BILL REQ. #:  S-1659.1 

READ FIRST TIME 02/21/11.   

     AN ACT Relating to creating a claim for wrongful conviction and imprisonment; 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. The legislature finds that persons who have been 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. A majority of those wrongly convicted do not have legal redress to recover damages in order to restore their lives. The legislature, therefore, intends to provide redress for those who have been wrongly convicted in recognition of the lost years of their lives, and the unique circumstances they face after exoneration.

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 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 in the charging documents;
     (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. 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 for the conviction or convictions, 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 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 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 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 for the finder of fact to determine that:
     (a) The claimant did not commit any of the acts in the charging documents; and
     (b) In light of all the evidence whether or not admissible at trial, the claimant did not commit or suborn perjury, or fabricate evidence to cause or bring about the conviction.
     (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 2 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. 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 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 commit any of the acts in the charging documents; and
     (e) In light of all the evidence whether or not admissible at trial, the claimant did not commit or suborn perjury, or fabricate evidence to cause or bring about his or her conviction.
     (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 parties.
     (4) If the state concedes that the claimant was wrongly convicted, the court shall award compensation as provided in subsection (5)(a) through (d) of this section.
     (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 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 up to twenty thousand dollars for each year of actual confinement including time spent awaiting trial and time spent on death row.
     (b) The court may direct that a portion of the amount awarded in (a) of this subsection be 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 the child support order;
     (c) The court may direct that a portion of the amount awarded in (a) of this subsection be for economic damages for lost wages.
     (d) The court may award 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 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 amount awarded in subsection (5)(a) of this section shall not include any punitive damages.
     (7) The 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)(d) of this section, compensation awarded under this section 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, the department of social and health services, or the employment security department, whichever is appropriate, 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. 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 this chapter.
     (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 this chapter 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) 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.

NEW SECTION.  Sec. 9   STATUTE OF LIMITATIONS. Except as provided in section 7(3) of this act, an action for compensation under this chapter must 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. 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 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. 11   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. 12   CODIFICATION DIRECTION. Sections 1 through 9 of this act constitute a new chapter in Title 4 RCW.