BILL REQ. #:  S-0760.1 

Read first time 01/26/11.   Referred to Committee on Human Services & Corrections.

     AN ACT Relating to establishing a claims process for persons convicted and imprisoned for crimes they did not commit; adding a new section to chapter 41.05 RCW; adding a new section to chapter 43.20A RCW; adding a new section to chapter 72.09 RCW; adding a new section to chapter 50.08 RCW; adding a new chapter to Title 4 RCW; and providing an expiration date.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that persons who have been wrongly convicted and imprisoned for crimes they did not commit have been uniquely victimized and have suffered tremendous injustice by being stripped of their lives and liberty and forced to endure the horror of prison. The legislature also finds that a majority of those wrongly convicted do not have legal redress to recover damages in order to restore their lives. Thus, the legislature intends to provide compassionate assistance to those who have been convicted and imprisoned for crimes they did not commit in acknowledgment of the unique circumstances they face.
     (2) The legislature also recognizes that resources in addition to monetary compensation, including access to physical and mental health care and job training, are critically important tools for those wrongly convicted to begin restoring their lives.

NEW SECTION.  Sec. 2   (1) Any person convicted in a superior court of the state of Washington 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) 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.

NEW SECTION.  Sec. 3   (1) All claims of wrongful conviction and imprisonment shall be filed with the risk management division.
     (2) All claims of wrongful conviction and imprisonment shall be reviewed by the risk management division to determine an initial valuation, and to delegate to the appropriate officer to investigate, negotiate, compromise, and settle the claim.
     (3) All claims of wrongful conviction and imprisonment that result in a lawsuit shall be forwarded to the attorney general's office. Thereafter the attorney general and the risk management division shall collaborate in the investigation, denial, or settlement of the claim.
     (4) The valuation of a specific claim of wrongful conviction and imprisonment against the state shall be privileged and confidential.
     (5) "Risk management division" means the division of the office of financial management that carries out the powers and duties under this chapter relating to claim filing, claims administration, and claims payment.

NEW SECTION.  Sec. 4   (1) In order to file a 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 a superior court of the state of Washington 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 dispositive in extent or exculpatory in nature 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 the provisions of section 10 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 division of risk management 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, 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 information to the division of risk management related to a claim for compensation under this section.
     (5)(a) If the division of risk management finds after reading the claim that the claimant does not meet the filing criteria set forth in both this section and section 2 of this act, it shall reject the claim.
     (b) If the division of risk management rejects the claim, the division shall set forth the reasons for its decision in writing.

NEW SECTION.  Sec. 5   (1) If the division of risk management finds that the claimant meets all the requirements set out in sections 2 and 4 of this act then the claimant must be awarded:
     (a) Compensation, as adjusted for partial years served and to account for inflation from the effective date of this section, of:
     (i) Fifty thousand dollars for each year of actual confinement including time spent awaiting trial; and
     (ii) Twenty-five 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 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 distribution to the obligee under the child support order;
     (c) Costs associated with the claimant's criminal defense at trial and on appeal;
     (d) Reimbursement for all restitution, assessments, fees, and any other sums paid by the claimant as required by the judgment and sentence;
     (e) Reimbursement for any reasonable reintegrative services and mental, physical health, and dental care costs incurred by the claimant in the time period between his or her release from custody and the date of the award; and
     (f) Reasonable attorneys' fees for successfully bringing the wrongful conviction claim. The attorneys' fees shall be calculated at ten percent of the damage award, as calculated under (a) through (e) of this subsection, 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 risk management division may not award any attorneys' fees to the claimant if the claimant fails to prove he or she was wrongly convicted.
     (2) The compensation and damage award shall not include any punitive damages.
     (3) 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 risk management division 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.
     (4)(a) A person awarded compensation under this section is entitled to an annuity payment, based on a preset value sum equal to the total amount to which the person is awarded under this section.
     (b) The annuity payments under this section are payable in equal monthly installments for the life of the clamant and must be based on a five percent per annum interest rate and other actuarial factors within the discretion of the risk management division.
     (c) The annuity payments may not be accelerated, deferred, increased, or decreased. The claimant may not sell, mortgage or otherwise encumber, or anticipate the payments, wholly or partly, by assignment or otherwise.
     (5) Upon a finding that the claimant has met the requirements set out in sections 2 and 4 of this act, the risk management division must award 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 risk management division shall direct 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 risk management division shall 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.
     (6) Upon request of the claimant, the risk management division shall refer the claimant to the department of corrections, the employment security department, 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) The risk management division shall not make any payment of claims for monetary compensation under section 5 subsections (1) through (4) until July 1, 2015.
     (2) This section expires July 1, 2015.

NEW SECTION.  Sec. 7   Claims approved by the risk management division shall be submitted to the legislature for appropriation in the same manner as judgments against the state under RCW 4.92.040(4) through (6).

NEW SECTION.  Sec. 8   (1) A person who files a claim under this chapter may appeal the decision of the risk management division if the claim:
     (a) Is denied; or
     (b) Is disputed by the person filing the claim and the person disagrees with the amount of compensation determined by the risk management division.
     (2) In the case of denial of a claim, review of the risk management division decision shall be de novo.
     (3) The venue for such action shall be governed by RCW 4.92.010.

NEW SECTION.  Sec. 9   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 of this act, the court shall:
     (1) Provide to the person at the time the relief is granted a copy of chapter 4.--- RCW (the new chapter created in section 17 of this act). If an individual entitled to receive the information required under this subsection 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 11 of this act, to bring a claim under this chapter.
     (2) Upon request by the person wrongly convicted, seal the claimant's record of conviction and issue the claimant a written court order certifying that the claimant has been exonerated.
     (3) Upon request of the claimant, 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.

NEW SECTION.  Sec. 10   (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 pursuant to 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 division of risk management may not deny a claim submitted under this chapter based upon 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. 11   Except as provided in section 8(1)(b) of this act, a claim for compensation under this chapter shall be commenced within three years after 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. Any person meeting the criteria set forth in section 2 of this act who was wrongly convicted before the effective date of this section may file a claim for compensation under this chapter within three years after the effective date of this section.

NEW SECTION.  Sec. 12   A new section is added to chapter 41.05 RCW to read as follows:
     (1) An individual who was awarded compensation 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 public employees' benefits board as prescribed by direction from the risk management division, and no person eligible under this section is responsible for any costs associated with that participation.
     (2) The health care authority, upon receipt of the direction from the risk management division, 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 direction from the division of risk management.
     (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. 13   A new section is added to chapter 43.20A RCW to read as follows:
     When the division of risk management 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 reentry services to the person. Nothing in this section requires the department to establish new reentry programs or services.

NEW SECTION.  Sec. 14   A new section is added to chapter 72.09 RCW to read as follows:
     When the risk management division 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 reentry services to the person. Nothing in this section requires the department to establish new reentry programs or services.

NEW SECTION.  Sec. 15   A new section is added to chapter 50.08 RCW to read as follows:
     When the risk management division 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 reentry services to the person. Nothing in this section requires the department to establish new reentry programs or services.

NEW SECTION.  Sec. 16   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. 17   Sections 1 through 11 of this act constitute a new chapter in Title 4 RCW.