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91_HB4017eng HB4017 Engrossed LRB9112765RCpk 1 AN ACT to amend the Criminal Code of 1961 by changing 2 Section 9-1. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Criminal Code of 1961 is amended by 6 changing Section 9-1 as follows: 7 (720 ILCS 5/9-1) (from Ch. 38, par. 9-1) 8 Sec. 9-1. First degree Murder - Death penalties - 9 Exceptions - Separate Hearings - Proof - Findings - Appellate 10 procedures - Reversals. 11 (a) A person who kills an individual without lawful 12 justification commits first degree murder if, in performing 13 the acts which cause the death: 14 (1) he either intends to kill or do great bodily 15 harm to that individual or another, or knows that such 16 acts will cause death to that individual or another; or 17 (2) he knows that such acts create a strong 18 probability of death or great bodily harm to that 19 individual or another; or 20 (3) he is attempting or committing a forcible 21 felony other than second degree murder. 22 (b) Aggravating Factors. A defendant who at the time of 23 the commission of the offense has attained the age of 18 or 24 more, who is not mentally retarded, and who has been found 25 guilty of first degree murder may be sentenced to death if: 26 (1) the murdered individual was a peace officer or 27 fireman killed in the course of performing his official 28 duties, to prevent the performance of his official 29 duties, or in retaliation for performing his official 30 duties, and the defendant knew or should have known that 31 the murdered individual was a peace officer or fireman; HB4017 Engrossed -2- LRB9112765RCpk 1 or 2 (2) the murdered individual was an employee of an 3 institution or facility of the Department of Corrections, 4 or any similar local correctional agency, killed in the 5 course of performing his official duties, to prevent the 6 performance of his official duties, or in retaliation for 7 performing his official duties, or the murdered 8 individual was an inmate at such institution or facility 9 and was killed on the grounds thereof, or the murdered 10 individual was otherwise present in such institution or 11 facility with the knowledge and approval of the chief 12 administrative officer thereof; or 13 (3) the defendant has been convicted of murdering 14 two or more individuals under subsection (a) of this 15 Section or under any law of the United States or of any 16 state which is substantially similar to subsection (a) of 17 this Section regardless of whether the deaths occurred 18 as the result of the same act or of several related or 19 unrelated acts so long as the deaths were the result of 20 either an intent to kill more than one person or of 21 separate acts which the defendant knew would cause death 22 or create a strong probability of death or great bodily 23 harm to the murdered individual or another; or 24 (4) the murdered individual was killed as a result 25 of the hijacking of an airplane, train, ship, bus or 26 other public conveyance; or 27 (5) the defendant committed the murder pursuant to 28 a contract, agreement or understanding by which he was to 29 receive money or anything of value in return for 30 committing the murder or procured another to commit the 31 murder for money or anything of value; or 32 (6) the murdered individual was killed in the 33 course of another felony if: 34 (a) the murdered individual: HB4017 Engrossed -3- LRB9112765RCpk 1 (i) was actually killed by the defendant, 2 or 3 (ii) received physical injuries 4 personally inflicted by the defendant 5 substantially contemporaneously with physical 6 injuries caused by one or more persons for 7 whose conduct the defendant is legally 8 accountable under Section 5-2 of this Code, and 9 the physical injuries inflicted by either the 10 defendant or the other person or persons for 11 whose conduct he is legally accountable caused 12 the death of the murdered individual; and 13 (b) in performing the acts which caused the 14 death of the murdered individual or which resulted 15 in physical injuries personally inflicted by the 16 defendant on the murdered individual under the 17 circumstances of subdivision (ii) of subparagraph 18 (a) of paragraph (6) of subsection (b) of this 19 Section, the defendant acted with the intent to kill 20 the murdered individual or with the knowledge that 21 his acts created a strong probability of death or 22 great bodily harm to the murdered individual or 23 another; and 24 (c) the other felony was one of the following: 25 armed robbery, armed violence, robbery, predatory 26 criminal sexual assault of a child, aggravated 27 criminal sexual assault, aggravated kidnapping, 28 aggravated vehicular hijacking, forcible detention, 29 arson, aggravated arson, aggravated stalking, 30 burglary, residential burglary, home invasion, 31 calculated criminal drug conspiracy as defined in 32 Section 405 of the Illinois Controlled Substances 33 Act, streetgang criminal drug conspiracy as defined 34 in Section 405.2 of the Illinois Controlled HB4017 Engrossed -4- LRB9112765RCpk 1 Substances Act, or the attempt to commit any of the 2 felonies listed in this subsection (c); or 3 (7) the murdered individual was under 12 years of 4 age and the death resulted from exceptionally brutal or 5 heinous behavior indicative of wanton cruelty; or 6 (8) the defendant committed the murder with intent 7 to prevent the murdered individual from testifying in any 8 criminal prosecution or giving material assistance to the 9 State in any investigation or prosecution, either against 10 the defendant or another; or the defendant committed the 11 murder because the murdered individual was a witness in 12 any prosecution or gave material assistance to the State 13 in any investigation or prosecution, either against the 14 defendant or another; or 15 (9) the defendant, while committing an offense 16 punishable under Sections 401, 401.1, 401.2, 405, 405.2, 17 407 or 407.1 or subsection (b) of Section 404 of the 18 Illinois Controlled Substances Act, or while engaged in a 19 conspiracy or solicitation to commit such offense, 20 intentionally killed an individual or counseled, 21 commanded, induced, procured or caused the intentional 22 killing of the murdered individual; or 23 (10) the defendant was incarcerated in an 24 institution or facility of the Department of Corrections 25 at the time of the murder, and while committing an 26 offense punishable as a felony under Illinois law, or 27 while engaged in a conspiracy or solicitation to commit 28 such offense, intentionally killed an individual or 29 counseled, commanded, induced, procured or caused the 30 intentional killing of the murdered individual; or 31 (11) the murder was committed in a cold, calculated 32 and premeditated manner pursuant to a preconceived plan, 33 scheme or design to take a human life by unlawful means, 34 and the conduct of the defendant created a reasonable HB4017 Engrossed -5- LRB9112765RCpk 1 expectation that the death of a human being would result 2 therefrom; or 3 (12) the murdered individual was an emergency 4 medical technician - ambulance, emergency medical 5 technician - intermediate, emergency medical technician - 6 paramedic, ambulance driver, or other medical assistance 7 or first aid personnel, employed by a municipality or 8 other governmental unit, killed in the course of 9 performing his official duties, to prevent the 10 performance of his official duties, or in retaliation for 11 performing his official duties, and the defendant knew or 12 should have known that the murdered individual was an 13 emergency medical technician - ambulance, emergency 14 medical technician - intermediate, emergency medical 15 technician - paramedic, ambulance driver, or other 16 medical assistance or first aid personnel; or 17 (13) the defendant was a principal administrator, 18 organizer, or leader of a calculated criminal drug 19 conspiracy consisting of a hierarchical position of 20 authority superior to that of all other members of the 21 conspiracy, and the defendant counseled, commanded, 22 induced, procured, or caused the intentional killing of 23 the murdered person; or 24 (14) the murder was intentional and involved the 25 infliction of torture. For the purpose of this Section 26 torture means the infliction of or subjection to extreme 27 physical pain, motivated by an intent to increase or 28 prolong the pain, suffering or agony of the victim; or 29 (15) the murder was committed as a result of the 30 intentional discharge of a firearm by the defendant from 31 a motor vehicle and the victim was not present within the 32 motor vehicle; or 33 (16) the murdered individual was 60 years of age or 34 older and the death resulted from exceptionally brutal or HB4017 Engrossed -6- LRB9112765RCpk 1 heinous behavior indicative of wanton cruelty; or 2 (17) the murdered individual was a disabled person 3 and the defendant knew or should have known that the 4 murdered individual was disabled. For purposes of this 5 paragraph (17), "disabled person" means a person who 6 suffers from a permanent physical or mental impairment 7 resulting from disease, an injury, a functional disorder, 8 or a congenital condition that renders the person 9 incapable of adequately providing for his or her own 10 health or personal care; or 11 (18) the murder was committed by reason of any 12 person's activity as a community policing volunteer or to 13 prevent any person from engaging in activity as a 14 community policing volunteer; or 15 (19) the murdered individual was subject to an 16 order of protection and the murder was committed by a 17 person against whom the same order of protection was 18 issued under the Illinois Domestic Violence Act of 1986; 19 or 20 (20) the murdered individual was known by the 21 defendant to be a teacher or other person employed in any 22 school and the teacher or other employee is upon the 23 grounds of a school or grounds adjacent to a school, or 24 is in any part of a building used for school purposes. 25 (c) Consideration of factors in Aggravation and 26 Mitigation. 27 The court shall consider, or shall instruct the jury to 28 consider any aggravating and any mitigating factors which are 29 relevant to the imposition of the death penalty. Aggravating 30 factors may include but need not be limited to those factors 31 set forth in subsection (b). Mitigating factors may include 32 but need not be limited to the following: 33 (1) the defendant has no significant history of 34 prior criminal activity; HB4017 Engrossed -7- LRB9112765RCpk 1 (2) the murder was committed while the defendant 2 was under the influence of extreme mental or emotional 3 disturbance, although not such as to constitute a defense 4 to prosecution; 5 (3) the murdered individual was a participant in 6 the defendant's homicidal conduct or consented to the 7 homicidal act; 8 (4) the defendant acted under the compulsion of 9 threat or menace of the imminent infliction of death or 10 great bodily harm; 11 (5) the defendant was not personally present during 12 commission of the act or acts causing death. 13 (c-5) Mental retardation exception; procedure. 14 (1) Notwithstanding any other provision of law, the 15 death penalty may not be imposed upon any mentally 16 retarded person. 17 (2) "Mentally retarded" and "mental retardation" 18 means significantly subaverage general intellectual 19 functioning that exists concurrently with impairment in 20 adaptive behavior and that originates before the age of 21 18 years. 22 (3) The issue of the defendant's mental retardation 23 may be raised by the defense, the State, or the court at 24 any appropriate time before a plea is entered or before 25 or after trial. 26 (4) The court shall hold a hearing upon a motion 27 requesting a ruling that the death penalty be precluded 28 because the convicted person is mentally retarded. If 29 the court finds, by a preponderance of the evidence, that 30 the defendant is a mentally retarded person, the death 31 sentence may not be imposed. If the issue that the 32 defendant is mentally retarded is raised before 33 sentencing, the court shall determine the issue before 34 proceeding further. A ruling by the court that the HB4017 Engrossed -8- LRB9112765RCpk 1 evidence of diminished intelligence introduced by the 2 defendant does not preclude the death penalty shall not 3 restrict the defendant's opportunity to introduce the 4 evidence at the sentencing hearing or to argue that the 5 evidence should be given mitigating significance. If the 6 sentencing proceeding is conducted before a jury, the 7 jury may not be informed of any ruling denying a 8 defendant's motion under this paragraph (4). 9 (5) A person sentenced to death before the 10 effective date of this amendatory Act of the 91st General 11 Assembly may, within 120 days after that date, bring a 12 motion in the circuit court that imposed the sentence 13 requesting a ruling that the death sentence be vacated 14 because the person is mentally retarded. The court shall 15 grant a prompt hearing on the motion, and determine the 16 issue and make findings of fact. If the court finds by a 17 preponderance of the evidence that the convicted person 18 is a mentally retarded person, the sentence of death 19 shall be vacated and a new sentence shall be imposed. 20 (d) Separate sentencing hearing. 21 Where requested by the State, the court shall conduct a 22 separate sentencing proceeding to determine the existence of 23 factors set forth in subsection (b) and to consider any 24 aggravating or mitigating factors as indicated in subsection 25 (c). The proceeding shall be conducted: 26 (1) before the jury that determined the defendant's 27 guilt; or 28 (2) before a jury impanelled for the purpose of the 29 proceeding if: 30 A. the defendant was convicted upon a plea of 31 guilty; or 32 B. the defendant was convicted after a trial 33 before the court sitting without a jury; or 34 C. the court for good cause shown discharges HB4017 Engrossed -9- LRB9112765RCpk 1 the jury that determined the defendant's guilt; or 2 (3) before the court alone if the defendant waives 3 a jury for the separate proceeding. 4 (e) Evidence and Argument. 5 During the proceeding any information relevant to any of 6 the factors set forth in subsection (b) may be presented by 7 either the State or the defendant under the rules governing 8 the admission of evidence at criminal trials. Any 9 information relevant to any additional aggravating factors or 10 any mitigating factors indicated in subsection (c) may be 11 presented by the State or defendant regardless of its 12 admissibility under the rules governing the admission of 13 evidence at criminal trials. The State and the defendant 14 shall be given fair opportunity to rebut any information 15 received at the hearing. 16 (f) Proof. 17 The burden of proof of establishing the existence of any 18 of the factors set forth in subsection (b) is on the State 19 and shall not be satisfied unless established beyond a 20 reasonable doubt. 21 (g) Procedure - Jury. 22 If at the separate sentencing proceeding the jury finds 23 that none of the factors set forth in subsection (b) exists, 24 the court shall sentence the defendant to a term of 25 imprisonment under Chapter V of the Unified Code of 26 Corrections. If there is a unanimous finding by the jury 27 that one or more of the factors set forth in subsection (b) 28 exist, the jury shall consider aggravating and mitigating 29 factors as instructed by the court and shall determine 30 whether the sentence of death shall be imposed. If the jury 31 determines unanimously that there are no mitigating factors 32 sufficient to preclude the imposition of the death sentence, 33 the court shall sentence the defendant to death. 34 Unless the jury unanimously finds that there are no HB4017 Engrossed -10- LRB9112765RCpk 1 mitigating factors sufficient to preclude the imposition of 2 the death sentence the court shall sentence the defendant to 3 a term of imprisonment under Chapter V of the Unified Code of 4 Corrections. 5 (h) Procedure - No Jury. 6 In a proceeding before the court alone, if the court 7 finds that none of the factors found in subsection (b) 8 exists, the court shall sentence the defendant to a term of 9 imprisonment under Chapter V of the Unified Code of 10 Corrections. 11 If the Court determines that one or more of the factors 12 set forth in subsection (b) exists, the Court shall consider 13 any aggravating and mitigating factors as indicated in 14 subsection (c). If the Court determines that there are no 15 mitigating factors sufficient to preclude the imposition of 16 the death sentence, the Court shall sentence the defendant to 17 death. 18 Unless the court finds that there are no mitigating 19 factors sufficient to preclude the imposition of the sentence 20 of death, the court shall sentence the defendant to a term of 21 imprisonment under Chapter V of the Unified Code of 22 Corrections. 23 (i) Appellate Procedure. 24 The conviction and sentence of death shall be subject to 25 automatic review by the Supreme Court. Such review shall be 26 in accordance with rules promulgated by the Supreme Court. 27 (j) Disposition of reversed death sentence. 28 In the event that the death penalty in this Act is held 29 to be unconstitutional by the Supreme Court of the United 30 States or of the State of Illinois, any person convicted of 31 first degree murder shall be sentenced by the court to a term 32 of imprisonment under Chapter V of the Unified Code of 33 Corrections. 34 In the event that any death sentence pursuant to the HB4017 Engrossed -11- LRB9112765RCpk 1 sentencing provisions of this Section is declared 2 unconstitutional by the Supreme Court of the United States or 3 of the State of Illinois, the court having jurisdiction over 4 a person previously sentenced to death shall cause the 5 defendant to be brought before the court, and the court shall 6 sentence the defendant to a term of imprisonment under 7 Chapter V of the Unified Code of Corrections. 8 (Source: P.A. 90-213, eff. 1-1-98; 90-651, eff. 1-1-99; 9 90-668, eff. 1-1-99; 91-357, eff. 7-29-99; 91-434, eff. 10 1-1-00.) 11 Section 99. Effective date. This Act takes effect upon 12 becoming law.