II
114th CONGRESS
2d Session
S. 3441
IN THE SENATE OF THE UNITED STATES
September 28, 2016
Mrs. Gillibrand (for herself and Mr. Portman) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To provide for the vacating of certain convictions and expungement of certain arrests of victims of human trafficking.
Short title
This Act may be cited as the Trafficking Survivors Relief Act of 2016
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Federal expungement for victims of trafficking
In general
Chapter 237 of title 18, United States Code, is amended by adding at the end the following:
Motion to vacate; expungement; mitigating factors
Definitions
In this section—
the term child means an individual who has not attained 18 years of age;
the term covered offense—
means a Federal offense that is not—
a violent crime; or
an offense of which a child was a victim; and
includes—
a conspiracy to commit an offense described in subparagraph (A)(i) of which a child was not a victim; and
a conspiracy to commit an offense described in subparagraph (A)(ii) that is not a violent crime;
the term covered prisoner means an individual who—
was convicted of a noncovered offense before the date of enactment of this section;
was sentenced to a term of imprisonment for the noncovered offense; and
is imprisoned under such term of imprisonment;
the term eligible entity includes—
a legal aid society or legal services organization that provides indigent legal services;
a nonprofit organization that provides legal services to victims of trafficking; and
a public defender's office;
the terms employee and officer have the meanings given the terms in section 2105 of title 5;
the term Federal offense means an offense that is punishable under Federal law or the laws of the District of Columbia;
the term noncovered offense—
means a Federal offense that is a violent crime;
does not include a Federal offense that is a violent crime of which a child was a victim; and
includes a conspiracy to commit an offense described in subparagraph (B);
the term victim of trafficking has the meaning given that term in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102); and
the term violent crime has the meaning given that term in section 103 of the Juvenile Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5603).
Motions To vacate convictions or expunge arrests
In general
Convictions of covered offenses
A person convicted of any covered offense (or an eligible entity representing such a person) may move the court which imposed the sentence for the covered offense to vacate the judgment of conviction if the covered offense was committed as a direct result of the person having been a victim of trafficking.
Arrests for covered offenses
A person arrested for any covered offense (or an eligible entity representing such a person) may move the district court for the district and division embracing the place where the person was arrested to expunge all records of the arrest if the conduct or alleged conduct of the person which resulted in the arrest was directly related to the person having been a victim of trafficking.
Arrests for noncovered offenses
A person arrested for any noncovered offense (or an eligible entity representing such a person) may move the district court for the district and division embracing the place where the person was arrested to expunge all records of the arrest if—
the conduct or alleged conduct of the person which resulted in the arrest was directly related to the person having been a victim of trafficking; and
the person is acquitted of the noncovered offense;
the government does not pursue or dismisses criminal charges against the person for the noncovered offense; or
the charges against the person for the noncovered offense are reduced to an offense that is a covered offense; and
the person is acquitted of the covered offense, the government does not pursue or dismisses criminal charges against the person for the covered offense, or any subsequent conviction of the covered offense is vacated.
Contents of motion
A motion described in paragraph (1) shall—
be in writing;
describe any supporting evidence;
state the offense; and
include copies of any documents showing that the movant is entitled to relief under this section.
Hearing
Mandatory hearing
Motion in opposition
Not later than 30 days after the date on which a motion is filed under paragraph (1), the Government may file a motion in opposition of the motion filed under paragraph (1).
Mandatory hearing
If the Government files a motion described in clause (i), not later than 15 days after the date on which the motion is filed, the court shall hold a hearing on the motion.
Discretionary hearing
If the Government does not file a motion described in subparagraph (A)(i), the court may hold a hearing on the motion not later than 45 days after the date on which a motion is filed under paragraph (1).
Factors
Vacating convictions of covered offenses
The court may grant a motion under paragraph (1)(A) if, after notice to the Government and an opportunity to be heard, the court finds, by clear and convincing evidence, that—
the movant was convicted of a covered offense; and
the participation in the covered offense by the movant was a direct result of the movant having been a victim of trafficking.
Expunging arrests for covered offenses
The court may grant a motion under paragraph (1)(B) if, after notice to the Government and an opportunity to be heard, the court finds, by clear and convincing evidence, that—
the movant was arrested for a covered offense; and
the conduct or alleged conduct which resulted in the arrest was directly related to the movant having been a victim of trafficking.
Expunging arrests for noncovered offenses
The court may grant a motion under paragraph (1)(C) if, after notice to the Government and an opportunity to be heard, the court finds, by clear and convincing evidence, that—
the movant was arrested for a noncovered offense and the conduct or alleged conduct which resulted in the arrest was directly related to the movant having been a victim of trafficking; and
the person is acquitted of the noncovered offense;
the government does not pursue or dismisses criminal charges against the person for the covered offense; or
the charges against the person for the noncovered offense are reduced to a covered offense; and
the person is acquitted of the covered offense, the government does not pursue or dismissed criminal charges against the person for the covered offense, or any subsequent conviction of that covered offense is vacated.
Supporting evidence
Rebuttable presumption
For purposes of this section, there shall be a rebuttable presumption that the movant is a victim of trafficking if the movant includes in the motion—
a copy of an official record, certification, or eligibility letter from a Federal, State, tribal, or local proceeding, including an approval notice or an enforcement certification generated from a Federal immigration proceeding, that shows that the movant was a victim of trafficking, including a victim of a trafficker charged with a violation of chapter 77; or
an affidavit or sworn testimony from a trained professional staff member of a victim services organization, an attorney, a member of the clergy, or a medical or other professional from whom the movant has sought assistance in addressing the trauma associated with being a victim of trafficking.
Other evidence
In general
For purposes of this section, in determining whether the movant is a victim of trafficking, the court may consider any other evidence the court determines is of sufficient credibility and probative value, including an affidavit or sworn testimony of the movant.
Affidavit or sworn testimony of movant sufficient evidence
The affidavit or sworn testimony of the movant described in clause (i) shall be sufficient evidence to vacate a conviction or expunge an arrest under this section if the court determines that—
the affidavit or sworn testimony is credible; and
no other evidence is readily available.
Conviction or arrest of other persons not required
It shall not be necessary that any person other than the movant be convicted of or arrested for a covered offense before the movant may file a motion under paragraph (1).
Denial of motion
In general
If the court denies a motion filed under paragraph (1), the denial shall be without prejudice.
Reasons for denial
If the court denies a motion filed under paragraph (1), the court shall state the reasons for the denial in writing.
Reasonable time to cure deficiencies in motion
If the motion was denied due to a curable deficiency in the motion, the court shall allow the movant sufficient time for the movant to cure the deficiency.
Appeal
An order granting or denying a motion under this section may be appealed in accordance with section 1291 of title 28 and section 3731 of this title.
Vacatur of convictions
In general
If the court grants a motion to vacate a conviction under subsection (b), the court shall immediately vacate the conviction for cause, set aside the verdict and enter a judgment of acquittal, and enter an expungement order that directs that there be expunged from all official records all references to—
the arrest of the person for the covered offense;
the institution of criminal proceedings against the person relating to the covered offense; and
the results of the proceedings.
Effect
If a conviction is vacated under an order entered under paragraph (1)—
the conviction shall not be regarded as a conviction under Federal law and the person for whom the conviction was vacated shall be considered to have the status occupied by the person before the arrest or the institution of the criminal proceedings related to such conviction; and
no alien may be removed, determined to be inadmissible, or lose any immigration benefit because of such conviction, arrest, or institution of criminal proceedings.
Expungement of arrests
In general
If the court grants a motion to expunge an arrest under subsection (b), the court shall immediately enter an expungement order that directs that there be expunged from all official records all references to—
the arrest of the person for the covered offense;
the institution of any criminal proceedings against the person relating to the covered offense; and
the results of the proceedings, if any.
Effect
If an arrest is expunged under an order entered under paragraph (1)—
the arrest shall not be regarded as an arrest under Federal law and the person for whom the arrest is expunged shall be considered to have the status occupied by the person before the arrest or the institution of the criminal proceedings related to such arrest, if any; and
no alien may be removed, determined to be inadmissible, or lose any immigration benefit because of arrest or institution of criminal proceedings, if any.
Mitigating factors
In general
The court which imposed sentence for a noncovered offense upon a covered prisoner may reduce the term of imprisonment for the noncovered offense—
upon motion by a covered prisoner, the Director of the Bureau of Prisons, or the court's own motion;
after notice to the Government;
after considering—
the factors set forth in section 3553(a);
the nature and seriousness of the danger to any person; and
the community, or any crime victims; and
if the court finds, by clear and convincing evidence, that the covered prisoner committed the noncovered offense as a direct result of the covered prisoner having been a victim of trafficking.
Rebuttable presumption
For the purposes of this subsection, there shall be a rebuttable presumption that a covered prisoner is a victim of trafficking if the covered prisoner provides—
a copy of an official record, certification, or eligibility letter from a Federal, State, tribal, or local proceeding, including an approval notice or an enforcement certification generated from a Federal immigration proceeding, that shows that the covered prisoner was a victim of trafficking, including a victim of a trafficker charged with a violation of chapter 77; or
an affidavit or sworn testimony from a trained professional staff member of a victim services organization, an attorney, a member of the clergy, or a medical or other professional from whom the covered prisoner has sought assistance in addressing the trauma associated with being a victim of trafficking.
Requirement
Any proceeding under this subsection shall be subject to section 3771.
Particularized inquiry
For any motion under paragraph (1), the Government shall conduct a particularized inquiry of the facts and circumstances of the original sentencing of the covered prisoner in order to assess whether a reduction in sentence would be consistent with this section.
Additional actions by court
The court may, upon granting a motion under this section take such additional action as the court determines is appropriate.
Confidentiality of movant
In general
A motion under this section and any documents, pleadings, or orders relating to the motion shall be filed under seal.
Information not available for public inspection
No officer or employee may make any report, paper, picture, photograph, court file or other document, in the custody or possession of the officer or employee, that identifies the movant available for public inspection.
Applicability
This section shall apply to any conviction or arrest occurring before, on, or after the date of enactment of this section.
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Technical and conforming amendment
The table of sections of chapter 237 of title 18, United States Code, is amended by adding at the end the following:
3772. Motion to vacate; expungement; mitigating factors.
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