The Capital Litigation Trust Fund was created by the Illinois General Assembly to provide defense counsel and prosecutors access to sufficient resources to cover the costs of litigating death penalty cases.

The bipartisan legislation was prompted by the overturned convictions of 13 individuals whom the courts determined had been wrongly accused or convicted of capital crimes and sentenced to death row.

As a result, the state sought to ensure that a lack of financial resources would not deny a death penalty defendant access to competent counsel and the ability to mount a credible defense. The fund also provides money for prosecutors, helping to defray the high costs of death penalty cases.

One portion of the fund allocates an annual amount of financial assistance to pay for capital cases in Cook County, where the majority of death penalty cases are tried. The remainder of the fund is earmarked for capital expenses throughout the rest of the state.

Every fiscal year, money allocated by the General Assembly is transferred from the state’s General Revenue Fund to the Capital Litigation Trust Fund administered by the State Treasurer’s Office.

The Trust Fund provides funds for:

• Annual requests from the Cook County Public Defender and Cook County State’s Attorney. These funds are disbursed by the Cook County Treasurer’s Office.
• Reimbursement for Public Defenders, appointed defense counsel, State’s Attorneys in counties outside of Cook, and the Attorney General, State Appellate Defender and State’s Attorneys Appellate Prosecutor. These funds are disbursed by the State Treasurer’s Office.

 According to the Act, eligible expenses can include, but are not limited to:

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• Investigation assistance
• Testimony of expert witnesses
• Forensic and DNA testing
• Mitigation specialists
• Other trial-related necessities

The Act requires that the court approve trial expenses submitted by public defenders and appointed defense counsel before they receive payment.  State’s Attorneys in counties other than Cook may have trial expenses approved by either the Illinois Attorney General or the State’s Attorney Appellate Prosecutor.

Bills submitted for payment must be accompanied by a certification that the amount requested is accurate and truthful and reflects time spent or expenses actually incurred.

If approved, these bills are forwarded to the State Treasurer’s Office (for cases outside Cook County) or the Cook County Treasurer’s Office (for cases in Cook County). Bills forwarded to the State Treasurer’s Office are reviewed by the State Treasurer, who may, within 14 days of receipt of the bill, return to the court for review any expenses found to be unreasonable, unnecessary or inappropriate. If no objections are found, or if the Court overrules the objections, the State Treasurer will release the money for reimbursement. If a State’s Attorney indicates that prosecutors will not seek the death penalty, the Capital Litigation Trust Fund does not pay for any of the incurred expenses.

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How to Apply:

1. Submit the appropriate form(s):
   Certification Form Cover Sheet (PDF)
   Certification of Compensation and Expenses for Appointed Defense Counsel (PDF fill-in form)
   Certification of Expenses of Public Defender (PDF fill-in form)
   Certification of Expenses of State's Attorney (PDF fill-in form)
   Certification of Compensation and Expenses of Expert and Specialist Services (PDF fill-in form)
2. Your certification form will be reviewed by the Treasurer’s Office.
3. If accurate, reasonable, necessary and appropriate as determined by the court, your payment will be processed.

History:

The Capital Litigation Trust Fund was created in 1999 as part of the Capital Crimes Litigation Act (725 ILCS 124). The Illinois Legislature overwhelmingly approved the measure to promote fairness in the defense and prosecution of death penalty cases. The legislation took effect on Jan. 1, 2000.

In 2005, the Legislature amended the Act to demand greater fiscal accountability from attorneys litigating death penalty cases. Court-appointed attorneys are now required to submit a budget and an itemized accounting of work performed in a death penalty case.

In 2009, the Act was amended again to standardize charges related to performing legal duties, and limit excessive and inappropriate costs.  Significantly, the State Treasurer now has the ability to ask that the certifying judge reconsider any certified expenses submitted by the court if the Treasurer finds that they are unreasonable, unnecessary or inappropriate.  The amendment also standardizes and caps travel and per diem expenses at the rate promulgated by the United States General Services Administration.

As of June 2009, $24.8 million has been expended to multiple counties outside of Cook County.

Frequently Asked Questions:

At what point in a case is the Capital Litigation Trust Fund applicable?

• Funds are available once an individual has been charged and arraigned in a death penalty-eligible offense as long as the state's attorney has not filed a certificate or stated on the record in open court that the death penalty will not be sought.

Who authorizes expenses as reasonable, necessary and appropriate for payment from the trust fund?

• For all counties other than Cook County, the trial judge and the presiding judge in that county authorize defense expenses. For all counties other than Cook, either the Attorney General or the State’s Attorney Appellate Prosecutor authorizes prosecution expenses.

Are all expenses for a death penalty case covered by the trust fund?

• No. The trust fund is designed to supplement ordinary and customary funding by the county where the case is being tried.

Should all bills be remitted at once?

• No. Counsel should submit bills periodically for prompt payment. All bills must be itemized.

What is the compensation?

• Compensation rates are revised on an annual basis based on the Consumer Price Index. In 2008, compensation for appointed-trial counsel was paid at a rate of up to $151.56 per hour.

Do bills need to be itemized?

• Yes, all bills must be itemized or they will not be paid. Counsel must detail the dates the services were performed, describe what services were conducted, and the amount of time spent on each. Bills must also be accompanied by a certification that the amount requested is accurate, truthful, and reflects time spent or expenses incurred.

Does the fund reimburse travel expenses and other incidentals?

• Yes. The court is required to certify reasonable and necessary travel and per diem expenses (lodging, meals and incidental expenses). If travel expenses have been approved and certified by the court, counsel may submit them for reimbursement. These expenses are paid at the rate promulgated by the United States General Services Administration for the date and location in which they were incurred.

What if there is a question about expenses?

• Specific questions regarding expenses should be directed to the court.

Doesn't a description of services in an itemized bill disclose information that can be used against a party?

• Bills are filed with the court under seal, and are reviewed by the judge and the billing attorney, without opposing counsel present, but in the presence of a court reporter.

Must requests for specialists be submitted before they are retained?

• In general, the court should be petitioned before a specialist/expert's services are used. The proposed services provider should provide a best preliminary estimate to the court. That estimate should include the hourly rate of the specialist/expert, any employees, and any subcontractors that may be used in providing services. The best preliminary estimate should be signed by the proposed services provider.

What if an expert's services need to be retained prior to court approval?

• Counsel may obtain services without prior court authorization, but must seek certification that these services were reasonable and necessary before they are paid. Again, bills must also be accompanied by a certification that the amount requested is accurate, truthful, and reflects time spent or expenses incurred.

What discretion does the Illinois State Treasurer's Office have regarding paying claims submitted to the trust fund?

• None. The Illinois State Treasurer's Office pays claims that the court certifies for payment under the statute. However, if the Illinois State Treasurer’s Office finds the expenses requested are unreasonable, unnecessary, or inappropriate, it may request that the court review the objection and resubmit the certification. The State Treasurer must make that request within 14 days of its receipt of the certification.

If the Illinois State Treasurer makes an objection to the certification, may the party submitting the claims respond?

• Yes. The Illinois State Treasurer must send a copy of the objection to the party seeking certification. Once the objection is received, the party seeking certification has seven days to file a response with the court.

How quickly will a court rule on an objection made by the Illinois State Treasurer?

• The court should rule promptly on any objections.

Where can I find a certification that the amount requested is accurate, truthful, and reflects time spent or expenses incurred?

• That certification is included in the relevant certification of expense forms on the Illinois State Treasurer’s website.

Has the Illinois State Treasurer's Office refused to pay an expense?

• Yes. The State Treasurer's Office does not pay expenses when they do not satisfy the criteria of the Capital Crimes Litigation Act.

Does the Illinois State Treasurer's Office administer the trust fund for Cook County?

• No. The Cook County Treasurer's Office handles applications for funds from Cook County. The Illinois State Treasurer's Office grants money to Cook County from the Capital Litigation Trust Fund.

What oversight does the Illinois State Treasurer's Office have on the way Cook County spends their money?

• None. The Cook County Treasurer's office submits monthly reports describing the expenses paid, how much money was spent on each expense and the current trust fund balance.

What happens if the Trust Fund runs out of money?

• If the trust fund’s resources are entirely depleted in any of the fund categories, an appearance can be made by the Cook County Public Defender and/or State's Attorney (for requests on behalf of Cook County) or the State Appellate Defender and/or the State's Attorney Appellate Prosecutor (for requests on behalf counties other than Cook) before the General Assembly during the state's fiscal year to request supplemental appropriations from the trust fund to the State Treasurer.

Has the Trust Fund ever run out of money?

• Yes. In fiscal year 2002, the Capital Litigation Trust Fund ran out of money in the "appointed defense counsel" appropriation. Legislation was passed to supplement the trust fund and pay outstanding bills.

What is the average cost of a death penalty case?

• Costs reimbursed for cases by the trust fund typically range from $500,000 to $700,000.

Is there a limit on how much can be spent on a capital trial?

• There is no statutory limit; however, the court must consider all reimbursable expenses reasonable and necessary.

How long does it take for an expense to get paid?

• For counties other than Cook County, the average time for payment is four to six weeks from the time the request reaches the State Treasurer's Office.

Is information regarding the trust fund public record?

• Most information regarding death penalty cases is public information once the trial has concluded. Petitions for attorneys' fees become public information once appeals have been concluded.