BILL REQ. #:  H-4338.1 

Read first time 01/15/10.   Referred to Committee on Judiciary.

     AN ACT Relating to providing compensation for persons who have been wrongfully convicted and imprisoned; adding a new section to chapter 41.05 RCW; adding a new section to chapter 72.09 RCW; and adding a new chapter to Title 4 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   INTENT. (1) The legislature finds that persons who have been wrongfully convicted and imprisoned for crimes they did not commit have been uniquely victimized and have suffered substantial injustice. The legislature also finds that those persons do not have adequate legal redress to recover damages and restore their lives. Thus, the legislature intends to create a civil cause of action that is above and beyond any existing tort remedy and that is specifically created to address the unique situation faced by those who have been wrongfully convicted and imprisoned.
     (2) The legislature also recognizes that persons who have been wrongfully convicted and imprisoned may need more than monetary damages to assist them in restoring their lives. The legislature finds that programs such as Washington's corrections clearinghouse and reentry services established by the department of corrections offer valuable workforce training, educational services, and other resources that can help offenders reintegrate back into society. The legislature encourages the courts to assist persons who have been wrongfully convicted and imprisoned in accessing these resources. In addition, because of the wrongfully convicted person's substantial burden of proof required under this legislation before the person can recover damages, the legislature encourages the court, in exercising its discretion regarding the weight and admissibility of evidence, to give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence, or other factors not caused by the wrongfully convicted person or those acting on his or her behalf.

NEW SECTION.  Sec. 2   STATEMENT OF CLAIM. (1) Any person convicted in a court in this state and subsequently imprisoned for one or more felonies which he or she was wrongfully convicted may file a claim for damages against the state.
     (2) If the person is incapacitated and incapable of filing the claim, or if he or she is a minor, or is a nonresident of the state, the claim may be filed on behalf of that person by any relative, attorney, or agent acting as the person's representative. However, if the person entitled to file a claim under subsection (1) of this section is deceased, no claim may be brought on his or her behalf.

NEW SECTION.  Sec. 3   VENUE AND SERVICE OF PROCESS. (1) All claims of wrongful conviction and imprisonment shall be filed in superior court. The venue for such actions shall be governed by RCW 4.92.010.
     (2) Service of the summons and complaint shall be governed by RCW 4.92.020.

NEW SECTION.  Sec. 4   PRESENTATION OF CLAIM. (1) In order to file an actionable claim for wrongful conviction and imprisonment, the claimant must establish by documentary evidence that:
     (a) The claimant has been convicted of one or more felonies in state court and subsequently sentenced to a term of imprisonment, and has served all or part of the sentence;
     (b) The claimant is not currently incarcerated for any offense;
     (c)(i) The claimant has been pardoned on grounds consistent with innocence for the felony or felonies for which the claimant was sentenced and which are grounds for the complaint; or
     (ii) The claimant's judgment of conviction was reversed or vacated and the accusatory instrument dismissed or, if a new trial was ordered, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument dismissed; provided that the judgment of conviction was reversed or vacated, or the accusatory instrument was dismissed, on grounds consistent with innocence or because the statute on which the accusatory instrument was based or the application of the statute violated the Constitution of the United States or the state Constitution; and
     (d) The claim is not time-barred by the provisions of section 9 of this act.
     (2) In addition to the requirements in subsection (1) of this section, the claim shall state facts in sufficient detail to permit the court to determine whether the claimant is likely to succeed at trial in proving that:
     (a) The claimant did not commit any of the acts charged in the accusatory instrument or the claimant's acts or omissions charged in the accusatory instrument did not constitute a crime; and
     (b) The claimant did not commit or suborn perjury, or fabricate evidence to cause or bring about the conviction. A guilty plea to a crime the claimant did not commit, or a confession that is later proven to be false, does not constitute perjury or fabricated evidence under this subsection.
     (3) The claimant shall verify the claim unless he or she is incapacitated, in which case the person filing on behalf of the claimant shall verify the claim.
     (4)(a) If the court finds after reading the claim that the claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state.
     (b) If the court dismisses the claim, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.

NEW SECTION.  Sec. 5   RIGHT OF APPEAL. Any party is entitled to the rights of appeal afforded parties in a civil action following a decision on such motions. In the case of dismissal of a claim, review of the superior court action shall be de novo.

NEW SECTION.  Sec. 6   JUDGMENT AND AWARD. (1) In order to obtain a judgment in his or her favor, the claimant must show by clear and convincing evidence that:
     (a) The claimant was convicted of one or more felonies in state court and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;
     (b) The claimant is not currently incarcerated for any offense;
     (c)(i) The claimant has been pardoned on grounds consistent with innocence for the felony or felonies for which the claimant was sentenced and which are the grounds for the complaint; or
     (ii) The claimant's judgment of conviction was reversed or vacated and the accusatory instrument dismissed or, if a new trial was ordered, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument dismissed; provided that the judgment of conviction was reversed or vacated, or the accusatory instrument was dismissed, on grounds consistent with innocence or because the statute on which the accusatory instrument was based or the application of the statute violated the Constitution of the United States or the state Constitution;
     (d) The claimant did not commit any of the acts charged in the accusatory instrument, or the claimant's acts or omissions charged in the accusatory instrument did not constitute a crime; and
     (e) The claimant did not commit or suborn perjury, or fabricate evidence to cause or bring about his or her conviction. A guilty plea to a crime the claimant did not commit, or a confession that is later proven to be false, does not constitute perjury or fabricated evidence under this subsection.
     (2) Any pardon or proclamation issued to the claimant by the governor shall be admissible as evidence when it is certified by the officer having lawful custody of the pardon or proclamation, with the seal of the office affixed, or with the official certificate of such officer.
     (3) If the jury or, in the case where the right to a jury is waived, the court finds by clear and convincing evidence that the claimant was wrongfully convicted and imprisoned, the court shall award the following damages to the claimant:
     (a) Not less than fifty thousand dollars for each year of actual confinement including time spent awaiting trial, with an additional fifty thousand dollars for each year served on death row, as adjusted for partial years served and to account for inflation from the effective date of this section;
     (b) Economic damages including but not limited to loss of earnings, costs associated with the claimant's criminal defense at trial and on appeal, restitution paid by the claimant that was a requirement of the judgment and sentence, and medical expenses for mental and physical health costs incurred after the claimant's release that are reasonably related to the claimant's imprisonment;
     (c) Compensation for any reasonable reintegrative services, such as job training, that are paid for by the claimant;
     (d) Up to ten years of eligibility to participate in the health insurance plans and contracts offered by the public employees' benefits board. The court shall issue an order directing the health care authority to enroll the claimant as provided for in section 10 of this act. The court order must specify the amount of time for which the claimant is eligible to receive benefits and that the claimant shall not be responsible for any costs associated with participation. The claimant's eligibility under this subsection shall not extend to the claimant's spouse or dependents; and
     (e) Reasonable attorneys' fees for successfully bringing the wrongful conviction claim. The attorneys' fees shall be calculated at ten percent of the damage award plus expenses. However, attorneys' fees, exclusive of expenses, shall not exceed seventy-five thousand dollars. These fees shall not be deducted from the compensation due to the claimant and counsel shall not be entitled to receive additional fees from the client. The court may not award any attorneys' fees to the claimant if the claimant fails to prove he or she was wrongfully convicted and imprisoned.
     (4) The damage award shall not include any punitive or noneconomic damages.
     (5) The damage award shall not be offset by any expenses incurred by the state or any political subdivision of the state including, but not limited to, expenses incurred to secure the claimant's custody, or to feed, clothe, or provide medical services for the claimant, nor shall the court offset against the award the value of any services or reduction in fees for services to be provided to the claimant as part of the damages awarded to the claimant pursuant to this section.
     (6) The court may order the claimant's record of conviction vacated if the record has not already been vacated, sealed, expunged, or destroyed under court rules. The requirements for vacating records under RCW 9.94A.640 shall not apply.
     (7) Upon request of the claimant, the court shall refer the claimant to the department of corrections for access to the department's reentry services, if available, including but not limited to the department's community-based transition programs and long-term support programs for education, monitoring, mentoring, life skills training, assessment, job skills development, mental health and substance abuse treatment.

NEW SECTION.  Sec. 7   NOTICE. (1) On or after the effective date of this section, when a court grants judicial relief, such as reversal and vacation of a person's conviction, consistent with the criteria established in section 4(1)(c)(ii) of this act, the court shall provide to the person at the time the relief is granted a copy of sections 2 through 11 of this act.
     (2) The clemency and pardons board or the indeterminate sentence review board, whichever is applicable, upon issuance of a pardon by the governor on grounds consistent with innocence on or after the effective date of this section, shall provide a copy of sections 2 through 11 of this act to the individual pardoned.
     (3) If an individual entitled to receive the information required under this section shows that he or she was not provided with the information, he or she shall have an additional twelve months, beyond the statute of limitations under section 9 of this act, to bring a claim under this chapter.

NEW SECTION.  Sec. 8   LEGAL REMEDIES NOT BARRED. (1) The provisions of this chapter shall not preclude any other legal remedy available to the claimant to seek redress for the wrongful conviction and imprisonment.
     (2) The state may not assert as a defense to a claim under this chapter a release dismissal agreement, plea agreement, or any similar agreement whereby the prosecutor's office or an agent acting on its behalf agrees to take or refrain from certain action if the accused individual agrees to forgo legal action against the government.

NEW SECTION.  Sec. 9   STATUTE OF LIMITATIONS. Except as provided in section 7(3) of this act, an action for compensation under this chapter shall be commenced within three years after either the grant of a pardon or the grant of judicial relief and satisfaction of other conditions described in section 5 of this act; provided, however, that any action by the state challenging or appealing the grant of judicial relief shall toll the three-year period. Persons who have been wrongfully convicted, imprisoned, and released from custody before the effective date of this section may commence an action under this chapter within five years of the effective date of this section.

NEW SECTION.  Sec. 10   A new section is added to chapter 41.05 RCW to read as follows:
     (1) An individual who was awarded damages under section 6 of this act is eligible to participate in the health insurance plans and contracts offered by the public employees' benefits board as prescribed by court order, and the individual is not responsible for any costs associated with that participation.
     (2) The health care authority, upon receipt of the court order, must enroll the individual in a health insurance plan in compliance with the terms and conditions of the court order.
     (3) The director shall adopt rules under RCW 41.50.050 as the director may find necessary to implement this section and to avoid conflicts with any applicable federal or state laws.

NEW SECTION.  Sec. 11   A new section is added to chapter 72.09 RCW to read as follows:
     When a court refers a person to the department under section 6 of this act as part of the person's judgment in a wrongful conviction claim, the department shall provide reasonable reentry services to the person. Nothing in this section requires the department to establish new reentry programs or services.

NEW SECTION.  Sec. 12   SEVERABILITY CLAUSE. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 13   CAPTIONS NOT LAW. Captions used in this chapter are not any part of the law.

NEW SECTION.  Sec. 14   CODIFICATION DIRECTION. Sections 1 through 9, 12, and 13 of this act constitute a new chapter in Title 4 RCW.