Feed for /2011/related/proposals/ab452 PDF
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
adequate.
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
imprisonment.
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
innocent.
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 1Section 1. 20.505 (4) (d) of the statutes is amended to read:
AB452,3,62 20.505 (4) (d) Claims awards. A sum sufficient for payment of awards made
3by the claims board or department of administration under ss. 16.007, 775.05 (4),
4775.06 and 775.11, awards of financial assistance under s. 808.085, and awards made
5by an act of the legislature arising from a claim filed with the claims board which are
6not directed by law or under s. 16.007 (6m) to be paid from another appropriation.
AB452, s. 2 7Section 2. 20.515 (1) (ds) of the statutes is created to read:
AB452,4,28 20.515 (1) (ds) Payment of health insurance premiums for individuals who
9receive compensation for wrongful imprisonment.
A sum sufficient to pay the state's

1share of premium costs for health care benefits and the cost of administering the
2benefits for individuals under s. 40.515.
AB452, s. 3 3Section 3. 20.515 (1) (g) of the statutes is created to read:
AB452,4,84 20.515 (1) (g) Benefit and coverage payments; health care coverage for
5individuals who receive compensation for wrongful imprisonment.
All moneys
6received from individuals under s. 40.515 who elect to be included in a health care
7coverage plan under s. 40.51 (6), for the payment of benefits and the cost of
8administering benefits for the individuals.
AB452, s. 4 9Section 4. 40.51 (1) of the statutes is amended to read:
AB452,4,1310 40.51 (1) The procedures and provisions pertaining to enrollment, premium
11transmitted 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
13or rule except as otherwise specifically provided by this chapter.
AB452, s. 5 14Section 5. 40.515 of the statutes is created to read:
AB452,4,19 1540.515 Health care coverage for individuals who receive
16compensation for wrongful imprisonment.
(1) Beginning on January 1, 2013,
17any individual who receives compensation under s. 775.05 after the effective date of
18this subsection .... [LRB inserts date], may elect coverage under any health care
19coverage plan offered under s. 40.51 (6) for a period not to exceed 10 years.
AB452,5,2 20(2) The individual and the state shall jointly pay the full premium cost of health
21care coverage and the cost of administering the benefits. The amount that the
22individual must pay in health insurance premiums shall equal the amount required
23to be paid by state employees, as determined by the director of the office of state
24employment relations under s. 40.05 (4) (ah). The remainder of the premium cost for

1health care coverage for these individuals shall be paid from the appropriation
2account under s. 20.515 (1) (ds).
AB452, s. 6 3Section 6. 71.05 (6) (b) 48. of the statutes is created to read:
AB452,5,84 71.05 (6) (b) 48. Any amount received by an individual, or the individual's
5estate, from the claims board under s. 775.05 (4), from the legislature under the
6process described in s. 775.05 (4), or from a financial assistance award granted under
7s. 808.085, in the taxable year that relates to the year in which the payment is
8received.
AB452, s. 7 9Section 7. 227.03 (5) of the statutes is amended to read:
AB452,5,1310 227.03 (5) This chapter does not apply to proceedings of the claims board,
11except 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
13s. 775.05
.
AB452, s. 8 14Section 8. 227.43 (1) (bw) of the statutes is created to read:
AB452,5,1615 227.43 (1) (bw) Assign a hearing examiner to preside over each hearing
16conducted under s. 775.05.
AB452, s. 9 17Section 9. 301.051 of the statutes is created to read:
AB452,5,21 18301.051 Wrongful conviction; transition plan. Not more than 5 days after
19a court issues an order for a plan requested by an inmate pursuant to 808.085 (1) (a),
20the department shall create a transition to release plan for the inmate. The plan shall
21do all of the following:
AB452,6,2 22(1) Provide the inmate with a written list of community resources available to
23the inmate upon his or her release from prison, including temporary housing and
24emergency shelters, food banks, education and job assistance, and health care

1services in the county into which the inmate will be released. The department shall
2maintain up to date lists with contact information for each county in the state.
AB452,6,5 3(2) Provide the inmate with an individual counseling session with a person
4trained by the department or the county into which the inmate will be released to
5assist inmates in the transition to release from prison.
AB452,6,8 6(3) Schedule an appointment, set for not later than 2 weeks after the inmate's
7date of release, with a social worker or aid program administrator for the county into
8which the inmate will be released.
AB452, s. 10 9Section 10. 775.05 (2) of the statutes is renumbered 775.05 (2) (a) and
10amended to read:
AB452,6,1911 775.05 (2) (a) Any Except as provided in par. (b), any person who is imprisoned
12as the result of his or her conviction for a crime in any court of this state, of which
13crime the person claims to be innocent, and who is released from imprisonment for
14that crime after March 13, 1980, may petition the claims board for compensation for
15such imprisonment. Upon Within 5 days after receipt of the petition, the claims
16board
department of administration shall transmit a copy thereof to the prosecutor
17who prosecuted the petitioner and the judge who sentenced the petitioner for the
18conviction which is the subject of the claim, or their successors in office, for the
19information of these persons.
AB452, s. 11 20Section 11. 775.05 (2) (b) of the statutes is created to read:
AB452,6,2421 775.05 (2) (b) Paragraph (a) does not apply to a person who is imprisoned as
22the result of his or her conviction for a felony in any court of this state arising from
23the same course of conduct that resulted in conviction for the crime of which the
24person claims to be innocent if the person does not claim to be innocent of that felony.
AB452, s. 12 25Section 12. 775.05 (3) and (4) of the statutes are amended to read:
AB452,7,17
1775.05 (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 evidence is
15clear and convincing
demonstrates that the petitioner was innocent of the crime for
16which 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.
AB452,8,14 18(4) 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
23amount which will equitably compensate the petitioner, not to exceed $25,000 and
24at a rate of compensation not greater than $5,000 of $50,000, or the amount
25determined under sub. (4m), whichever applies,
per year, for the imprisonment.

1Compensation awarded by the claims board In addition, the division shall include
2find any amount to which the board finds the petitioner is entitled for reasonable,
3actual
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 division finds that the amount it is
8able to award find is not an adequate compensation it shall submit a report specifying
9an amount which it considers adequate to the chief clerk of each house of the
10legislature, for distribution to the legislature under s. 13.172 (2). Upon conclusion
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
14(4) (d).
AB452, s. 13 15Section 13. 775.05 (4m) and (4r) of the statutes are created to read:
AB452,8,2116 775.05 (4m) On April 1 of each year, the claims board shall adjust the
17maximum amount specified in sub. (4) to reflect any changes in the U.S. consumer
18price index for all urban consumers, U.S. city average, as determined by the U.S.
19department of labor, for the 12-month period ending on the preceding December 31.
20The board shall publish the adjusted amount so determined in the Wisconsin
21administrative register.
AB452,8,24 22(4r) At any hearing conducted under this section, the petitioner may be
23represented by counsel of his or her own choosing. The department of administration
24shall represent the interests of the state.
AB452, s. 14 25Section 14. 775.05 (5) of the statutes is amended to read:
AB452,9,4
1775.05 (5) The claims board shall keep a complete record of its the proceedings
2in each case petition under this section and of all the evidence related to the petition.
3The findings and decision of the division of hearings and appeals and the award of
4the claims board shall be subject to review as provided in ch. 227.
AB452, s. 15 5Section 15. 808.085 of the statutes is created to read:
AB452,9,8 6808.085 Wrongful conviction; relief. (1) If a court acts under s. 808.08 to
7release a person from confinement from a prison, the person may petition the court
8for any or all of the following:
AB452,9,109 (a) A court order directing the department of corrections to create a transition
10to release plan.
AB452,9,1311 (b) A financial assistance award not to exceed 133 percent of the federal poverty
12level for up to 14 months, or while proceedings under s. 775.05 are pending,
13whichever is shorter.
AB452,9,1614 (c) Sealing of all records related to the case. Records sealed under this section
15shall be accessible to the person but may not be available for public inspection or
16through the consolidated court automation program case management system.
AB452,9,20 17(2) The court shall, within 10 days after it receives the petition under sub. (1),
18grant the relief sought if the person's criminal conviction was reversed, set aside, or
19vacated for reasons not inconsistent with the person's innocence of the crime for
20which he or she was convicted.
AB452,9,24 21(3) If a person who is granted relief under this section is subsequently convicted
22of the same charges for which he or she was granted relief, or if his or her conviction
23is reinstated, the person shall repay any financial assistance award granted under
24this section and all records related to the case shall be unsealed.
AB452,10,6
1(4) To the extent it is not contrary to or inconsistent with federal law, financial
2assistance a person receives pursuant to this section may not be included as income
3for the purpose of determining whether the person is indigent under rules
4promulgated under ch. 977 or for the purpose of determining the person's eligibility
5for any program for which the department of health services or the department of
6children and families provides services, benefits, or other assistance under ch. 49.
AB452, s. 16 7Section 16. 977.05 (4) (jr) of the statutes is created to read:
AB452,10,108 977.05 (4) (jr) At the request of a person determined by the state public
9defender to be indigent or upon referral of any court, represent the person in
10proceedings under s. 775.05.
AB452, s. 17 11Section 17. 977.05 (4) (jw) of the statutes is created to read:
AB452,10,1412 977.05 (4) (jw) At the request of an inmate determined by the state public
13defender to be indigent or upon referral of any court, represent the person in
14proceedings under s. 808.085.
AB452, s. 18 15Section 18. Initial applicability.
AB452,10,2316 (1) This act first applies with respect to petitions filed by persons who are
17released on or after January 1, 2006, from imprisonment for crimes of which they
18claim to be innocent. If a person was released from imprisonment on or after January
191, 2006, and accepted compensation from this state for wrongful imprisonment prior
20to the effective date of this subsection, the person may petition for additional
21compensation and compensation shall be awarded to the extent payable under
22section 775.05 of the statutes notwithstanding any release signed by the claimant as
23a condition precedent to receiving an initial compensation award.
AB452,11,324 (2) The treatment of section 71.05 (6) (b) 48. of the statutes first applies to
25taxable years beginning on January 1 of the year in which this subsection takes

1effect, except that if this subsection takes effect after July 31, section 71.05 (6) (b) 48.
2of the statutes first applies to taxable years beginning on January 1 of the year
3following the year in which this subsection takes effect.
AB452,11,44 (End)
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