The REDEEM Act, introduced in the US Senate in March by Senators Corey Booker (D–NJ) and Rand Paul (R–KY), seeks to expand employment opportunities for those with federal criminal records by giving federal courts sealing authority. Because courts have generally held they do not have inherent authority to seal records — at least where an arrest or conviction is valid — the Act would open an entirely new avenue of relief from many of the collateral consequences that result from a federal arrest or conviction. While in the past similar bills have not made it out of committee, the attention that criminal justice reform is currently receiving on the national political stage and the REDEEM Act’s bipartisan support could give the Act a fighting chance.

The Act, as introduced, is not without its flaws. Chief among them are its vague definition of what crimes are eligible for relief, the broad discretion courts would have to deny relief for eligible offenses, the significant exceptions to the confidentiality of sealed records, and the uncertain effect of sealing on collateral consequences. The good news is that the Act’s defects are not structural and can be easily remedied through the legislative process.

This post contains a nuts and bolts overview of the Act. In subsequent posts, we will take a closer look at ways the Act could be improved.  Since the procedures and eligibility criteria applicable to adult and juvenile offenses differ in significant ways, we look at each in turn.

I. Adult offenses

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A. Eligibility

With the exception of waiting periods, the same eligibility standards apply to both conviction and non-conviction records.

Eligible offenses

Sealing is generally available for “covered nonviolent crimes,” a category that excludes many (though not all) crimes involving physical force, most sex offenses, and many crimes against minors.  Crimes of violence that are ineligible for sealing are defined at 18 U.S.C. § 16:

The term “crime of violence” means–

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,

or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Given the uncertain contours of this definition, it will often be unclear whether a specific offense constitutes an ineligible crime of violence under § 16. The definition, which is incorporated into a number of federal statutes, has already generated considerable litigation. Much more can be expected if the Act becomes law without closing off the potential for argument over the eligibility status of specific offenses.

Ineligible sex offenses are listed at 42 U.S.C. § 16911, and also include a number of non-sexual crimes against minors. Section 16911 offenses are more clearly defined than crimes of violence, though ambiguity will still exist in some cases since many of the offenses listed in § 16911 are defined by conduct and without reference to any particular federal criminal statute or to elements of the offense. Examples include crimes against a minor “involving” false imprisonment or use of a minor in a sexual performance, descriptions that could refer to several specific federal crimes.

Prior convictions

Sealing is unavailable to anyone convicted of an ineligible felony offense at any time and to anyone convicted of more than two eligible felonies (including those that have been sealed). Interestingly, non-federal “nonviolent crimes” are not considered for eligibility purposes, though what constitutes such an offense is not clear since the language used does not track that used to define eligible offenses (“covered nonviolent offense”).

Multiple convictions related to the same act or committed at the same time are considered a single conviction for eligibility purposes.  Additionally, unless the court determines that treating the convictions as a single offense is not in the public interest, up to three convictions may be treated as one if they relate to the same indictment, information, or complaint; were all committed within a three month period; or were addiction-related.

Waiting Period

Conviction records may only be sealed after a person has fulfilled every requirement of his or her sentence. If sentenced to prison or supervision for an eligible offense, a person may not petition until 1 year after release from prison or supervision, whichever is later. No waiting period applies to non-conviction records.

B. Procedure and burdens

The same procedures and standards apply to both conviction and non-conviction records. A petition for sealing may be filed in any U.S. district court.  Upon filing, the court must notify the U.S. attorney that prosecuted the offense and any person the petitioner seeks to have testify in support of the petition. A hearing on the petition must be held within 6 months unless the government agrees to a waiver of hearing, in which case a determination on the petition must be made by the court within six months.

For the the court to deny an otherwise valid petition, the government must show that:

(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”

outweighs the petitioner’s interest regarding:

(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.

In making this determination, the court may consider all evidence and testimony offered by the petitioner, their witnesses, and the prosecutor. However, the court may not consider an arrest, prosecution, or conviction for non-federal non-violent or non-sexual offenses.

If a petition for sealing is denied, a person must wait two years before petitioning again to seal records of the same offense.

C. Effect

A sealed record is rendered unavailable to public examination, except by court order. [1]. A sealed “offense and any arrest, criminal proceeding, conviction, or sentence relating to the offense shall be treated as if it never occurred,” except as otherwise specified in the Act.

Records that are sealed must be labeled as such and physically closed.  The court must seal its own paper and electronic copies of the record and must send copies 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 law enforcement agency and public or public or private correctional or detention facility.”  Those entities must then seal the record and submit written certification of sealing to the court, which then notifies the petitioner.

It is a misdemeanor to “intentionally make or attempt to make an unauthorized disclosure of any protected information from a record that has been sealed,” though significant exceptions apply. [2] Sealed records may be disclosed for the purpose of conducting background checks for law enforcement employment and for employment that a federal agency has designated as a “national security position” or “high-risk public trust position.” This means that records will be available to a great number of federal agencies, government contractors, and other employers like nuclear power plants, and others required to access classified information. Sealed records may also be disclosed to the military for “the purpose of vetting an enlistment or commission, or with regard to any member of the Armed Forces.” Law enforcement agencies and the Attorney General may access sealed records for prosecutorial/investigatory purposes, and prosecutors may disclose records pertaining to potential witnesses in federal or state criminal or delinquency proceedings. Additionally, the Attorney General (who is required to maintain a non-public record of all records sealed under the act) may disclose a sealed record upon determining “that disclosure is in the interest of justice, public safety, or national security.” The Act provides no standards governing the AG’s use of this authority — something that will hopefully be addressed in committee.

A person whose record has been sealed is immune from civil or criminal liability for perjury, false swearing, false statements with respect to that record, except before entities to which disclosure is authorized by the act. Otherwise, sealing confers no special rights and appears not to have a restorative effect on any rights lost as a result of conviction or arrest.  Though the Act does provide that an offense or proceedings that is sealed “shall be treated as if it never occurred,” it is not clear how a person can enforce that right against third parties like employers or licensing boards seeking to use the fact of an arrest or conviction in a hiring or licensing decision.

To underscore that point, there are no provisions in the Act that address employment and licensing discrimination against persons with sealed records. There are also no provisions addressing the status of records maintained by commercial criminal record providers. [3]

It is worth emphasizing that the Act does not make clear what if any effect a sealing order has on the myriad collateral consequences arising under state and federal law.  Hopefully this and other uncertainties about the legal effect of a sealing order can be addressed as the bill goes through the committee process.   

 

II. Juvenile offenses

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Records of eligible juvenile delinquency adjudications are automatically sealed after a waiting period (or earlier, upon petition) and may be expunged upon petition (automatically in some instances). Juvenile records for eligible offenses that did do not result in a delinquency finding are automatically expunged.

Juvenile offenses eligible for sealing and expugement are those that do not qualify as violent crimes under 42 U.S.C. § 5603(27), or as sex offenses under 42 U.S.C. § 16911. The definition of “violent crimes” under § 5603(27) is much narrower and clearer than the definition that applies to adult offenses.

the term “violent crime” means-

(A) murder or nonnegligent manslaughter, forcible rape, or robbery, or

(B) aggravated assault committed with the use of a firearm

 

Ineligible juvenile sex offenses are defined in the same manner as adult offenses.

A. Sealing

Records of eligible delinquency adjudications are automatically sealed by court order three years after completion of sentence if a person has no subsequent convictions during the waiting period and no charges are pending against the person. Unlike adult sealing, there is no limit on the number of juvenile adjudications that may be sealed, nor on sealing following conviction for an ineligible offense.

A delinquency record may be sealed earlier than three years upon petition. Procedures for early sealing petitions are the same as those applicable to adult petitions, with the following exceptions: Instead of balancing interests, the court determines whether to grant a petition by considering a number of factors including the nature of the offense, age of the petitioner at commission, subsequent criminal involvement, adverse consequences that may face the petitioner if sealing is not granted, and evidence offered by the prosecutor. No burdens are specified, and there is no prohibition on considering non-federal charges, convictions, or adjudications.

The effect of juvenile sealing (both automatic and early) is identical to that of adult record sealing.

B. Expungement

In addition to sealing, juveniles may also have eligible records expunged. Expungment has the same effect as sealing, but with additional protections. Expunged records must be physically destroyed by the courts and each entity or person in possession of the record, and there are no exceptions that allow for disclosure of expunged records for any purpose. The courts, law enforcement, and any agency that provided treatment or rehabilitation services to the juvenile subject to court order must respond to any inquiry about the existence of an expunged record in the negative, and a person cannot be required to disclose the existence of their own expunged record.

Expungement of juvenile records is automatic[4] in some instances, and discretionary in others. Records of delinquency adjudications for crimes committed by a person younger than 15 are automatically expunged upon turning 18. Records of arrests and proceedings resulting in dismissal or a “not delinquent” findings are also automatically expunged. While expungement of “not delinquent” records is required at disposition, no time-frame is specified for dismissal records.

A person found delinquent for a crime committed after turning 15 may petition for expungement in the same manner in which they would petition for early sealing. The same procedures and considerations applicable to early sealing apply, except that there is no requirement that a person complete any ordered detention or supervision prior to filing an expungement petition.

 

You can find the full text of the REDEEM Act here, and Senator Booker’s press release describing the Act’s intent here.  Check back soon for a more detailed look at some of the specific issues raised by the Act.

 

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[1] The act does not specify the basis for issuing such an order.

[2] The Act does not specifically define what disclosures are “unauthorized.” While disclosure of a record held by any entity that received a copy of the sealing order from the court would presumably qualify, whether disclosure by an entity that did not receive such an order qualifies is unclear (though one would expect that some notice of sealing in some form would be required for prosecution of unlawful disclosure).

It is also unclear whether an entity in possession of a sealed record can confirm that a record exists without revealing the actual contents of the record.  Entities required to expunge a juvenile record under a different section of the Act are explicitly required to deny the existence of an expunged record, but there is no similar provision that applies to sealed records.

[3] Though the court can apparently order sealing by any entity known to possess a a record, the fact that identical records are maintained by numerous and often unknowable commercial criminal information providers means the Act will likely be ineffectual at completely purging records from their databases.

[4]  Though the law describes expungement in some instances as “automatic,” and states that such “expungement shall not require any action by the person whose records are to be expunged,” expungement is not effective by operation of law.  For crimes committed under the age of 15, and where charges were dismissed, the Attorney General is obligated to file a motion for expungement in the district court, and the court is required to grant the motion. In proceedings where a juvenile is found not delinquent, the court is required to issue an expungement order concurrently with a not delinquent finding.