2011 - 2012 LEGISLATURE
December 29, 2011 - Introduced by Representatives Bies, Pocan, Berceau,
Bernard Schaber, Bewley, E. Coggs, Hebl, Kessler, A. Ott, Pasch,
Pope-Roberts, Ringhand, Roys, Staskunas and C. Taylor, cosponsored by
Senators S. Coggs, Holperin and Taylor. Referred to Committee on Judiciary
1An Act to renumber and amend
20.505 (4) (d), 40.51 (1), 2
227.03 (5), 775.05 (3) and (4) and 775.05 (5); and to create
20.515 (1) (ds), 3
20.515 (1) (g), 40.515, 71.05 (6) (b) 48., 227.43 (1) (bw), 301.051, 775.05 (2) (b), 4
775.05 (4m) and (4r), 808.085, 977.05 (4) (jr) and 977.05 (4) (jw) of the statutes; 5relating to: resolution of claims against the state for wrongful imprisonment
6of innocent persons, exempting from taxation certain amounts an individual
7receives from the claims board or legislature, and making appropriations.
Analysis by the Legislative Reference Bureau
Currently, the state claims board is directed to hear petitions for compensation
by persons who are released from imprisonment for crimes of which they claim to be
innocent. The board must find either that the evidence is clear and convincing that
the petitioner was innocent of the crime for which he or she was imprisoned or that
the evidence is not clear and convincing that he or she was innocent. If the board finds
that the petitioner was innocent and that he or she did not by his or her act or failure
to act contribute to bring about the conviction and imprisonment for which he or she
seeks compensation, the board must award the petitioner compensation not to
exceed $25,000 total nor more than $5,000 for each year of imprisonment. This
amount includes any expenses for attorney fees, costs, and disbursements incurred
by the petitioner. Any award is paid from state general purpose revenues. If the
board determines that it is not able to award an adequate compensation, it is directed
to submit a report to the legislature specifying the amount that it considers to be
This bill provides that when the claims board receives a claim for wrongful
imprisonment filed by a petitioner who has been released from imprisonment and
who claims to be innocent of the crime for which he or she was imprisoned, the board
must refer the petition to the Division of Hearings and Appeals in the Department
of Administration (DOA). The bill then allows either DOA or the office of the
prosecutor who prosecuted the petitioner to file a written request with the claims
board for a hearing within 30 days after the original petition is filed with the board.
If a timely request for a hearing is filed, or if the division concludes that it cannot
determine the petitioner's eligibility for compensation without a hearing, the
division must hold a hearing within 60 days after the petition is filed. If a timely
request for a hearing is not filed and the division is able to determine that the
petitioner is eligible for compensation without a hearing, the division must decide
the matter without a hearing, except that the division must afford a petitioner an
opportunity for a hearing before denying compensation to the petitioner. If a hearing
is held, the bill allows the petitioner to be represented by a public defender. If a
hearing is held, the division appoints a hearing examiner to hear the petition. If no
hearing is held, the division decides the matter without a hearing. The hearing
examiner makes findings and issues a decision concerning whether the petitioner is
entitled to compensation. The findings must be based upon the preponderance of
evidence (a lesser evidentiary standard than clear and convincing evidence). The
petitioner need not show that he or she did not by his or her act or failure to act
contribute to bring about the conviction and imprisonment for which he or she seeks
compensation. If the hearing examiner's finding is in the affirmative, the examiner
must award compensation to the petitioner in an amount that the examiner
considers to be adequate and the board must pay that amount to the petitioner.
Under the bill, the amount of compensation is fixed at a rate of $50,000 per year and
there is no limit on the total amount of an award. The $50,000 annual rate is subject
to annual adjustment based upon changes in the cost of living. In addition, each
award must include reimbursement for reasonable, actual attorney fees, together
with all costs and disbursements incurred by the petitioner in his or her defense,
post-conviction, and compensation proceedings and all fees, surcharges, and
restitution paid by the petitioner as a result of his or her arrest and imprisonment.
The bill provides that no person may file a claim for wrongful imprisonment as a
result of his or her conviction for a crime if the person is imprisoned as the result of
his or her conviction for a felony in any court of this state arising from the same
course of conduct that resulted in conviction for the crime of which the person claims
to be innocent if the person does not claim to be innocent of that felony.
Under current law, the Group Insurance Board, attached to the Department of
Employee Trust Funds, contracts on behalf of the state for the purpose of providing
health care coverage to state employees. This bill permits individuals who receive
compensation from the state for wrongful imprisonment to elect, for up to ten years,
health care coverage under plans offered by the Group Insurance Board to state
employees beginning on January 1, 2013. Under the bill, these individuals would be
required to pay the same health insurance premium amounts that state employees
are required to pay, with the balance of the premium cost paid by the state.
Under the bill, if a person's conviction for a crime is reversed, set aside, or
vacated on grounds consistent with the person's innocence, and the person is ordered
released from prison by a trial court, the court is required to grant the person, upon
request, temporary financial assistance, transition assistance from the department
of corrections (DOC) and local aid agencies, and sealing of all records related to his
or her conviction. If the person pursues a successful petition for wrongful
imprisonment, any temporary financial assistance he or she received upon release
from prison is subtracted from any compensation he or she receives for wrongful
The bill also exempts from taxation the payments that an individual, or his or
her estate, receives from the claims board, or from the state legislature as a result
of claims board action.
The bill initially applies with respect to claims filed by persons who are released
on or after January 1, 2006, from imprisonment for crimes of which they claim to be
Because this bill relates to an exemption from state or local taxes, it may be
referred to the Joint Survey Committee on Tax Exemptions for a report to be printed
as an appendix to the bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB452, s. 1
20.505 (4) (d) of the statutes is amended to read:
(d) Claims awards.
A sum sufficient for payment of awards made 3
by the claims board or department of administration under ss. 16.007, 775.05 (4), 4
775.06 and 775.11, awards of financial assistance under s. 808.085,
and awards made 5
by an act of the legislature arising from a claim filed with the claims board which are 6
not directed by law or under s. 16.007 (6m) to be paid from another appropriation.
AB452, s. 2
20.515 (1) (ds) of the statutes is created to read:
(ds) Payment of health insurance premiums for individuals who
9receive compensation for wrongful imprisonment.
A sum sufficient to pay the state's
share of premium costs for health care benefits and the cost of administering the 2
benefits for individuals under s. 40.515.
AB452, s. 3
20.515 (1) (g) of the statutes is created to read:
(g) Benefit and coverage payments; health care coverage for
5individuals who receive compensation for wrongful imprisonment.
All moneys 6
received from individuals under s. 40.515 who elect to be included in a health care 7
coverage plan under s. 40.51 (6), for the payment of benefits and the cost of 8
administering benefits for the individuals.
AB452, s. 4
40.51 (1) of the statutes is amended to read:
The procedures and provisions pertaining to enrollment, premium 11
transmitted and coverage of eligible employees and individuals eligible for health
12care coverage under s. 40.515
for health care benefits shall be established by contract 13
or rule except as otherwise specifically provided by this chapter.
AB452, s. 5
40.515 of the statutes is created to read:
1540.515 Health care coverage for individuals who receive
16compensation for wrongful imprisonment. (1)
Beginning on January 1, 2013, 17
any individual who receives compensation under s. 775.05 after the effective date of 18
this subsection .... [LRB inserts date], may elect coverage under any health care 19
coverage plan offered under s. 40.51 (6) for a period not to exceed 10 years.
The individual and the state shall jointly pay the full premium cost of health 21
care coverage and the cost of administering the benefits. The amount that the 22
individual must pay in health insurance premiums shall equal the amount required 23
to be paid by state employees, as determined by the director of the office of state 24
employment relations under s. 40.05 (4) (ah). The remainder of the premium cost for
health care coverage for these individuals shall be paid from the appropriation 2
account under s. 20.515 (1) (ds).
AB452, s. 6
71.05 (6) (b) 48. of the statutes is created to read:
(b) 48. Any amount received by an individual, or the individual's 5
estate, from the claims board under s. 775.05 (4), from the legislature under the 6
process described in s. 775.05 (4), or from a financial assistance award granted under 7
s. 808.085, in the taxable year that relates to the year in which the payment is 8
AB452, s. 7
227.03 (5) of the statutes is amended to read:
This chapter does not apply to proceedings of the claims board, 11
except as provided in ss. 775.05 (5),
775.06 (7) and 775.11 (2), and except that
12proceedings under s. 775.05 are subject to this chapter, unless otherwise provided in
AB452, s. 8
227.43 (1) (bw) of the statutes is created to read:
(bw) Assign a hearing examiner to preside over each hearing 16
conducted under s. 775.05.
AB452, s. 9
301.051 of the statutes is created to read:
18301.051 Wrongful conviction; transition plan.
Not more than 5 days after 19
a court issues an order for a plan requested by an inmate pursuant to 808.085 (1) (a), 20
the department shall create a transition to release plan for the inmate. The plan shall 21
do all of the following:
Provide the inmate with a written list of community resources available to 23
the inmate upon his or her release from prison, including temporary housing and 24
emergency shelters, food banks, education and job assistance, and health care
services in the county into which the inmate will be released. The department shall 2
maintain up to date lists with contact information for each county in the state.
Provide the inmate with an individual counseling session with a person 4
trained by the department or the county into which the inmate will be released to 5
assist inmates in the transition to release from prison.
Schedule an appointment, set for not later than 2 weeks after the inmate's 7
date of release, with a social worker or aid program administrator for the county into 8
which the inmate will be released.
AB452, s. 10
775.05 (2) of the statutes is renumbered 775.05 (2) (a) and 10
amended to read:
(a) Any Except as provided in par. (b), any
person who is imprisoned 12
as the result of his or her conviction for a crime in any court of this state, of which 13
crime the person claims to be innocent, and who is released from imprisonment for 14
that crime after March 13, 1980, may petition the claims board for compensation for 15
such imprisonment. Upon Within 5 days after
receipt of the petition, the claims
16board department of administration
shall transmit a copy thereof to the prosecutor 17
who prosecuted the petitioner and the judge who sentenced the petitioner for the 18
conviction which is the subject of the claim, or their successors in office, for the 19
information of these persons.
AB452, s. 11
775.05 (2) (b) of the statutes is created to read:
(b) Paragraph (a) does not apply to a person who is imprisoned as 22
the result of his or her conviction for a felony in any court of this state arising from 23
the same course of conduct that resulted in conviction for the crime of which the 24
person claims to be innocent if the person does not claim to be innocent of that felony.
AB452, s. 12
775.05 (3) and (4) of the statutes are amended to read:
775.05 (3) After hearing the evidence on the petition, the claims board Upon
2receipt of a petition under sub. (2) (a), the department of administration shall
3promptly refer the petition to the division of hearings and appeals. No later than 30
4days after the petition is filed, the department of administration or the office of the
5prosecutor who was responsible for prosecuting the petitioner may file a written
6request with the claims board for an evidentiary hearing on the petition. If a timely
7request for a hearing is filed, or if the division concludes that it cannot determine the
8petitioner's eligibility for compensation without a hearing, the division shall hold a
9hearing on the petition no later than 60 days after the petition is filed. If no request
10for a hearing is filed within the time specified in this subsection, and the division is
11able to determine that the petitioner is eligible for compensation without a hearing,
12the division shall decide the matter without a hearing, except that the division shall
13not deny a petition for compensation without affording the petitioner an opportunity
14for a hearing. The division
shall find either that the preponderance of
15clear and convincing demonstrates
that the petitioner was innocent of the crime for 16
which he or she suffered imprisonment, or that the preponderance of
evidence is not
17clear and convincing does not demonstrate
that he or she was innocent.
If the claims board division of hearings and appeals
finds that the 19preponderance of evidence demonstrates that the
petitioner was innocent and that
20he or she did not by his or her act or failure to act contribute to bring about the
21conviction and imprisonment for which he or she seeks compensation, the claims
22board of the crime for which he or she was imprisoned, the division
shall find the 23
amount which will equitably compensate the petitioner, not to exceed $25,000 and 24
at a rate of compensation not greater than $5,000
of $50,000, or the amount
25determined under sub. (4m), whichever applies,
for the imprisonment.
1Compensation awarded by the claims board In addition, the division
any amount to which the board finds the
petitioner is entitled for reasonable,
attorney fees, together with all
costs and disbursements incurred by the
4petitioner in his or her defense, post-conviction, and compensation proceedings and
5all fees, surcharges, and restitution paid by the petitioner as a result of his or her
6arrest and imprisonment. The division shall subtract any moneys received by the
7petitioner under s. 808.085
. If the claims board
finds that the amount it is 8
able to award find
is not an adequate compensation it shall submit a report specifying 9
an amount which it considers adequate to the chief clerk of each house of the 10
legislature, for distribution to the legislature under s. 13.172 (2).
11of the proceeding, the division shall transmit its findings and decision to the claims
12board, which shall award the compensation specified in the decision and order
13disbursement of the award to the petitioner from the appropriation under s. 20.505
AB452, s. 13
775.05 (4m) and (4r) of the statutes are created to read:
On April 1 of each year, the claims board shall adjust the 17
maximum amount specified in sub. (4) to reflect any changes in the U.S. consumer 18
price index for all urban consumers, U.S. city average, as determined by the U.S. 19
department of labor, for the 12-month period ending on the preceding December 31. 20
The board shall publish the adjusted amount so determined in the Wisconsin 21
At any hearing conducted under this section, the petitioner may be 23
represented by counsel of his or her own choosing. The department of administration 24
shall represent the interests of the state.
AB452, s. 14
775.05 (5) of the statutes is amended to read:
The claims board shall keep a complete record of its the
in each case petition under this section
and of all the evidence related to the petition
The findings and decision of the division of hearings and appeals
and the award of 4
the claims board shall be subject to review as provided in ch. 227.
AB452, s. 15
808.085 of the statutes is created to read:
6808.085 Wrongful conviction; relief.
If a court acts under s. 808.08 to 7
release a person from confinement from a prison, the person may petition the court 8
for any or all of the following:
(a) A court order directing the department of corrections to create a transition 10
to release plan.
(b) A financial assistance award not to exceed 133 percent of the federal poverty 12
level for up to 14 months, or while proceedings under s. 775.05 are pending, 13
whichever is shorter.
(c) Sealing of all records related to the case. Records sealed under this section 15
shall be accessible to the person but may not be available for public inspection or 16
through the consolidated court automation program case management system.
The court shall, within 10 days after it receives the petition under sub. (1), 18
grant the relief sought if the person's criminal conviction was reversed, set aside, or 19
vacated for reasons not inconsistent with the person's innocence of the crime for 20
which he or she was convicted.
If a person who is granted relief under this section is subsequently convicted 22
of the same charges for which he or she was granted relief, or if his or her conviction 23
is reinstated, the person shall repay any financial assistance award granted under 24
this section and all records related to the case shall be unsealed.
To the extent it is not contrary to or inconsistent with federal law, financial 2
assistance a person receives pursuant to this section may not be included as income 3
for the purpose of determining whether the person is indigent under rules 4
promulgated under ch. 977 or for the purpose of determining the person's eligibility 5
for any program for which the department of health services or the department of 6
children and families provides services, benefits, or other assistance under ch. 49.
AB452, s. 16
977.05 (4) (jr) of the statutes is created to read:
(jr) At the request of a person determined by the state public 9
defender to be indigent or upon referral of any court, represent the person in 10
proceedings under s. 775.05.
AB452, s. 17
977.05 (4) (jw) of the statutes is created to read:
(jw) At the request of an inmate determined by the state public 13
defender to be indigent or upon referral of any court, represent the person in 14
proceedings under s. 808.085.
(1) This act first applies with respect to petitions filed by persons who are 17
released on or after January 1, 2006, from imprisonment for crimes of which they 18
claim to be innocent. If a person was released from imprisonment on or after January 19
1, 2006, and accepted compensation from this state for wrongful imprisonment prior 20
to the effective date of this subsection, the person may petition for additional 21
compensation and compensation shall be awarded to the extent payable under 22
section 775.05 of the statutes notwithstanding any release signed by the claimant as 23
a condition precedent to receiving an initial compensation award.
(2) The treatment of section 71.05 (6) (b) 48. of the statutes first applies to 25
taxable years beginning on January 1 of the year in which this subsection takes
effect, except that if this subsection takes effect after July 31, section 71.05 (6) (b) 48. 2
of the statutes first applies to taxable years beginning on January 1 of the year 3
following the year in which this subsection takes effect.