Virginia Law

Article 18.2. Compensation for Wrongful Incarceration for a Felony Conviction.

A. The purpose of this article is to provide directions and guidelines for the compensation of persons who have been wrongfully incarcerated in the Commonwealth. Compensation for wrongful incarceration is governed by Article IV, § 14 of the Constitution of Virginia, which prohibits the General Assembly from granting relief in cases in which the courts or other tribunals may have jurisdiction. No compensation shall be awarded under this article unless the recipient has executed a release and waiver pursuant to subsection B of § 8.01-195.12. The payment and receipt of any compensation for wrongful incarceration shall be contingent upon the General Assembly appropriating funds for that purpose. This article shall not provide an entitlement to compensation for persons wrongfully incarcerated or require the General Assembly to appropriate funds for the payment of such compensation.

B. As used in this article:

"Incarceration" or "incarcerated" means confinement in a local or regional correctional facility, juvenile correctional center, state correctional facility, residential detention center, or facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.).

"Wrongful incarceration" or "wrongfully incarcerated" means incarceration for a felony conviction for which the conviction has been vacated pursuant to Chapter 19.2 (§ 19.2-327.2 et seq.) or 19.3 (§ 19.2-327.10 et seq.) of Title 19.2, or the person incarcerated has been granted an absolute pardon for the commission of a crime that he did not commit.

2004, cc. 818, 840; 2010, cc. 496, 557; 2021, Sp. Sess. I, cc. 344, 345; 2022, cc. 572, 573; 2024, c. 396.

A. 1. Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony may be awarded compensation for each year of incarceration, or portion thereof. The amount of compensation per year shall be $55,000, adjusted on July 1 of each fiscal year by the year-over-year percentage increase in the Chained Consumer Price Index for All Urban Consumers (C-CPI-U), as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or any predecessor or successor index. Calculations made pursuant to this section shall be made by the State Treasurer and rounded up to the nearest dollar.

2. For compensation awarded pursuant to this section on or after January 1, 2024, a wrongfully incarcerated person who is awarded compensation pursuant to subdivision 1 shall also receive not less than $30,000, adjusted on July 1 of each fiscal year by the year-over-year percentage increase in the Chained Consumer Price Index for all Urban Consumers (C-CPI-U), as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or any predecessor or successor index, for each year or fraction thereof (i) of imprisonment after being sentenced to death or (ii) that such person was required to register with the Sex Offender and Crimes Against Minors Registry pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1.

B. Any compensation computed pursuant to subsection A and approved by the General Assembly shall be paid by the Comptroller by his warrant on the State Treasurer in favor of the person found to have been wrongfully incarcerated. The person wrongfully incarcerated shall be paid a lump sum.

C. In addition to the compensation awarded pursuant to subsection A, the General Assembly shall pay to the person wrongfully incarcerated the amount of any unreimbursed fine, fee, court cost, or restitution imposed and paid and reasonable attorney fees and costs incurred to receive an award pursuant to this section. The wrongfully incarcerated person may also be awarded other nonmonetary relief sought, including counseling, housing assistance, employment assistance, health care and dental care, and personal financial literacy assistance, as appropriate.

D. Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony shall receive a transition assistance grant of $15,000 to be paid from the Criminal Fund, which amount shall be deducted from any award received pursuant to subsection B, within 30 days of receipt of the written request for the disbursement of the transition assistance grant to the Executive Secretary of the Supreme Court of Virginia. Payment of the transition assistance grant from the Criminal Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Executive Secretary of the Supreme Court of Virginia. In addition, such person shall be entitled to receive reimbursement up to $10,000 for tuition for career and technical training within the Virginia Community College System contingent upon successful completion of the training. Reimbursement for tuition shall be provided by the comprehensive community college at which the career or technical training was completed.

E. If an individual eligible for compensation and benefits under this section is deceased, the individual's estate has standing to be compensated under this section.

2004, cc. 818, 840; 2010, c. 557; 2012, c. 675; 2014, c. 225; 2018, c. 302; 2020, cc. 326, 648; 2022, cc. 572, 573; 2024, c. 396.

A. If, at the time of the award of compensation pursuant to § 8.01-195.11, the person wrongfully incarcerated has previously won a monetary award against the Commonwealth or any political subdivision thereof in a civil action arising out of the factual situation in connection with the conviction for which the compensation was awarded, or has entered into a settlement agreement with the Commonwealth or any political subdivision thereof arising out of such situation, the amount of the award in such action or such settlement agreement, less any sums paid to attorneys or for costs in litigating such other civil action or obtaining such settlement agreement, shall be deducted from the sum of money to which the person wrongfully incarcerated is entitled pursuant to § 8.01-195.11.

B. As a condition of receiving any compensation under this article, a person shall execute a release and waiver forever releasing (i) the Commonwealth or any agency, instrumentality, officer, employee, or political subdivision thereof, (ii) any legal counsel appointed pursuant to § 19.2-159, and (iii) all other parties of interest, from any present or future claims the person receiving compensation may have against such enumerated parties and arising out of the factual situation in connection with the conviction for which compensation is being sought under this article.

2004, cc. 818, 840; 2010, c. 557; 2024, c. 396.

A. In any matter resulting in compensation for wrongful incarceration pursuant to this article, if a court of competent jurisdiction over the matter determines, or the court record clearly demonstrates, that the Commonwealth or any agency, instrumentality, officer or employee, or political subdivision thereof (i) intentionally and wrongfully fabricated evidence that was used to obtain the wrongful conviction in such manner and (ii) intentionally, willfully, and continuously suppressed or withheld evidence establishing the innocence of the person wrongfully incarcerated, including but not limited to suppression or withholding of evidence to the Governor for the purpose of clemency, the Commonwealth may compensate the person wrongfully incarcerated for such intentional acts. Such amount shall be in addition to any compensation awarded pursuant to § 8.01-195.11 and may be up to or equal to the amount of such compensation. The additional compensation shall be added to any amount awarded pursuant to § 8.01-195.11, and the total compensation shall be paid pursuant to subsection B of § 8.01-195.11. Nothing provided in this section shall be interpreted to supplant, revoke, or supersede any other provision of this article applicable to the award of compensation for wrongful incarceration, and the additional compensation shall be subject to any conditions set forth in this article.

B. Any compensation awarded pursuant to this article that includes the additional compensation for intentional acts as set forth in subsection A shall not become effective and payable by the Commonwealth unless and until (i) the person wrongfully incarcerated executes the release and waiver pursuant to subsection B of § 8.01-195.12 and (ii) the instrumentality, or political subdivision thereof, employing any individual committing the intentional acts set forth in clauses (i) and (ii) of subsection A enters into an agreement with the person wrongfully incarcerated requiring such instrumentality or political subdivision to compensate the person with a sum at least equal to the total compensation provided pursuant to § 8.01-195.11 and this section.

2018, cc. 502, 503; 2024, c. 396.