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Full Text of SB1761  100th General Assembly

SB1761sam002 100TH GENERAL ASSEMBLY

Sen. Daniel Biss

Filed: 4/27/2017

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1761

2    AMENDMENT NO. ______. Amend Senate Bill 1761 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 2012 is amended by
5changing 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 -
8Exceptions - Separate Hearings - Proof - Findings - Appellate
9procedures - Reversals.
10    (a) A person who kills an individual without lawful
11justification commits first degree murder if, in performing the
12acts which cause the death:
13        (1) he either intends to kill or do great bodily harm
14    to that individual or another, or knows that such acts will
15    cause death to that individual or another; or
16        (2) he knows that such acts create a strong probability

 

 

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1    of death or great bodily harm to that individual or
2    another; or
3        (3) he is attempting or committing a forcible felony
4    other than second degree murder.
5    (b) Aggravating Factors. A defendant who at the time of the
6commission of the offense has attained the age of 18 or more
7and who has been found guilty of first degree murder may be
8sentenced to death if:
9        (1) the murdered individual was a peace officer or
10    fireman killed in the course of performing his official
11    duties, to prevent the performance of his official duties,
12    or in retaliation for performing his official duties, and
13    the defendant knew or should have known that the murdered
14    individual was a peace officer or fireman; or
15        (2) the murdered individual was an employee of an
16    institution or facility of the Department of Corrections,
17    or any similar local correctional agency, killed in the
18    course of performing his official duties, to prevent the
19    performance of his official duties, or in retaliation for
20    performing his official duties, or the murdered individual
21    was an inmate at such institution or facility and was
22    killed on the grounds thereof, or the murdered individual
23    was otherwise present in such institution or facility with
24    the knowledge and approval of the chief administrative
25    officer thereof; or
26        (3) the defendant has been convicted of murdering two

 

 

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1    or more individuals under subsection (a) of this Section or
2    under any law of the United States or of any state which is
3    substantially similar to subsection (a) of this Section
4    regardless of whether the deaths occurred as the result of
5    the same act or of several related or unrelated acts so
6    long as the deaths were the result of either an intent to
7    kill more than one person or of separate acts which the
8    defendant knew would cause death or create a strong
9    probability of death or great bodily harm to the murdered
10    individual or another; or
11        (4) the murdered individual was killed as a result of
12    the hijacking of an airplane, train, ship, bus or other
13    public conveyance; or
14        (5) the defendant committed the murder pursuant to a
15    contract, agreement or understanding by which he was to
16    receive money or anything of value in return for committing
17    the murder or procured another to commit the murder for
18    money or anything of value; or
19        (6) the murdered individual was killed in the course of
20    another felony if:
21            (a) the murdered individual:
22                (i) was actually killed by the defendant, or
23                (ii) received physical injuries personally
24            inflicted by the defendant substantially
25            contemporaneously with physical injuries caused by
26            one or more persons for whose conduct the defendant

 

 

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1            is legally accountable under Section 5-2 of this
2            Code, and the physical injuries inflicted by
3            either the defendant or the other person or persons
4            for whose conduct he is legally accountable caused
5            the death of the murdered individual; and
6            (b) in performing the acts which caused the death
7        of the murdered individual or which resulted in
8        physical injuries personally inflicted by the
9        defendant on the murdered individual under the
10        circumstances of subdivision (ii) of subparagraph (a)
11        of paragraph (6) of subsection (b) of this Section, the
12        defendant acted with the intent to kill the murdered
13        individual or with the knowledge that his acts created
14        a strong probability of death or great bodily harm to
15        the murdered individual or another; and
16            (c) the other felony was an inherently violent
17        crime or the attempt to commit an inherently violent
18        crime. In this subparagraph (c), "inherently violent
19        crime" includes, but is not limited to, armed robbery,
20        robbery, predatory criminal sexual assault of a child,
21        aggravated criminal sexual assault, aggravated
22        kidnapping, aggravated vehicular hijacking, aggravated
23        arson, aggravated stalking, residential burglary, and
24        home invasion; or
25        (7) the murdered individual was under 12 years of age
26    and the death resulted from exceptionally brutal or heinous

 

 

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1    behavior indicative of wanton cruelty; or
2        (8) the defendant committed the murder with intent to
3    prevent the murdered individual from testifying or
4    participating in any criminal investigation or prosecution
5    or giving material assistance to the State in any
6    investigation or prosecution, either against the defendant
7    or another; or the defendant committed the murder because
8    the murdered individual was a witness in any prosecution or
9    gave material assistance to the State in any investigation
10    or prosecution, either against the defendant or another;
11    for purposes of this paragraph (8), "participating in any
12    criminal investigation or prosecution" is intended to
13    include those appearing in the proceedings in any capacity
14    such as trial judges, prosecutors, defense attorneys,
15    investigators, witnesses, 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 of
26    the murder, and while committing an offense punishable as a

 

 

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1    felony under Illinois law, or while engaged in a conspiracy
2    or solicitation to commit such offense, intentionally
3    killed an individual or counseled, commanded, induced,
4    procured or caused the intentional killing of the murdered
5    individual; or
6        (11) the murder was committed in a cold, calculated and
7    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 official
19    duties, or in retaliation for performing his official
20    duties, and the defendant knew or should have known that
21    the murdered individual was an emergency medical
22    technician - ambulance, emergency medical technician -
23    intermediate, emergency medical technician - paramedic,
24    ambulance driver, or other medical assistance or first aid
25    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 the
6    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 that
21    the murdered individual was a person with a disability. For
22    purposes of this paragraph (17), "person with a disability"
23    means a person who suffers from a permanent physical or
24    mental impairment resulting from disease, an injury, a
25    functional disorder, or a congenital condition that
26    renders the person incapable of adequately providing for

 

 

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1    his or her own health or personal care; or
2        (18) the murder was committed by reason of any person's
3    activity as a community policing volunteer or to prevent
4    any person from engaging in activity as a community
5    policing volunteer; or
6        (19) the murdered individual was subject to an order of
7    protection and the murder was committed by a person against
8    whom the same order of protection was issued under the
9    Illinois Domestic Violence Act of 1986; or
10        (20) the murdered individual was known by the defendant
11    to be a teacher or other person employed in any school and
12    the teacher or other employee is upon the grounds of a
13    school or grounds adjacent to a school, or is in any part
14    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.
18    (b-5) Aggravating Factor; Natural Life Imprisonment. A
19defendant who has been found guilty of first degree murder and
20who at the time of the commission of the offense had attained
21the age of 18 years or more may be sentenced to natural life
22imprisonment if (i) the murdered individual was a physician,
23physician assistant, psychologist, nurse, or advanced practice
24nurse, (ii) the defendant knew or should have known that the
25murdered individual was a physician, physician assistant,
26psychologist, nurse, or advanced practice nurse, and (iii) the

 

 

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1murdered individual was killed in the course of acting in his
2or her capacity as a physician, physician assistant,
3psychologist, nurse, or advanced practice nurse, or to prevent
4him or her from acting in that capacity, or in retaliation for
5his or her acting in that capacity.
6     (c) Consideration of factors in Aggravation and
7Mitigation.
8    The court shall consider, or shall instruct the jury to
9consider any aggravating and any mitigating factors which are
10relevant to the imposition of the death penalty. Aggravating
11factors may include but need not be limited to those factors
12set forth in subsection (b). Mitigating factors may include but
13need not be limited to the following:
14        (1) the defendant has no significant history of prior
15    criminal activity;
16        (2) the murder was committed while the defendant was
17    under the influence of extreme mental or emotional
18    disturbance, although not such as to constitute a defense
19    to prosecution;
20        (3) the murdered individual was a participant in the
21    defendant's homicidal conduct or consented to the
22    homicidal act;
23        (4) the defendant acted under the compulsion of threat
24    or menace of the imminent infliction of death or great
25    bodily harm;
26        (5) the defendant was not personally present during

 

 

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1    commission of the act or acts causing death;
2        (6) the defendant's background includes a history of
3    extreme emotional or physical abuse;
4        (7) the defendant suffers from a reduced mental
5    capacity.
6    Provided, however, that an action that does not otherwise
7mitigate first degree murder cannot qualify as a mitigating
8factor for first degree murder because of the discovery,
9knowledge, or disclosure of the victim's sexual orientation as
10defined in Section 1-103 of the Illinois Human Rights Act.
11    (d) Separate sentencing hearing.
12    Where requested by the State, the court shall conduct a
13separate sentencing proceeding to determine the existence of
14factors set forth in subsection (b) and to consider any
15aggravating or mitigating factors as indicated in subsection
16(c). The proceeding shall be conducted:
17        (1) before the jury that determined the defendant's
18    guilt; or
19        (2) before a jury impanelled for the purpose of the
20    proceeding if:
21            A. the defendant was convicted upon a plea of
22        guilty; or
23            B. the defendant was convicted after a trial before
24        the court sitting without a jury; or
25            C. the court for good cause shown discharges the
26        jury that determined the defendant's guilt; or

 

 

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1        (3) before the court alone if the defendant waives a
2    jury for the separate proceeding.
3    (e) Evidence and Argument.
4    During the proceeding any information relevant to any of
5the factors set forth in subsection (b) may be presented by
6either the State or the defendant under the rules governing the
7admission of evidence at criminal trials. Any information
8relevant to any additional aggravating factors or any
9mitigating factors indicated in subsection (c) may be presented
10by the State or defendant regardless of its admissibility under
11the rules governing the admission of evidence at criminal
12trials. The State and the defendant shall be given fair
13opportunity to rebut any information received at the hearing.
14    (f) Proof.
15    The burden of proof of establishing the existence of any of
16the factors set forth in subsection (b) is on the State and
17shall not be satisfied unless established beyond a reasonable
18doubt.
19    (g) Procedure - Jury.
20    If at the separate sentencing proceeding the jury finds
21that none of the factors set forth in subsection (b) exists,
22the court shall sentence the defendant to a term of
23imprisonment under Chapter V of the Unified Code of
24Corrections. If there is a unanimous finding by the jury that
25one or more of the factors set forth in subsection (b) exist,
26the jury shall consider aggravating and mitigating factors as

 

 

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1instructed by the court and shall determine whether the
2sentence of death shall be imposed. If the jury determines
3unanimously, after weighing the factors in aggravation and
4mitigation, that death is the appropriate sentence, the court
5shall sentence the defendant to death. If the court does not
6concur with the jury determination that death is the
7appropriate sentence, the court shall set forth reasons in
8writing including what facts or circumstances the court relied
9upon, along with any relevant documents, that compelled the
10court to non-concur with the sentence. This document and any
11attachments shall be part of the record for appellate review.
12The court shall be bound by the jury's sentencing
13determination.
14    If after weighing the factors in aggravation and
15mitigation, one or more jurors determines that death is not the
16appropriate sentence, the court shall sentence the defendant to
17a term of imprisonment under Chapter V of the Unified Code of
18Corrections.
19    (h) Procedure - No Jury.
20    In a proceeding before the court alone, if the court finds
21that none of the factors found in subsection (b) exists, the
22court shall sentence the defendant to a term of imprisonment
23under Chapter V of the Unified Code of Corrections.
24    If the Court determines that one or more of the factors set
25forth in subsection (b) exists, the Court shall consider any
26aggravating and mitigating factors as indicated in subsection

 

 

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1(c). If the Court determines, after weighing the factors in
2aggravation and mitigation, that death is the appropriate
3sentence, the Court shall sentence the defendant to death.
4    If the court finds that death is not the appropriate
5sentence, the court shall sentence the defendant to a term of
6imprisonment under Chapter V of the Unified Code of
7Corrections.
8    (h-5) Decertification as a capital case.
9    In a case in which the defendant has been found guilty of
10first degree murder by a judge or jury, or a case on remand for
11resentencing, and the State seeks the death penalty as an
12appropriate sentence, on the court's own motion or the written
13motion of the defendant, the court may decertify the case as a
14death penalty case if the court finds that the only evidence
15supporting the defendant's conviction is the uncorroborated
16testimony of an informant witness, as defined in Section 115-21
17of the Code of Criminal Procedure of 1963, concerning the
18confession or admission of the defendant or that the sole
19evidence against the defendant is a single eyewitness or single
20accomplice without any other corroborating evidence. If the
21court decertifies the case as a capital case under either of
22the grounds set forth above, the court shall issue a written
23finding. The State may pursue its right to appeal the
24decertification pursuant to Supreme Court Rule 604(a)(1). If
25the court does not decertify the case as a capital case, the
26matter shall proceed to the eligibility phase of the sentencing

 

 

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1hearing.
2    (i) Appellate Procedure.
3    The conviction and sentence of death shall be subject to
4automatic review by the Supreme Court. Such review shall be in
5accordance with rules promulgated by the Supreme Court. The
6Illinois Supreme Court may overturn the death sentence, and
7order the imposition of imprisonment under Chapter V of the
8Unified Code of Corrections if the court finds that the death
9sentence is fundamentally unjust as applied to the particular
10case. If the Illinois Supreme Court finds that the death
11sentence is fundamentally unjust as applied to the particular
12case, independent of any procedural grounds for relief, the
13Illinois Supreme Court shall issue a written opinion explaining
14this finding.
15    (j) Disposition of reversed death sentence.
16    In the event that the death penalty in this Act is held to
17be unconstitutional by the Supreme Court of the United States
18or of the State of Illinois, any person convicted of first
19degree murder shall be sentenced by the court to a term of
20imprisonment under Chapter V of the Unified Code of
21Corrections.
22    In the event that any death sentence pursuant to the
23sentencing provisions of this Section is declared
24unconstitutional by the Supreme Court of the United States or
25of the State of Illinois, the court having jurisdiction over a
26person previously sentenced to death shall cause the defendant

 

 

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1to be brought before the court, and the court shall sentence
2the defendant to a term of imprisonment under Chapter V of the
3Unified Code of Corrections.
4    (k) Guidelines for seeking the death penalty.
5    The Attorney General and State's Attorneys Association
6shall consult on voluntary guidelines for procedures governing
7whether or not to seek the death penalty. The guidelines do not
8have the force of law and are only advisory in nature.
9(Source: P.A. 99-143, eff. 7-27-15.)
 
10    (720 ILCS 5/9-2)  (from Ch. 38, par. 9-2)
11    Sec. 9-2. Second degree murder.
12    (a) A person commits the offense of second degree murder
13when he or she commits the offense of first degree murder as
14defined in paragraph (1) or (2) of subsection (a) of Section
159-1 of this Code and either of the following mitigating factors
16are present:
17        (1) at the time of the killing he or she is acting
18    under a sudden and intense passion resulting from serious
19    provocation by the individual killed or another whom the
20    offender endeavors to kill, but he or she negligently or
21    accidentally causes the death of the individual killed; or
22        (2) at the time of the killing he or she believes the
23    circumstances to be such that, if they existed, would
24    justify or exonerate the killing under the principles
25    stated in Article 7 of this Code, but his or her belief is

 

 

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1    unreasonable.
2    (b) Serious provocation is conduct sufficient to excite an
3intense passion in a reasonable person provided, however, that
4an action that does not otherwise constitute serious
5provocation cannot qualify as serious provocation because of
6the discovery, knowledge, or disclosure of the victim's sexual
7orientation as defined in Section 1-103 of the Illinois Human
8Rights Act.
9    (c) When evidence of either of the mitigating factors
10defined in subsection (a) of this Section has been presented,
11the burden of proof is on the defendant to prove either
12mitigating factor by a preponderance of the evidence before the
13defendant can be found guilty of second degree murder. The
14burden of proof, however, remains on the State to prove beyond
15a reasonable doubt each of the elements of first degree murder
16and, when appropriately raised, the absence of circumstances at
17the time of the killing that would justify or exonerate the
18killing under the principles stated in Article 7 of this Code.
19    (d) Sentence. Second degree murder is a Class 1 felony.
20(Source: P.A. 96-710, eff. 1-1-10.)".