Full Text of HB2704 94th General Assembly
HB2704ham001 94TH GENERAL ASSEMBLY
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Judiciary II - Criminal Law Committee
Filed: 3/10/2005
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09400HB2704ham001 |
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LRB094 11155 RLC 43475 a |
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| AMENDMENT TO HOUSE BILL 2704
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| AMENDMENT NO. ______. Amend House Bill 2704 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 1. Legislative findings. The General Assembly | 5 |
| hereby finds and declares that a fundamental difference exists | 6 |
| between the death penalty and any other penalty that may be | 7 |
| imposed upon a defendant. The death penalty contains an element | 8 |
| of finality that cannot be attributed to any other penalty that | 9 |
| may be constitutionally imposed upon a defendant. The General | 10 |
| Assembly finds and declares that this difference, based upon | 11 |
| this element of finality, reaches down into the procedures used | 12 |
| to sentence a convicted defendant. The court may provide, by | 13 |
| itself or through a jury, a standard of scrutiny to the | 14 |
| disposition of a defendant convicted of first degree murder and | 15 |
| subject to a potential sentence of death that reflects the | 16 |
| finality of the penalty. The General Assembly finds and | 17 |
| declares that nothing in the Criminal Code of 1961 or in this | 18 |
| Act amending the Criminal Code of 1961 shall provide that the | 19 |
| test of no doubt, as applied to a potential death sentence that | 20 |
| could be imposed upon a person convicted of first degree murder | 21 |
| and subject to a potential sentence of death, can be applied to | 22 |
| any other sentencing process carried out under the laws of the | 23 |
| State of Illinois. The General Assembly finds and declares that | 24 |
| the test of no doubt, as applied to a potential death sentence | 25 |
| that could be imposed upon a person convicted of first degree |
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| murder and subject to a potential sentence of death, must be | 2 |
| applied to the procedure of death penalty sentencing only, and | 3 |
| this test must not be applied to any other sentencing process | 4 |
| carried out under the laws of the State of Illinois. | 5 |
| Section 5. The Criminal Code of 1961 is amended by changing | 6 |
| 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.
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| (a) A person who kills an individual without lawful | 12 |
| justification commits
first degree murder if, in performing the | 13 |
| acts which cause the death:
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| (1) he either intends to kill or do great bodily harm | 15 |
| to that
individual or another, or knows that such acts will | 16 |
| cause death to that
individual or another; or
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| (2) he knows that such acts create a strong probability | 18 |
| of death or
great bodily harm to that individual or | 19 |
| another; or
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| (3) he is attempting or committing a forcible felony | 21 |
| other than
second degree murder.
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| (a-5) Separate sentencing proceeding.
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| When a defendant has been convicted of first degree murder, | 24 |
| then whenever requested by the State, the court shall conduct a | 25 |
| separate
sentencing proceeding to determine the existence of | 26 |
| factors set forth in
subsection (b), to consider a no doubt | 27 |
| determination of guilt as set forth in subsections (b-5) and | 28 |
| (b-10), and to consider any aggravating or mitigating factors | 29 |
| as
indicated in subsection (c). The proceeding shall be | 30 |
| conducted:
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| (1) before the jury that determined the defendant's | 32 |
| guilt; or
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| (2) before a jury impanelled for the purpose of the | 2 |
| proceeding if:
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| (A) the defendant was convicted upon a plea of | 4 |
| guilty; or
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| (B) the defendant was convicted after a trial | 6 |
| before the court
sitting without a jury; or | 7 |
| (C) the court for good cause shown discharges the | 8 |
| jury that
determined the defendant's guilt; or
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| (3) before the court alone if the defendant waives a | 10 |
| jury
for the separate proceeding.
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| (b) Aggravating Factors. A defendant who at the time of the
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| commission of the offense has attained the age of 18 or more | 13 |
| and who has
been found guilty of first degree murder may be | 14 |
| sentenced to death if:
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| (1) the murdered individual was a peace officer or | 16 |
| fireman killed in
the course of performing his official | 17 |
| duties, to prevent the performance
of his official duties, | 18 |
| or in retaliation for performing his official
duties, and | 19 |
| the defendant knew or
should have known that the murdered | 20 |
| individual was a peace officer or
fireman; or
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| (2) the murdered individual was an employee of an | 22 |
| institution or
facility of the Department of Corrections, | 23 |
| or any similar local
correctional agency, killed in the | 24 |
| course of performing his official
duties, to prevent the | 25 |
| performance of his official duties, or in
retaliation for | 26 |
| performing his official duties, or the murdered
individual | 27 |
| was an inmate at such institution or facility and was | 28 |
| killed on the
grounds thereof, or the murdered individual | 29 |
| was otherwise present in such
institution or facility with | 30 |
| the knowledge and approval of the chief
administrative | 31 |
| officer thereof; or
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| (3) the defendant has been convicted of murdering two | 33 |
| or more
individuals under subsection (a) of this Section or | 34 |
| under any law of the
United States or of any state which is |
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| 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
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| (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
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| (5) the defendant committed the murder pursuant to a | 13 |
| contract,
agreement or understanding by which he was to | 14 |
| receive money or anything
of value in return for committing | 15 |
| the murder or procured another to
commit the murder for | 16 |
| money or anything of value; or
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| (6) the murdered individual was killed in the course of | 18 |
| another felony if:
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| (a) the murdered individual:
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| (i) was actually killed by the defendant, or
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| (ii) received physical injuries personally | 22 |
| inflicted by the defendant
substantially | 23 |
| contemporaneously with physical injuries caused by | 24 |
| one or
more persons for whose conduct the defendant | 25 |
| is legally accountable under
Section 5-2 of this | 26 |
| Code, and the physical injuries inflicted by | 27 |
| either
the defendant or the other person or persons | 28 |
| for whose conduct he is legally
accountable caused | 29 |
| the death of the murdered individual; and
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| (b) in performing the acts which caused the death | 31 |
| of the murdered
individual or which resulted in | 32 |
| physical injuries personally inflicted by
the | 33 |
| defendant on the murdered individual under the | 34 |
| circumstances of
subdivision (ii) of subparagraph (a) |
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| of paragraph (6) of subsection (b) of
this Section, the | 2 |
| defendant acted with the intent to kill the murdered
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| individual or with the knowledge that his acts created | 4 |
| a strong probability
of death or great bodily harm to | 5 |
| the murdered individual or another; and
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| (c) the other felony was an inherently violent | 7 |
| crime
or the attempt to commit an inherently
violent | 8 |
| crime.
In this subparagraph (c), "inherently violent | 9 |
| crime" includes, but is not
limited to, armed robbery, | 10 |
| robbery, predatory criminal sexual assault of a
child,
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| aggravated criminal sexual assault, aggravated | 12 |
| kidnapping, aggravated vehicular
hijacking,
aggravated | 13 |
| arson, aggravated stalking, residential burglary, and | 14 |
| home
invasion
; or
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| (7) the murdered individual was under 12 years of age | 16 |
| and the
death resulted from exceptionally brutal or heinous | 17 |
| behavior indicative of
wanton cruelty; or
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| (8) the defendant committed the murder with intent to
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| prevent the murdered individual from testifying or | 20 |
| participating in any
criminal investigation or prosecution
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| or giving material assistance to the State in any | 22 |
| investigation or
prosecution, either against the defendant | 23 |
| or another; or the defendant
committed the murder because | 24 |
| the murdered individual was a witness in any
prosecution or | 25 |
| gave material assistance to the State in any investigation
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| or prosecution, either against the defendant or another;
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| for purposes of this paragraph (8), "participating in any | 28 |
| criminal
investigation
or prosecution" is intended to | 29 |
| include those appearing in the proceedings in
any capacity | 30 |
| such as trial judges, prosecutors, defense attorneys,
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| investigators, witnesses, or jurors; or
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| (9) the defendant, while committing an offense | 33 |
| punishable under
Sections 401, 401.1, 401.2, 405, 405.2, | 34 |
| 407 or 407.1 or subsection (b) of
Section
404 of the |
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| Illinois Controlled Substances Act, or while engaged in a
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| 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
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| (10) the defendant was incarcerated in an institution | 7 |
| or facility of
the Department of Corrections at the time of | 8 |
| the murder, and while
committing an offense punishable as a | 9 |
| felony under Illinois law, or while
engaged in a conspiracy | 10 |
| or solicitation to commit such offense,
intentionally | 11 |
| killed an individual or counseled, commanded, induced,
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| procured or caused the intentional killing of the murdered | 13 |
| individual; or
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| (11) the murder was committed in a cold, calculated and | 15 |
| premeditated
manner pursuant to a preconceived plan, | 16 |
| scheme or design to take a human
life by unlawful means, | 17 |
| and the conduct of the defendant created a
reasonable | 18 |
| expectation that the death of a human being would result
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| therefrom; or
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| (12) the murdered individual was an emergency medical | 21 |
| technician -
ambulance, emergency medical technician - | 22 |
| intermediate, emergency medical
technician - paramedic, | 23 |
| ambulance driver, or
other medical assistance or first aid | 24 |
| personnel, employed by a municipality
or other | 25 |
| governmental unit, killed in the course of performing his | 26 |
| official
duties, to prevent the performance of his official | 27 |
| duties, or in retaliation
for performing his official | 28 |
| duties, and the defendant knew or should have
known that | 29 |
| the murdered individual was an emergency medical | 30 |
| technician -
ambulance, emergency medical technician - | 31 |
| intermediate, emergency medical
technician - paramedic, | 32 |
| ambulance driver, or
other medical assistance or first aid | 33 |
| personnel; or
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| (13) the defendant was a principal administrator, |
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| 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 the | 6 |
| murdered person;
or
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| (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
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| (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
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| (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
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| (17) the murdered individual was a disabled person and | 20 |
| the defendant knew
or
should have known that the murdered | 21 |
| individual was disabled. For purposes of
this paragraph | 22 |
| (17), "disabled person" means a person who suffers from a
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| permanent physical or mental impairment resulting from | 24 |
| disease, an injury,
a functional disorder, or a congenital | 25 |
| condition that renders the person
incapable of
adequately | 26 |
| providing for his or her own health or personal care; or
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| (18) the murder was committed by reason of any person's | 28 |
| activity as a
community policing volunteer or to prevent | 29 |
| any person from engaging in activity
as a community | 30 |
| policing volunteer; or
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| (19) the murdered individual was subject to an order of | 32 |
| protection and the
murder was committed by a person against | 33 |
| whom the same order of protection was
issued under the | 34 |
| Illinois Domestic Violence Act of 1986; or
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| (20) the murdered individual was known by the defendant | 2 |
| to be a teacher or
other person employed in any school and | 3 |
| the teacher or other employee is upon
the grounds of a | 4 |
| school or grounds adjacent to a school, or is in any part | 5 |
| of a
building used for school purposes; or
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| (21) the murder was committed by the defendant in | 7 |
| connection with or as
a
result of the offense of terrorism | 8 |
| as defined in Section 29D-30 of this
Code.
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| (b-5) No doubt-jury determination.
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| If a separate sentencing proceeding is conducted before a | 11 |
| jury as provided in subsection (a-5), the court shall instruct | 12 |
| the jury that if the jury unanimously determines that the | 13 |
| evidence leaves no doubt respecting the defendant's guilt, the | 14 |
| jury shall determine that death may be the appropriate | 15 |
| sentence, and the separate sentencing proceeding shall | 16 |
| continue to a consideration of the factors in aggravation and | 17 |
| mitigation.
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| (b-10) No doubt-court determination. | 19 |
| If a separate sentencing proceeding is conducted before the | 20 |
| court alone as provided in subsection (a-5), and if the court | 21 |
| determines that the evidence leaves no doubt respecting the | 22 |
| defendant's guilt, the court shall determine that death may be | 23 |
| the appropriate sentence, and the separate sentencing | 24 |
| proceeding shall continue to a consideration of the factors in | 25 |
| aggravation and mitigation.
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| (c) Consideration of factors in Aggravation and | 27 |
| Mitigation.
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| The court shall consider, or shall instruct the jury to | 29 |
| consider any
aggravating and any mitigating factors which are | 30 |
| relevant to the
imposition of the death penalty. Aggravating | 31 |
| factors may include but
need not be limited to those factors | 32 |
| set forth in subsection (b).
Mitigating factors may include but | 33 |
| need not be limited to the following:
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| (1) the defendant has no significant history of prior |
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| criminal
activity;
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| (2) the murder was committed while the defendant was | 3 |
| under
the influence of extreme mental or emotional | 4 |
| disturbance, although not such
as to constitute a defense | 5 |
| to prosecution;
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| (3) the murdered individual was a participant in the
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| defendant's homicidal conduct or consented to the | 8 |
| homicidal act;
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| (4) the defendant acted under the compulsion of threat | 10 |
| or
menace of the imminent infliction of death or great | 11 |
| bodily harm;
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| (5) the defendant was not personally present during
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| commission of the act or acts causing death;
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| (6) the defendant's background includes a history of | 15 |
| extreme emotional
or physical abuse;
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| (7) the defendant suffers from a reduced mental | 17 |
| capacity.
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| (d) (Blank).
Separate sentencing hearing.
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| Where requested by the State, the court shall conduct a | 20 |
| separate
sentencing proceeding to determine the existence of | 21 |
| factors set forth in
subsection (b) and to consider any | 22 |
| aggravating or mitigating factors as
indicated in subsection | 23 |
| (c). The proceeding shall be conducted:
| 24 |
| (1) before the jury that determined the defendant's | 25 |
| guilt; or
| 26 |
| (2) before a jury impanelled for the purpose of the | 27 |
| proceeding if:
| 28 |
| A. the defendant was convicted upon a plea of | 29 |
| guilty; or
| 30 |
| B. the defendant was convicted after a trial before | 31 |
| the court
sitting without a jury; or
| 32 |
| C. the court for good cause shown discharges the | 33 |
| jury that
determined the defendant's guilt; or
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| (3) before the court alone if the defendant waives a |
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| jury
for the separate proceeding.
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| (e) Evidence and Argument.
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| During the proceeding any information relevant to any of | 4 |
| the factors
set forth in subsection (b) may be presented by | 5 |
| either the State or the
defendant under the rules governing the | 6 |
| admission of evidence at
criminal trials. Any information | 7 |
| relevant to any additional aggravating
factors or any | 8 |
| mitigating factors indicated in subsection (c) may be
presented | 9 |
| by the State or defendant regardless of its admissibility
under | 10 |
| the rules governing the admission of evidence at criminal | 11 |
| trials.
The State and the defendant shall be given fair | 12 |
| opportunity to rebut any
information received at the hearing.
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| (f) Proof.
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| The burden of proof of establishing the existence of any of | 15 |
| the
factors set forth in subsection (b) is on the State and | 16 |
| shall not be
satisfied unless established beyond a reasonable | 17 |
| doubt. The burden of proof for determining that death may be an | 18 |
| appropriate sentence is as set forth in subsections (b-5) and | 19 |
| (b-10), as applicable.
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| (g) Procedure - Jury.
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| If at the separate sentencing proceeding the jury finds | 22 |
| that none of
the factors set forth in subsection (b) exists, | 23 |
| the court shall sentence
the defendant to a term of | 24 |
| imprisonment under Chapter V of the Unified
Code of | 25 |
| Corrections. If there is a unanimous finding by the jury that
| 26 |
| one or more of the factors set forth in subsection (b) exist, | 27 |
| and if the jury unanimously determines that the evidence leaves | 28 |
| no doubt respecting the defendant's guilt, the jury
shall | 29 |
| consider aggravating and mitigating factors as instructed by | 30 |
| the
court and shall determine whether the sentence of death | 31 |
| shall be
imposed. If the jury determines unanimously, after | 32 |
| weighing the factors in
aggravation and mitigation, that death | 33 |
| is the appropriate sentence, the court shall sentence the | 34 |
| defendant to death.
If the court does not concur with the jury |
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| determination that death is the
appropriate sentence, the court | 2 |
| shall set forth reasons in writing
including what facts or | 3 |
| circumstances the court relied upon,
along with any relevant
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| documents, that compelled the court to non-concur with the | 5 |
| sentence. This
document and any attachments shall be part of | 6 |
| the record for appellate
review. The court shall be bound by | 7 |
| the jury's sentencing determination.
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|
If
after weighing the factors in aggravation and | 9 |
| mitigation, one or more
jurors determines that death is not the | 10 |
| appropriate sentence,
the
court shall sentence the defendant to | 11 |
| a term of imprisonment under
Chapter V of the Unified Code of | 12 |
| Corrections.
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| (h) Procedure - No Jury.
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| In a proceeding before the court alone, if the court finds | 15 |
| that none
of the factors found in subsection (b) exists, the | 16 |
| court shall sentence
the defendant to a term of imprisonment | 17 |
| under Chapter V of the Unified
Code of Corrections.
| 18 |
| If the Court determines that one or more of the factors set | 19 |
| forth in
subsection (b) exists, and if the court determines | 20 |
| that the evidence leaves no doubt respecting the defendant's | 21 |
| guilt, the Court shall consider any aggravating and
mitigating | 22 |
| factors as indicated in subsection (c). If the Court
| 23 |
| determines, after weighing the factors in aggravation and | 24 |
| mitigation, that
death is the appropriate sentence, the Court | 25 |
| shall sentence the
defendant to death.
| 26 |
|
If
the court finds that death is not the
appropriate | 27 |
| sentence, the
court shall sentence the defendant to a term of | 28 |
| imprisonment under
Chapter V of the Unified Code of | 29 |
| Corrections.
| 30 |
| (h-5) Decertification as a capital case.
| 31 |
| In a case in which the defendant has been found guilty of | 32 |
| first degree murder
by a judge or jury, or a case on remand for | 33 |
| resentencing, and the State seeks
the death penalty as an | 34 |
| appropriate
sentence,
on the court's own motion or the written |
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| motion of the defendant, the court
may decertify the case as a | 2 |
| death penalty case if the court finds that the only
evidence | 3 |
| supporting the defendant's conviction is the uncorroborated | 4 |
| testimony
of an informant witness, as defined in Section 115-21 | 5 |
| of the Code of Criminal
Procedure of 1963, concerning the | 6 |
| confession or admission of the defendant or
that the sole | 7 |
| evidence against the defendant is a single eyewitness or single
| 8 |
| accomplice without any other corroborating evidence.
If the | 9 |
| court decertifies the case as a capital case
under either of | 10 |
| the grounds set forth above, the court shall issue a
written | 11 |
| finding. The State may pursue its right to appeal the | 12 |
| decertification
pursuant to Supreme Court Rule 604(a)(1). If | 13 |
| the court does not
decertify the case as a capital case, the | 14 |
| matter shall proceed to the
eligibility phase of the sentencing | 15 |
| hearing.
| 16 |
| (i) Appellate Procedure.
| 17 |
| The conviction and sentence of death shall be subject to | 18 |
| automatic
review by the Supreme Court. Such review shall be in | 19 |
| accordance with
rules promulgated by the Supreme Court.
The | 20 |
| Illinois Supreme Court may overturn the death sentence, and | 21 |
| order the
imposition of imprisonment under Chapter V of the | 22 |
| Unified Code of
Corrections if the court finds that the death | 23 |
| sentence is fundamentally
unjust as applied to the particular | 24 |
| case.
If the Illinois Supreme Court finds that the
death | 25 |
| sentence is fundamentally unjust as applied to the particular | 26 |
| case,
independent of any procedural grounds for relief, the | 27 |
| Illinois Supreme Court
shall issue a written opinion explaining | 28 |
| this finding.
| 29 |
| (j) Disposition of reversed death sentence.
| 30 |
| In the event that the death penalty in this Act is held to | 31 |
| be
unconstitutional by the Supreme Court of the United States | 32 |
| or of the
State of Illinois, any person convicted of first | 33 |
| degree murder shall be
sentenced by the court to a term of | 34 |
| imprisonment under Chapter V of the
Unified Code of |
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| 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. 92-854, eff. 12-5-02; 93-605, eff. 11-19-03 .)".
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