II 116th CONGRESS 2d Session S. 4916 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.

1. Short title This Act may be cited as the Finding Alternatives to Mass Incarceration: Lives Improved by Ending Separation Act of 2020 or the FAMILIES Act . 2. Purpose The purpose of this Act is to divert parents of minor children, expectant parents, and other caregivers from incarceration if those individuals, and society, would be better served by the individuals entering into a comprehensive community supervision program that would provide resources, services, and training to them and their families. 3. FAMILIES diversion program (a) In general Chapter 227 of title 18, United States Code, is amended— (1) in subchapter A— (A) in section 3551— (i) in subsection (b)— (I) in paragraph (2), by striking or at the end; (II) in paragraph (3), by striking the period at the end and inserting ; or ; (III) by inserting after paragraph (3) the following: (4) participation in the FAMILIES Program as authorized by subchapter E. ; and (IV) in the undesignated matter following paragraph (4), as so added— (aa) by striking A sentence and inserting Subject to subsection (d), a sentence ; and (bb) by striking A sanction and inserting Subjection to subsection (d), a sanction ; and (ii) by adding at the end the following: (d) Imposition of fines and sanctions in addition to participation in FAMILIES Program (1) In general If the court sentences an individual to participation in the FAMILIES Program under subchapter E, the court may not impose a sentence to pay a fine, or impose a sanction under section 3554 (relating to criminal forfeiture), 3555 (relating to notice to victims), or 3556 (relating to restitution), unless the court considers the factors under paragraph (2) of this subsection. (2) Considerations Before imposing a sentence to pay a fine, or imposing a sanction under section 3554, 3555, or 3556, on an individual described in paragraph (1) of this subsection, the court shall— (A) weigh the importance of the fine or sanction against— (i) the ability of the individual to afford the fine, forfeiture, cost of giving notice, or restitution, as applicable; and (ii) the impact of the fine or sanction on the ability of the individual to succeed in the FAMILIES Program; and (B) take all necessary steps to ensure that the success of the individual in the FAMILIES Program is not hindered by financial obstacles. (3) No mandatory restitution Notwithstanding section 3663A, an order of restitution under that section with respect to an individual described in paragraph (1) of this subsection shall be at the discretion of the court and shall be subject to the requirements of this subsection. ; and (B) in section 3553— (i) by redesignating subsections (b) through (g) as subsections (c) through (h), respectively; (ii) by inserting after subsection (a) the following: (b) Consideration of diversion to FAMILIES Program (1) Determination Notwithstanding any other provision of this section, other than subsection (c), and notwithstanding any minimum term of imprisonment required to be imposed under any other provision of law, in the case of a defendant who is an eligible individual (as defined in section 3590), the court shall determine, in accordance with paragraph (2), whether the defendant, and society, would be best served by diverting the defendant into the FAMILIES Program under subchapter E instead of sentencing the defendant to a term of probation under subchapter B or a term of imprisonment under subchapter D. (2) Factors (A) In general In making the determination under paragraph (1), the court shall consider, in addition to other factors the court determines relevant— (i) whether the defendant has significant parental responsibilities, including significant expected parental responsibilities in the case of an individual who is pregnant or the spouse or dating partner of such an individual; (ii) whether the defendant has significant caregiving responsibilities with respect to an adult dependent; (iii) whether the defendant poses no apparent risk of harm to any identifiable child with respect to whom the defendant has significant parental responsibilities; (iv) whether the defendant poses no apparent risk of harm to any identifiable adult dependent with respect to whom the defendant has significant caregiving responsibilities; (v) a statement, if available, regarding the impact that a sentence of probation or imprisonment would have on the family of the defendant; (vi) the nature of the offense as it relates to the future rehabilitation of the defendant; (vii) the defendant's ties to the community; (viii) a statement from the victim regarding the impact of the offense on the victim; and (ix) any prior criminal history of the defendant. (B) Rule of construction The court shall not be required to find that each factor described in subparagraph (A) weighs in favor of the participation of the defendant in the FAMILIES Program in order to determine that the defendant, and society, would be best served by diverting the defendant into the FAMILIES Program. (3) Findings of fact At the time of sentencing a defendant who is an eligible individual (as defined in section 3590), the court, in stating in open court the reasons for its imposition of the particular sentence under subsection (c), shall include its determination under paragraph (1) of this subsection as to whether the defendant, and society, would be best served by diverting the defendant into the FAMILIES Program under subchapter E, including findings of fact supporting that determination. ; (iii) in subsection (c), as so redesignated, by striking or (c) and inserting or (d) ; (iv) in subsection (d), as so redesignated, by striking or (b) and inserting or (c) ; and (v) in subsection (e)(3), as so redesignated, by striking subsection (c) and inserting subsection (d) ; and (2) by adding at the end the following: E FAMILIES Program 3590. Definitions In this subchapter— (1) the term child abuse and neglect has the meaning given the term in section 3 of the Child Abuse Prevention and Treatment Act ( 42 U.S.C. 5101 note; Public Law 93–247 ); (2) the term dating partner has the meaning given the term in section 40002(a) of the Violence Against Women Act of 1994 ( 34 U.S.C. 12291(a) ); (3) the term domestic violence has the meaning given the term in section 40002(a) of the Violence Against Women Act of 1994 ( 34 U.S.C. 12291(a) ); (4) the term electronic means includes telephone, teleconference, and videoconference; (5) the term eligible individual means an individual who is— (A) a parent of a minor child; (B) pregnant; (C) a caregiver for a minor child or other minor relative; (D) a caregiver for an individual with disabilities; (E) a caregiver for an elderly family member; or (F) the spouse or dating partner of an individual who is— (i) a parent of a minor child; or (ii) pregnant; (6) the term FAMILIES Program means the program established under section 3590B; (7) the term minor , with respect to an individual, means the individual is under the age of 18; (8) the term Office means the Office of Probation and Pretrial Services of the Administrative Office of the United States Courts; (9) the term participant means an eligible individual who is participating in the FAMILIES Program; (10) the term Secretary means the Secretary of Health and Human Services; and (11) the term trauma-informed decision making means decision making— (A) informed by an organizational structure and treatment framework that involves understanding, recognizing, and responding to the effects of all types of trauma; and (B) in accordance with recognized principles of a trauma-informed approach and trauma-specific interventions to address the consequences of trauma and facilitate healing. 3590A. Sentencing (a) Imposition of sentence If an eligible individual is found guilty of an offense and the court makes an affirmative determination under section 3553(b)(1), the court shall impose a sentence for the offense that includes participation in the FAMILIES Program instead of a term of probation under subchapter B or a term of imprisonment under subchapter D. (b) Consideration of special FAMILIES Program and expungement procedures In imposing a sentence under subsection (a), the court shall consider whether to utilize the procedures under section 3590D in light of the personal history of the defendant and whether a record of the arrest, criminal proceedings, or conviction for the offense and the associated collateral consequences would harm the defendant and the ability of the defendant to perform caregiving duties. (c) Identifying programs and services (1) In general In imposing a sentence under subsection (a), the court, in collaboration with the Office and the Secretary, shall identify the programs and services that the defendant shall be required to complete in order to successfully complete the FAMILIES Program. (2) User fees and other costs (A) In general In identifying the programs and services that a defendant shall be required to complete under the Families Program, the court may not impose on the defendant any user fee or other cost relating to those programs and services unless the court considers the factors under subparagraph (B). (B) Considerations Before imposing any user fee or other cost relating to programs and services under the Families Program on a defendant, the court shall— (i) weigh the importance of the fee or other cost against— (I) the ability of the defendant to afford the fee or other cost; and (II) the impact of the fee or other cost on the ability of the defendant to succeed in the FAMILIES Program; and (ii) take all necessary steps to ensure that the success of the defendant in the FAMILIES Program is not hindered by financial obstacles. (d) Training for judges The Secretary, in collaboration with the Attorney General and the United States Sentencing Commission, shall develop training for judges of the district courts on how to implement the FAMILIES Program, which shall include training on— (1) trauma-informed decision making; (2) child development, family dynamics, and the effects of parental separation; (3) domestic violence; (4) child abuse and neglect; (5) substance abuse and addiction; (6) mental health; (7) cultural competence; and (8) examining bias. 3590B. FAMILIES Program (a) Establishment The Office, in cooperation with the Director of the Administrative Office of the United States Courts, the Attorney General, the Secretary, and the Chief of the Defender Services Office of the Administrative Office of the United States Courts, shall establish and operate the FAMILIES Program for purposes of this subchapter. (b) Contents The FAMILIES Program shall include— (1) education programs, including— (A) general educational development (commonly known as GED ) programs; and (B) postsecondary education programs, including enrollment in community college coursework; (2) employment counseling and job-seeking activities; (3) subsidized jobs programs; (4) in-home parenting and skill-based programs; (5) substance abuse and mental health treatment programs, including medication-assisted treatment programs that make available not less than 2 drugs that have been approved under the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 301 et seq.) or section 351 of the Public Health Service Act ( 42 U.S.C. 262 ) for the treatment of an opioid use disorder; and (6) two-generation model programs that address needs of both the parent and the child. (c) Collaboration with State and local governments The Office, the Director of the Administrative Office of the United States Courts, the Attorney General, and the Secretary shall collaborate with State and local governmental agencies and nonprofit organizations to offer comprehensive community supervision programs and services to a participant under the FAMILIES Program in areas close to the place of residence of the participant. (d) Connection to services The court that sentences an eligible individual to participate in the FAMILIES Program, to the extent practicable, shall connect the eligible individual to services and programs that will meet the basic needs of the individual and the family of the individual, as appropriate, including— (1) health care services, including assistance with enrollment in health insurance; (2) housing assistance; (3) services to help the individual enroll in— (A) the special supplemental nutrition program for women, infants, and children established by section 17 of the Child Nutrition Act of 1966 ( 42 U.S.C. 1786 ) (commonly known as the WIC Program ); (B) the supplemental nutrition assistance program under the Food and Nutrition Act of 2008 ( 7 U.S.C. 2011 et seq.) (commonly known as the SNAP Program ); (C) the program of block grants for States for temporary assistance for needy families established under part A of title IV of the Social Security Act ( 42 U.S.C. 601 et seq.) (commonly known as the TANF Program ); (D) disability insurance benefits under title II of the Social Security Act ( 42 U.S.C. 401 et seq.), or other benefits payable under such title on the basis of a disability; and (E) supplemental security income benefits under title XVI of the Social Security Act ( 42 U.S.C. 1381 et seq.); (4) evidence-based substance use disorder treatment, including medication-assisted treatment described in subsection (b)(5), and harm reduction services; and (5) any other service or program that the court determines necessary to meet the basic needs of the individual and the family of the individual, including family therapy or counseling services. (e) Operation during emergencies (1) In general To the extent practicable, during a period of a national or State public health emergency, including the COVID–19 pandemic, the FAMILIES Program may be conducted solely by electronic means. (2) Inability to participate During a period described in paragraph (1), if an element of the FAMILIES Program is not available by electronic means— (A) a participant shall not be penalized for being unable to participate in the unavailable element; and (B) the Office may offer a participant described in subparagraph (A) the opportunity to participate in other elements of the FAMILIES Program that can be conducted solely by electronic means. 3590C. Continuation or revocation of participation (a) In general If the defendant violates a condition of participation in the FAMILIES Program at any time prior to completion of the program, the court may, after conducting a hearing, considering the factors set forth in section 3553(a) to the extent that they are applicable, and considering whether the programmatic requirements of the sentence need to be modified in order for the defendant to be successful— (1) continue the participation of the defendant in the FAMILIES Program, with or without extending the term or modifying or enlarging the conditions; or (2) revoke the sentence and resentence the defendant under subchapter A. (b) Right to counsel (1) In general At a hearing conducted under subsection (a), the defendant shall have the right to be represented by counsel. (2) Court-provided counsel (A) In general If the defendant is financially unable to obtain representation by counsel for the hearing under subsection (a), the court shall appoint counsel to represent the defendant in the hearing. (B) Appointment; compensation Appointment and compensation of counsel under subparagraph (A) shall be in accordance with section 3006A. (c) Substance use disorder relapse If a defendant participating in the FAMILIES Program who is recovering from a substance use disorder suffers a relapse, the court— (1) shall notify each service provider that is working with the defendant under the FAMILIES Program; and (2) may not revoke the sentence of the defendant or otherwise penalize the defendant under subsection (a) solely because of the relapse. 3590D. Pre-judgment sentence and expungement procedures (a) Pre-Judgment sentence (1) In general If an eligible individual is found guilty of an offense and the court makes an affirmative determination under sections 3553(b)(1) and 3590A(b), the court may, with the consent of the individual, sentence the individual to participation in the FAMILIES Program for a term to be determined by the court without entering a judgment of conviction. (2) Early discharge At any time before the expiration of the term of the sentence under paragraph (1), if the individual has not violated a condition of participation in the FAMILIES Program, the court may, without entering a judgment of conviction, dismiss the proceedings against the individual and discharge the individual from the FAMILIES Program. (3) Timely discharge At the expiration of the term of the sentence under paragraph (1), if the individual has not violated a condition of participation in the FAMILIES Program, the court shall, without entering a judgment of conviction, dismiss the proceedings against the individual and discharge the individual from the FAMILIES Program. (4) Revocation If the individual violates a condition of participation in the FAMILIES Program, the court shall proceed in accordance with the provisions of section 3590C. (b) Collateral consequences A disposition under subsection (a), or a conviction that is the subject of an expungement order under subsection (c), shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose. (c) Expungement of record of disposition (1) In general If the case against an individual is the subject of a disposition under subsection (a), and the individual was less than 21 years old at the time of the offense, the court shall enter an expungement order upon dismissing the proceedings against the individual and discharging the individual from the FAMILIES Program. (2) Contents of order An expungement order entered under paragraph (1) shall direct that there be expunged from all official records all references to the arrest of the individual for the offense, the institution of criminal proceedings against the individual, and the results thereof. (3) Effect The effect of an expungement order entered under paragraph (1) shall be to restore the individual, in the contemplation of the law, to the status the individual occupied before the arrest or institution of criminal proceedings. (4) Protection from perjury laws An individual concerning whom an expungement order has been entered under paragraph (1) shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of the failure of the individual to recite or acknowledge the arrests or institution of criminal proceedings for the offense, or the results thereof, in response to an inquiry made of the individual for any purpose. . (b) Technical and conforming amendments Chapter 227 of title 18, United States Code, is amended— (1) by striking the matter between the chapter heading and the heading for subchapter A and inserting the following: SUBCHAPTER A—General provisions Sec. 3551. Authorized sentences. 3552. Presentence reports. 3553. Imposition of a sentence. 3554. Order of criminal forfeiture. 3555. Order of notice to victims. 3556. Order of restitution. 3557. Review of a sentence. 3558. Implementation of a sentence. 3559. Sentencing classification of offenses. SUBCHAPTER B—Probation 3561. Sentence of probation. 3562. Imposition of a sentence of probation. 3563. Conditions of probation. 3564. Running of a term of probation. 3565. Revocation of probation. 3566. Implementation of a sentence of probation. SUBCHAPTER C—Fines 3571. Sentence of fine. 3572. Imposition of a sentence of fine and related matters. 3573. Petition of the government for modification or remission. 3574. Implementation of a sentence of fine. SUBCHAPTER D—Imprisonment 3581. Sentence of imprisonment. 3582. Imposition of a sentence of imprisonment. 3583. Inclusion of a term of supervised release after imprisonment. 3584. Multiple sentences of imprisonment. 3585. Calculation of a term of imprisonment. 3586. Implementation of a sentence of imprisonment. SUBCHAPTER E—FAMILIES Program 3590. Definitions. 3590A. Sentencing. 3590B. FAMILIES Program. 3590C. Continuation or revocation of participation. 3590D. Pre-judgment sentence and expungement procedures. . (2) by striking the matter between section 3559 and the heading for subchapter B; (3) by striking the matter between section 3566 and the heading for subchapter C; and (4) by striking the matter between section 3574 and the heading for subchapter D. (c) State grant program (1) Definition In this subsection, the term Attorney General means the Attorney General, acting through the Director of the Bureau of Justice Assistance. (2) Authority The Attorney General shall make grants to States to replicate, on a larger scale, successful State parenting sentencing alternatives (commonly known as PSA ) programs that have the potential to keep parents out of prison. (3) Appropriation There is appropriated, out of amounts in the Treasury not otherwise appropriated, for fiscal year 2020, to remain available until expended, $20,000,000 to the Attorney General to carry out paragraph (2). (d) Studies (1) Office of Planning, Research and Evaluation study (A) In general Not later than 2 years after the date of enactment of this Act, the Office of Planning, Research and Evaluation of the Department of Health and Human Services, in collaboration with the National Institute of Justice, shall study and publish a report on the effects of incarceration on children of incarcerated parents. (B) Appropriation Out of amounts in the Treasury not otherwise appropriated, there is appropriated to the Office of Planning, Research and Evaluation of the Department of Health and Human Services to carry out the study under subparagraph (A), $1,000,000 for fiscal year 2021, to remain available until expended. (2) GAO study Not later than 2 years after the date of enactment of this Act, the Comptroller General of the United States shall examine the implementation of the FAMILIES Program under subchapter E of chapter 227 of title 18, United States Code (as added by subsection (a)), focusing on demographic data and profiles of program participants in order to— (A) determine— (i) who is receiving the benefits of the program; (ii) that program services are equitably available to all eligible individuals; and (iii) how program services can be better directed to eligible individuals who would otherwise be sentenced to a term of probation or a term of imprisonment; and (B) examine access to the FAMILIES Program for Black, Latinx or Hispanic, Native American, Asian American, and Pacific Islander communities. (e) Appropriations (1) Implementation Out of amounts in the Treasury not otherwise appropriated, there is appropriated to the Office of Probation and Pretrial Services of the Administrative Office of the United States Courts to carry out the FAMILIES Program established under section 3590B of title 18, United States Code, as added by subsection (a) of this section, $100,000,000 for fiscal year 2021, to remain available until expended. (2) Training Out of amounts in the Treasury not otherwise appropriated, there is appropriated to the Secretary of Health and Human Services to develop training for judges under section 3590A(d) of title 18, United States Code, as added by subsection (a) of this section, $5,000,000 for fiscal year 2021, to remain available until expended.