093_HB0104

 
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 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        (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  official
27        duties,  to  prevent  the  performance  of  his  official
28        duties,  or  in  retaliation  for performing his official
29        duties, and the defendant knew or should have known  that
30        the  murdered  individual was a peace officer or fireman;
31        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
 
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 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
 
                            -8-      LRB093 03333 RLC 03351 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 issue
26    is raised by the defendant, the  jury  shall  also  determine
27    whether  the  defendant  is  mentally  retarded as defined by
28    Section 5-2-7 of the Unified Code of  Corrections.    If  the
29    jury  determines  unanimously  that  there  are no mitigating
30    factors sufficient to preclude the imposition  of  the  death
31    sentence, the court shall sentence the defendant to death. If
32    the  jury determines that the defendant is mentally retarded,
33    the  court  shall  sentence  the  defendant  to  a  term   of
34    imprisonment   under   Chapter  V  of  the  Unified  Code  of
 
                            -9-      LRB093 03333 RLC 03351 b
 1    Corrections.
 2        Unless the jury  unanimously  finds  that  there  are  no
 3    mitigating  factors  sufficient to preclude the imposition of
 4    the death sentence the court shall sentence the defendant  to
 5    a term of imprisonment under Chapter V of the Unified Code of
 6    Corrections.
 7        (h)  Procedure - No Jury.
 8        In  a  proceeding  before  the  court alone, if the court
 9    finds that none  of  the  factors  found  in  subsection  (b)
10    exists,  the  court shall sentence the defendant to a term of
11    imprisonment  under  Chapter  V  of   the  Unified  Code   of
12    Corrections.
13        If  the  Court determines that one or more of the factors
14    set forth in subsection (b) exists, the Court shall  consider
15    any  aggravating  and  mitigating  factors  as  indicated  in
16    subsection  (c).   If  the Court determines that there are no
17    mitigating factors sufficient to preclude the  imposition  of
18    the death sentence, the Court shall sentence the defendant to
19    death. If the court determines that the defendant is mentally
20    retarded  as  defined by Section 5-2-7 of the Unified Code of
21    Corrections after the issue has been raised by the defendant,
22    the  court  shall  sentence  the  defendant  to  a  term   of
23    imprisonment   under   Chapter  V  of  the  Unified  Code  of
24    Corrections.
25        Unless the court  finds  that  there  are  no  mitigating
26    factors sufficient to preclude the imposition of the sentence
27    of death, the court shall sentence the defendant to a term of
28    imprisonment   under   Chapter  V  of  the  Unified  Code  of
29    Corrections.
30        (i)  Appellate Procedure.
31        The conviction and sentence of death shall be subject  to
32    automatic  review by the Supreme Court.  Such review shall be
33    in accordance with rules promulgated by the Supreme Court.
34        (j)  Disposition of reversed death sentence.
 
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 1        In the event that the death penalty in this Act  is  held
 2    to  be  unconstitutional  by  the Supreme Court of the United
 3    States or of the State of Illinois, any person  convicted  of
 4    first degree murder shall be sentenced by the court to a term
 5    of  imprisonment  under  Chapter  V  of  the  Unified Code of
 6    Corrections.
 7        In the event that any  death  sentence  pursuant  to  the
 8    sentencing   provisions   of   this   Section   is   declared
 9    unconstitutional by the Supreme Court of the United States or
10    of  the State of Illinois, the court having jurisdiction over
11    a person  previously  sentenced  to  death  shall  cause  the
12    defendant to be brought before the court, and the court shall
13    sentence the  defendant  to  a  term  of  imprisonment  under
14    Chapter V of the Unified Code of Corrections.
15    (Source: P.A.  91-357,  eff.  7-29-99;  91-434,  eff. 1-1-00;
16    92-854, eff. 12-5-02.)

17        Section 10.  The Unified Code of Corrections  is  amended
18    by adding Section 5-2-7 as follows:

19        (730 ILCS 5/5-2-7 new)
20        Sec. 5-2-7.  Fitness to be executed.
21        (a)  A  person  is  unfit to be executed if the person is
22    mentally  retarded.  For  the  purposes  of   this   Section,
23    "mentally retarded" means:
24             (1)  having    significantly   sub-average   general
25        intellectual functioning as  evidenced  by  a  functional
26        intelligence quotient (I.Q.) of 70 or below; and
27             (2)  having   significant   deficits   in   adaptive
28        behavior  in  at  least  2  of the following skill areas:
29        communication, self-care, social or interpersonal skills,
30        home  living,  self-direction,  academics,   health   and
31        safety, use of community resources, and work.
32        The  mental  retardation must have been manifested during
 
                            -11-     LRB093 03333 RLC 03351 b
 1    the developmental period, or by 18 years of age.
 2        (b)  The question of fitness to be executed may be raised
 3    after pronouncement of the death sentence. The procedure  for
 4    raising  and  deciding the question shall be the same as that
 5    provided for raising and deciding the question of fitness  to
 6    stand trial subject to the following specific provisions:
 7             (1)  the question shall be raised by motion filed in
 8        the sentencing court;
 9             (2)  the question shall be decided by the court;
10             (3)  the  burden  of  proving  that  the offender is
11        unfit to be executed is on the offender;
12             (4)  if  the  offender  is  found  to  be   mentally
13        retarded,  the  court  must  resentence  the  offender to
14        natural life imprisonment under Chapter V of the  Unified
15        Code of Corrections.
16        (c)  If  the question of mental retardation was raised at
17    the offender's sentencing  hearing  and  the  trier  of  fact
18    expressly  found  that the offender was not mentally retarded
19    as required by subsections (g) and (h) of Section 9-1 of  the
20    Criminal  Code  of 1961, the trier of fact's determination on
21    that issue shall be presumed correct unless it is  proven  by
22    the  offender  to  be  against  the  manifest  weight  of the
23    evidence.

24        Section 99.  Effective date.  This Act takes effect  upon
25    becoming law.