[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 pursuant to
subsection (c)(6)(A)(ii)); and
(B) any local law enforcement agency that serves
the jurisdiction in which the Petitioner resides.
(3) Notifications pursuant to this subsection shall not be
or become publicly accessible records about the expungable
event, including information identifying 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.
(g) Appeal.--The Attorney General of the United States and the
United States Attorney for the district in 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. Within 60
days of the denial of his or her petition, the Petitioner may appeal
that denial to the United States Circuit Court of Appeals for that
district.
SEC. 5. EFFECT OF EXPUNGEMENT.
(a) In General.--An order of expungement shall restore the affected
individual, in the contemplation of the law, to the status he or she
occupied before such arrest, legal proceedings, and any legal results
or consequences, as defined by subsection (a)(2)(A)(i)-(iii), for an
expungable event.
(b) Self-Disclosure.--An affected individual may treat the expunged
arrest, legal proceedings, and any legal results or consequences, as
defined by subsection (a)(2)(A)(i)-(iii), as if it never occurred and
shall not be held thereafter under any provision of law to be guilty of
perjury, false swearing, or making a false statement for failure to
disclose, recite, or acknowledge such official record.
(c) Disqualification.--The fact that an individual has an official
record, including a conviction, for an expungable event shall not
operate as a disqualification of such individual to pursue or engage in
any lawful activity, occupation, or profession.
(d) Limitations.--
(1) Expungement under this section does not include an
official record of conduct constituting a felony or a
misdemeanor unrelated to marijuana, and such official record
may be accessed, with any redactions, pursuant to this section
or by further order of the court issuing the expungement order.
(2) Nothing in this section is intended to create a right
to compensation, restitution, or any other monetary damages.
(e) Compliance.--
(1) This section and courts orders issued pursuant to it
shall apply to--
(A) criminal justice agencies in the Federal
Government;
(B) other Federal agencies in possession of
expunged documents or related official documents;
(C) State criminal justice agencies subject to
Federal law, due to the powers delegated to the Federal
Government by the Constitution of the United States,
due to voluntary agreement of the relevant State, and/
or due to that State's acceptance of relevant Federal
funding--
(i) where such Federal law may include in
relevant part: 28 CFR 0.85(j); 28 CFR part 20
(Criminal Justice Information Systems); 28 CFR
part 23 (Criminal Intelligence Systems
Operating Policies); 28 CFR part 25(A) (The
National Instant Criminal Background Check
System); 28 CFR 50.12 (Exchange of FBI
identification records); 5 U.S.C. 9101; 18
U.S.C. 922; 28 U.S.C. 534; 34 U.S.C. chapter
101 (Justice System Improvement); 34 U.S.C.
chapter 403 (Criminal Justice Identification,
Information, and Communication); 34 U.S.C.
chapter 409 (National Instant Criminal
Background Check System); 34 U.S.C. chapter 411
(Access to Criminal History and Identification
Records); 34 U.S.C. 40102; 34 U.S.C. 40743; 34
U.S.C. 12592(d); and
(ii) where such Federal law and its
application are consistent with relevant
decisions of the Supreme Court of the United
States, including: South Dakota v. Dole, 483
U.S. 203 (1987); New York v. United States, 505
U.S. 144 (1992); Printz v. United States, 521
U.S. 898 (1997); Reno v. Condon, 528 U.S. 141
(2000); National Federation of Independent
Business v. Sebelius, 567 U.S. 519 (2012); and
Murphy v. National Collegiate Athletic
Association, 138 S. Ct. 1461 (2018); and
(D) any consumer credit agency (as defined by 15
U.S.C. 1681a(f)) subject to the Fair Credit Reporting
Act, 15 U.S.C. 1681 et seq.
(2) Individuals, agencies, and other entities or
organizations covered by subsection (d)(4)(A)--
(A) shall comply with a court order issued pursuant
to this section and, to the extent possible, conform
their official records to be consistent with such
order;
(B) shall respond to any inquiries as though the
expunged records do not exist; and
(C) shall not disseminate, use internally, or
reveal the existence of expunged records for any
purpose, except as authorized under this section or by
further order of the court issuing the expungement
order.
SEC. 6. ACCESS, STUDY, AND SUPPORT.
(a) Access.--Any expungement of an individual's official record for
an expungable event or any related sealing, sequester, and redaction of
relevant records pertaining to that individual, may be made available
only--
(1) to that individual or to such individual's designated
agent;
(2) to the Chief Justice of the United States and his or
her designees (including for support under subsection
(e)(3)(A));
(3) to the Comptroller General of the United States and his
or her designees (including for support under subsection
(e)(3)(B)) for purposes of conducting the study described in
subsection (e)(3);
(4) to a criminal justice agency (as defined by subsection
(a)(1)), for the exclusive purpose of--
(A) maintaining accurate official records; and
(B) investigating or prosecuting an individual or
for conducting a background check on an individual who
has applied for employment by such criminal justice
agency, but only when the relevant official record is
of conduct constituting a felony or a misdemeanor
unrelated to marijuana and such record has appropriate
redactions of any reference to official records
expunged pursuant to this section; and
(5) to the United States Department of Justice's Office of
Justice Programs (and its units or subunits), and to qualified
academic researchers from relevant schools and centers at
accredited nonprofit universities and colleges, for purpose of
research, evaluative, or statistical activities pursuant to an
agreement with the Chief Justice of the United States and his
or her designees (including the Administrative Office of the
United States Courts) that specifically authorizes access to
the information, limits the use of the information to research,
evaluative, or statistical purposes, and insures the
confidentiality and security of the information consistent with
this section and with Federal law.
(b) Study.--The Comptroller General of the United States, in
consultation with the United States Secretary of Health and Human
Services, shall conduct a study of arrests, legal proceedings, and any
legal results or consequences, as defined by subsection (a)(2)(A)(i)-
(iii), for Federal marijuana-related misdemeanors, petty offenses,
infractions, and civil penalties.
(1) Demographics.--Such study shall include information
about the age, race, ethnicity, sex, and gender identity of
those individuals with an official record for an expungable
event, as well as information about the type of community such
individuals dwell in and such other demographic information as
the Comptroller General determines should be included.
(2) Report.--Not later than 2 years after the date of the
enactment of this section, the Comptroller General of the
United States shall report to Congress the results of the study
conducted under this subsection. In consultation with the Chief
Justice of the Supreme Court, the Comptroller General of the
United States shall also report to Congress on the
implementation of this section, including issues relevant to
future expungement efforts (e.g., expungement of Federal
marijuana-related felonies, expungement of Federal offenses for
other controlled substances, models for automatic record-
clearing and for general expungement).
(c) Support.--In addition to Federal funding and other resources
afforded for staffing and implementation of this section--
(1) at the discretion of the Chief Justice of the United
States and his or her designees (including the court for the
district at issue) and pursuant to rules and procedures
established by the Chief Justice, legal researchers and law
students from eligible nonprofit law schools accredited by the
American Bar Association, as well as academic researchers and
students from other relevant schools and centers at accredited
nonprofit colleges and universities, may be retained (including
on a pro bono basis) to conduct research and provide other
support for the implementation of this section; and
(2) at the discretion of the Comptroller General of the
United States and his or her designees and pursuant to rules
and procedures established by the Comptroller General, legal
researchers and law students from eligible nonprofit law
schools accredited by the American Bar Association, as well as
academic researchers and students from other relevant schools
and centers at accredited nonprofit colleges and universities,
may be retained (including on a pro bono basis) to conduct
research and provide other support for the study described in
subsection (e)(2).
SEC. 7. PARDON REFERRAL.
After issuing an order of expungement under subsection (b) or
subsection (c), upon a finding of good cause, the court may refer the
case or petition to the President of the United States and his or her
designees (including the Pardon Attorney of the United States,
notwithstanding 28 CFR part 1 (Executive Clemency)), for review
consistent with the authority granted to the President under article
II, section 2 of the Constitution of the United States.
SEC. 8. INAPPLICABILITY.
The Administrative Procedure Act, 5 U.S.C. 551 et seq., and the
Federal Advisory Committee Act, 5 U.S.C. Appendix, shall not apply to
this section and to orders or other actions taken pursuant to it.
SEC. 9. INTERPRETATION AND SEVERABILITY.
(a) Nothing in this section should be construed to preempt or
supersede the laws of any State with respect to its authority to define
and enforce the criminal law of that State, or with respect to any
power reserved to the States respectively, or to the people, or to any
citizen as a right, under the Constitution of the United States. This
section does not annul, alter, or affect, or exempt any person subject
to this section from complying with, the laws of any State, except to
the extent that those laws are inconsistent with the provisions of this
section, and then only to the extent of the inconsistency. This section
shall not in any way abridge or alter the remedies now existing at
common law or by statute, but consistent with subsection (d)(3)(B), the
provisions of this section are in addition to such remedies.
(b) If any provision of this section or the application thereof to
any person or circumstance is held invalid, the remainder of this
section, or the application of that provision to persons or
circumstances other than those as to which it is held invalid, is not
affected thereby.
SEC. 10. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect 180
days after the date of enactment of this Act.
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