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Costs of Capital Cases

Gross disparities in application of death penalty and related expenditures in Illinois

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November 16, 2010 | by Hilary Hurd Anyaso

CHICAGO --- A new Northwestern University study that takes a close look at Illinois’ Capital Litigation Trust Fund (CLTF) shows gross county-by-county disparities in the application of the death penalty and expenditures to prosecute capital cases.

The report presents data on capital prosecutions and murders in Illinois since 2000 and documents how state money from CLTF was spent at the county level on more than 500 capital prosecutions, which resulted in 17 death sentences imposed.

A factor in the capital prosecution discrepancies, the report suggests, is that the bulk of the more than $100 million that has been spent from the CLTF since its creation has gone to state’s attorneys and private appointed defense counsel.

“Some people think it all goes to public defenders, as in other states, but it doesn’t,” said Leigh Bienen, author of the report and a senior lecturer at the law school who has conducted research on capital punishment for more than 30 years.

In 1999, the Illinois Legislature created the CLTF, with an initial grant of several million dollars, to allow private appointed defense counsel, state’s attorneys and public defenders to be paid directly for the expenses of a capital trial from state appropriated funds, rather than have the expenses of a capital trial in the counties be born primarily by the counties.

However, Bienen said the creation of the CLTF actually changed the dynamics and incentives for capital prosecution in that now state prosecutors could have the state pay for capital prosecutions.

In the report, “Capital Punishment in Illinois in the Aftermath of the Ryan Commutations: Reforms, Economic Realities, and a New Saliency for Issues of Cost,” Bienen found no correspondence between the number of county capital prosecutions, the number of death sentences imposed, the number of murders or the murder rate in that county, and the amount of money spent by the county from the CLTF.

For example, Illinois’ largest county, Cook, which has the most murders in the state, has a relatively low rate of declaring cases capital compared to the state’s smaller counties, which have fewer murders.

Furthermore, the current system is rife with possibility for conflict of interest, Bienen said.

“You have judges in the counties funneling huge amounts of money to attorneys in private practice, and these attorneys are not constrained from giving money to the judges’ re-election fund,” said Bienen. “I’m not saying I know of anybody who has committed this type of impropriety, but I’m just saying the possibility is there.”

All source data on details of expenditures of the Illinois Capital Litigation Trust Fund received in response to FOIA requests will be posted on a publicly accessible website at the Northwestern University School of Law Library, along with a new data set of more than 2,000 indictments for murder in Illinois during the period since the then-Gov. George Ryan commutations in 2003.

The study will be published in Vol. 100, No. 4, of the Journal of Criminal Law and Criminology.

To read more about this study, see “Expose Hits Hard at Death Penalty System” in the Nov. 13, 2010 New York Times.