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2022 SESSION
22103530DBe it enacted by the General Assembly of Virginia:
1. That §§ 8.01-195.10 through 8.01-195.13 of the Code of Virginia are amended and reenacted as follows:
§ 8.01-195.10. Purpose; action by the General Assembly required; definitions.
A. The purpose of this article is to provide directions and
guidelines for the compensation of persons who have been wrongfully
incarcerated in the Commonwealth. Compensation for wrongful incarceration is
governed by Article IV, Section 14 of the Constitution of Virginia, which
prohibits the General Assembly from granting relief in cases in which the
courts or other tribunals may have jurisdiction and any individual seeking
payment of state funds for wrongful incarceration shall be deemed to have
waived all other claims. The payment and receipt of any compensation for
wrongful incarceration shall be contingent upon the General Assembly
appropriating funds for that purpose. This article shall not provide an
entitlement to compensation for persons wrongfully incarcerated or require the
General Assembly to appropriate funds for the payment of such compensation. No estate of or personal representative for a
decedent shall be entitled to seek a claim for compensation for wrongful
incarceration.
B. As used in this article:
"Incarceration" or "incarcerated" means confinement in a local or regional correctional facility, juvenile correctional center, state correctional facility, residential detention center, or facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.).
"Wrongful incarceration" or "wrongfully
incarcerated" means incarceration for a felony conviction for which (i) the conviction has been
vacated pursuant to Chapter 19.2 (§ 19.2-327.2 et seq.) or 19.3 (§ 19.2-327.10
et seq.) of Title 19.2, or the person incarcerated has been granted an absolute
pardon for the commission of a crime that he did not commit;
(ii) the person incarcerated shall have entered a final plea of not guilty, or,
regardless of the plea, the person incarcerated was convicted of a Class 1
felony, a Class 2 felony, or any felony for which the maximum penalty is
imprisonment for life; and (iii) the person incarcerated did not by any act or
omission on his part intentionally contribute to his conviction for the felony
for which he was incarcerated.
§ 8.01-195.11. Compensation for wrongful incarceration.
A. 1. Any
person who is convicted of a felony by a county or city circuit court of the
Commonwealth and is wrongfully incarcerated for such felony may be awarded
compensation in an amount equal to 90 percent of the inflation adjusted Virginia per
capita personal income as reported by the Bureau of Economic Analysis of the
U.S. Department of Commerce for each year of incarceration, or portion thereof the product of the total number of days that the
individual was wrongfully incarcerated following a wrongful conviction
multiplied by a daily rate of the Commonwealth's most
recent annual median household income as published in the American Community
Survey of the United States
Census Bureau in the year the court finds the person wrongfully incarcerated
eligible for compensation and divided by 365 days to the nearest whole cent,
except as provided by subdivision 3.
2. In addition to the compensation awarded under subdivision 1, the wrongfully incarcerated person shall also receive:
a. $25,000 for each year of imprisonment after being sentenced to death, and
b. $25,000 for each year served on parole or postrelease supervision, or each year the claimant was required to register with the Sex Offender and Crimes Against Minors Registry pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1.
3. A person wrongfully incarcerated shall not receive compensation for any period of incarceration during which the person was concurrently serving a sentence for a conviction for another crime for which the person was lawfully incarcerated.
4. If an individual eligible for compensation and benefits under this subsection is deceased, the individual's estate has standing to be compensated under this section.
5. On or before July 1 of each year, the State Treasurer shall determine the percentage increase or decrease in the cost of living for the previous calendar year, based on changes in the Consumer Price Index for All Urban Consumers, as published by the Bureau of Labor Statistics of the U.S. Department of Labor. On or before July 1 of the year in which the State Treasurer makes the determination required by this subdivision, the State Treasurer shall adjust the amounts prescribed under subdivision 2 for the following calendar year by multiplying the amounts applicable to the calendar year in which the adjustment is made by the percentage amount determined under this subdivision. The adjustment may not exceed three percent for any year. The State Treasurer shall round the adjusted limitation amount to the nearest $100, but the unrounded amount shall be used to calculate the adjustments to the amounts in subsequent calendar years. The adjusted amounts shall become effective on July 1 of the year in which the adjustment is made and apply to all claims filed under this section on or after July 1 of that year and before July 1 of the subsequent year.
B. Any compensation
computed pursuant to subsection A and approved by the General Assembly shall be
paid by the Comptroller by his warrant on the State Treasurer in favor of the
person found to have been wrongfully incarcerated. The
person wrongfully incarcerated shall be paid an
initial a
lump sum equal to 20 percent of
the total compensation award with the remaining 80 percent of the principal of
the compensation award to be used by the State Treasurer to purchase an annuity
from any A+ rated company, including any A+ rated company from which the
Virginia Lottery may purchase an annuity, to provide equal monthly payments to
such person for a period certain of 25 years commencing no later than one year
after the effective date of the appropriation; however, if such person's life
expectancy, as calculated pursuant to the provisions of § 8.01-419 based on his
age on the effective date of the appropriation, is less than 25 years, then,
upon his election, the annuity period shall be equal to his life expectancy.
The annuity shall provide that it shall not be sold, discounted, or used as
securitization for loans and mortgages by the person awarded compensation. The
annuity shall, however, contain beneficiary provisions providing for the
annuity's continued disbursement in the event of the death of the person
awarded compensation. All payments or costs of annuities under this section
shall be made by check issued by the State Treasurer on warrant of the
Comptroller.
Notwithstanding the
foregoing, in the event that the person wrongfully incarcerated is 60 years of
age or older or is terminally ill, the General Assembly may (i) pay 100 percent
of the compensation computed pursuant to subsection A as a lump sum to the
person wrongfully incarcerated or (ii) purchase an annuity for a period certain
that is less than 25 years. For the purposes of this section, "terminally
ill" means that the individual has a medical prognosis, as certified by a
licensed physician, that his life expectancy is five years or less if the
illness runs its normal course.
C. In addition to the compensation awarded pursuant to subsection A, the person wrongfully incarcerated (i) shall be entitled to receive the amount of any unreimbursed fine, fee, court cost, or restitution imposed and paid and reasonable attorney fees and costs incurred to receive an award pursuant to this section and (ii) may also be awarded other non-monetary relief sought, including counseling, housing assistance, employment assistance, health care and dental care, and personal financial literacy assistance, as appropriate.
D. Compensation awarded pursuant to this section is excluded from gross income and is not subject to taxation.
E. Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony shall receive a transition assistance grant of $15,000 to be paid from the Criminal Fund, which amount shall be deducted from any award received pursuant to subsection B, within 30 days of receipt of the written request for the disbursement of the transition assistance grant to the Executive Secretary of the Supreme Court of Virginia. Payment of the transition assistance grant from the Criminal Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Executive Secretary of the Supreme Court of Virginia. In addition, such person shall be entitled to receive reimbursement up to $10,000 for tuition for career and technical training within the Virginia Community College System contingent upon successful completion of the training. Reimbursement for tuition shall be provided by the comprehensive community college at which the career or technical training was completed.
§ 8.01-195.12. Conditions for continued compensation.
A. Any person awarded
compensation under this article who is subsequently convicted of a felony
shall, immediately upon such conviction, not be eligible to receive any unpaid
amounts from any compensation awarded and his beneficiaries shall not be
eligible to receive any payments under an annuity purchased pursuant to
subsection B of § 8.01-195.11. Any unpaid amounts remaining under any annuity
shall become the property of the Commonwealth and shall be deposited into the
general fund of the state treasury.
A1. Any person
awarded compensation under this article who is subsequently incarcerated upon
the revocation of parole or probation resulting from the commission of an act
that constitutes a crime shall, during the period of such incarceration,
forfeit any payments under an annuity purchased pursuant to subsection B of §
8.01-195.11. Any forfeited amounts under any annuity shall become the property
of the Commonwealth and shall be deposited into the general fund of the state
treasury.
B. As
a condition of receiving any compensation under this article, a person shall
execute a release and waiver forever releasing (i) the Commonwealth or any
agency, instrumentality, officer, employee, or political subdivision thereof,
(ii) any legal counsel appointed pursuant to § 19.2-159, and (iii) all other
parties of interest, from any present or future claims the person receiving
compensation may have against such enumerated parties and arising out of the
factual situation in connection with the conviction for which compensation is
being sought under this article. In addition, the person receiving compensation
shall not have been awarded a finally adjudicated judgment in a court of law
against or received any funds pursuant to a settlement agreement with any
person or entity described in this subsection for compensation or damages
arising out of the factual situation in connection with the conviction.
§ 8.01-195.13. Compensation for certain intentional acts.
A. In any matter resulting in compensation for wrongful incarceration pursuant to this article, if a court of competent jurisdiction over the matter determines, or the court record clearly demonstrates, that the Commonwealth or any agency, instrumentality, officer or employee, or political subdivision thereof (i) intentionally and wrongfully fabricated evidence that was used to obtain the wrongful conviction in such manner and (ii) intentionally, willfully, and continuously suppressed or withheld evidence establishing the innocence of the person wrongfully incarcerated, including but not limited to suppression or withholding of evidence to the Governor for the purpose of clemency, the Commonwealth may compensate the person wrongfully incarcerated for such intentional acts. Such amount shall be in addition to any compensation awarded pursuant to § 8.01-195.11 and may be up to or equal to the amount of such compensation. The additional compensation shall be added to any amount awarded pursuant to § 8.01-195.11, and the total compensation shall be paid pursuant to subdivision B of § 8.01-195.11. Nothing provided in this section shall be interpreted to supplant, revoke, or supersede any other provision of this article applicable to the award of compensation for wrongful incarceration, and the additional compensation shall be subject to any conditions set forth in this article.
B. Any compensation awarded pursuant to this article that
includes the additional compensation for intentional acts as set forth in
subsection A shall not become effective and payable by the Commonwealth unless
and until (i) the person wrongfully incarcerated executes the release and
waiver pursuant to subsection B of
§ 8.01-195.12 and (ii) the instrumentality, or political subdivision thereof,
employing any individual committing the intentional acts set forth in clauses
(i) and (ii) of subsection A enters into an agreement with the person
wrongfully incarcerated requiring such instrumentality or political subdivision
to compensate the person with a sum at least equal to the total compensation
provided pursuant to § 8.01-195.11 and this section.