BILL REQ. #:  H-3285.1 

Prefiled 12/30/11. Read first time 01/09/12.   Referred to Committee on Judiciary.

     AN ACT Relating to creating a claim for wrongful conviction and imprisonment; 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; 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 finds that persons convicted and imprisoned for crimes they did not commit have been uniquely victimized. They have suffered tremendous injustice by being stripped of their lives and liberty, forced to endure prison for a crime they did not commit. A majority of those wrongly convicted do not have legal redress to recover damages in order to restore their lives. The legislature intends to provide redress for those who have been wrongly convicted in Washington state, in recognition of the lost years of their lives and the unique challenges they face after exoneration. The legislature further intends that compensation be paid by the county in which the wrongful conviction occurred, and under no circumstances will a person found wrongly convicted in this state be deprived of his or her award once a judgment for compensation has been successfully secured.

NEW SECTION.  Sec. 2   (1) Any person convicted in state court 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 county in which he or she was prosecuted.
     (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 accusatory instrument; 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 of wrongful conviction and imprisonment 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.
     (3) The attorney general shall represent any county named as the adverse party in a claim for compensation under this chapter.

NEW SECTION.  Sec. 4   (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 that are the basis for the compensation claim;
     (c)(i) The claimant has been pardoned on grounds consistent with innocence for the felony or felonies that are the basis for the compensation claim; or
     (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; 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 claim 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 accusatory instrument; 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) 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 compensation 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)(a) If the court finds after reading the claim that the claimant does not meet the filing criteria set forth in this section, it shall 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.
     (6) If the attorney general concedes that the claimant was wrongly convicted, the court shall award compensation as provided in section 6 of this act.

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 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)(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 those that are the basis for the compensation claim;
     (c)(i) The claimant has been pardoned on grounds consistent with innocence for the felony or felonies that are the basis for the compensation claim; or
     (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;
     (d) The claimant did not engage in any illegal conduct alleged in the accusatory instrument; 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. Evidence of a guilty plea or confession later proven to be false may be considered by the trier of fact in determining a claim for compensation under this chapter.
     (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 crime other than the felony or felonies that are the basis for the compensation claim.
     (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 claimant and order the county to pay the following compensation, as adjusted for partial years served and to account for inflation from the effective date of this section:
     (a) Monetary damages 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 claimant'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) 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;
     (d) Higher education tuition waivers for the claimant and all qualifying children as provided in section 10 of this act;
     (e) 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 under an appropriate existing eligibility type, as provided for in section 11 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 dependents shall not be responsible for any costs associated with participation; and
     (f) Reasonable attorneys' fees for successfully bringing the wrongful conviction claim. The attorneys' fees shall be calculated at ten percent of the monetary damage awarded under subsection (5)(a) of this section, 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, 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 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) Compensation 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, 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(1)(c)(ii) 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) As a condition of accepting compensation under this chapter, the claimant forfeits all other claims related to the underlying wrongful conviction cognizable under state tort law. However, nothing in this chapter precludes any federal remedy available to the claimant related to his or her wrongful conviction and imprisonment.
     (2) In the event that the claimant receives a federal tort award related to his or her wrongful conviction and incarceration, the claimant shall reimburse the entity that provided compensation under this act for the amount of compensation received or the amount received by the claimant under the tort award, whichever is less.
     (3) The county 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 county, the state of Washington, or any political subdivision.
     (4) If the county does not pay the claim within one hundred eighty days of the court order, the court shall order the state to satisfy the judgment. Upon payment by the state, the state is entitled to reimbursement, from the county named as the adverse party in the compensation claim, in an amount equal to the value of the claim paid and any reasonable fees and interest imposed by the court.

NEW SECTION.  Sec. 9   Except as provided in section 7(3) 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 5 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 between the age of seventeen and twenty-six 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 41.05 RCW to read as follows:
     (1) An individual who was awarded damages under section 6 of this act and his or her dependent children and spouse or domestic partner are eligible to participate in the health insurance plans and contracts offered by the public employees' benefits board as prescribed by court order, and none of those persons eligible under this section are responsible for any costs associated with that participation.
     (2) The health care authority, upon receipt of the court order, shall enroll the individual and his or her dependent children and spouse or domestic partner in a health insurance plan under an appropriate existing eligibility type 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. However, nothing in this section requires the director or the health care authority to develop a new eligibility type.

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