_____________ bill NO. _____________

P2#yIS1 INTRODUCED BY _________________________________________________

By Request of the Law and Justice Interim Committee

A BILL FOR AN ACT ENTITLED: “AN ACT PROVIDING COMPENSATION FOR PEOPLE WHO HAVE BEEN WRONGLY CONVICTED OF FELONY CRIMES AND EXONERATED; PROVIDING A PROCEDURE FOR FILING AND DETERMINING PETITIONS FOR COMPENSATION; providing for EXPUNGEMENT OF CONVICTION and the payment of damages for successful petitions; PROVIDING OFFSETS FOR DAMAGES OBTAINED IN OTHER LITIGATION; and PROVIDING AN EFFECTIVE DATE.”

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Definitions. As used in [sections 1 through 6], the following definitions apply:

(1) “Claimant” means a person who:

(a) was convicted and subsequently imprisoned for one or more felony crimes that the person did not commit; and

(b) is not currently serving a term of imprisonment; and

(2) "Imprisonment" means a term of confinement of at least 6 months in a correctional institution as defined in 45-2-101.

NEW SECTION. Section 2. Contents of petition -- establishment of claim for compensation. (1) A claimant may bring a civil action against the state in the district court in which the conviction originated. All claims of compensation are governed by the Montana Rules of Civil Procedure. The claim must be:

(a) accompanied by a statement of facts explaining the basis of the claim;

(b) written and verified by the claimant under penalty of perjury; and

(i) dismissal of the criminal charges against the claimant or a finding of not guilty on retrial; or

(ii) the grant of a pardon to the claimant.

(2) A claimant convicted, imprisoned, and released from custody before July 1, 2021, who intends to bring an action under [sections 1 through 6] shall commence the action no later than July 1, 2024.

(3) All pleadings must be captioned as follows: “In the matter of the wrongful conviction of [name of claimant].”

(4) (a) A claimant who meets the criteria in subsection (1) and intends to bring an action under [sections 1 through 6] must receive a transition assistance grant of $5,000 from the department of corrections within 30 days of the claimant’s release from imprisonment.

(b) The claimant shall verify by affidavit filed with the department of corrections that the claimant satisfies the requirements set forth in subsection (1), under penalty of perjury.

(c) If the claimant fails to file a claim within the time period described in this section, or if the claim is denied by the district court, the claimant shall reimburse the state in the amount of $5,000 within 1 year following receipt of the grant money.

NEW SECTION. Section 3. Commencement of proceedings -- burden of proof. (1) A claimant is entitled to a hearing in district court as expeditiously as possible after filing a claim for compensation.

(2) A claim filed pursuant to [sections 1 through 6] must be served on the department of justice. The department shall provide a defense for the state for claims filed under [sections 1 through 6].

(3) A claim filed under [sections 1 through 6] must be tried by a jury unless a jury trial is waived upon agreement of the parties.

(4) If a claimant dies prior to filing or during pendency of a claim under [sections 1 through 6], the person’s estate may file or maintain a claim pursuant to [sections 1 through 6].

(5) The claimant must prove by a preponderance of the evidence that:

(a) the claimant did not commit the crime or crimes for which the claimant was convicted, did not aid, abet, or act as an accomplice or accessory to a person who committed the acts that were the basis of the conviction, and did not commit a lesser offense necessarily included in the crime for which the claimant was convicted;

(b) the claimant did not commit perjury under 45-7-201, fabricate evidence, or by the claimant's own conduct cause or bring about the conviction. A confession or admission that is later found to be false or a guilty plea that is withdrawn does not constitute committing perjury, fabricating evidence, or causing or bringing about the conviction, and 45-7-201 does not apply.

(c) (i) the claimant’s conviction was reversed or vacated and either the claimant was not retried and the charges were dismissed, or the claimant was retried and was found not guilty, and the basis for reversing or vacating the conviction was not legal error unrelated to factual innocence; or

(ii) the claimant was pardoned by the board of pardons and parole or the governor on the grounds that the claimant was innocent.

(6) The court, in exercising its discretion regarding the weight and admissibility of evidence submitted under this section, may in the interest of justice give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence, or other factors not caused by claimants, the state, or those acting on their behalf.

(7) If the court finds that the claimant is entitled to judgment, the court shall enter a certificate of innocence finding that the claimant is 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 department of justice for payment pursuant to [sections 1 through 6].

(8) The decision of the district court may be appealed directly to the supreme court.

NEW SECTION. Section 4. Expungement. (1) Upon entry of a certificate of innocence, the court shall order the associated convictions and arrest records expunged and purged from all applicable systems, including both electronic and hard copy systems. The court shall enter the expungement order regardless of whether the claimant has prior criminal convictions in other cases that are not the subject of the claim for compensation.

(2) The order of expungement must state:

(a) the claimant's current full name;

(b) the claimant's full name at the time of arrest and conviction, if different from the claimant's current name;

(d) the crime for which the claimant was arrested and convicted;

(e) the date of the claimant's arrest and the date of the claimant's conviction; and

(f) the identity of the arresting law enforcement authority and the identity of the district court that rendered the conviction.

(3) The order of expungement also must direct the department of justice to purge the conviction and arrest information from the central repository of the criminal justice information network and all applicable databases. The clerk of the court shall send a certified copy of the order to the department of justice for immediate action, and the department shall carry out the order and notify the federal bureau of investigation, the department of corrections, and any other criminal justice agency that may have a record of the conviction and arrest. The department of justice shall provide confirmation of the action to the court.

(4) If a certificate of innocence and an order of expungement are entered, the claimant must be treated as not having been arrested or convicted of the crime or crimes to which the certificate of innocence applies.

(5) (a) Upon entry of a certificate of innocence:

(i) the court shall order the expungement and destruction of any associated biological samples from the claimant. The order must state the information required to be expunged and destroyed.

(ii) the court shall seal all district court records regarding the conviction. The district court records are only available upon a good cause finding by the court.

(iii) the clerk of the court shall send a certified copy of the order to the department of justice, which must carry out the order and provide confirmation of the action to the court.

(b) The department is not required to expunge and destroy any samples record associated with the claimant related to an offense other than the offense or offenses for which the court has entered a certificate of innocence.

(6) The decision to grant or deny a certificate of innocence does not have a res judicata effect on any other criminal proceedings involving the claimant.

NEW SECTION. Section 5. Damages. (1) Damages, except as provided in subsection (3), awarded under this section are:

(a) $60,000 for each year of imprisonment; and

(b) $25,000 for each additional year served on parole or probation supervision or for each additional year the claimant was required to register as a sexual or violent offender, whichever is greater.

(2) Compensation awarded under [sections 1 through 6] is not subject to the monetary limitation under 2-9-108.

(3) An individual or political subdivision of the state is not responsible to pay damages, if any, and all damages must be paid solely by the state.

(4) A claimant is not entitled to receive compensation for any period of imprisonment during which the claimant was concurrently serving a sentence for a conviction of another crime for which the claimant was lawfully convicted and incarcerated.

(5) (a) Except as provided in subsection (5)(b), the court shall order that the award be paid as a combination of an initial payment not to exceed $100,000 or 25% of the award, whichever is greater, and the remainder as an annuity not to exceed $80,000 a year.

(b) (i) On July 1 of each year, the award increases by an amount equal to the percentage increase, if any, for the preceding calendar year in the annual average consumer price index for urban wage earners, compiled by the bureau of labor statistics of the United States department of labor or its successor agency.

(ii) The amount for any partial year must be prorated in order to compensate only for the portion of the year when the claimant was incarcerated.

(c) The claimant shall designate a beneficiary or beneficiaries for the annuity by filing a beneficiary designation with the court.

(d) 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.

(6) (a) In addition to the damages awarded pursuant to subsection (1), a claimant:

(i) is entitled to receive costs, including but not limited to the actual cost of all expenses reasonably incurred in an action brought pursuant to [sections 1 through 6], and reasonable attorney fees, not to exceed a total of $25,000, unless a greater amount is authorized by the court upon a finding of good cause;

(ii) may also be awarded other nonmonetary relief as sought in the complaint for compensation, including but not limited to counseling, housing assistance, and personal financial literacy assistance, as appropriate;

(iii) is entitled to up to 2 years of tuition assistance at any unit or campus of the Montana university system, which must be used during the first 5 years after receiving a damages award; and

(iv) is entitled to 1 year of state-funded medical insurance.

(b) All funds received by the claimant and the value of services provided, except any attorney fees retained by counsel, are exempt from state income taxes.

(7) The department of corrections shall provide all reentry services to the claimant that are provided to other persons, including but not limited to financial assistance, housing assistance, mentoring, and counseling. These services must be provided while an action under [sections 1 through 6] is pending and after any judgment is entered, provided the claimant prevails.

NEW SECTION. Section 6. Offset provision. (1) If, at the time of a damages award made pursuant to [section 5], the claimant has won a monetary award against the state or a political subdivision of the state in a civil action related to the same subject, or has entered into a settlement agreement with the state or a political subdivision of the state related to the same subject, the amount of the award in the action or the amount received in the settlement agreement, less any amounts paid to attorneys for actual costs and expenses in litigating the other civil action or obtaining the settlement agreement, must be deducted from the amount of money to which the claimant is entitled under [sections 1 through 6]. The court shall include in the judgment entry an award to the state of the amounts deducted.

(2) (a) If subsection (1) does not apply and if, after the time of a damages award made pursuant to [section 5], the claimant wins a monetary award against the state or a political subdivision of the state in a civil action related to the same subject, or enters into a settlement agreement with the state or a political subdivision of the state related to the same subject, the claimant shall reimburse the state for the amount of money paid under the damages award, less any amounts paid to attorneys for actual costs and expenses in litigating the other civil actions or obtaining the settlement agreement.

(b) A reimbursement required under subsection (2)(a) 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.

NEW SECTION. Section 7. Codification instruction. [Sections 1 through 6] are intended to be codified as an integral part of Title 46, and the provisions of Title 46 apply to [sections 1 through 6].

NEW SECTION. Section 8. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

NEW SECTION. Section 9. Effective date. [This act] is effective July 1, 2021.