05 LC 29
1810
House
Bill 682
By:
Representatives Benfield of the
85th,
Crawford of the
127th,
Brooks of the
63rd,
Bordeaux of the
162nd,
Stephenson of the
92nd,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
make legislative findings; to amend Article 4 of Chapter 5 of Title 28 of the
Official Code of Georgia Annotated, relating to the claims advisory board, so as
to provide for compensation of persons wrongfully convicted and imprisoned; to
provide for a short title; to provide for recommendations by the board as
payment of compensation; to provide for procedural rules; to provide for claims
for compensation; to provide for uniform standards for compensation; to provide
when compensation may be recommended and the factors to be considered; to
provide for limitations of claims; to provide for reports on claims being
transmitted to the General Assembly; to provide for exceptions; to provide for
related matters; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
General Assembly finds that due to advancements in science and technology,
wrongfully convicted persons are being discovered with a higher frequency than
in the past. The General Assembly is sympathetic to the tremendous burden a
wrongfully convicted person faces and further finds that there is a need to
create a uniform method for fairly and reasonably compensating wrongfully
convicted persons.
SECTION
2.
Article
4 of Chapter 5 of Title 28 of the Official Code of Georgia Annotated, relating
to the claims advisory board, is amended by adding a new part to the end of the
article to read as follows:
"Part
4
28-5-110.
This
act shall be known and may be cited as the 'Innocent
Personś
Compensation Act.'
28-5-111.
(a)
The Claims Advisory Board shall have authority to consider and make
recommendations to the General Assembly concerning payment of compensation to
any innocent person who has been convicted of and imprisoned for one or more
crimes which he or she did not commit. In a particular case the board may
appoint a special master to take testimony, supervise or conduct necessary
investigations, and report to the board; but ultimate recommendation on any
claim shall be made only by the board.
(b)
Proceedings before the board shall be governed by rules established by the
board; and such rules shall emphasize, to the greatest extent possible,
informality of proceedings. No claimant shall be required to be represented or
accompanied by an attorney.
(c)
In order to be eligible for compensation under this part, the claimant shall
establish by clear and convincing evidence to the board that:
(1)
The claimant was convicted of one or more crimes and was sentenced to a term of
imprisonment;
(2)
The claimant has served all or part of the sentence of
imprisonment;
(3)
The claimant proclaims his or her innocence; and
(4)
The
claimant́s
innocence has been established by:
(A)
Pardon by the State Board of Pardons and Paroles;
(B)
An order reversing or vacating the
claimant́s
conviction and the indictment or accusation is dismissed or nol prossed;
or
(C)
Issuance of an order for new trial, and either the indictment or accusation is
dismissed or nol prossed.
(d)
A claimant shall not be entitled to compensation under this part for any portion
of a sentence spent incarcerated during which the claimant was also serving a
concurrent sentence for another crime to which this part does not
apply.
28-5-112.
(a)
Any person who is eligible for compensation under this part shall give notice
thereof in accordance with Part 2 of Article 4 of this chapter in order to have
such claim brought before the General Assembly for action.
(b)
Any such claimant shall also, prior to introduction of a resolution for
compensation, submit all documents called for by the board, including the
documents required by subsection (c) of Code Section 28-5-111 and reports or
documents detailing any type of compensation that the claimant is seeking in
relation to the injury for which compensation is claimed.
28-5-113.
(a)
In making its recommendation, the board shall, insofar as practicable, formulate
standards for uniform application in recommending compensation, taking into
consideration rates and amounts of compensation payable for injuries or property
damage under other laws of this state and of the United States. In making its
recommendation, the board shall:
(1)
Include not less than $50,000.00 per year for each year of imprisonment. A pro
rata amount for any portion of each year of imprisonment shall be awarded. In
calculating time of imprisonment, the board shall include any time spent
awaiting trial;
(2)
Annually adjust the maximum awards authorized by this Code section to reflect
the percentage of any increase in the Consumer Price Index of the Bureau of
Labor Statistics of the United States Department of Labor for the immediately
preceding calendar year; provided, however, that such annual percentage increase
in the award amount shall not exceed 5 percent regardless of the percentage
increase in the Consumer Price Index. In any year in which there is no
percentage increase in such Consumer Price Index, there shall be no adjustment
to the award amount for that calendar year; and
(3)
Include the amount of any fine or court costs imposed and paid, and the
reasonable
attorneýs
fees and other expenses incurred by the claimant in connection with all
associated criminal proceedings and appeals, and, if applicable, in connection
with obtaining the
claimant́s
discharge from confinement.
(b)
If requested by the claimant:
(1)
The Department of Human Resources shall provide appropriate counseling for one
year to the claimant at a mutually agreed-on location at no charge to the
claimant; and
(2)
The board shall include up to $10,000.00 for tuition for career and technical
training at any institution in the University System of Georgia or institution
in the Department of Technical and Adult Education, which amount is contingent
upon successful completion of the training.
(c)
The board may direct that payment of compensation claims be in a lump sum or in
the form of an annuity contract funded by the board on behalf of the claimant,
provided that:
(1)
Such annuity contract shall be secured from an insurance company licensed under
the laws of the State of Georgia and whose claims paying ability is rated as
superior or excellent by at least two nationally recognized rating services;
and
(2)
The contract, by its terms, cannot be sold, transferred, assigned, discounted,
or used as security for a loan.
28-5-114.
(a)
In any case in which a person is harmed, injured, or sustains property damage
for which compensation is authorized by this part, the board may recommend to
the General Assembly payment of compensation:
(1)
To or for the benefit of the claimant; or
(2)
In the case of death of the claimant, to or for the benefit of any one or more
of the heirs at law of the claimant, who at the time of the
claimant́s
demise were dependent upon the claimant for over one-half of their
support.
(b)
In making its recommendation to the General Assembly, the board shall consider
all circumstances surrounding the claim, including, but not limited to, the
length of the
claimant́s
wrongful incarceration; the circumstances and any injuries the claimant
sustained while incarcerated; any need for financial aid present; and any other
relevant matters.
(c)
The board shall, in an advisory way only, recommend to the General Assembly
payment of compensation and the amount thereof; and the General Assembly shall
act on such recommendation in accordance with law and the rules of the House of
Representatives and Senate for action upon such resolutions.
28-5-115.
(a)
The General Assembly may by resolution appropriate money for payment of a claim
for compensation upon the recommendation of the board as set forth in Code
Section 28-5-113. Any award made by the General Assembly shall not be subject
to:
(1)
Any monetary limitation of damages awarded in civil actions;
(2)
State income taxes; provided, however, that the award of
attorneýs
fees shall be subject to taxation; or
(3)
Offset by any expense incurred by the state or any political subdivision thereof
for expenses related to the
claimant́s
incarceration.
(b)
No resolution for the payment of compensation under this part shall be adopted
unless notice of claim has been filed with the board within three years after
the date that the
claimant́s
innocence has been established as set forth in Code Section 28-5-111, or within
three years of July 1, 2005, whichever occurs last.
(c)
The board shall prepare and transmit to the General Assembly, along with its
recommendation on each claim, a report of its activities in connection
therewith, including the name of the claimant, a brief description of the facts
surrounding the claim, the amount of compensation recommended, and the
board́s
reasons therefor.
28-5-116.
(a)
Any claimant who receives compensation under this part may not bring any action
involving the same subject matter, including an action involving the
claimant́s
arrest, conviction, or length of confinement, against the state.
(b)
This Code section does not affect any liability of the state or of its employees
to a
claimant́s
cause of action that is not based on the wrongful conviction, including, but not
limited to, a cause of action that arises out of circumstances occurring during
the
claimant́s
confinement.
28-5-117.
Not
later than January 1 of each year, the board shall provide the Governor, the
Lieutenant Governor, and the Chairpersons of the Appropriations Committees in
the House of Representatives and Senate with a list of claimants entitled to
payment under this part and the amounts due to each claimant.
28-5-118.
(a)
A court granting judicial relief as contemplated by Code Section 28-5-111, on or
after July 1, 2005, shall provide a copy of this part to the individual seeking
such relief. The individual shall be required to acknowledge receipt of a copy
of this part in writing on a form established by the Administrative Office of
the Courts. Such acknowledgment shall be entered on the docket by the court and
shall be admissible in any proceeding filed by a claimant under this
part.
(b)
The State Board of Pardons and Paroles, upon the issuance of a pardon as
contemplated by Code Section 28-5-111, on or after July 1, 2005, shall provide a
copy of this part to the individual seeking such relief. The individual shall be
required to acknowledge receipt of a copy of this part in writing on a form
established by the parole board, which shall be retained on file by the parole
board as part of its official records and shall be admissible in any proceeding
filed by a claimant under this
part."
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.