093_HB3359

 
                                     LRB093 09626 RLC 09864 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        (a-5) Defendant's statement. In a prosecution  for  first
22    degree  murder  tried  by  a  jury,  if  a  statement  of the
23    defendant has been admitted into evidence and  the  statement
24    has  not  been  recorded,  the  court shall instruct the jury
25    prior to its deliberation on the charge as follows: "You have
26    before you evidence  that  the  defendant  made  a  statement
27    relating   to   the   offense  or  offenses  charged  in  the
28    indictment. It is for you to determine whether the  defendant
29    made the statement and, if so, what weight should be given to
30    the  statement.  In  determining  the weight to be given to a
31    statement, you should consider all of the circumstances under
 
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 1    which it was made. You should  pay  particular  attention  to
 2    whether  or not the statement is recorded, and if it is, what
 3    method was  used  to  record  it.  Generally,  an  electronic
 4    recording  that  contains  the  defendant's actual voice or a
 5    statement written by the defendant is more  reliable  than  a
 6    non-recorded summary."
 7        (b)  Aggravating Factors.  A defendant who at the time of
 8    the  commission  of the offense has attained the age of 18 or
 9    more and who has been found guilty of first degree murder may
10    be sentenced to death if:
11             (1)  the murdered individual was a peace officer  or
12        fireman  killed  in the course of performing his official
13        duties,  to  prevent  the  performance  of  his  official
14        duties, or in retaliation  for  performing  his  official
15        duties,  and the defendant knew or should have known that
16        the murdered individual was a peace officer  or  fireman;
17        or
18             (2)  the  murdered  individual was an employee of an
19        institution or facility of the Department of Corrections,
20        or any similar local correctional agency, killed  in  the
21        course  of performing his official duties, to prevent the
22        performance of his official duties, or in retaliation for
23        performing  his  official   duties,   or   the   murdered
24        individual  was an inmate at such institution or facility
25        and was killed on the grounds thereof,  or  the  murdered
26        individual  was  otherwise present in such institution or
27        facility with the knowledge and  approval  of  the  chief
28        administrative officer thereof; or
29             (3)  the  defendant  has been convicted of murdering
30        two or more individuals  under  subsection  (a)  of  this
31        Section  or  under any law of the United States or of any
32        state which is substantially similar to subsection (a) of
33        this Section regardless  of whether the  deaths  occurred
34        as  the  result  of the same act or of several related or
 
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 1        unrelated acts so long as the deaths were the  result  of
 2        either  an  intent  to  kill  more  than one person or of
 3        separate acts which the defendant knew would cause  death
 4        or  create  a strong probability of death or great bodily
 5        harm to the murdered individual or another; or
 6             (4)  the murdered individual was killed as a  result
 7        of  the  hijacking  of  an  airplane, train, ship, bus or
 8        other public conveyance; or
 9             (5)  the defendant committed the murder pursuant  to
10        a contract, agreement or understanding by which he was to
11        receive   money  or  anything  of  value  in  return  for
12        committing the murder or procured another to  commit  the
13        murder for money or anything of value; or
14             (6)  the  murdered  individual  was  killed  in  the
15        course of another felony if:
16                  (a)  the murdered individual:
17                       (i)  was actually killed by the defendant,
18                  or
19                       (ii)  received      physical      injuries
20                  personally    inflicted    by   the   defendant
21                  substantially contemporaneously  with  physical
22                  injuries  caused  by  one  or  more persons for
23                  whose  conduct   the   defendant   is   legally
24                  accountable under Section 5-2 of this Code, and
25                  the  physical  injuries inflicted by either the
26                  defendant or the other person  or  persons  for
27                  whose  conduct he is legally accountable caused
28                  the death of the murdered individual; and
29                  (b)  in performing the acts  which  caused  the
30             death  of  the murdered individual or which resulted
31             in physical injuries  personally  inflicted  by  the
32             defendant  on  the  murdered  individual  under  the
33             circumstances  of  subdivision  (ii) of subparagraph
34             (a) of paragraph  (6)  of  subsection  (b)  of  this
 
                            -4-      LRB093 09626 RLC 09864 b
 1             Section, the defendant acted with the intent to kill
 2             the  murdered  individual or with the knowledge that
 3             his acts created a strong probability  of  death  or
 4             great  bodily  harm  to  the  murdered individual or
 5             another; and
 6                  (c)  the other felony was one of the following:
 7             armed robbery, armed  violence,  robbery,  predatory
 8             criminal  sexual  assault  of  a  child,  aggravated
 9             criminal   sexual  assault,  aggravated  kidnapping,
10             aggravated vehicular hijacking, forcible  detention,
11             arson,   aggravated   arson,   aggravated  stalking,
12             burglary,  residential  burglary,   home   invasion,
13             calculated  criminal  drug  conspiracy as defined in
14             Section 405 of the  Illinois  Controlled  Substances
15             Act,  streetgang criminal drug conspiracy as defined
16             in  Section  405.2  of   the   Illinois   Controlled
17             Substances  Act, or the attempt to commit any of the
18             felonies listed in this subsection (c); or
19             (7)  the murdered individual was under 12  years  of
20        age  and  the death resulted from exceptionally brutal or
21        heinous behavior indicative of wanton cruelty; or
22             (8)  the defendant committed the murder with  intent
23        to prevent the murdered individual from testifying in any
24        criminal prosecution or giving material assistance to the
25        State in any investigation or prosecution, either against
26        the  defendant or another; or the defendant committed the
27        murder because the murdered individual was a  witness  in
28        any  prosecution or gave material assistance to the State
29        in any investigation or prosecution, either  against  the
30        defendant or another; or
31             (9)  the  defendant,  while  committing  an  offense
32        punishable  under Sections 401, 401.1, 401.2, 405, 405.2,
33        407 or 407.1 or subsection (b)  of  Section  404  of  the
34        Illinois Controlled Substances Act, or while engaged in a
 
                            -5-      LRB093 09626 RLC 09864 b
 1        conspiracy   or  solicitation  to  commit  such  offense,
 2        intentionally  killed   an   individual   or   counseled,
 3        commanded,  induced,  procured  or caused the intentional
 4        killing of the murdered individual; or
 5             (10)  the   defendant   was   incarcerated   in   an
 6        institution or facility of the Department of  Corrections
 7        at  the  time  of  the  murder,  and  while committing an
 8        offense punishable as a felony  under  Illinois  law,  or
 9        while  engaged  in a conspiracy or solicitation to commit
10        such  offense,  intentionally  killed  an  individual  or
11        counseled, commanded, induced,  procured  or  caused  the
12        intentional killing of the murdered individual; or
13             (11)  the murder was committed in a cold, calculated
14        and  premeditated manner pursuant to a preconceived plan,
15        scheme or design to take a human life by unlawful  means,
16        and  the  conduct  of  the defendant created a reasonable
17        expectation that the death of a human being would  result
18        therefrom; or
19             (12)  the   murdered  individual  was  an  emergency
20        medical  technician  -   ambulance,   emergency   medical
21        technician - intermediate, emergency medical technician -
22        paramedic,  ambulance driver, or other medical assistance
23        or first aid personnel, employed  by  a  municipality  or
24        other   governmental   unit,  killed  in  the  course  of
25        performing  his   official   duties,   to   prevent   the
26        performance of his official duties, or in retaliation for
27        performing his official duties, and the defendant knew or
28        should  have  known  that  the murdered individual was an
29        emergency  medical  technician  -  ambulance,   emergency
30        medical  technician  -  intermediate,  emergency  medical
31        technician   -  paramedic,  ambulance  driver,  or  other
32        medical assistance or first aid personnel; or
33             (13)  the defendant was a  principal  administrator,
34        organizer,  or  leader  of  a  calculated  criminal  drug
 
                            -6-      LRB093 09626 RLC 09864 b
 1        conspiracy  consisting  of  a  hierarchical  position  of
 2        authority  superior  to  that of all other members of the
 3        conspiracy,  and  the  defendant  counseled,   commanded,
 4        induced,  procured,  or caused the intentional killing of
 5        the murdered person; or
 6             (14)  the murder was intentional  and  involved  the
 7        infliction  of  torture.  For the purpose of this Section
 8        torture means the infliction of or subjection to  extreme
 9        physical  pain,  motivated  by  an  intent to increase or
10        prolong the pain, suffering or agony of the victim; or
11             (15)  the murder was committed as a  result  of  the
12        intentional  discharge of a firearm by the defendant from
13        a motor vehicle and the victim was not present within the
14        motor vehicle; or
15             (16)  the murdered individual was 60 years of age or
16        older and the death resulted from exceptionally brutal or
17        heinous behavior indicative of wanton cruelty; or
18             (17)  the murdered individual was a disabled  person
19        and  the  defendant  knew  or  should have known that the
20        murdered individual was disabled.  For purposes  of  this
21        paragraph  (17),  "disabled  person"  means  a person who
22        suffers from a permanent physical  or  mental  impairment
23        resulting from disease, an injury, a functional disorder,
24        or   a  congenital  condition  that  renders  the  person
25        incapable of adequately providing  for  his  or  her  own
26        health or personal care; or
27             (18)  the  murder  was  committed  by  reason of any
28        person's activity as a community policing volunteer or to
29        prevent  any  person  from  engaging  in  activity  as  a
30        community policing volunteer; or
31             (19)  the murdered  individual  was  subject  to  an
32        order  of  protection  and  the murder was committed by a
33        person against whom the  same  order  of  protection  was
34        issued  under the Illinois Domestic Violence Act of 1986;
 
                            -7-      LRB093 09626 RLC 09864 b
 1        or
 2             (20)  the  murdered  individual  was  known  by  the
 3        defendant to be a teacher or other person employed in any
 4        school and the teacher or  other  employee  is  upon  the
 5        grounds  of  a school or grounds adjacent to a school, or
 6        is in any part of a building used for school purposes; or
 7             (21)  the murder was committed by the  defendant  in
 8        connection  with  or  as  a  result  of  the  offense  of
 9        terrorism as defined in Section 29D-30 of this Code.
10          (c)  Consideration   of   factors  in  Aggravation  and
11    Mitigation.
12        The court shall consider, or shall instruct the  jury  to
13    consider any aggravating and any mitigating factors which are
14    relevant to the imposition of the death penalty.  Aggravating
15    factors  may include but need not be limited to those factors
16    set forth in subsection (b). Mitigating factors  may  include
17    but need not be limited to the following:
18             (1)  the  defendant  has  no  significant history of
19        prior criminal activity;
20             (2)  the murder was committed  while  the  defendant
21        was  under  the  influence of extreme mental or emotional
22        disturbance, although not such as to constitute a defense
23        to prosecution;
24             (3)  the murdered individual was  a  participant  in
25        the  defendant's  homicidal  conduct  or consented to the
26        homicidal act;
27             (4)  the defendant acted  under  the  compulsion  of
28        threat  or  menace of the imminent infliction of death or
29        great bodily harm;
30             (5)  the defendant was not personally present during
31        commission of the act or acts causing death.
32        (d)  Separate sentencing hearing.
33        Where requested by the State, the court shall  conduct  a
34    separate  sentencing proceeding to determine the existence of
 
                            -8-      LRB093 09626 RLC 09864 b
 1    factors set forth in  subsection  (b)  and  to  consider  any
 2    aggravating  or mitigating factors as indicated in subsection
 3    (c).  The proceeding shall be conducted:
 4             (1)  before the jury that determined the defendant's
 5        guilt; or
 6             (2)  before a jury impanelled for the purpose of the
 7        proceeding if:
 8                  A.  the defendant was convicted upon a plea  of
 9             guilty; or
10                  B.  the  defendant  was convicted after a trial
11             before the court sitting without a jury; or
12                  C.  the court for good cause  shown  discharges
13             the jury that determined the defendant's guilt; or
14             (3)  before  the court alone if the defendant waives
15        a jury for the separate proceeding.
16        (e)  Evidence and Argument.
17        During the proceeding any information relevant to any  of
18    the  factors  set forth in subsection (b) may be presented by
19    either the State or the defendant under the  rules  governing
20    the   admission   of   evidence   at  criminal  trials.   Any
21    information relevant to any additional aggravating factors or
22    any mitigating factors indicated in  subsection  (c)  may  be
23    presented  by  the  State  or  defendant  regardless  of  its
24    admissibility  under  the  rules  governing  the admission of
25    evidence at criminal trials.  The  State  and  the  defendant
26    shall  be  given  fair  opportunity  to rebut any information
27    received at the hearing.
28        (f)  Proof.
29        The burden of proof of establishing the existence of  any
30    of  the  factors  set forth in subsection (b) is on the State
31    and shall  not  be  satisfied  unless  established  beyond  a
32    reasonable doubt.
33        (g)  Procedure - Jury.
34        If  at  the separate sentencing proceeding the jury finds
 
                            -9-      LRB093 09626 RLC 09864 b
 1    that none of the factors set forth in subsection (b)  exists,
 2    the   court  shall  sentence  the  defendant  to  a  term  of
 3    imprisonment  under  Chapter  V  of  the  Unified   Code   of
 4    Corrections.   If  there  is  a unanimous finding by the jury
 5    that one or more of the factors set forth in  subsection  (b)
 6    exist,  the  jury  shall  consider aggravating and mitigating
 7    factors as  instructed  by  the  court  and  shall  determine
 8    whether  the sentence of death shall be imposed.  If the jury
 9    determines unanimously that there are no  mitigating  factors
10    sufficient  to preclude the imposition of the death sentence,
11    the court shall sentence the defendant to death.
12        Unless the jury  unanimously  finds  that  there  are  no
13    mitigating  factors  sufficient to preclude the imposition of
14    the death sentence the court shall sentence the defendant  to
15    a term of imprisonment under Chapter V of the Unified Code of
16    Corrections.
17        (h)  Procedure - No Jury.
18        In  a  proceeding  before  the  court alone, if the court
19    finds that none  of  the  factors  found  in  subsection  (b)
20    exists,  the  court shall sentence the defendant to a term of
21    imprisonment  under  Chapter  V  of   the  Unified  Code   of
22    Corrections.
23        If  the  Court determines that one or more of the factors
24    set forth in subsection (b) exists, the Court shall  consider
25    any  aggravating  and  mitigating  factors  as  indicated  in
26    subsection  (c).   If  the Court determines that there are no
27    mitigating factors sufficient to preclude the  imposition  of
28    the death sentence, the Court shall sentence the defendant to
29    death.
30        Unless  the  court  finds  that  there  are no mitigating
31    factors sufficient to preclude the imposition of the sentence
32    of death, the court shall sentence the defendant to a term of
33    imprisonment  under  Chapter  V  of  the  Unified   Code   of
34    Corrections.
 
                            -10-     LRB093 09626 RLC 09864 b
 1        (i)  Appellate Procedure.
 2        The  conviction and sentence of death shall be subject to
 3    automatic review by the Supreme Court.  Such review shall  be
 4    in accordance with rules promulgated by the Supreme Court.
 5        (j)  Disposition of reversed death sentence.
 6        In  the  event that the death penalty in this Act is held
 7    to be unconstitutional by the Supreme  Court  of  the  United
 8    States  or  of the State of Illinois, any person convicted of
 9    first degree murder shall be sentenced by the court to a term
10    of imprisonment under  Chapter  V  of  the  Unified  Code  of
11    Corrections.
12        In  the  event  that  any  death sentence pursuant to the
13    sentencing   provisions   of   this   Section   is   declared
14    unconstitutional by the Supreme Court of the United States or
15    of the State of Illinois, the court having jurisdiction  over
16    a  person  previously  sentenced  to  death  shall  cause the
17    defendant to be brought before the court, and the court shall
18    sentence the  defendant  to  a  term  of  imprisonment  under
19    Chapter V of the Unified Code of Corrections.
20    (Source: P.A. 91-357,  eff.  7-29-99;  91-434,  eff.  1-1-00;
21    92-854, eff. 12-5-02.)