BILL REQ. #:  H-0484.1 

Read first time 01/23/13.   Referred to Committee on Judiciary.

     AN ACT Relating to creating a claim for compensation for wrongful conviction and imprisonment; adding a new section to chapter 28B.15 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   The legislature recognizes that persons convicted and imprisoned for crimes they did not commit have been uniquely victimized. Having suffered tremendous injustice by being stripped of their lives and liberty, they are forced to endure imprisonment and are later stigmatized as felons. A majority of those wrongly convicted in Washington state have no remedy available under the law for the destruction of their personal lives resulting from errors in our criminal justice system. The legislature intends to provide an avenue for those who have been wrongly convicted in Washington state to redress the lost years of their lives, and help to address the unique challenges faced by the wrongly convicted after exoneration.

NEW SECTION.  Sec. 2   (1) Any person convicted in superior court and subsequently imprisoned for one or more felonies of which he or she is actually innocent may file a claim for compensation against the state.
     (2) For purposes of this chapter, a person is:
     (a) "Actually innocent" of a felony if he or she did not engage in any illegal conduct alleged in the charging documents; and
     (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 the claimant by an authorized agent.
     (b) A claim filed under this chapter survives to the personal representative of the claimant as provided in RCW 4.20.046.

NEW SECTION.  Sec. 3   (1) All claims under this chapter shall be filed in superior court. The venue for such actions shall be governed by RCW 4.12.020.
     (2) Service of the summons and complaint shall be governed by RCW 4.28.080.

NEW SECTION.  Sec. 4   (1) In order to file an actionable claim for compensation under this act, the claimant must establish by documentary evidence that:
     (a) The claimant has been convicted of one or more felonies in superior 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 that are the basis for the claim;
     (c)(i) The claimant has been pardoned on grounds consistent with innocence for the felony or felonies that are the basis for the claim; or
     (ii) The claimant's judgment of conviction was reversed or vacated and the accusatory instrument dismissed on the basis of significant new exculpatory information or, if a new trial was ordered following the presentation of significant new exculpatory information, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument dismissed; and
     (d) The claim is not time barred by section 9 of this act.
     (2) In addition to the requirements in subsection (1) of this section, the claimant shall state facts in sufficient detail for the finder of fact to determine that:
     (a) The claimant did not engage in any illegal conduct alleged in the charging documents; 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 determined by a court to be false, does not constitute perjury or fabricated evidence under this subsection.
     (3) Convictions vacated, overturned, or subject to resentencing pursuant to In re: Personal Detention of Andress, 147 Wn.2d 602 (2002) may not serve as the basis for a claim under this chapter unless the claimant otherwise satisfies the qualifying criteria set forth in section 2 of this act and this section.
     (4) The claimant shall verify the claim unless he or she is incapacitated, in which case the personal representative or agent filing on behalf of the claimant shall verify the claim.
     (5) If the attorney general concedes that the claimant was wrongly convicted, the court shall award compensation as provided in section 6 of this act.
     (6)(a) If the attorney general does not concede that the claimant was wrongly convicted and the court finds after reading the claim that the claimant does not meet the filing criteria set forth in this section, it may dismiss the claim, either on its own motion or on the motion of the attorney general.
     (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   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   (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 superior court and subsequently sentenced to a term of imprisonment, and has served all or any 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 conviction other than those that are the basis for the claim;
     (c)(i) The claimant has been pardoned on grounds consistent with innocence for the felony or felonies that are the basis for the claim; or
     (ii) The claimant's judgment of conviction was reversed or vacated and the accusatory instrument dismissed on the basis of significant new exculpatory information or, if a new trial was ordered following the presentation of significant new exculpatory information, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument dismissed;
     (d) The claimant did not engage in any illegal conduct alleged in the charging documents; 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 determined by a court 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 of the governor 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 parties.
     (4) The claimant shall not be compensated for any period of time in which he or she was serving a term of imprisonment or a concurrent sentence for any conviction other than the felony or felonies that are the basis for the claim.
     (5) 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 wrongly convicted, the court shall order the state to pay the claimant the following compensation award, as adjusted for partial years served and to account for inflation from the effective date of this section:
     (a) Fifty thousand dollars for each year of actual confinement including time spent awaiting trial and an additional fifty thousand dollars for each year served on death row;
     (b) 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 claim;
     (c) 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 that are grounds for the compensation claim. The funds shall be paid on the claimant's behalf in a lump sum payment to the department of social and health services for disbursement under Title 26 RCW;
     (d) Reimbursement for all restitution, assessments, fees, court costs, and all other sums paid by the claimant as required by pretrial orders and the judgment and sentence; and
     (e) Attorneys' fees for successfully bringing the wrongful conviction claim calculated at ten percent of the monetary damages awarded under subsection (5)(a) and (b) of this section, plus expenses. However, attorneys' fees and expenses shall not exceed seventy-five thousand dollars. These fees shall not be deducted from the compensation award due to the claimant and counsel shall not be entitled to receive additional fees from the client related to the claim. 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 award shall not include any punitive damages.
     (7) The compensation award shall not be offset by any expenses incurred by the state, the county, 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 compensation award the value of any services or reduction in fees for services to be provided to the claimant as part of the award under this section.
     (8) The compensation award is not income for tax purposes, except attorneys' fees awarded under subsection (5)(e) of this section.
     (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, mental health and substance abuse treatment.

NEW SECTION.  Sec. 7   (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 of this act, the court shall provide to the claimant a copy of sections 2 through 11 of this act at the time the relief is granted.
     (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   (1) Nothing in this chapter precludes any existing remedy available to the claimant related to his or her wrongful conviction and imprisonment.
     (2) If a claimant is awarded compensation under this act and receives a tort award related to his or her wrongful conviction and incarceration, the claimant shall reimburse the state for the lesser of:
     (a) The amount of the compensation award, excluding the portion awarded pursuant to section 6(5) (c) through (e) of this act; or
     (b) The amount received by the claimant under the tort award.
     (3) A release dismissal agreement, plea agreement, or any similar agreement whereby a 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 county, the state of Washington, or any political subdivision, is admissible and should be evaluated in light of all the evidence. However, any such agreement is not dispositive of the question of whether the claimant was wrongly convicted or entitled to compensation under this act.

NEW SECTION.  Sec. 9   Except as provided in section 7 of this act, an action for compensation under this chapter must be commenced within three years after the grant of a pardon, the grant of judicial relief and satisfaction of other conditions described in section 2 of this act, or release from custody, whichever is later; provided, however, that any action by the state challenging or appealing the grant of judicial relief or release from custody shall toll the three-year period. Any persons meeting the criteria set forth in section 2 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. 10   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 6 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 ages seventeen through 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) For the purposes of 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 6 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 6 of this act.

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 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 9 of this act constitute a new chapter in Title 4 RCW.