Full Text of SB2078 103rd General Assembly
SB2078 103RD GENERAL ASSEMBLY |
| | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 SB2078 Introduced 2/9/2023, by Sen. Robert Peters SYNOPSIS AS INTRODUCED: |
| 720 ILCS 5/9-1 | from Ch. 38, par. 9-1 |
720 ILCS 5/9-2 | from Ch. 38, par. 9-2 |
735 ILCS 5/2-1401 | from Ch. 110, par. 2-1401 |
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Amends the Criminal Code of 2012. Eliminates the felony murder provisions from the first degree murder statute. Provides that a person commits second degree murder when he or she, acting alone or with one or more participants, commits or attempts to commit a forcible felony, other than first degree murder, and in the course of or in furtherance of the crime or flight from the crime, he or she or another participant causes the death of a person, other than one of the participants. Provides that it is an affirmative defense to the charge that the defendant: (1) was not the only participant in the underlying crime; (2) did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid in the commission of the crime; (3) was not armed with a deadly weapon; and (4) did not engage himself or herself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury. Amends the Code of Civil Procedure. Provides for relief from judgment for defendants convicted of first degree murder committed before the effective date of the amendatory Act. Provides that nothing in these provisions prevents a movant from applying for any other relief.
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| | 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 2012 is amended by | 5 | | changing Sections 9-1 and 9-2 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 or she 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 or she knows that such acts create a strong | 17 | | probability of death or
great bodily harm to that | 18 | | individual or another; or
| 19 | | (3) (Blank). he or she, acting alone or with one or | 20 | | more participants, commits or attempts to commit a | 21 | | forcible felony other than second degree murder, and in | 22 | | the course of or in furtherance of such crime or flight | 23 | | therefrom, he or she or another participant causes the |
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| 1 | | death of a person.
| 2 | | (b) Aggravating Factors. A defendant who at the time of | 3 | | the
commission of the offense has attained the age of 18 or | 4 | | more and who has
been found guilty of first degree murder may | 5 | | be sentenced to death if:
| 6 | | (1) the murdered individual was a peace officer or | 7 | | fireman killed in
the course of performing his official | 8 | | duties, to prevent the performance
of his or her official | 9 | | duties, or in retaliation for performing his or her | 10 | | official
duties, and the defendant knew or
should have | 11 | | known that the murdered individual was a peace officer or
| 12 | | fireman; or
| 13 | | (2) the murdered individual was an employee of an | 14 | | institution or
facility of the Department of Corrections, | 15 | | or any similar local
correctional agency, killed in the | 16 | | course of performing his or her official
duties, to | 17 | | prevent the performance of his or her official duties, or | 18 | | in
retaliation for performing his or her official duties, | 19 | | or the murdered
individual was an inmate at such | 20 | | institution or facility and was killed on the
grounds | 21 | | thereof, or the murdered individual was otherwise present | 22 | | in such
institution or facility with the knowledge and | 23 | | approval of the chief
administrative officer thereof; or
| 24 | | (3) the defendant has been convicted of murdering two | 25 | | or more
individuals under subsection (a) of this Section | 26 | | or under any law of the
United States or of any state which |
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| 1 | | is substantially similar to
subsection (a) of this Section | 2 | | regardless of whether the deaths
occurred as the result of | 3 | | the same act or of several related or
unrelated acts so | 4 | | long as the deaths were the result of either an intent
to | 5 | | kill more than one person or of separate acts which
the | 6 | | defendant knew would cause death or create a strong | 7 | | probability of
death or great bodily harm to the murdered | 8 | | individual or another; or
| 9 | | (4) the murdered individual was killed as a result of | 10 | | the
hijacking of an airplane, train, ship, bus, or other | 11 | | public conveyance; or
| 12 | | (5) the defendant committed the murder pursuant to a | 13 | | contract,
agreement, or understanding by which he or she | 14 | | was to receive money or anything
of value in return for | 15 | | committing the murder or procured another to
commit the | 16 | | murder for money or anything of value; or
| 17 | | (6) (blank); or the murdered individual was killed in | 18 | | the course of another 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 | 25 | | defendant is legally accountable under
Section 5-2 | 26 | | of this Code, and the physical injuries inflicted |
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| 1 | | by either
the defendant or the other person or | 2 | | persons for whose conduct he is legally
| 3 | | accountable caused the death of the murdered | 4 | | individual; and
| 5 | | (b) in performing the acts which caused the death | 6 | | of the murdered
individual or which resulted in | 7 | | physical injuries personally inflicted by
the | 8 | | defendant on the murdered individual under the | 9 | | circumstances of
subdivision (ii) of subparagraph (a) | 10 | | of paragraph (6) of subsection (b) of
this Section, | 11 | | the defendant acted with the intent to kill the | 12 | | murdered
individual or with the knowledge that his | 13 | | acts created a strong probability
of death or great | 14 | | bodily harm to the murdered individual or another; and
| 15 | | (c) the other felony was an inherently violent | 16 | | crime
or the attempt to commit an inherently
violent | 17 | | crime.
In this subparagraph (c), "inherently violent | 18 | | crime" includes, but is not
limited to, armed robbery, | 19 | | robbery, predatory criminal sexual assault of a
child,
| 20 | | aggravated criminal sexual assault, aggravated | 21 | | kidnapping, aggravated vehicular
hijacking,
aggravated | 22 | | arson, aggravated stalking, residential burglary, and | 23 | | home
invasion; or
| 24 | | (7) the murdered individual was under 12 years of age | 25 | | and the
death resulted from exceptionally brutal or | 26 | | heinous behavior indicative of
wanton cruelty; or
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| 1 | | (8) the defendant committed the murder with intent to
| 2 | | prevent the murdered individual from testifying or | 3 | | participating in any
criminal investigation or prosecution
| 4 | | or giving material assistance to the State in any | 5 | | investigation or
prosecution, either against the defendant | 6 | | or another; or the defendant
committed the murder because | 7 | | the murdered individual was a witness in any
prosecution | 8 | | or gave material assistance to the State in any | 9 | | investigation
or prosecution, either against the defendant | 10 | | or another;
for purposes of this paragraph (8), | 11 | | "participating in any criminal
investigation
or | 12 | | prosecution" is intended to include those appearing in the | 13 | | proceedings in
any capacity such as trial judges, | 14 | | prosecutors, defense attorneys,
investigators, witnesses, | 15 | | or jurors; or
| 16 | | (9) the defendant, while committing an offense | 17 | | punishable under
Sections 401, 401.1, 401.2, 405, 405.2, | 18 | | 407 or 407.1 or subsection (b) of
Section
404 of the | 19 | | Illinois Controlled Substances Act, or while engaged in a
| 20 | | conspiracy or solicitation to commit such offense, | 21 | | intentionally killed an
individual or counseled, | 22 | | commanded, induced, procured or caused the
intentional | 23 | | killing of the murdered individual; or
| 24 | | (10) the defendant was incarcerated in an institution | 25 | | or facility of
the Department of Corrections at the time | 26 | | of the murder, and while
committing an offense punishable |
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| 1 | | as a felony under Illinois law, or while
engaged in a | 2 | | conspiracy or solicitation to commit such offense,
| 3 | | intentionally killed an individual or counseled, | 4 | | commanded, induced,
procured or caused the intentional | 5 | | killing of the murdered individual; or
| 6 | | (11) the murder was committed in a cold, calculated | 7 | | and premeditated
manner pursuant to a preconceived plan, | 8 | | scheme or design to take a human
life by unlawful means, | 9 | | and the conduct of the defendant created a
reasonable | 10 | | expectation that the death of a human being would result
| 11 | | therefrom; or
| 12 | | (12) the murdered individual was an emergency medical | 13 | | technician -
ambulance, emergency medical technician - | 14 | | intermediate, emergency medical
technician - paramedic, | 15 | | ambulance driver, or
other medical assistance or first aid | 16 | | personnel, employed by a municipality
or other | 17 | | governmental unit, killed in the course of performing his | 18 | | official
duties, to prevent the performance of his | 19 | | official duties, or in retaliation
for performing his | 20 | | official duties, and the defendant knew or should have
| 21 | | known that the murdered individual was an emergency | 22 | | medical technician -
ambulance, emergency medical | 23 | | technician - intermediate, emergency medical
technician - | 24 | | paramedic, ambulance driver, or
other medical assistance | 25 | | or first aid personnel; or
| 26 | | (13) the defendant was a principal administrator, |
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| 1 | | organizer, or leader
of a calculated criminal drug | 2 | | conspiracy consisting of a hierarchical position
of | 3 | | authority superior to that of all other members of the | 4 | | conspiracy, and the
defendant counseled, commanded, | 5 | | induced, procured, or caused the intentional
killing of | 6 | | the murdered person;
or
| 7 | | (14) the murder was intentional and involved the | 8 | | infliction of torture.
For
the purpose of this Section | 9 | | torture means the infliction of or subjection to
extreme | 10 | | physical pain, motivated by an intent to increase or | 11 | | prolong the pain,
suffering or agony of the victim; or
| 12 | | (15) the murder was committed as a result of the | 13 | | intentional discharge
of a firearm by the defendant from a | 14 | | motor vehicle and the victim was not
present within the | 15 | | motor vehicle; or
| 16 | | (16) the murdered individual was 60 years of age or | 17 | | older and the death
resulted
from exceptionally brutal or | 18 | | heinous behavior indicative of wanton cruelty; or
| 19 | | (17) the murdered individual was a person with a | 20 | | disability and the defendant knew
or
should have known | 21 | | that the murdered individual was a person with a | 22 | | disability. For purposes of
this paragraph (17), "person | 23 | | with a disability" means a person who suffers from a
| 24 | | permanent physical or mental impairment resulting from | 25 | | disease, an injury,
a functional disorder, or a congenital | 26 | | condition that renders the person
incapable of
adequately |
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| 1 | | providing for his or her own health or personal care; or
| 2 | | (18) the murder was committed by reason of any | 3 | | person's activity as a
community policing volunteer or to | 4 | | prevent any person from engaging in activity
as a | 5 | | community policing volunteer; or
| 6 | | (19) the murdered individual was subject to an order | 7 | | of protection and the
murder was committed by a person | 8 | | against whom the same order of protection was
issued under | 9 | | the Illinois Domestic Violence Act of 1986; or
| 10 | | (20) the murdered individual was known by the | 11 | | defendant to be a teacher or
other person employed in any | 12 | | school and the teacher or other employee is upon
the | 13 | | grounds of a school or grounds adjacent to a school, or is | 14 | | in any part of a
building used for school purposes; or
| 15 | | (21) the murder was committed by the defendant in | 16 | | connection with or as
a
result of the offense of terrorism | 17 | | as defined in Section 29D-14.9 of this
Code; or
| 18 | | (22) the murdered individual was a member of a | 19 | | congregation engaged in prayer or other religious | 20 | | activities at a church, synagogue, mosque, or other | 21 | | building, structure, or place used for religious worship. | 22 | | (b-5) Aggravating Factor; Natural Life Imprisonment. A | 23 | | defendant who has been found guilty of first degree murder and | 24 | | who at the time of the commission of the offense had attained | 25 | | the age of 18 years or more may be sentenced to natural life | 26 | | imprisonment if
(i) the murdered individual was a physician, |
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| 1 | | physician assistant, psychologist, nurse, or advanced practice | 2 | | registered nurse, (ii) the defendant knew or should have
known | 3 | | that the murdered individual was a physician, physician | 4 | | assistant, psychologist, nurse, or advanced practice | 5 | | registered nurse, and (iii) the murdered individual was killed | 6 | | in the course of acting in his or her capacity as a physician, | 7 | | physician assistant, psychologist, nurse, or advanced practice | 8 | | registered nurse, or to prevent him or her from acting in that | 9 | | capacity, or in retaliation
for his or her acting in that | 10 | | capacity. | 11 | | (c) Consideration of factors in Aggravation and | 12 | | Mitigation.
| 13 | | The court shall consider, or shall instruct the jury to | 14 | | consider any
aggravating and any mitigating factors which are | 15 | | relevant to the
imposition of the death penalty. Aggravating | 16 | | factors may include but
need not be limited to those factors | 17 | | set forth in subsection (b).
Mitigating factors may include | 18 | | but need not be limited to the following:
| 19 | | (1) the defendant has no significant history of prior | 20 | | criminal
activity;
| 21 | | (2) the murder was committed while the defendant was | 22 | | under
the influence of extreme mental or emotional | 23 | | disturbance, although not such
as to constitute a defense | 24 | | to prosecution;
| 25 | | (3) the murdered individual was a participant in the
| 26 | | defendant's homicidal conduct or consented to the |
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| 1 | | homicidal act;
| 2 | | (4) the defendant acted under the compulsion of threat | 3 | | or
menace of the imminent infliction of death or great | 4 | | bodily harm;
| 5 | | (5) the defendant was not personally present during
| 6 | | commission of the act or acts causing death;
| 7 | | (6) the defendant's background includes a history of | 8 | | extreme emotional
or physical abuse;
| 9 | | (7) the defendant suffers from a reduced mental | 10 | | capacity.
| 11 | | Provided, however, that an action that does not otherwise | 12 | | mitigate first degree murder cannot qualify as a mitigating | 13 | | factor for first degree murder because of the discovery, | 14 | | knowledge, or disclosure of the victim's sexual orientation as | 15 | | defined in Section 1-103 of the Illinois Human Rights Act. | 16 | | (d) Separate sentencing hearing.
| 17 | | Where requested by the State, the court shall conduct a | 18 | | separate
sentencing proceeding to determine the existence of | 19 | | factors set forth in
subsection (b) and to consider any | 20 | | aggravating or mitigating factors as
indicated in subsection | 21 | | (c). The proceeding shall be conducted:
| 22 | | (1) before the jury that determined the defendant's | 23 | | guilt; or
| 24 | | (2) before a jury impanelled for the purpose of the | 25 | | proceeding if:
| 26 | | A. the defendant was convicted upon a plea of |
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| 1 | | guilty; or
| 2 | | B. the defendant was convicted after a trial | 3 | | before the court
sitting without a jury; or
| 4 | | C. the court for good cause shown discharges the | 5 | | jury that
determined the defendant's guilt; or
| 6 | | (3) before the court alone if the defendant waives a | 7 | | jury
for the separate proceeding.
| 8 | | (e) Evidence and Argument.
| 9 | | During the proceeding any information relevant to any of | 10 | | the factors
set forth in subsection (b) may be presented by | 11 | | either the State or the
defendant under the rules governing | 12 | | the admission of evidence at
criminal trials. Any information | 13 | | relevant to any additional aggravating
factors or any | 14 | | mitigating factors indicated in subsection (c) may be
| 15 | | presented by the State or defendant regardless of its | 16 | | admissibility
under the rules governing the admission of | 17 | | evidence at criminal trials.
The State and the defendant shall | 18 | | be given fair opportunity to rebut any
information received at | 19 | | the hearing.
| 20 | | (f) Proof.
| 21 | | The burden of proof of establishing the existence of any | 22 | | of the
factors set forth in subsection (b) is on the State and | 23 | | shall not be
satisfied unless established beyond a reasonable | 24 | | doubt.
| 25 | | (g) Procedure - Jury.
| 26 | | If at the separate sentencing proceeding the jury finds |
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| 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 that
| 5 | | one or more of the factors set forth in subsection (b) exist, | 6 | | the jury
shall consider aggravating and mitigating factors as | 7 | | instructed by the
court and shall determine whether the | 8 | | sentence of death shall be
imposed. If the jury determines | 9 | | unanimously, after weighing the factors in
aggravation and | 10 | | mitigation, that death is the appropriate sentence, the court | 11 | | shall sentence the defendant to death.
If the court does not | 12 | | concur with the jury determination that death is the
| 13 | | appropriate sentence, the court shall set forth reasons in | 14 | | writing
including what facts or circumstances the court relied | 15 | | upon,
along with any relevant
documents, that compelled the | 16 | | court to non-concur with the sentence. This
document and any | 17 | | attachments shall be part of the record for appellate
review. | 18 | | The court shall be bound by the jury's sentencing | 19 | | determination.
| 20 | | If after weighing the factors in aggravation and | 21 | | mitigation, one or more
jurors determines that death is not | 22 | | the appropriate sentence,
the
court shall sentence the | 23 | | defendant to a term of imprisonment under
Chapter V of the | 24 | | Unified Code of Corrections.
| 25 | | (h) Procedure - No Jury.
| 26 | | In a proceeding before the court alone, if the court finds |
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| 1 | | that none
of the factors found in subsection (b) exists, the | 2 | | court shall sentence
the defendant to a term of imprisonment | 3 | | under Chapter V of the Unified
Code of Corrections.
| 4 | | If the Court determines that one or more of the factors set | 5 | | forth in
subsection (b) exists, the Court shall consider any | 6 | | aggravating and
mitigating factors as indicated in subsection | 7 | | (c). If the Court
determines, after weighing the factors in | 8 | | aggravation and mitigation, that
death is the appropriate | 9 | | sentence, the Court shall sentence the
defendant to death.
| 10 | | If
the court finds that death is not the
appropriate | 11 | | sentence, the
court shall sentence the defendant to a term of | 12 | | imprisonment under
Chapter V of the Unified Code of | 13 | | Corrections.
| 14 | | (h-5) Decertification as a capital case.
| 15 | | In a case in which the defendant has been found guilty of | 16 | | first degree murder
by a judge or jury, or a case on remand for | 17 | | resentencing, and the State seeks
the death penalty as an | 18 | | appropriate
sentence,
on the court's own motion or the written | 19 | | motion of the defendant, the court
may decertify the case as a | 20 | | death penalty case if the court finds that the only
evidence | 21 | | supporting the defendant's conviction is the uncorroborated | 22 | | testimony
of an informant witness, as defined in Section | 23 | | 115-21 of the Code of Criminal
Procedure of 1963, concerning | 24 | | the confession or admission of the defendant or
that the sole | 25 | | evidence against the defendant is a single eyewitness or | 26 | | single
accomplice without any other corroborating evidence.
If |
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| 1 | | the court decertifies the case as a capital case
under either | 2 | | of the grounds set forth above, the court shall issue a
written | 3 | | finding. The State may pursue its right to appeal the | 4 | | decertification
pursuant to Supreme Court Rule 604(a)(1). If | 5 | | the court does not
decertify the case as a capital case, the | 6 | | matter shall proceed to the
eligibility phase of the | 7 | | sentencing hearing.
| 8 | | (i) Appellate Procedure.
| 9 | | The conviction and sentence of death shall be subject to | 10 | | automatic
review by the Supreme Court. Such review shall be in | 11 | | accordance with
rules promulgated by the Supreme Court.
The | 12 | | Illinois Supreme Court may overturn the death sentence, and | 13 | | order the
imposition of imprisonment under Chapter V of the | 14 | | Unified Code of
Corrections if the court finds that the death | 15 | | sentence is fundamentally
unjust as applied to the particular | 16 | | case.
If the Illinois Supreme Court finds that the
death | 17 | | sentence is fundamentally unjust as applied to the particular | 18 | | case,
independent of any procedural grounds for relief, the | 19 | | Illinois Supreme Court
shall issue a written opinion | 20 | | explaining this finding.
| 21 | | (j) Disposition of reversed death sentence.
| 22 | | In the event that the death penalty in this Act is held to | 23 | | be
unconstitutional by the Supreme Court of the United States | 24 | | or of the
State of Illinois, any person convicted of first | 25 | | degree murder shall be
sentenced by the court to a term of | 26 | | imprisonment under Chapter V of the
Unified Code of |
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| 1 | | Corrections.
| 2 | | In the event that any death sentence pursuant to the | 3 | | sentencing
provisions of this Section is declared | 4 | | unconstitutional by the Supreme
Court of the United States or | 5 | | of the State of Illinois, the court having
jurisdiction over a | 6 | | person previously sentenced to death shall cause the
defendant | 7 | | to be brought before the court, and the court shall sentence
| 8 | | the defendant to a term of imprisonment under Chapter V of the
| 9 | | Unified Code of Corrections.
| 10 | | (k) Guidelines for seeking the death penalty.
| 11 | | The Attorney General and
State's Attorneys Association | 12 | | shall consult on voluntary guidelines for
procedures governing | 13 | | whether or not to seek the death penalty. The guidelines
do not
| 14 | | have the force of law and are only advisory in nature.
| 15 | | (Source: P.A. 100-460, eff. 1-1-18; 100-513, eff. 1-1-18; | 16 | | 100-863, eff. 8-14-18; 101-223, eff. 1-1-20; 101-652, eff. | 17 | | 7-1-21 .)
| 18 | | (720 ILCS 5/9-2) (from Ch. 38, par. 9-2)
| 19 | | Sec. 9-2. Second degree murder. | 20 | | (a) A person commits the offense of second degree murder | 21 | | when : | 22 | | (.01) he or she, acting alone or with one or more | 23 | | participants, commits or attempts to commit a forcible | 24 | | felony, other than first degree murder, and in the course | 25 | | of or in furtherance of the crime or flight from the crime, |
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| 1 | | he or she or another participant causes the death of a | 2 | | person, other than one of the participants; or | 3 | | (.02) he or she commits
the offense of first degree | 4 | | murder as defined in paragraph (1) or (2) of
subsection | 5 | | (a) of Section 9-1 of this Code and either of the following
| 6 | | mitigating factors are present:
| 7 | | (A) (1) at the time of the killing he or she is | 8 | | acting under a sudden and intense
passion resulting | 9 | | from serious provocation by the individual killed or
| 10 | | another whom the offender endeavors to kill, but he or | 11 | | she negligently or
accidentally causes the death of | 12 | | the individual killed; or
| 13 | | (B) (2) at the time of the killing he or she | 14 | | believes the circumstances to be such
that, if they | 15 | | existed, would justify or exonerate the killing under | 16 | | the
principles stated in Article 7 of this Code, but | 17 | | his or her belief is unreasonable.
| 18 | | (b) Serious provocation is conduct sufficient to excite an | 19 | | intense
passion in a reasonable person provided, however, that | 20 | | an action that does not otherwise constitute serious | 21 | | provocation cannot qualify as serious provocation because of | 22 | | the discovery, knowledge, or disclosure of the victim's sexual | 23 | | orientation as defined in Section 1-103 of the Illinois Human | 24 | | Rights Act.
| 25 | | (c) When evidence of
either of the mitigating factors | 26 | | defined in subsection (a) of this Section
has been presented, |
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| 1 | | the burden of proof is on the defendant to prove either
| 2 | | mitigating factor by a preponderance of the evidence before | 3 | | the defendant
can be found guilty of second degree murder. The | 4 | | burden of proof, however,
remains on the State to prove beyond | 5 | | a reasonable doubt each of the
elements of first degree murder | 6 | | and, when appropriately raised, the absence
of circumstances | 7 | | at the time of the killing that would justify or exonerate
the | 8 | | killing under the principles stated in Article 7 of this Code.
| 9 | | (d) Sentence. Second degree murder is a Class 1 felony.
| 10 | | (e) It is an affirmative defense to a charge of violating | 11 | | paragraph (.01) of subsection (a) that the defendant: | 12 | | (1) was not the only participant in the underlying | 13 | | crime; | 14 | | (2) did not commit the homicidal act or in any way | 15 | | solicit, request, command, importune, cause, or aid in the | 16 | | commission of the crime; | 17 | | (3) was not armed with a deadly weapon; and | 18 | | (4) did not engage himself or herself in or intend to | 19 | | engage in and had no reasonable ground to believe that any | 20 | | other participant intended to engage in conduct likely to | 21 | | result in death or serious bodily injury. | 22 | | (Source: P.A. 100-460, eff. 1-1-18 .)
| 23 | | Section 10. The Code of Civil Procedure is amended by | 24 | | changing Section 2-1401 as follows:
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| 1 | | (735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)
| 2 | | Sec. 2-1401. Relief from judgments.
| 3 | | (a) Relief from final orders and judgments, after 30 days | 4 | | from the
entry thereof, may be had upon petition as provided in | 5 | | this Section.
Writs of error coram nobis and coram vobis, | 6 | | bills of review, and bills
in the nature of bills of review are | 7 | | abolished. All relief heretofore
obtainable and the grounds | 8 | | for such relief heretofore available,
whether by any of the | 9 | | foregoing remedies or otherwise, shall be
available in every | 10 | | case, by proceedings hereunder, regardless of the
nature of | 11 | | the order or judgment from which relief is sought or of the
| 12 | | proceedings in which it was entered. Except as provided in the | 13 | | Illinois Parentage Act of 2015, there shall be no distinction
| 14 | | between actions and other proceedings, statutory or otherwise, | 15 | | as to
availability of relief, grounds for relief, or the | 16 | | relief obtainable.
| 17 | | (b) The petition must be filed in the same proceeding in | 18 | | which the
order or judgment was entered but is not a | 19 | | continuation thereof. The
petition must be supported by an | 20 | | affidavit or other appropriate showing as
to matters not of | 21 | | record. A petition to reopen a foreclosure proceeding must | 22 | | include as parties to the petition, but is not limited to, all | 23 | | parties in the original action in addition to the current | 24 | | record title holders of the property, current occupants, and | 25 | | any individual or entity that had a recorded interest in the | 26 | | property before the filing of the petition. All parties to the |
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| 1 | | petition shall be notified
as provided by rule.
| 2 | | (b-5) A movant may present a meritorious claim under this | 3 | | Section if the allegations in the petition establish each of | 4 | | the following by a preponderance of the evidence: | 5 | | (1) the movant was convicted of a forcible felony; | 6 | | (2) the movant's participation in the offense was | 7 | | related to him or her previously having been a victim of | 8 | | domestic violence as perpetrated by an intimate partner; | 9 | | (3) no evidence of domestic violence against the | 10 | | movant was presented at the movant's sentencing hearing; | 11 | | (4) the movant was unaware of the mitigating nature of | 12 | | the evidence of the domestic violence at the time of | 13 | | sentencing and could not have learned of its significance | 14 | | sooner through diligence; and | 15 | | (5) the new evidence of domestic violence against the | 16 | | movant is material and noncumulative to other evidence | 17 | | offered at the sentencing hearing, and is of such a | 18 | | conclusive character that it would likely change the | 19 | | sentence imposed by the original trial court. | 20 | | Nothing in this subsection (b-5) shall prevent a movant | 21 | | from applying for any other relief under this Section or any | 22 | | other law otherwise available to him or her. | 23 | | As used in this subsection (b-5): | 24 | | "Domestic violence" means abuse as defined in Section | 25 | | 103
of the Illinois Domestic Violence Act of 1986. | 26 | | "Forcible felony" has the meaning ascribed to the term |
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| 1 | | in
Section 2-8 of the Criminal Code of 2012. | 2 | | "Intimate partner" means a spouse or former spouse, | 3 | | persons
who have or allegedly have had a child in common, | 4 | | or persons who
have or have had a dating or engagement | 5 | | relationship. | 6 | | (b-10) A movant may present a meritorious claim under this | 7 | | Section if the allegations in the petition establish each of | 8 | | the following by a preponderance of the evidence: | 9 | | (A) she was convicted of a forcible felony; | 10 | | (B) her participation in the offense was a direct | 11 | | result of her suffering from post-partum depression or | 12 | | post-partum psychosis; | 13 | | (C) no evidence of post-partum depression or | 14 | | post-partum psychosis was presented by a qualified medical | 15 | | person at trial or sentencing, or both; | 16 | | (D) she was unaware of the mitigating nature of the | 17 | | evidence or, if aware, was at the time unable to present | 18 | | this defense due to suffering from post-partum depression | 19 | | or post-partum psychosis, or, at the time of trial or | 20 | | sentencing, neither was a recognized mental illness and as | 21 | | such, she was unable to receive proper treatment;
and | 22 | | (E) evidence of post-partum depression or post-partum | 23 | | psychosis as suffered by the person is material and | 24 | | noncumulative to other evidence offered at the time of | 25 | | trial or sentencing, and it is of such a conclusive | 26 | | character that it would likely change the sentence imposed |
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| 1 | | by the original court. | 2 | | Nothing in this subsection (b-10) prevents a person from | 3 | | applying for any other relief under this Article or any other | 4 | | law otherwise available to her. | 5 | | As used in this subsection (b-10): | 6 | | "Post-partum depression" means a mood disorder which | 7 | | strikes many women during and after pregnancy and usually | 8 | | occurs during pregnancy and up to 12 months after | 9 | | delivery. This depression can include anxiety disorders. | 10 | | "Post-partum psychosis" means an extreme form of | 11 | | post-partum depression which can occur during pregnancy | 12 | | and up to 12 months after delivery. This can include | 13 | | losing touch with reality, distorted thinking, delusions, | 14 | | auditory and visual hallucinations, paranoia, | 15 | | hyperactivity and rapid speech, or mania. | 16 | | (b-15) A movant may present a meritorious claim under this | 17 | | Section if the allegations in the petition establish each of | 18 | | the following by a preponderance of the evidence: | 19 | | (1) the movant was convicted of a first degree felony | 20 | | murder under paragraph (3) of subsection (a) of Section | 21 | | 9-1 of the Criminal Code of 2012 committed before the | 22 | | effective date of this amendatory Act of the 103rd General | 23 | | Assembly; and | 24 | | (2) the movant was not prosecuted under paragraph (1) | 25 | | or (2) of subsection (a) of Section 9-1 of the Criminal | 26 | | Code of 2012. |
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| 1 | | Nothing in this subsection (b-15) prevents a movant from | 2 | | applying for any other relief under this Section or any other | 3 | | law otherwise available to him or her. | 4 | | (c) Except as provided in Section 20b of the Adoption Act | 5 | | and Section
2-32 of the Juvenile Court Act of 1987, in a | 6 | | petition based
upon Section 116-3 of the Code of Criminal | 7 | | Procedure of 1963 or subsection (b-10) of this Section, or in a | 8 | | motion to vacate and expunge convictions under the Cannabis | 9 | | Control Act as provided by subsection (i) of Section 5.2 of the | 10 | | Criminal Identification Act, the petition
must be filed not | 11 | | later than 2 years after the entry of the order or judgment.
| 12 | | Time during which the person seeking relief is under legal | 13 | | disability or
duress or the ground for relief is fraudulently | 14 | | concealed shall be excluded
in computing the period of 2 | 15 | | years.
| 16 | | (c-5) Any individual may at any time file a petition and | 17 | | institute proceedings under this Section if his or her final | 18 | | order or judgment, which was entered based on a plea of guilty | 19 | | or nolo contendere, has potential consequences under federal | 20 | | immigration law. | 21 | | (d) The filing of a petition under this Section does not | 22 | | affect the
order or judgment, or suspend its operation.
| 23 | | (e) Unless lack of jurisdiction affirmatively appears from | 24 | | the
record proper, the vacation or modification of an order or | 25 | | judgment
pursuant to the provisions of this Section does not | 26 | | affect the right,
title, or interest in or to any real or |
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| 1 | | personal property of any person,
not a party to the original | 2 | | action, acquired for value after the entry
of the order or | 3 | | judgment but before the filing of the petition, nor
affect any | 4 | | right of any person not a party to the original action under
| 5 | | any certificate of sale issued before the filing of the | 6 | | petition,
pursuant to a sale based on the order or judgment. | 7 | | When a petition is filed pursuant to this Section to reopen a | 8 | | foreclosure proceeding, notwithstanding the provisions of | 9 | | Section 15-1701 of this Code, the purchaser or successor | 10 | | purchaser of real property subject to a foreclosure sale who | 11 | | was not a party to the mortgage foreclosure proceedings is | 12 | | entitled to remain in possession of the property until the | 13 | | foreclosure action is defeated or the previously foreclosed | 14 | | defendant redeems from the foreclosure sale if the purchaser | 15 | | has been in possession of the property for more than 6 months.
| 16 | | (f) Nothing contained in this Section affects any existing | 17 | | right to
relief from a void order or judgment, or to employ any | 18 | | existing method
to procure that relief.
| 19 | | (Source: P.A. 101-27, eff. 6-25-19; 101-411, eff. 8-16-19; | 20 | | 102-639, eff. 8-27-21; 102-813, eff. 5-13-22.)
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