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The 191st General Court of the Commonwealth of Massachusetts

Section 5: Damages

Section 5. (A) Upon a finding or verdict that the claimant has met the requirements of section 1 by the requisite standard of proof and is not barred from compensation by section 2, the court or the jury shall determine the damages that shall be payable to the claimant. In making such determination, the court or jury shall consider, but not be limited to, the consideration of: the income the claimant would have earned, but for his incarceration; the particular circumstances of the claimant's trial and other proceedings; the length and conditions under which the claimant was incarcerated and; any other factors deemed appropriate under the circumstances in order to fairly and reasonably compensate the claimant. The court, in its discretion, may admit expert testimony on these or any factors. The court may include, as part of its judgment against the commonwealth, an order requiring the commonwealth to provide the claimant with services that are reasonable and necessary to address any deficiencies in the individual's physical and emotional condition that are shown to be directly related to the individual's erroneous felony conviction and resulting incarceration through documentary or oral evidence presented to the court or jury by the claimant as part of the claim if the claimant provided in his original claim for compensation under this chapter: (i) the nature of the services that he seeks; and (ii) the agencies, departments or commissions of the commonwealth from which he seeks to receive such services. Any such agency, department or commission so named in the claim shall be entitled to reasonable notice of the court proceedings pertaining to the possible ordering of such services and shall be given an opportunity to be heard on whether such agency is the appropriate entity to provide such services if so ordered. The court may also include in its judgment an order that entitles any claimant who wishes to apply for and receive educational services from any state or community college of the commonwealth including, but not limited to, the University of Massachusetts at Amherst and its satellite campuses, a 50 per cent reduction of the tuition and fees applicable to such services at said institutions. Once the damages have been determined, the court shall enter a judgment against the commonwealth for the claimant in an amount certain, payable in either a lump sum or in annuity installment payments set by the court; provided, however, that any such annuity installment payments shall have fixed limits on their annual amount and on the time period which they shall be paid to the claimant. A judgment against the commonwealth may not include punitive or exemplary damages. The total liability of the commonwealth for any judgment entered under this chapter shall not exceed $500,000. Notwithstanding any general or special law to the contrary, the clerk of court shall not add to the judgment and the commonwealth shall not be liable for paying, any prejudgment or post judgment interest on damages. Subject to section 4, relative to award or settlements, the rights and remedies afforded to certain individuals by this chapter are not intended to limit in any way any rights or remedies that such individuals or other individuals may be entitled to exercise and pursue under chapter 258.

(B) In awarding damages under this section, the court or jury shall not offset the award by any expenses incurred by the commonwealth or any political subdivision of the commonwealth including, but not limited to, expenses incurred to secure the claimant's custody, or to feed, clothe or provide medical services for the claimant nor shall the court offset against the award the value of any reduction in tuition or fees for educational services or the value of services to be provided to the claimant that may be awarded to the claimant pursuant to this section.

(C) The commonwealth shall not be liable to levy of execution on any real or personal property to satisfy a judgment ordered pursuant to this chapter. Any judgments ordered by the court pursuant to this chapter shall be paid from funds appropriated by the general court for such purpose. Payments by the commonwealth under this chapter are made to remedy the claimant's injury of unjust incarceration. Only those portions of a judgment that are paid or retained as compensation for services in bringing a claim under this chapter by an attorney representing the claimant pursuant to a signed agreement with the claimant or otherwise shall be subject to taxation by the commonwealth.

(D) The court shall give due consideration to the possible bifurcation of court proceedings to separate the consideration of issues to be resolved by the court, as required by sections 1 and 2, from the determination of reasonable damages and other relief as required by this section.