HB5891 100TH GENERAL ASSEMBLY

LRB100 22092 SLF 40801 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5891

Introduced , by Rep. Jerry Costello, II

SYNOPSIS AS INTRODUCED:

See Index

Amends the Criminal Code of 2012. Reinstates the death penalty if at the time of the commission of the offense the person was 18 years of age or older and the person purposely caused the death of 2 or more human beings without lawful justification or the victim was a peace officer or firefighter killed in the course of performing his or her official duties, either to prevent the performance of the person's duties or in retaliation for the performance of the person's duties, and the person knew that the victim was a peace officer or firefighter. Provides a person is legally accountable for the conduct of another in the commission of death penalty murder only when: (1) having the purpose to cause the death of another human being without lawful justification, the person commands, induces, procures, or causes another to perform the conduct; or (2) the person agrees with one or more other persons to engage in conduct for the common purpose of causing the death of another human being without lawful justification, in which case all parties to the agreement shall be criminally liable for acts of other parties to the agreement committed during and in furtherance of the agreement. Amends the Code of Criminal Procedure of 1963 and Unified Code of Corrections to make conforming changes. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT 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 5. The Criminal Code of 2012 is amended by changing Section 5-1 and by adding Sections 4-4.5, 5-2.5, and 9-1.5 as follows:

(720 ILCS 5/4-4.5 new)

Sec. 4-4.5. Purposely or purpose. In Section 5-2.5 and 9-1.5 of this Code, a person acts purposely or with the purpose when his or her conscious objective is to cause the death of another human being.

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

Sec. 5-1. Accountability for conduct of another. Except as provided in Section 5-2.5 of the Code a A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5-2 of this Code, or both.

(Source: Laws 1961, p. 1983.)

(720 ILCS 5/5-2.5 new)

Sec. 5-2.5. Death penalty murder; accountability for acts of others. A person is legally accountable for the conduct of another in the commission of death penalty murder only when:

(1) having the purpose to cause the death of another human being without lawful justification, the person commands, induces, procures, or causes another to perform the conduct; or

(2) the person agrees with one or more other persons to engage in conduct for the common purpose of causing the death of another human being without lawful justification, in which case all parties to the agreement shall be criminally liable for acts of other parties to the agreement committed during and in furtherance of the agreement.

(720 ILCS 5/9-1.5 new)

Sec. 9-1.5. Death penalty murder.

(a) In this Section, "human being" means a person who has been born and is alive.

(b) A person commits death penalty murder when at the time of the commission of the offense he or she has attained the age of 18 or more and he or she purposely causes the death of another human being without lawful justification if:

(1) at the time of the offense, the person caused the death of 2 or more other human beings without lawful justification; or

(2) the victim was a peace officer, as defined by Section 2-13 of this Code or firefighter, killed in the course of performing his or her official duties, either to prevent the performance of the person's duties or in retaliation for the performance of the person's duties, and the person knew that the victim was a peace officer or firefighter.

(c) The trier of fact regarding the charge of death penalty murder shall resolve any doubt regarding identification or any element of the offense in favor of the defendant. A defendant shall not be found guilty of the offense of death penalty murder unless each and every element of the offense is established beyond any doubt. If the trial is by jury, before the trial commences and again before jury deliberations commence, the jury shall be instructed that the penalty for death penalty murder is death.

(d) A defendant, who has been found guilty of death penalty murder, may, at a separate sentencing hearing, present evidence of mitigating circumstances not rising to the level of legal justification, including but not limited to evidence of intellectual disability as provided in Section 114-15 of the Code of Criminal Procedure of 1963. The prosecution may present rebuttal evidence. The hearing shall be before the trial judge. The judge shall sentence the defendant to death, unless he or she finds that the defendant has, by a preponderance of the evidence, presented sufficiently substantial evidence to prove intellectual disability or that imposition of the death penalty would result in a manifest miscarriage of justice, in which case the judge shall sentence the defendant to life imprisonment without the possibility of parole.

(e) On appeal from a conviction of death penalty murder, review of the facts shall be de novo. In conducting its de novo review of the trial evidence, the appellate court shall resolve all doubt regarding identification and guilt in favor of the defendant. The appellate court shall conduct an independent review of the evidence without giving deference to the judgment of the trier of fact at trial.

(f) Sentence. The sentence for death penalty murder is death.

Section 10. The Code of Criminal Procedure of 1963 is amended by changing Sections 114-15, 119-1, and 122-2.2 as follows:

(725 ILCS 5/114-15)

Sec. 114-15. Intellectual disability.

(a) In a first degree murder case in which the State seeks the death penalty as an appropriate sentence or in a death penalty murder case, any party may raise the issue of the defendant's intellectual disabilities by motion. A defendant wishing to raise the issue of his or her intellectual disabilities shall provide written notice to the State and the court as soon as the defendant reasonably believes such issue will be raised.

(b) The issue of the defendant's intellectual disabilities shall be determined in a pretrial hearing. The court shall be the fact finder on the issue of the defendant's intellectual disabilities and shall determine the issue by a preponderance of evidence in which the moving party has the burden of proof. The court may appoint an expert in the field of intellectual disabilities. The defendant and the State may offer experts from the field of intellectual disabilities. The court shall determine admissibility of evidence and qualification as an expert.

(c) If after a plea of guilty to first degree murder or death penalty murder, or a finding of guilty of first degree murder or death penalty murder in a bench trial, or a verdict of guilty for first degree murder or death penalty murder in a jury trial, or on a matter remanded from the Supreme Court for sentencing for first degree murder or death penalty murder, and the State seeks the death penalty as an appropriate sentence, the defendant may raise the issue of defendant's intellectual disabilities not at eligibility but at aggravation and mitigation. The defendant and the State may offer experts from the field of intellectual disabilities. The court shall determine admissibility of evidence and qualification as an expert.

(d) In determining whether the defendant is a person with an intellectual disability, the intellectual disability must have manifested itself by the age of 18. IQ tests and psychometric tests administered to the defendant must be the kind and type recognized by experts in the field of intellectual disabilities. In order for the defendant to be considered a person with an intellectual disability, a low IQ must be accompanied by significant deficits in adaptive behavior in at least 2 of the following skill areas: communication, self-care, social or interpersonal skills, home living, self-direction, academics, health and safety, use of community resources, and work. An intelligence quotient (IQ) of 75 or below is presumptive evidence of an intellectual disability.

(e) Evidence of an intellectual disability that did not result in disqualifying the case as a capital case, may be introduced as evidence in mitigation during a capital sentencing hearing. A failure of the court to determine that the defendant is a person with an intellectual disability does not preclude the court during trial from allowing evidence relating to mental disability should the court deem it appropriate.

(f) If the court determines at a pretrial hearing or after remand that a capital defendant is a person with an intellectual disability, and the State does not appeal pursuant to Supreme Court Rule 604, the case shall no longer be considered a capital case and the procedural guidelines established for capital cases shall no longer be applicable to the defendant. In that case, the defendant shall be sentenced under the sentencing provisions of Chapter V of the Unified Code of Corrections.

(Source: P.A. 99-143, eff. 7-27-15.)

(725 ILCS 5/119-1)

Sec. 119-1. Death penalty abolished.

(a) Except as otherwise provided in subsection (a-5) of this Section, beginning 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.

(a-5) A sentence of death shall be imposed for death penalty murder.

(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, 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.)

(725 ILCS 5/122-2.2)

Sec. 122-2.2. Intellectual disability and post-conviction relief.

(a) In cases where no determination of an intellectual disability was made and a defendant has been convicted of first-degree murder or death penalty murder, sentenced to death, and is in custody pending execution of the sentence of death, the following procedures shall apply:

(1) Notwithstanding any other provision of law or rule of court, a defendant may seek relief from the death sentence through a petition for post-conviction relief under this Article alleging that the defendant was a person with an intellectual disability as defined in Section 114-15 at the time the offense was alleged to have been committed.

(2) The petition must be filed within 180 days of the effective date of this amendatory Act of the 93rd General Assembly or within 180 days of the issuance of the mandate by the Illinois Supreme Court setting the date of execution, whichever is later.

(b) All other provisions of this Article governing petitions for post-conviction relief shall apply to a petition for post-conviction relief alleging an intellectual disability.

(Source: P.A. 99-78, eff. 7-20-15; 99-143, eff. 7-27-15.)

Section 15. The Unified Code of Corrections is amended by changing Section 5-4.5-10 and by adding Section 5-4.5-20.5 as follows:

(730 ILCS 5/5-4.5-10)

Sec. 5-4.5-10. OFFENSE CLASSIFICATIONS.

(a) FELONY CLASSIFICATIONS. Felonies are classified, for the purpose of sentencing, as follows:

(1) First degree murder (as a separate class of felony).

(1.5) Death penalty murder (as a separate class of felony).

(2) Class X felonies.

(3) Class 1 felonies.

(4) Class 2 felonies.

(5) Class 3 felonies.

(6) Class 4 felonies.

(b) MISDEMEANOR CLASSIFICATIONS. Misdemeanors are classified, for the purpose of sentencing, as follows:

(1) Class A misdemeanors.

(2) Class B misdemeanors.

(3) Class C misdemeanors.

(c) PETTY AND BUSINESS OFFENSES. Petty offenses and business offenses are not classified.

(Source: P.A. 95-1052, eff. 7-1-09.)

(730 ILCS 5/5-4.5-20.5 new)

Sec. 5-4.5-20.5. DEATH PENALTY MURDER; SENTENCE. For death penalty murder, the defendant shall be sentenced to death, unless the trial judge finds that the defendant has, by a preponderance of the evidence, presented sufficiently substantial evidence to outweigh the circumstances of the offense and the evidence presented by the prosecution at the sentencing hearing, in which case the judge shall sentence the defendant to life imprisonment without the possibility of parole.

Section 99. Effective date. This Act takes effect upon becoming law.