Public Act 90-0668 of the 90th General Assembly

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Public Act 90-0668

HB3652 Enrolled                                LRB9009727DJcd

    AN ACT to amend the Criminal Code  of  1961  by  changing
Section 9-1.

    Be  it  enacted  by  the People of the State of Illinois,
represented in the General Assembly:

    Section 5.  The Criminal  Code  of  1961  is  amended  by
changing Section 9-1 as follows:

    (720 ILCS 5/9-1) (from Ch. 38, par. 9-1)
    Sec.  9-1.  First  degree  Murder  -  Death  penalties  -
Exceptions - Separate Hearings - Proof - Findings - Appellate
procedures - Reversals.
    (a)  A  person  who  kills  an  individual without lawful
justification commits first degree murder if,  in  performing
the acts which cause the death:
         (1)  he  either  intends  to kill or do great bodily
    harm to that individual or another, or  knows  that  such
    acts will cause death to that individual or another; or
         (2)  he   knows  that  such  acts  create  a  strong
    probability  of  death  or  great  bodily  harm  to  that
    individual or another; or
         (3)  he  is  attempting  or  committing  a  forcible
    felony other than second degree murder.
    (b)  Aggravating Factors.  A defendant who at the time of
the commission of the offense has attained the age of  18  or
more and who has been found guilty of first degree murder may
be sentenced to death if:
         (1)  the  murdered individual was a peace officer or
    fireman killed in the course of performing  his  official
    duties,  to  prevent  the  performance  of  his  official
    duties,  or  in  retaliation  for performing his official
    duties, and the defendant knew or should have known  that
    the  murdered  individual was a peace officer or fireman;
    or
         (2)  the murdered individual was an employee  of  an
    institution or facility of the Department of Corrections,
    or  any  similar local correctional agency, killed in the
    course of performing his official duties, to prevent  the
    performance of his official duties, or in retaliation for
    performing   his   official   duties,   or  the  murdered
    individual was an inmate at such institution or  facility
    and  was  killed  on the grounds thereof, or the murdered
    individual was otherwise present in such  institution  or
    facility  with  the  knowledge  and approval of the chief
    administrative officer thereof; or
         (3)  the defendant has been convicted  of  murdering
    two  or  more  individuals  under  subsection (a) of this
    Section or under any law of the United States or  of  any
    state which is substantially similar to subsection (a) of
    this  Section  regardless  of whether the deaths occurred
    as the result of the same act or of  several  related  or
    unrelated  acts  so long as the deaths were the result of
    either an intent to kill  more  than  one  person  or  of
    separate  acts which the defendant knew would cause death
    or create a strong probability of death or  great  bodily
    harm to the murdered individual or another; or
         (4)  the  murdered individual was killed as a result
    of the hijacking of an  airplane,  train,  ship,  bus  or
    other public conveyance; or
         (5)  the  defendant committed the murder pursuant to
    a contract, agreement or understanding by which he was to
    receive  money  or  anything  of  value  in  return   for
    committing  the  murder or procured another to commit the
    murder for money or anything of value; or
         (6)  the  murdered  individual  was  killed  in  the
    course of another felony if:
              (a)  the murdered individual:
                   (i)  was actually killed by the defendant,
              or
                   (ii)  received      physical      injuries
              personally   inflicted   by    the    defendant
              substantially  contemporaneously  with physical
              injuries caused by  one  or  more  persons  for
              whose   conduct   the   defendant   is  legally
              accountable under Section 5-2 of this Code, and
              the physical injuries inflicted by  either  the
              defendant  or  the  other person or persons for
              whose conduct he is legally accountable  caused
              the death of the murdered individual; and
              (b)  in  performing  the  acts which caused the
         death of the murdered individual or  which  resulted
         in  physical  injuries  personally  inflicted by the
         defendant  on  the  murdered  individual  under  the
         circumstances of subdivision  (ii)  of  subparagraph
         (a)  of  paragraph  (6)  of  subsection  (b) of this
         Section, the defendant acted with the intent to kill
         the murdered individual or with the  knowledge  that
         his  acts  created  a strong probability of death or
         great bodily harm  to  the  murdered  individual  or
         another; and
              (c)  the other felony was one of the following:
         armed  robbery,  armed  violence, robbery, predatory
         criminal  sexual  assault  of  a  child,  aggravated
         criminal  sexual  assault,  aggravated   kidnapping,
         aggravated  vehicular hijacking, forcible detention,
         arson,  aggravated   arson,   aggravated   stalking,
         burglary,   residential   burglary,  home  invasion,
         calculated criminal drug conspiracy  as  defined  in
         Section  405  of  the Illinois Controlled Substances
         Act, streetgang criminal drug conspiracy as  defined
         in   Section   405.2   of  the  Illinois  Controlled
         Substances Act, or the attempt to commit any of  the
         felonies listed in this subsection (c); or
         (7)  the  murdered  individual was under 12 years of
    age and the death resulted from exceptionally  brutal  or
    heinous behavior indicative of wanton cruelty; or
         (8)  the  defendant committed the murder with intent
    to prevent the murdered individual from testifying in any
    criminal prosecution or giving material assistance to the
    State in any investigation or prosecution, either against
    the defendant or another; or the defendant committed  the
    murder  because  the murdered individual was a witness in
    any prosecution or gave material assistance to the  State
    in  any  investigation or prosecution, either against the
    defendant or another; or
         (9)  the  defendant,  while  committing  an  offense
    punishable under Sections 401, 401.1, 401.2, 405,  405.2,
    407  or  407.1  or  subsection  (b) of Section 404 of the
    Illinois Controlled Substances Act, or while engaged in a
    conspiracy  or  solicitation  to  commit  such   offense,
    intentionally   killed   an   individual   or  counseled,
    commanded, induced, procured or  caused  the  intentional
    killing of the murdered individual; or
         (10)  the   defendant   was   incarcerated   in   an
    institution  or facility of the Department of Corrections
    at the time  of  the  murder,  and  while  committing  an
    offense  punishable  as  a  felony under Illinois law, or
    while engaged in a conspiracy or solicitation  to  commit
    such  offense,  intentionally  killed  an  individual  or
    counseled,  commanded,  induced,  procured  or caused the
    intentional killing of the murdered individual; or
         (11)  the murder was committed in a cold, calculated
    and premeditated manner pursuant to a preconceived  plan,
    scheme  or design to take a human life by unlawful means,
    and the conduct of the  defendant  created  a  reasonable
    expectation  that the death of a human being would result
    therefrom; or
         (12)  the  murdered  individual  was  an   emergency
    medical   technician   -   ambulance,  emergency  medical
    technician - intermediate, emergency medical technician -
    paramedic, ambulance driver, or other medical  assistance
    or  first  aid  personnel,  employed by a municipality or
    other  governmental  unit,  killed  in  the   course   of
    performing   his   official   duties,   to   prevent  the
    performance of his official duties, or in retaliation for
    performing his official duties, and the defendant knew or
    should have known that the  murdered  individual  was  an
    emergency   medical  technician  -  ambulance,  emergency
    medical  technician  -  intermediate,  emergency  medical
    technician  -  paramedic,  ambulance  driver,  or   other
    medical assistance or first aid personnel; or
         (13)  the  defendant  was a principal administrator,
    organizer,  or  leader  of  a  calculated  criminal  drug
    conspiracy  consisting  of  a  hierarchical  position  of
    authority superior to that of all other  members  of  the
    conspiracy,   and  the  defendant  counseled,  commanded,
    induced, procured, or caused the intentional  killing  of
    the murdered person; or
         (14)  the  murder  was  intentional and involved the
    infliction of torture.  For the purpose of  this  Section
    torture  means the infliction of or subjection to extreme
    physical pain, motivated by  an  intent  to  increase  or
    prolong the pain, suffering or agony of the victim; or
         (15)  the  murder  was  committed as a result of the
    intentional discharge of a firearm by the defendant  from
    a motor vehicle and the victim was not present within the
    motor vehicle; or
         (16)  the murdered individual was 60 years of age or
    older and the death resulted from exceptionally brutal or
    heinous behavior indicative of wanton cruelty; or
         (17)  the  murdered individual was a disabled person
    and the defendant knew or  should  have  known  that  the
    murdered  individual  was disabled.  For purposes of this
    paragraph (17), "disabled  person"  means  a  person  who
    suffers  from  a  permanent physical or mental impairment
    resulting from disease, an injury, a functional disorder,
    or  a  congenital  condition  that  renders  the   person
    incapable  of  adequately  providing  for  his or her own
    health or personal care; or.
         (18)  the murdered  individual  was  subject  to  an
    order  of  protection  and  the murder was committed by a
    person against whom the  same  order  of  protection  was
    issued under the Illinois Domestic Violence Act of 1986.
    (c)  Consideration   of   factors   in   Aggravation  and
Mitigation.
    The court shall consider, or shall instruct the  jury  to
consider any aggravating and any mitigating factors which are
relevant to the imposition of the death penalty.  Aggravating
factors  may include but need not be limited to those factors
set forth in subsection (b). Mitigating factors  may  include
but need not be limited to the following:
         (1)  the  defendant  has  no  significant history of
    prior criminal activity;
         (2)  the murder was committed  while  the  defendant
    was  under  the  influence of extreme mental or emotional
    disturbance, although not such as to constitute a defense
    to prosecution;
         (3)  the murdered individual was  a  participant  in
    the  defendant's  homicidal  conduct  or consented to the
    homicidal act;
         (4)  the defendant acted  under  the  compulsion  of
    threat  or  menace of the imminent infliction of death or
    great bodily harm;
         (5)  the defendant was not personally present during
    commission of the act or acts causing death.
    (d)  Separate sentencing hearing.
    Where requested by the State, the court shall  conduct  a
separate  sentencing proceeding to determine the existence of
factors set forth in  subsection  (b)  and  to  consider  any
aggravating  or mitigating factors as indicated in subsection
(c).  The proceeding shall be conducted:
         (1)  before the jury that determined the defendant's
    guilt; or
         (2)  before a jury impanelled for the purpose of the
    proceeding if:
              A.  the defendant was convicted upon a plea  of
         guilty; or
              B.  the  defendant  was convicted after a trial
         before the court sitting without a jury; or
              C.  the court for good cause  shown  discharges
         the jury that determined the defendant's guilt; or
         (3)  before  the court alone if the defendant waives
    a jury for the separate proceeding.
    (e)  Evidence and Argument.
    During the proceeding any information relevant to any  of
the  factors  set forth in subsection (b) may be presented by
either the State or the defendant under the  rules  governing
the   admission   of   evidence   at  criminal  trials.   Any
information relevant to any additional aggravating factors or
any mitigating factors indicated in  subsection  (c)  may  be
presented  by  the  State  or  defendant  regardless  of  its
admissibility  under  the  rules  governing  the admission of
evidence at criminal trials.  The  State  and  the  defendant
shall  be  given  fair  opportunity  to rebut any information
received at the hearing.
    (f)  Proof.
    The burden of proof of establishing the existence of  any
of  the  factors  set forth in subsection (b) is on the State
and shall  not  be  satisfied  unless  established  beyond  a
reasonable doubt.
    (g)  Procedure - Jury.
    If  at  the separate sentencing proceeding the jury finds
that none of the factors set forth in subsection (b)  exists,
the   court  shall  sentence  the  defendant  to  a  term  of
imprisonment  under  Chapter  V  of  the  Unified   Code   of
Corrections.   If  there  is  a unanimous finding by the jury
that one or more of the factors set forth in  subsection  (b)
exist,  the  jury  shall  consider aggravating and mitigating
factors as  instructed  by  the  court  and  shall  determine
whether  the sentence of death shall be imposed.  If the jury
determines unanimously that there are no  mitigating  factors
sufficient  to preclude the imposition of the death sentence,
the court shall sentence the defendant to death.
    Unless the jury  unanimously  finds  that  there  are  no
mitigating  factors  sufficient to preclude the imposition of
the death sentence the court shall sentence the defendant  to
a term of imprisonment under Chapter V of the Unified Code of
Corrections.
    (h)  Procedure - No Jury.
    In  a  proceeding  before  the  court alone, if the court
finds that none  of  the  factors  found  in  subsection  (b)
exists,  the  court shall sentence the defendant to a term of
imprisonment  under  Chapter  V  of   the  Unified  Code   of
Corrections.
    If  the  Court determines that one or more of the factors
set forth in subsection (b) exists, the Court shall  consider
any  aggravating  and  mitigating  factors  as  indicated  in
subsection  (c).   If  the Court determines that there are no
mitigating factors sufficient to preclude the  imposition  of
the death sentence, the Court shall sentence the defendant to
death.
    Unless  the  court  finds  that  there  are no mitigating
factors sufficient to preclude the imposition of the sentence
of death, the court shall sentence the defendant to a term of
imprisonment  under  Chapter  V  of  the  Unified   Code   of
Corrections.
    (i)  Appellate Procedure.
    The  conviction and sentence of death shall be subject to
automatic review by the Supreme Court.  Such review shall  be
in accordance with rules promulgated by the Supreme Court.
    (j)  Disposition of reversed death sentence.
    In  the  event that the death penalty in this Act is held
to be unconstitutional by the Supreme  Court  of  the  United
States  or  of the State of Illinois, any person convicted of
first degree murder shall be sentenced by the court to a term
of imprisonment under  Chapter  V  of  the  Unified  Code  of
Corrections.
    In  the  event  that  any  death sentence pursuant to the
sentencing   provisions   of   this   Section   is   declared
unconstitutional by the Supreme Court of the United States or
of the State of Illinois, the court having jurisdiction  over
a  person  previously  sentenced  to  death  shall  cause the
defendant to be brought before the court, and the court shall
sentence the  defendant  to  a  term  of  imprisonment  under
Chapter V of the Unified Code of Corrections.
(Source: P.A. 89-235, eff.  8-4-95;  89-428,  eff.  12-13-95;
89-462,  eff.  5-29-96;  89-498,  eff.  6-27-96; 90-213, eff.
1-1-98.)

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