Judiciary II - Criminal Law Committee
Filed: 03/04/04
|
|||||||
| |||||||
| |||||||
1 | AMENDMENT TO HOUSE BILL 4677
| ||||||
2 | AMENDMENT NO. ______. Amend House Bill 4677 by replacing | ||||||
3 | everything after the enacting clause with the following:
| ||||||
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 the | ||||||
12 | acts which cause the death:
| ||||||
13 | (1) he either intends to kill or do great bodily harm | ||||||
14 | to that
individual or another, or knows that such acts will | ||||||
15 | cause death to that
individual or another; or
| ||||||
16 | (2) he knows that such acts create a strong probability | ||||||
17 | of death or
great bodily harm to that individual or | ||||||
18 | another; or
| ||||||
19 | (3) he is attempting or committing a forcible felony | ||||||
20 | other than
second degree murder.
| ||||||
21 | (b) Aggravating Factors. A defendant who at the time of the
| ||||||
22 | commission of the offense has attained the age of 18 or more | ||||||
23 | and who has
been found guilty of first degree murder may be | ||||||
24 | sentenced to death if:
|
| |||||||
| |||||||
1 | (1) the murdered individual was a peace officer or | ||||||
2 | fireman killed in
the course of performing his official | ||||||
3 | duties, to prevent the performance
of his official duties, | ||||||
4 | or in retaliation for performing his official
duties, and | ||||||
5 | the defendant knew or
should have known that the murdered | ||||||
6 | individual was a peace officer or
fireman; or
| ||||||
7 | (2) the murdered individual was an employee of an | ||||||
8 | institution or
facility of the Department of Corrections, | ||||||
9 | or any similar local
correctional agency, killed in the | ||||||
10 | course of performing his official
duties, to prevent the | ||||||
11 | performance of his official duties, or in
retaliation for | ||||||
12 | performing his official duties, or the murdered
individual | ||||||
13 | was an inmate at such institution or facility and was | ||||||
14 | killed on the
grounds thereof, or the murdered individual | ||||||
15 | was otherwise present in such
institution or facility with | ||||||
16 | the knowledge and approval of the chief
administrative | ||||||
17 | officer thereof; or
| ||||||
18 | (3) the defendant has been convicted of murdering two | ||||||
19 | or more
individuals under subsection (a) of this Section or | ||||||
20 | under any law of the
United States or of any state which is | ||||||
21 | substantially similar to
subsection (a) of this Section | ||||||
22 | regardless of whether the deaths
occurred as the result of | ||||||
23 | the same act or of several related or
unrelated acts so | ||||||
24 | long as the deaths were the result of either an intent
to | ||||||
25 | kill more than one person or of separate acts which
the | ||||||
26 | defendant knew would cause death or create a strong | ||||||
27 | probability of
death or great bodily harm to the murdered | ||||||
28 | individual or another; or
| ||||||
29 | (4)
the murdered individual was killed as a result of | ||||||
30 | the
hijacking of an airplane, train, ship, bus or other | ||||||
31 | public conveyance; or
| ||||||
32 | (5)
the defendant committed the murder pursuant to a | ||||||
33 | contract,
agreement or understanding by which he was to | ||||||
34 | receive money or anything
of value in return for committing |
| |||||||
| |||||||
1 | the murder or procured another to
commit the murder for | ||||||
2 | money or anything of value; or
| ||||||
3 | (6)
the murdered individual was killed in the course of | ||||||
4 | another felony if:
| ||||||
5 | (a) the murdered individual:
| ||||||
6 | (i) was actually killed by the defendant, or
| ||||||
7 | (ii) received physical injuries personally | ||||||
8 | inflicted by the defendant
substantially | ||||||
9 | contemporaneously with physical injuries caused by | ||||||
10 | one or
more persons for whose conduct the defendant | ||||||
11 | is legally accountable under
Section 5-2 of this | ||||||
12 | Code, and the physical injuries inflicted by | ||||||
13 | either
the defendant or the other person or persons | ||||||
14 | for whose conduct he is legally
accountable caused | ||||||
15 | the death of the murdered individual; and
| ||||||
16 | (b) in performing the acts which caused the death | ||||||
17 | of the murdered
individual or which resulted in | ||||||
18 | physical injuries personally inflicted by
the | ||||||
19 | defendant on the murdered individual under the | ||||||
20 | circumstances of
subdivision (ii) of subparagraph (a) | ||||||
21 | of paragraph (6) of subsection (b) of
this Section, the | ||||||
22 | defendant acted with the intent to kill the murdered
| ||||||
23 | individual or with the knowledge that his acts created | ||||||
24 | a strong probability
of death or great bodily harm to | ||||||
25 | the murdered individual or another; and
| ||||||
26 | (c) the other felony was an inherently violent | ||||||
27 | crime
or the attempt to commit an inherently
violent | ||||||
28 | crime.
In this subparagraph (c), "inherently violent | ||||||
29 | crime" includes, but is not
limited to, armed robbery, | ||||||
30 | robbery, predatory criminal sexual assault of a
child,
| ||||||
31 | aggravated criminal sexual assault, aggravated | ||||||
32 | kidnapping, aggravated vehicular
hijacking,
aggravated | ||||||
33 | arson, aggravated stalking, residential burglary, and | ||||||
34 | home
invasion
; or
|
| |||||||
| |||||||
1 | (7) the murdered individual was under 12 years of age | ||||||
2 | and the
death resulted from exceptionally brutal or heinous | ||||||
3 | behavior indicative of
wanton cruelty; or
| ||||||
4 | (8) the defendant committed the murder with intent to
| ||||||
5 | prevent the murdered individual from testifying or | ||||||
6 | participating in any
criminal investigation or prosecution
| ||||||
7 | or giving material assistance to the State in any | ||||||
8 | investigation or
prosecution, either against the defendant | ||||||
9 | or another; or the defendant
committed the murder because | ||||||
10 | the murdered individual was a witness in any
prosecution or | ||||||
11 | gave material assistance to the State in any investigation
| ||||||
12 | or prosecution, either against the defendant or another;
| ||||||
13 | for purposes of this paragraph (8), "participating in any | ||||||
14 | criminal
investigation
or prosecution" is intended to | ||||||
15 | include those appearing in the proceedings in
any capacity | ||||||
16 | such as trial judges, prosecutors, defense attorneys,
| ||||||
17 | investigators, witnesses, or jurors; or
| ||||||
18 | (9) (blank)
the defendant, while committing an offense | ||||||
19 | punishable under
Sections 401, 401.1, 401.2, 405, 405.2, | ||||||
20 | 407 or 407.1 or subsection (b) of
Section
404 of the | ||||||
21 | Illinois Controlled Substances Act, or while engaged in a
| ||||||
22 | conspiracy or solicitation to commit such offense, | ||||||
23 | intentionally killed an
individual or counseled, | ||||||
24 | commanded, induced, procured or caused the
intentional | ||||||
25 | killing of the murdered individual ; or
| ||||||
26 | (10) (blank)
the defendant was incarcerated in an | ||||||
27 | institution or facility of
the Department of Corrections at | ||||||
28 | the time of the murder, and while
committing an offense | ||||||
29 | punishable as a felony under Illinois law, or while
engaged | ||||||
30 | in a conspiracy or solicitation to commit such offense,
| ||||||
31 | intentionally killed an individual or counseled, | ||||||
32 | commanded, induced,
procured or caused the intentional | ||||||
33 | killing of the murdered individual ; or
| ||||||
34 | (11)
the murder was committed in a cold, calculated and |
| |||||||
| |||||||
1 | premeditated
manner pursuant to a preconceived plan, | ||||||
2 | scheme or design to take a human
life by unlawful means, | ||||||
3 | and the conduct of the defendant created a
reasonable | ||||||
4 | expectation that the death of a human being would result
| ||||||
5 | therefrom; or
| ||||||
6 | (12)
the murdered individual was an emergency medical | ||||||
7 | technician -
ambulance, emergency medical technician - | ||||||
8 | intermediate, emergency medical
technician - paramedic, | ||||||
9 | ambulance driver, or
other medical assistance or first aid | ||||||
10 | personnel, employed by a municipality
or other | ||||||
11 | governmental unit, killed in the course of performing his | ||||||
12 | official
duties, to prevent the performance of his official | ||||||
13 | duties, or in retaliation
for performing his official | ||||||
14 | duties, and the defendant knew or should have
known that | ||||||
15 | the murdered individual was an emergency medical | ||||||
16 | technician -
ambulance, emergency medical technician - | ||||||
17 | intermediate, emergency medical
technician - paramedic, | ||||||
18 | ambulance driver, or
other medical assistance or first aid | ||||||
19 | personnel; or
| ||||||
20 | (13) (blank)
the defendant was a principal | ||||||
21 | administrator, organizer, or leader
of a calculated | ||||||
22 | criminal drug conspiracy consisting of a hierarchical | ||||||
23 | position
of authority superior to that of all other members | ||||||
24 | of the conspiracy, and the
defendant counseled, commanded, | ||||||
25 | induced, procured, or caused the intentional
killing of the | ||||||
26 | murdered person ;
or
| ||||||
27 | (14) the murder was intentional and involved the | ||||||
28 | infliction of torture.
For
the purpose of this Section | ||||||
29 | torture means the infliction of or subjection to
extreme | ||||||
30 | physical pain, motivated by an intent to increase or | ||||||
31 | prolong the pain,
suffering or agony of the victim; or
| ||||||
32 | (15) (blank)
the murder was committed as a result of | ||||||
33 | the intentional discharge
of a firearm by the defendant | ||||||
34 | from a motor vehicle and the victim was not
present within |
| |||||||
| |||||||
1 | the motor vehicle ; or
| ||||||
2 | (16)
the murdered individual was 60 years of age or | ||||||
3 | older and the death
resulted
from exceptionally brutal or | ||||||
4 | heinous behavior indicative of wanton cruelty; or
| ||||||
5 | (17)
the murdered individual was a disabled person and | ||||||
6 | the defendant knew
or
should have known that the murdered | ||||||
7 | individual was disabled. For purposes of
this paragraph | ||||||
8 | (17), "disabled person" means a person who suffers from a
| ||||||
9 | permanent physical or mental impairment resulting from | ||||||
10 | disease, an injury,
a functional disorder, or a congenital | ||||||
11 | condition that renders the person
incapable of
adequately | ||||||
12 | providing for his or her own health or personal care; or
| ||||||
13 | (18)
the murder was committed by reason of any person's | ||||||
14 | activity as a
community policing volunteer or to prevent | ||||||
15 | any person from engaging in activity
as a community | ||||||
16 | policing volunteer; or
| ||||||
17 | (19)
the murdered individual was subject to an order of | ||||||
18 | protection and the
murder was committed by a person against | ||||||
19 | whom the same order of protection was
issued under the | ||||||
20 | Illinois Domestic Violence Act of 1986; or
| ||||||
21 | (20)
the murdered individual was known by the defendant | ||||||
22 | to be a teacher or
other person employed in any school and | ||||||
23 | the teacher or other employee is upon
the grounds of a | ||||||
24 | school or grounds adjacent to a school, or is in any part | ||||||
25 | of a
building used for school purposes; or
| ||||||
26 | (21) the murder was committed by the defendant in | ||||||
27 | connection with or as
a
result of the offense of terrorism | ||||||
28 | as defined in Section 29D-30 of this
Code.
| ||||||
29 | (c) Consideration of factors in Aggravation and | ||||||
30 | Mitigation.
| ||||||
31 | The court shall consider, or shall instruct the jury to | ||||||
32 | consider any
aggravating and any mitigating factors which are | ||||||
33 | relevant to the
imposition of the death penalty. Aggravating | ||||||
34 | factors may include but
need not be limited to those factors |
| |||||||
| |||||||
1 | set forth in subsection (b).
Mitigating factors may include but | ||||||
2 | need not be limited to the following:
| ||||||
3 | (1) the defendant has no significant history of prior | ||||||
4 | criminal
activity;
| ||||||
5 | (2) the murder was committed while the defendant was | ||||||
6 | under
the influence of extreme mental or emotional | ||||||
7 | disturbance, although not such
as to constitute a defense | ||||||
8 | to prosecution;
| ||||||
9 | (3) the murdered individual was a participant in the
| ||||||
10 | defendant's homicidal conduct or consented to the | ||||||
11 | homicidal act;
| ||||||
12 | (4) the defendant acted under the compulsion of threat | ||||||
13 | or
menace of the imminent infliction of death or great | ||||||
14 | bodily harm;
| ||||||
15 | (5) the defendant was not personally present during
| ||||||
16 | commission of the act or acts causing death;
| ||||||
17 | (6) the defendant's background includes a history of | ||||||
18 | extreme emotional
or physical abuse;
| ||||||
19 | (7) the defendant suffers from a reduced mental | ||||||
20 | capacity.
| ||||||
21 | (d) Separate sentencing hearing.
| ||||||
22 | Where requested by the State, the court shall conduct a | ||||||
23 | separate
sentencing proceeding to determine the existence of | ||||||
24 | factors set forth in
subsection (b) and to consider any | ||||||
25 | aggravating or mitigating factors as
indicated in subsection | ||||||
26 | (c). The proceeding shall be conducted:
| ||||||
27 | (1) before the jury that determined the defendant's | ||||||
28 | guilt; or
| ||||||
29 | (2) before a jury impanelled for the purpose of the | ||||||
30 | proceeding if:
| ||||||
31 | A. the defendant was convicted upon a plea of | ||||||
32 | guilty; or
| ||||||
33 | B. the defendant was convicted after a trial before | ||||||
34 | the court
sitting without a jury; or
|
| |||||||
| |||||||
1 | C. the court for good cause shown discharges the | ||||||
2 | jury that
determined the defendant's guilt; or
| ||||||
3 | (3) before the court alone if the defendant waives a | ||||||
4 | jury
for the separate proceeding.
| ||||||
5 | (e) Evidence and Argument.
| ||||||
6 | During the proceeding any information relevant to any of | ||||||
7 | the factors
set forth in subsection (b) may be presented by | ||||||
8 | either the State or the
defendant under the rules governing the | ||||||
9 | admission of evidence at
criminal trials. Any information | ||||||
10 | relevant to any additional aggravating
factors or any | ||||||
11 | mitigating factors indicated in subsection (c) may be
presented | ||||||
12 | by the State or defendant regardless of its admissibility
under | ||||||
13 | the rules governing the admission of evidence at criminal | ||||||
14 | trials.
The State and the defendant shall be given fair | ||||||
15 | opportunity to rebut any
information received at the hearing.
| ||||||
16 | (f) Proof.
| ||||||
17 | The burden of proof of establishing the existence of any of | ||||||
18 | the
factors set forth in subsection (b) is on the State and | ||||||
19 | shall not be
satisfied unless established beyond a reasonable | ||||||
20 | doubt.
| ||||||
21 | (g) Procedure - Jury.
| ||||||
22 | If at the separate sentencing proceeding the jury finds | ||||||
23 | that none of
the factors set forth in subsection (b) exists, | ||||||
24 | the court shall sentence
the defendant to a term of | ||||||
25 | imprisonment under Chapter V of the Unified
Code of | ||||||
26 | Corrections. If there is a unanimous finding by the jury that
| ||||||
27 | one or more of the factors set forth in subsection (b) exist, | ||||||
28 | the jury
shall consider aggravating and mitigating factors as | ||||||
29 | instructed by the
court and shall determine whether the | ||||||
30 | sentence of death shall be
imposed. If the jury determines | ||||||
31 | unanimously, after weighing the factors in
aggravation and | ||||||
32 | mitigation, that death is the appropriate sentence
, the court | ||||||
33 | shall sentence the defendant to death.
If the court does not | ||||||
34 | concur with the jury determination that death is the
|
| |||||||
| |||||||
1 | appropriate sentence, the court shall set forth reasons in | ||||||
2 | writing
including what facts or circumstances the court relied | ||||||
3 | upon,
along with any relevant
documents, that compelled the | ||||||
4 | court to non-concur with the sentence. This
document and any | ||||||
5 | attachments shall be part of the record for appellate
review. | ||||||
6 | The court shall be bound by the jury's sentencing | ||||||
7 | determination.
| ||||||
8 | If after weighing the factors in aggravation and | ||||||
9 | mitigation, one or more
jurors determines that death is not the | ||||||
10 | appropriate sentence,
the
court shall sentence the defendant to | ||||||
11 | a term of imprisonment under
Chapter V of the Unified Code of | ||||||
12 | Corrections.
| ||||||
13 | (h) Procedure - No Jury.
| ||||||
14 | In a proceeding before the court alone, if the court finds | ||||||
15 | that none
of the factors found in subsection (b) exists, the | ||||||
16 | court shall sentence
the defendant to a term of imprisonment | ||||||
17 | under Chapter V of the Unified
Code of Corrections.
| ||||||
18 | If the Court determines that one or more of the factors set | ||||||
19 | forth in
subsection (b) exists, the Court shall consider any | ||||||
20 | aggravating and
mitigating factors as indicated in subsection | ||||||
21 | (c). If the Court
determines, after weighing the factors in | ||||||
22 | aggravation and mitigation, that
death is the appropriate | ||||||
23 | sentence
, the Court shall sentence the
defendant to death.
| ||||||
24 | If
the court finds that death is not the
appropriate | ||||||
25 | sentence, the
court shall sentence the defendant to a term of | ||||||
26 | imprisonment under
Chapter V of the Unified Code of | ||||||
27 | Corrections.
| ||||||
28 | (h-5) Decertification as a capital case.
| ||||||
29 | In a case in which the defendant has been found guilty of | ||||||
30 | first degree murder
by a judge or jury, or a case on remand for | ||||||
31 | resentencing, and the State seeks
the death penalty as an | ||||||
32 | appropriate
sentence,
on the court's own motion or the written | ||||||
33 | motion of the defendant, the court
may decertify the case as a | ||||||
34 | death penalty case if the court finds that the only
evidence |
| |||||||
| |||||||
1 | supporting the defendant's conviction is the uncorroborated | ||||||
2 | testimony
of an informant witness, as defined in Section 115-21 | ||||||
3 | of the Code of Criminal
Procedure of 1963, concerning the | ||||||
4 | confession or admission of the defendant or
that the sole | ||||||
5 | evidence against the defendant is a single eyewitness or single
| ||||||
6 | accomplice without any other corroborating evidence.
If the | ||||||
7 | court decertifies the case as a capital case
under either of | ||||||
8 | the grounds set forth above, the court shall issue a
written | ||||||
9 | finding. The State may pursue its right to appeal the | ||||||
10 | decertification
pursuant to Supreme Court Rule 604(a)(1). If | ||||||
11 | the court does not
decertify the case as a capital case, the | ||||||
12 | matter shall proceed to the
eligibility phase of the sentencing | ||||||
13 | hearing.
| ||||||
14 | (i) Appellate Procedure.
| ||||||
15 | The conviction and sentence of death shall be subject to | ||||||
16 | automatic
review by the Supreme Court. Such review shall be in | ||||||
17 | accordance with
rules promulgated by the Supreme Court.
The | ||||||
18 | Illinois Supreme Court may overturn the death sentence, and | ||||||
19 | order the
imposition of imprisonment under Chapter V of the | ||||||
20 | Unified Code of
Corrections if the court finds that the death | ||||||
21 | sentence is fundamentally
unjust as applied to the particular | ||||||
22 | case.
If the Illinois Supreme Court finds that the
death | ||||||
23 | sentence is fundamentally unjust as applied to the particular | ||||||
24 | case,
independent of any procedural grounds for relief, the | ||||||
25 | Illinois Supreme Court
shall issue a written opinion explaining | ||||||
26 | this finding.
| ||||||
27 | (j) Disposition of reversed death sentence.
| ||||||
28 | In the event that the death penalty in this Act is held to | ||||||
29 | be
unconstitutional by the Supreme Court of the United States | ||||||
30 | or of the
State of Illinois, any person convicted of first | ||||||
31 | degree murder shall be
sentenced by the court to a term of | ||||||
32 | imprisonment under Chapter V of the
Unified Code of | ||||||
33 | Corrections.
| ||||||
34 | In the event that any death sentence pursuant to the |
| |||||||
| |||||||
1 | sentencing
provisions of this Section is declared | ||||||
2 | unconstitutional by the Supreme
Court of the United States or | ||||||
3 | of the State of Illinois, the court having
jurisdiction over a | ||||||
4 | person previously sentenced to death shall cause the
defendant | ||||||
5 | to be brought before the court, and the court shall sentence
| ||||||
6 | the defendant to a term of imprisonment under Chapter V of the
| ||||||
7 | Unified Code of Corrections.
| ||||||
8 | (k) Guidelines for seeking the death penalty.
| ||||||
9 | The Attorney General and
State's Attorneys Association | ||||||
10 | shall consult on voluntary guidelines for
procedures governing | ||||||
11 | whether or not to seek the death penalty. The guidelines
do not
| ||||||
12 | have the force of law and are only advisory in nature.
| ||||||
13 | (Source: P.A. 92-854, eff. 12-5-02; 93-605, eff. 11-19-03.)".
|