Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

SB-460

Title:

AN ACT CONCERNING COMPENSATION FOR WRONGFUL INCARCERATION.

Vote Date:

3/30/2016

Vote Action:

Joint Favorable Substitute

PH Date:

3/21/2016

File No.:

637

SPONSORS OF BILL:

Judiciary Committee

REASONS FOR BILL:

Following several awards from the Claims Commissioner to claimants who were formerly wrongfully incarcerated, many legislators and observers questioned the amounts that were awarded as potentially being excessive. This bill is intended to create a formula for determining damages in claims arising from wrongful incarcerations.

RESPONSE FROM ADMINISTRATION/AGENCY:

The Division of Criminal Justice: Opposes the bill, specifically section (d)(3), which allows for claimants to collect for supposed “wrongful convictions” without first establishing actual innocence.

The Office of the Chief Public Defender: Strongly opposes the bill, and instead suggests the creation of a working group to examine the issues this bill is intended to address. The office is concerned that the structural and policy issues that are implicated in wrongful incarcerations have not been sufficiently examined, and that factors such as prosecutorial and police misconduct require additional review before proper mechanisms to compensate the victims of such misconduct can be implemented.

Attorney General George Jepsen: The Attorney General's office interprets the legislative language to mean that a claimant must be able to demonstrate their actual innocence, and have had their conviction vacated on grounds that demonstrate actual innocence. They also interpret the language to mean that awards issued by the Claims Commissioner would not be reviewable by the General Assembly. He requests that the General Assembly reconsider language that could create liability for damages where mere negligence – as opposed to intentional or reckless conduct – was committed by state agents. He notes that federal civil rights damages are generally not available for mere negligence. He also recommends denying compensation in cases where a claimant is re-tried, convicted, and sentenced to a term of equal or greater length to the time they previously spent incarcerated. Lastly, he notes that the prohibition on claimants accepting an award under this bill from pursuing other actions against the state might violate the Supremacy Clause, and suggests instead that the language require a broad, general release of all state and federal claims.

NATURE AND SOURCES OF SUPPORT:

Professor David R. Cameron, a resident of Madison: Prof. Cameron wrote to register his support for the bill, adding that he would suggest several modifications to the language. He takes issue with the requirement for full compensation only in cases where the claimant can demonstrate actual innocence, with the primacy of the Claims Commissioner in determining actual innocence, and with the reduction of awards in cases where negligence or misconduct by officials was the basis for the conviction being vacated. He also suggests selecting a fixed amount, rather than an adjusting formula, for determining the amount of compensation a wrongly incarcerated claimant might be able to collect.

NATURE AND SOURCES OF OPPOSITION:

Connecticut Trial Lawyers Association: CTLA has several concerns with the bill as written, and suggests that a working group to examine the issue in greater detail is warranted. CTLA notes that the proposed changes will significantly reduce the amount of compensation available to wronged parties, and undermine the efficacy of civil rights litigation. The proposed compensation scheme, in their opinion, fails to adequately compensate exonerees for the ongoing harms they are likely to suffer as a result of their incarceration. Concerns about “double recovery,” they argue, can be addressed better in the legislative language, in such a way that preserves the ability of litigants to seek recovery under 1983. Lastly, they are concerned that the bill could “effectively grant blanket immunity to all individuals involved in the arrest and prosecution, regardless of the egregiousness of their conduct.”

The Innocence Project: The Innocence Project opposes the bill, as it restricts access to compensation for those who are wrongfully convicted, bars access to civil litigation, and fails to resolve concerns raised by legislators. They join other organizations in urging a working group to be formed for further study of the issues involved in this bill.

Attorney Kenneth Rosenthal of Green & Sklarz LLC in New Haven: Attorney Rosenthal notes three primary objections to the bill as presented. First, the bill places additional discretion in the hands of the Claims Commissioner to determine the innocence of the claimant; Rosenthal feels the Commissioner is not the inappropriate entity to determine actual innocence. Second, the bill limits damages to what amounts to a lost earnings calculation, without regard to the hardships and other injuries, and long-term effects, stemming from incarceration. He notes that Texas uses a figure for annual compensation in excess of what Connecticut is now proposing, and suggests that we should not employ a lower level. Third, he is concerned that some of the bill's language might limit the ability of claimants to pursue federal statutory and constitutional remedies that would otherwise be available to them, potentially raising some Supremacy Clause issues.

Connecticut Criminal Defense Lawyers Association president James Ruane: The CCDLA strongly opposes the bill and endorses the Office of the Chief Public Defender's suggestion for a working group to address the concerns touched on by the bill. CCDLA is concerned that the formula for compensation, which is based in part on the “consumer price index for urban consumers,” is in fact a racially based formula meant to reduce compensation. Additionally, they note that criminal courts may be reluctant to issue orders inculpating law enforcement or prosecutors for misconduct that might be relevant to an award under the bill.

Reported by: Jerald Lentini

Date: 4/14/16