II 116th CONGRESS 1st Session S. 423 IN THE SENATE OF THE UNITED STATES February 7, 2019 Mr. Manchin introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide for the sealing of records relating to Federal nonviolent criminal offenses related to substance use disorders, and for other purposes.

1. Short title This Act may be cited as the Clean Start Act . 2. Sealing of criminal records (a) In general Chapter 229 of title 18, United States Code, is amended by adding at the end the following: E Sealing of criminal records Sec. 3641. Definitions. 3642. Sealing petition. 3643. Effect of sealing order. 3641. Definitions In this subchapter— (1) the term covered nonviolent offense means a Federal criminal offense that is not— (A) a crime of violence (as that term is defined in section 16); (B) a sex offense (as that term is defined in section 111 of the Sex Offender Registration and Notification Act ( 42 U.S.C. 16911 )); (C) an offense involving a victim under the age of 18 years; or (D) a serious drug offense (as that term is defined in section 3559(c)(2)); (2) the term covered treatment program means a substance use disorder treatment program or recovery support program that is licensed, certified, or accredited by a State or national accreditation body, including peer-driven and sober-living programs; (3) the term eligible individual means an individual who— (A) has been arrested for or convicted of a qualifying offense; (B) in the case of a conviction described in subparagraph (A)— (i) has fulfilled each requirement of the sentence for the qualifying offense, including— (I) completing each term of imprisonment, probation, or supervised release; and (II) satisfying each condition of imprisonment, probation, or supervised release; (ii) has satisfactorily completed a covered treatment program; and (iii) has rendered service for a period of not less than 180 days— (I) as a peer mentor in a substance use disorder peer mentorship program; or (II) if service described in subclause (I) is not practicable, as a volunteer; (C) has not been convicted of more than 2 felonies that are covered nonviolent offenses, including any such convictions that have been sealed; and (D) has not been convicted of any felony that is not a covered nonviolent offense; (4) the term petitioner means an individual who files a sealing petition; (5) the term protected information , with respect to a qualifying offense, means any reference to— (A) an arrest, conviction, or sentence of an individual for the offense; (B) the institution of criminal proceedings against an individual for the offense; or (C) the result of criminal proceedings described in subparagraph (B); (6) the term qualifying offense means— (A) a covered nonviolent offense committed by an individual whose substance use disorder is a substantial contributing factor in the commission of the offense, as determined by a court reviewing a sealing petition with respect to the offense under section 3642(b)(3)(A)(i); or (B) in the case of an arrest for an offense that does not result in a conviction, a covered nonviolent offense with respect to which the act that would have constituted the offense is committed by an individual whose substance use disorder is a substantial contributing factor in the commission of the act, as determined by a court reviewing a sealing petition with respect to the offense under section 3642(b)(3)(A)(i); (7) the term seal — (A) means— (i) to close a record from public viewing so that the record cannot be examined except by court order; and (ii) to physically seal the record shut and label the record SEALED or, in the case of an electronic record, the substantive equivalent; and (B) has the effect described in section 3643, including— (i) the right to treat the offense to which a sealed record relates, and any arrest, criminal proceeding, conviction, or sentence relating to the offense, as if it never occurred; and (ii) protection from civil and criminal perjury, false swearing, and false statement laws with respect to a sealed record; (8) the term sealing hearing means a hearing held under section 3642(b)(2); (9) the term sealing petition means a petition for a sealing order filed under section 3642(a); and (10) the term substance use disorder peer mentorship program means a peer mentorship program at a covered treatment program. 3642. Sealing petition (a) Right To file sealing petition (1) Date of eligibility (A) Convicted individuals (i) In general On and after the date that is 3 years after the applicable date under clause (ii), an eligible individual who was convicted of a qualifying offense and has not been arrested for or convicted of a substance use-related offense since that applicable date may file a petition for a sealing order with respect to the qualifying offense in a district court of the United States. (ii) Applicable date The applicable date— (I) for an eligible individual who was convicted of a qualifying offense and sentenced to a term of imprisonment, probation, or supervised release is the date on which the eligible individual has fulfilled each requirement under section 3641(3)(B)(i); and (II) for an eligible individual who was convicted of a qualifying offense and not sentenced to a term of imprisonment, probation, or supervised release is the date on which the case relating to the qualifying offense is disposed of. (iii) Violation of 3-year good behavior requirement (I) In general An eligible individual who is prohibited from filing a petition for a sealing order with respect to a qualifying offense under clause (i) because the individual is arrested for or convicted of a substance use-related offense on or after the applicable date under clause (ii) may file such a petition on or after the date as of which not less than 3 years have elapsed since the last such arrest or conviction. (II) Rule of construction Nothing in subclause (I) shall be construed to allow an eligible individual to file more than 1 petition for a sealing order with respect to a particular qualifying offense. (B) Individuals not convicted An eligible individual who is arrested for but not convicted of a qualifying offense may file a petition for a sealing order with respect to the qualifying offense in a district court of the United States on and after the date on which the case relating to the offense is disposed of. (2) Notice of opportunity to file petition (A) Convicted individuals (i) In general If an individual is convicted of a covered nonviolent offense and will potentially be eligible to file a sealing petition with respect to the offense upon fulfilling each requirement under section 3641(3)(B), the court in which the individual is convicted shall, in writing, inform the individual, on each date described in clause (ii) of this subparagraph, of— (I) that potential eligibility; (II) the necessary procedures for filing the sealing petition; and (III) the benefits of sealing a record, including protection from civil and criminal perjury, false swearing, and false statement laws with respect to the record. (ii) Dates The dates described in this clause are— (I) the date on which the individual is convicted; and (II) the date on which the individual has fulfilled each requirement under section 3641(3)(B)(i). (B) Individuals not convicted (i) Arrest only If an individual is arrested for a covered nonviolent offense, criminal proceedings are not instituted against the individual for the offense, and the individual is potentially eligible to file a sealing petition with respect to the offense, on the date on which the case relating to the offense is disposed of, the arresting authority shall, in writing, inform the individual of— (I) that potential eligibility; (II) the necessary procedures for filing the sealing petition; and (III) the benefits of sealing a record, including protection from civil and criminal perjury, false swearing, and false statement laws with respect to the record. (ii) Court proceedings If an individual is arrested for a covered nonviolent offense, criminal proceedings are instituted against the individual for the offense, the individual is not convicted of the offense, and the individual is potentially eligible to file a sealing petition with respect to the offense, on the date on which the case relating to the offense is disposed of, the court in which the criminal proceedings take place shall, in writing, inform the individual of— (I) that potential eligibility; (II) the necessary procedures for filing the sealing petition; and (III) the benefits of sealing a record, including protection from civil and criminal perjury, false swearing, and false statement laws with respect to the record. (b) Procedures (1) Notification to prosecutor and other individuals If an individual files a petition under subsection (a) with respect to a qualifying offense, the district court in which the petition is filed shall provide notice of the petition— (A) to the office of the United States attorney that prosecuted or would have prosecuted the petitioner for the offense; and (B) upon the request of the petitioner, to any other individual that the petitioner determines may testify as to the— (i) conduct of the petitioner since the date of the offense or arrest; or (ii) reasons that the sealing order should be entered. (2) Hearing (A) In general Not later than 180 days after the date on which an individual files a sealing petition, the district court shall— (i) except as provided in subparagraph (D), conduct a hearing in accordance with subparagraph (B); and (ii) determine whether to enter a sealing order for the individual in accordance with paragraph (3). (B) Opportunity to testify and offer evidence (i) Petitioner The petitioner may testify or offer evidence at the sealing hearing in support of sealing, including evidence of ongoing sobriety. (ii) Prosecutor The office of a United States attorney that receives notice under paragraph (1)(A) may send a representative to testify or offer evidence at the sealing hearing in support of or against sealing. (iii) Other individuals An individual who receives notice under paragraph (1)(B) may testify or offer evidence at the sealing hearing as to the issues described in clauses (i) and (ii) of that paragraph. (C) Magistrate judges A magistrate judge may preside over a hearing under this paragraph. (D) Waiver of hearing If the petitioner and the United States attorney that receives notice under paragraph (1)(A) so agree, the court shall make a determination under paragraph (3) without a hearing. (3) Basis for decision (A) In general In determining whether to enter a sealing order with respect to protected information relating to a covered nonviolent offense, the court shall— (i) determine whether the offense is a qualifying offense based on evidence that the petitioner suffered from an active substance use disorder at the time of the commission of the offense; (ii) consider— (I) the petition and any documents in the possession of the court; and (II) all the evidence and testimony presented at the sealing hearing, if such a hearing is conducted; and (iii) balance— (I) (aa) the interest of public knowledge and safety; and (bb) the legitimate interest, if any, of the Government in maintaining the accessibility of the protected information, including any potential impact of sealing the protected information on Federal licensure, permit, or employment restrictions, against (II) (aa) the conduct and demonstrated desire of the petitioner to be rehabilitated and positively contribute to the community; and (bb) the interest of the petitioner in having the protected information sealed, including the harm of the protected information to the ability of the petitioner to secure and maintain employment. (B) Burden on Government The burden shall be on the Government to show that the interests under subclause (I) of subparagraph (A)(iii) outweigh the interests of the petitioner under subclause (II) of that subparagraph. (C) Reasoning The court shall provide the petitioner and the Government with a written decision explaining the reasons for the determination made under subparagraph (A). (4) Appeal A denial of a sealing petition by a district court under this section shall be subject to review by a court of appeals in accordance with section 1291 of title 28. (5) Universal form The Director of the Administrative Office of the United States Courts shall create a universal form, available over the internet and in paper form, that an individual may use to file a sealing petition. (6) Fee waiver The Director of the Administrative Office of the United States Courts shall by regulation establish a minimally burdensome process under which indigent petitioners may obtain a waiver of any fee for filing a sealing petition. (7) Reporting Not later than 2 years after the date of enactment of this subchapter, and each year thereafter, each district court of the United States shall publish and submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that— (A) describes— (i) the number of sealing petitions granted and denied under this section; (ii) the number of instances in which the office of a United States attorney supported or opposed a sealing petition; and (iii) the number and amount of fees assessed and waived under this section; (B) includes any supporting data that— (i) the court determines relevant; and (ii) does not name any petitioner; and (C) disaggregates all relevant data by race, ethnicity, gender, and the nature of the offense. (8) Public defender eligibility (A) In general The district court may, in its discretion, appoint counsel in accordance with the plan of the district court in operation under section 3006A to represent a petitioner for purposes of this section. (B) Considerations In making a determination whether to appoint counsel under subparagraph (A), the court shall consider— (i) the anticipated complexity of the sealing hearing, including the number and type of witnesses called to advocate against the sealing of the protected information of the petitioner; and (ii) the potential for adverse testimony by a victim or a representative of the office of the United States attorney. 3643. Effect of sealing order (a) In general Except as provided in this section, if a district court of the United States enters a sealing order with respect to a qualifying offense, the offense and any arrest, criminal proceeding, conviction, or sentence relating to the offense shall be treated as if it never occurred. (b) Verification of sealing If a district court of the United States enters a sealing order with respect to a qualifying offense, the court shall— (1) send a copy of the sealing order to each entity or person known to the court that possesses a record containing protected information that relates to the offense, including each— (A) law enforcement agency; and (B) public or private correctional or detention facility; (2) in the sealing order, require each entity or person described in paragraph (1) to— (A) seal the record in accordance with this section; and (B) submit a written certification to the court, under penalty of perjury, that the entity or person has sealed each paper and electronic copy of the record; (3) seal each paper and electronic copy of the record in the possession of the court; and (4) after receiving a written certification from each entity or person under paragraph (2)(B), notify the petitioner that each entity or person described in paragraph (1) has sealed each paper and electronic copy of the record. (c) Protection from perjury laws Except as provided in subsection (f)(3)(A), a petitioner with respect to whom a sealing order has been entered for a qualifying offense shall not be subject to prosecution under any civil or criminal provision of Federal or State law relating to perjury, false swearing, or making a false statement, including section 1001, 1621, 1622, or 1623, for failing to recite or acknowledge any protected information with respect to the offense or respond to any inquiry made of the petitioner, relating to the protected information, for any purpose. (d) Attorney General nonpublic records The Attorney General— (1) shall maintain a nonpublic record of all protected information that has been sealed under this subchapter; and (2) may access or utilize protected information only— (A) for legitimate investigative purposes; (B) in defense of any civil suit arising out of the facts of the arrest or subsequent proceedings; or (C) if the Attorney General determines that disclosure is necessary to serve the interests of justice, public safety, or national security. (e) Law enforcement access A Federal or State law enforcement agency may access a record that is sealed under this subchapter solely— (1) to determine whether the individual to whom the record relates is eligible for a first-time-offender diversion program; (2) for investigatory, prosecutorial, or Federal supervision purposes; or (3) for a background check that relates to law enforcement employment or any employment that requires a government security clearance. (f) Prohibition on disclosure (1) Prohibition Except as provided in paragraph (3), it shall be unlawful to intentionally make or attempt to make an unauthorized disclosure of any protected information from a record that has been sealed under this subchapter. (2) Penalty Any person who violates paragraph (1) shall be fined under this title, imprisoned for not more than 1 year, or both. (3) Exceptions (A) Background checks An individual who is the subject of a record sealed under this subchapter shall, and a Federal or State law enforcement agency that possesses such a record may, disclose the record in the case of a background check for— (i) law enforcement employment; or (ii) any position that a Federal agency designates as a— (I) national security position; or (II) high-risk, public trust position. (B) Disclosure to Armed Forces A person may disclose protected information from a record sealed under this subchapter to the Secretaries of the military departments (or the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy) for the purpose of vetting an enlistment or commission, or with regard to any member of the Armed Forces. (C) Criminal and juvenile proceedings A prosecutor may disclose protected information from a record sealed under this subchapter if the information pertains to a potential witness in a Federal or State— (i) criminal proceeding; or (ii) juvenile delinquency proceeding. (D) Authorization for individual to disclose own record An individual who is the subject of a record sealed under this subchapter may choose to disclose the record. . (b) Applicability The right to file a sealing petition under section 3642(a) of title 18, United States Code, as added by subsection (a), shall apply with respect to a qualifying offense (as defined in section 3641(a) of such title) that is committed or alleged to have been committed before, on, or after the date of enactment of this Act. (c) Transition period for hearings deadline During the 1-year period beginning on the date of enactment of this Act, section 3642(b)(2)(A) of title 18, United States Code, as added by subsection (a), shall be applied by substituting 1 year for 180 days . (d) Technical and conforming amendment The table of subchapters for chapter 229 of title 18, United States Code, is amended by adding at the end the following: E. Sealing of Criminal Records 3641 . 3. State incentives (a) COPS grants priority Section 1701 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 ( 34 U.S.C. 10381 ) is amended— (1) in subsection (c)— (A) in paragraph (2), by striking or at the end; (B) in paragraph (3), by striking the period at the end and inserting ; or ; and (C) by adding at the end the following: (4) subject to subsection (n), from an applicant in a State that has in effect— (A) a law relating to the sealing of adult records that is substantially similar to, or more generous to the former offender than, the amendments made by section 2 of the Clean Start Act ; or (B) a law that allows an individual who has successfully sealed a criminal record to be free from civil and criminal perjury laws. ; and (2) by adding at the end the following: (n) Degree of priority relating to sealing laws commensurate with degree of compliance If the Attorney General, in awarding grants under this part, gives preferential consideration to any application as authorized under subsection (c)(4), the Attorney General shall base the degree of preferential consideration given to an application from an applicant in a particular State on the number of subparagraphs under subsection (c)(4) that the State has satisfied, relative to the number of such subparagraphs that each other State has satisfied. . (b) Attorney General guidelines and technical assistance The Attorney General shall issue guidelines and provide technical assistance to assist States in complying with the incentive under section 1701(c)(4) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 ( 34 U.S.C. 10381(c)(4) ), as added by subsection (a).