Session of 2024
House Substitute for SENATE BILL No. 190
By Committee on Judiciary
3-25
AN ACT concerning civil actions; relating to compensation for certain
persons convicted and subsequently imprisoned for one or more crimes
that such person did not commit; amending K.S.A. 2023 Supp. 60-5004
and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2023 Supp. 60-5004 is hereby amended to read as
follows: 60-5004. (a) As used in this section, "claimant" means a person
convicted and subsequently imprisoned for one or more crimes that such
person did not commit.
(b) Notwithstanding the provisions of any other law, a claimant may
bring an action in the district court seeking damages from the state
pursuant to this section.
(c) (1) The claimant shall establish the following by a preponderance
of evidence:
(A) The claimant was convicted of a felony crime and subsequently
imprisoned;
(B) the claimant's judgment of conviction was reversed or vacated,
and:
(i) Either the charges were dismissed or on retrial the claimant was
found to be not guilty;
(C)(ii) the claimant did not commit the crime or crimes for which the
claimant was convicted and, causing the conviction to be reversed or
vacated or the charges to be dismissed; and
(iii) the claimant was not an accessory or accomplice to the acts that
were the basis of the conviction and resulted in a reversal or vacation of
the judgment of conviction, dismissal of the charges or finding of not
guilty on retrial; and;
(D)(C) the claimant did not commit or suborn perjury, or fabricate
evidence, or by the claimant's own conduct cause or bring about the
conviction. Neither a confession nor admission later found to be false or a
guilty plea shall constitute committing or suborning perjury, or fabricating
evidence or causing or bringing about the conviction under this
subsection; and
(D) the claimant's own conduct, including any action taken by the
claimant before, during or after the commission of the acts that served as
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the basis for the claimant's conviction, did not contribute to, cause or
bring about the conviction.
(2) The court, in exercising its discretion as permitted by law
regarding the weight and admissibility of evidence submitted pursuant to
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 such persons or those acting on their behalf.
(d) (1) The suit, accompanied by a statement of the facts concerning
the claim for damages, verified in the manner provided for the verification
of complaints in the rules of civil procedure, shall be brought by the
claimant within a period of two years after the: (A) Dismissal of the
criminal charges against the claimant or finding of not guilty on retrial; or
(B) grant of a pardon to the claimant.
(2) A claimant convicted, imprisoned and released from custody
before July 1, 2018, must commence an action under this section no later
than July 1, 2020.
(3) All pleadings shall be captioned, "In the matter of the wrongful
conviction of ________________."
(4) Any claim filed pursuant to this section shall be served on the
attorney general in accordance with the code of civil procedure.
(5) The suit for a claim filed pursuant to this section shall be tried by
the court, and no request for a jury trial may be made pursuant to K.S.A.
60-238, and amendments thereto.
(e) (1) Damages awarded under this section shall be:
(A) $65,000$180 for each year day of imprisonment, except as
provided in subsection (e)(2); and
(B) not less than $25,000$70 for each additional year day served on
parole or postrelease supervision or each additional year day the claimant
was required to register as an offender under the Kansas offender
registration act, whichever is greater; and
(C) $110 for each day spent under a house arrest program pursuant
to K.S.A. 21-6609, and amendments thereto, except as provided in
subsection (e)(2).
(2) A claimant shall not receive compensation for any period of
incarceration imprisonment or house arrest during which the claimant was
concurrently serving a sentence for a conviction of another crime for
which such claimant was lawfully incarcerated.
(3) Compensation for days of imprisonment shall only be awarded
for days spent in the custody of the secretary of corrections and any time
served in jail awaiting post-trial transfer to the department of corrections.
(3)(4) (A) Except as provided in subparagraph (B), the court shall
order that the award be paid as a combination of an initial payment not to
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exceed $100,000 or 25% of the award, whichever is greater, and the
remainder as an annuity not to exceed $80,000 per year. The claimant shall
designate a beneficiary or beneficiaries for the annuity by filing such
designation with the court.
(B) 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.
(4)(5) In addition to the damages awarded pursuant to subsection (e)
(1), the claimant:
(A) Shall be entitled to receive reasonable attorney fees and costs
incurred in the action brought pursuant to this section not to exceed a total
of $25,000, unless a greater reasonable total is authorized by the court
upon a finding of good cause shown $100,000;
(B) may also be awarded other non-monetary nonmonetary relief as
sought in the complaint, including, but not limited to,:
(i) Counseling,;
(ii) housing assistance in the form of monthly payments made to a
landlord, rental facility or financial institution in an amount not to exceed
$2,000 for a period of time not to exceed five years; and
(iii) personal financial literacy assistance, as appropriate;
(C) shall be entitled to receive tuition assistance pursuant to K.S.A.
74-32,195, and amendments thereto; and
(D) shall be entitled to participate in the state health care benefits
program pursuant to K.S.A. 75-6501, and amendments thereto.
(f) (1) If, at the time of the judgment entry referred to in subsection
(e), the claimant has won a monetary award against the state or any
political subdivision thereof in a civil action related to the same subject, or
has entered into a settlement agreement with the state or any political
subdivision thereof related to the same subject, the amount of the award in
the action or the amount received in the settlement agreement, less any
sums paid to attorneys or for costs in litigating the other civil action or
obtaining the settlement agreement, shall be deducted from the sum of
money to which the claimant is entitled under this section. The court shall
include in the judgment entry an award to the state of any amount
deducted pursuant to this subsection.
(2) If subsection (f)(1) does not apply and if, after the time of the
judgment entry referred to in subsection (e), the claimant wins a monetary
award against the state or any political subdivision thereof in a civil action
related to the same subject, or enters into a settlement agreement with the
state or any political subdivision thereof related to the same subject, the
claimant shall reimburse the state for the sum of money paid under the
judgment entry referred to in subsection (e), less any sums paid to
attorneys or for costs in litigating the other civil action or obtaining the
settlement agreement. A reimbursement required under this subsection
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shall 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.
(g) If the court finds that the claimant is entitled to a judgment, it
shall enter a certificate of innocence finding that the claimant was 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 entry to the attorney general for payment pursuant to K.S.A.
75-6117, and amendments thereto.
(h) (1) Upon entry of a certificate of innocence, the court shall order
the associated convictions and arrest records expunged and purged from all
applicable state and federal systems pursuant to this subsection. The court
shall enter the expungement order regardless of whether the claimant has
prior criminal convictions.
(2) The order of expungement shall state the:
(A) Claimant's full name;
(B) claimant's full name at the time of arrest and conviction, if
different than the claimant's current name;
(C) claimant's sex, race and date of birth;
(D) crime for which the claimant was arrested and convicted;
(E) date of the claimant's arrest and date of the claimant's conviction;
and
(F) identity of the arresting law enforcement authority and identity of
the convicting court.
(3) The order of expungement shall also direct the Kansas bureau of
investigation to purge the conviction and arrest information from the
criminal justice information system central repository and all applicable
state and federal databases. The clerk of the court shall send a certified
copy of the order to the Kansas bureau of investigation, which shall carry
out the order and shall notify the federal bureau of investigation, the
secretary of corrections and any other criminal justice agency that may
have a record of the conviction and arrest. The Kansas bureau of
investigation shall provide confirmation of such action to the court.
(4) If a certificate of innocence and an order of expungement are
entered pursuant to this section, the claimant shall be treated as not having
been arrested or convicted of the crime.
(i) Upon entry of a certificate of innocence, the court shall order the
expungement and destruction of the associated biological samples
authorized by and given to the Kansas bureau of investigation in
accordance with K.S.A. 21-2511, and amendments thereto. The order shall
state the information required to be stated in a petition to expunge and
destroy the samples and profile record pursuant to K.S.A. 21-2511, and
amendments thereto, and shall direct the Kansas bureau of investigation to
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expunge and destroy such samples and profile record. The clerk of the
court shall send a certified copy of the order to the Kansas bureau of
investigation, which shall carry out the order and provide confirmation of
such action to the court. Nothing in this subsection shall require the
Kansas bureau of investigation to expunge and destroy any samples or
profile record associated with the claimant that was submitted pursuant to
K.S.A. 21-2511(a), and amendments thereto, related to any offense other
than the offense for which the court has entered a certificate of innocence.
(j) The decision to grant or deny a certificate of innocence shall not
have a res judicata effect on any other proceedings.
(k) Nothing in this section shall preclude the department of
corrections from providing reentry services to a claimant that are provided
to other persons, including, but not limited to, financial assistance, housing
assistance for a period of time not to exceed five years, mentoring and
counseling. Such services shall be provided while an action under this
section is pending and after any judgment is entered, as appropriate for
such claimant.
(l) The decision of the district court may be appealed directly to the
supreme court pursuant to the code of civil procedure.As used in this
section, "counseling" means services for mental health, career placement,
substance abuse, disability rehabilitation and family reunification.
Sec. 2. K.S.A. 2023 Supp. 60-5004 is hereby repealed.
Sec. 3. This act shall take effect and be in force from and after its
publication in the statute book.
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