A key House committee has approved a series of criminal justice reform bills—including bipartisan proposals to clear records for prior federal marijuana convictions, provide funding for states that implement systems of automatic expungements and codify retroactive relief for people incarcerated due to on crack-cocaine sentencing disparities.
The House Judiciary Committee, chaired by Rep. Jerrold Nadler (D-NY), advanced the measures, as well as other bills unrelated to drug policy, during a hearing on Wednesday. This action comes about five months after the full chamber passed a cannabis legalization bill for the second time that also included expungements provisions.
A Senate legalization bill sponsored by Majority Leader Chuck Schumer (D-NY) was filed in July, but the expectation is that it will not advance given that it’s unlikely it would garner enough support to meet the 60-vote threshold in the chamber.
But bipartisan and bicameral talk about enacting incremental reform has picked up, with an expectation that the Senate will soon file a package of modest marijuana bills that could include other expungement-related proposals. Those reform bills aren’t the ones that the committee marked up on Wednesday, however.
Nadler, speaking about a bill to provide funding to states for expungement purposes, stressed that “even just an arrest can present lifetime barriers to obtaining jobs, housing, education and put other opportunities out of reach.”
Criminal record expungement and sealing offers a pathway to employment opportunities for individuals with a criminal record, enabling them to participate fully in their communities. pic.twitter.com/Bi94gQDRD0
— House Judiciary Dems (@HouseJudiciary) September 21, 2022
“Criminal record expungement and sealing is a pathway to employment opportunities for individuals with a criminal record and enable them to participate fully in their communities at a time when many industries continue to face labor shortages,” the chairman said. “These pathways that desperately needed.”
The congressman also voiced support for the federal cannabis record sealing bill, saying it is “critical in helping those with non-violent criminal records to rebuild their lives.” He added that the public is on board with the reform, as well as major employers who’ve endorsed the legislation such as J.P. Morgan Chase and Walmart.
Here’s a rundown of what the committee-approved bills would accomplish:
HR 2864: The “Clean Slate Act” from Rep. Lisa Blunt Rochester (D-DE) would mandate the automatic sealing of criminal records for certain non-violent, federal marijuana convictions. It would also provide relief to people who have been arrested for other offenses that did not result in a conviction.
The bill has been introduced with bipartisan support in previous sessions, but it’s yet to be enacted. Nadler filed an amendment in the nature of a substitute ahead of this week’s committee hearing to make mostly technical changes. It also includes a provision clarifying that people in “certain high-risk occupations” can still be subject to background checks where their records could be accessible to employers.
Nadler’s amendment as drafted would have additionally provided funding for a new five-year pilot program under the Justice Department, giving $35 million in grants from fiscal years 2023 to 2027 to entities that facilitate automatic record sealing in accordance with the law. But during the markup, the committee approved a second-degree amendment introduced by the chairman to strike that section, which he said needs “further refinement” before the idea can advance.
The legislation further seeks to create penalties for any official who improperly “accesses or discloses information contained in a sealed record.” It passed the committee in a 20-12 vote.
HR 5651: The “Fresh Start Act” sponsored by Rep. David Trone (D-MD) would provide federal funding to states that create their own systems of automated expungements. Though it does not specify the types of crimes that would warrant relief, a growing number of states are taking steps to implement systems of automatic expungement for marijuana convictions, and those states would benefit from the new funding.
Under the proposal, each state would be eligible for $5 million in aid from the U.S. Department of Justice to support covered expungement programs. Those processes could not require a person to pay a fee to receive relief, and each state would need to submit an application to DOJ with information about their program.
— House Judiciary Dems (@HouseJudiciary) September 21, 2022
The Justice Department grant program would need to be created with input from stakeholders, including law enforcement, organizations with “expertise in justice information systems,” correctional agencies, family advocacy groups and “civil rights and civil liberties” organizations.
Up to 10 percent of the grants could be used “for research or planning for criminal record data infrastructure improvements that will make criminal record expungement or sealing automatic.” The remaining dollars would need to go to implementing the program and any improvements.
Nadler also filed an amendment in the nature of a substitute for the bill that amends the covered years, stipulating that the bill would appropriate $50 million in federal funding annually from fiscal year 2023 to 2027. The measure advanced through Judiciary in a 22-13 vote on Wednesday.
HR 5455: The “Terry Technical Correction Act” from Rep. Sheila Jackson Lee (D-TX) is responsive to a 2021 U.S. Supreme Court ruling that held that a law reducing the federal crack-cocaine sentencing disparity did not apply retroactively in cases that did not trigger a mandatory minimum sentence.
It would amend the law by clarifying that the 2010 Fair Sentencing Act was intended to provide individuals in those cases with relief, and so any motion that was denied on the basis of a court’s interpretation of eligibility under the statute “shall not be considered a denial after a complete review of the motion on the merits within the meaning of this section.”
— House Judiciary Dems (@HouseJudiciary) September 21, 2022
The purpose and findings section of the bill as filed were removed under an amendment in the nature of a substitute, and the legislation was also revised to make technical changes. The bill passed during Wednesday’s hearing on a voice vote.
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“Record sealing and expungement gives individuals who are haunted by the stigma of a past low-level crime a second chance to get back on their feet,” U.S. Cannabis Council (USCC) CEO Khadijah Tribble said in a press release on Wednesday.
“For millions of Americans with records resulting from the unrelenting consequences of cannabis prohibition—and especially for historically targeted communities of color—the Clean Slate and Fresh Start Acts can mean better job prospects, housing options, and educational opportunities,” Tribble said. “USCC is endorsing the Clean Slate and Fresh Start Acts because they balance public safety while advancing criminal justice reform, promoting social equity, and creating economic opportunity for those with cannabis offenses.”
The crack-cocaine sentencing bill from Jackson Lee enjoyed some bipartisan support in the committee, with Ranking Member Jim Jordan (R-OH) speaking in favor of the legislation ahead of the vote. He stressed that it was a necessary reform to align the law with congressional intent.
Republican members generally balked at the state expungements and federal record sealing proposals, however, arguing that they amount to “soft on crime” policies.
Rep. Matt Gaetz (R-FL) filed an amendment to the Clean Slate Act that would have limited the relief to U.S. citizens only, but the panel rejected it.
In the background of this House committee action, Senate leadership is working to finalize a package of modest marijuana reform proposals that’s being colloquially referred to as SAFE Plus, because it’s expected to include language from the standalone Secure and Fair Enforcement (SAFE) Banking Act.
There are growing hopes that the stage is set to advance a package that would include bipartisan cannabis-focused expungements proposals proposals such as the Harnessing Opportunities by Pursuing Expungement (HOPE) Act or the Marijuana Misdemeanor Expungement Act.
Rep. Dave Joyce (R-OH) is sponsoring the former legislation alongside Rep. Alexandria Ocasio-Cortez (D-NY). It would incentivize states and local governments to expunge cannabis records in their jurisdictions.
The bill seeks to accomplish that through federal grants—the State Expungement Opportunity Grant Program, run through the Department of Justice—that would help cover the administrative costs of identifying and clearing eligible cases. The bill proposes to appropriate $2 million in funding to support the program for each fiscal year starting in 2023 and ending in 2032.
Rep. Troy Carter (D-LA), meanwhile, is sponsoring the Marijuana Misdemeanor Expungement Act with Rep. Rodney Davis (R-IL). It would create a process to expunge federal misdemeanor marijuana convictions and allow courts to recommend presidential pardons for eligible cases.
It’s unclear why the two pieces of standalone legislation weren’t taken up by the Judiciary Committee on Wednesday along with the similar reform proposals.
Meanwhile, a recent poll found that Republican voters are on board with a number of marijuana reform proposals—from medical cannabis legalization to expungements for prior marijuana convictions to letting states set their own policies without federal interference.
Bipartisan state treasurers also approved an updated resolution on Monday that expresses support for a federal fix to the marijuana banking problem.
Sources familiar with the state of negotiations over SAFE Plus have signaled that the bill drafting is fairly far along. Sen. Cory Booker (D-NJ) recently said that he expects the legislation to be introduced sometime after the November midterms, and Joyce said he felt the timeline for a filing would likely fall between November and December, though nothing is set in stone.
Bipartisan congressional lawmakers have been stepping up the push to pass a marijuana banking bill this year, and over 100 cannabis business leaders were in Washington, D.C. last week for lobby days organized by a leading cannabis industry association.
SAFE Banking Act sponsors Rep. Ed Perlmutter (D-CO) and Sen. Jeff Merkley (D-OR) also laid out next steps for the cannabis banking reform at a briefing organized by the U.S. Cannabis Council (USCC) in July.
Schumer and Booker have more openly embraced the idea of a “compromise” as the leader has worked to build consensus on the alternative package of incremental reforms.
While lawmakers have been discussing plans to pass some kind of cannabis standalone legislation to resolve the banking problem, another option that’s still on the table is enacting the SAFE Banking Act as a provision of a large-scale defense bill. The House-passed version of the National Defense Authorization Act (NDAA) contains the banking language, though it was not in the Senate version, and it remains to be seen whether it will be included in the final, must-pass package sent to the president’s desk.
Cannabis Regulators of Color Coalition (CRCC) released a paper last month that outlined what they view as shortcomings of the standalone SAFE Banking Act and recommended several amendments to bolster its equity impact.
Booker said at an event organized by CRCC last month that the standalone legislation “requires changes” if it’s going to advance before cannabis is federally legalized.
The senator initially signaled that he was coming around to marijuana banking reform (contingent on equity provisions) at a Senate Judiciary subcommittee hearing in July that he convened as chairman.
Meanwhile, Perlmutter also said in a recent interview that he feels the introduction of the Senate legalization bill alone means that lawmakers have overcome a legislative “hurdle” that’s kept SAFE Banking from advancing in the chamber.
“We are at a juncture where access to basic banking services for cannabis businesses and relief for people convicted of low-level drug offenses are both within reach,” USCC’s Tribble said. “Combined, these reforms would be a lifeline for small cannabis businesses and to those impacted by outdated drug laws.”