Full Text of HB1738 97th General Assembly
HB1738 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB1738 Introduced , by Rep. Dennis M. Reboletti SYNOPSIS AS INTRODUCED: |
| 720 ILCS 5/9-1 | from Ch. 38, par. 9-1 |
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Amends the Criminal Code of 1961 relating to first degree murder. Adds and eliminates aggravating factors for which the death penalty may be imposed.
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| | | CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 1 | | AN ACT concerning 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 changing | 5 | | 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 |
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| 1 | | sentenced to death if:
| 2 | | (1) Murder of a peace officer, correctional employee,
| 3 | | or fireman in the performance of his or her duties. the | 4 | | murdered individual was a peace officer , employee of an | 5 | | institution or facility of the Department of Corrections, | 6 | | or any similar local correctional agency, or fireman killed | 7 | | in
the course of performing his official duties, to prevent | 8 | | the performance
of his official duties, or in retaliation | 9 | | for performing his official
duties, and the defendant knew | 10 | | or
should have known that the murdered individual was so | 11 | | employed a peace officer or
fireman ; or
| 12 | | (2) (Blank). the murdered individual was an employee of | 13 | | an institution or
facility of the Department of | 14 | | Corrections, or any similar local
correctional agency, | 15 | | killed in the course of performing his official
duties, to | 16 | | prevent the performance of his official duties, or in
| 17 | | retaliation for performing his official duties, or the | 18 | | murdered
individual was an inmate at such institution or | 19 | | facility and was killed on the
grounds thereof, or the | 20 | | murdered individual was otherwise present in such
| 21 | | institution or facility with the knowledge and approval of | 22 | | the chief
administrative officer thereof; or
| 23 | | (3) Multiple murders. the defendant has been convicted | 24 | | of murdering two or more
individuals under subsection (a) | 25 | | of this Section or under any law of the
United States or of | 26 | | any state which is substantially similar to
subsection (a) |
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| 1 | | of this Section regardless of whether the deaths
occurred | 2 | | as the result of the same act or of several related or
| 3 | | unrelated acts so long as the deaths were the result of | 4 | | either an intent
to kill more than one person or of | 5 | | separate acts which
the defendant knew would cause death or | 6 | | create a strong probability of
death or great bodily harm | 7 | | to the murdered individual or another; or
| 8 | | (4) (Blank). the murdered individual was killed as a | 9 | | result of the
hijacking of an airplane, train, ship, bus or | 10 | | other public conveyance; or
| 11 | | (5) Murder for hire. the defendant committed the murder | 12 | | pursuant to a contract,
agreement or understanding by which | 13 | | he was to receive money or anything
of value in return for | 14 | | committing the murder or procured another to
commit the | 15 | | murder for money or anything of value; or
| 16 | | (6) Murder while committing a sexually violent felony. | 17 | | the murdered individual was killed in the course of another | 18 | | felony if:
| 19 | | (a) the murdered individual:
| 20 | | (i) was actually killed by the defendant, or
| 21 | | (ii) received physical injuries personally | 22 | | inflicted by the defendant
substantially | 23 | | contemporaneously with physical injuries caused by | 24 | | one or
more persons for whose conduct the defendant | 25 | | is legally accountable under
Section 5-2 of this | 26 | | Code, and the physical injuries inflicted by |
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| 1 | | either
the defendant or the other person or persons | 2 | | for whose conduct he is legally
accountable caused | 3 | | the death of the murdered individual; and
| 4 | | (b) in performing the acts which caused the death | 5 | | of the murdered
individual or which resulted in | 6 | | physical injuries personally inflicted by
the | 7 | | defendant on the murdered individual under the | 8 | | circumstances of
subdivision (ii) of subparagraph (a) | 9 | | of paragraph (6) of subsection (b) of
this Section, the | 10 | | defendant acted with the intent to kill the murdered
| 11 | | individual or with the knowledge that his acts created | 12 | | a strong probability
of death or great bodily harm to | 13 | | the murdered individual or another; and
| 14 | | (c) the other felony was a sexually an inherently | 15 | | violent crime
or the attempt to commit a sexually an | 16 | | inherently
violent crime.
In this subparagraph (c), | 17 | | " sexually inherently violent crime" includes, but is | 18 | | not
limited to, armed robbery, robbery, predatory | 19 | | criminal sexual assault of a
child,
aggravated | 20 | | criminal sexual assault, criminal sexual assault, and | 21 | | aggravated criminal sexual abuse aggravated | 22 | | kidnapping, aggravated vehicular
hijacking,
aggravated | 23 | | arson, aggravated stalking, residential burglary, and | 24 | | home
invasion ; or
| 25 | | (7) Exceptionally brutal or heinous murder of a child, | 26 | | or of an elderly or disabled person. (a) the murdered |
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| 1 | | individual was (1) under 12 years of age or (2) 65 years or | 2 | | older and the
death resulted from exceptionally brutal or | 3 | | heinous behavior indicative of
wanton cruelty; or
| 4 | | (b) the murdered individual was a disabled person
| 5 | | and the defendant knew or should have known that the | 6 | | murdered individual was disabled and the death | 7 | | resulted from exceptionally brutal or heinous behavior | 8 | | indicative of wanton cruelty. For purposes of this | 9 | | subparagraph (7)(b), "disabled person" means a person | 10 | | who suffers from a permanent physical or mental | 11 | | impairment resulting from disease, an injury, a | 12 | | functional disorder, or a congenital condition that | 13 | | renders the person incapable of adequately providing | 14 | | for his or her own health or personal care; or | 15 | | (8) Murder of a witness or participant in an | 16 | | Investigation or Prosecution. the defendant committed the | 17 | | murder with intent to
prevent the murdered individual from | 18 | | testifying or participating in any
criminal investigation | 19 | | or prosecution
or giving material assistance to the State | 20 | | in any investigation or
prosecution, either against the | 21 | | defendant or another; or the defendant
committed the murder | 22 | | because the murdered individual was a witness in any
| 23 | | prosecution or gave material assistance to the State in any | 24 | | investigation
or prosecution, either against the defendant | 25 | | or another;
for purposes of this paragraph (8), | 26 | | "participating in any criminal
investigation
or |
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| 1 | | prosecution" is intended to include those appearing in the | 2 | | proceedings in
any capacity such as trial judges, | 3 | | prosecutors, defense attorneys,
investigators, witnesses, | 4 | | or jurors; or
| 5 | | (9) (Blank). the defendant, while committing an | 6 | | offense punishable under
Sections 401, 401.1, 401.2, 405, | 7 | | 405.2, 407 or 407.1 or subsection (b) of
Section
404 of the | 8 | | Illinois Controlled Substances Act, or while engaged in a
| 9 | | conspiracy or solicitation to commit such offense, | 10 | | intentionally killed an
individual or counseled, | 11 | | commanded, induced, procured or caused the
intentional | 12 | | killing of the murdered individual; or
| 13 | | (10) (Blank). the defendant was incarcerated in an | 14 | | institution or facility of
the Department of Corrections at | 15 | | the time of the murder, and while
committing an offense | 16 | | punishable as a felony under Illinois law, or while
engaged | 17 | | in a conspiracy or solicitation to commit such offense,
| 18 | | intentionally killed an individual or counseled, | 19 | | commanded, induced,
procured or caused the intentional | 20 | | killing of the murdered individual; or
| 21 | | (11) (Blank). the murder was committed in a cold, | 22 | | calculated and premeditated
manner pursuant to a | 23 | | preconceived plan, scheme or design to take a human
life by | 24 | | unlawful means, and the conduct of the defendant created a
| 25 | | reasonable expectation that the death of a human being | 26 | | would result
therefrom; or
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| 1 | | (12) (Blank). the murdered individual was an emergency | 2 | | medical technician -
ambulance, emergency medical | 3 | | technician - intermediate, emergency medical
technician - | 4 | | paramedic, ambulance driver, or
other medical assistance | 5 | | or first aid personnel, employed by a municipality
or other | 6 | | governmental unit, killed in the course of performing his | 7 | | official
duties, to prevent the performance of his official | 8 | | duties, or in retaliation
for performing his official | 9 | | duties, and the defendant knew or should have
known that | 10 | | the murdered individual was an emergency medical | 11 | | technician -
ambulance, emergency medical technician - | 12 | | intermediate, emergency medical
technician - paramedic, | 13 | | ambulance driver, or
other medical assistance or first aid | 14 | | personnel; or
| 15 | | (13) (Blank). the defendant was a principal | 16 | | administrator, organizer, or leader
of a calculated | 17 | | criminal drug conspiracy consisting of a hierarchical | 18 | | position
of authority superior to that of all other members | 19 | | of the conspiracy, and the
defendant counseled, commanded, | 20 | | induced, procured, or caused the intentional
killing of the | 21 | | murdered person;
or
| 22 | | (14) Torture. the murder was intentional and involved | 23 | | the infliction of torture.
For
the purpose of this Section | 24 | | torture means the infliction of or subjection to
extreme | 25 | | physical pain, motivated by an intent to increase or | 26 | | prolong the pain,
suffering or agony of the victim; or
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| 1 | | (15) (Blank). the murder was committed as a result of | 2 | | the intentional discharge
of a firearm by the defendant | 3 | | from a motor vehicle and the victim was not
present within | 4 | | the motor vehicle; or
| 5 | | (16) (Blank). the murdered individual was 60 years of | 6 | | age or older and the death
resulted
from exceptionally | 7 | | brutal or heinous behavior indicative of wanton cruelty; or
| 8 | | (17) (Blank). the murdered individual was a disabled | 9 | | person and the defendant knew
or
should have known that the | 10 | | murdered individual was disabled. For purposes of
this | 11 | | paragraph (17), "disabled person" means a person who | 12 | | suffers from a
permanent physical or mental impairment | 13 | | resulting from disease, an injury,
a functional disorder, | 14 | | or a congenital condition that renders the person
incapable | 15 | | of
adequately providing for his or her own health or | 16 | | personal care; or
| 17 | | (18) (Blank). the murder was committed by reason of any | 18 | | person's activity as a
community policing volunteer or to | 19 | | prevent any person from engaging in activity
as a community | 20 | | policing volunteer; or
| 21 | | (19) (Blank). the murdered individual was subject to an | 22 | | order of protection and the
murder was committed by a | 23 | | person against whom the same order of protection was
issued | 24 | | under the Illinois Domestic Violence Act of 1986; or
| 25 | | (20) (Blank). the murdered individual was known by the | 26 | | defendant to be a teacher or
other person employed in any |
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| 1 | | school and the teacher or other employee is upon
the | 2 | | grounds of a school or grounds adjacent to a school, or is | 3 | | in any part of a
building used for school purposes; or
| 4 | | (21) (Blank). the murder was committed by the defendant | 5 | | in connection with or as
a
result of the offense of | 6 | | terrorism as defined in Section 29D-14.9 of this
Code.
| 7 | | (b-5) Aggravating Factor; Natural Life Imprisonment. A | 8 | | defendant who has been found guilty of first degree murder and | 9 | | who at the time of the commission of the offense had attained | 10 | | the age of 18 years or more may be sentenced to natural life | 11 | | imprisonment if
(i) the murdered individual was a physician, | 12 | | physician assistant, psychologist, nurse, or advanced practice | 13 | | nurse, (ii) the defendant knew or should have
known that the | 14 | | murdered individual was a physician, physician assistant, | 15 | | psychologist, nurse, or advanced practice nurse, and (iii) the | 16 | | murdered individual was killed in the course of acting in his | 17 | | or her capacity as a physician, physician assistant, | 18 | | psychologist, nurse, or advanced practice nurse, or to prevent | 19 | | him or her from acting in that capacity, or in retaliation
for | 20 | | his or her acting in that capacity. | 21 | | (c) Consideration of factors in Aggravation and | 22 | | Mitigation.
| 23 | | The court shall consider, or shall instruct the jury to | 24 | | consider any
aggravating and any mitigating factors which are | 25 | | relevant to the
imposition of the death penalty. Aggravating | 26 | | factors may include but
need not be limited to those factors |
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| 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:
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| 1 | | (1) before the jury that determined the defendant's | 2 | | guilt; or
| 3 | | (2) before a jury impanelled for the purpose of the | 4 | | proceeding if:
| 5 | | A. the defendant was convicted upon a plea of | 6 | | guilty; or
| 7 | | B. the defendant was convicted after a trial before | 8 | | the court
sitting without a jury; or
| 9 | | C. the court for good cause shown discharges the | 10 | | jury that
determined the defendant's guilt; or
| 11 | | (3) before the court alone if the defendant waives a | 12 | | jury
for the separate proceeding.
| 13 | | (e) Evidence and Argument.
| 14 | | During the proceeding any information relevant to any of | 15 | | the factors
set forth in subsection (b) may be presented by | 16 | | either the State or the
defendant under the rules governing the | 17 | | admission of evidence at
criminal trials. Any information | 18 | | relevant to any additional aggravating
factors or any | 19 | | mitigating factors indicated in subsection (c) may be
presented | 20 | | by the State or defendant regardless of its admissibility
under | 21 | | the rules governing the admission of evidence at criminal | 22 | | trials.
The State and the defendant shall be given fair | 23 | | opportunity to rebut any
information received at the hearing.
| 24 | | (f) Proof.
| 25 | | The burden of proof of establishing the existence of any of | 26 | | the
factors set forth in subsection (b) is on the State and |
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| 1 | | shall not be
satisfied unless established beyond a reasonable | 2 | | doubt.
| 3 | | (g) Procedure - Jury.
| 4 | | If at the separate sentencing proceeding the jury finds | 5 | | that none of
the factors set forth in subsection (b) exists, | 6 | | the court shall sentence
the defendant to a term of | 7 | | imprisonment under Chapter V of the Unified
Code of | 8 | | Corrections. If there is a unanimous finding by the jury that
| 9 | | one or more of the factors set forth in subsection (b) exist, | 10 | | the jury
shall consider aggravating and mitigating factors as | 11 | | instructed by the
court and shall determine whether the | 12 | | sentence of death shall be
imposed. If the jury determines | 13 | | unanimously, after weighing the factors in
aggravation and | 14 | | mitigation, that death is the appropriate sentence, the court | 15 | | shall sentence the defendant to death.
If the court does not | 16 | | concur with the jury determination that death is the
| 17 | | appropriate sentence, the court shall set forth reasons in | 18 | | writing
including what facts or circumstances the court relied | 19 | | upon,
along with any relevant
documents, that compelled the | 20 | | court to non-concur with the sentence. This
document and any | 21 | | attachments shall be part of the record for appellate
review. | 22 | | The court shall be bound by the jury's sentencing | 23 | | determination.
| 24 | | If after weighing the factors in aggravation and | 25 | | mitigation, one or more
jurors determines that death is not the | 26 | | appropriate sentence,
the
court shall sentence the defendant to |
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| 1 | | a term of imprisonment under
Chapter V of the Unified Code of | 2 | | Corrections.
| 3 | | (h) Procedure - No Jury.
| 4 | | In a proceeding before the court alone, if the court finds | 5 | | that none
of the factors found in subsection (b) exists, the | 6 | | court shall sentence
the defendant to a term of imprisonment | 7 | | under Chapter V of the Unified
Code of Corrections.
| 8 | | If the Court determines that one or more of the factors set | 9 | | forth in
subsection (b) exists, the Court shall consider any | 10 | | aggravating and
mitigating factors as indicated in subsection | 11 | | (c). If the Court
determines, after weighing the factors in | 12 | | aggravation and mitigation, that
death is the appropriate | 13 | | sentence, the Court shall sentence the
defendant to death.
| 14 | | If
the court finds that death is not the
appropriate | 15 | | sentence, the
court shall sentence the defendant to a term of | 16 | | imprisonment under
Chapter V of the Unified Code of | 17 | | Corrections.
| 18 | | (h-5) Decertification as a capital case.
| 19 | | In a case in which the defendant has been found guilty of | 20 | | first degree murder
by a judge or jury, or a case on remand for | 21 | | resentencing, and the State seeks
the death penalty as an | 22 | | appropriate
sentence,
on the court's own motion or the written | 23 | | motion of the defendant, the court
may decertify the case as a | 24 | | death penalty case if the court finds that the only
evidence | 25 | | supporting the defendant's conviction is the uncorroborated | 26 | | testimony
of an informant witness, as defined in Section 115-21 |
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| 1 | | of the Code of Criminal
Procedure of 1963, concerning the | 2 | | confession or admission of the defendant or
that the sole | 3 | | evidence against the defendant is a single eyewitness or single
| 4 | | accomplice without any other corroborating evidence.
If the | 5 | | court decertifies the case as a capital case
under either of | 6 | | the grounds set forth above, the court shall issue a
written | 7 | | finding. The State may pursue its right to appeal the | 8 | | decertification
pursuant to Supreme Court Rule 604(a)(1). If | 9 | | the court does not
decertify the case as a capital case, the | 10 | | matter shall proceed to the
eligibility phase of the sentencing | 11 | | hearing.
| 12 | | (i) Appellate Procedure.
| 13 | | The conviction and sentence of death shall be subject to | 14 | | automatic
review by the Supreme Court. Such review shall be in | 15 | | accordance with
rules promulgated by the Supreme Court.
The | 16 | | Illinois Supreme Court may overturn the death sentence, and | 17 | | order the
imposition of imprisonment under Chapter V of the | 18 | | Unified Code of
Corrections if the court finds that the death | 19 | | sentence is fundamentally
unjust as applied to the particular | 20 | | case.
If the Illinois Supreme Court finds that the
death | 21 | | sentence is fundamentally unjust as applied to the particular | 22 | | case,
independent of any procedural grounds for relief, the | 23 | | Illinois Supreme Court
shall issue a written opinion explaining | 24 | | this finding.
| 25 | | (j) Disposition of reversed death sentence.
| 26 | | In the event that the death penalty in this Act is held to |
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| 1 | | be
unconstitutional by the Supreme Court of the United States | 2 | | or of the
State of Illinois, any person convicted of first | 3 | | degree murder shall be
sentenced by the court to a term of | 4 | | imprisonment under Chapter V of the
Unified Code of | 5 | | Corrections.
| 6 | | In the event that any death sentence pursuant to the | 7 | | sentencing
provisions of this Section is declared | 8 | | unconstitutional by the Supreme
Court of the United States or | 9 | | of the State of Illinois, the court having
jurisdiction over a | 10 | | person previously sentenced to death shall cause the
defendant | 11 | | to be brought before the court, and the court shall sentence
| 12 | | the defendant to a term of imprisonment under Chapter V of the
| 13 | | Unified Code of Corrections.
| 14 | | (k) Guidelines for seeking the death penalty.
| 15 | | The Attorney General and
State's Attorneys Association | 16 | | shall consult on voluntary guidelines for
procedures governing | 17 | | whether or not to seek the death penalty. The guidelines
do not
| 18 | | have the force of law and are only advisory in nature.
| 19 | | (Source: P.A. 96-710, eff. 1-1-10; 96-1475, eff. 1-1-11.)
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