Bill Text: IL SB1761 | 2017-2018 | 100th General Assembly | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Amends the Criminal Code of 2012. Provides that a non-violent sexual advance, nor the discovery, knowledge, or perception of a person's sex or sexual orientation, including under circumstances in which the defendant and victim dated or had a romantic or sexual relationship, cannot be mitigating factors relevant to the imposition of the death penalty for first degree murder (no effect unless the death penalty is reinstated for the offense). Also provides that the same conduct does not constitute serious provocation for second degree murder.

Spectrum: Partisan Bill (Democrat 16-0)

Status: (Passed) 2017-08-25 - Public Act . . . . . . . . . 100-0460 [SB1761 Detail]

Download: Illinois-2017-SB1761-Engrossed.html

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AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Criminal Code of 2012 is amended by changing
Sections 9-1 and 9-2 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

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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

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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

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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 an inherently violent
crime or the attempt to commit an inherently violent
crime. In this subparagraph (c), "inherently violent
crime" includes, but is not limited to, armed robbery,
robbery, predatory criminal sexual assault of a child,
aggravated criminal sexual assault, aggravated
kidnapping, aggravated vehicular hijacking, aggravated
arson, aggravated stalking, residential burglary, and
home invasion; 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 or
participating in any criminal investigation or 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

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

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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

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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 person with a
disability and the defendant knew or should have known that
the murdered individual was a person with a disability. For
purposes of this paragraph (17), "person with a disability"
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 murder was committed by reason of any person's
activity as a community policing volunteer or to prevent
any person from engaging in activity as a community
policing volunteer; or
(19) the murdered individual was subject to an order of
protection and the murder was committed by a person against

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whom the same order of protection was issued under the
Illinois Domestic Violence Act of 1986; or
(20) the murdered individual was known by the defendant
to be a teacher or other person employed in any school and
the teacher or other employee is upon the grounds of a
school or grounds adjacent to a school, or is in any part
of a building used for school purposes; or
(21) the murder was committed by the defendant in
connection with or as a result of the offense of terrorism
as defined in Section 29D-14.9 of this Code.
(b-5) Aggravating Factor; Natural Life Imprisonment. A
defendant who has been found guilty of first degree murder and
who at the time of the commission of the offense had attained
the age of 18 years or more may be sentenced to natural life
imprisonment if (i) the murdered individual was a physician,
physician assistant, psychologist, nurse, or advanced practice
nurse, (ii) the defendant knew or should have known that the
murdered individual was a physician, physician assistant,
psychologist, nurse, or advanced practice nurse, and (iii) the
murdered individual was killed in the course of acting in his
or her capacity as a physician, physician assistant,
psychologist, nurse, or advanced practice nurse, or to prevent
him or her from acting in that capacity, or in retaliation for
his or her acting in that capacity.
(c) Consideration of factors in Aggravation and
Mitigation.

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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;
(6) the defendant's background includes a history of
extreme emotional or physical abuse;
(7) the defendant suffers from a reduced mental
capacity.
Provided, however, that an action that does not otherwise
mitigate first degree murder cannot qualify as a mitigating

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factor for first degree murder because of the discovery,
knowledge, or disclosure of the victim's sexual orientation as
defined in Section 1-103 of the Illinois Human Rights Act.
(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

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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, after weighing the factors in aggravation and
mitigation, that death is the appropriate sentence, the court
shall sentence the defendant to death. If the court does not
concur with the jury determination that death is the
appropriate sentence, the court shall set forth reasons in

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writing including what facts or circumstances the court relied
upon, along with any relevant documents, that compelled the
court to non-concur with the sentence. This document and any
attachments shall be part of the record for appellate review.
The court shall be bound by the jury's sentencing
determination.
If after weighing the factors in aggravation and
mitigation, one or more jurors determines that death is not the
appropriate 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, after weighing the factors in
aggravation and mitigation, that death is the appropriate
sentence, the Court shall sentence the defendant to death.
If the court finds that death is not the appropriate
sentence, the court shall sentence the defendant to a term of
imprisonment under Chapter V of the Unified Code of
Corrections.

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(h-5) Decertification as a capital case.
In a case in which the defendant has been found guilty of
first degree murder by a judge or jury, or a case on remand for
resentencing, and the State seeks the death penalty as an
appropriate sentence, on the court's own motion or the written
motion of the defendant, the court may decertify the case as a
death penalty case if the court finds that the only evidence
supporting the defendant's conviction is the uncorroborated
testimony of an informant witness, as defined in Section 115-21
of the Code of Criminal Procedure of 1963, concerning the
confession or admission of the defendant or that the sole
evidence against the defendant is a single eyewitness or single
accomplice without any other corroborating evidence. If the
court decertifies the case as a capital case under either of
the grounds set forth above, the court shall issue a written
finding. The State may pursue its right to appeal the
decertification pursuant to Supreme Court Rule 604(a)(1). If
the court does not decertify the case as a capital case, the
matter shall proceed to the eligibility phase of the sentencing
hearing.
(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. The
Illinois Supreme Court may overturn the death sentence, and
order the imposition of imprisonment under Chapter V of the

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Unified Code of Corrections if the court finds that the death
sentence is fundamentally unjust as applied to the particular
case. If the Illinois Supreme Court finds that the death
sentence is fundamentally unjust as applied to the particular
case, independent of any procedural grounds for relief, the
Illinois Supreme Court shall issue a written opinion explaining
this finding.
(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.
(k) Guidelines for seeking the death penalty.
The Attorney General and State's Attorneys Association
shall consult on voluntary guidelines for procedures governing
whether or not to seek the death penalty. The guidelines do not

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have the force of law and are only advisory in nature.
(Source: P.A. 99-143, eff. 7-27-15.)
(720 ILCS 5/9-2) (from Ch. 38, par. 9-2)
Sec. 9-2. Second degree murder.
(a) A person commits the offense of second degree murder
when he or she commits the offense of first degree murder as
defined in paragraph (1) or (2) of subsection (a) of Section
9-1 of this Code and either of the following mitigating factors
are present:
(1) at the time of the killing he or she is acting
under a sudden and intense passion resulting from serious
provocation by the individual killed or another whom the
offender endeavors to kill, but he or she negligently or
accidentally causes the death of the individual killed; or
(2) at the time of the killing he or she believes the
circumstances to be such that, if they existed, would
justify or exonerate the killing under the principles
stated in Article 7 of this Code, but his or her belief is
unreasonable.
(b) Serious provocation is conduct sufficient to excite an
intense passion in a reasonable person provided, however, that
an action that does not otherwise constitute serious
provocation cannot qualify as serious provocation because of
the discovery, knowledge, or disclosure of the victim's sexual
orientation as defined in Section 1-103 of the Illinois Human

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Rights Act.
(c) When evidence of either of the mitigating factors
defined in subsection (a) of this Section has been presented,
the burden of proof is on the defendant to prove either
mitigating factor by a preponderance of the evidence before the
defendant can be found guilty of second degree murder. The
burden of proof, however, remains on the State to prove beyond
a reasonable doubt each of the elements of first degree murder
and, when appropriately raised, the absence of circumstances at
the time of the killing that would justify or exonerate the
killing under the principles stated in Article 7 of this Code.
(d) Sentence. Second degree murder is a Class 1 felony.
(Source: P.A. 96-710, eff. 1-1-10.)