Clean Slate Act of 2020

II 116TH CONGRESS 2D SESSION S. 5047 To require automatic sealing of certain criminal records, and for other purposes. IN THE SENATE OF THE UNITED STATES DECEMBER 17, 2020 Mr. CASEY (for himself and Ms. ERNST) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To require automatic sealing of certain criminal records, and for other purposes. 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 ‘‘Clean Slate Act of 4 2020’’. 5 SEC. 2. SEALING OF CERTAIN RECORDS. 6 (a) AMENDMENT.—Subchapter A of chapter 227 of 7 title 18, United States Code, is amended by adding at the 8 end the following: 9 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 2 •S 5047 IS ‘‘§ 3560. Automatic sealing of certain records 1 ‘‘(a) DEFINITIONS.—In this section— 2 ‘‘(1) the term ‘covered individual’ means an in- 3 dividual who— 4 ‘‘(A) is not a sex offender; 5 ‘‘(B) has been— 6 ‘‘(i) arrested for a Federal offense for 7 which the individual was not convicted; or 8 ‘‘(ii) convicted of an offense under 9 section 404 of the Controlled Substances 10 Act (21 U.S.C. 844); 11 ‘‘(C) in the case of a conviction described 12 in subparagraph (B)(ii), has fulfilled each re- 13 quirement of the sentence for the offense, in- 14 cluding— 15 ‘‘(i) completing each term of imprison- 16 ment, probation, or supervised release; and 17 ‘‘(ii) satisfying each condition of im- 18 prisonment, probation, or supervised re- 19 lease; and 20 ‘‘(D) has not been convicted for any of- 21 fense related to treason, terrorism, access and 22 transmission of sensitive defense information, 23 or other national security related convictions; 24 and 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 3 •S 5047 IS ‘‘(2) the term ‘sex offender’ has the meaning 1 given the term in section 111 of the Adam Walsh 2 Child Protection and Safety Act of 2006 (34 U.S.C. 3 20911). 4 ‘‘(b) AUTOMATIC SEALING FOR CERTAIN ARRESTS 5 AND OTHER OFFENSES.— 6 ‘‘(1) IN GENERAL.—At the time of sentencing 7 of a covered individual for a conviction pursuant to 8 section 404 of the Controlled Substances Act (21 9 U.S.C. 844), the court shall enter an order that each 10 record and portion thereof that relates to the offense 11 shall be sealed automatically on the date that is 1 12 year after the covered individual fulfills each require- 13 ment of the sentence, including— 14 ‘‘(A) completing each term of imprison- 15 ment, probation, or supervised release; and 16 ‘‘(B) satisfying each condition of imprison- 17 ment, probation, or supervised release. 18 ‘‘(2) ACQUITTAL; DETERMINATION NOT TO FILE 19 CHARGES.— 20 ‘‘(A) ACQUITTAL.—Not later than 60 days 21 after the date on which a covered individual is 22 acquitted, exonerated, or otherwise subject to a 23 judgment which did not result in a conviction 24 for a Federal offense, each record or portion 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 4 •S 5047 IS thereof that relates to the Federal offense shall 1 be sealed automatically. 2 ‘‘(B) DETERMINATION NOT TO FILE 3 CHARGES.— 4 ‘‘(i) IN GENERAL.—If a covered indi- 5 vidual is arrested for a Federal offense and 6 the Government does not file charges 7 against the covered individual in relation 8 to the Federal offense before the date that 9 is 180 days after the date on which the ar- 10 rest was made, each record or portion 11 thereof that relates to the arrest and Fed- 12 eral offense shall be sealed automatically 13 on such date. 14 ‘‘(ii) UNSEALING FOR FILING OF 15 CHARGES.—At the request of the Govern- 16 ment, a court may unseal a record sealed 17 under clause (i) solely for the purpose of 18 allowing the Government to file charges 19 against the covered individual in relation 20 to the Federal offense described in such 21 clause. 22 ‘‘(iii) LIMITATION.—If a record is un- 23 sealed under clause (ii), the record may 24 only be resealed in accordance with para- 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 5 •S 5047 IS graph (1) or subparagraph (A) of this 1 paragraph. 2 ‘‘(c) NOTICE OF AUTOMATIC SEALING.—Not later 3 than 60 days after the date on which an individual is ar- 4 rested for a Federal offense, the Attorney General shall, 5 in writing, inform the individual of the automatic sealing 6 of records and the effect of such sealing under this section. 7 ‘‘(d) EFFECT OF SEALING ORDER.— 8 ‘‘(1) PROTECTION FROM ACCESS.—Except as 9 provided in paragraph (4), a record that has been 10 sealed under subsection (b) shall not be accessible to 11 any person. 12 ‘‘(2) PROTECTION FROM PERJURY LAWS.— 13 ‘‘(A) IN GENERAL.—Except as provided in 14 subparagraph (B), a covered individual with re- 15 spect to whom a record has been sealed under 16 subsection (b) shall not be required to disclose 17 such information, and shall not be subject to 18 prosecution under any civil or criminal provi- 19 sion of Federal or State law relating to perjury, 20 false swearing, or making a false statement, in- 21 cluding under section 1001, 1621, 1622, or 22 1623, for failing to recite or acknowledge any 23 information that has been sealed with respect to 24 the offense, or respond to any inquiry made of 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 6 •S 5047 IS the covered individual, relating to the protected 1 information. 2 ‘‘(B) EXCEPTION.—A covered individual 3 shall disclose information contained in a record 4 that has been sealed under subsection (b)— 5 ‘‘(i) when testifying in court; or 6 ‘‘(ii) in connection with employment 7 described in subclause (I) or (II) of para- 8 graph (4)(A)(ii) that the individual is seek- 9 ing. 10 ‘‘(3) BACKGROUND CHECKS.—Except as pro- 11 vided in paragraph (4), a sealed record of a covered 12 individual shall not be included in any background 13 check conducted on the covered individual. 14 ‘‘(4) LAW ENFORCEMENT AND COURT EXCEP- 15 TION.— 16 ‘‘(A) ACCESS.—An officer or employee of a 17 law enforcement agency or a court may access 18 a sealed record of a covered individual in the 19 possession of the agency or court, or another 20 law enforcement agency or court, solely— 21 ‘‘(i) for investigatory or prosecutorial 22 purposes; or 23 ‘‘(ii) for a background check that re- 24 lates to— 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 7 •S 5047 IS ‘‘(I) employment with a law en- 1 forcement agency; 2 ‘‘(II) any position that a Federal 3 agency designates as a national secu- 4 rity position; or 5 ‘‘(III) the manufacture, importa- 6 tion, sale, transfer, possession, or car- 7 rying of firearms, explosives, or am- 8 munition. 9 ‘‘(B) DISCLOSURE.—An officer or em- 10 ployee of a law enforcement agency or a court 11 may disclose information contained in a sealed 12 record only in order to carry out the purposes 13 described in subparagraph (A). 14 ‘‘(e) PENALTY FOR UNAUTHORIZED DISCLOSURE.— 15 ‘‘(1) IN GENERAL.—Whoever knowingly ac- 16 cesses or discloses information contained in a sealed 17 record in a manner that is prohibited under this sec- 18 tion, shall be fined under this title, imprisoned for 19 not more than 1 year, or both. 20 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 21 this subsection prevents a covered individual or an 22 individual who was the crime victim (as such term 23 is defined in section 3771(e)) from accessing or dis- 24 closing information contained in a sealed record. 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 8 •S 5047 IS ‘‘(f) RULEMAKING.—The Attorney General shall, by 1 rule, establish a process to ensure that any record in the 2 possession of a Federal agency required to be sealed under 3 this section, is automatically sealed in accordance with this 4 section. 5 ‘‘(g) APPLICABILITY.—This section shall apply to an 6 arrest that occurred or conviction that was entered before, 7 on, or after the date of enactment of this section. Not later 8 than 2 years after the date of the enactment of this sec- 9 tion, the Attorney General shall ensure that any record 10 related to an arrest that occurred or conviction that was 11 entered prior to the automatic sealing of such a record, 12 which record is required to be sealed under this section, 13 is so sealed. 14 ‘‘(h) EMPLOYER IMMUNITY FROM LIABILITY.—An 15 employer who employs or otherwise engages an individual 16 whose criminal records were sealed pursuant to this sec- 17 tion shall be immune from liability for any claim arising 18 out of the misconduct of the individual, if the misconduct 19 relates to the portion of the criminal records that were 20 sealed pursuant to this section. 21 ‘‘(i) ESTABLISHMENT OF PARTNERSHIPS.— 22 ‘‘(1) IN GENERAL.—The Administrative Office 23 of the United States Courts may enter into a con- 24 tract with or make grants to an organization with 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 9 •S 5047 IS expertise in creating digital and technological sys- 1 tems to develop an efficient and effective process for 2 automatically sealing records in accordance with this 3 section. 4 ‘‘(2) AUTHORIZATION OF APPROPRIATIONS.— 5 There are authorized to be appropriated $2,000,000 6 to carry out this subsection. 7 ‘‘§ 3560A. Sealing of certain records upon petition 8 ‘‘(a) DEFINITIONS.—In this section— 9 ‘‘(1) the term ‘covered nonviolent offense’ 10 means a Federal criminal offense that is not— 11 ‘‘(A) a crime of violence (as defined in sub- 12 section (a) of section 16); or 13 ‘‘(B) a sex offense (as that term is defined 14 in section 111 of the Sex Offender Registration 15 and Notification Act (34 U.S.C. 20911)); 16 ‘‘(2) the term ‘eligible individual’ means an in- 17 dividual who— 18 ‘‘(A) has been convicted of a covered non- 19 violent offense; 20 ‘‘(B) has fulfilled each requirement of the 21 sentence for the covered nonviolent offense, in- 22 cluding— 23 ‘‘(i) completing each term of imprison- 24 ment, probation, or supervised release; and 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 10 •S 5047 IS ‘‘(ii) satisfying each condition of im- 1 prisonment, probation, or supervised re- 2 lease; 3 ‘‘(C) has not been convicted of more than 4 2 felonies that are covered nonviolent offenses, 5 including any such convictions that have been 6 sealed (except that for purposes of this sub- 7 paragraph, two or more felony convictions that 8 are covered nonviolent offenses arising out of 9 the same act, or acts committed at the same 10 time, shall be treated as one felony conviction); 11 ‘‘(D) has not been convicted of any felony 12 that is not a covered nonviolent offense; and 13 ‘‘(E) has not been convicted for any of- 14 fense related to treason, terrorism, access and 15 transmission of sensitive defense information, 16 or other national security related convictions; 17 ‘‘(3) the term ‘petitioner’ means an individual 18 who files a sealing petition; 19 ‘‘(4) the term ‘protected information’, with re- 20 spect to a covered nonviolent offense, means any ref- 21 erence to— 22 ‘‘(A) an arrest, conviction, or sentence of 23 an individual for the offense; 24 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 11 •S 5047 IS ‘‘(B) the institution of criminal pro- 1 ceedings against an individual for the offense; 2 or 3 ‘‘(C) the result of criminal proceedings de- 4 scribed in subparagraph (B); 5 ‘‘(5) the term ‘sealing hearing’ means a hearing 6 held under subsection (c)(2); and 7 ‘‘(6) the term ‘sealing petition’ means a petition 8 for a sealing order filed under subsection (b). 9 ‘‘(b) RIGHT TO FILE SEALING PETITION.— 10 ‘‘(1) IN GENERAL.—On and after the date that 11 is 1 year after the date on which the eligible indi- 12 vidual has fulfilled each requirement described in 13 subsection (a)(2)(B), an eligible individual may file 14 a petition for a sealing order with respect to a cov- 15 ered nonviolent offense in a district court of the 16 United States. 17 ‘‘(2) NOTICE OF OPPORTUNITY TO FILE PETI- 18 TION.— 19 ‘‘(A) IN GENERAL.—If an individual is 20 convicted of a covered nonviolent offense and 21 will potentially be eligible to file a sealing peti- 22 tion with respect to the offense upon fulfilling 23 each requirement of the sentence for the offense 24 as described in subsection (a)(2)(B), the court 25 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 12 •S 5047 IS in which the individual is convicted shall, in 1 writing, inform the individual, on each date de- 2 scribed in subparagraph (B), of— 3 ‘‘(i) that potential eligibility; 4 ‘‘(ii) the necessary procedures for fil- 5 ing the sealing petition; and 6 ‘‘(iii) the benefits of sealing a record. 7 ‘‘(B) DATES.—The dates described in this 8 subparagraph are— 9 ‘‘(i) the date on which the individual 10 is convicted; and 11 ‘‘(ii) the date on which the individual 12 has completed every term of imprisonment, 13 probation, or supervised release relating to 14 the offense. 15 ‘‘(c) PROCEDURES.— 16 ‘‘(1) NOTIFICATION TO PROSECUTOR.—If an in- 17 dividual files a petition under subsection (b), the dis- 18 trict court in which the petition is filed shall provide 19 notice of the petition— 20 ‘‘(A) to the office of the United States at- 21 torney that prosecuted the petitioner for the of- 22 fense; and 23 VerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S5047.IS S5047 kjohnson on DSK79L0C42PROD with BILLS 13 •S 5047 IS ‘‘(B) upon the request of the petitioner, to 1 any other individual that the petitioner deter- 2 mines may testify as to the— 3 ‘‘(i) conduct of the petitioner since the 4 date of the offense; or 5 ‘‘(ii) reasons that the sealing order 6 should be entered. 7 ‘‘(2) HEA [Text truncated for display. 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