September 9, 2008, Introduced by Senators SCOTT and CLARK-COLEMAN and referred to the Committee on Judiciary.
A bill to provide compensation to individuals who are
wrongfully incarcerated for crimes; to make appropriations for the
compensation of wrongfully incarcerated individuals; to provide for
the powers and duties of certain state and local governmental
officers and entities; and to provide remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"victims of wrongful incarceration compensation act".
Sec. 2. As used in this act:
(a) "Board" means the state administrative board created by
section 1 of 1921 PA 2, MCL 17.1.
(b) "Felony", except as defined otherwise in this act, means
an offense under the laws of this state that is punishable by
imprisonment for more than 1 year.
(c) "Governmental agencies of this state" means this state and
political subdivisions of this state, as "state" and "political
subdivision" are defined in section 1 of 1964 PA 170, MCL 691.1401.
(d) "Petitioner" means the individual who files an action
under section 3.
(e) "Prosecuting attorney" means that term as defined in
section 1 of chapter VIIA of the code of criminal procedure, 1927
PA 175, MCL 767A.1.
(f) "Sentencing court" means the court that sentenced the
petitioner for the felony conviction.
(g) "SOAHR" means the state office of administrative hearings
and rules created by Executive Reorganization Order No. 2005-1, MCL
445.2021.
Sec. 3. (1) Subject to subsection (2), an individual is
eligible for compensation under this act if the individual was
convicted of and incarcerated for a felony and both of the
following are applicable:
(a) The conviction is vacated by a court.
(b) The individual did not commit the felony or aid, abet, or
act as an accomplice or accessory to a person who committed the
felony.
(2) An individual is not eligible for compensation under this
act if any of the following are true:
(a) Before the individual's incarceration, the individual was
convicted of or, regardless of adjudication, pled guilty or nolo
contendere to another felony.
(b) During the individual's incarceration, the individual was
convicted of or, regardless of adjudication, pled guilty or nolo
contendere to another felony.
(c) During the individual's incarceration, the individual was
serving a concurrent sentence for another felony for which the
individual was not wrongfully convicted.
(3) As used in subsection (2), "felony" includes a crime
committed in another state, the elements of which would constitute
a felony in this state, or a crime designated as a felony under the
laws of the United States. As used in subsection (2), felony does
not include an offense committed by a juvenile over which a court
has jurisdiction under section 2 of chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.2, or a similar law of another
state or the United States.
Sec. 5. (1) An individual may bring an action claiming that he
or she is eligible for compensation under this act by filing a
complaint with the sentencing court. The petitioner shall make the
complaint under oath and state all of the following in the
complaint:
(a) That there is verifiable and substantial evidence that the
individual is entitled to compensation under section 3(1).
(b) With particularity, the nature and significance of the
evidence on which the individual relies in making the statement
under subdivision (a).
(c) That the individual is not disqualified under section
3(2).
(2) The petitioner shall file a complaint under this section
within 1 of the following time periods:
(a) If the conviction is vacated by an order that became final
on or after the effective date of this act, within 90 days after
the order vacating the conviction becomes final.
(b) If the conviction is vacated by an order that became final
before the effective date of this act, within 2 years after the
effective date of this act.
Sec. 7. A petitioner shall promptly serve a copy of the
complaint on the prosecuting attorney who prosecuted the felony
case. The prosecuting attorney shall respond to the complaint
within 30 days after the prosecuting attorney receives the
complaint. The prosecuting attorney shall do 1 of the following in
the response:
(a) Certify to the sentencing court that, based on the
complaint and verifiable and substantial evidence of actual
innocence, no further criminal proceedings in the case can or will
be initiated by the prosecuting attorney, that no questions of fact
remain as to the petitioner's wrongful incarceration, and that the
petitioner is eligible to seek compensation under section 3(2).
(b) Contest the nature, significance, or effect of the
evidence of the petitioner's innocence, the facts related to the
petitioner's incarceration, or the petitioner's eligibility to seek
compensation under section 3(2).
Sec. 9. (1) If the prosecuting attorney makes a certification
under section 7(a) and if the sentencing court determines, based on
the complaint and the prosecuting attorney's certification, that
the petitioner has presented clear and convincing evidence that the
petitioner is eligible for compensation under section 3(1), the
court shall enter its order certifying to the board that the
petitioner is eligible for compensation under section 3(1) and that
the prosecuting attorney certifies that the petitioner is eligible
for compensation under section 3(2).
(2) If the prosecuting attorney contests the petitioner's
claim under section 7(b), the sentencing court shall determine,
based on the complaint, the prosecuting attorney's response, and
any supporting documentation, whether, by a preponderance of the
evidence, the petitioner is eligible for compensation under section
3(2), regardless of eligibility under section 3(1). If the court
determines that the petitioner is ineligible under section 3(2), it
shall dismiss the complaint.
(3) If the sentencing court determines under subsection (2)
that the petitioner is eligible for compensation under section
3(2), the court shall state its determination in writing and
transfer the complaint to SOAHR for findings of fact and a
recommendation under section 11.
Sec. 11. (1) An action transferred under section 9 shall be
determined by a hearings officer appointed by SOAHR to make a
determination of the petitioner's eligibility for compensation
under section 3(1). The transferred action shall be conducted under
procedures applicable in a contested case under chapter 4 of the
administrative procedures act of 1969, 1969 PA 306, MCL 24.271 to
24.287, to the extent that the procedures under that chapter do not
conflict with this act.
(2) A hearing shall be held in a case under this section
within 120 days after the transfer. The prosecuting attorney may
appear at the hearing to contest the evidence presented by the
petitioner or the significance or effect of the evidence.
(3) In a case under this section, the petitioner has the
burden of establishing his or her eligibility for compensation
under section 3(1) by clear and convincing evidence.
(4) Within 45 days after the hearing under this section, the
hearings officer shall issue an opinion containing findings and a
recommendation and shall file the opinion with the sentencing
court.
(5) The sentencing court shall review the findings and
recommendation contained in the opinion issued under subsection (4)
and, within 60 days after the opinion is issued, shall enter its
order adopting or declining to adopt the findings and
recommendation of the hearing officer.
(6) If, after making its review under subsection (5), the
sentencing court concludes that the petitioner is eligible for
compensation under section 3(1), the court shall certify all of the
following to the board in its order:
(a) Either of the following:
(i) That the opinion of the hearings officer finds that the
petitioner has met the burden of establishing by clear and
convincing evidence that the petitioner is entitled to compensation
under section 3(1).
(ii) That the court declines to adopt the findings and
recommendation of the hearings officer and finds that the
petitioner has met the burden of establishing by clear and
convincing evidence that the petitioner is entitled to compensation
under section 3(1).
(b) That the court has determined that the findings and
recommendations on which its order is based are supported by
competent, substantial evidence.
Sec. 13. (1) An individual who a sentencing court determines
under section 9 or 11 to be eligible for compensation under this
act may file an application for compensation with the board as
required in this section. A personal representative of the estate
of a decedent is not entitled to apply on behalf of the decedent
for compensation under this section.
(2) An individual shall apply to the board under this section
within 2 years after the sentencing court enters its order under
section 9 or 11 determining that the individual is eligible for
compensation under this act.
(3) The board may adopt rules regarding the forms and
procedures related to applications for compensation under this
section.
(4) An application under this section shall include all of the
following:
(a) A certified copy of the order vacating the conviction.
(b) A certified copy of the sentencing court's order under
section 9 or 11 determining the applicant to be eligible for
compensation.
(c) Certified copies of the original judgment and sentence.
(d) Documentation demonstrating the length of the sentence
served, including documentation from the department of corrections
regarding the applicant's admission into and release from the
custody of the department of corrections.
(e) Positive proof of identification, including 2 full sets of
fingerprints administered by a law enforcement agency and a current
form of photo identification, demonstrating that the applicant is
the individual who was wrongfully incarcerated.
(f) Documentation of any fine, penalty, or court costs that
were imposed on and paid by the individual.
(g) Documentation of any reasonable attorney fees and expenses
described in section 15.
(h) Any other documentation, evidence, or information required
by rules adopted by the board.
(5) The board shall forward the fingerprints of the applicant
to the department of state police. The department shall conduct a
check of the criminal records of this state and shall forward the
second set of fingerprints to the federal bureau of investigation
for national criminal records checks. The department of state
police shall submit results of the state and national criminal
records checks to the board.
(6) On receipt of an application under this section, the board
shall examine the application and notify the applicant within 30
days of any error or omission and request any additional
information relevant to the review of the application. The
applicant may supplement the application within 15 days after
notification under this subsection. The board shall not deny an
application because the applicant failed to correct an error or
omission or supply additional information unless the board timely
notified the applicant of the error or omission or requested
additional information under this subsection.
(7) The board shall process and review each completed
application within 90 days. Within 5 business days after the board
determines whether the claim for compensation meets the
requirements of this act, the board shall notify the applicant of
its determination.
(8) Within 15 days after issuing notice to an applicant under
subsection (6), the board shall determine the compensation to which
an applicant is entitled under section 15 and shall notify the
state treasurer to satisfy the claim of the applicant from
appropriations as provided in section 17.
Sec. 15. (1) Except as otherwise provided in this act and
subject to the limitations and procedures prescribed in this
section, an individual who the board finds to be entitled to
compensation under section 13 is entitled to all of the following:
(a) $50,000.00 for each year of wrongful incarceration,
prorated as necessary to account for a portion of a year. Beginning
as soon as practicable after January 1, 2009 and January 1 of each
subsequent year, the state treasurer shall adjust the amount
applicable for the preceding year by an amount determined by the
state treasurer to reflect the cumulative annual percentage change
in the consumer price index. As used in this subsection, "consumer
price index" means the most comprehensive index of consumer prices
available for this state from the bureau of labor statistics of the
United States department of labor.
(b) A waiver of tuition and fees for up to 120 hours of
instruction at a community college or state institution of higher
education, if the individual meets and maintains the regular
admission requirements of the community college or institution,
remains registered at the community college or institution, and
makes satisfactory academic progress as defined by the community
college or institution.
(c) The amount of any fine, penalty, or court costs imposed on
and paid by the individual.
(d) The amount of any reasonable attorney fees and expenses
incurred and paid by the individual in connection with all criminal
proceedings and appeals related to the wrongful conviction.
(2) The total compensation awarded under subsection (1)(a),
(c), and (d) shall not exceed $2,000,000.00. This state shall not
award an additional amount for attorney fees, lobbying fees, costs,
or other similar expenses.
(3) In calculating compensation under subsection (1)(a), if
the individual was paroled or transferred to a community
residential program or electronic monitoring program while serving
the sentence for the wrongful conviction and committed an offense
that resulted in revocation of the parole or transfer from the
community residential program or electronic monitoring program to a
state correctional facility, if the offense was not a felony, the
individual shall be compensated for the total number of years
incarcerated. If the offense was a felony, the individual is
ineligible for any compensation under subsection (1).
Sec. 17. (1) After receiving notice from the board under
section 13, the state treasurer shall draw a warrant on the general
fund or another source designated by the legislature in law for the
purchase of an annuity for the applicant based on the total amount
determined by the board under section 15.
(2) The state treasurer shall purchase an annuity under this
section that provides all of the following:
(a) A 10-year term.
(b) A prohibition on the sale, discounting, or use of the
annuity as security for a loan or mortgage by the applicant.
(c) Continued disbursement of the annuity to beneficiaries if
the applicant dies during the term of the annuity.
(3) Before the state treasurer draws a warrant for the
purchase of an annuity under this section, the applicant shall sign
a release and waiver on behalf of the applicant and his or her
heirs, successors, and assigns forever releasing all governmental
agencies of this state from all present or future claims that the
applicant or his or her heirs, successors, or assigns may have
against any governmental agencies of this state arising out of the
conviction for which compensation is being sought under this act.
The state treasurer shall not issue a warrant under this section
until the release and waiver are provided to the treasurer.
Sec. 17. An amount sufficient to pay compensation awarded
under this act during the fiscal year ending September 30, 2009 is
appropriated from the general fund for the fiscal year ending
September 30, 2009.
Sec. 19. (1) An individual shall not file a complaint or
submit an application for compensation under this act if the
individual has an action pending against any governmental agencies
of this state in state or federal court that requests compensation
in relation to the individual's conviction or incarceration.
(2) An individual who files a complaint or application under
this act is not entitled to an appeal or other determination of
issues decided under this act except as provided in this act.
(3) Payment under this act is not a waiver of a defense of
governmental or sovereign immunity and does not increase the
liability of this state or any person under 1964 PA 170, MCL
691.1401 to 691.1419.