96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB3370


 
Introduced 2/24/2009, by Rep. Tom Cross
 
SYNOPSIS AS INTRODUCED:













720 ILCS 5/9-1
 from Ch. 38, par. 9-1









 Amends the Criminal Code of 1961. Makes a technical change in a Section
concerning first degree murder.
















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A BILL FOR









 











HB3370

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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 1961 is amended by changing 
5
Section 9-1 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 the

12
the acts 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 
17
 of death or
great bodily harm to that individual or 
18
 another; or


19
  (3) he is attempting or committing a forcible felony 
20
 other than
second degree murder.


21
 (b) Aggravating Factors. A defendant who at the time of the

22
commission of the offense has attained the age of 18 or more 
23
and who has
been found guilty of first degree murder may be 
 


 






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sentenced to death if:


2
  (1) the murdered individual was a peace officer or 
3
 fireman killed in
the course of performing his official 
4
 duties, to prevent the performance
of his official duties, 
5
 or in retaliation for performing his official
duties, and 
6
 the defendant knew or
should have known that the murdered 
7
 individual was a peace officer or
fireman; or


8
  (2) the murdered individual was an employee of an 
9
 institution or
facility of the Department of Corrections, 
10
 or any similar local
correctional agency, killed in the 
11
 course of performing his official
duties, to prevent the 
12
 performance of his official duties, or in
retaliation for 
13
 performing his official duties, or the murdered
individual 
14
 was an inmate at such institution or facility and was 
15
 killed on the
grounds thereof, or the murdered individual 
16
 was otherwise present in such
institution or facility with 
17
 the knowledge and approval of the chief
administrative 
18
 officer thereof; or


19
  (3) the defendant has been convicted of murdering two 
20
 or more
individuals under subsection (a) of this Section or 
21
 under any law of the
United States or of any state which is 
22
 substantially similar to
subsection (a) of this Section 
23
 regardless of whether the deaths
occurred as the result of 
24
 the same act or of several related or
unrelated acts so 
25
 long as the deaths were the result of either an intent
to 
26
 kill more than one person or of separate acts which
the 
 


 






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1
 defendant knew would cause death or create a strong 
2
 probability of
death or great bodily harm to the murdered 
3
 individual or another; or


4
  (4) the murdered individual was killed as a result of 
5
 the
hijacking of an airplane, train, ship, bus or other 
6
 public conveyance; or


7
  (5) the defendant committed the murder pursuant to a 
8
 contract,
agreement or understanding by which he was to 
9
 receive money or anything
of value in return for committing 
10
 the murder or procured another to
commit the murder for 
11
 money or anything of value; or


12
  (6) the murdered individual was killed in the course of 
13
 another felony if:


14
   (a) the murdered individual:


15
    (i) was actually killed by the defendant, or


16
    (ii) received physical injuries personally 
17
 inflicted by the defendant
substantially 
18
 contemporaneously with physical injuries caused by 
19
 one or
more persons for whose conduct the defendant 
20
 is legally accountable under
Section 5-2 of this 
21
 Code, and the physical injuries inflicted by 
22
 either
the defendant or the other person or persons 
23
 for whose conduct he is legally
accountable caused 
24
 the death of the murdered individual; and


25
   (b) in performing the acts which caused the death 
26
 of the murdered
individual or which resulted in 
 


 






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1
 physical injuries personally inflicted by
the 
2
 defendant on the murdered individual under the 
3
 circumstances of
subdivision (ii) of subparagraph (a) 
4
 of paragraph (6) of subsection (b) of
this Section, the 
5
 defendant acted with the intent to kill the murdered

6
 individual or with the knowledge that his acts created 
7
 a strong probability
of death or great bodily harm to 
8
 the murdered individual or another; and


9
   (c) the other felony was an inherently violent 
10
 crime
or the attempt to commit an inherently
violent 
11
 crime.
In this subparagraph (c), "inherently violent 
12
 crime" includes, but is not
limited to, armed robbery, 
13
 robbery, predatory criminal sexual assault of a
child,

14
 aggravated criminal sexual assault, aggravated 
15
 kidnapping, aggravated vehicular
hijacking,
aggravated 
16
 arson, aggravated stalking, residential burglary, and 
17
 home
invasion; or


18
  (7) the murdered individual was under 12 years of age 
19
 and the
death resulted from exceptionally brutal or heinous 
20
 behavior indicative of
wanton cruelty; or


21
  (8) the defendant committed the murder with intent to

22
 prevent the murdered individual from testifying or 
23
 participating in any
criminal investigation or prosecution

24
 or giving material assistance to the State in any 
25
 investigation or
prosecution, either against the defendant 
26
 or another; or the defendant
committed the murder because 
 


 






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1
 the murdered individual was a witness in any
prosecution or 
2
 gave material assistance to the State in any investigation

3
 or prosecution, either against the defendant or another;

4
 for purposes of this paragraph (8), "participating in any 
5
 criminal
investigation
or prosecution" is intended to 
6
 include those appearing in the proceedings in
any capacity 
7
 such as trial judges, prosecutors, defense attorneys,

8
 investigators, witnesses, or jurors; or


9
  (9) the defendant, while committing an offense 
10
 punishable under
Sections 401, 401.1, 401.2, 405, 405.2, 
11
 407 or 407.1 or subsection (b) of
Section
404 of the 
12
 Illinois Controlled Substances Act, or while engaged in a

13
 conspiracy or solicitation to commit such offense, 
14
 intentionally killed an
individual or counseled, 
15
 commanded, induced, procured or caused the
intentional 
16
 killing of the murdered individual; or


17
  (10) the defendant was incarcerated in an institution 
18
 or facility of
the Department of Corrections at the time of 
19
 the murder, and while
committing an offense punishable as a 
20
 felony under Illinois law, or while
engaged in a conspiracy 
21
 or solicitation to commit such offense,
intentionally 
22
 killed an individual or counseled, commanded, induced,

23
 procured or caused the intentional killing of the murdered 
24
 individual; or


25
  (11) the murder was committed in a cold, calculated and 
26
 premeditated
manner pursuant to a preconceived plan, 
 


 






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 scheme or design to take a human
life by unlawful means, 
2
 and the conduct of the defendant created a
reasonable 
3
 expectation that the death of a human being would result

4
 therefrom; or


5
  (12) the murdered individual was an emergency medical 
6
 technician -
ambulance, emergency medical technician - 
7
 intermediate, emergency medical
technician - paramedic, 
8
 ambulance driver, or
other medical assistance or first aid 
9
 personnel, employed by a municipality
or other 
10
 governmental unit, killed in the course of performing his 
11
 official
duties, to prevent the performance of his official 
12
 duties, or in retaliation
for performing his official 
13
 duties, and the defendant knew or should have
known that 
14
 the murdered individual was an emergency medical 
15
 technician -
ambulance, emergency medical technician - 
16
 intermediate, emergency medical
technician - paramedic, 
17
 ambulance driver, or
other medical assistance or first aid 
18
 personnel; or


19
  (13) the defendant was a principal administrator, 
20
 organizer, or leader
of a calculated criminal drug 
21
 conspiracy consisting of a hierarchical position
of 
22
 authority superior to that of all other members of the 
23
 conspiracy, and the
defendant counseled, commanded, 
24
 induced, procured, or caused the intentional
killing of the 
25
 murdered person;
or


26
  (14) the murder was intentional and involved the 
 


 






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1
 infliction of torture.
For
the purpose of this Section 
2
 torture means the infliction of or subjection to
extreme 
3
 physical pain, motivated by an intent to increase or 
4
 prolong the pain,
suffering or agony of the victim; or


5
  (15) the murder was committed as a result of the 
6
 intentional discharge
of a firearm by the defendant from a 
7
 motor vehicle and the victim was not
present within the 
8
 motor vehicle; or


9
  (16) the murdered individual was 60 years of age or 
10
 older and the death
resulted
from exceptionally brutal or 
11
 heinous behavior indicative of wanton cruelty; or


12
  (17) the murdered individual was a disabled person and 
13
 the defendant knew
or
should have known that the murdered 
14
 individual was disabled. For purposes of
this paragraph 
15
 (17), "disabled person" means a person who suffers from a

16
 permanent physical or mental impairment resulting from 
17
 disease, an injury,
a functional disorder, or a congenital 
18
 condition that renders the person
incapable of
adequately 
19
 providing for his or her own health or personal care; or


20
  (18) the murder was committed by reason of any person's 
21
 activity as a
community policing volunteer or to prevent 
22
 any person from engaging in activity
as a community 
23
 policing volunteer; or


24
  (19) the murdered individual was subject to an order of 
25
 protection and the
murder was committed by a person against 
26
 whom the same order of protection was
issued under the 
 


 






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1
 Illinois Domestic Violence Act of 1986; or


2
  (20) the murdered individual was known by the defendant 
3
 to be a teacher or
other person employed in any school and 
4
 the teacher or other employee is upon
the grounds of a 
5
 school or grounds adjacent to a school, or is in any part 
6
 of a
building used for school purposes; or


7
  (21) the murder was committed by the defendant in 
8
 connection with or as
a
result of the offense of terrorism 
9
 as defined in Section 29D-30 of this
Code.


10
  (c) Consideration of factors in Aggravation and 
11
Mitigation.


12
 The court shall consider, or shall instruct the jury to 
13
consider any
aggravating and any mitigating factors which are 
14
relevant to the
imposition of the death penalty. Aggravating 
15
factors may include but
need not be limited to those factors 
16
set forth in subsection (b).
Mitigating factors may include but 
17
need not be limited to the following:


18
  (1) the defendant has no significant history of prior 
19
 criminal
activity;


20
  (2) the murder was committed while the defendant was 
21
 under
the influence of extreme mental or emotional 
22
 disturbance, although not such
as to constitute a defense 
23
 to prosecution;


24
  (3) the murdered individual was a participant in the

25
 defendant's homicidal conduct or consented to the 
26
 homicidal act;


 


 






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1
  (4) the defendant acted under the compulsion of threat 
2
 or
menace of the imminent infliction of death or great 
3
 bodily harm;


4
  (5) the defendant was not personally present during

5
 commission of the act or acts causing death;


6
  (6) the defendant's background includes a history of 
7
 extreme emotional
or physical abuse;


8
  (7) the defendant suffers from a reduced mental 
9
 capacity.


10
 (d) Separate sentencing hearing.


11
 Where requested by the State, the court shall conduct a 
12
separate
sentencing proceeding to determine the existence of 
13
factors set forth in
subsection (b) and to consider any 
14
aggravating or mitigating factors as
indicated in subsection 
15
(c). The proceeding shall be conducted:


16
  (1) before the jury that determined the defendant's 
17
 guilt; or


18
  (2) before a jury impanelled for the purpose of the 
19
 proceeding if:


20
   A. the defendant was convicted upon a plea of 
21
 guilty; or


22
   B. the defendant was convicted after a trial before 
23
 the court
sitting without a jury; or


24
   C. the court for good cause shown discharges the 
25
 jury that
determined the defendant's guilt; or


26
  (3) before the court alone if the defendant waives a 
 


 






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 jury
for the separate proceeding.


2
 (e) Evidence and Argument.


3
 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.


13
 (f) Proof.


14
 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.


18
 (g) Procedure - Jury.


19
 If at the separate sentencing proceeding the jury finds 
20
that none of
the factors set forth in subsection (b) exists, 
21
the court shall sentence
the defendant to a term of 
22
imprisonment under Chapter V of the Unified
Code of 
23
Corrections. If there is a unanimous finding by the jury that

24
one or more of the factors set forth in subsection (b) exist, 
25
the jury
shall consider aggravating and mitigating factors as 
26
instructed by the
court and shall determine whether the 
 


 






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1
sentence of death shall be
imposed. If the jury determines 
2
unanimously, after weighing the factors in
aggravation and 
3
mitigation, that death is the appropriate sentence, the court 
4
shall sentence the defendant to death.
If the court does not 
5
concur with the jury determination that death is the

6
appropriate sentence, the court shall set forth reasons in 
7
writing
including what facts or circumstances the court relied 
8
upon,
along with any relevant
documents, that compelled the 
9
court to non-concur with the sentence. This
document and any 
10
attachments shall be part of the record for appellate
review. 
11
The court shall be bound by the jury's sentencing 
12
determination.


13
 If after weighing the factors in aggravation and 
14
mitigation, one or more
jurors determines that death is not the 
15
appropriate sentence,
the
court shall sentence the defendant to 
16
a term of imprisonment under
Chapter V of the Unified Code of 
17
Corrections.


18
 (h) Procedure - No Jury.


19
 In a proceeding before the court alone, if the court finds 
20
that none
of the factors found in subsection (b) exists, the 
21
court shall sentence
the defendant to a term of imprisonment 
22
under Chapter V of the Unified
Code of Corrections.


23
 If the Court determines that one or more of the factors set 
24
forth in
subsection (b) exists, the Court shall consider any 
25
aggravating and
mitigating factors as indicated in subsection 
26
(c). If the Court
determines, after weighing the factors in 
 


 






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1
aggravation and mitigation, that
death is the appropriate 
2
sentence, the Court shall sentence the
defendant to death.


3
 If
the court finds that death is not the
appropriate 
4
sentence, the
court shall sentence the defendant to a term of 
5
imprisonment under
Chapter V of the Unified Code of 
6
Corrections.


7
 (h-5) Decertification as a capital case.


8
 In a case in which the defendant has been found guilty of 
9
first degree murder
by a judge or jury, or a case on remand for 
10
resentencing, and the State seeks
the death penalty as an 
11
appropriate
sentence,
on the court's own motion or the written 
12
motion of the defendant, the court
may decertify the case as a 
13
death penalty case if the court finds that the only
evidence 
14
supporting the defendant's conviction is the uncorroborated 
15
testimony
of an informant witness, as defined in Section 115-21 
16
of the Code of Criminal
Procedure of 1963, concerning the 
17
confession or admission of the defendant or
that the sole 
18
evidence against the defendant is a single eyewitness or single

19
accomplice without any other corroborating evidence.
If the 
20
court decertifies the case as a capital case
under either of 
21
the grounds set forth above, the court shall issue a
written 
22
finding. The State may pursue its right to appeal the 
23
decertification
pursuant to Supreme Court Rule 604(a)(1). If 
24
the court does not
decertify the case as a capital case, the 
25
matter shall proceed to the
eligibility phase of the sentencing 
26
hearing.


 


 






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1
 (i) Appellate Procedure.


2
 The conviction and sentence of death shall be subject to 
3
automatic
review by the Supreme Court. Such review shall be in 
4
accordance with
rules promulgated by the Supreme Court.
The 
5
Illinois Supreme Court may overturn the death sentence, and 
6
order the
imposition of imprisonment under Chapter V of the 
7
Unified Code of
Corrections if the court finds that the death 
8
sentence is fundamentally
unjust as applied to the particular 
9
case.
If the Illinois Supreme Court finds that the
death 
10
sentence is fundamentally unjust as applied to the particular 
11
case,
independent of any procedural grounds for relief, the 
12
Illinois Supreme Court
shall issue a written opinion explaining 
13
this finding.


14
 (j) Disposition of reversed death sentence.


15
 In the event that the death penalty in this Act is held to 
16
be
unconstitutional by the Supreme Court of the United States 
17
or of the
State of Illinois, any person convicted of first 
18
degree murder shall be
sentenced by the court to a term of 
19
imprisonment under Chapter V of the
Unified Code of 
20
Corrections.


21
 In the event that any death sentence pursuant to the 
22
sentencing
provisions of this Section is declared 
23
unconstitutional by the Supreme
Court of the United States or 
24
of the State of Illinois, the court having
jurisdiction over a 
25
person previously sentenced to death shall cause the
defendant 
26
to be brought before the court, and the court shall sentence

 


 






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1
the defendant to a term of imprisonment under Chapter V of the

2
Unified Code of Corrections.


3
 (k) Guidelines for seeking the death penalty.


4
 The Attorney General and
State's Attorneys Association 
5
shall consult on voluntary guidelines for
procedures governing 
6
whether or not to seek the death penalty. The guidelines
do not

7
have the force of law and are only advisory in nature.


8
(Source: P.A. 92-854, eff. 12-5-02; 93-605, eff. 11-19-03.)