093_HB3218eng HB3218 Engrossed LRB093 07518 RLC 07691 b 1 AN ACT in relation to criminal law. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Criminal Code of 1961 is amended by 5 changing Section 9-1 as follows: 6 (720 ILCS 5/9-1) (from Ch. 38, par. 9-1) 7 Sec. 9-1. First degree Murder - Death penalties - 8 Exceptions - Separate Hearings - Proof - Findings - Appellate 9 procedures - Reversals. 10 (a) A person who kills an individual without lawful 11 justification commits first degree murder if, in performing 12 the acts which cause the death: 13 (1) he either intends to kill or do great bodily 14 harm to that individual or another, or knows that such 15 acts will cause death to that individual or another; or 16 (2) he knows that such acts create a strong 17 probability of death or great bodily harm to that 18 individual or another; or 19 (3) he is attempting or committing a forcible 20 felony other than second degree murder. 21 (b) Aggravating Factors. A defendant who at the time of 22 the commission of the offense has attained the age of 18 or 23 more and who has been found guilty of first degree murder may 24 be sentenced to death if: 25 (1) the murdered individual was a peace officer or 26 fireman killed in the course of performing his official 27 duties, to prevent the performance of his official 28 duties, or in retaliation for performing his official 29 duties, and the defendant knew or should have known that 30 the murdered individual was a peace officer or fireman; 31 or HB3218 Engrossed -2- LRB093 07518 RLC 07691 b 1 (2) the murdered individual was an employee of an 2 institution or facility of the Department of Corrections, 3 or any similar local correctional agency, killed in the 4 course of performing his official duties, to prevent the 5 performance of his official duties, or in retaliation for 6 performing his official duties, or the murdered 7 individual was an inmate at such institution or facility 8 and was killed on the grounds thereof, or the murdered 9 individual was otherwise present in such institution or 10 facility with the knowledge and approval of the chief 11 administrative officer thereof; or 12 (3) the defendant has been convicted of murdering 13 two or more individuals under subsection (a) of this 14 Section or under any law of the United States or of any 15 state which is substantially similar to subsection (a) of 16 this Section regardless of whether the deaths occurred 17 as the result of the same act or of several related or 18 unrelated acts so long as the deaths were the result of 19 either an intent to kill more than one person or of 20 separate acts which the defendant knew would cause death 21 or create a strong probability of death or great bodily 22 harm to the murdered individual or another; or 23 (4) the murdered individual was killed as a result 24 of the hijacking of an airplane, train, ship, bus or 25 other public conveyance; or 26 (5) the defendant committed the murder pursuant to 27 a contract, agreement or understanding by which he was to 28 receive money or anything of value in return for 29 committing the murder or procured another to commit the 30 murder for money or anything of value; or 31 (6) the murdered individual was killed in the 32 course of another felony if: 33 (a) the murdered individual: 34 (i) was actually killed by the defendant, HB3218 Engrossed -3- LRB093 07518 RLC 07691 b 1 or 2 (ii) received physical injuries 3 personally inflicted by the defendant 4 substantially contemporaneously with physical 5 injuries caused by one or more persons for 6 whose conduct the defendant is legally 7 accountable under Section 5-2 of this Code, and 8 the physical injuries inflicted by either the 9 defendant or the other person or persons for 10 whose conduct he is legally accountable caused 11 the death of the murdered individual; and 12 (b) in performing the acts which caused the 13 death of the murdered individual or which resulted 14 in physical injuries personally inflicted by the 15 defendant on the murdered individual under the 16 circumstances of subdivision (ii) of subparagraph 17 (a) of paragraph (6) of subsection (b) of this 18 Section, the defendant acted with the intent to kill 19 the murdered individual or with the knowledge that 20 his acts created a strong probability of death or 21 great bodily harm to the murdered individual or 22 another; and 23 (c) the other felony was one of the following: 24 armed robbery, armed violence, robbery, predatory 25 criminal sexual assault of a child, aggravated 26 criminal sexual assault, aggravated kidnapping, 27 aggravated vehicular hijacking, forcible detention, 28 arson, aggravated arson, aggravated stalking, 29 burglary, residential burglary, home invasion, 30 calculated criminal drug conspiracy as defined in 31 Section 405 of the Illinois Controlled Substances 32 Act, streetgang criminal drug conspiracy as defined 33 in Section 405.2 of the Illinois Controlled 34 Substances Act, or the attempt to commit any of the HB3218 Engrossed -4- LRB093 07518 RLC 07691 b 1 felonies listed in this subsection (c); or 2 (7) the murdered individual was under 12 years of 3 age and the death resulted from exceptionally brutal or 4 heinous behavior indicative of wanton cruelty; or 5 (8) the defendant committed the murder with intent 6 to prevent the murdered individual from testifying in any 7 criminal prosecution or giving material assistance to the 8 State in any investigation or prosecution, either against 9 the defendant or another; or the defendant committed the 10 murder because the murdered individual was a witness in 11 any prosecution or gave material assistance to the State 12 in any investigation or prosecution, either against the 13 defendant or another; or 14 (9) the defendant, while committing an offense 15 punishable under Sections 401, 401.1, 401.2, 405, 405.2, 16 407 or 407.1 or subsection (b) of Section 404 of the 17 Illinois Controlled Substances Act, or while engaged in a 18 conspiracy or solicitation to commit such offense, 19 intentionally killed an individual or counseled, 20 commanded, induced, procured or caused the intentional 21 killing of the murdered individual; or 22 (10) the defendant was incarcerated in an 23 institution or facility of the Department of Corrections 24 at the time of the murder, and while committing an 25 offense punishable as a felony under Illinois law, or 26 while engaged in a conspiracy or solicitation to commit 27 such offense, intentionally killed an individual or 28 counseled, commanded, induced, procured or caused the 29 intentional killing of the murdered individual; or 30 (11) the murder was committed in a cold, calculated 31 and premeditated manner pursuant to a preconceived plan, 32 scheme or design to take a human life by unlawful means, 33 and the conduct of the defendant created a reasonable 34 expectation that the death of a human being would result HB3218 Engrossed -5- LRB093 07518 RLC 07691 b 1 therefrom; or 2 (12) the murdered individual was an emergency 3 medical technician - ambulance, emergency medical 4 technician - intermediate, emergency medical technician - 5 paramedic, ambulance driver, or other medical assistance 6 or first aid personnel, employed by a municipality or 7 other governmental unit, killed in the course of 8 performing his official duties, to prevent the 9 performance of his official duties, or in retaliation for 10 performing his official duties, and the defendant knew or 11 should have known that the murdered individual was an 12 emergency medical technician - ambulance, emergency 13 medical technician - intermediate, emergency medical 14 technician - paramedic, ambulance driver, or other 15 medical assistance or first aid personnel; or 16 (13) the defendant was a principal administrator, 17 organizer, or leader of a calculated criminal drug 18 conspiracy consisting of a hierarchical position of 19 authority superior to that of all other members of the 20 conspiracy, and the defendant counseled, commanded, 21 induced, procured, or caused the intentional killing of 22 the murdered person; or 23 (14) the murder was intentional and involved the 24 infliction of torture. For the purpose of this Section 25 torture means the infliction of or subjection to extreme 26 physical pain, motivated by an intent to increase or 27 prolong the pain, suffering or agony of the victim; or 28 (15) the murder was committed as a result of the 29 intentional discharge of a firearm by the defendant from 30 a motor vehicle and the victim was not present within the 31 motor vehicle; or 32 (16) the murdered individual was 60 years of age or 33 older and the death resulted from exceptionally brutal or 34 heinous behavior indicative of wanton cruelty; or HB3218 Engrossed -6- LRB093 07518 RLC 07691 b 1 (17) the murdered individual was a disabled person 2 and the defendant knew or should have known that the 3 murdered individual was disabled. For purposes of this 4 paragraph (17), "disabled person" means a person who 5 suffers from a permanent physical or mental impairment 6 resulting from disease, an injury, a functional disorder, 7 or a congenital condition that renders the person 8 incapable of adequately providing for his or her own 9 health or personal care; or 10 (18) the murder was committed by reason of any 11 person's activity as a community policing volunteer or to 12 prevent any person from engaging in activity as a 13 community policing volunteer; or 14 (19) the murdered individual was subject to an 15 order of protection and the murder was committed by a 16 person against whom the same order of protection was 17 issued under the Illinois Domestic Violence Act of 1986; 18 or 19 (20) the murdered individual was known by the 20 defendant to be a teacher or other person employed in any 21 school and the teacher or other employee is upon the 22 grounds of a school or grounds adjacent to a school, or 23 is in any part of a building used for school purposes; or 24 (21) the murder was committed by the defendant in 25 connection with or as a result of the offense of 26 terrorism as defined in Section 29D-30 of this Code. 27 (c) Consideration of factors in Aggravation and 28 Mitigation. 29 The court shall consider, or shall instruct the jury to 30 consider any aggravating and any mitigating factors which are 31 relevant to the imposition of the death penalty. Aggravating 32 factors may include but need not be limited to those factors 33 set forth in subsection (b). Mitigating factors may include 34 but need not be limited to the following: HB3218 Engrossed -7- LRB093 07518 RLC 07691 b 1 (1) the defendant has no significant history of 2 prior criminal activity; 3 (2) the murder was committed while the defendant 4 was under the influence of extreme mental or emotional 5 disturbance, although not such as to constitute a defense 6 to prosecution; 7 (3) the murdered individual was a participant in 8 the defendant's homicidal conduct or consented to the 9 homicidal act; 10 (4) the defendant acted under the compulsion of 11 threat or menace of the imminent infliction of death or 12 great bodily harm; 13 (5) the defendant was not personally present during 14 commission of the act or acts causing death. 15 (c-5) (1) A person who has the disability of mental 16 retardation may not be sentenced to death. 17 (2) In this subsection (c-5), "mental retardation" 18 means a disability characterized by significant 19 limitations both in intellectual functioning and in 20 adaptive behavior as expressed in conceptual, social, and 21 practical adaptive skills, that originate before 18 years 22 of age. 23 (3) If the defendant is convicted of first degree 24 murder, the State and the defendant are entitled to 25 present evidence to the jury on the issue whether the 26 defendant has the disability of mental retardation. At 27 the separate sentencing hearing under subsection (d) , 28 the jury, if the separate sentencing hearing is conducted 29 before a jury, shall be asked to render a special verdict 30 on the issue of the defendant's mental retardation. The 31 special verdict form shall ask the jury to answer the 32 question: 33 "Do you unanimously find, beyond a reasonable doubt, that 34 the defendant does not have the disability of mental HB3218 Engrossed -8- LRB093 07518 RLC 07691 b 1 retardation?" If the jury answers "yes", the jury shall 2 consider the aggravating and mitigating factors relating to 3 the imposition of the death penalty. If the jury answers the 4 question "no", the court may not sentence the defendant to 5 death and shall sentence the defendant to a term of 6 imprisonment under Chapter V of the Unified Code of 7 Corrections. If the separate sentencing hearing is conducted 8 before the court alone, the court shall consider evidence as 9 to the defendant's mental retardation. If the court 10 determines that the defendant has the disability of mental 11 retardation, the court may not sentence the defendant to 12 death and shall sentence the defendant to a term of 13 imprisonment under Chapter V of the Unified Code of 14 Corrections. 15 (d) Separate sentencing hearing. 16 Where requested by the State, the court shall conduct a 17 separate sentencing proceeding to determine the existence of 18 factors set forth in subsection (b) and to consider any 19 aggravating or mitigating factors as indicated in subsection 20 (c). The proceeding shall be conducted: 21 (1) before the jury that determined the defendant's 22 guilt; or 23 (2) before a jury impanelled for the purpose of the 24 proceeding if: 25 A. the defendant was convicted upon a plea of 26 guilty; or 27 B. the defendant was convicted after a trial 28 before the court sitting without a jury; or 29 C. the court for good cause shown discharges 30 the jury that determined the defendant's guilt; or 31 (3) before the court alone if the defendant waives 32 a jury for the separate proceeding. 33 (e) Evidence and Argument. 34 During the proceeding any information relevant to any of HB3218 Engrossed -9- LRB093 07518 RLC 07691 b 1 the factors set forth in subsection (b) may be presented by 2 either the State or the defendant under the rules governing 3 the admission of evidence at criminal trials. Any 4 information relevant to any additional aggravating factors or 5 any mitigating factors indicated in subsection (c) may be 6 presented by the State or defendant regardless of its 7 admissibility under the rules governing the admission of 8 evidence at criminal trials. The State and the defendant 9 shall be given fair opportunity to rebut any information 10 received at the hearing. 11 (f) Proof. 12 The burden of proof of establishing the existence of any 13 of the factors set forth in subsection (b) is on the State 14 and shall not be satisfied unless established beyond a 15 reasonable doubt. 16 (g) Procedure - Jury. 17 If at the separate sentencing proceeding the jury finds 18 that none of the factors set forth in subsection (b) exists, 19 the court shall sentence the defendant to a term of 20 imprisonment under Chapter V of the Unified Code of 21 Corrections. If there is a unanimous finding by the jury 22 that one or more of the factors set forth in subsection (b) 23 exist, the jury shall consider aggravating and mitigating 24 factors as instructed by the court and shall determine 25 whether the sentence of death shall be imposed. If the jury 26 determines unanimously that there are no mitigating factors 27 sufficient to preclude the imposition of the death sentence, 28 the court shall sentence the defendant to death. 29 Unless the jury unanimously finds that there are no 30 mitigating factors sufficient to preclude the imposition of 31 the death sentence the court shall sentence the defendant to 32 a term of imprisonment under Chapter V of the Unified Code of 33 Corrections. 34 (h) Procedure - No Jury. HB3218 Engrossed -10- LRB093 07518 RLC 07691 b 1 In a proceeding before the court alone, if the court 2 finds that none of the factors found in subsection (b) 3 exists, the court shall sentence the defendant to a term of 4 imprisonment under Chapter V of the Unified Code of 5 Corrections. 6 If the Court determines that one or more of the factors 7 set forth in subsection (b) exists, the Court shall consider 8 any aggravating and mitigating factors as indicated in 9 subsection (c). If the Court determines that there are no 10 mitigating factors sufficient to preclude the imposition of 11 the death sentence, the Court shall sentence the defendant to 12 death. 13 Unless the court finds that there are no mitigating 14 factors sufficient to preclude the imposition of the sentence 15 of death, the court shall sentence the defendant to a term of 16 imprisonment under Chapter V of the Unified Code of 17 Corrections. 18 (i) Appellate Procedure. 19 The conviction and sentence of death shall be subject to 20 automatic review by the Supreme Court. Such review shall be 21 in accordance with rules promulgated by the Supreme Court. 22 (j) Disposition of reversed death sentence. 23 In the event that the death penalty in this Act is held 24 to be unconstitutional by the Supreme Court of the United 25 States or of the State of Illinois, any person convicted of 26 first degree murder shall be sentenced by the court to a term 27 of imprisonment under Chapter V of the Unified Code of 28 Corrections. 29 In the event that any death sentence pursuant to the 30 sentencing provisions of this Section is declared 31 unconstitutional by the Supreme Court of the United States or 32 of the State of Illinois, the court having jurisdiction over 33 a person previously sentenced to death shall cause the 34 defendant to be brought before the court, and the court shall HB3218 Engrossed -11- LRB093 07518 RLC 07691 b 1 sentence the defendant to a term of imprisonment under 2 Chapter V of the Unified Code of Corrections. 3 (Source: P.A. 91-357, eff. 7-29-99; 91-434, eff. 1-1-00; 4 92-854, eff. 12-5-02.) 5 Section 10. The Code of Criminal Procedure of 1963 is 6 amended by adding Section 114-15 as follows: 7 (725 ILCS 5/114-15 new) 8 Sec. 114-15. Mental retardation. 9 (a) The issue of the defendant's mental retardation may 10 be raised by the defense, the State, or the court at any 11 appropriate time before a plea is entered, before trial, or 12 after trial. 13 (b) If defense counsel has a good faith belief that the 14 defendant in a capital case has the disability of mental 15 retardation, counsel shall file a motion with the court, 16 requesting a finding that the defendant is not eligible for 17 the death penalty because of mental retardation. The motion 18 shall be filed within a reasonable time after the State files 19 notice of intent to seek the death penalty, unless the 20 information in support of the motion came to counsel's 21 attention at a later date. 22 (c) Upon receipt of the motion, the court shall conduct a 23 hearing for the presentation of evidence regarding the 24 defendant's possible mental retardation. Both the defense and 25 the State shall have the opportunity to present evidence, 26 including expert testimony. If the court finds, by a 27 preponderance of the evidence, that the defendant has the 28 disability of mental retardation, the court shall enter an 29 order that the defendant is not eligible for the death 30 penalty and the trial may proceed as a non-capital trial. If 31 convicted, the defendant may be sentenced to any penalty 32 available under State law, other than death. HB3218 Engrossed -12- LRB093 07518 RLC 07691 b 1 (d) If the court finds that the defendant does not have 2 the disability of mental retardation, the case may proceed as 3 a capital trial. The jury may not be informed of the prior 4 proceedings or the judge's findings concerning the 5 defendant's claim of mental retardation. 6 Section 15. The Unified Code of Corrections is amended by 7 changing Section 3-3-13 and adding Section 5-2-7 as follows: 8 (730 ILCS 5/3-3-13) (from Ch. 38, par. 1003-3-13) 9 Sec. 3-3-13. Procedure for Executive Clemency. 10 (a) Petitions seeking pardon, commutation, or reprieve 11 shall be addressed to the Governor and filed with the 12 Prisoner Review Board. The petition shall be in writing and 13 signed by the person under conviction or by a person on his 14 behalf. It shall contain a brief history of the case, the 15 reasons for seeking executive clemency, and other relevant 16 information the Board may require. 17 (a-5) After a petition has been denied by the Governor, 18 the Board may not accept a repeat petition for executive 19 clemency for the same person until one full year has elapsed 20 from the date of the denial. The Chairman of the Board may 21 waive the one-year requirement if the petitioner offers in 22 writing new information that was unavailable to the 23 petitioner at the time of the filing of the prior petition 24 and which the Chairman determines to be significant. The 25 Chairman also may waive the one-year waiting period if the 26 petitioner can show that a change in circumstances of a 27 compelling humanitarian nature has arisen since the denial of 28 the prior petition. 29 (b) Notice of the proposed application shall be given by 30 the Board to the committing court and the state's attorney of 31 the county where the conviction was had. 32 (c) The Board shall, if requested and upon due notice, HB3218 Engrossed -13- LRB093 07518 RLC 07691 b 1 give a hearing to each application, allowing representation 2 by counsel, if desired, after which it shall confidentially 3 advise the Governor by a written report of its 4 recommendations which shall be determined by majority vote. 5 The Board shall meet to consider such petitions no less than 6 4 times each year. 7 Application for executive clemency under this Section may 8 not be commenced on behalf of a person who has been sentenced 9 to death without the written consent of the defendant, unless 10 the defendant, because of a mental or physical condition, is 11 incapable of asserting his or her own claim. 12 (d) The Governor shall decide each application and 13 communicate his decision to the Board which shall notify the 14 petitioner. 15 In the event a petitioner who has been convicted of a 16 Class X felony is granted a release, after the Governor has 17 communicated such decision to the Board, the Board shall give 18 written notice to the Sheriff of the county from which the 19 offender was sentenced if such sheriff has requested that 20 such notice be given on a continuing basis. In cases where 21 arrest of the offender or the commission of the offense took 22 place in any municipality with a population of more than 23 10,000 persons, the Board shall also give written notice to 24 the proper law enforcement agency for said municipality which 25 has requested notice on a continuing basis. 26 (e) Nothing in this Section shall be construed to limit 27 the power of the Governor under the constitution to grant a 28 reprieve, commutation of sentence, or pardon. 29 (f) Notwithstanding any other provision of law, the 30 Governor has full authority to grant clemency and commute a 31 capital sentence to a non-capital sentence for any person 32 convicted of first degree murder who has been sentenced to 33 death whom the Governor determines to have the disability of 34 mental retardation. HB3218 Engrossed -14- LRB093 07518 RLC 07691 b 1 (Source: P.A. 89-112, eff. 7-7-95; 89-684, eff. 6-1-97.) 2 (730 ILCS 5/5-2-7 new) 3 Sec. 5-2-7. Mental retardation. 4 (a) In cases in which the defendant has been convicted of 5 first degree murder, sentenced to death, and is in custody 6 pending execution of the sentence of death, the following 7 procedures apply: 8 (1) Notwithstanding any other provision of law or 9 rule of court, a defendant may seek relief from the death 10 sentence upon the ground that the defendant was an 11 individual with the disability of mental retardation at 12 the time of the commission of the capital offense. 13 (2) A motion seeking appropriate relief from a death 14 sentence on the ground that the defendant was an 15 individual with the disability of mental retardation 16 shall be filed (A) within 180 days of the effective date 17 of this amendatory Act of the 93rd General Assembly; or 18 (B) within 180 days after the imposition of the sentence, 19 whichever is later. 20 (b) The petition seeking relief from a sentence of death 21 under this Section shall be in substantial compliance with 22 Article 122 of the Code of Criminal Procedure of 1963. 23 (c) The State shall respond to a petition filed under 24 this Section within 10 days after the petition is filed. 25 Following oral and written arguments from the State and 26 defense counsel, the court shall conduct a hearing on the 27 petition. Both the State and the defense shall be allowed to 28 present evidence, including expert testimony. 29 (d) Findings by the trial court that a defendant either 30 is or is not entitled to relief under this Section may be 31 directly appealed to the Illinois Supreme Court. 32 Section 99. Effective date. This Act takes effect upon HB3218 Engrossed -15- LRB093 07518 RLC 07691 b 1 becoming law.