Category: non-conviction records

Federal expungement for survivors of human trafficking

Until this year, there was no federal law authorizing expungement or sealing of a federal conviction.  That changed on January 23, 2026, when President Trump signed into law the Trafficking Survivors Relief Act (TSRA), 18 U.S.C. § 3771A.  The TSRA authorizes courts to grant record relief in the form of vacatur and expungement to survivors of human trafficking arrested or convicted of a nonviolent federal crime as a direct result of their being a victim of trafficking, defined as sex or labor trafficking under 22 U.S.C. 7102.  Our research indicates that this is the first time in our Nation’s history that expungement of a conviction record has been explicitly authorized in federal law.    

The only federal authority for expungement before enactment of the TSRA was the extremely narrow provision in the so-called Federal First Offender Act, 18 U.S.C. § 3607(a), which allows a person who is arrested for misdemeanor drug possession under 21 U.S.C. § 844 to avoid a conviction by participating in a program of deferred adjudication, as long as they have no prior drug conviction.  Upon successful completion of the program, the charges are dismissed and no conviction results.  Expungement is available for the resulting non-conviction record, but only if the person was under 21 at the time of the offense. See § 3607(c).  Other than this one very limited authority, until the TRSA there was no authority in federal law to expunge or seal even acquittals and other non-conviction records.  See Section III of the Federal profile from the Restoration of Rights Project.

In authorizing relief for survivors of human trafficking, Congress joined the legislatures of all but three states that have enacted similar statutes — though the federal law is one of the more expansive ones.  In addition to authorizing expungement of records, the TSRA also provides a defense to criminal charges based on being a victim of trafficking, as well as an avenue for reduction of sentence. The federal statute is analyzed in detail in the final section of this post.

CCRC will shortly publish a comprehensive report on record relief for survivors of human trafficking, analyzing state laws in detail and comparing their most salient features.  In the meantime, the Restoration of Rights Project describes and analyzes the trafficking record relief law in each state; the only states that have not enacted relief specifically for trafficking survivors are Minnesota, Alaska, and Iowa, and we expect Iowa to do so when its legislature reconvenes.  

Detailed analysis of the Trafficking Survivors Relief Act:

Record relief in the form of vacatur and expungement first became available for survivors of trafficking in 2026, following the passage of the Trafficking Survivors Relief Act (TSRA) (H.R. 4323). The TSRA was enacted on January 23, 2026, under Public Law No. 119-73. Congress declared the TSRA as “a first step to address the changing tactics of human traffickers, who are using forced criminality as a form of force, fraud, and coercion in their human trafficking enterprises,” and “committed to continuing to find solutions as needed to thwart human traffickers and protect survivors of human trafficking.” 

Relief is available for convictions or arrests for a nonviolent offense, or arrests for a violent crime that did not involve a child victim, if committed as a direct result of being a victim of trafficking, defined as sex or labor trafficking under 22 U.S.C. 7102. § 3771A(b)(1). In addition to record relief, the TSRA added a defense to criminal charges based on being a victim of trafficking and provided an avenue for reduction of sentence. 

A written motion may be filed with the sentencing court or with the district and division where the person was arrested. § 3771A(b)(2). The motion may be filed at any time, as the Act applies to “any conviction or arrest occurring before, on, or after the date of enactment of this section.” § 3771A(i). No fees may be charged to file a motion, and all pleadings and orders are filed under seal, which may not be made available for public inspection. §§ 3771A(f), (g). The motion shall “describe any supporting evidence,” and “include copies of any documents showing the movant is entitled to relief.” § 3771A(b)(2). If the government files a motion in opposition within 30 days, the court must schedule a hearing. § 3771A(b)(3)(A). If no motion in opposition is filed, the court may hold a hearing no later than 45 days after the motion is filed. § 3771A(b)(3)(B).

The court shall consider supporting evidence in the form of “an affidavit or sworn testimony of an anti-trafficking service provider or clinician,” which “shall be sufficient evidence” to grant relief if it is determined credible, “and no other evidence is readily available.” §§ 3771A(b)(5)(A)(i), (b)(5)(B). The court may consider other “supporting evidence the court determines is of sufficient credibility and probative value.” §§ 3771A(b)(4)(A), (b)(4)(B). An arrest or conviction for any other person related to the conduct is not required to qualify for relief. § 3771A(b)(6). 

The court may grant the motion to vacate a conviction or expunge an arrest for a nonviolent offense, if it finds by a preponderance of the evidence that participation in the offense “was a direct result of the movant having been a victim of trafficking.” § 3771A(b)(4)(A). The court may also expunge arrests for a violent crime, under the same standard and nexus, if the person was acquitted, the case was dismissed, or the charges were reduced to an eligible nonviolent offense that was subsequently vacated. § 3771A(b)(4)(C).

If the court grants a motion to vacate an eligible conviction, it shall:

    1. vacate the conviction for cause; 
    2. set aside the verdict and enter a judgment of acquittal; and 
    3. enter an expungement order.

§ 3771A(c)(1). The expungement order entered following vacatur, and any expungement order related to eligible arrests, requires all references to the arrest and criminal proceedings be expunged. §§ 3771A(c)(1)(c), (d)(1). The vacated conviction “shall not be regarded as a conviction under Federal law,” or an expunged arrest “shall be regarded as an arrest under Federal law,” returning the person to the same status held before the arrest, charges, or conviction. §§ 3771A(c)(3), (d)(2). The court is not required to, but presumably not prohibited from, amending or removing any fines or restitution ordered as part of the criminal case vacated, or a civil proceeding. § 3771A(c)(2).

TSRA requires each United States attorney to submit a report to the Attorney General within 1 year of the enactment date, detailing the number of motions filed, the underlying offense, any response filed by the U.S. Attorney’s office, and final determination by the court. See Section 3(a). Also within 1 year of the enactment date, the Attorney General must submit to Congress “a report that details all professional training received by U.S. attorneys on indicators of human trafficking during the preceding 12-month period.” Section 3(b). Finally, the Comptroller General of the United States must submit a report within 3 years of the enactment date that “assess the impact of the enactment” of the TSRA that compiles the number of survivors who filed motions to vacate or expunge, and the resulting decisions, along with recommendations to increase access to post-conviction relief improve the implementation and tracking of professional training for prosecutors.” Section 3(c).

Study: Texas diversion provides dramatic benefits for people facing their first felony

NOTE: In light of renewed interest in state legislatures in judicially-administered diversion and deferred adjudication programs, we are re-publishing our 2021 report on a remarkable study of deferred adjudication in Texas by researchers Michael Mueller-Smith and Kevin Schnepel. We noted at the time that “The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction.

by Margaret Love and David Schlussel (Feb 23, 2021).

Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record.

Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now.

By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect.

Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists.

Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state. Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion. The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder.

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DC enacts progressive new record-clearing law

Until last month, the District of Columbia had one of the most complex and restrictive record relief laws in the country. D.C.’s sealing law even applied the same burdensome petition-based procedures, extended waiting periods, and onerous burdens of proof to non-conviction records that applied to convictions. In testimony before the D.C. Council in 2021, CCRC’s Margaret Love noted: “Compared to states across the country, DC’s record relief laws are very prohibitive and unusually complex.” CCRC’s Reintegration Report Card published in March 2022 commented that “the restoration laws in the District of Columbia are noteworthy for a remarkable study in contrasts: D.C. has extraordinarily progressive laws in civil areas like voting, employment, housing, and occupational licensing, and among the most regressive laws in the Nation in every category of criminal record relief, likely reflecting the heavy hand of the federal authorities that are responsible for most prosecutions under the D.C. Code.”

Last month, everything changed. The Second Chance Amendment Act of 2022 (D.C. Law 24-284, codified at D.C. Code § 16-801 et seq.), which became final after the required period of congressional review on March 16, 2023, gave the District one of the broadest record-clearing laws in the country, including both petition-based relief for all but the most serious violent felony convictions, and automatic relief for misdemeanors and non-conviction records.  D.C. now becomes the 11th U.S. jurisdiction to enact a “clean slate” law that applies to both conviction and non-conviction records.

The new D.C. record-clearing law is the product of more than two years of hard work by the D.C. Council and a broad coalition of advocacy groups in the District. When coupled with the District’s progressive civil restoration laws referenced above, this new law propels DC from middle-of-the-pack to the top tier of jurisdictions in the Nation where fair treatment of justice-affected individuals is concerned. It will certainly advance DC’s candidacy for Reintegration Champion of 2023.

Though D.C. Law 24-284 is enacted, it is unfunded, which means it cannot be used. Currently, the FY24 Budget Support Act of 2023 set the effective date for the Second Chance Act as 1/1/26 for most of the law and 10/1/29 for the automatic sealing provisions.

The new law’s specific provisions are described in greater detail below, and in the DC profile from CCRC’s Restoration of Rights Project.

The new D.C. law provides for petition-based sealing for all non-conviction records at disposition, for all misdemeanors after a five-year waiting period, and for all but a specified group of the most serious felony convictions after an eight-year waiting period.  The waiting period begins following completion of all aspects of the sentence, except that it does not require payment of fines and other court debt. The law also facilitates procedures: e.g., not all eligible records need be sealed at the same time, as under the old law, and there are no “disqualifying offenses” that could extend the waiting period even for non-conviction records.

It also eases standards, particularly for sealing non-conviction records: it deleted a provision allowing the court to consider “the weight of the evidence against the person” and any priors sealings of arrest records.  It specifically directs the court in all cases to consider “The community’s interest in furthering the movant’s rehabilitation and enhancing the movant’s reintegration into society through education, employment, and housing.” As noted, D.C.’s existing sealing law extended to same burdensome procedures and standards to non-conviction records that applied to sealing of convictions.

The new law makes sealing automatic beginning in 2027 for non-conviction records, and for most misdemeanor convictions after a 10-year waiting period. It also provides for automatic expungement of marijuana convictions effective January 1, 2025, and for expungement by petition on grounds of actual innocence. Provisions in existing law authorizing expungement for victims of human trafficking and sealing for juvenile defendants were not changed.

D.C. now joins the 19 states that have enacted automatic record-clearing relief for arrest records and other non-convictions.  More than half of these state laws have been enacted in the three years since publication of CCRC’s Model Law on Non-Conviction Records, which advocated for automatic expungement of all non-conviction records, including records with no final disposition, except for pending matters. Like CCRC’s model law, which was cited as authority by several parties during the hearings before the D.C. Council, the new D.C. law recommends restrictions on accessing, inquiring about, and commercially disseminating non-conviction records.

Sealed records are placed in a non-public file but remain available to law enforcement, courts, prosecutors, licensing agencies, public employers, and schools and child care facilities, to be used “for any lawful purpose.” Sealed records may also be used in civil litigation relating to the arrest or conviction, and may be made available to others “upon order of the Court for good cause shown.”  An individual whose record has been sealed may deny the arrest or conviction “for any purpose”, without penalty of perjury or other provision of the law for giving a false statement. This appears to be a change from the 2006 law, which required testimony about prior arrests and convictions “in response to an inquiry from one of the entities expressly authorized to access the records.” In other words, while certain entities may gain access to sealed records, the subject of the record may lawfully deny its existence without penalty.

The 2022 law imposes certain requirements on “criminal history providers” that provide criminal history background screening reports, requirements that mirror those provided by the federal Fair Credit Reporting Act.  It requires providers to provide the subject of a background report with a copy of the report and identify the source of the report, and to use at least two identifiers (e.g., birthdate and name); prohibits reporting records that have been sealed, expunged or set aside; and pohibits reporting information that has not been updated within 30 days of the report.  Complaints of a violation of these provisions may be filed with the DC Office of Human Rights (but not in court), and fines are specified for violations.

There are still ways that D.C.’s sealing law could be improved.  For example, there appears to be no good reason why sealed non-conviction records should remain available to employers and licensing agencies, and in most states they are not. Automatic relief should be extended to all convictions now subject to sealing by petition, and the waiting periods for both petition-based and automatic relief seem excessive by standards in recently enacted record-clearing laws.  See CCRC’s 2022 report on waiting periods, Waiting for Relief: A National Survey of Waiting Periods for Record Clearing (February 2022).  But those caveats aside, the new law represents the most substantial progress in record clearing of any U.S. jurisdiction since 2018, when North Dakota and New Mexico enacted a broad sealing scheme for the first time.  Congratulations to the D.C. Council!

 

 

 

 

California poised to expand record clearing to cover most felonies

NOTE: On September 29, Governor Newsom signed into law both of the bills discussed in the post below. They will take effect on January 1, 2023.   

California Governor Gavin Newsom is expected to sign this week two bills that will give that state the broadest record-clearing laws in the nation. Senate Bill 731 would extend both automatic and petition-based and record relief to felony-level offenses, while Senate Bill 1106 would preclude denial of relief based on outstanding court debt in most cases.

When signed into law, Senate Bill 731 will place California at the forefront of record clearing nationwide. It would expand automatic record relief to all felony non-convictions since January 1, 1973, six years after the date of arrest. California law currently excludes felony arrests from eligibility for automatic relief if the charge is serious enough to potentially result in incarceration at a state prison. Other felony non-convictions remain eligible for automatic relief after three years unless the charge was punishable by eight years’ incarceration or more in a county jail, for which the new six-year wait period applies.

SB 731 also expands eligibility for automatic relief to persons convicted of a felony and sentenced to probation on or after January 1, 2005, if they violated probation but later completed all terms of supervision. Current law excludes from relief anyone who violated their probation. The new law requires a four-year conviction-free period after completion of the sentence. This expansion of automatic relief does not apply to certain serious and violent felonies, and ones for which the person is required to register as a sex offender. As noted below, all but the last-mentioned category will now be eligible for relief by petition.

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Judicial Diversion and Deferred Adjudication: A National Survey

*Update (3/3/22): the full national report, “The Many Roads from Reentry to  Reintegration,” is now available.

Last week we announced the forthcoming publication of a national report surveying various legal mechanisms for restoring rights and opportunities following arrest or conviction, a revision and updating of our 2020 report “The Many Roads to Reintegration.” The first post in the series (“Expungement, Sealing & Set-Aside of Convictions“), published on February 25, gives some additional background about the report. The second post in this “preview” series (“Fair Chance Employment & Occupational Licensure“) was published on February 26.  The third part (“Executive Pardon“) was published on February 28.

Today’s post concerns the role that court-managed diversionary dispositions play in reducing convictions and avoiding collateral consequences.  Since our first national report was published in 2018, many states have expanded the availability of these non-conviction dispositions, including for any defendant potentially eligible for a probationary sentence, and made record clearing more generally available.

We expect to publish the whole national report, plus our Reintegration Report Card for 2022, later this week.

Judicial Diversion and Deferred Adjudication: A National Survey

An increasingly desirable strategy for facilitating reintegration through avoiding collateral consequences is to divert individuals away from a conviction at the front end of a criminal case. Diversion in its various forms offers a less adversarial means of resolving an investigation or prosecution through compliance with agreed-upon community-based conditions leading to dismissal of charges and termination of the matter without conviction. Diversionary dispositions are described in the Model Penal Code: Sentencing as a way to “hold the individual accountable for criminal conduct when justice and public safety do not require that the individual be subjected to the stigma and collateral consequences associated with conviction.”[1] In this understanding, diversion functions as a mechanism for ensuring accountability and facilitating rehabilitation, rather than as retribution for its own sake.[2] The effectiveness of diversionary dispositions in furthering these goals has not been studied in depth, and they are not without their controversial aspects, but existing research suggests their promise.[3] Diversion may allow for a mutually-acceptable outcome for the prosecutor and defendant in cases where the extent of culpability is not clear, where a treatment intervention seems appropriate, or where the defendant otherwise fits within some category considered deserving of leniency (e.g., human trafficking victims, veterans, “youthful offenders”).

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