98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB1034

 

Introduced 1/24/2013, by Sen. John J. Cullerton

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/9-1  from Ch. 38, par. 9-1

    Amends the Criminal Code of 2012. Makes a technical change in a Section concerning first degree murder.


LRB098 05257 RLC 35289 b

 

 

A BILL FOR

 

SB1034LRB098 05257 RLC 35289 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by changing
5Section 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 -
8Exceptions - Separate Hearings - Proof - Findings - Appellate
9procedures - Reversals.
10    (a) A person who kills an individual without lawful
11justification commits first degree murder if, in performing the
12the 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
22commission of the offense has attained the age of 18 or more
23and who has been found guilty of first degree murder may be

 

 

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1sentenced to death if:
2        (1) the murdered individual was a peace officer or
3    fireman killed in the course of performing his official
4    duties, to prevent the performance of his official duties,
5    or in retaliation for performing his official duties, and
6    the defendant knew or should have known that the murdered
7    individual was a peace officer or fireman; or
8        (2) the murdered individual was an employee of an
9    institution or facility of the Department of Corrections,
10    or any similar local correctional agency, killed in the
11    course of performing his official duties, to prevent the
12    performance of his official duties, or in retaliation for
13    performing his official duties, or the murdered individual
14    was an inmate at such institution or facility and was
15    killed on the grounds thereof, or the murdered individual
16    was otherwise present in such institution or facility with
17    the knowledge and approval of the chief administrative
18    officer thereof; or
19        (3) the defendant has been convicted of murdering two
20    or more individuals under subsection (a) of this Section or
21    under any law of the United States or of any state which is
22    substantially similar to subsection (a) of this Section
23    regardless of whether the deaths occurred as the result of
24    the same act or of several related or unrelated acts so
25    long as the deaths were the result of either an intent to
26    kill more than one person or of separate acts which the

 

 

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1    defendant knew would cause death or create a strong
2    probability of death or great bodily harm to the murdered
3    individual or another; or
4        (4) the murdered individual was killed as a result of
5    the hijacking of an airplane, train, ship, bus or other
6    public conveyance; or
7        (5) the defendant committed the murder pursuant to a
8    contract, agreement or understanding by which he was to
9    receive money or anything of value in return for committing
10    the murder or procured another to commit the murder for
11    money or anything of value; or
12        (6) the murdered individual was killed in the course of
13    another felony if:
14            (a) the murdered individual:
15                (i) was actually killed by the defendant, or
16                (ii) received physical injuries personally
17            inflicted by the defendant substantially
18            contemporaneously with physical injuries caused by
19            one or more persons for whose conduct the defendant
20            is legally accountable under Section 5-2 of this
21            Code, and the physical injuries inflicted by
22            either the defendant or the other person or persons
23            for whose conduct he is legally accountable caused
24            the death of the murdered individual; and
25            (b) in performing the acts which caused the death
26        of the murdered individual or which resulted in

 

 

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1        physical injuries personally inflicted by the
2        defendant on the murdered individual under the
3        circumstances of subdivision (ii) of subparagraph (a)
4        of paragraph (6) of subsection (b) of this Section, the
5        defendant acted with the intent to kill the murdered
6        individual or with the knowledge that his acts created
7        a strong probability of death or great bodily harm to
8        the murdered individual or another; and
9            (c) the other felony was an inherently violent
10        crime or the attempt to commit an inherently violent
11        crime. In this subparagraph (c), "inherently violent
12        crime" includes, but is not limited to, armed robbery,
13        robbery, predatory criminal sexual assault of a child,
14        aggravated criminal sexual assault, aggravated
15        kidnapping, aggravated vehicular hijacking, aggravated
16        arson, aggravated stalking, residential burglary, and
17        home invasion; or
18        (7) the murdered individual was under 12 years of age
19    and the death resulted from exceptionally brutal or heinous
20    behavior indicative of wanton cruelty; or
21        (8) the defendant committed the murder with intent to
22    prevent the murdered individual from testifying or
23    participating in any criminal investigation or prosecution
24    or giving material assistance to the State in any
25    investigation or prosecution, either against the defendant
26    or another; or the defendant committed the murder because

 

 

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1    the murdered individual was a witness in any prosecution or
2    gave material assistance to the State in any investigation
3    or prosecution, either against the defendant or another;
4    for purposes of this paragraph (8), "participating in any
5    criminal investigation or prosecution" is intended to
6    include those appearing in the proceedings in any capacity
7    such as trial judges, prosecutors, defense attorneys,
8    investigators, witnesses, or jurors; or
9        (9) the defendant, while committing an offense
10    punishable under Sections 401, 401.1, 401.2, 405, 405.2,
11    407 or 407.1 or subsection (b) of Section 404 of the
12    Illinois Controlled Substances Act, or while engaged in a
13    conspiracy or solicitation to commit such offense,
14    intentionally killed an individual or counseled,
15    commanded, induced, procured or caused the intentional
16    killing of the murdered individual; or
17        (10) the defendant was incarcerated in an institution
18    or facility of the Department of Corrections at the time of
19    the murder, and while committing an offense punishable as a
20    felony under Illinois law, or while engaged in a conspiracy
21    or solicitation to commit such offense, intentionally
22    killed an individual or counseled, commanded, induced,
23    procured or caused the intentional killing of the murdered
24    individual; or
25        (11) the murder was committed in a cold, calculated and
26    premeditated manner pursuant to a preconceived plan,

 

 

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1    scheme or design to take a human life by unlawful means,
2    and the conduct of the defendant created a reasonable
3    expectation that the death of a human being would result
4    therefrom; or
5        (12) the murdered individual was an emergency medical
6    technician - ambulance, emergency medical technician -
7    intermediate, emergency medical technician - paramedic,
8    ambulance driver, or other medical assistance or first aid
9    personnel, employed by a municipality or other
10    governmental unit, killed in the course of performing his
11    official duties, to prevent the performance of his official
12    duties, or in retaliation for performing his official
13    duties, and the defendant knew or should have known that
14    the murdered individual was an emergency medical
15    technician - ambulance, emergency medical technician -
16    intermediate, emergency medical technician - paramedic,
17    ambulance driver, or other medical assistance or first aid
18    personnel; or
19        (13) the defendant was a principal administrator,
20    organizer, or leader of a calculated criminal drug
21    conspiracy consisting of a hierarchical position of
22    authority superior to that of all other members of the
23    conspiracy, and the defendant counseled, commanded,
24    induced, procured, or caused the intentional killing of the
25    murdered person; or
26        (14) the murder was intentional and involved the

 

 

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1    infliction of torture. For the purpose of this Section
2    torture means the infliction of or subjection to extreme
3    physical pain, motivated by an intent to increase or
4    prolong the pain, suffering or agony of the victim; or
5        (15) the murder was committed as a result of the
6    intentional discharge of a firearm by the defendant from a
7    motor vehicle and the victim was not present within the
8    motor vehicle; or
9        (16) the murdered individual was 60 years of age or
10    older and the death resulted from exceptionally brutal or
11    heinous behavior indicative of wanton cruelty; or
12        (17) the murdered individual was a disabled person and
13    the defendant knew or should have known that the murdered
14    individual was disabled. For purposes of this paragraph
15    (17), "disabled person" means a person who suffers from a
16    permanent physical or mental impairment resulting from
17    disease, an injury, a functional disorder, or a congenital
18    condition that renders the person incapable of adequately
19    providing for his or her own health or personal care; or
20        (18) the murder was committed by reason of any person's
21    activity as a community policing volunteer or to prevent
22    any person from engaging in activity as a community
23    policing volunteer; or
24        (19) the murdered individual was subject to an order of
25    protection and the murder was committed by a person against
26    whom the same order of protection was issued under the

 

 

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1    Illinois Domestic Violence Act of 1986; or
2        (20) the murdered individual was known by the defendant
3    to be a teacher or other person employed in any school and
4    the teacher or other employee is upon the grounds of a
5    school or grounds adjacent to a school, or is in any part
6    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 terrorism
9    as defined in Section 29D-14.9 of this Code.
10    (b-5) Aggravating Factor; Natural Life Imprisonment. A
11defendant who has been found guilty of first degree murder and
12who at the time of the commission of the offense had attained
13the age of 18 years or more may be sentenced to natural life
14imprisonment if (i) the murdered individual was a physician,
15physician assistant, psychologist, nurse, or advanced practice
16nurse, (ii) the defendant knew or should have known that the
17murdered individual was a physician, physician assistant,
18psychologist, nurse, or advanced practice nurse, and (iii) the
19murdered individual was killed in the course of acting in his
20or her capacity as a physician, physician assistant,
21psychologist, nurse, or advanced practice nurse, or to prevent
22him or her from acting in that capacity, or in retaliation for
23his or her acting in that capacity.
24     (c) Consideration of factors in Aggravation and
25Mitigation.
26    The court shall consider, or shall instruct the jury to

 

 

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1consider any aggravating and any mitigating factors which are
2relevant to the imposition of the death penalty. Aggravating
3factors may include but need not be limited to those factors
4set forth in subsection (b). Mitigating factors may include but
5need not be limited to the following:
6        (1) the defendant has no significant history of prior
7    criminal activity;
8        (2) the murder was committed while the defendant was
9    under the influence of extreme mental or emotional
10    disturbance, although not such as to constitute a defense
11    to prosecution;
12        (3) the murdered individual was a participant in the
13    defendant's homicidal conduct or consented to the
14    homicidal act;
15        (4) the defendant acted under the compulsion of threat
16    or menace of the imminent infliction of death or great
17    bodily harm;
18        (5) the defendant was not personally present during
19    commission of the act or acts causing death;
20        (6) the defendant's background includes a history of
21    extreme emotional or physical abuse;
22        (7) the defendant suffers from a reduced mental
23    capacity.
24    (d) Separate sentencing hearing.
25    Where requested by the State, the court shall conduct a
26separate sentencing proceeding to determine the existence of

 

 

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1factors set forth in subsection (b) and to consider any
2aggravating 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 before
11        the court sitting without a jury; or
12            C. the court for good cause shown discharges the
13        jury that determined the defendant's guilt; or
14        (3) before the court alone if the defendant waives a
15    jury for the separate proceeding.
16    (e) Evidence and Argument.
17    During the proceeding any information relevant to any of
18the factors set forth in subsection (b) may be presented by
19either the State or the defendant under the rules governing the
20admission of evidence at criminal trials. Any information
21relevant to any additional aggravating factors or any
22mitigating factors indicated in subsection (c) may be presented
23by the State or defendant regardless of its admissibility under
24the rules governing the admission of evidence at criminal
25trials. The State and the defendant shall be given fair
26opportunity to rebut any information received at the hearing.

 

 

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1    (f) Proof.
2    The burden of proof of establishing the existence of any of
3the factors set forth in subsection (b) is on the State and
4shall not be satisfied unless established beyond a reasonable
5doubt.
6    (g) Procedure - Jury.
7    If at the separate sentencing proceeding the jury finds
8that none of the factors set forth in subsection (b) exists,
9the court shall sentence the defendant to a term of
10imprisonment under Chapter V of the Unified Code of
11Corrections. If there is a unanimous finding by the jury that
12one or more of the factors set forth in subsection (b) exist,
13the jury shall consider aggravating and mitigating factors as
14instructed by the court and shall determine whether the
15sentence of death shall be imposed. If the jury determines
16unanimously, after weighing the factors in aggravation and
17mitigation, that death is the appropriate sentence, the court
18shall sentence the defendant to death. If the court does not
19concur with the jury determination that death is the
20appropriate sentence, the court shall set forth reasons in
21writing including what facts or circumstances the court relied
22upon, along with any relevant documents, that compelled the
23court to non-concur with the sentence. This document and any
24attachments shall be part of the record for appellate review.
25The court shall be bound by the jury's sentencing
26determination.

 

 

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1    If after weighing the factors in aggravation and
2mitigation, one or more jurors determines that death is not the
3appropriate sentence, the court shall sentence the defendant to
4a term of imprisonment under Chapter V of the Unified Code of
5Corrections.
6    (h) Procedure - No Jury.
7    In a proceeding before the court alone, if the court finds
8that none of the factors found in subsection (b) exists, the
9court shall sentence the defendant to a term of imprisonment
10under Chapter V of the Unified Code of Corrections.
11    If the Court determines that one or more of the factors set
12forth in subsection (b) exists, the Court shall consider any
13aggravating and mitigating factors as indicated in subsection
14(c). If the Court determines, after weighing the factors in
15aggravation and mitigation, that death is the appropriate
16sentence, the Court shall sentence the defendant to death.
17    If the court finds that death is not the appropriate
18sentence, the court shall sentence the defendant to a term of
19imprisonment under Chapter V of the Unified Code of
20Corrections.
21    (h-5) Decertification as a capital case.
22    In a case in which the defendant has been found guilty of
23first degree murder by a judge or jury, or a case on remand for
24resentencing, and the State seeks the death penalty as an
25appropriate sentence, on the court's own motion or the written
26motion of the defendant, the court may decertify the case as a

 

 

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1death penalty case if the court finds that the only evidence
2supporting the defendant's conviction is the uncorroborated
3testimony of an informant witness, as defined in Section 115-21
4of the Code of Criminal Procedure of 1963, concerning the
5confession or admission of the defendant or that the sole
6evidence against the defendant is a single eyewitness or single
7accomplice without any other corroborating evidence. If the
8court decertifies the case as a capital case under either of
9the grounds set forth above, the court shall issue a written
10finding. The State may pursue its right to appeal the
11decertification pursuant to Supreme Court Rule 604(a)(1). If
12the court does not decertify the case as a capital case, the
13matter shall proceed to the eligibility phase of the sentencing
14hearing.
15    (i) Appellate Procedure.
16    The conviction and sentence of death shall be subject to
17automatic review by the Supreme Court. Such review shall be in
18accordance with rules promulgated by the Supreme Court. The
19Illinois Supreme Court may overturn the death sentence, and
20order the imposition of imprisonment under Chapter V of the
21Unified Code of Corrections if the court finds that the death
22sentence is fundamentally unjust as applied to the particular
23case. If the Illinois Supreme Court finds that the death
24sentence is fundamentally unjust as applied to the particular
25case, independent of any procedural grounds for relief, the
26Illinois Supreme Court shall issue a written opinion explaining

 

 

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1this finding.
2    (j) Disposition of reversed death sentence.
3    In the event that the death penalty in this Act is held to
4be unconstitutional by the Supreme Court of the United States
5or of the State of Illinois, any person convicted of first
6degree murder shall be sentenced by the court to a term of
7imprisonment under Chapter V of the Unified Code of
8Corrections.
9    In the event that any death sentence pursuant to the
10sentencing provisions of this Section is declared
11unconstitutional by the Supreme Court of the United States or
12of the State of Illinois, the court having jurisdiction over a
13person previously sentenced to death shall cause the defendant
14to be brought before the court, and the court shall sentence
15the defendant to a term of imprisonment under Chapter V of the
16Unified Code of Corrections.
17    (k) Guidelines for seeking the death penalty.
18    The Attorney General and State's Attorneys Association
19shall consult on voluntary guidelines for procedures governing
20whether or not to seek the death penalty. The guidelines do not
21have the force of law and are only advisory in nature.
22(Source: P.A. 96-710, eff. 1-1-10; 96-1475, eff. 1-1-11.)