[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8917 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 8917
To amend Federal law to create an expungement mechanism and a process
to petition for expungement for low-level violations of the Controlled
Substances Act as it relates to marijuana, to study the impact of
expungements issued, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 2, 2024
Mr. Carter of Louisiana (for himself and Mr. Armstrong) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend Federal law to create an expungement mechanism and a process
to petition for expungement for low-level violations of the Controlled
Substances Act as it relates to marijuana, to study the impact of
expungements issued, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Marijuana Misdemeanor Expungement
Act''.
SEC. 2. DEFINITIONS.
(a) Definitions.--As used in this section:
(1) Criminal justice agency.--The term ``criminal justice
agency'' means--
(A) a Federal or State court;
(B) a governmental agency or any subunit thereof
that--
(i) performs the administration of criminal
justice pursuant to a statute or Executive
order, and allocates a substantial part of its
annual budget to the administration of criminal
justice;
(ii) is designated by Congress, the
President, the Attorney General of the United
States, the Federal Bureau of Investigation, or
other appropriate Federal official, to perform
centralized recordkeeping functions for
official records, including the collection,
storage, maintenance, updating, and
dissemination of such records and responding to
requests for information in or about such
records; or
(iii) is designated by the Governor or
other appropriate executive official or the
legislature of a State to perform centralized
recordkeeping functions for official records,
including the collection, storage, maintenance,
updating, and dissemination of such records and
responding to requests for information in or
about such records; and
(C) a Federal or State inspector general in his or
her review of other criminal justice agencies.
(2) Official record.--
(A) The term ``official record'' means any
documentation or other information on an individual, in
electronic or physical form, consisting of identifiable
descriptions or notations by criminal justice agencies
about that individual, regarding--
(i) detection activities, investigations
(including police questioning and searches and
seizures), and arrests conducted by criminal
justice agencies, as well as their decisions
not to refer cases for legal proceedings;
(ii) institution of legal proceedings by
indictment, complaint, information, other
formal criminal charge, summons or citation,
and notice of civil penalty; and
(iii) legal results or consequences of
clauses (i) and (ii), including court-ordered
detention, pretrial and post-trial release,
diversion, non-prosecution or deferred
prosecution, deferred adjudication, pleas
(e.g., not-guilty pleas, guilty pleas, and nolo
contendere), nolle prosequi, competence
findings, dismissal, acquittal, conviction,
mistrial, juvenile adjudication, sentencing,
correctional supervision, rehabilitation,
probation, parole, release, and civil penalty.
(B) The term does not include identification
information, such as fingerprint records, if such
information does not indicate involvement of the
individual with an ``expungable event'' as defined by
subsection (a)(8).
(3) Expunge.--The term ``expunge'' means to remove an
official record and any references to such record in another
official record (including an official index or list) or in
other public records, except for publicly available court
opinions and legal briefs.
(4) Seal.--The term ``seal'' means to store securely any
expunged records possessed by the court issuing the expungement
order to prevent access to such records except pursuant to
subsection (e) or by further order of the court.
(5) Sequester.--The term ``sequester'' means to retain an
unaltered nonpublic copy of an official record and any other
record or index subject to an expungement order, and to store
such records in a separate, secure area to prevent access to
those records except pursuant to subsection (e) or by further
order of the court issuing the expungement order.
(6) Redact.--The term ``redact'' means to remove or obscure
from an official record any references to an expunged record,
including, as necessary and consistent with subsection
(a)(2)(B), any identifying information.
(7) Marijuana.--The term ``marijuana'' means the substance
defined as ``marihuana'' in 21 U.S.C. 802(16) and also defined
or referred to as ``marijuana'' (e.g., 18 U.S.C. 1791(d)(1)(B),
21 U.S.C. 863(d)) and ``tetrahydrocannabinols'' (e.g., 21
U.S.C. 812(c)).
(8) Expungable event.--
(A) The term ``expungable event'' means an arrest,
the initiation of legal proceedings, and any legal
results or consequences, as defined by subsection
(a)(2)(A)(i)-(iii), for violating, attempting to
violate, or conspiring to violate the following, as
well as sentencing (including probation) and imposition
of civil penalty pursuant to the following:
(i) 21 U.S.C. 841(b)(4).
(ii) 21 U.S.C. 842(c)(2), where the
controlled substance was marijuana.
(iii) 21 U.S.C. 844(a), where the
controlled substance was marijuana.
(iv) 21 U.S.C. 844a, where the controlled
substance was marijuana.
(v) 18 U.S.C. 13, where the underlying act
or omission involves marijuana, including
marijuana-related drug paraphernalia (as
defined by 21 U.S.C. 863), and results in a
Federal misdemeanor or civil penalty.
(vi) 18 U.S.C. 3607, where the controlled
substance was marijuana.
(vii) Any other Federal misdemeanor, petty
offense, infraction, or civil penalty involving
marijuana, including marijuana-related drug
paraphernalia, in which the conduct
constituting the offense did not involve the
use, attempted use, or threatened use of
physical force against the person or property
of another.
(B) To be considered an expungable event for
purposes of subsections (b) and (c)--
(i) at least one year must have passed
since the date of the arrest or since the last
docket entry in the case (except for technical
or unrelated entries and other minor issues, as
determined by the court), whichever is latest;
and
(ii) the court must not have been informed
by the Attorney General of the United States,
the United States Attorney for the relevant
district, the Federal Bureau of Investigation,
or another Federal criminal justice agency,
that the case is ongoing or the individual has
evaded prosecution.
SEC. 3. COURT REVIEW FOR EXPUNGEMENT.
(a) Procedures.--Not later than 1 year after the date of the
enactment of this section, the Chief Justice of the United States shall
promulgate procedures or practices for the review, expungement,
sealing, sequester, and redaction of official records pursuant to and
consistent with this section, and to facilitate the study of such
records pursuant to subsection (e). In determining such procedures or
practices, the Chief Justice of the United States and his or her
designees--which, at the discretion of the Chief Justice, may include
the Administrative Office of the United States Courts, the Federal
Judicial Center, and the Judicial Conference of the United States--may
consult with relevant entities, including the Attorney General of the
United States and his or her designees (including Federal Bureau of
Prisons and any agency, as defined by 18 U.S.C. 6, within the United
States Department of Justice), representatives of the United States
Sentencing Commission, representatives of the Federal Defenders
Organizations, nonpartisan scholars and subject-matter experts, and,
for purposes of subsection (e), the Comptroller General of the United
States and his or her designees.
(b) Review.--Not later than 2 years after the date of the enactment
of this section, each Federal district shall conduct a comprehensive
review and issue an order expunging, sealing, and sequestering--
(1) each official record for an expungable event; and
(2) other official record(s) related to or referencing an
expungable event, unless such other official record is for or
related to a felony or a misdemeanor unrelated to marijuana, in
which case the court shall redact from such other official
record any reference to the expunged official record, and seal
or order the sequester of an unaltered nonpublic copy of such
other official record.
(c) Notification of Expungement.--
(1) Government.--Not later than 7 days after issuing an
expungement order, to notify affected criminal justice agencies
and to facilitate the timely update of relevant records, the
court shall send a copy of the final order to--
(A) the Attorney General of the United States, the
United States Attorney for that district, and the
relevant criminal justice agency (as defined by
subsection (a)(1)(B)(ii)); and
(B) the relevant criminal justice agency (as
defined by subsection (a)(1)(B)(iii)) that serves the
jurisdiction in which the expungable event occurred or,
if no such agency exists, the chief law enforcement
officer of the State in which the expungable event
occurred.
(2) Individuals.--
(A) Pursuant to procedures or practices established
under subsection (b)(1)--
(i) notification about the expungement of
official record(s) and the effect of such
expungement shall be provided to individuals
whose arrest, legal proceedings, and any legal
results or consequences, as defined by
subsection (a)(2)(A)(i)-(iii), have been
expunged; and/or
(ii) a reasonable process shall be
available so that such individuals may inquire
as to whether an arrest, legal proceedings, and
any legal results or consequences have been
expunged and, if so, the effect of such
expungement.
(B) Upon motion or written request of an individual
whose arrest, legal proceedings, and any legal results
or consequences, as defined by subsection (a)(2)(A)(i)-
(iii), have been expunged pursuant to this subsection,
the court shall send a copy of the final order to--
(i) the relevant criminal justice agency
(as defined by subsection (a)(1)(B)(iii)) that
serves the jurisdiction in which the individual
resides or, if no such agency exists, the chief
law enforcement officer of the State in which
the individual resides; and
(ii) any local law enforcement agency that
serves the jurisdiction in which the individual
resides.
(3) No new records.--Any notifications pursuant to
paragraphs (1) and (2) shall not be or become publicly
accessible records that identify the individual subject of the
expungement order, and such notifications shall not be used by
criminal justice agencies except for purposes of complying with
this section and court orders issued pursuant to it.
(d) Appeal.--The Attorney General of the United States and the
United States Attorney for the district from which the expungement
order was issued may appeal an order, within 60 days of its issuance,
to the United States Circuit Court of Appeals for that district.
SEC. 4. PETITIONING COURT FOR EXPUNGEMENT.
(a) Petition.--At any point after the date of enactment of this
section, any individual with an official record for an expungable event
may file a motion for expungement in the court for the Federal district
in which the arrest, legal proceedings, and any legal results or
consequences, as defined by subsection (a)(2)(A)(i)-(iii), was
obtained. A petition filed pro se shall be construed liberally so as to
ensure substantial justice (see, e.g., Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam)).
(b) Service and Response.--The clerk of the court shall serve that
petition on the United States Attorney for that district. Not later
than 60 days after service of such petition, the United States Attorney
may submit a response to the Petitioner's motion.
(c) Representation and Fees.--No fee shall be imposed for filing a
petition in any proceeding provided for under this subsection. If an
indigent Petitioner submits a facially viable claim for expungement
that nonetheless requires the assistance of legal counsel for purposes
of filing a superseding petition, presenting evidence in support of the
petition, or responding to the Government, counsel shall be appointed
to represent the individual in proceedings under this subsection.
(d) Evidence and Standard of Proof.--The Petitioner and the
Government may file with the court relevant evidence relating to the
petition. Notwithstanding any Federal rule of evidence or procedure,
the court shall have discretion in admitting and evaluating the
petition and any evidence submitted by a Petitioner pro se (cf. Haines
v. Kerner, 404 U.S. 519, 520 (1972)). The Petitioner bears the initial
burden to establish a prima facie case that the official record in
question is for an expungable event, at which point the burden shifts
to the Government to establish by a preponderance of the evidence that
the official record is not for an expungable event or the requirements
for expungement have not been met. If the Government fails to meet this
burden, or if the Government fails to respond to the petition, the
court shall enter an appropriate expungement order unless it finds by a
preponderance of the evidence that the interests of justice and of
public safety weigh against expungement.
(e) Expungement Order.--If required under this section, the court
shall order the expungement, sealing, sequester, and redaction of
official records of the arrest, legal proceedings, and any legal
results or consequences, as defined by subsection (a)(2)(A)(i)-(iii).
The court may also order the expungement, sealing, sequester, and
redaction of another official record related to or referencing an
expungable event, unless such other official record is for or related
to a felony or a misdemeanor unrelated to marijuana, in which case the
court shall redact from such other official record any reference to the
expunged official record, and seal or order the sequester of an
unaltered nonpublic copy of such other official record.
(f) Notification of Expungement.--
(1) Not later than 7 days after granting an expungement
petition, to facilitate the timely update of relevant records,
the court shall send a copy of the petition and final order
to--
(A) the Attorney General of the United States, the
United States Attorney for that district, and the
relevant criminal justice agency (as defined by
subsection (a)(1)(B)(ii)); and
(B) the relevant criminal justice agency (as
defined by subsection (a)(1)(B)(iii)) that serves the
jurisdiction in which the expungable event occurred or,
if no such agency exists, the chief law enforcement
officer of the State in which the expungable event
occurred.
(2) Upon motion or written request of a Petitioner whose
expungement petition was granted, the court shall send a copy
of the petition and final order to--
(A) the relevant criminal justice agency (as
defined by subsection (a)(1)(B)(iii)) that serves the
jurisdiction in which the Petitioner resides or, if no
such agency exists, the chief law enforcement officer
of the State in which the Petitioner resides, when such
criminal justice agency or chief law enforcement
officer is different from those notified p