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 subdivision 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.