BILL REQ. #:  H-0770.1 

Read first time 01/21/11.   Referred to Committee on Judiciary.

     AN ACT Relating to providing compensation for persons who have been wrongly convicted and imprisoned; adding a new section to chapter 28B.15 RCW; adding a new section to chapter 41.05 RCW; adding a new section to chapter 72.09 RCW; adding a new chapter to Title 4 RCW; and providing an effective date.

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

NEW SECTION.  Sec. 1   (1) Any person convicted in a court in this state and subsequently imprisoned for one or more felonies of which he or she is actually innocent may file a claim for compensation and damages against the state.
     (2) For purposes of this chapter, a person is:
     (a) "Actually innocent" of a felony if he or she did not commit any of the acts charged in the accusatory instrument, or the person's acts or omissions charged in the accusatory instrument did not constitute a crime;
     (b) "Wrongly convicted" if he or she was charged, convicted, and imprisoned for one or more felonies of which he or she is actually innocent.
     (3)(a) If the person entitled to file a claim under subsection (1) of this section 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.
     (b) If the person entitled to file a claim under subsection (1) of this section is deceased, the claim may be filed on behalf of his or her estate by the person's surviving spouse or domestic partner, attorney, or agent acting as the person's personal representative.

NEW SECTION.  Sec. 2   (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. 3   (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)(i) The claimant is not currently incarcerated for any offense; and
     (ii) During the period of confinement for which the claimant is seeking compensation, the claimant was not serving a term of imprisonment or a concurrent sentence for any crime other than the felony or felonies for which the claimant was sentenced and which are grounds for the compensation claim;
     (c)(i) The claimant's judgment of conviction was reversed or vacated and the accusatory instrument dismissed on the basis of significant new information or, if a new trial was ordered following the presentation of significant new information, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument dismissed; or
     (ii) 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 section 8 of this act.
     (2) In addition to the requirements in subsection (1) of this section, the claim shall state facts in sufficient detail for the finder of fact to determine 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 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 or deceased, in which case the person filing on behalf of the claimant shall verify the claim.
     (4) The office of the county prosecuting attorney responsible for charging and prosecuting the felony or felonies for which the claimant was sentenced and which are grounds for the complaint is not a party to the action, but may submit briefs to the court related to a claim for compensation under this section.
     (5)(a) If the court finds after reading the claim that the claimant does not meet the filing criteria set forth in section 3 of this act, 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. 4   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. 5   (1) In order to obtain a judgment in his or her favor, the claimant must show by a preponderance of the 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 compensation claim;
     (ii) The claimant's judgment of conviction was reversed or vacated and the accusatory instrument dismissed on the basis of significant new information or, if a new trial was ordered following the presentation of significant new information, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument dismissed; or
     (iii) 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 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) In exercising its discretion regarding the weight and admissibility of evidence, the court shall 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 wrongly convicted person or those acting on his or her behalf.
     (4) If the state concedes that the claimant was wrongly convicted, the court shall award compensation as provided in subsection (5) of this section.
     (5) If the jury or, in the case where the right to a jury is waived, the court finds by a preponderance of the evidence that the claimant was wrongly convicted, the court shall award the following compensation and damages to the claimant:
     (a) Compensation, as adjusted for partial years served and to account for inflation from the effective date of this section, in an amount not less than:
     (i) Fifty thousand dollars for each year of actual confinement including time spent awaiting trial; and
     (ii) Fifty thousand dollars for each year served on death row; and
     (iii) Twenty-five thousand dollars for each year served on parole, community custody, or as a registered sex offender pursuant only to the felony or felonies which are grounds for the compensation claim;
     (b) Compensation for child support payments owed by the claimant that became due and interest on child support arrearages that accrued while the claimant was in custody on the felony or felonies which are grounds for the compensation claim. Such funds shall be paid on the person's behalf in a lump-sum payment to the department of social and health services for disbursement under Title 26 RCW;
     (c) Economic damages for lost wages including but not limited to the greater amount equal to:
     (i) Loss of earnings calculated by the claimant's gross income the year before the wrongful conviction, multiplied by each year of incarceration for the felony or felonies which are grounds for the compensation claim; or
     (ii) Gross wages earned by the claimant while incarcerated for the felony or felonies which are grounds for the complaint, adjusted to the minimum hourly wage in effect in the state the year the claimant was released from custody and offset by any portion already received by the claimant;
     (d) Reimbursement for all restitution, assessments, fees, and any other sums paid by the claimant as required by the judgment and sentence;
     (e) Higher education tuition waivers for the claimant and all qualifying children as provided in section 9 of this act;
     (f) Up to ten years of eligibility to participate in the health and dental 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 and his or her dependent children and spouse or domestic partner as provided for in section 10 of this act. The court order must specify the amount of time for which the claimant and his or her dependent children and spouse or domestic partner are eligible to receive benefits, and that the claimant and his or her dependent children and spouse or domestic partner shall not be responsible for any costs associated with participation; and
     (g) 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 wrongly convicted.
     (6) The compensation and damage award shall not include any punitive damages.
     (7) The compensation and 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. The court shall not 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.
     (8) Except attorneys' fees under subsection (5)(g) of this section, compensation and damages awarded under this act shall not be considered income for tax purposes.
     (9)(a) Upon finding that the claimant was wrongly convicted, the court shall seal the claimant's record of conviction.
     (b) Upon request of the claimant, the court may order the claimant's record of conviction vacated if the record has not already been vacated, expunged, or destroyed under court rules. The requirements for vacating records under RCW 9.94A.640 shall not apply.
     (10) Upon request of the claimant, the court shall refer the claimant to the department of corrections or the department of social and health services for access to reentry services, if available, including but not limited to the community-based transition programs and long-term support programs for education, mentoring, life skills training, assessment, job skills development, and mental health and substance abuse treatment.

NEW SECTION.  Sec. 6   (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 3(1)(c)(i) of this act, the court shall provide to the person at the time the relief is granted a copy of chapter 4.---RCW (the new chapter created in section 13 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 1 through 10 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 8 of this act, to bring a claim under this chapter.

NEW SECTION.  Sec. 7   (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) If the claimant pursues a separate claim for tortious conduct or a civil rights violation based on the wrongful conviction, the related arrest, or subsequent incarceration, the statute of limitations under this chapter is tolled pending resolution of that claim, and the tort award shall offset any compensation awarded under this chapter.
     (3) 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 state.

NEW SECTION.  Sec. 8   Except as provided in section 6(3) of this act, an action for compensation under this chapter must be commenced within three years after the grant of judicial relief and satisfaction of other conditions described in section 4 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. Any person meeting the criteria set forth in section 1 of this act who was wrongly convicted before the effective date of this section may commence an action under this chapter within three years after the effective date of this section.

NEW SECTION.  Sec. 9   A new section is added to chapter 28B.15 RCW to read as follows:
     (1) Subject to the conditions in subsection (2) of this section and the limitations in RCW 28B.15.910, the governing boards of the state universities, the regional universities, The Evergreen State College, and the community colleges, shall waive all tuition and fees for the following persons:
     (a) A wrongly convicted person; and
     (b) Any child or stepchild of a wrongly convicted person who was born or became the stepchild of, or was adopted by, the wrongly convicted person before compensation is awarded under section 5 of this act.
     (2) The following conditions apply to waivers under subsection (1) of this section:
     (a) A wrongly convicted person must be a Washington domiciliary to be eligible for the tuition waiver.
     (b) A child must be a Washington domiciliary between the age of seventeen and twenty-six years to be eligible for the tuition waiver. A child's marital status does not affect eligibility.
     (c) Each recipient's continued participation is subject to the school's satisfactory progress policy.
     (d) Tuition waivers for graduate students are not required for those who qualify under subsection (1) of this section but are encouraged.
     (e) Recipients who receive a waiver under subsection (1) of this section may attend full-time or part-time. Total credits earned using the waiver may not exceed two hundred quarter credits, or the equivalent of semester credits.
     (3) Private vocational schools and private higher education institutions are encouraged to provide waivers consistent with the terms of this section.
     (4) The definitions in this subsection apply throughout this section.
     (a) "Child" means a biological child, stepchild, or adopted child who was born of, became the stepchild of, or was adopted by a wrongly convicted person before compensation is awarded under section 5 of this act.
     (b) "Fees" includes all assessments for costs incurred as a condition to a student's full participation in coursework and related activities at an institution of higher education.
     (c) "Washington domiciliary" means a person whose true, fixed, and permanent house and place of habitation is the state of Washington. In ascertaining whether a wrongly convicted person or child is domiciled in the state of Washington, public institutions of higher education shall, to the fullest extent possible, rely upon the standards provided in RCW 28B.15.013.
     (d) "Wrongly convicted person" means a Washington domiciliary who was awarded damages under section 5 of this act.

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 5 of this act and his or her dependent children and spouse or domestic partner are eligible to participate in the health and dental insurance plans and contracts offered by the board as prescribed by court order, and no person eligible under this section is responsible for any costs associated with that participation.
     (2) The authority, upon receipt of the court order, must enroll the individual and his or her dependent children and spouse or domestic partner in a health and dental insurance plan in compliance with the terms and conditions of the court order.
     (3) The administrator shall adopt rules under RCW 41.50.050 as the administrator 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 5 of this act as part of the person's award in a wrongful conviction claim, the department shall provide reasonable access to existing reentry programs and services. Nothing in this section requires the department to establish new reentry programs or services.

NEW SECTION.  Sec. 12   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   Sections 1 through 8 of this act constitute a new chapter in Title 4 RCW.

NEW SECTION.  Sec. 14   This act takes effect July 1, 2014.