093_HB3409eng

 
HB3409 Engrossed                     LRB093 08105 RLC 08308 b

 1        AN ACT in relation to the death penalty.

 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  or  her
27        official  duties,  to  prevent  the  performance  of  his
28        official  duties,  or  in  retaliation for performing his
29        official duties, and the defendant knew  or  should  have
30        known that the murdered individual was a peace officer or
31        fireman; or
 
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 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,
 
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 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
 
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 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
 
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 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
 
HB3409 Engrossed            -6-      LRB093 08105 RLC 08308 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:
 
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 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        (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
 
HB3409 Engrossed            -8-      LRB093 08105 RLC 08308 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.
 
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 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
 
HB3409 Engrossed            -10-     LRB093 08105 RLC 08308 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.)