HB5912 97TH GENERAL ASSEMBLY

LRB097 19185 RLC 64427 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5912

Introduced 2/16/2012, by Rep. Dennis M. Reboletti

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 140/7.5
720 ILCS 5/9-1	from Ch. 38, par. 9-1
725 ILCS 5/113-3	from Ch. 38, par. 113-3
725 ILCS 5/119-1

Amends the Criminal Code of 1961 relating to first degree murder. Adds and eliminates aggravating factors for which the death penalty may be imposed. Amends the Code of Criminal Procedure of 1963. Eliminates provision that abolishes the sentence of death. Enacts the Capital Crimes Litigation Act of 2012. Provides that all unobligated and unexpended moneys remaining in the Death Penalty Abolition Fund on the effective date of the amendatory Act shall be transferred into the Capital Litigation Trust Fund.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Capital Crimes Litigation Act of 2012.

Section 5. Appointment of trial counsel in death penalty cases. If an indigent defendant is charged with an offense for which a sentence of death is authorized, and the State's Attorney has not, at or before arraignment, filed a certificate indicating he or she will not seek the death penalty or stated on the record in open court that the death penalty will not be sought, the trial court shall immediately appoint the Public Defender, or such other qualified attorney or attorneys as the Illinois Supreme Court shall by rule provide, to represent the defendant as trial counsel. If the Public Defender is appointed, he or she shall immediately assign such attorney or attorneys who are public defenders to represent the defendant. The counsel shall meet the qualifications as the Supreme Court shall by rule provide. At the request of court appointed counsel in a case in which the death penalty is sought, attorneys employed by the State Appellate Defender may enter an appearance for the limited purpose of assisting counsel appointed under this Section.

Section 10. Court appointed trial counsel; compensation and expenses.

(a) This Section applies only to compensation and expenses of trial counsel appointed by the court as set forth in Section 5, other than public defenders, for the period after arraignment and so long as the State's Attorney has not, at any time, filed a certificate indicating he or she will not seek the death penalty or stated on the record in open court that the death penalty will not be sought.

(a-5) Litigation budget.

(1) In a case in which the State has filed a statement of intent to seek the death penalty, the court shall require appointed counsel, including those appointed in Cook County, after counsel has had adequate time to review the case and prior to engaging trial assistance, to submit a proposed estimated litigation budget for court approval, that will be subject to modification in light of facts and developments that emerge as the case proceeds. Case budgets should be submitted ex parte and filed and maintained under seal in order to protect the defendant's right to effective assistance of counsel, right not to incriminate him or herself and all applicable privileges. Case budgets shall be reviewed and approved by the judge assigned to try the case. As provided under subsection (c) of this Section, petitions for compensation shall be reviewed by both the trial judge and the presiding judge or the presiding judge's designee.

(2) The litigation budget shall serve purposes comparable to those of private retainer agreements by confirming both the court's and the attorney's expectations regarding fees and expenses. Consideration should be given to employing an ex parte pretrial conference in order to facilitate reaching agreement on a litigation budget at the earliest opportunity.

(3) The budget shall be incorporated into a sealed initial pretrial order that reflects the understandings of the court and counsel regarding all matters affecting counsel compensation and reimbursement and payments for investigative, expert and other services, including but not limited to the following matters:

(A) The hourly rate at which counsel will be compensated;

(B) The hourly rate at which private investigators, other than investigators employed by the Office of the State Appellate Defender, will be compensated; and

(C) The best preliminary estimate that can be made of the cost of all services, including, but not limited to, counsel, expert, and investigative services, that are likely to be needed through the guilt and penalty phases of the trial. The court shall have discretion to require that budgets be prepared for shorter intervals of time.

(4) Appointed counsel may obtain, subject to later review, investigative, expert or other services without prior authorization if necessary for an adequate defense. If such services are obtained, the presiding judge or the presiding judge's designee shall consider in an ex parte proceeding that timely procurement of necessary services could not await prior authorization. If an ex parte hearing is requested by defense counsel or deemed necessary by the trial judge prior to modifying a budget, the ex parte hearing shall be before the presiding judge or the presiding judge's designee. The judge may then authorize such services nunc pro tunc. If the presiding judge or the presiding judge's designee finds that the services were not reasonable, payment may be denied.

(5) An approved budget shall guide counsel's use of time and resources by indicating the services for which compensation is authorized. The case budget shall be re-evaluated when justified by changed or unexpected circumstances and shall be modified by the court when reasonable and necessary for an adequate defense. If an ex parte hearing is requested by defense counsel or deemed necessary by the trial judge prior to modifying a budget, the ex parte hearing shall be before the presiding judge or the presiding judge's designee.

(b) Appointed trial counsel shall be compensated upon presentment and certification by the circuit court of a claim for services detailing the date, activity, and time duration for which compensation is sought. Compensation for appointed trial counsel may be paid at a reasonable rate not to exceed $125 per hour. The court shall not authorize payment of bills that are not properly itemized. A request for payment shall be presented under seal and reviewed ex parte with a court reporter present. Every January 20, the statutory rate prescribed in this subsection shall be automatically increased or decreased, as applicable, by a percentage equal to the percentage change in the consumer price index-u during the preceding 12-month calendar year. "Consumer price index-u" means the index published by the Bureau of Labor Statistics of the United States Department of Labor that measures the average change in prices of goods and services purchased by all urban consumers, United States city average, all items, 1982-84=100. The new rate resulting from each annual adjustment shall be determined by the State Treasurer and made available to the chief judge of each judicial circuit.

(c) Appointed trial counsel may also petition the court for certification of expenses for reasonable and necessary capital litigation expenses including, but not limited to, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists. Each provider of proposed services must specify the best preliminary estimate that can be made in light of information received in the case at that point, and the provider must sign this estimate under the provisions of Section 1-109 of the Code of Civil Procedure. A provider of proposed services must also specify (1) his or her hourly rate; (2) the hourly rate of anyone else in his or her employ for whom reimbursement is sought; and (3) the hourly rate of any person or entity that may be subcontracted to perform these services. Counsel may not petition for certification of expenses that may have been provided or compensated by the State Appellate Defender under item (c)(5) of Section 10 of the State Appellate Defender Act. The petitions shall be filed under seal and considered ex parte but with a court reporter present for all ex parte conferences. If the requests are submitted after services have been rendered, the requests shall be supported by an invoice describing the services rendered, the dates the services were performed and the amount of time spent. These petitions shall be reviewed by both the trial judge and the presiding judge of the circuit court or the presiding judge's designee. The petitions and orders shall be kept under seal and shall be exempt from Freedom of Information requests until the conclusion of the trial, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing. If an ex parte hearing is requested by defense counsel or deemed necessary by the trial judge, the hearing shall be before the presiding judge or the presiding judge's designee.

(d) Appointed trial counsel shall petition the court for certification of compensation and expenses under this Section periodically during the course of counsel's representation. The petitions shall be supported by itemized bills showing the date, the amount of time spent, the work done and the total being charged for each entry. The court shall not authorize payment of bills that are not properly itemized. The court must certify reasonable and necessary expenses of the petitioner for travel and per diem (lodging, meals, and incidental expenses). These expenses must be paid at the rate as promulgated by the United States General Services Administration for these expenses for the date and location in which they were incurred, unless extraordinary reasons are shown for the difference. The petitions shall be filed under seal and considered ex parte but with a court reporter present for all ex parte conferences. The petitions shall be reviewed by both the trial judge and the presiding judge of the circuit court or the presiding judge's designee. If an ex parte hearing is requested by defense counsel or deemed necessary by the trial judge, the ex parte hearing shall be before the presiding judge or the presiding judge's designee. If the court determines that the compensation and expenses should be paid from the Capital Litigation Trust Fund, the court shall certify, on a form created by the State Treasurer, that all or a designated portion of the amount requested is reasonable, necessary, and appropriate for payment from the Trust Fund. The form must also be signed by lead trial counsel under the provisions of Section 1-109 of the Code of Civil Procedure verifying that the amount requested is reasonable, necessary, and appropriate. Bills submitted for payment by any individual or entity seeking payment from the Capital Litigation Trust Fund must also be accompanied by a form created by the State Treasurer and signed by the individual or responsible agent of the entity under the provisions of Section 1-109 of the Code of Civil Procedure that the amount requested is accurate and truthful and reflects time spent or expenses incurred. Certification of compensation and expenses by a court in any county other than Cook County shall be delivered by the court to the State Treasurer and must be paid by the State Treasurer directly from the Capital Litigation Trust Fund if there are sufficient moneys in the Trust Fund to pay the compensation and expenses. If the State Treasurer finds within 14 days of his or her receipt of a certification that the compensation and expenses to be paid are unreasonable, unnecessary, or inappropriate, he or she may return the certification to the court setting forth in detail the objection or objections with a request for the court to review the objection or objections before resubmitting the certification. The State Treasurer must send the claimant a copy of the objection or objections. The State Treasurer may only seek a review of a specific objection once. The claimant has 7 days from his or her receipt of the objections to file a response with the court. With or without further hearing, the court must promptly rule on the objections. The petitions and orders shall be kept under seal and shall be exempt from Freedom of Information requests until the conclusion of the trial and appeal of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing. Certification of compensation and expenses by a court in Cook County shall be delivered by the court to the county treasurer and paid by the county treasurer from moneys granted to the county from the Capital Litigation Trust Fund.

Section 15. Capital Litigation Trust Fund.

(a) The Capital Litigation Trust Fund is created as a special fund in the State Treasury. The Trust Fund shall be administered by the State Treasurer to provide moneys for the appropriations to be made, grants to be awarded, and compensation and expenses to be paid under this Act. All interest earned from the investment or deposit of moneys accumulated in the Trust Fund shall, under Section 4.1 of the State Finance Act, be deposited into the Trust Fund.

(b) Moneys deposited into the Trust Fund shall not be considered general revenue of the State of Illinois.

(c) Moneys deposited into the Trust Fund shall be used exclusively for the purposes of providing funding for the prosecution and defense of capital cases and for providing funding for post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases as provided in this Act and shall not be appropriated, loaned, or in any manner transferred to the General Revenue Fund of the State of Illinois.

(d) Every fiscal year the State Treasurer shall transfer from the General Revenue Fund to the Capital Litigation Trust Fund an amount equal to the full amount of moneys appropriated by the General Assembly (both by original and supplemental appropriation), less any unexpended balance from the previous fiscal year, from the Capital Litigation Trust Fund for the specific purpose of making funding available for the prosecution and defense of capital cases and for the litigation expenses associated with post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases. The Public Defender and State's Attorney in Cook County, the State Appellate Defender, the State's Attorneys Appellate Prosecutor, and the Attorney General shall make annual requests for appropriations from the Trust Fund.

(1) The Public Defender in Cook County shall request appropriations to the State Treasurer for expenses incurred by the Public Defender and for funding for private appointed defense counsel in Cook County.

(2) The State's Attorney in Cook County shall request an appropriation to the State Treasurer for expenses incurred by the State's Attorney.

(3) The State Appellate Defender shall request a direct appropriation from the Trust Fund for expenses incurred by the State Appellate Defender in providing assistance to trial attorneys under item (c)(5) of Section 10 of the State Appellate Defender Act and for expenses incurred by the State Appellate Defender in representing petitioners in capital cases in post-conviction proceedings under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases and for the representation of those petitioners by attorneys approved by or contracted with the State Appellate Defender and an appropriation to the State Treasurer for payments from the Trust Fund for the defense of cases in counties other than Cook County.

(4) The State's Attorneys Appellate Prosecutor shall request a direct appropriation from the Trust Fund to pay expenses incurred by the State's Attorneys Appellate Prosecutor and an appropriation to the State Treasurer for payments from the Trust Fund for expenses incurred by State's Attorneys in counties other than Cook County.

(5) The Attorney General shall request a direct appropriation from the Trust Fund to pay expenses incurred by the Attorney General in assisting the State's Attorneys in counties other than Cook County and to pay for expenses incurred by the Attorney General when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases and for expenses incurred by the Attorney General in representing the State in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases. The Public Defender and State's Attorney in Cook County, the State Appellate Defender, the State's Attorneys Appellate Prosecutor, and the Attorney General may each request supplemental appropriations from the Trust Fund during the fiscal year.

(e) Moneys in the Trust Fund shall be expended only as follows:

(1) To pay the State Treasurer's costs to administer the Trust Fund. The amount for this purpose may not exceed 5% in any one fiscal year of the amount otherwise appropriated from the Trust Fund in the same fiscal year.

(2) To pay the capital litigation expenses of trial defense and post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases including, but not limited to, DNA testing, including DNA testing under Section 116-3 of the Code of Criminal Procedure of 1963, analysis, and expert testimony, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists, and grants and aid provided to public defenders, appellate defenders, and any attorney approved by or contracted with the State Appellate Defender representing petitioners in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases or assistance to attorneys who have been appointed by the court to represent defendants who are charged with capital crimes. Reasonable and necessary capital litigation expenses include travel and per diem (lodging, meals, and incidental expenses).

(3) To pay the compensation of trial attorneys, other than public defenders or appellate defenders, who have been appointed by the court to represent defendants who are charged with capital crimes or attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases.

(4) To provide State's Attorneys with funding for capital litigation expenses and for expenses of representing the State in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases including, but not limited to, investigatory and other assistance and expert, forensic, and other witnesses necessary to prosecute capital cases. State's Attorneys in any county other than Cook County seeking funding for capital litigation expenses and for expenses of representing the State in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases including, but not limited to, investigatory and other assistance and expert, forensic, or other witnesses under this Section may request that the State's Attorneys Appellate Prosecutor or the Attorney General, as the case may be, certify the expenses as reasonable, necessary, and appropriate for payment from the Trust Fund, on a form created by the State Treasurer. Upon certification of the expenses and delivery of the certification to the State Treasurer, the Treasurer shall pay the expenses directly from the Capital Litigation Trust Fund if there are sufficient moneys in the Trust Fund to pay the expenses.

(5) To provide financial support through the Attorney General pursuant to the Attorney General Act for the several county State's Attorneys outside of Cook County, but shall not be used to increase personnel for the Attorney General's Office, except when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases.

(6) To provide financial support through the State's Attorneys Appellate Prosecutor pursuant to the State's Attorneys Appellate Prosecutor's Act for the several county State's Attorneys outside of Cook County, but shall not be used to increase personnel for the State's Attorneys Appellate Prosecutor.

(7) To provide financial support to the State Appellate Defender pursuant to the State Appellate Defender Act. Moneys expended from the Trust Fund shall be in addition to county funding for Public Defenders and State's Attorneys, and shall not be used to supplant or reduce ordinary and customary county funding.

(f) Moneys in the Trust Fund shall be appropriated to the State Appellate Defender, the State's Attorneys Appellate Prosecutor, the Attorney General, and the State Treasurer. The State Appellate Defender shall receive an appropriation from the Trust Fund to enable it to provide assistance to appointed defense counsel and attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases throughout the State and to Public Defenders in counties other than Cook. The State's Attorneys Appellate Prosecutor and the Attorney General shall receive appropriations from the Trust Fund to enable them to provide assistance to State's Attorneys in counties other than Cook County and when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases. Moneys shall be appropriated to the State Treasurer to enable the Treasurer (i) to make grants to Cook County, (ii) to pay the expenses of Public Defenders, the State Appellate Defender, the Attorney General, the Office of the State's Attorneys Appellate Prosecutor, and State's Attorneys in counties other than Cook County, (iii) to pay the expenses and compensation of appointed defense counsel and attorneys approved by or contracted with the State Appellate Defender to represent petitioners in post-conviction proceedings in capital cases under Article 122 of the Code of Criminal Procedure of 1963 and in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases in counties other than Cook County, and (iv) to pay the costs of administering the Trust Fund. All expenditures and grants made from the Trust Fund shall be subject to audit by the Auditor General.

(g) For Cook County, grants from the Trust Fund shall be made and administered as follows:

(1) For each State fiscal year, the State's Attorney and Public Defender must each make a separate application to the State Treasurer for capital litigation grants.

(2) The State Treasurer shall establish rules and procedures for grant applications. The rules shall require the Cook County Treasurer as the grant recipient to report on a periodic basis to the State Treasurer how much of the grant has been expended, how much of the grant is remaining, and the purposes for which the grant has been used. The rules may also require the Cook County Treasurer to certify on a periodic basis that expenditures of the funds have been made for expenses that are reasonable, necessary, and appropriate for payment from the Trust Fund.

(3) The State Treasurer shall make the grants to the Cook County Treasurer as soon as possible after the beginning of the State fiscal year.

(4) The State's Attorney or Public Defender may apply for supplemental grants during the fiscal year.

(5) Grant moneys shall be paid to the Cook County Treasurer in block grants and held in separate accounts for the State's Attorney, the Public Defender, and court appointed defense counsel other than the Cook County Public Defender, respectively, for the designated fiscal year, and are not subject to county appropriation.

(6) Expenditure of grant moneys under this subsection (g) is subject to audit by the Auditor General.

(7) The Cook County Treasurer shall immediately make payment from the appropriate separate account in the county treasury for capital litigation expenses to the State's Attorney, Public Defender, or court appointed defense counsel other than the Public Defender, as the case may be, upon order of the State's Attorney, Public Defender or the court, respectively.

(h) If a defendant in a capital case in Cook County is represented by court appointed counsel other than the Cook County Public Defender, the appointed counsel shall petition the court for an order directing the Cook County Treasurer to pay the court appointed counsel's reasonable and necessary compensation and capital litigation expenses from grant moneys provided from the Trust Fund. The petitions shall be supported by itemized bills showing the date, the amount of time spent, the work done and the total being charged for each entry. The court shall not authorize payment of bills that are not properly itemized. The petitions shall be filed under seal and considered ex parte but with a court reporter present for all ex parte conferences. The petitions shall be reviewed by both the trial judge and the presiding judge of the circuit court or the presiding judge's designee. The petitions and orders shall be kept under seal and shall be exempt from Freedom of Information requests until the conclusion of the trial and appeal of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing. Orders denying petitions for compensation or expenses are final. Counsel may not petition for expenses that may have been provided or compensated by the State Appellate Defender under item (c)(5) of Section 10 of the State Appellate Defender Act.

(i) In counties other than Cook County, and when the Attorney General is ordered by the presiding judge of the Criminal Division of the Circuit Court of Cook County to prosecute or supervise the prosecution of Cook County cases, and excluding capital litigation expenses or services that may have been provided by the State Appellate Defender under item (c)(5) of Section 10 of the State Appellate Defender Act:

(1) Upon certification by the circuit court, on a form created by the State Treasurer, that all or a portion of the expenses are reasonable, necessary, and appropriate for payment from the Trust Fund and the court's delivery of the certification to the Treasurer, the Treasurer shall pay the certified expenses of Public Defenders and the State Appellate Defender from the money appropriated to the Treasurer for capital litigation expenses of Public Defenders and post-conviction proceeding expenses in capital cases of the State Appellate Defender and expenses in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases in any county other than Cook County, if there are sufficient moneys in the Trust Fund to pay the expenses.

(2) If a defendant in a capital case is represented by court appointed counsel other than the Public Defender, the appointed counsel shall petition the court to certify compensation and capital litigation expenses including, but not limited to, investigatory and other assistance, expert, forensic, and other witnesses, and mitigation specialists as reasonable, necessary, and appropriate for payment from the Trust Fund. If a petitioner in a capital case who has filed a petition for post-conviction relief under Article 122 of the Code of Criminal Procedure of 1963 or a petition under Section 2-1401 of the Code of Civil Procedure in relation to capital cases is represented by an attorney approved by or contracted with the State Appellate Defender other than the State Appellate Defender, that attorney shall petition the court to certify compensation and litigation expenses of post-conviction proceedings under Article 122 of the Code of Criminal Procedure of 1963 or in relation to petitions filed under Section 2-1401 of the Code of Civil Procedure in relation to capital cases. Upon certification on a form created by the State Treasurer of all or a portion of the compensation and expenses certified as reasonable, necessary, and appropriate for payment from the Trust Fund and the court's delivery of the certification to the Treasurer, the State Treasurer shall pay the certified compensation and expenses from the money appropriated to the Treasurer for that purpose, if there are sufficient moneys in the Trust Fund to make those payments.

(3) A petition for capital litigation expenses or post-conviction proceeding expenses or expenses incurred in filing a petition under Section 2-1401 of the Code of Civil Procedure in relation to capital cases under this subsection shall be considered under seal and reviewed ex parte with a court reporter present. Orders denying petitions for compensation or expenses are final.

(j) If the Trust Fund is discontinued or dissolved by an Act of the General Assembly or by operation of law, any balance remaining in the Trust Fund shall be returned to the General Revenue Fund after deduction of administrative costs, any other provision of this Act to the contrary notwithstanding.

Section 100. The Freedom of Information Act is amended by changing Section 7.5 as follows:

(5 ILCS 140/7.5)

Sec. 7.5. Statutory Exemptions. To the extent provided for by the statutes referenced below, the following shall be exempt from inspection and copying:

(a) All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.

(b) Library circulation and order records identifying library users with specific materials under the Library Records Confidentiality Act.

(c) Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.

(d) Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.

(e) Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.

(f) Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

(g) Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.

(h) Information the disclosure of which is exempted under the State Officials and Employees Ethics Act, and records of any lawfully created State or local inspector general's office that would be exempt if created or obtained by an Executive Inspector General's office under that Act.

(i) Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.

(j) Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act.

(k) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.

(l) Records and information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act.

(m) Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.

(n) Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the Capital Crimes Litigation Act of 2012. This subsection (n) shall apply until the conclusion of the trial of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.

(o) Information that is prohibited from being disclosed under Section 4 of the Illinois Health and Hazardous Substances Registry Act.

(p) Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.

(q) Information prohibited from being disclosed by the Personnel Records Review Act.

(r) Information prohibited from being disclosed by the Illinois School Student Records Act.

(s) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.

(t) All identified or deidentified health information in the form of health data or medical records contained in, stored in, submitted to, transferred by, or released from the Illinois Health Information Exchange, and identified or deidentified health information in the form of health data and medical records of the Illinois Health Information Exchange in the possession of the Illinois Health Information Exchange Authority due to its administration of the Illinois Health Information Exchange. The terms "identified" and "deidentified" shall be given the same meaning as in the Health Insurance Accountability and Portability Act of 1996, Public Law 104-191, or any subsequent amendments thereto, and any regulations promulgated thereunder.

(u) Records and information provided to an independent team of experts under Brian's Law.

(v) Names and information of people who have applied for or received Firearm Owner's Identification Cards under the Firearm Owners Identification Card Act.

(w) (v) Personally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act.

(Source: P.A. 96-542, eff. 1-1-10; 96-1235, eff. 1-1-11; 96-1331, eff. 7-27-10; 97-80, eff. 7-5-11; 97-333, eff. 8-12-11; 97-342, eff. 8-12-11; revised 9-2-11.)

Section 105. The Criminal Code of 1961 is amended by changing Section 9-1 as follows:

(720 ILCS 5/9-1) (from Ch. 38, par. 9-1)

Sec. 9-1. First degree Murder - Death penalties - Exceptions - Separate Hearings - Proof - Findings - Appellate procedures - Reversals.

(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:

(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or

(2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or

(3) he is attempting or committing a forcible felony other than second degree murder.

(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of first degree murder may be sentenced to death if:

(1) Murder of a peace officer, correctional employee, or fireman in the performance of his or her duties. The the murdered individual was a peace officer, employee of an institution or facility of the Department of Corrections, or any similar local correctional agency, or fireman killed in the course of performing his official duties, to prevent the performance of his official duties, or in retaliation for performing his official duties, and the defendant knew or should have known that the murdered individual was so employed a peace officer or fireman; or

(2) (Blank). the murdered individual was an employee of an institution or facility of the Department of Corrections, or any similar local correctional agency, killed in the course of performing his official duties, to prevent the performance of his official duties, or in retaliation for performing his official duties, or the murdered individual was an inmate at such institution or facility and was killed on the grounds thereof, or the murdered individual was otherwise present in such institution or facility with the knowledge and approval of the chief administrative officer thereof; or

(3) Multiple murders. The the defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to subsection (a) of this Section regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate acts which the defendant knew would cause death or create a strong probability of death or great bodily harm to the murdered individual or another; or

(4) (Blank). the murdered individual was killed as a result of the hijacking of an airplane, train, ship, bus or other public conveyance; or

(5) Murder for hire. The the defendant committed the murder pursuant to a contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder or procured another to commit the murder for money or anything of value; or

(6) Murder while committing a Class X forcible felony. The the murdered individual was killed in the course of another felony if:

(a) the murdered individual:

(i) was actually killed by the defendant, or

(ii) received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by one or more persons for whose conduct the defendant is legally accountable under Section 5-2 of this Code, and the physical injuries inflicted by either the defendant or the other person or persons for whose conduct he is legally accountable caused the death of the murdered individual; and

(b) in performing the acts which caused the death of the murdered individual or which resulted in physical injuries personally inflicted by the defendant on the murdered individual under the circumstances of subdivision (ii) of subparagraph (a) of paragraph (6) of subsection (b) of this Section, the defendant acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another; and

(c) the other felony was a forcible felony as defined in Section 2-8 of this Code, which was classified at the time of the offense as a Class X felony an inherently violent crime or the attempt to commit an inherently violent crime. In this subparagraph (c), "inherently violent crime" includes, but is not limited to, armed robbery, robbery, predatory criminal sexual assault of a child, aggravated criminal sexual assault, aggravated kidnapping, aggravated vehicular hijacking, aggravated arson, aggravated stalking, residential burglary, and home invasion; or

(7) Exceptionally brutal or heinous murder of a child, or of an elderly or disabled person.

(a) The the murdered individual was (i) under 12 years of age or (ii) 65 years or older and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty; or

(b) the murdered individual was a disabled person and the defendant knew or should have known that the murdered individual was disabled and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. For purposes of this subparagraph (7)(b), "disabled person" means a person who suffers from a permanent physical or mental impairment resulting from disease, an injury, a functional disorder, or a congenital condition that renders the person incapable of adequately providing for his or her own health or personal care; or

(8) Murder of a witness or participant in an Investigation or Prosecution. The the defendant committed the murder with intent to prevent the murdered individual from testifying or participating in any criminal investigation or prosecution or giving material assistance to the State in any investigation or prosecution, either against the defendant or another; or the defendant committed the murder because the murdered individual was a witness in any prosecution or gave material assistance to the State in any investigation or prosecution, either against the defendant or another; for purposes of this paragraph (8), "participating in any criminal investigation or prosecution" is intended to include those appearing in the proceedings in any capacity such as trial judges, prosecutors, defense attorneys, investigators, witnesses, or jurors; or

(9) (Blank). the defendant, while committing an offense punishable under Sections 401, 401.1, 401.2, 405, 405.2, 407 or 407.1 or subsection (b) of Section 404 of the Illinois Controlled Substances Act, or while engaged in a conspiracy or solicitation to commit such offense, intentionally killed an individual or counseled, commanded, induced, procured or caused the intentional killing of the murdered individual; or

(10) (Blank). the defendant was incarcerated in an institution or facility of the Department of Corrections at the time of the murder, and while committing an offense punishable as a felony under Illinois law, or while engaged in a conspiracy or solicitation to commit such offense, intentionally killed an individual or counseled, commanded, induced, procured or caused the intentional killing of the murdered individual; or

(11) (Blank). the murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom; or

(12) (Blank). the murdered individual was an emergency medical technician - ambulance, emergency medical technician - intermediate, emergency medical technician - paramedic, ambulance driver, or other medical assistance or first aid personnel, employed by a municipality or other governmental unit, killed in the course of performing his official duties, to prevent the performance of his official duties, or in retaliation for performing his official duties, and the defendant knew or should have known that the murdered individual was an emergency medical technician - ambulance, emergency medical technician - intermediate, emergency medical technician - paramedic, ambulance driver, or other medical assistance or first aid personnel; or

(13) (Blank). the defendant was a principal administrator, organizer, or leader of a calculated criminal drug conspiracy consisting of a hierarchical position of authority superior to that of all other members of the conspiracy, and the defendant counseled, commanded, induced, procured, or caused the intentional killing of the murdered person; or

(14) Torture. The the murder was intentional and involved the infliction of torture. For the purpose of this Section torture means the infliction of or subjection to extreme physical pain, motivated by an intent to increase or prolong the pain, suffering or agony of the victim; or

(15) (Blank). the murder was committed as a result of the intentional discharge of a firearm by the defendant from a motor vehicle and the victim was not present within the motor vehicle; or

(16) (Blank). the murdered individual was 60 years of age or older and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty; or

(17) (Blank). the murdered individual was a disabled person and the defendant knew or should have known that the murdered individual was disabled. For purposes of this paragraph (17), "disabled person" means a person who suffers from a permanent physical or mental impairment resulting from disease, an injury, a functional disorder, or a congenital condition that renders the person incapable of adequately providing for his or her own health or personal care; or

(18) (Blank). the murder was committed by reason of any person's activity as a community policing volunteer or to prevent any person from engaging in activity as a community policing volunteer; or

(19) (Blank). the murdered individual was subject to an order of protection and the murder was committed by a person against whom the same order of protection was issued under the Illinois Domestic Violence Act of 1986; or

(20) (Blank). the murdered individual was known by the defendant to be a teacher or other person employed in any school and the teacher or other employee is upon the grounds of a school or grounds adjacent to a school, or is in any part of a building used for school purposes; or

(21) (Blank). the murder was committed by the defendant in connection with or as a result of the offense of terrorism as defined in Section 29D-14.9 of this Code.

(b-5) Aggravating Factor; Natural Life Imprisonment. A defendant who has been found guilty of first degree murder and who at the time of the commission of the offense had attained the age of 18 years or more may be sentenced to natural life imprisonment if (i) the murdered individual was a physician, physician assistant, psychologist, nurse, or advanced practice nurse, (ii) the defendant knew or should have known that the murdered individual was a physician, physician assistant, psychologist, nurse, or advanced practice nurse, and (iii) the murdered individual was killed in the course of acting in his or her capacity as a physician, physician assistant, psychologist, nurse, or advanced practice nurse, or to prevent him or her from acting in that capacity, or in retaliation for his or her acting in that capacity.

(c) Consideration of factors in Aggravation and Mitigation.

The court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. Aggravating factors may include but need not be limited to those factors set forth in subsection (b). Mitigating factors may include but need not be limited to the following:

(1) the defendant has no significant history of prior criminal activity;

(2) the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution;

(3) the murdered individual was a participant in the defendant's homicidal conduct or consented to the homicidal act;

(4) the defendant acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm;

(5) the defendant was not personally present during commission of the act or acts causing death;

(6) the defendant's background includes a history of extreme emotional or physical abuse;

(7) the defendant suffers from a reduced mental capacity.

(d) Separate sentencing hearing.

Where requested by the State, the court shall conduct a separate sentencing proceeding to determine the existence of factors set forth in subsection (b) and to consider any aggravating or mitigating factors as indicated in subsection (c). The proceeding shall be conducted:

(1) before the jury that determined the defendant's guilt; or

(2) before a jury impanelled for the purpose of the proceeding if:

A. the defendant was convicted upon a plea of guilty; or

B. the defendant was convicted after a trial before the court sitting without a jury; or

C. the court for good cause shown discharges the jury that determined the defendant's guilt; or

(3) before the court alone if the defendant waives a jury for the separate proceeding.

(e) Evidence and Argument.

During the proceeding any information relevant to any of the factors set forth in subsection (b) may be presented by either the State or the defendant under the rules governing the admission of evidence at criminal trials. Any information relevant to any additional aggravating factors or any mitigating factors indicated in subsection (c) may be presented by the State or defendant regardless of its admissibility under the rules governing the admission of evidence at criminal trials. The State and the defendant shall be given fair opportunity to rebut any information received at the hearing.

(f) Proof.

The burden of proof of establishing the existence of any of the factors set forth in subsection (b) is on the State and shall not be satisfied unless established beyond a reasonable doubt.

(g) Procedure - Jury.

If at the separate sentencing proceeding the jury finds that none of the factors set forth in subsection (b) exists, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections. If there is a unanimous finding by the jury that one or more of the factors set forth in subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed. If the jury determines unanimously, after weighing the factors in aggravation and mitigation, that death is the appropriate sentence, the court shall sentence the defendant to death. If the court does not concur with the jury determination that death is the appropriate sentence, the court shall set forth reasons in writing including what facts or circumstances the court relied upon, along with any relevant documents, that compelled the court to non-concur with the sentence. This document and any attachments shall be part of the record for appellate review. The court shall be bound by the jury's sentencing determination.

If after weighing the factors in aggravation and mitigation, one or more jurors determines that death is not the appropriate sentence, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.

(h) Procedure - No Jury.

In a proceeding before the court alone, if the court finds that none of the factors found in subsection (b) exists, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.

If the Court determines that one or more of the factors set forth in subsection (b) exists, the Court shall consider any aggravating and mitigating factors as indicated in subsection (c). If the Court determines, after weighing the factors in aggravation and mitigation, that death is the appropriate sentence, the Court shall sentence the defendant to death.

If the court finds that death is not the appropriate sentence, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.

(h-5) Decertification as a capital case.

In a case in which the defendant has been found guilty of first degree murder by a judge or jury, or a case on remand for resentencing, and the State seeks the death penalty as an appropriate sentence, on the court's own motion or the written motion of the defendant, the court may decertify the case as a death penalty case if the court finds that the only evidence supporting the defendant's conviction is the uncorroborated testimony of an informant witness, as defined in Section 115-21 of the Code of Criminal Procedure of 1963, concerning the confession or admission of the defendant or that the sole evidence against the defendant is a single eyewitness or single accomplice without any other corroborating evidence. If the court decertifies the case as a capital case under either of the grounds set forth above, the court shall issue a written finding. The State may pursue its right to appeal the decertification pursuant to Supreme Court Rule 604(a)(1). If the court does not decertify the case as a capital case, the matter shall proceed to the eligibility phase of the sentencing hearing.

(i) Appellate Procedure.

The conviction and sentence of death shall be subject to automatic review by the Supreme Court. Such review shall be in accordance with rules promulgated by the Supreme Court. The Illinois Supreme Court may overturn the death sentence, and order the imposition of imprisonment under Chapter V of the Unified Code of Corrections if the court finds that the death sentence is fundamentally unjust as applied to the particular case. If the Illinois Supreme Court finds that the death sentence is fundamentally unjust as applied to the particular case, independent of any procedural grounds for relief, the Illinois Supreme Court shall issue a written opinion explaining this finding.

(j) Disposition of reversed death sentence.

In the event that the death penalty in this Act is held to be unconstitutional by the Supreme Court of the United States or of the State of Illinois, any person convicted of first degree murder shall be sentenced by the court to a term of imprisonment under Chapter V of the Unified Code of Corrections.

In the event that any death sentence pursuant to the sentencing provisions of this Section is declared unconstitutional by the Supreme Court of the United States or of the State of Illinois, the court having jurisdiction over a person previously sentenced to death shall cause the defendant to be brought before the court, and the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.

(k) Guidelines for seeking the death penalty.

The Attorney General and State's Attorneys Association shall consult on voluntary guidelines for procedures governing whether or not to seek the death penalty. The guidelines do not have the force of law and are only advisory in nature.

(Source: P.A. 96-710, eff. 1-1-10; 96-1475, eff. 1-1-11.)

Section 110. The Code of Criminal Procedure of 1963 is amended by changing Sections 113-3 and 119-1 as follows:

(725 ILCS 5/113-3) (from Ch. 38, par. 113-3)

Sec. 113-3. (a) Every person charged with an offense shall be allowed counsel before pleading to the charge. If the defendant desires counsel and has been unable to obtain same before arraignment the court shall recess court or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge. If the accused is a dissolved corporation, and is not represented by counsel, the court may, in the interest of justice, appoint as counsel a licensed attorney of this State.

(b) In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel. If there is no Public Defender in the county or if the defendant requests counsel other than the Public Defender and the court finds that the rights of the defendant will be prejudiced by the appointment of the Public Defender, the court shall appoint as counsel a licensed attorney at law of this State, except that in a county having a population of 2,000,000 or more the Public Defender shall be appointed as counsel in all misdemeanor cases where the defendant is indigent and desires counsel unless the case involves multiple defendants, in which case the court may appoint counsel other than the Public Defender for the additional defendants. The court shall require an affidavit signed by any defendant who requests court-appointed counsel. Such affidavit shall be in the form established by the Supreme Court containing sufficient information to ascertain the assets and liabilities of that defendant. The Court may direct the Clerk of the Circuit Court to assist the defendant in the completion of the affidavit. Any person who knowingly files such affidavit containing false information concerning his assets and liabilities shall be liable to the county where the case, in which such false affidavit is filed, is pending for the reasonable value of the services rendered by the public defender or other court-appointed counsel in the case to the extent that such services were unjustly or falsely procured.

(c) Upon the filing with the court of a verified statement of services rendered the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee. The court shall consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel. In counties with a population greater than 2,000,000, the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee stated in the order and based upon a rate of compensation of not more than $40 for each hour spent while court is in session and not more than $30 for each hour otherwise spent representing a defendant, and such compensation shall not exceed $150 for each defendant represented in misdemeanor cases and $1250 in felony cases, in addition to expenses reasonably incurred as hereinafter in this Section provided, except that, in extraordinary circumstances, payment in excess of the limits herein stated may be made if the trial court certifies that such payment is necessary to provide fair compensation for protracted representation. A trial court may entertain the filing of this verified statement before the termination of the cause, and may order the provisional payment of sums during the pendency of the cause.

(d) In capital cases, in addition to counsel, if the court determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of services rendered, order the county Treasurer of the county of trial to pay necessary expert witnesses for defendant reasonable compensation stated in the order not to exceed $250 for each defendant.

(e) If the court in any county having a population greater than 2,000,000 determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of such expenses, order the county treasurer of the county of trial, in such counties having a population greater than 2,000,000 to pay the general expenses of the trial incurred by the defendant not to exceed $50 for each defendant.

(f) The provisions of this Section relating to appointment of counsel, compensation of counsel, and payment of expenses in capital cases apply except when the compensation and expenses are being provided under the Capital Crimes Litigation Act of 2012.

(Source: P.A. 91-589, eff. 1-1-00.)

(725 ILCS 5/119-1)

Sec. 119-1. Death penalty restored abolished.

(a) (Blank). Beginning on the effective date of this amendatory Act of the 96th General Assembly, notwithstanding any other law to the contrary, the death penalty is abolished and a sentence to death may not be imposed.

(b) All unobligated and unexpended moneys remaining in the Capital Litigation Trust Fund on the effective date of this amendatory Act of the 96th General Assembly shall be transferred into the Death Penalty Abolition Fund on the effective date of this amendatory Act of the 97th General Assembly shall be transferred into the Capital Litigation Trust Fund , a special fund in the State treasury, to be expended by the Illinois Criminal Justice Information Authority, for services for families of victims of homicide or murder and for training of law enforcement personnel.

(Source: P.A. 96-1543, eff. 7-1-11.)