marine debris, and for other
purposes; which was ordered to lie on the table; as follows:
At the end, add the following:
TITLE VII--CLEAN START ACT
SEC. 701. SHORT TITLE.
This title may be cited as the ``Clean Start Act''.
SEC. 702. SEALING OF CRIMINAL RECORDS.
(a) In General.--Chapter 229 of title 18, United States
Code, as amended by section 101, is amended by adding at the
end the following:
``Subchapter E--Sealing of Criminal Records
``Sec.
``3641. Definitions.
``3642. Sealing petition.
``3643. Effect of sealing order.
``Sec. 3641. Definitions
``In this subchapter--
``(1) the term `covered nonviolent offense' means a Federal
criminal offense that is not--
``(A) a crime of violence (as that term is defined in
section 16);
``(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(5))));
``(C) an offense involving a victim under the age of 18
years; or
``(D) a serious drug offense (as that term is defined in
section 3559(c)(2));
``(2) the term `covered treatment program' means a
substance use disorder treatment program or recovery support
program that is licensed, certified, or accredited by a State
or national accreditation body, including peer-driven and
sober-living programs;
``(3) the term `eligible individual' means an individual
who--
``(A) has been arrested for or convicted of a qualifying
offense;
``(B) in the case of a conviction described in subparagraph
(A)--
``(i) has fulfilled each requirement of the sentence for
the qualifying offense, including--
``(I) completing each term of imprisonment, probation, or
supervised release; and
``(II) satisfying each condition of imprisonment,
probation, or supervised release;
``(ii) has satisfactorily completed a covered treatment
program; and
``(iii) has rendered service for a period of not less than
180 days--
``(I) as a peer mentor in a substance use disorder peer
mentorship program; or
``(II) if service described in subclause (I) is not
practicable, as a volunteer;
``(C) has not been convicted of more than 2 felonies that
are covered nonviolent offenses, including any such
convictions that have been sealed; and
``(D) has not been convicted of any felony that is not a
covered nonviolent offense;
``(4) the term `petitioner' means an individual who files a
sealing petition;
``(5) the term `protected information', with respect to a
qualifying 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);
``(6) the term `qualifying offense' means--
``(A) a covered nonviolent offense committed by an
individual whose substance use disorder is a substantial
contributing factor in the commission of the offense, as
determined by a court reviewing a sealing petition with
respect to the offense under section 3642(b)(3)(A)(i); or
``(B) in the case of an arrest for an offense that does not
result in a conviction, a covered nonviolent offense with
respect to which the act that would have constituted the
offense is committed by an individual whose substance use
disorder is a substantial contributing factor in the
commission of the act, as determined by a court reviewing a
sealing petition with respect to the offense under section
3642(b)(3)(A)(i);
``(7) the term `seal'--
``(A) means--
``(i) to close a record from public viewing so that the
record cannot be examined except by court order; and
``(ii) to physically seal the record shut and label the
record `SEALED' or, in the case of an electronic record, the
substantive equivalent; and
``(B) has the effect described in section 3643, including--
``(i) the right to treat the offense to which a sealed
record relates, and any arrest, criminal proceeding,
conviction, or sentence relating to the offense, as if it
never occurred; and
``(ii) protection from civil and criminal perjury, false
swearing, and false statement laws with respect to a sealed
record;
``(8) the term `sealing hearing' means a hearing held under
section 3642(b)(2);
``(9) the term `sealing petition' means a petition for a
sealing order filed under section 3642(a); and
``(10) the term `substance use disorder peer mentorship
program' means a peer mentorship program at a covered
treatment program.
``Sec. 3642. Sealing petition
``(a) Right To File Sealing Petition.--
[[Page S7669]]
``(1) Date of eligibility.--
``(A) Convicted individuals.--
``(i) In general.--On and after the date that is 3 years
after the applicable date under clause (ii), an eligible
individual who was convicted of a qualifying offense and has
not been arrested for or convicted of a substance use-related
offense since that applicable date may file a petition for a
sealing order with respect to the qualifying offense in a
district court of the United States.
``(ii) Applicable date.--The applicable date--
``(I) for an eligible individual who was convicted of a
qualifying offense and sentenced to a term of imprisonment,
probation, or supervised release is the date on which the
eligible individual has fulfilled each requirement under
section 3641(3)(B)(i); and
``(II) for an eligible individual who was convicted of a
qualifying offense and not sentenced to a term of
imprisonment, probation, or supervised release is the date on
which the case relating to the qualifying offense is disposed
of.
``(iii) Violation of 3-year good behavior requirement.--
``(I) In general.--An eligible individual who is prohibited
from filing a petition for a sealing order with respect to a
qualifying offense under clause (i) because the individual is
arrested for or convicted of a substance use-related offense
on or after the applicable date under clause (ii) may file
such a petition on or after the date as of which not less
than 3 years have elapsed since the last such arrest or
conviction.
``(II) Rule of construction.--Nothing in subclause (I)
shall be construed to allow an eligible individual to file
more than 1 petition for a sealing order with respect to a
particular qualifying offense.
``(B) Individuals not convicted.--An eligible individual
who is arrested for but not convicted of a qualifying offense
may file a petition for a sealing order with respect to the
qualifying offense in a district court of the United States
on and after the date on which the case relating to the
offense is disposed of.
``(2) Notice of opportunity to file petition.--
``(A) Convicted individuals.--
``(i) 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 under section 3641(3)(B), the
court in which the individual is convicted shall, in writing,
inform the individual, on each date described in clause (ii)
of this subparagraph, of--
``(I) that potential eligibility;
``(II) the necessary procedures for filing the sealing
petition; and
``(III) the benefits of sealing a record, including
protection from civil and criminal perjury, false swearing,
and false statement laws with respect to the record.
``(ii) Dates.--The dates described in this clause are--
``(I) the date on which the individual is convicted; and
``(II) the date on which the individual has fulfilled each
requirement under section 3641(3)(B)(i).
``(B) Individuals not convicted.--
``(i) Arrest only.--If an individual is arrested for a
covered nonviolent offense, criminal proceedings are not
instituted against the individual for the offense, and the
individual is potentially eligible to file a sealing petition
with respect to the offense, on the date on which the case
relating to the offense is disposed of, the arresting
authority shall, in writing, inform the individual of--
``(I) that potential eligibility;
``(II) the necessary procedures for filing the sealing
petition; and
``(III) the benefits of sealing a record, including
protection from civil and criminal perjury, false swearing,
and false statement laws with respect to the record.
``(ii) Court proceedings.--If an individual is arrested for
a covered nonviolent offense, criminal proceedings are
instituted against the individual for the offense, the
individual is not convicted of the offense, and the
individual is potentially eligible to file a sealing petition
with respect to the offense, on the date on which the case
relating to the offense is disposed of, the court in which
the criminal proceedings take place shall, in writing, inform
the individual of--
``(I) that potential eligibility;
``(II) the necessary procedures for filing the sealing
petition; and
``(III) the benefits of sealing a record, including
protection from civil and criminal perjury, false swearing,
and false statement laws with respect to the record.
``(b) Procedures.--
``(1) Notification to prosecutor and other individuals.--If
an individual files a petition under subsection (a) with
respect to a qualifying offense, 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 or would have 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 arrest; 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,
including evidence of ongoing sobriety.
``(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 shall--
``(i) determine whether the offense is a qualifying offense
based on evidence that the petitioner suffered from an active
substance use disorder at the time of the commission of the
offense;
``(ii) 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; and
``(iii) 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.
``(C) Reasoning.--The court shall provide the petitioner
and the Government with a written decision explaining the
reasons for the determination made under subparagraph (A).
``(4) Appeal.--A denial of a sealing petition by a district
court under this section shall be subject to review by a
court of appeals in accordance with section 1291 of title 28.
``(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) Reporting.--Not later than 2 years after the date of
enactment of this subchapter, and each year thereafter, each
district court of the United States shall publish and submit
to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives a
report that--
``(A) describes--
``(i) the number of sealing petitions granted and denied
under this section;
``(ii) the number of instances in which the office of a
United States attorney supported or opposed a sealing
petition; and
``(iii) the number and amount of fees assessed and waived
under this section;
``(B) includes any supporting data that--
``(i) the court determines relevant; and
``(ii) does not name any petitioner; and
``(C) disaggregates all relevant data by race, ethnicity,
gender, and the nature of the offense.
``(8) Public defender eligibility.--
``(A) In general.--The district court may, in its
discretion, 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.
[[Page S7670]]
``Sec. 3643. Effect of sealing order
``(a) In General.--Except as provided in this section, if a
district court of the United States enters a sealing order
with respect to a qualifying offense, the offense and any
arrest, criminal proceeding, conviction, or sentence relating
to the offense shall be treated as if it never occurred.
``(b) Verification of Sealing.--If a district court of the
United States enters a sealing order with respect to a
qualifying offense, the court shall--
``(1) send a copy of the sealing order to each entity or
person known to the court that possesses a record containing
protected information that relates to the offense, including
each--
``(A) law enforcement agency; and
``(B) public or private correctional or detention facility;
``(2) in the sealing order, require each entity or person
described in paragraph (1) to--
``(A) seal the record in accordance with this section; and
``(B) submit a written certification to the court, under
penalty of perjury, that the entity or person has sealed each
paper and electronic copy of the record;
``(3) seal each paper and electronic copy of the record in
the possession of the court; and
``(4) after receiving a written certification from each
entity or person under paragraph (2)(B), notify the
petitioner that each entity or person described in paragraph
(1) has sealed each paper and electronic copy of the record.
``(c) Protection From Perjury Laws.--Except as provided in
subsection (f)(3)(A), a petitioner with respect to whom a
sealing order has been entered for a qualifying offense 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 section
1001, 1621, 1622, or 1623, for failing to recite or
acknowledge any protected information with respect to the
offense or respond to any inquiry made of the petitioner,
relating to the protected information, for any purpose.
``(d) Attorney General Nonpublic Records.--The Attorney
General--
``(1) shall maintain a nonpublic record of all protected
information that has been sealed under this subchapter; and
``(2) may access or utilize protected information only--
``(A) for legitimate investigative purposes;
``(B) in defense of any civil suit arising out of the facts
of the arrest or subsequent proceedings; or
``(C) if the Attorney General determines that disclosure is
necessary to serve the interests of justice, public safety,
or national security.
``(e) Law Enforcement Access.--A Federal or State law
enforcement agency may access a record that is sealed under
this subchapter solely--
``(1) to determine whether the individual to whom the
record relates is eligible for a first-time-offender
diversion program;
``(2) for investigatory, prosecutorial, or Federal
supervision purposes; or
``(3) for a background check that relates to law
enforcement employment or any employment that requires a
government security clearance.
``(f) Prohibition on Disclosure.--
``(1) Prohibition.--Except as provided in paragraph (3), it
shall be unlawful to intentionally make or attempt to make an
unauthorized disclosure of any protected information from a
record that has been sealed under this subchapter.
``(2) Penalty.--Any person who violates paragraph (1) shall
be fined under this title, imprisoned for not more than 1
year, or both.
``(3) Exceptions.--
``(A) Background checks.--An individual who is the subject
of a record sealed under this subchapter shall, and a Federal
or State law enforcement agency that possesses such a record
may, disclose the record in the case of a background check
for--
``(i) law enforcement employment; or
``(ii) any position that a Federal agency designates as a--
``(I) national security position; or
``(II) high-risk, public trust position.
``(B) Disclosure to armed forces.--A person may disclose
protected information from a record sealed under this
subchapter to the Secretaries of the military departments (or
the Secretary of Homeland Security with respect to the Coast
Guard when it is not operating as a service in the Navy) for
the purpose of vetting an enlistment or commission, or with
regard to any member of the Armed Forces.
``(C) Criminal and juvenile proceedings.--A prosecutor may
disclose protected information from a record sealed under
this subchapter if the information pertains to a potential
witness in a Federal or State--
``(i) criminal proceeding; or
``(ii) juvenile delinquency proceeding.
``(D) Authorization for individual to disclose own
record.--An individual who is the subject of a record sealed
under this subchapter may choose to disclose the record.''.
(b) Applicability.--The right to file a sealing petition
under section 3642(a) of title 18, United States Code, as
added by subsection (a), shall apply with respect to a
qualifying offense (as defined in section 3641(a) of such
title) that is committed or alleged to have been committed
before, on, or after the date of enactment of this Act.
(c) Transition Period for Hearings Deadline.--During the 1-
year period beginning on the date of enactment of this Act,
section 3642(b)(2)(A) of title 18, United States Code, as
added by subsection (a), shall be applied by substituting ``1
year'' for ``180 days''.
(d) Technical and Conforming Amendment.--The table of
subchapters for chapter 229 of title 18, United States Code,
as amended by section 101, is amended by adding at the end
the following:
``E. Sealing of Criminal Records............................3641''.....
SEC. 703. STATE INCENTIVES.
(a) COPS Grants Priority.--Section 1701 of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C.
10381) is amended--
(1) in subsection (c)--
(A) in paragraph (2), by striking ``or'' at the end;
(B) in paragraph (3), by striking the period at the end and
inserting ``; or''; and
(C) by adding at the end the following:
``(4) subject to subsection (l), from an applicant in a
State that has in effect--
``(A) a law relating to the sealing of adult records that
is substantially similar to, or more generous to the former
offender than, the amendments made by section 702 of the
Clean Start Act; or
``(B) a law that allows an individual who has successfully
sealed a criminal record to be free from civil and criminal
perjury laws.''; and
(2) by adding at the end the following:
``(l) Degree of Priority Relating to Sealing Laws
Commensurate With Degree of Compliance.--If the Attorney
General, in awarding grants under this part, gives
preferential consideration to any application as authorized
under subsection (c)(4), the Attorney General shall base the
degree of preferential consideration given to an application
from an applicant in a particular State on the number of
subparagraphs under subsection (c)(4) that the State has
satisfied, relative to the number of such subparagraphs that
each other State has satisfied.''.
(b) Attorney General Guidelines and Technical Assistance.--
The Attorney General shall issue guidelines and provide
technical assistance to assist States in complying with the
incentive under section 1701(c)(4) of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (34 U.S.C.
10381(c)(2)), as added by subsection (a).
______