USC Chapter 237

in effect

18 U.S.C. § 3771 Crime victims’ rights

(a) Rights of Crime Victims.—A crime victim has the following rights:(1) The right to be reasonably protected from the accused. (2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. (5) The reasonable right to confer with the attorney for the Government in the case. (6) The right to full and timely restitution as provided in law. (7) The right to proceedings free from unreasonable delay. (8) The right to be treated with fairness and with respect for the victim’s dignity and privacy. (9) The right to be informed in a timely manner of any plea bargain or deferred prosecution agreement. (10) The right to be informed of the rights under this section and the services described in section 503(c) of the Victims’ Rights and Restitution Act of 1990 (42 U.S.C. 10607(c)) 11 See References in Text note below. and provided contact information for the Office of the Victims’ Rights Ombudsman of the Department of Justice. (b) Rights Afforded.—(1) In general.—In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a). Before making a determination described in subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any decision denying relief under this chapter shall be clearly stated on the record. (2) Habeas corpus proceedings.—(A) In general.—In a Federal habeas corpus proceeding arising out of a State conviction, the court shall ensure that a crime victim is afforded the rights described in paragraphs (3), (4), (7), and (8) of subsection (a). (B) Enforcement.—(i) In general.—These rights may be enforced by the crime victim or the crime victim’s lawful representative in the manner described in paragraphs (1) and (3) of subsection (d). (ii) Multiple victims.—In a case involving multiple victims, subsection (d)(2) shall also apply. (C) Limitation.—This paragraph relates to the duties of a court in relation to the rights of a crime victim in Federal habeas corpus proceedings arising out of a State conviction, and does not give rise to any obligation or requirement applicable to personnel of any agency of the Executive Branch of the Federal Government. (D) Definition.—For purposes of this paragraph, the term “crime victim” means the person against whom the State offense is committed or, if that person is killed or incapacitated, that person’s family member or other lawful representative. (c) Best Efforts To Accord Rights.—(1) Government.—Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a). (2) Advice of attorney.—The prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in subsection (a). (3) Notice.—Notice of release otherwise required pursuant to this chapter shall not be given if such notice may endanger the safety of any person. (d) Enforcement and Limitations.—(1) Rights.—The crime victim or the crime victim’s lawful representative, and the attorney for the Government may assert the rights described in subsection (a). A person accused of the crime may not obtain any form of relief under this chapter. (2) Multiple crime victims.—In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings. (3) Motion for relief and writ of mandamus.—The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim’s right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed, unless the litigants, with the approval of the court, have stipulated to a different time period for consideration. In deciding such application, the court of appeals shall apply ordinary standards of appellate review. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion. (4) Error.—In any appeal in a criminal case, the Government may assert as error the district court’s denial of any crime victim’s right in the proceeding to which the appeal relates. (5) Limitation on relief.—In no case shall a failure to afford a right under this chapter provide grounds for a new trial. A victim may make a motion to re-open a plea or sentence only if—(A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied; (B) the victim petitions the court of appeals for a writ of mandamus within 14 days; and (C) in the case of a plea, the accused has not pled to the highest offense charged. This paragraph does not affect the victim’s right to restitution as provided in title 18, United States Code. (6) No cause of action.—Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages. Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction. (e) Definitions.—For the purposes of this chapter:(1) Court of appeals.—The term “court of appeals” means—(A) the United States court of appeals for the judicial district in which a defendant is being prosecuted; or (B) for a prosecution in the Superior Court of the District of Columbia, the District of Columbia Court of Appeals. (2) Crime victim.—(A) In general.—The term “crime victim” means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. (B) Minors and certain other victims.—In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim’s rights under this chapter, but in no event shall the defendant be named as such guardian or representative. (3) District court; court.—The terms “district court” and “court” include the Superior Court of the District of Columbia. (f) Procedures To Promote Compliance.—(1) Regulations.—Not later than 1 year after the date of enactment of this chapter, the Attorney General of the United States shall promulgate regulations to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations described in law respecting crime victims. (2) Contents.—The regulations promulgated under paragraph (1) shall—(A) designate an administrative authority within the Department of Justice to receive and investigate complaints relating to the provision or violation of the rights of a crime victim; (B) require a course of training for employees and offices of the Department of Justice that fail to comply with provisions of Federal law pertaining to the treatment of crime victims, and otherwise assist such employees and offices in responding more effectively to the needs of crime victims; (C) contain disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims; and (D) provide that the Attorney General, or the designee of the Attorney General, shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the Attorney General by a complainant.

18 U.S.C. § 3771A Motion to vacate; expungement; mitigating factors

(a) Definitions.—In this section—(1) the term “child” means an individual who has not attained 18 years of age; (2) the term “covered prisoner” means an individual who—(A) was convicted of a level A offense or level B offense; (B) was sentenced to a term of imprisonment for the offense described in subparagraph (A); and (C) is, or was previously, imprisoned or incarcerated under such sentence for a term of imprisonment; (3) the terms “employee” and “officer” have the meanings given the terms in section 2105 of title 5; (4) the term “Federal offense” means an offense that is punishable under Federal law; (5) the term “level A offense” means a Federal offense that is not a violent crime; (6) the term “level B offense”—(A) means a Federal offense that is a violent crime; and (B) does not include a Federal offense that is a violent crime of which a child was a victim; (7) the term “victim of trafficking” has the meaning given that term in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102); and (8) the term “violent crime” has the meaning given the term “crime of violence” in section 16(a) of this title. (b) Motions To Vacate Convictions or Expunge Arrests.—(1) In general.—(A) Convictions of level a offenses.—A person convicted of any level A offense (or an attorney representing such a person) may move the court that imposed the sentence for the level A offense to vacate the judgment of conviction if the level A offense was committed as a direct result of the person having been a victim of trafficking. (B) Arrests for level a offenses.—A person arrested for any level A offense (or an attorney representing such a person) may move the district court of the United States for the district and division embracing the place where the person was arrested to expunge all records of the arrest if the conduct or alleged conduct of the person that resulted in the arrest was directly related to the person having been a victim of trafficking. (C) Arrests for level b offenses.—A person arrested for any level B offense (or an attorney representing such a person) may move the district court of the United States for the district and division embracing the place where the person was arrested to expunge all records of the arrest if—(i) the conduct or alleged conduct of the movant that resulted in the arrest was directly related to the movant having been a victim of trafficking; and (ii)(I) the movant was acquitted of the level B offense; (II) the Government did not pursue, or the Government moved to dismiss, criminal charges against the movant for the level B offense; or (III)(aa) the charges against the movant for the level B offense were reduced to an offense that is a level A offense; and (bb) the movant was acquitted of the level A offense, the Government did not pursue, or the Government moved to dismiss, criminal charges against the movant for the level A offense, or any subsequent conviction of the level A offense was vacated. (2) Contents of motion.—A motion described in paragraph (1) shall—(A) be in writing; (B) describe any supporting evidence; (C) state the offense; and (D) include copies of any documents showing that the movant is entitled to relief under this section. (3) Hearing.—(A) Mandatory hearing.—(i) Motion in opposition.—Not later than 30 days after the date on which a motion is filed under paragraph (1), the Government may file a motion in opposition of the motion filed under paragraph (1). (ii) Mandatory hearing.—If the Government files a motion described in clause (i), not later than 15 days after the date on which the motion is filed, the court shall hold a hearing on the motion. (B) Discretionary hearing.—If the Government does not file a motion described in subparagraph (A)(i), the court may hold a hearing on the motion not later than 45 days after the date on which a motion is filed under paragraph (1). (4) Factors.—(A) Vacating convictions of level a offenses.—The court may grant a motion under paragraph (1)(A) if, after notice to the Government and an opportunity to be heard, the court finds, by a preponderance of the evidence, that—(i) the movant was convicted of a level A offense; and (ii) the participation in the level A offense by the movant was a direct result of the movant having been a victim of trafficking. (B) Expunging arrests for level a offenses.—The court may grant a motion under paragraph (1)(B) if, after notice to the Government and an opportunity to be heard, the court finds, by a preponderance of the evidence, that—(i) the movant was arrested for a level A offense; and (ii) the conduct or alleged conduct that resulted in the arrest was directly related to the movant having been a victim of trafficking. (C) Expunging arrests for level b offenses.—The court may grant a motion under paragraph (1)(C) if, after notice to the Government and an opportunity to be heard, the court finds, by a preponderance of the evidence, that—(i) the movant was arrested for a level B offense and the conduct or alleged conduct that resulted in the arrest was directly related to the movant having been a victim of trafficking; and (ii)(I) the movant was acquitted of the level B offense; (II) the Government did not pursue, or the Government moved to dismiss, criminal charges against the movant for the level B offense; or (III)(aa) the charges against the movant for the level B offense were reduced to a level A offense; and (bb) the movant was acquitted of the level A offense, the Government did not pursue, or the Government moved to dismiss, criminal charges against the movant for the level A offense, or any subsequent conviction of that level A offense was vacated. (5) Supporting evidence.—(A) In general.—For purposes of this section, in determining whether the movant is a victim of trafficking, the court—(i) shall consider an affidavit or sworn testimony of an anti-human trafficking service provider or clinician; and (ii) may consider any supporting evidence the court determines is of sufficient credibility and probative value, including sworn testimony from a law enforcement officer detailing the role of the movant in coercing other victims of trafficking into committing criminal offenses. (B) Affidavit or sworn testimony sufficient evidence.—The affidavit or sworn testimony described in subparagraph (A)(i) shall be sufficient evidence to vacate a conviction or expunge an arrest under this section if the court determines that—(i) the affidavit or sworn testimony is credible; and (ii) no other evidence is readily available. (6) Conviction or arrest of other persons not required.—It shall not be necessary that any person other than the movant be convicted of or arrested for an offense before the movant may file a motion under paragraph (1). (7) Denial of motion.—(A) Finality.—If the court denies a motion filed under paragraph (1), the denial shall be final, except as provided under subparagraph (C) of this paragraph and subject to the discovery of any new and compelling evidence or information. (B) Reasons for denial.—If the court denies a motion filed under paragraph (1), the court shall state the reasons for the denial in writing. (C) Reasonable time to cure deficiencies in motion.—If the court denies a motion filed under paragraph (1) due to a curable deficiency in the motion, the court shall allow the movant sufficient time to cure the deficiency. (8) Appeal.—An order granting or denying a motion under this section may be appealed in accordance with section 1291 of title 28. (c) Vacatur of Convictions.—(1) In general.—If the court grants a motion to vacate a conviction of a level A offense under subsection (b), the court shall immediately—(A) vacate the conviction for cause; (B) set aside the verdict and enter a judgment of acquittal; and (C) enter an expungement order that directs that there be expunged from all official records all references to—(i) the arrest of the movant for the level A offense; (ii) the institution of criminal proceedings against the movant relating to the level A offense; and (iii) the results of the proceedings. (2) Limitation.—Nothing in this subsection requires a court to amend or remove any fine or restitution order in a criminal or civil proceeding. (3) Effect.—If a conviction is vacated under an order entered under paragraph (1), the conviction shall not be regarded as a conviction under Federal law and the movant for whom the conviction was vacated shall be considered to have the status occupied by the movant before the arrest or the institution of the criminal proceedings related to such conviction. (d) Expungement of Arrests.—(1) In general.—If the court grants a motion to expunge all records of an arrest for an offense under subsection (b), the court shall immediately enter an expungement order that directs that there be expunged from all official records all references to—(A) the arrest of the movant for the offense; (B) the institution of any criminal proceedings against the movant relating to the offense; and (C) the results of the proceedings, if any. (2) Effect.—If an arrest is expunged under an order entered under paragraph (1) the arrest shall not be regarded as an arrest under Federal law and the movant for whom the arrest is expunged shall be considered to have the status occupied by the movant before the arrest or the institution of the criminal proceedings related to such arrest, if any. (e) Mitigating Factors.—(1) In general.—The court that imposed sentence for a level A offense or level B offense upon a covered prisoner may reduce the term of imprisonment for the offense—(A) upon—(i) motion by the covered prisoner; or (ii) the court’s own motion; (B) after notice to the Government; (C) after considering—(i) the factors set forth in section 3553(a); (ii) the nature and seriousness of the danger to any person, if applicable; and (iii) the community, or any crime victims; and (D) if the court finds, by a preponderance of the evidence, that the covered prisoner committed the offense as a direct result of the covered prisoner having been a victim of trafficking. (2) Requirement.—Any proceeding under this subsection shall be subject to section 3771. (3) Particularized inquiry.—For any motion under paragraph (1), the Government shall conduct a particularized inquiry of the facts and circumstances of the original sentencing of the covered prisoner in order to assess whether a reduction in sentence would be consistent with this section. (f) Additional Actions by Court.—The court shall, upon granting a motion under this section, take any additional action necessary to grant the movant full relief. (g) No Fees.—A person may not be required to pay a filing fee, service charge, copay fee, processing fee, or any other charge for filing a motion under this section. (h) Confidentiality of Movant.—(1) In general.—A motion under this section and any documents, pleadings, or orders relating to the motion shall be filed under seal. (2) Information not available for public inspection.—An officer or employee may not make available for public inspection any report, paper, picture, photograph, court file, or other document, in the custody or possession of the officer or employee, that identifies the movant. (i) Applicability.—This section shall apply to any conviction or arrest occurring before, on, or after the date of enactment of this section.