SECTION 1. The legislature finds that wrongful convictions may be the result of many causes, including eyewitness misidentification, false confessions, improper forensic science, and government misconduct. A convicted person is considered exonerated when the person is later officially declared innocent of the crime. Nationally, there are more than 1,532 persons listed on the National Registry of Exonerations, including three persons convicted in Hawaii.

The legislature also finds that innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have been uniquely victimized, have distinct challenges re-entering society, and have difficulty achieving legal redress due to a variety of substantive and technical obstacles in the law. These individuals deserve an avenue of redress over and above the existing tort remedies to seek compensation for damages from the jurisdiction that convicted and imprisoned them. In light of the injustice of being imprisoned for a crime one did not commit, thirty states, the District of Columbia, and the federal government have adopted compensation statutes for wrongly imprisoned individuals. These statutes, along with recommendations from the advocacy organization, the Innocence Project, were considered by the legislature as the State takes steps to meaningfully address the effects of wrongful conviction and imprisonment.

The purpose of this Act is to ensure that those persons who were wrongfully convicted and imprisoned by the State receive immediate services upon release and, when able to demonstrate damages under appropriate circumstances, compensation.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

REDRESS FOR WRONGFUL CONVICTION AND IMPRISONMENT

§ -1 Statement of claim for compensation. (a) Any person convicted and subsequently imprisoned for one or more crimes, which the person did not commit or for actions that did not constitute a crime, may petition for a claim for damages against the State if the requirements of subsection (b) are met.

(b) To present an actionable claim against the State for wrongful conviction and imprisonment, the claimant shall allege:

(1) That the claimant has been convicted of one or more crimes, was subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence, under the laws of this State;

(2) On grounds consistent with innocence and supported by findings that clearly state such consistency, for the crime or crimes which the claimant was sentenced:

(A) That the claimant was pardoned for the crime or crimes;

(B) That the judgment of conviction was reversed or vacated; and:

(i) The accusatory instrument was dismissed; or

(ii) If a new trial was ordered, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument was dismissed; or

(C) The statute, or application thereof, on which the accusatory instrument was based, violated the constitution of the United States or the State of Hawaii;

(3) That the claimant did not commit any of the crimes charged in the accusatory instrument, or the acts or omissions charged in the accusatory instrument did not constitute a crime;

(4) That the claimant did not commit or suborn perjury or fabricate evidence to cause or bring about the claimant's conviction; provided that neither a confession or admission later found to be false, nor a guilty plea to a crime the claimant did not commit, shall constitute perjury or fabrication under this paragraph; and

(5) That the claim is not time-barred by section ‑5. (c) The claim shall be verified by the claimant and shall include, in summary form, the facts supporting each of the grounds specified.

(d) If a person entitled to file a claim under this chapter is incapacitated and incapable of filing the claim, the claim may be filed on behalf of the claimant by an authorized person.

§ -2 Presentation of claim. A petition for relief filed pursuant to this chapter shall be filed in the circuit court of the circuit in which the conviction took place. If a claimant alleges facts that if proven would entitle the claimant to relief for wrongful conviction and imprisonment, the circuit court shall grant a hearing. However, the court may deny a hearing if the claimant's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the claimant.

§ -3 Judgment and award. (a) To obtain a judgment in the claimant's favor, the claimant shall prove the statement of claim for compensation by a preponderance of the evidence.

(b) If the court finds that the claimant was wrongfully convicted and imprisoned, the court shall award:

(1) Damages for the physical injury of wrongful conviction and imprisonment that shall be:

(A) Not less than $50,000 for each year of imprisonment, to be pro-rated for partial years served. This amount shall reflect

(i) Inflation from the date of enactment of this chapter as adjusted by the director of finance; and

(ii) Consideration of economic damages including but not limited to lost wages, costs associated with the claimant's criminal defense and efforts to prove innocence, medical and dental expenses incurred or expected to be incurred after release, and consideration of non-economic damages for personal physical injuries or physical sickness and for any non-physical injuries or sickness arising out of same, incurred during or as a result of imprisonment; and

(B) Not less than $25,000 for each year served either on parole, probation, or as a registered sex offender, to be pro-rated for partial years served. The minimum dollar amount for damages set by this subparagraph shall be adjusted by the director of finance to account for inflation from the date of enactment of this chapter;

(2) Physical, dental, and mental health care, including all premiums, co-pays, deductibles, and related costs, for the life of the claimant, to be offset by any amount provided through the claimant's employers during that time period; provided the claimant enrolls in the Hawaii health insurance exchange, and provided further the department of health assists with the claimant's enrollment;

(3) Waiver of or reimbursement for any tuition and fees, including any necessary assistance to meet required admission criteria, paid for the education of the claimant and any biological children of the claimant that were conceived prior to the claimant's imprisonment for the wrongful conviction at any community college or other unit of the University of Hawaii under chapter 304A, or a mutually agreed upon vocational program and employment skills development training;

(4) Compensation for any child support payments owed by the claimant that became due and any interest on child support arrearages that accrued during the claimant's time served in prison, to be paid to the obligee of the child support order;

(5) Compensation for any reasonable costs for immediate services secured upon exoneration and release, including housing, transportation, subsistence, re-integrative services, and mental and physical health care costs, incurred by the claimant for the time period between the claimant's release from wrongful imprisonment and the date of the claimant's award; provided that any compensation awarded under this paragraph shall not duplicate any services received by the claimant and paid for by the State pursuant to section -7; and

(6) Reasonable attorneys' fees for bringing a claim under this chapter calculated at ten per cent of the damage award plus expenses, provided that:

(A) The fees, exclusive of expenses, shall not exceed $75,000, as adjusted by the director of finance to account for inflation from the date of enactment of this chapter; and

(B) The fees shall not be deducted from the compensation due to the claimant, nor shall counsel be entitled to receive additional fees from or on behalf of the claimant.

(1) Any cap applicable to private parties in civil lawsuits;

(2) Any taxes, except for the portions of the judgment awarded as attorneys' fees for bringing a claim under this chapter; or

(3) Treatment as gross income to a claimant under chapter 235.

(d) The acceptance by a claimant of any award, compromise, or settlement under this section shall:

(1) Be reduced to writing; and

(2) Except when procured by fraud, be final and conclusive on the claimant.

(e) Any future damages awarded to the claimant resulting from an action by the claimant against any unit of government within this State by reason of the same subject shall be offset by the damage award received under this chapter.

(f) The damage award shall not be offset by any expenses incurred by the State or any political subdivision of the State, including but not limited to:

(1) Expenses incurred:

(A) To secure the claimant's custody; or

(B) To feed, clothe, or provide medical services for the claimant; or

(2) The value of any services or reduction in fees for service, or the value thereof to be provided to the claimant that may be awarded to the claimant pursuant to this chapter.

(g) If the court finds that the claimant was subjected to a lien pursuant to defense services rendered by the State to defend the claimant in connection with the criminal case that resulted in the claimant's wrongful conviction, the court shall extinguish the lien.

(h) If the court finds that the claimant was wrongfully convicted and imprisoned, the court shall issue a court order to expunge the record of conviction and notify the attorney general, or the attorney general's duly authorized representative within the department of the attorney general, of the finding for expungement purposes pursuant to section 831-3.2.

§ -4 Notice. (a) A court granting judicial relief consistent with the criteria set forth in section ‑1(b) on or after the effective date of this chapter shall provide information orally about this chapter, a printed copy of this chapter, guidance on how to obtain compensation under this chapter, and contact information for nonprofit advocacy groups that assist wrongfully imprisoned persons in filing claims for compensation to the individual granted such relief at the time the criteria of section -1(b)(2) are found to be satisfied. The individual shall be required to acknowledge receipt of the written materials in writing on a form established by the chief justice. The court shall enter the acknowledgement on the docket and the acknowledgement shall be admissible in any proceeding filed by a claimant under this chapter.

(b) The paroling authority, upon the issuance of a full pardon on or after the effective date of this chapter, shall provide information orally about this chapter, a printed copy of this chapter, guidance on how to obtain compensation under this chapter, and contact information for nonprofit advocacy groups that assist wrongfully imprisoned persons in filing claims for compensation at the time the pardon is issued to the individual pardoned. The individual shall be required to acknowledge receipt of the written materials in writing on a form established by the paroling authority, which shall be retained on file by the paroling authority as part of its official records and shall be admissible in any proceeding filed by a claimant under this chapter.

(c) In the event a claimant who is granted judicial relief or a full pardon on or after the effective date of this chapter shows the claimant did not properly receive a copy of the written materials required by this section, the claimant shall receive a one-year extension on the three-year time limit provided in section ‑5.

(d) The chief justice, or the chief justice's designee, shall make reasonable attempts to provide notice of the rights under this chapter to all persons granted, prior to the effective date of this chapter, judicial relief consistent with the criteria set forth in section ‑1(b) of their rights under this chapter.

(e) The governor, or the governor's designee, shall make reasonable attempts to provide notice of the rights under this chapter to all persons who, prior to the effective date of this chapter, were pardoned consistent with the criteria set forth in section -1(b).

§ -5 Time limitations. (a) An action for compensation brought by a claimant under this chapter 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 ‑1(b); provided that any action by the State challenging or appealing the grant of that judicial relief shall toll the three-year period. Claimants who were convicted, imprisoned, and released from custody prior to the effective date of this chapter shall commence an action under this chapter within three years of its effective date.

(b) Notwithstanding any other provision of law, failure to file any applicable notice of claim shall not bar filing of a claim under this chapter.

§ -6 Right of appeal. Any party is entitled to the rights of appeal afforded parties in a civil action as set forth in chapter 641.

§ -7 Eligibility for immediate services. (a) Any person convicted and subsequently imprisoned for one or more crimes for which either the person is pardoned on grounds of innocence, or the conviction was reversed or vacated on the basis of newly discovered evidence, and either the charges are dismissed or the individual is subsequently re-tried and acquitted, shall receive, at the State's expense, up to three years of immediate services needed upon release and for successful return to society, including but not limited to:

(1) Housing, which may include authorizing the prioritization of wrongfully convicted and imprisoned persons as a category in Hawaii's section 8 housing voucher program;

(2) Secondary or higher education;

(3) Vocational training;

(4) Transportation;

(5) Subsistence monetary assistance;

(6) Re-integrative services; and

(7) Physical, dental, and mental health care.

The need for these services shall be determined through a review by the department of human services, and provided by the appropriate state entities, or contractors thereof.

(b) Where a conviction is vacated on purely legal grounds, without regard to factual basis, a judge may order that services similar to those in subsection (a) be provided."

SECTION 3. Section 831-3.2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The attorney general, or the attorney general's duly authorized representative within the department of the attorney general, upon written application from a person arrested for[,] or charged with but not convicted of a crime[,] or upon the court's finding that the person was wrongfully convicted and imprisoned under chapter shall issue an expungement order annulling, canceling, and rescinding the record of arrest; provided that an expungement order shall not be issued:

(1) In the case of an arrest for a felony or misdemeanor where conviction has not been obtained because of bail forfeiture;

(2) For a period of five years after arrest or citation in the case of a petty misdemeanor or violation where conviction has not been obtained because of a bail forfeiture;

(3) In the case of an arrest of any person for any offense where conviction has not been obtained because the person has rendered prosecution impossible by absenting oneself from the jurisdiction;

(4) In the case of a person acquitted by reason of a mental or physical defect under chapter 704; and

(5) For a period of one year upon discharge of the defendant and dismissal of the charge against the defendant in the case of a deferred acceptance of guilty plea or nolo contendere plea, in accordance with chapter 853.

Any person entitled to an expungement order hereunder may by written application also request return of all fingerprints or photographs taken in connection with the person's arrest. The attorney general or the attorney general's duly authorized representative within the department of the attorney general, within 120 days after receipt of the written application, shall, when so requested, deliver, or cause to be delivered, all fingerprints or photographs of the person, unless the person has a record of conviction or is a fugitive from justice, in which case the photographs or fingerprints may be retained by the agencies holding such records."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

HOUSE OF REPRESENTATIVES	H.B. NO.	148
TWENTY-EIGHTH LEGISLATURE, 2015		H.D. 1
STATE OF HAWAII