THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY McGEEHAN, WATERS, B. BOYLE, K. BOYLE, CLYMER, GEIST, HARHAI, HORNAMAN, JOHNSON, JOSEPHS, KIRKLAND, MAHONEY, PASHINSKI, PAYTON AND READSHAW, JANUARY 24, 2011

REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 24, 2011  

AN ACT

Amending Title 42 (Judiciary and Judicial Procedure) of the

Pennsylvania Consolidated Statutes, providing for wrongful

conviction and imprisonment.

The General Assembly finds that innocent persons who have

been wrongfully convicted of crimes and subsequently imprisoned

have been uniquely victimized and have difficulty achieving

legal redress due to a variety of substantive and technical

obstacles in the law and that such persons should have an

available avenue of redress over and above the existing tort

remedies to seek compensation for damages. In light of the

particular and substantial horror of being imprisoned for a

crime one did not commit, the General Assembly intends by

enactment of the provisions of this act that those persons who

can demonstrate that they were imprisoned despite their actual

innocence be able to recover damages.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Chapter 85 of Title 42 of the Pennsylvania

Consolidated Statutes is amended by adding a subchapter to read:

SUBCHAPTER B.1

CLAIMS FOR WRONGFUL CONVICTION AND IMPRISONMENT

Sec.

8531.  Eligibility.

8532.  Statement of claim.

8533.  Presentation of claim.

8534.  Award.

8535.  Notice.

8536.  Statute of limitations.

8537.  Right of appeal.

§ 8531.  Eligibility.

Except as otherwise provided in this subchapter, a person

convicted and subsequently imprisoned for one or more crimes

which he did not commit may present a claim for damages against

the Commonwealth.

§ 8532.  Statement of claim.

(a)  Evidentiary proof required.--In order to obtain a

judgment in his claim for unjust conviction and imprisonment,

the claimant must file a verified claim and establish by

documentary evidence that is both clear and compelling that:

(1)  the claimant was convicted of or was persuaded to

plead guilty, no contest or nolo contendere to one or more

criminal offenses against the Commonwealth and subsequently

sentenced to a term of imprisonment and has served all or any

part of the sentence;

(2)  (i)  the claimant was pardoned upon the ground of

innocence of the crime or crimes for which the claimant

was sentenced and which are the grounds for the

complaint; or

(ii)  the claimant's judgment of conviction was

reversed or vacated, or his plea of guilty, no contest or

nolo contendere was withdrawn by leave of court, and the

indictment or information dismissed or, if a new trial

was ordered, either the claimant was found not guilty at

the new trial or was not retried and the indictment or

information dismissed, provided that the count or counts

dismissed were the sole basis for the imprisonment

complained of;

(3)  the claimant's claim is not time-barred by the

provisions of section 8536 (relating to statute of

limitations); and

(4)  the claimant has never been incarcerated in this

Commonwealth or in another jurisdiction for commission of a

felony.

(b)  Statement of facts.--The claim shall state facts in

sufficient detail to permit the court to find that the claimant

is likely to succeed at trial in proving that:

(1)  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

(2)  the claimant did not commit or suborn perjury or

fabricate evidence to cause or bring about his conviction. A

guilty plea to a crime the claimant did not commit does not

constitute perjury under this paragraph.

(c)  Dismissal.--If the court finds after reading the claim

that the claimant is not likely to succeed at trial, it shall

dismiss the claim, either on its own motion or on the motion of

the Commonwealth.

§ 8533.  Presentation of claim.

All claims of wrongful conviction and imprisonment shall be

presented to and heard by the court of common pleas of this

Commonwealth in accordance with the Pennsylvania Rules of Civil

Procedure.

§ 8534.  Award.

(a)  Damages.--If the court finds that the claimant was

wrongfully convicted and imprisoned, it shall award damages

amounting to the greater of the following:

(1)  for each day that the claimant was incarcerated, a

sum of money equivalent to the highest amount that a member

of the General Assembly would have been entitled to collect

for that day as a per diem under section 162(h)(1)(B) of the

Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. §

162(h)(1)(B)); or

(2)  the claimant's actual salary or wage loss during the

period of incarceration, calculated on the basis of the

claimant's salary or wages immediately prior to the arrest

for the crime for which the claimant was unjustly convicted

and imprisoned.

(b)  Award.--If the court finds that the claimant was

wrongfully convicted and imprisoned:

(1)  (i)  The court shall award damages which shall

include $50,000 for each year served on death row, as

adjusted to account for:

(A)  inflation from the date of enactment; and

(B)  partial years served.

(ii)  Economic damages, including, but not limited

to, lost wages, costs associated with the claimant's

criminal defense and efforts to prove the claimant's

innocence and medical expenses required after release.

(iii)  Up to ten years of physical and mental health

care through the State employees health care system, to

be offset by any amount provided through the claimant's

employers during that time period.

(iv)  Compensation for any reasonable reintegrative

services and mental and physical health care costs

incurred by the claimant for the time period between the

claimant's release from mistaken incarceration and the

date of the claimant's award.

(v)  Reasonable attorney fees calculated at 10% of

the damage award plus expenses. These fees, exclusive of

expenses, shall not exceed $75,000, as adjusted to

account for inflation from the date of enactment. These

fees shall not be deducted from the compensation due to

the claimant, nor is counsel entitled to receive

additional fees from the client.

(2)  The damage award shall not be subject to:

(i)  any cap applicable to private parties in civil

lawsuits; or

(ii)  any taxes, except for those portions of the

judgment awarded as attorney fees for bringing a claim

under this chapter.

(3)  The acceptance by the claimant of any such award,

compromise or settlement shall be in writing and shall,

except when procured by fraud, be final and conclusive on the

claimant and shall constitute a complete release of any claim

against the Commonwealth and all political subdivisions of

the Commonwealth and a complete bar to any action by the

claimant against the Commonwealth or any political

subdivision of the Commonwealth by reason of the same subject

matter.

(4)  The damage award shall not be offset by any expenses

incurred by the Commonwealth or any political subdivision of

the Commonwealth, including, but not limited to, expenses

incurred to secure the claimant's custody or to feed, clothe

or provide medical services for the claimant, nor shall the

court offset against the award the value of any services or

reduction in fees for services or the value thereof to be

provided to the claimant that may be awarded to the claimant

under this section.

(c)  Source of funds.--Damages awarded shall be paid out of

the General Fund.

§ 8535.  Notice.

(a)  Court.--A court granting judicial relief consistent with

the criteria set forth in this subchapter shall provide a copy

of this subchapter to the individual seeking such relief at the

time the court determines that the claimant's claim is likely to

succeed. The individual shall be required to acknowledge his

receipt of a copy of this subchapter in writing on a form

established by the Supreme Court. The acknowledgment shall be

entered on the docket by the court and shall be admissible in

any proceeding filed by a claimant under this subchapter.

(b)  Parole board.--The Pennsylvania Board of Probation and

Parole, upon the issuance of a full pardon on or after the

effective date of this subchapter, shall provide a copy of this

subchapter to the individual at the time of the granting of the

pardon. The individual shall be required to acknowledge his

receipt of a copy of this subchapter in writing on a form

established by the parole board, which shall be retained on file

by the parole board as part of its official records and shall be

admissible in any proceeding filed by a claimant under this

subchapter.

(c)  Failure to provide notice.--In the event a claimant

granted judicial relief or a full pardon on or after the

effective date of this subchapter shows he did not properly

receive a copy of the information required by this section, the

claimant shall receive a one-year extension on the three-year

time limit provided in section 8536 (relating to statute of

limitations).

(d)  Notice by Supreme Court.--The Supreme Court shall make

reasonable attempts to notify all persons pardoned or granted

judicial relief consistent with this subchapter before the

enactment of this subchapter of their rights under this

subchapter.

§ 8536.  Statute of limitations.

An action for compensation brought by a wrongfully convicted

person under the provisions of this subchapter shall 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 8532 (relating to statement of

claim), provided, however, that any action by the Commonwealth

challenging or appealing the grant of such judicial relief shall

toll the three-year period. Persons convicted, incarcerated and

released from custody prior to the effective date of this

subchapter shall commence an action under this subchapter within

five years of the effective date.

§ 8537.  Right of appeal.

Any party is entitled to the rights of appeal afforded

parties in a civil action in accordance with the Pennsylvania

Rules of Civil Procedure.

Section 2.  This act shall take effect in 60 days.