REFERENCE TITLE: erroneous conviction; damages; tuition assistance
State of Arizona
First Regular Session
Senators Mendez: Alston, Contreras, Gonzales, Navarrete, Quezada, Rios, Steele; Representatives Hernandez M, Salman, Terán
amending title 31, Arizona Revised Statutes, by adding chapter 6; relating to criminal convictions.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 31, Arizona Revised Statutes, is amended by adding chapter 6, to read:
ERRONEOUS CONVICTION AND IMPRISONMENT COMPENSATION
ARTICLE 1. GENERAL PROVISIONS
31-701. Erroneous conviction; damages; certificate of innocence; orders of expungement; destruction of records; appeal rights
A. Notwithstanding any other law, a claimant may bring an action in superior court seeking damages from this state. The claimant shall establish all of the following by a preponderance of evidence:
1. The claimant was convicted of a felony offense and subsequently imprisoned.
2. The claimant's judgment of conviction was reversed or vacated and either:
(a) The charges were dismissed.
(b) On retrial, the claimant was found not guilty.
3. The claimant did not commit the crime for which the claimant was convicted and was not an accessory or accomplice to the acts that were the basis of the conviction and that resulted in a reversal or vacation of the judgment of conviction, dismissal of the charges or finding of not guilty on retrial.
4. The claimant did not commit or suborn perjury, fabricate evidence or, by the claimant's own conduct, cause or bring about the conviction. A confession or an admission that is later found to be false or a guilty plea does not constitute committing or suborning perjury, fabricating evidence or causing or bringing about the conviction pursuant to this paragraph.
B. In exercising the court's discretion regarding the weight and admissibility of evidence submitted pursuant to this section, the court, in the interest of justice, may give due consideration to difficulties of proof caused by the passage of time, the destruction of evidence or the death or unavailability of witnesses or other factors not caused by such persons or those acting on their behalf.
C. The claimant shall bring the claim, accompanied by a statement of the facts concerning the claim for damages, within two years after either the:
1. Criminal charges against the claimant are dismissed or the claimant is found not guilty on retrial.
2. Claimant is pardoned.
D. A claimant who is convicted, imprisoned and released from custody before July 1, 2021 must commence an action under this section not later than July 1, 2023.
E. All pleadings shall be captioned "in the matter of the wrongful conviction of_____________". The claimant must serve the attorney general with a copy of the claim that is filed pursuant to this section. The court shall try the claim, and the claimant may not request a jury trial.
F. If the court enters a judgment, the court shall award damages in the following amounts:
1. $65,000 for each year of imprisonment, except that a claimant may not receive compensation for any period of incarceration during which the claimant was concurrently serving a sentence for a conviction of another crime for which the claimant was lawfully incarcerated.
2. At least $25,000 for each additional year the claimant served on parole or community supervision or was required to register as a sex offender pursuant to section 13-3821, whichever is greater.
G. The court shall order that the award be paid as a combination of an initial payment of not more than $100,000 or twenty-five percent of the award, whichever is greater, and the remainder as an annuity of not more than $80,000 per year. The claimant shall designate a beneficiary or beneficiaries for the annuity by filing a designation with the court.
H. Notwithstanding subsection G of this section, the court may order that the award be paid in one lump sum if the court finds that it is in the best interests of the claimant.
I. In addition to the damages awarded pursuant to subsection F of this section, the claimant:
1. Is entitled to receive reasonable attorney fees and costs incurred in the action of not more than $25,000, unless the court authorizes a greater reasonable total on a finding of good cause shown.
2. May be awarded other nonmonetary relief as sought in the complaint, including counseling, housing assistance and personal financial literacy assistance, as appropriate.
3. Is entitled to receive tuition assistance pursuant to section 31-702.
4. Is entitled to participate in this state's employee health insurance benefits program, and this state shall pay one hundred percent of the costs.
J. If, at the time the court enters a judgment pursuant to subsection F of this section, the claimant has won a monetary award against this state or any political subdivision of this state in a civil action related to the same subject, or has entered into a settlement agreement with this state or any political subdivision of this state related to the same subject, the amount of the award in the action or the amount received in the settlement agreement, minus any sums paid to an attorney or for costs in litigating the other civil action or obtaining the settlement agreement, shall be deducted from the sum of monies that the claimant is entitled to receive under this section. The court shall include in the judgment an award to this state of any amount deducted pursuant to this subsection.
K. If subsection J of this section does not apply and if, after the time the court enters a judgment pursuant to subsection F of this section, the claimant wins a monetary award against this state or any political subdivision of this state in a civil action related to the same subject, or enters into a settlement agreement with this state or any political subdivision of this state related to the same subject, the claimant shall reimburse this state for the sum of monies paid under the judgment, minus any sums paid to an attorney or for costs in litigating the other civil action or obtaining the settlement agreement. The amount of reimbursement may not exceed the amount of the monetary award the claimant wins for damages in the other civil action or the amount received in the settlement agreement.
L. If the court finds that the claimant is entitled to a judgment, the court shall enter a certificate of innocence finding that the claimant was innocent of all crimes for which the claimant was mistakenly convicted. The clerk of the court shall send a certified copy of the certificate of innocence and the judgment to the attorney general for payment.
M. On entry of a certificate of innocence, the court shall order the associated convictions and arrest records to be expunged and purged from all applicable state and federal systems. The court shall enter the expungement order regardless of whether the claimant has a historical prior felony conviction.
N. The order of expungement must state all of the following:
1. The Claimant's current full name.
2. The claimant's full name at the time of arrest and conviction, if different than the claimant's current name.
3. The claimant's sex, race and date of birth.
4. The offense for which the claimant was arrested and convicted.
5. The date of the claimant's arrest and date of the claimant's conviction.
6. The identity of the arresting law enforcement agency and identity of the convicting court.
O. The order of expungement shall direct the department of public safety to purge the conviction and arrest information from the Arizona criminal justice information system and all applicable state and federal databases. The clerk of the court shall send a certified copy of the order to the department of public safety, which shall carry out the order and notify the federal bureau of investigation, the state department of corrections and any other criminal justice agency that may have a record of the conviction and arrest. The department of public safety shall provide confirmation of the action to the court.
P. If the court enters a certificate of innocence and an order of expungement, the claimant shall be treated as not having been arrested or convicted of the crime.
Q. On entry of a certificate of innocence, the court shall order the expungement and destruction of the associated biological samples authorized by and given to the department of public safety pursuant to section 13-610. The order shall direct the department of public safety to expunge and destroy the samples and profile record. The clerk of the court shall send a certified copy of the order to the department of public safety, which shall carry out the order and provide confirmation of the action to the court. this subsection does not require the department of public safety to expunge and destroy samples or a profile record associated with the claimant that was related to any offense other than the offense for which the court has entered a certificate of innocence.
R. The decision to grant or deny a certificate of innocence is not res judicata on any other proceedings.
S. this section does not preclude the state department of corrections from providing reentry services to a claimant that are provided to other persons, including financial assistance, housing assistance, mentoring and counseling. The department shall provide these services while an action under this section is pending and after any judgment is entered, as appropriate, for the claimant.
T. The decision of the superior court may be appealed directly to the supreme court.
31-702. Erroneous conviction tuition assistance; additional assistance; eligibility; rules; definition
A. An individual who is awarded tuition assistance pursuant to section 31-701, subsection I, paragraph 3 shall receive a waiver of tuition and required fees for attendance at a postsecondary educational institution for up to one hundred thirty credit hours. The individual may attend a postsecondary educational institution on either a full-time or part-time basis.
B. Subject to legislative appropriation, the Arizona board of regents may reimburse each individual who is awarded tuition assistance pursuant to section 31-701, subsection I, paragraph 3 and who is enrolled in a postsecondary educational institution for additional fees, including fees for room and board, technical equipment and course books.
C. A postsecondary educational institution may not delay enrollment of an individual who is awarded tuition assistance pursuant to section 31-701, subsection I, paragraph 3 because an appropriation is not available for any additional fees provided to the individual pursuant to subsection B of this section.
D. To remain eligible for the tuition and fee waivers under this section, an individual must remain in good standing at the postsecondary educational institution where the individual is enrolled.
E. An Individual must provide a written or electronic copy of the court order awarding relief in the form of tuition assistance to the postsecondary educational institution or the Arizona board of regents.
F. The Arizona board of regents shall adopt rules to administer this section.
G. For the purposes of this section, "postsecondary educational institution" means a university under the jurisdiction of the Arizona board of regents or a community college under the jurisdiction of a community college district governing board.