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                                                       PRINTER'S NO. 886



No. 765 Session of 2007



                                     AN ACT

     1  Amending Title 42 (Judiciary and Judicial Procedure) of the
     2     Pennsylvania Consolidated Statutes, providing for wrongful
     3     conviction and imprisonment.

     4     The General Assembly finds that innocent persons who have
     5  been wrongfully convicted of crimes and subsequently imprisoned
     6  have been uniquely victimized and have difficulty achieving
     7  legal redress due to a variety of substantive and technical
     8  obstacles in the law and that such persons should have an
     9  available avenue of redress over and above the existing tort
    10  remedies to seek compensation for damages. In light of the
    11  particular and substantial horror of being imprisoned for a
    12  crime one did not commit, the General Assembly intends by
    13  enactment of the provisions of this act that those persons who
    14  can demonstrate that they were imprisoned despite their actual
    15  innocence be able to recover damages.
    16     The General Assembly of the Commonwealth of Pennsylvania
    17  hereby enacts as follows:
    18     Section 1.  Chapter 85 of Title 42 of the Pennsylvania

     1  Consolidated Statutes is amended by adding a subchapter to read:
     2                           SUBCHAPTER B.1
     4  Sec.
     5  8531.  Eligibility.
     6  8532.  Statement of claim.
     7  8533.  Presentation of claim.
     8  8534.  Award.
     9  8535.  Notice.
    10  8536.  Statute of limitations.
    11  8537.  Right of appeal.
    12  § 8531.  Eligibility.
    13     Except as otherwise provided in this subchapter, a person
    14  convicted and subsequently imprisoned for one or more crimes
    15  which he did not commit may present a claim for damages against
    16  the Commonwealth.
    17  § 8532.  Statement of claim.
    18     (a)  Evidentiary proof required.--In order to obtain a
    19  judgment in his claim for unjust conviction and imprisonment,
    20  the claimant must file a verified claim and establish by
    21  documentary evidence that is both clear and compelling that:
    22         (1)  the claimant was convicted of or was persuaded to
    23     plead guilty, no contest or nolo contendere to one or more
    24     criminal offenses against the Commonwealth and subsequently
    25     sentenced to a term of imprisonment and has served all or any
    26     part of the sentence;
    27         (2)  (i)  the claimant was pardoned upon the ground of
    28         innocence of the crime or crimes for which the claimant
    29         was sentenced and which are the grounds for the
    30         complaint; or
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     1             (ii)  the claimant's judgment of conviction was
     2         reversed or vacated, or his plea of guilty, no contest or
     3         nolo contendere was withdrawn by leave of court, and the
     4         indictment or information dismissed or, if a new trial
     5         was ordered, either the claimant was found not guilty at
     6         the new trial or was not retried and the indictment or
     7         information dismissed, provided that the count or counts
     8         dismissed were the sole basis for the imprisonment
     9         complained of;
    10         (3)  the claimant's claim is not time-barred by the
    11     provisions of section 8536 (relating to statute of
    12     limitations); and
    13         (4)  the claimant has never been incarcerated in this
    14     Commonwealth or in another jurisdiction for commission of a
    15     felony.
    16     (b)  Statement of facts.--The claim shall state facts in
    17  sufficient detail to permit the court to find that the claimant
    18  is likely to succeed at trial in proving that:
    19         (1)  the claimant did not commit any of the acts charged
    20     in the accusatory instrument or the claimant's acts or
    21     omissions charged in the accusatory instrument did not
    22     constitute a crime; and
    23         (2)  the claimant did not commit or suborn perjury or
    24     fabricate evidence to cause or bring about his conviction. A
    25     guilty plea to a crime the claimant did not commit does not
    26     constitute perjury under this paragraph.
    27     (c)  Dismissal.--If the court finds after reading the claim
    28  that the claimant is not likely to succeed at trial, it shall
    29  dismiss the claim, either on its own motion or on the motion of
    30  the Commonwealth.
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     1  § 8533.  Presentation of claim.
     2     All claims of wrongful conviction and imprisonment shall be
     3  presented to and heard by the court of common pleas of this
     4  Commonwealth in accordance with the Pennsylvania Rules of Civil
     5  Procedure.
     6  § 8534.  Award.
     7     (a)  Damages.--If the court finds that the claimant was
     8  wrongfully convicted and imprisoned, it shall award damages
     9  amounting to the greater of the following:
    10         (1)  for each day that the claimant was incarcerated, a
    11     sum of money equivalent to the highest amount that a member
    12     of the General Assembly would have been entitled to collect
    13     for that day as a per diem under section 162(h)(1)(B) of the
    14     Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. §
    15     162(h)(1)(B)); or
    16         (2)  the claimant's actual salary or wage loss during the
    17     period of incarceration, calculated on the basis of the
    18     claimant's salary or wages immediately prior to the arrest
    19     for the crime for which the claimant was unjustly convicted
    20     and imprisoned.
    21     (b)  Award.--If the court finds that the claimant was
    22  wrongfully convicted and imprisoned:
    23         (1)  (i)  The court shall award damages which shall
    24         include $50,000 for each year served on death row, as
    25         adjusted to account for:
    26                 (A)  inflation from the date of enactment; and
    27                 (B)  partial years served.
    28             (ii)  Economic damages, including, but not limited
    29         to, lost wages, costs associated with the claimant's
    30         criminal defense and efforts to prove the claimant's
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     1         innocence and medical expenses required after release.
     2             (iii)  Up to ten years of physical and mental health
     3         care through the State employees health care system, to
     4         be offset by any amount provided through the claimant's
     5         employers during that time period.
     6             (iv)  Compensation for any reasonable reintegrative
     7         services and mental and physical health care costs
     8         incurred by the claimant for the time period between the
     9         claimant's release from mistaken incarceration and the
    10         date of the claimant's award.
    11             (v)  Reasonable attorney fees calculated at 10% of
    12         the damage award plus expenses. These fees, exclusive of
    13         expenses, shall not exceed $75,000, as adjusted to
    14         account for inflation from the date of enactment. These
    15         fees shall not be deducted from the compensation due to
    16         the claimant, nor is counsel entitled to receive
    17         additional fees from the client.
    18         (2)  The damage award shall not be subject to:
    19             (i)  any cap applicable to private parties in civil
    20         lawsuits; or
    21             (ii)  any taxes, except for those portions of the
    22         judgment awarded as attorney fees for bringing a claim
    23         under this chapter.
    24         (3)  The acceptance by the claimant of any such award,
    25     compromise or settlement shall be in writing and shall,
    26     except when procured by fraud, be final and conclusive on the
    27     claimant and shall constitute a complete release of any claim
    28     against the Commonwealth and all political subdivisions of
    29     the Commonwealth and a complete bar to any action by the
    30     claimant against the Commonwealth or any political
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     1     subdivision of the Commonwealth by reason of the same subject
     2     matter.
     3         (4)  The damage award shall not be offset by any expenses
     4     incurred by the Commonwealth or any political subdivision of
     5     the Commonwealth, including, but not limited to, expenses
     6     incurred to secure the claimant's custody or to feed, clothe
     7     or provide medical services for the claimant, nor shall the
     8     court offset against the award the value of any services or
     9     reduction in fees for services or the value thereof to be
    10     provided to the claimant that may be awarded to the claimant
    11     pursuant to this section.
    12     (c)  Source of funds.--Damages awarded shall be paid out of
    13  the General Fund.
    14  § 8535.  Notice.
    15     (a)  Court.--A court granting judicial relief consistent with
    16  the criteria set forth in this subchapter shall provide a copy
    17  of this subchapter to the individual seeking such relief at the
    18  time the court determines that the claimant's claim is likely to
    19  succeed. The individual shall be required to acknowledge his
    20  receipt of a copy of this subchapter in writing on a form
    21  established by the Supreme Court. The acknowledgment shall be
    22  entered on the docket by the court and shall be admissible in
    23  any proceeding filed by a claimant under this subchapter.
    24     (b)  Parole board.--The Pennsylvania Board of Probation and
    25  Parole, upon the issuance of a full pardon on or after the
    26  effective date of this subchapter, shall provide a copy of this
    27  subchapter to the individual at the time of the granting of the
    28  pardon. The individual shall be required to acknowledge his
    29  receipt of a copy of this subchapter in writing on a form
    30  established by the parole board, which shall be retained on file
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     1  by the parole board as part of its official records and shall be
     2  admissible in any proceeding filed by a claimant under this
     3  subchapter.
     4     (c)  Failure to provide notice.--In the event a claimant
     5  granted judicial relief or a full pardon on or after the
     6  effective date of this subchapter shows he did not properly
     7  receive a copy of the information required by this section, the
     8  claimant shall receive a one-year extension on the three-year
     9  time limit provided in section 8536 (relating to statute of
    10  limitations).
    11     (d)  Notice by Supreme Court.--The Supreme Court shall make
    12  reasonable attempts to notify all persons pardoned or granted
    13  judicial relief consistent with this subchapter before the
    14  enactment of this subchapter of their rights under this
    15  subchapter.
    16  § 8536.  Statute of limitations.
    17     An action for compensation brought by a wrongfully convicted
    18  person under the provisions of this subchapter shall be
    19  commenced within three years after either the grant of a pardon
    20  or the grant of judicial relief and satisfaction of other
    21  conditions described in section 8532 (relating to statement of
    22  claim), provided, however, that any action by the Commonwealth
    23  challenging or appealing the grant of such judicial relief shall
    24  toll the three-year period. Persons convicted, incarcerated and
    25  released from custody prior to the effective date of this
    26  subchapter shall commence an action under this subchapter within
    27  five years of the effective date.
    28  § 8537.  Right of appeal.
    29     Any party is entitled to the rights of appeal afforded
    30  parties in a civil action in accordance with the Pennsylvania
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     1  Rules of Civil Procedure.
     2     Section 2.  This act shall take effect in 60 days.

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