First Step Implementation Act of 2021

To reform sentencing laws and correctional institutions, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the First Step Implementation Act of 2021 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Sentencing reform Sec. 101. Application of First Step Act. Sec. 102. Modifying safety valve for drug offenses. TITLE II—Corrections Reform Sec. 201. Parole for juveniles. Sec. 202. Juvenile sealing and expungement. Sec. 203. Ensuring accuracy of Federal criminal records. I Sentencing reform 101. Application of First Step Act (a) Definitions In this section— (1) the term covered offense (A) a violation of a Federal criminal statute, the statutory penalties for which were modified by section 401 or 403 of the First Step Act of 2018 ( Public Law 115–391 (B) a violation of a Federal criminal statute, the statutory penalties for which are modified by subsection (b) of this section; and (2) the term serious violent felony 21 U.S.C. 802 (b) Amendments (1) In general (A) Controlled Substances Act Section 401(b) of the Controlled Substances Act ( 21 U.S.C. 841 (i) in paragraph (1)— (I) in subparagraph (C), by striking felony drug offense serious drug felony or serious violent felony (II) in subparagraph (D), by striking felony drug offense serious drug felony or serious violent felony (III) in subparagraph (E)(ii), by striking felony drug offense serious drug felony or serious violent felony (ii) in paragraph (2), by striking felony drug offense serious drug felony or serious violent felony (iii) in paragraph (3), by striking felony drug offense serious drug felony or serious violent felony (B) Controlled Substances Import and Export Act Section 1010(b)(3) of the Controlled Substances Import and Export Act ( 21 U.S.C. 960(b)(3) felony drug offense serious drug felony or serious violent felony (2) Pending cases This subsection, and the amendments made by this subsection, shall apply to any sentence imposed on or after the date of enactment of this Act, regardless of when the offense was committed. (c) Defendants previously sentenced A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 401 and 403 of the First Step Act of 2018 ( Public Law 115–391 Public Law 115–391 (d) Crime victims Any proceeding under this section shall be subject to section 3771 of title 18, United States Code (commonly known as the Crime Victims Rights Act (e) Requirement For each motion filed under subsection (b), the Government shall conduct a particularized inquiry of the facts and circumstances of the original sentencing of the defendant in order to assess whether a reduction in sentence would be consistent with the First Step Act of 2018 ( Public Law 115–391 102. Modifying safety valve for drug offenses (a) Amendments Section 3553 of title 18, United States Code, is amended— (1) by redesignating subsection (g) as subsection (h); and (2) by inserting after subsection (f) the following: (g) Inadequacy of criminal history (1) In general If subsection (f) does not apply to a defendant because the defendant does not meet the requirements described in subsection (f)(1) (relating to criminal history), the court may, upon prior notice to the Government, waive subsection (f)(1) if the court specifies in writing the specific reasons why reliable information indicates that excluding the defendant pursuant to subsection (f)(1) substantially overrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes. (2) Prohibition This subsection shall not apply to any defendant who has been convicted of a serious drug felony or a serious violent felony as defined in paragraphs (57) and (58), respectively, of section 102 of the Controlled Substances Act ( 21 U.S.C. 802 . II Corrections Reform 201. Parole for juveniles (a) In general Chapter 403 section 5032 5032A. Modification of an imposed term of imprisonment for violations of law committed prior to age 18 (a) In general Notwithstanding any other provision of law, a court may reduce a term of imprisonment imposed upon a defendant convicted as an adult for an offense committed and completed before the defendant attained 18 years of age if— (1) the defendant has served not less than 20 years in custody for the offense; and (2) the court finds, after considering the factors set forth in subsection (c), that the defendant is not a danger to the safety of any person or the community and that the interests of justice warrant a sentence modification. (b) Supervised release Any defendant whose sentence is reduced pursuant to subsection (a) shall be ordered to serve a period of supervised release of not less than 5 years following release from imprisonment. The conditions of supervised release and any modification or revocation of the term of supervise release shall be in accordance with section 3583. (c) Factors and information To be considered in determining whether To modify a term of imprisonment The court, in determining whether to reduce a term of imprisonment pursuant to subsection (a), shall consider— (1) the factors described in section 3553(a), including the nature of the offense and the history and characteristics of the defendant; (2) the age of the defendant at the time of the offense; (3) a report and recommendation of the Bureau of Prisons, including information on whether the defendant has substantially complied with the rules of each institution in which the defendant has been confined and whether the defendant has completed any educational, vocational, or other prison program, where available; (4) a report and recommendation of the United States attorney for any district in which an offense for which the defendant is imprisoned was prosecuted; (5) whether the defendant has demonstrated maturity, rehabilitation, and a fitness to reenter society sufficient to justify a sentence reduction; (6) any statement, which may be presented orally or otherwise, by any victim of an offense for which the defendant is imprisoned or by a family member of the victim if the victim is deceased; (7) any report from a physical, mental, or psychiatric examination of the defendant conducted by a licensed health care professional; (8) the family and community circumstances of the defendant at the time of the offense, including any history of abuse, trauma, or involvement in the child welfare system; (9) the extent of the role of the defendant in the offense and whether, and to what extent, an adult was involved in the offense; (10) the diminished culpability of juveniles as compared to that of adults, and the hallmark features of youth, including immaturity, impetuosity, and failure to appreciate risks and consequences, which counsel against sentencing juveniles to the otherwise applicable term of imprisonment; and (11) any other information the court determines relevant to the decision of the court. (d) Limitation on applications pursuant to this section (1) Second application Not earlier than 5 years after the date on which an order entered by a court on an initial application under this section becomes final, a court shall entertain a second application by the same defendant under this section. (2) Final application Not earlier than 5 years after the date on which an order entered by a court on a second application under paragraph (1) becomes final, a court shall entertain a final application by the same defendant under this section. (3) Prohibition A court may not entertain an application filed after an application filed under paragraph (2) by the same defendant. (e) Procedures (1) Notice The Bureau of Prisons shall provide written notice of this section to— (A) any defendant who has served not less than 19 years in prison for an offense committed and completed before the defendant attained 18 years of age for which the defendant was convicted as an adult; and (B) the sentencing court, the United States attorney, and the Federal Public Defender or Executive Director of the Community Defender Organization for the judicial district in which the sentence described in subparagraph (A) was imposed. (2) Crime victims rights Upon receiving notice under paragraph (1), the United States attorney shall provide any notifications required under section 3771. (3) Application (A) In general An application for a sentence reduction under this section shall be filed as a motion to reduce the sentence of the defendant and may include affidavits or other written material. (B) Requirement A motion to reduce a sentence under this section shall be filed with the sentencing court and a copy shall be served on the United States attorney for the judicial district in which the sentence was imposed. (4) Expanding the record; hearing (A) Expanding the record After the filing of a motion to reduce a sentence under this section, the court may direct the parties to expand the record by submitting additional written materials relating to the motion. (B) Hearing (i) In general The court shall conduct a hearing on the motion, at which the defendant and counsel for the defendant shall be given the opportunity to be heard. (ii) Evidence In a hearing under this section, the court may allow parties to present evidence. (iii) Defendant’s presence At a hearing under this section, the defendant shall be present unless the defendant waives the right to be present. The requirement under this clause may be satisfied by the defendant appearing by video teleconference. (iv) Counsel A defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant for proceedings under this section, including any appeal, unless the defendant waives the right to counsel. (v) Findings The court shall state in open court, and file in writing, the reasons for granting or denying a motion under this section. (C) Appeal The Government or the defendant may file a notice of appeal in the district court for review of a final order under this section. The time limit for filing such appeal shall be governed by rule 4(a) of the Federal Rules of Appellate Procedure. (f) Educational and rehabilitative programs A defendant who is convicted and sentenced as an adult for an offense committed and completed before the defendant attained 18 years of age may not be deprived of any educational, training, or rehabilitative program that is otherwise available to the general prison population. . (b) Table of sections The table of sections for chapter 403 section 5032 5032A. Modification of an imposed term of imprisonment for violations of law committed prior to age 18. . (c) Applicability The amendments made by this section shall apply to any conviction entered before, on, or after the date of enactment of this Act. 202. Juvenile sealing and expungement (a) Purpose The purpose of this section is to— (1) protect children and adults against damage stemming from their juvenile acts and subsequent juvenile delinquency records, including law enforcement, arrest, and court records; and (2) prevent the unauthorized use or disclosure of confidential juvenile delinquency records and any potential employment, financial, psychological, or other harm that would result from such unauthorized use or disclosure. (b) Definitions Section 5031 of title 18, United States Code, is amended to read as follows: 5031. Definitions In this chapter— (1) the term adjudication (2) the term conviction (3) the term destroy (4) the term expunge (5) the term expungement hearing (6) the term expungement petition (7) the term high-risk, public trust position (8) the term juvenile (A) except as provided in subparagraph (B), a person who has not attained the age of 18 years; and (B) for the purpose of proceedings and disposition under this chapter for an alleged act of juvenile delinquency, a person who has not attained the age of 21 years; (9) the term juvenile delinquency (10) the term juvenile nonviolent offense (A) in the case of an arrest or an adjudication that is dismissed or finds the juvenile to be not delinquent, an act of juvenile delinquency that is not— (i) a criminal homicide, forcible rape or any other sex offense (as defined in section 111 of the Sex Offender Registration and Notification Act ( 34 U.S.C. 20911 (ii) a Federal crime of terrorism (as defined in section 2332b(g)); and (B) in the case of an adjudication that finds the juvenile to be delinquent, an act of juvenile delinquency that is not— (i) described in clause (i) or (ii) of subparagraph (A); or (ii) a misdemeanor crime of domestic violence (as defined in section 921(a)(33)); (11) the term juvenile record (A) means a record maintained by a court, the probation system, a law enforcement agency, or any other government agency, of the juvenile delinquency proceedings of a person; (B) includes— (i) a juvenile legal file, including a formal document such as a petition, notice, motion, legal memorandum, order, or decree; (ii) a social record, including— (I) a record of a probation officer; (II) a record of any government agency that keeps records relating to juvenile delinquency; (III) a medical record; (IV) a psychiatric or psychological record; (V) a birth certificate; (VI) an education record, including an individualized education plan; (VII) a detention record; (VIII) demographic information that identifies a juvenile or the family of a juvenile; or (IX) any other record that includes personally identifiable information that may be associated with a juvenile delinquency proceeding, an act of juvenile delinquency, or an alleged act of juvenile delinquency; and (iii) a law enforcement record, including a photograph or a State criminal justice information system record; and (C) does not include— (i) fingerprints; or (ii) a DNA sample; (12) the term petitioner (13) the term seal (A) to close a record from public viewing so that the record cannot be examined except by court order; and (B) to physically seal the record shut and label the record SEALED (14) the term sealing hearing (15) the term sealing petition . (c) Confidentiality Section 5038 of title 18, United States Code, is amended— (1) in subsection (a), in the flush text following paragraph (6), by inserting after bonding, participation in an educational system, (2) in subsection (b), by striking District courts exercising jurisdiction over any juvenile Not later than 7 days after the date on which a district court exercises jurisdiction over a juvenile, the district court (d) Sealing; expungement (1) In general Chapter 403 5044. Sealing (a) Automatic sealing of nonviolent offenses (1) In general Three years after the date on which a person who is adjudicated delinquent under this chapter for a juvenile nonviolent offense completes every term of probation, official detention, or juvenile delinquent supervision ordered by the court with respect to the offense, the court shall order the sealing of each juvenile record or portion thereof that relates to the offense if the person— (A) has not been convicted of a crime or adjudicated delinquent for an act of juvenile delinquency since the date of the disposition; and (B) is not engaged in active criminal court proceedings or juvenile delinquency proceedings. (2) Automatic nature of sealing The order of sealing under paragraph (1) shall require no action by the person whose juvenile records are to be sealed. (3) Notice of automatic sealing A court that orders the sealing of a juvenile record of a person under paragraph (1) shall, in writing, inform the person of the sealing and the benefits of sealing the record. (b) Petitioning for early sealing of nonviolent offenses (1) Right to file sealing petition (A) In general During the 3-year period beginning on the date on which a person who is adjudicated delinquent under this chapter for a juvenile nonviolent offense completes every term of probation, official detention, or juvenile delinquent supervision ordered by the court with respect to the offense, the person may petition the court to seal the juvenile records that relate to the offense, unless the person— (i) has been convicted of a crime or adjudicated delinquent for an act of juvenile delinquency since the date of the disposition; or (ii) is engaged in active criminal court proceedings or juvenile delinquency proceedings. (B) Notice of opportunity to file petition If a person is adjudicated delinquent for a juvenile nonviolent offense, the court in which the person is adjudicated delinquent shall, in writing, inform the person of the potential eligibility of the person to file a sealing petition with respect to the offense upon completing every term of probation, official detention, or juvenile delinquent supervision ordered by the court with respect to the offense, and the necessary procedures for filing the sealing petition— (i) on the date on which the individual is adjudicated delinquent; and (ii) on the date on which the individual has completed every term of probation, official detention, or juvenile delinquent supervision ordered by the court with respect to the offense. (2) Procedures (A) Notification to prosecutor If a person files a sealing petition with respect to a juvenile nonviolent offense, the court in which the petition is filed shall provide notice of the petition— (i) to the Attorney General; and (ii) upon the request of the petitioner, to any other individual that the petitioner determines may testify as to— (I) the conduct of the petitioner since the date of the offense; or (II) the reasons that the sealing order should be entered. (B) Hearing (i) In general If a person files a sealing petition, the court shall— (I) except as provided in clause (iii), conduct a hearing in accordance with clause (ii); and (II) determine whether to enter a sealing order for the person in accordance with subparagraph (C). (ii) Opportunity to testify and offer evidence (I) Petitioner The petitioner may testify or offer evidence at the sealing hearing in support of sealing. (II) Prosecutor The Attorney General 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 subparagraph (A)(ii) may testify or offer evidence at the sealing hearing as to the issues described in subclauses (I) and (II) of that subparagraph. (iii) Waiver of hearing If the petitioner and the Attorney General so agree, the court shall make a determination under subparagraph (C) without a hearing. (C) Basis for decision The court shall determine whether to grant the sealing petition after considering— (i) the sealing petition and any documents in the possession of the court; (ii) all the evidence and testimony presented at the sealing hearing, if such a hearing is conducted; (iii) the best interests of the petitioner; (iv) the age of the petitioner during his or her contact with the court or any law enforcement agency; (v) the nature of the juvenile nonviolent offense; (vi) the disposition of the case; (vii) the manner in which the petitioner participated in any court-ordered rehabilitative programming or supervised services; (viii) the length of the time period during which the petitioner has been without contact with any court or law enforcement agency; (ix) whether the petitioner has had any criminal or juvenile delinquency involvement since the disposition of the juvenile delinquency proceeding; and (x) the adverse consequences the petitioner may suffer if the petition is not granted. (D) Waiting period after denial If the court denies a sealing petition, the petitioner may not file a new sealing petition with respect to the same juvenile nonviolent offense until the date that is 2 years after the date of the denial. (E) 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. (F) No fee for indigent petitioners If the court determines that the petitioner is indigent, there shall be no cost for filing a sealing petition. (G) Reporting Not later than 2 years after the date of enactment of this section, and each year thereafter, the Director of the Administrative Office of the United States Courts shall issue a public report that— (i) describes— (I) the number of sealing petitions granted and denied under this subsection; and (II) the number of instances in which the Attorney General supported or opposed a sealing petition; (ii) includes any supporting data that the Director determines relevant and that does not name any petitioner; and (iii) disaggregates all relevant data by race, ethnicity, gender, and the nature of the offense. (H) Public defender eligibility (i) Petitioners under age 18 The district court shall appoint counsel in accordance with the plan of the district court in operation under section 3006A to represent a petitioner for purposes of this subsection if the petitioner is less than 18 years of age. (ii) Petitioners age 18 and older (I) Discretion of court In the case of a petitioner who is not less than 18 years of age, 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 the petitioner for purposes of this subsection. (II) Considerations In determining whether to appoint counsel under subclause (I), the court shall consider— (aa) the anticipated complexity of the sealing hearing, including the number and type of witnesses called to advocate against the sealing of the records of the petitioner; and (bb) the potential for adverse testimony by a victim or a representative of the Attorney General. (c) Effect of sealing order (1) Protection from disclosure Except as provided in paragraphs (3) and (4), if a court orders the sealing of a juvenile record of a person under subsection (a) or (b) with respect to a juvenile nonviolent offense, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events the records of which are ordered sealed. (2) Verification of sealing If a court orders the sealing of a juvenile record under subsection (a) or (b) with respect to a juvenile nonviolent offense, the court shall— (A) send a copy of the sealing order to each entity or person known to the court that possesses a record relating to the offense, including each— (i) law enforcement agency; and (ii) public or private correctional or detention facility; (B) in the sealing order, require each entity or person described in subparagraph (A) to— (i) seal the record; and (ii) 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; (C) seal each paper and electronic copy of the record in the possession of the court; and (D) after receiving a written certification from each entity or person under subparagraph (B)(ii), notify the petitioner that each entity or person described in subparagraph (A) has sealed each paper and electronic copy of the record. (3) Law enforcement access to sealed records (A) In general Except as provided in subparagraph (B), a law enforcement agency may access a sealed juvenile record in the possession of the agency or another law enforcement agency solely— (i) to determine whether the person who is the subject of the record is a nonviolent offender eligible for a first-time-offender diversion program; (ii) for investigatory or prosecutorial purposes; or (iii) for a background check that relates to— (I) law enforcement employment; or (II) any position that a Federal agency designates as a— (aa) national security position; or (bb) high-risk, public trust position. (B) Transition period During the 1-year period beginning on the date on which a court orders the sealing of a juvenile record under this section, a law enforcement agency may, for law enforcement purposes, access the record if the record is in the possession of the agency or another law enforcement agency. (4) Prohibition on disclosure (A) Prohibition Except as provided in subparagraph (C), it shall be unlawful to intentionally make or attempt to make an unauthorized disclosure of any information from a sealed juvenile record in violation of this section. (B) Penalty Any person who violates subparagraph (A) shall be fined under this title, imprisoned for not more than 1 year, or both. (C) Exceptions (i) Background checks In the case of a background check for law enforcement employment or for any employment that requires a government security clearance— (I) a person who is the subject of a juvenile record sealed under this section shall disclose the contents of the record; and (II) a law enforcement agency that possesses a juvenile record sealed under this section— (aa) may disclose the contents of the record; and (bb) if the agency obtains or is subject to a court order authorizing disclosure of the record, may disclose the record. (ii) Disclosure to Armed Forces A person, including a law enforcement agency that possesses a juvenile record sealed under this section, may disclose information from a juvenile record sealed under this section 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. (iii) Criminal and juvenile proceedings A prosecutor or other law enforcement officer may disclose information from a juvenile record sealed under this section, and a person who is the subject of a juvenile record sealed under this section may be required to testify or otherwise disclose information about the record, in a criminal or other proceeding if such disclosure is required by the Constitution of the United States, the constitution of a State, or a Federal or State statute or rule. (iv) Authorization for person to disclose own record A person who is the subject of a juvenile record sealed under this section may choose to disclose the record. (d) Limitation relating to subsequent incidents (1) After filing and before petition granted If, after the date on which a person files a sealing petition with respect to a juvenile offense and before the court determines whether to grant the petition, the person is convicted of a crime, adjudicated delinquent for an act of juvenile delinquency, or engaged in active criminal court proceedings or juvenile delinquency proceedings, the court shall deny the petition. (2) After petition granted If, on or after the date on which a court orders the sealing of a juvenile record of a person under subsection (b), the person is convicted of a crime or adjudicated delinquent for an act of juvenile delinquency— (A) the court shall— (i) vacate the order; and (ii) notify the person who is the subject of the juvenile record, and each entity or person described in subsection (c)(2)(A), that the order has been vacated; and (B) the record shall no longer be sealed. (e) Inclusion of State juvenile delinquency adjudications and proceedings For purposes of subparagraphs (A) and (B) of subsection (a)(1), clauses (i) and (ii) of subsection (b)(1)(A), subsection (b)(1)(C)(ix), and paragraphs (1) and (2) of subsection (d), the term juvenile delinquency 5045. Expungement (a) Automatic expungement of certain records (1) Attorney general motion (A) Nonviolent offenses committed before a person turned 15 If a person is adjudicated delinquent under this chapter for a juvenile nonviolent offense committed before the person attained 15 years of age and completes every term of probation, official detention, or juvenile delinquent supervision ordered by the court with respect to the offense before attaining 18 years of age, on the date on which the person attains 18 years of age, the Attorney General shall file a motion in the district court of the United States in which the person was adjudicated delinquent requesting that each juvenile record of the person that relates to the offense be expunged. (B) Arrests If a juvenile is arrested by a Federal law enforcement agency for a juvenile nonviolent offense for which a juvenile delinquency proceeding is not instituted under this chapter, and for which the United States does not proceed against the juvenile as an adult in a district court of the United States, the Attorney General shall file a motion in the district court of the United States that would have had jurisdiction of the proceeding requesting that each juvenile record relating to the arrest be expunged. (C) Expungement order Upon the filing of a motion in a district court of the United States with respect to a juvenile nonviolent offense under subparagraph (A) or an arrest for a juvenile nonviolent offense under subparagraph (B), the court shall grant the motion and order that each juvenile record relating to the offense or arrest, as applicable, be expunged. (2) Dismissed cases If a district court of the United States dismisses an information with respect to a juvenile under this chapter or finds a juvenile not to be delinquent in a juvenile delinquency proceeding under this chapter, the court shall concurrently order that each juvenile record relating to the applicable proceeding be expunged. (3) Automatic nature of expungement An order of expungement under paragraph (1)(C) or (2) shall not require any action by the person whose records are to be expunged. (4) Notice of automatic expungement A court that orders the expungement of a juvenile record of a person under paragraph (1)(C) or (2) shall, in writing, inform the person of the expungement and the benefits of expunging the record. (b) Petitioning for expungement of nonviolent offenses (1) In general A person who is adjudicated delinquent under this chapter for a juvenile nonviolent offense committed on or after the date on which the person attained 15 years of age may petition the court in which the proceeding took place to order the expungement of the juvenile record that relates to the offense unless the person— (A) has been convicted of a crime or adjudicated delinquent for an act of juvenile delinquency since the date of the disposition; (B) is engaged in active criminal court proceedings or juvenile delinquency proceedings; or (C) has had not less than 2 adjudications of delinquency previously expunged under this section. (2) Procedures (A) Notification of prosecutor and victims If a person files an expungement petition with respect to a juvenile nonviolent offense, the court in which the petition is filed shall provide notice of the petition— (i) to the Attorney General; and (ii) upon the request of the petitioner, to any other individual that the petitioner determines may testify as to— (I) the conduct of the petitioner since the date of the offense; or (II) the reasons that the expungement order should be entered. (B) Hearing (i) In general If a person files an expungement petition, the court shall— (I) except as provided in clause (iii), conduct a hearing in accordance with clause (ii); and (II) determine whether to enter an expungement order for the person in accordance with subparagraph (C). (ii) Opportunity to testify and offer evidence (I) Petitioner The petitioner may testify or offer evidence at the expungement hearing in support of expungement. (II) Prosecutor The Attorney General may send a representative to testify or offer evidence at the expungement hearing in support of or against expungement. (III) Other individuals An individual who receives notice under subparagraph (A)(ii) may testify or offer evidence at the expungement hearing as to the issues described in subclauses (I) and (II) of that subparagraph. (iii) Waiver of hearing If the petitioner and the Attorney General so agree, the court shall make a determination under subparagraph (C) without a hearing. (C) Basis for decision The court shall determine whether to grant an expungement petition after considering— (i) the petition and any documents in the possession of the court; (ii) all the evidence and testimony presented at the expungement hearing, if such a hearing is conducted; (iii) the best interests of the petitioner; (iv) the age of the petitioner during his or her contact with the court or any law enforcement agency; (v) the nature of the juvenile nonviolent offense; (vi) the disposition of the case; (vii) the manner in which the petitioner participated in any court-ordered rehabilitative programming or supervised services; (viii) the length of the time period during which the petitioner has been without contact with any court or any law enforcement agency; (ix) whether the petitioner has had any criminal or juvenile delinquency involvement since the disposition of the juvenile delinquency proceeding; and (x) the adverse consequences the petitioner may suffer if the petition is not granted. (D) Waiting period after denial If the court denies an expungement petition, the petitioner may not file a new expungement petition with respect to the same offense until the date that is 2 years after the date of the denial. (E) 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 an expungement petition. (F) No fee for indigent petitioners If the court determines that the petitioner is indigent, there shall be no cost for filing an expungement petition. (G) Reporting Not later than 2 years after the date of enactment of this section, and each year thereafter, the Director of the Administrative Office of the United States Courts shall issue a public report that— (i) describes— (I) the number of expungement petitions granted and denied under this subsection; and (II) the number of instances in which the Attorney General supported or opposed an expungement petition; (ii) includes any supporting data that the Director determines relevant and that does not name any petitioner; and (iii) disaggregates all relevant data by race, ethnicity, gender, and the nature of the offense. (H) Public defender eligibility (i) Petitioners under age 18 The district court shall appoint counsel in accordance with the plan of the district court in operation under section 3006A to represent a petitioner for purposes of this subsection if the petitioner is less than 18 years of age. (ii) Petitioners age 18 and older (I) Discretion of court In the case of a petitioner who is not less than 18 years of age, 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 the petitioner for purposes of this subsection. (II) Considerations In determining whether to appoint counsel under subclause (I), the court shall consider— (aa) the anticipated complexity of the expungement hearing, including the number and type of witnesses called to advocate against the expungement of the records of the petitioner; and (bb) the potential for adverse testimony by a victim or a representative of the Attorney General. (c) Effect of expunged juvenile record (1) Protection from disclosure Except as provided in paragraphs (4) through (8), if a court orders the expungement of a juvenile record of a person under subsection (a) or (b) with respect to a juvenile nonviolent offense, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events the records of which are ordered expunged. (2) Verification of expungement If a court orders the expungement of a juvenile record under subsection (a) or (b) with respect to a juvenile nonviolent offense, the court shall— (A) send a copy of the expungement order to each entity or person known to the court that possesses a record relating to the offense, including each— (i) law enforcement agency; and (ii) public or private correctional or detention facility; (B) in the expungement order— (i) require each entity or person described in subparagraph (A) to— (I) seal the record for 1 year and, during that 1-year period, apply paragraphs (3) and (4) of section 5044(c) with respect to the record; (II) on the date that is 1 year after the date of the order, destroy the record unless a subsequent incident described in subsection (d)(2) occurs; and (III) submit a written certification to the court, under penalty of perjury, that the entity or person has destroyed each paper and electronic copy of the record; and (ii) explain that if a subsequent incident described in subsection (d)(2) occurs, the order shall be vacated and the record shall no longer be sealed; (C) on the date that is 1 year after the date of the order, destroy each paper and electronic copy of the record in the possession of the court unless a subsequent incident described in subsection (d)(2) occurs; and (D) after receiving a written certification from each entity or person under subparagraph (B)(i)(III), notify the petitioner that each entity or person described in subparagraph (A) has destroyed each paper and electronic copy of the record. (3) Reply to inquiries On and after the date that is 1 year after the date on which a court orders the expungement of a juvenile record of a person under this section, in the case of an inquiry relating to the juvenile record, the court, each law enforcement officer, any agency that provided treatment or rehabilitation services to the person, and the person (except as provided in paragraphs (4) through (8)) shall reply to the inquiry that no such juvenile record exists. (4) Civil actions (A) In general On and after the date on which a court orders the expungement of a juvenile record of a person under this section, if the person brings an action against a law enforcement agency that arrested, or participated in the arrest of, the person for the offense to which the record relates, or against the State or political subdivision of a State of which the law enforcement agency is an agency, in which the contents of the record are relevant to the resolution of the issues presented in the action, there shall be a rebuttable presumption that the defendant has a complete defense to the action. (B) Showing by plaintiff In an action described in subparagraph (A), the plaintiff may rebut the presumption of a complete defense by showing that the contents of the expunged record would not prevent the defendant from being held liable. (C) Duty to testify as to existence of record The court in which an action described in subparagraph (A) is filed may require the plaintiff to state under oath whether the plaintiff had a juvenile record and whether the record was expunged. (D) Proof of existence of juvenile record If the plaintiff in an action described in subparagraph (A) denies the existence of a juvenile record, the defendant may prove the existence of the record in any manner compatible with the applicable laws of evidence. (5) Criminal and juvenile proceedings On and after the date that is 1 year after the date on which a court orders the expungement of a juvenile record under this section, a prosecutor or other law enforcement officer may disclose underlying information from the juvenile record, and the person who is the subject of the juvenile record may be required to testify or otherwise disclose information about the record, in a criminal or other proceeding if such disclosure is required by the Constitution of the United States, the constitution of a State, or a Federal or State statute or rule. (6) Background checks On and after the date that is 1 year after the date on which a court orders the expungement of a juvenile record under this section, in the case of a background check for law enforcement employment or for any employment that requires a government security clearance, the person who is the subject of the juvenile record may be required to disclose underlying information from the record. (7) Disclosure to armed forces On and after the date that is 1 year after the date on which a court orders the expungement of a juvenile record under this section, a person, including a law enforcement agency that possessed such a juvenile record, may be required to disclose underlying information from the record 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. (8) Authorization for person to disclose own record A person who is the subject of a juvenile record expunged under this section may choose to disclose the record. (9) Treatment as sealed record during transition period During the 1-year period beginning on the date on which a court orders the expungement of a juvenile record under this section, paragraphs (3) and (4) of section 5044(c) shall apply with respect to the record as if the record had been sealed under that section. (d) Limitation relating to subsequent incidents (1) After filing and before petition granted If, after the date on which a person files an expungement petition with respect to a juvenile offense and before the court determines whether to grant the petition, the person is convicted of a crime, adjudicated delinquent for an act of juvenile delinquency, or engaged in active criminal court proceedings or juvenile delinquency proceedings, the court shall deny the petition. (2) After petition granted If, on or after the date on which a court orders the expungement of a juvenile record of a person under subsection (b), the person is convicted of a crime, adjudicated delinquent for an act of juvenile delinquency, or engaged in active criminal court proceedings or juvenile delinquency proceedings— (A) the court that ordered the expungement shall— (i) vacate the order; and (ii) notify the person who is the subject of the juvenile record, and each entity or person described in subsection (c)(2)(A), that the order has been vacated; and (B) the record— (i) shall not be expunged; or (ii) if the record has been expunged because 1 year has elapsed since the date of the expungement order, shall not be treated as having been expunged. (e) Inclusion of state juvenile delinquency adjudications and proceedings For purposes of subparagraphs (A), (B), and (C)(ix) of subsection (b)(1) and paragraphs (1) and (2) of subsection (d), the term juvenile delinquency . (2) Technical and conforming amendment The table of sections for chapter 403 5044. Sealing. 5045. Expungement. . (3) Applicability Sections 5044 and 5045 of title 18, United States Code, as added by paragraph (1), shall apply with respect to a juvenile nonviolent offense (as defined in section 5031 of such title, as amended by subsection (b)) that is committed or alleged to have been committed before, on, or after the date of enactment of this Act. (e) Rule of construction Nothing in the amendments made by this section shall be construed to authorize the sealing or expungement of a record of a criminal conviction of a juvenile who was proceeded against as an adult in a district court of the United States. 203. Ensuring accuracy of Federal criminal records (a) In general Section 534 of title 28, United States Code, is amended by adding at the end the following: (g) Ensuring accuracy of Federal criminal records (1) Definitions (A) In general In this subsection— (i) the term applicant (ii) the term high-risk, public trust position (iii) the term incomplete (I) indicates that an individual was arrested but does not describe the offense for which the individual was arrested; or (II) indicates that an individual was arrested or criminal proceedings were instituted against an individual but does not include the final disposition of the arrest or of the proceedings if a final disposition has been reached; (iv) the term record (I) an arrest by a Federal law enforcement officer; or (II) a Federal criminal proceeding; (v) the term reporting jurisdiction (vi) the term requesting entity (I) means a person or entity that seeks the exchange of a record for civil purposes that include employment, housing, credit, or any other type of application; and (II) does not include a law enforcement or intelligence agency that seeks the exchange of a record for— (aa) investigative purposes; or (bb) purposes relating to law enforcement employment. (B) Rule of construction The definition of the term requesting entity (2) Incomplete or inaccurate records The Attorney General shall establish and enforce procedures to ensure the prompt release of accurate records exchanged for employment-related purposes through the records system created under this section. (3) Required procedures The procedures established under paragraph (2) shall include the following: (A) Inaccurate record or information If the Attorney General determines that a record is inaccurate, the Attorney General shall promptly correct the record, including by making deletions to the record if appropriate. (B) Incomplete record (i) In general If the Attorney General determines that a record is incomplete or cannot be verified, the Attorney General— (I) shall attempt to complete or verify the record; and (II) if unable to complete or verify the record, may promptly make any changes or deletions to the record. (ii) Lack of disposition of arrest For purposes of this subparagraph, an incomplete record includes a record that indicates there was an arrest and does not include the disposition of the arrest. (iii) Obtaining disposition of arrest If the Attorney General determines that a record is an incomplete record described in clause (ii), the Attorney General shall, not later than 10 days after the date on which the requesting entity requests the exchange and before the exchange is made, obtain the disposition (if any) of the arrest. (C) Notification of reporting jurisdiction The Attorney General shall notify each appropriate reporting jurisdiction of any action taken under subparagraph (A) or (B). (D) Opportunity to review records by applicant In connection with an exchange of a record under this section, the Attorney General shall— (i) notify the applicant that the applicant can obtain a copy of the record as described in clause (ii) if the applicant demonstrates a reasonable basis for the applicant’s review of the record; (ii) provide to the applicant an opportunity, upon request and in accordance with clause (i), to— (I) obtain a copy of the record; and (II) challenge the accuracy and completeness of the record; (iii) promptly notify the requesting entity of any such challenge; (iv) not later than 30 days after the date on which the challenge is made, complete an investigation of the challenge; (v) provide to the applicant the specific findings and results of that investigation; (vi) promptly make any changes or deletions to the records required as a result of the challenge; and (vii) report those changes to the requesting entity. (E) Certain exchanges prohibited (i) In general An exchange shall not include any record— (I) except as provided in clause (ii), about an arrest more than 2 years old as of the date of the request for the exchange, that does not also include a disposition (if any) of that arrest; (II) relating to an adult or juvenile nonserious offense of the sort described in section 20.32(b) of title 28, Code of Federal Regulations, as in effect on July 1, 2009; or (III) to the extent the record is not clearly an arrest or a disposition of an arrest. (ii) Applicants for sensitive positions The prohibition under clause (i)(I) shall not apply in the case of a background check that relates to— (I) law enforcement employment; or (II) any position that a Federal agency designates as a— (aa) national security position; or (bb) high-risk, public trust position. (4) Fees The Attorney General may collect a reasonable fee for an exchange of records for employment-related purposes through the records system created under this section to defray the costs associated with exchanges for those purposes, including any costs associated with the investigation of inaccurate or incomplete records. . (b) Regulations on reasonable procedures Not later than 1 year after the date of enactment of this Act, the Attorney General shall issue regulations to carry out section 534(g) of title 28, United States Code, as added by subsection (a). (c) Report (1) Definition In this subsection, the term record (2) Report required Not later than 2 years after the date of enactment of this Act, the Attorney General shall submit to Congress a report on the implementation of subsection (g) of section 534 of title 28, United States Code, as added by subsection (a), that includes— (A) the number of exchanges of records for employment-related purposes made with entities in each State through the records system created under such section 534; (B) any prolonged failure of a Federal agency to comply with a request by the Attorney General for information about dispositions of arrests; and (C) the numbers of successful and unsuccessful challenges to the accuracy and completeness of records, organized by the Federal agency from which each record originated.

Summary: First Step Implementation Act of 2021 This bill makes various changes related to federal sentencing law and requires the Department of Justice (DOJ) to establish procedures to ensure the prompt release and accuracy of employment-related background check records. The bill allows certain reduced mandatory minimum sentences for drug offenses to be applied retroactively to offenders who committed their offenses on or before December 21, 2018; permits a court, in certain circumstances, to grant safety valve relief (i.e., impose a sentence without regard to the statutory mandatory minimum penalty for certain drug offenses) for an otherwise eligible defendant who does not meet the requirement pertaining to criminal history; permits a court to reduce a sentence imposed on a defendant convicted as an adult for an offense committed as a juvenile if the defendant has served at least 20 years of the sentence; establishes a process to seal and expunge certain records of juvenile nonviolent offenses; and requires DOJ to establish and enforce procedures to ensure that records exchanged for employment-related background checks are promptly released and accurate.