Trafficking Survivors Relief Act of 2020

II 116TH CONGRESS 2D SESSION S. 3240 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 JANUARY 28, 2020 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 traf- ficking. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Trafficking Survivors 4 Relief Act of 2020’’. 5 SEC. 2. FEDERAL EXPUNGEMENT FOR VICTIMS OF TRAF- 6 FICKING. 7 (a) IN GENERAL.—Chapter 237 of title 18, United 8 States Code, is amended by adding at the end the fol- 9 lowing: 10 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 2 •S 3240 IS ‘‘§ 3772. Motion to vacate; expungement; mitigating 1 factors 2 ‘‘(a) DEFINITIONS.—In this section— 3 ‘‘(1) the term ‘child’ means an individual who 4 has not attained 18 years of age; 5 ‘‘(2) the term ‘covered prisoner’ means an indi- 6 vidual who— 7 ‘‘(A) was convicted of a level B offense; 8 ‘‘(B) was sentenced to a term of imprison- 9 ment for the level B offense; and 10 ‘‘(C) is imprisoned under such term of im- 11 prisonment; 12 ‘‘(3) the terms ‘employee’ and ‘officer’ have the 13 meanings given the terms in section 2105 of title 5; 14 ‘‘(4) the term ‘Federal offense’ means an of- 15 fense that is punishable under Federal law; 16 ‘‘(5) the term ‘level A offense’ means a Federal 17 offense that is not a violent crime; 18 ‘‘(6) the term ‘level B offense’— 19 ‘‘(A) means a Federal offense that is a vio- 20 lent crime; and 21 ‘‘(B) does not include a Federal offense 22 that is a violent crime of which a child was a 23 victim; 24 ‘‘(7) the term ‘level C offense’ means any Fed- 25 eral offense that is not a level A offense; 26 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 3 •S 3240 IS ‘‘(8) the term ‘victim of trafficking’ has the 1 meaning given that term in section 103 of the Traf- 2 ficking Victims Protection Act of 2000 (22 U.S.C. 3 7102); and 4 ‘‘(9) the term ‘violent crime’ has the meaning 5 given that term in section 103 of the Juvenile Jus- 6 tice and Delinquency Prevention Act of 1974 (34 7 U.S.C. 11103). 8 ‘‘(b) MOTIONS TO VACATE CONVICTIONS OR EX- 9 PUNGE ARRESTS.— 10 ‘‘(1) IN GENERAL.— 11 ‘‘(A) CONVICTIONS OF LEVEL A OF- 12 FENSES.—A person convicted of any level A of- 13 fense (or an attorney representing such a per- 14 son) may move the court that imposed the sen- 15 tence for the level A offense to vacate the judg- 16 ment of conviction if the level A offense was 17 committed as a direct result of the person hav- 18 ing been a victim of trafficking. 19 ‘‘(B) ARRESTS FOR LEVEL A OFFENSES.— 20 A person arrested for any level A offense (or an 21 attorney representing such a person) may move 22 the district court of the United States for the 23 district and division embracing the place where 24 the person was arrested to expunge all records 25 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 4 •S 3240 IS of the arrest if the conduct or alleged conduct 1 of the person that resulted in the arrest was di- 2 rectly related to the person having been a vic- 3 tim of trafficking. 4 ‘‘(C) ARRESTS FOR LEVEL C OFFENSES.— 5 A person arrested for any level C offense (or an 6 attorney representing such a person) may move 7 the district court of the United States for the 8 district and division embracing the place where 9 the person was arrested to expunge all records 10 of the arrest if— 11 ‘‘(i) the conduct or alleged conduct of 12 the movant that resulted in the arrest was 13 directly related to the movant having been 14 a victim of trafficking; and 15 ‘‘(ii)(I) the movant was acquitted of 16 the level C offense; 17 ‘‘(II) the Government did not pursue 18 or dismissed criminal charges against the 19 movant for the level C offense; or 20 ‘‘(III)(aa) the charges against the 21 movant for the level C offense were re- 22 duced to an offense that is a level A of- 23 fense; and 24 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 5 •S 3240 IS ‘‘(bb) the movant was acquitted of the 1 level A offense, the Government did not 2 pursue or dismissed criminal charges 3 against the movant for the level A offense, 4 or any subsequent conviction of the level A 5 offense was vacated. 6 ‘‘(2) CONTENTS OF MOTION.—A motion de- 7 scribed in paragraph (1) shall— 8 ‘‘(A) be in writing; 9 ‘‘(B) describe any supporting evidence; 10 ‘‘(C) state the offense; and 11 ‘‘(D) include copies of any documents 12 showing that the movant is entitled to relief 13 under this section. 14 ‘‘(3) HEARING.— 15 ‘‘(A) MANDATORY HEARING.— 16 ‘‘(i) MOTION IN OPPOSITION.—Not 17 later than 30 days after the date on which 18 a motion is filed under paragraph (1), the 19 Government may file a motion in opposi- 20 tion of the motion filed under paragraph 21 (1). 22 ‘‘(ii) MANDATORY HEARING.—If the 23 Government files a motion described in 24 clause (i), not later than 15 days after the 25 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 6 •S 3240 IS date on which the motion is filed, the court 1 shall hold a hearing on the motion. 2 ‘‘(B) DISCRETIONARY HEARING.—If the 3 Government does not file a motion described in 4 subparagraph (A)(i), the court may hold a 5 hearing on the motion not later than 45 days 6 after the date on which a motion is filed under 7 paragraph (1). 8 ‘‘(4) FACTORS.— 9 ‘‘(A) VACATING CONVICTIONS OF LEVEL A 10 OFFENSES.—The court may grant a motion 11 under paragraph (1)(A) if, after notice to the 12 Government and an opportunity to be heard, 13 the court finds, by clear and convincing evi- 14 dence, that— 15 ‘‘(i) the movant was convicted of a 16 level A offense; and 17 ‘‘(ii) the participation in the level A 18 offense by the movant was a direct result 19 of the movant having been a victim of traf- 20 ficking. 21 ‘‘(B) EXPUNGING ARRESTS FOR LEVEL A 22 OFFENSES.—The court may grant a motion 23 under paragraph (1)(B) if, after notice to the 24 Government and an opportunity to be heard, 25 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 7 •S 3240 IS the court finds, by clear and convincing evi- 1 dence, that— 2 ‘‘(i) the movant was arrested for a 3 level A offense; and 4 ‘‘(ii) the conduct or alleged conduct 5 that resulted in the arrest was directly re- 6 lated to the movant having been a victim 7 of trafficking. 8 ‘‘(C) EXPUNGING ARRESTS FOR LEVEL C 9 OFFENSES.—The court may grant a motion 10 under paragraph (1)(C) if, after notice to the 11 Government and an opportunity to be heard, 12 the court finds, by clear and convincing evi- 13 dence, that— 14 ‘‘(i) the movant was arrested for a 15 level C offense and the conduct or alleged 16 conduct that resulted in the arrest was di- 17 rectly related to the movant having been a 18 victim of trafficking; and 19 ‘‘(ii)(I) the movant was acquitted of 20 the level C offense; 21 ‘‘(II) the Government did not pursue 22 or dismissed criminal charges against the 23 movant for the level C offense; or 24 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 8 •S 3240 IS ‘‘(III)(aa) the charges against the 1 movant for the level C offense were re- 2 duced to a level A offense; and 3 ‘‘(bb) the movant was acquitted of the 4 level A offense, the Government did not 5 pursue or dismissed criminal charges 6 against the movant for the level A offense, 7 or any subsequent conviction of that level 8 A offense was vacated. 9 ‘‘(5) SUPPORTING EVIDENCE.— 10 ‘‘(A) REBUTTABLE PRESUMPTION.—For 11 purposes of this subsection, there shall be a re- 12 buttable presumption that the movant is a vic- 13 tim of trafficking if the movant includes in the 14 motion— 15 ‘‘(i) a copy of an official record, cer- 16 tification, or eligibility letter from a Fed- 17 eral, State, Tribal, or local proceeding, in- 18 cluding an approval notice or an enforce- 19 ment certification generated from a Fed- 20 eral immigration proceeding, that shows 21 that the movant was a victim of traf- 22 ficking, including a victim of a trafficker 23 charged with a violation of chapter 77; or 24 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 9 •S 3240 IS ‘‘(ii) an affidavit or sworn testimony 1 from a trained professional staff member 2 of a victim services organization, an attor- 3 ney, a member of the clergy, a medical 4 professional, or another professional from 5 whom the movant has sought assistance in 6 addressing the trauma associated with 7 being a victim of trafficking. 8 ‘‘(B) OTHER EVIDENCE.— 9 ‘‘(i) IN GENERAL.—For purposes of 10 this section, in determining whether the 11 movant is a victim of trafficking, the court 12 may consider any other evidence the court 13 determines is of sufficient credibility and 14 probative value, including an affidavit or 15 sworn testimony of the movant. 16 ‘‘(ii) AFFIDAVIT OR SWORN TESTI- 17 MONY OF MOVANT SUFFICIENT EVI- 18 DENCE.—The affidavit or sworn testimony 19 of the movant described in clause (i) shall 20 be sufficient evidence to vacate a convic- 21 tion or expunge an arrest under this sec- 22 tion if the court determines that— 23 ‘‘(I) the affidavit or sworn testi- 24 mony is credible; and 25 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 10 •S 3240 IS ‘‘(II) no other evidence is readily 1 available. 2 ‘‘(6) CONVICTION OR ARREST OF OTHER PER- 3 SONS NOT REQUIRED.—It shall not be necessary 4 that any person other than the movant be convicted 5 of or arrested for an offense before the movant may 6 file a motion under paragraph (1). 7 ‘‘(7) DENIAL OF MOTION.— 8 ‘‘(A) IN GENERAL.—If the court denies a 9 motion filed under paragraph (1), the denial 10 shall be without prejudice. 11 ‘‘(B) REASONS FOR DENIAL.—If the court 12 denies a motion filed under paragraph (1), the 13 court shall state the reasons for the denial in 14 writing. 15 ‘‘(C) REASONABLE TIME TO CURE DEFI- 16 CIENCIES IN MOTION.—If the motion was de- 17 nied due to a curable deficiency in the motion, 18 the court shall allow the movant sufficient time 19 to cure the deficiency. 20 ‘‘(8) APPEAL.—An order granting or denying a 21 motion under this section may be appealed in ac- 22 cordance with section 1291 of title 28. 23 ‘‘(c) VACATUR OF CONVICTIONS.— 24 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 11 •S 3240 IS ‘‘(1) IN GENERAL.—If the court grants a mo- 1 tion to vacate a conviction of a level A offense under 2 subsection (b), the court shall immediately vacate 3 the conviction for cause, set aside the verdict and 4 enter a judgment of acquittal, and enter an 5 expungement order that directs that there be ex- 6 punged from all official records all references to— 7 ‘‘(A) the arrest of the movant for the level 8 A offense; 9 ‘‘(B) the institution of criminal pro- 10 ceedings against the movant relating to the 11 level A offense; and 12 ‘‘(C) the results of the proceedings. 13 ‘‘(2) EFFECT.—If a conviction is vacated under 14 an order entered under paragraph (1)— 15 ‘‘(A) the conviction shall not be regarded 16 as a conviction under Federal law and the mov- 17 ant for whom the conviction was vacated shall 18 be considered to have the status occupied by the 19 movant before the arrest or the institution of 20 the criminal proceedings related to such convic- 21 tion; and 22 ‘‘(B) no alien may be removed, determined 23 to be inadmissible, or lose any immigration ben- 24 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 12 •S 3240 IS efit because of such conviction, arrest, or insti- 1 tution of criminal proceedings. 2 ‘‘(d) EXPUNGEMENT OF ARRESTS.— 3 ‘‘(1) IN GENERAL.—If the court grants a mo- 4 tion to expunge all records of an arrest for an of- 5 fense under subsection (b), the court shall imme- 6 diately enter an expungement order that directs that 7 there be expunged from all official records all ref- 8 erences to— 9 ‘‘(A) the arrest of the movant for the of- 10 fense; 11 ‘‘(B) the institution of any criminal pro- 12 ceedings against the movant relating to the of- 13 fense; and 14 ‘‘(C) the results of the proceedings, if any. 15 ‘‘(2) EFFECT.—If an arrest is expunged under 16 an order entered under paragraph (1)— 17 ‘‘(A) the arrest shall not be regarded as an 18 arrest under Federal law and the movant for 19 whom the arrest is expunged shall be consid- 20 ered to have the status occupied by the movant 21 before the arrest or the institution of the crimi- 22 nal proceedings related to such arrest, if any; 23 and 24 VerDate Sep 11 2014 00:09 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3240.IS S3240 dlhill on DSKBBY8HB2PROD with BILLS 13 •S 3240 IS ‘‘(B) no alien may be removed, determined 1 to be inadmissible, or lose any immigration ben- 2 efit because of arrest or institution of criminal 3 proceedings, if any. 4 ‘‘(e) MITIGATING FACTORS.— 5 ‘‘(1) IN GENERAL.—The court that imposed 6 sentence for a level B offense upon a covered pris- 7 oner may reduce the term of imprisonment for the 8 level B offense— 9 ‘‘(A) upon— 10 ‘‘(i) motion by the covered prisoner or 11 the Director of the Bureau of Prisons; or 12 ‘‘(ii) the court’s own motion; 13 ‘‘(B) after notice to the Government; 14 ‘‘(C) after considering— 15 ‘‘(i) the factors set forth in section 16 3553(a); 17 ‘‘(ii) the nature and seriousness of the 18 danger to any person; and 19 ‘‘(iii) the community, or any crime 20 victims; and 21 ‘‘(D) if the court finds, by clear and con- 22 vincing evidence, that the covered prisoner com- 23 mitted the level B offense as a direct result of 24 VerDate Sep 11 201 [Text truncated for display. 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