FAMILIES Act

II 116TH CONGRESS 2D SESSION S. 4916 To amend title 18, United States Code, to divert certain parents of minor children, expectant parents, and other caregivers from incarceration and into comprehensive programs providing resources, services, and training to those individuals and their families. IN THE SENATE OF THE UNITED STATES NOVEMBER 18, 2020 Mr. WYDEN introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to divert certain parents of minor children, expectant parents, and other caregivers from incarceration and into comprehensive programs providing resources, services, and training to those individuals and their families. 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 ‘‘Finding Alternatives 4 to Mass Incarceration: Lives Improved by Ending Separa- 5 tion Act of 2020’’ or the ‘‘FAMILIES Act’’. 6 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 4916 IS SEC. 2. PURPOSE. 1 The purpose of this Act is to divert parents of minor 2 children, expectant parents, and other caregivers from in- 3 carceration if those individuals, and society, would be bet- 4 ter served by the individuals entering into a comprehensive 5 community supervision program that would provide re- 6 sources, services, and training to them and their families. 7 SEC. 3. FAMILIES DIVERSION PROGRAM. 8 (a) IN GENERAL.—Chapter 227 of title 18, United 9 States Code, is amended— 10 (1) in subchapter A— 11 (A) in section 3551— 12 (i) in subsection (b)— 13 (I) in paragraph (2), by striking 14 ‘‘or’’ at the end; 15 (II) in paragraph (3), by striking 16 the period at the end and inserting ‘‘; 17 or’’; 18 (III) by inserting after paragraph 19 (3) the following: 20 ‘‘(4) participation in the FAMILIES Program 21 as authorized by subchapter E.’’; and 22 (IV) in the undesignated matter 23 following paragraph (4), as so 24 added— 25 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 4916 IS (aa) by striking ‘‘A sen- 1 tence’’ and inserting ‘‘Subject to 2 subsection (d), a sentence’’; and 3 (bb) by striking ‘‘A sanc- 4 tion’’ and inserting ‘‘Subjection 5 to subsection (d), a sanction’’; 6 and 7 (ii) by adding at the end the fol- 8 lowing: 9 ‘‘(d) IMPOSITION OF FINES AND SANCTIONS IN AD- 10 DITION TO PARTICIPATION IN FAMILIES PROGRAM.— 11 ‘‘(1) IN GENERAL.—If the court sentences an 12 individual to participation in the FAMILIES Pro- 13 gram under subchapter E, the court may not impose 14 a sentence to pay a fine, or impose a sanction under 15 section 3554 (relating to criminal forfeiture), 3555 16 (relating to notice to victims), or 3556 (relating to 17 restitution), unless the court considers the factors 18 under paragraph (2) of this subsection. 19 ‘‘(2) CONSIDERATIONS.—Before imposing a 20 sentence to pay a fine, or imposing a sanction under 21 section 3554, 3555, or 3556, on an individual de- 22 scribed in paragraph (1) of this subsection, the court 23 shall— 24 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 4916 IS ‘‘(A) weigh the importance of the fine or 1 sanction against— 2 ‘‘(i) the ability of the individual to af- 3 ford the fine, forfeiture, cost of giving no- 4 tice, or restitution, as applicable; and 5 ‘‘(ii) the impact of the fine or sanction 6 on the ability of the individual to succeed 7 in the FAMILIES Program; and 8 ‘‘(B) take all necessary steps to ensure 9 that the success of the individual in the FAMI- 10 LIES Program is not hindered by financial ob- 11 stacles. 12 ‘‘(3) NO MANDATORY RESTITUTION.—Notwith- 13 standing section 3663A, an order of restitution 14 under that section with respect to an individual de- 15 scribed in paragraph (1) of this subsection shall be 16 at the discretion of the court and shall be subject to 17 the requirements of this subsection.’’; and 18 (B) in section 3553— 19 (i) by redesignating subsections (b) 20 through (g) as subsections (c) through (h), 21 respectively; 22 (ii) by inserting after subsection (a) 23 the following: 24 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 4916 IS ‘‘(b) CONSIDERATION OF DIVERSION TO FAMILIES 1 PROGRAM.— 2 ‘‘(1) DETERMINATION.—Notwithstanding any 3 other provision of this section, other than subsection 4 (c), and notwithstanding any minimum term of im- 5 prisonment required to be imposed under any other 6 provision of law, in the case of a defendant who is 7 an eligible individual (as defined in section 3590), 8 the court shall determine, in accordance with para- 9 graph (2), whether the defendant, and society, would 10 be best served by diverting the defendant into the 11 FAMILIES Program under subchapter E instead of 12 sentencing the defendant to a term of probation 13 under subchapter B or a term of imprisonment 14 under subchapter D. 15 ‘‘(2) FACTORS.— 16 ‘‘(A) IN GENERAL.—In making the deter- 17 mination under paragraph (1), the court shall 18 consider, in addition to other factors the court 19 determines relevant— 20 ‘‘(i) whether the defendant has signifi- 21 cant parental responsibilities, including sig- 22 nificant expected parental responsibilities 23 in the case of an individual who is preg- 24 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 4916 IS nant or the spouse or dating partner of 1 such an individual; 2 ‘‘(ii) whether the defendant has sig- 3 nificant caregiving responsibilities with re- 4 spect to an adult dependent; 5 ‘‘(iii) whether the defendant poses no 6 apparent risk of harm to any identifiable 7 child with respect to whom the defendant 8 has significant parental responsibilities; 9 ‘‘(iv) whether the defendant poses no 10 apparent risk of harm to any identifiable 11 adult dependent with respect to whom the 12 defendant has significant caregiving re- 13 sponsibilities; 14 ‘‘(v) a statement, if available, regard- 15 ing the impact that a sentence of probation 16 or imprisonment would have on the family 17 of the defendant; 18 ‘‘(vi) the nature of the offense as it 19 relates to the future rehabilitation of the 20 defendant; 21 ‘‘(vii) the defendant’s ties to the com- 22 munity; 23 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 4916 IS ‘‘(viii) a statement from the victim re- 1 garding the impact of the offense on the 2 victim; and 3 ‘‘(ix) any prior criminal history of the 4 defendant. 5 ‘‘(B) RULE OF CONSTRUCTION.—The 6 court shall not be required to find that each 7 factor described in subparagraph (A) weighs in 8 favor of the participation of the defendant in 9 the FAMILIES Program in order to determine 10 that the defendant, and society, would be best 11 served by diverting the defendant into the 12 FAMILIES Program. 13 ‘‘(3) FINDINGS OF FACT.—At the time of sen- 14 tencing a defendant who is an eligible individual (as 15 defined in section 3590), the court, in stating in 16 open court the reasons for its imposition of the par- 17 ticular sentence under subsection (c), shall include 18 its determination under paragraph (1) of this sub- 19 section as to whether the defendant, and society, 20 would be best served by diverting the defendant into 21 the FAMILIES Program under subchapter E, in- 22 cluding findings of fact supporting that determina- 23 tion.’’; 24 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 4916 IS (iii) in subsection (c), as so redesig- 1 nated, by striking ‘‘or (c)’’ and inserting 2 ‘‘or (d)’’; 3 (iv) in subsection (d), as so redesig- 4 nated, by striking ‘‘or (b)’’ and inserting 5 ‘‘or (c)’’; and 6 (v) in subsection (e)(3), as so redesig- 7 nated, by striking ‘‘subsection (c)’’ and in- 8 serting ‘‘subsection (d)’’; and 9 (2) by adding at the end the following: 10 ‘‘Subchapter E—FAMILIES Program 11 ‘‘§ 3590. Definitions 12 ‘‘In this subchapter— 13 ‘‘(1) the term ‘child abuse and neglect’ has the 14 meaning given the term in section 3 of the Child 15 Abuse Prevention and Treatment Act (42 U.S.C. 16 5101 note; Public Law 93–247); 17 ‘‘(2) the term ‘dating partner’ has the meaning 18 given the term in section 40002(a) of the Violence 19 Against Women Act of 1994 (34 U.S.C. 12291(a)); 20 ‘‘(3) the term ‘domestic violence’ has the mean- 21 ing given the term in section 40002(a) of the Vio- 22 lence Against Women Act of 1994 (34 U.S.C. 23 12291(a)); 24 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 4916 IS ‘‘(4) the term ‘electronic means’ includes tele- 1 phone, teleconference, and videoconference; 2 ‘‘(5) the term ‘eligible individual’ means an in- 3 dividual who is— 4 ‘‘(A) a parent of a minor child; 5 ‘‘(B) pregnant; 6 ‘‘(C) a caregiver for a minor child or other 7 minor relative; 8 ‘‘(D) a caregiver for an individual with dis- 9 abilities; 10 ‘‘(E) a caregiver for an elderly family 11 member; or 12 ‘‘(F) the spouse or dating partner of an in- 13 dividual who is— 14 ‘‘(i) a parent of a minor child; or 15 ‘‘(ii) pregnant; 16 ‘‘(6) the term ‘FAMILIES Program’ means the 17 program established under section 3590B; 18 ‘‘(7) the term ‘minor’, with respect to an indi- 19 vidual, means the individual is under the age of 18; 20 ‘‘(8) the term ‘Office’ means the Office of Pro- 21 bation and Pretrial Services of the Administrative 22 Office of the United States Courts; 23 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 4916 IS ‘‘(9) the term ‘participant’ means an eligible in- 1 dividual who is participating in the FAMILIES Pro- 2 gram; 3 ‘‘(10) the term ‘Secretary’ means the Secretary 4 of Health and Human Services; and 5 ‘‘(11) the term ‘trauma-informed decision mak- 6 ing’ means decision making— 7 ‘‘(A) informed by an organizational struc- 8 ture and treatment framework that involves un- 9 derstanding, recognizing, and responding to the 10 effects of all types of trauma; and 11 ‘‘(B) in accordance with recognized prin- 12 ciples of a trauma-informed approach and trau- 13 ma-specific interventions to address the con- 14 sequences of trauma and facilitate healing. 15 ‘‘§ 3590A. Sentencing 16 ‘‘(a) IMPOSITION OF SENTENCE.—If an eligible indi- 17 vidual is found guilty of an offense and the court makes 18 an affirmative determination under section 3553(b)(1), 19 the court shall impose a sentence for the offense that in- 20 cludes participation in the FAMILIES Program instead 21 of a term of probation under subchapter B or a term of 22 imprisonment under subchapter D. 23 ‘‘(b) CONSIDERATION OF SPECIAL FAMILIES PRO- 24 GRAM AND EXPUNGEMENT PROCEDURES.—In imposing a 25 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 4916 IS sentence under subsection (a), the court shall consider 1 whether to utilize the procedures under section 3590D in 2 light of the personal history of the defendant and whether 3 a record of the arrest, criminal proceedings, or conviction 4 for the offense and the associated collateral consequences 5 would harm the defendant and the ability of the defendant 6 to perform caregiving duties. 7 ‘‘(c) IDENTIFYING PROGRAMS AND SERVICES.— 8 ‘‘(1) IN GENERAL.—In imposing a sentence 9 under subsection (a), the court, in collaboration with 10 the Office and the Secretary, shall identify the pro- 11 grams and services that the defendant shall be re- 12 quired to complete in order to successfully complete 13 the FAMILIES Program. 14 ‘‘(2) USER FEES AND OTHER COSTS.— 15 ‘‘(A) IN GENERAL.—In identifying the pro- 16 grams and services that a defendant shall be re- 17 quired to complete under the Families Pro- 18 gram, the court may not impose on the defend- 19 ant any user fee or other cost relating to those 20 programs and services unless the court con- 21 siders the factors under subparagraph (B). 22 ‘‘(B) CONSIDERATIONS.—Before imposing 23 any user fee or other cost relating to programs 24 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 4916 IS and services under the Families Program on a 1 defendant, the court shall— 2 ‘‘(i) weigh the importance of the fee 3 or other cost against— 4 ‘‘(I) the ability of the defendant 5 to afford the fee or other cost; and 6 ‘‘(II) the impact of the fee or 7 other cost on the ability of the defend- 8 ant to succeed in the FAMILIES Pro- 9 gram; and 10 ‘‘(ii) take all necessary steps to ensure 11 that the success of the defendant in the 12 FAMILIES Program is not hindered by fi- 13 nancial obstacles. 14 ‘‘(d) TRAINING FOR JUDGES.—The Secretary, in col- 15 laboration with the Attorney General and the United 16 States Sentencing Commission, shall develop training for 17 judges of the district courts on how to implement the 18 FAMILIES Program, which shall include training on— 19 ‘‘(1) trauma-informed decision making; 20 ‘‘(2) child development, family dynamics, and 21 the effects of parental separation; 22 ‘‘(3) domestic violence; 23 ‘‘(4) child abuse and neglect; 24 ‘‘(5) substance abuse and addiction; 25 VerDate Sep 11 2014 04:40 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4916.IS S4916 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 4916 IS ‘‘(6) mental health; 1 ‘‘(7) cultural competence; and 2 ‘‘(8) examining bias. 3 ‘‘§ 3590B. FAMILIES Program 4 ‘‘(a) ESTABLISHMENT.—The Office, in cooperation 5 with the Director of the Administrative Office of the 6 United States Courts, the Attorney General, the Sec- 7 retary, and the Chief of the Defender Services Office of 8 the Administrative Office of the United States Courts, 9 shall establish and operate the FAMILIES Program for 10 purposes of this subchapter. 11 ‘‘(b) CONTENTS.—The FAMILIES Program shall in- 12 clude— 13 ‘‘(1) education programs, including— 14 ‘‘(A) general educational development 15 (commonly known as ‘GED’) programs; an [Text truncated for display. Full text available on Congress.gov.]