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Kansas House Bill HB2780

Kansas 2023-2024 Regular Session

Kansas House Bill HB2780 Compare Versions

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11 Session of 2024
22 HOUSE BILL No. 2780
33 By Committee on Judiciary
44 Requested by Danedri Herbert on behalf of the Office of Attorney General
55 2-8
66 AN ACT concerning civil actions; relating to compensation for certain
77 persons convicted and subsequently imprisoned for one or more crimes
88 that such person did not commit; amending K.S.A. 2023 Supp. 60-5004
99 and repealing the existing section.
1010 Be it enacted by the Legislature of the State of Kansas:
1111 Section 1. K.S.A. 2023 Supp. 60-5004 is hereby amended to read as
1212 follows: 60-5004. (a) As used in this section, "claimant" means a person
1313 convicted and subsequently imprisoned for one or more crimes that such
1414 person did not commit.
1515 (b) (1) Notwithstanding the provisions of any other law, a claimant
1616 may bring an action in the district court seeking damages from the state
1717 pursuant to this section.
1818 (2) A person shall not bring an action pursuant to this section if such
1919 person's conviction was reversed or vacated based on ineffective
2020 assistance of counsel.
2121 (c) (1) The claimant shall establish the following by a preponderance
2222 of evidence:
2323 (A) The claimant was convicted of a felony crime and subsequently
2424 imprisoned;
2525 (B) the claimant's judgment of conviction was reversed or vacated,
2626 and:
2727 (i) Either the charges were dismissed or on retrial the claimant was
2828 found to be not guilty;
2929 (C)(ii) the claimant did not commit the crime or crimes for which the
3030 claimant was convicted and, causing the conviction to be reversed or
3131 vacated or the charges to be dismissed; and
3232 (iii) the claimant was not an accessory or accomplice to the acts that
3333 were the basis of the conviction and resulted in a reversal or vacation of
3434 the judgment of conviction, dismissal of the charges or finding of not
3535 guilty on retrial; and;
3636 (D)(C) the claimant did not commit or suborn perjury, or fabricate
3737 evidence, or by the claimant's own conduct cause or bring about the
3838 conviction. Neither a confession nor admission later found to be false or a
3939 guilty plea shall constitute committing or suborning perjury, or fabricating
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7575 evidence or causing or bringing about the conviction under this
7676 subsection; and
7777 (D) the claimant's own conduct, including any action taken by the
7878 claimant before, during or after the commission of the acts that served as
7979 the basis for the claimant's conviction, did not contribute to, cause or
8080 bring about the conviction.
8181 (2) The court, in exercising its discretion as permitted by law
8282 regarding the weight and admissibility of evidence submitted pursuant to
8383 this section, may, in the interest of justice, give due consideration to
8484 difficulties of proof caused by the passage of time, the death or
8585 unavailability of witnesses, the destruction of evidence or other factors not
8686 caused by such persons or those acting on their behalf.
8787 (d) (1) The suit, accompanied by a statement of the facts concerning
8888 the claim for damages, verified in the manner provided for the verification
8989 of complaints in the rules of civil procedure, shall be brought by the
9090 claimant within a period of two years after the: (A) Dismissal of the
9191 criminal charges against the claimant or finding of not guilty on retrial; or
9292 (B) grant of a pardon to the claimant.
9393 (2) A claimant convicted, imprisoned and released from custody
9494 before July 1, 2018, must commence an action under this section no later
9595 than July 1, 2020.
9696 (3) All pleadings shall be captioned, "In the matter of the wrongful
9797 conviction of ________________."
9898 (4) Any claim filed pursuant to this section shall be served on the
9999 attorney general in accordance with the code of civil procedure.
100100 (5) The suit for a claim filed pursuant to this section shall be tried by
101101 the court, and no request for a jury trial may be made pursuant to K.S.A.
102102 60-238, and amendments thereto.
103103 (e) (1) Damages awarded under this section shall be:
104104 (A) $65,000$180 for each year day of imprisonment, except as
105105 provided in subsection (e)(2); and
106106 (B) not less than $25,000$70 for each additional year day served on
107107 parole or postrelease supervision or each additional year day the claimant
108108 was required to register as an offender under the Kansas offender
109109 registration act, whichever is greater; and
110110 (C) $110 for each day spent under a house arrest program pursuant
111111 to K.S.A. 21-6609, and amendments thereto, except as provided in
112112 subsection (e)(2).
113113 (2) A claimant shall not receive compensation for any period of
114114 incarceration imprisonment or house arrest during which the claimant was
115115 concurrently serving a sentence for a conviction of another crime for
116116 which such claimant was lawfully incarcerated.
117117 (3) Compensation for days of imprisonment shall only be awarded
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161161 for days spent in the custody of the secretary of corrections and any time
162162 served in jail awaiting post-trial transfer to the department of corrections.
163163 (3)(4) (A) Except as provided in subparagraph (B), the court shall
164164 order that the award be paid as a combination of an initial payment not to
165165 exceed $100,000 or 25% of the award, whichever is greater, and the
166166 remainder as an annuity not to exceed $80,000 per year. The claimant shall
167167 designate a beneficiary or beneficiaries for the annuity by filing such
168168 designation with the court.
169169 (B) The court may order that the award be paid in one lump sum if
170170 the court finds that it is in the best interests of the claimant.
171171 (4)(5) In addition to the damages awarded pursuant to subsection (e)
172172 (1), the claimant:
173173 (A) Shall be entitled to receive reasonable attorney fees and costs
174174 incurred in the action brought pursuant to this section not to exceed a total
175175 of $25,000, unless a greater reasonable total is authorized by the court
176176 upon a finding of good cause shown $100,000;
177177 (B) may also be awarded other non-monetary relief as sought in the
178178 complaint including, but not limited to, counseling, housing assistance for
179179 a period of time not to exceed five years and personal financial literacy
180180 assistance, as appropriate;
181181 (C) shall be entitled to receive tuition assistance pursuant to K.S.A.
182182 74-32,195, and amendments thereto; and
183183 (D) shall be entitled to participate in the state health care benefits
184184 program pursuant to K.S.A. 75-6501, and amendments thereto.
185185 (f) (1) If, at the time of the judgment entry referred to in subsection
186186 (e), the claimant has won a monetary award against the state or any
187187 political subdivision thereof in a civil action related to the same subject, or
188188 has entered into a settlement agreement with the state or any political
189189 subdivision thereof related to the same subject, the amount of the award in
190190 the action or the amount received in the settlement agreement, less any
191191 sums paid to attorneys or for costs in litigating the other civil action or
192192 obtaining the settlement agreement, shall be deducted from the sum of
193193 money to which the claimant is entitled under this section. The court shall
194194 include in the judgment entry an award to the state of any amount
195195 deducted pursuant to this subsection.
196196 (2) If subsection (f)(1) does not apply and if, after the time of the
197197 judgment entry referred to in subsection (e), the claimant wins a monetary
198198 award against the state or any political subdivision thereof in a civil action
199199 related to the same subject, or enters into a settlement agreement with the
200200 state or any political subdivision thereof related to the same subject, the
201201 claimant shall reimburse the state for the sum of money paid under the
202202 judgment entry referred to in subsection (e), less any sums paid to
203203 attorneys or for costs in litigating the other civil action or obtaining the
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247247 settlement agreement. A reimbursement required under this subsection
248248 shall not exceed the amount of the monetary award the claimant wins for
249249 damages in the other civil action or the amount received in the settlement
250250 agreement.
251251 (g) If the court finds that the claimant is entitled to a judgment, it
252252 shall enter a certificate of innocence finding that the claimant was innocent
253253 of all crimes for which the claimant was mistakenly convicted. The clerk
254254 of the court shall send a certified copy of the certificate of innocence and
255255 the judgment entry to the attorney general for payment pursuant to K.S.A.
256256 75-6117, and amendments thereto.
257257 (h) (1) Upon entry of a certificate of innocence, the court shall order
258258 the associated convictions and arrest records expunged and purged from all
259259 applicable state and federal systems pursuant to this subsection. The court
260260 shall enter the expungement order regardless of whether the claimant has
261261 prior criminal convictions.
262262 (2) The order of expungement shall state the:
263263 (A) Claimant's full name;
264264 (B) claimant's full name at the time of arrest and conviction, if
265265 different than the claimant's current name;
266266 (C) claimant's sex, race and date of birth;
267267 (D) crime for which the claimant was arrested and convicted;
268268 (E) date of the claimant's arrest and date of the claimant's conviction;
269269 and
270270 (F) identity of the arresting law enforcement authority and identity of
271271 the convicting court.
272272 (3) The order of expungement shall also direct the Kansas bureau of
273273 investigation to purge the conviction and arrest information from the
274274 criminal justice information system central repository and all applicable
275275 state and federal databases. The clerk of the court shall send a certified
276276 copy of the order to the Kansas bureau of investigation, which shall carry
277277 out the order and shall notify the federal bureau of investigation, the
278278 secretary of corrections and any other criminal justice agency that may
279279 have a record of the conviction and arrest. The Kansas bureau of
280280 investigation shall provide confirmation of such action to the court.
281281 (4) If a certificate of innocence and an order of expungement are
282282 entered pursuant to this section, the claimant shall be treated as not having
283283 been arrested or convicted of the crime.
284284 (i) Upon entry of a certificate of innocence, the court shall order the
285285 expungement and destruction of the associated biological samples
286286 authorized by and given to the Kansas bureau of investigation in
287287 accordance with K.S.A. 21-2511, and amendments thereto. The order shall
288288 state the information required to be stated in a petition to expunge and
289289 destroy the samples and profile record pursuant to K.S.A. 21-2511, and
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333333 amendments thereto, and shall direct the Kansas bureau of investigation to
334334 expunge and destroy such samples and profile record. The clerk of the
335335 court shall send a certified copy of the order to the Kansas bureau of
336336 investigation, which shall carry out the order and provide confirmation of
337337 such action to the court. Nothing in this subsection shall require the
338338 Kansas bureau of investigation to expunge and destroy any samples or
339339 profile record associated with the claimant that was submitted pursuant to
340340 K.S.A. 21-2511(a), and amendments thereto, related to any offense other
341341 than the offense for which the court has entered a certificate of innocence.
342342 (j) The decision to grant or deny a certificate of innocence shall not
343343 have a res judicata effect on any other proceedings.
344344 (k) Nothing in this section shall preclude the department of
345345 corrections from providing reentry services to a claimant that are provided
346346 to other persons, including, but not limited to, financial assistance, housing
347347 assistance for a period of time not to exceed five years, mentoring and
348348 counseling. Such services shall be provided while an action under this
349349 section is pending and after any judgment is entered, as appropriate for
350350 such claimant.
351351 (l) The decision of the district court may be appealed directly to the
352352 supreme court pursuant to the code of civil procedure.As used in this
353353 section:
354354 (1) "Housing assistance" means monthly payments to a rental facility
355355 or financial institution in an amount not to exceed $2,000. On July 1,
356356 2025, and on July 1 every five years thereafter, such amount shall be
357357 increased in an amount equal to the average percentage increase in the
358358 consumer price index for all urban consumers in the midwest region as
359359 published by the bureau of labor statistics of the United States department
360360 of labor.
361361 (2) "Counseling" means services for mental health, career placement,
362362 substance abuse, disability rehabilitation and family reunification.
363363 Sec. 2. K.S.A. 2023 Supp. 60-5004 is hereby repealed.
364364 Sec. 3. This act shall take effect and be in force from and after its
365365 publication in the statute book.
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