Text of IL SB 1761 (2017)

100TH GENERAL ASSEMBLY State of Illinois 2017 and 2018 SB1761 Introduced 2/9/2017, by Sen. Daniel Biss SYNOPSIS AS INTRODUCED: 720 ILCS 5/9-1 from Ch. 38, par. 9-1 720 ILCS 5/9-2 from Ch. 38, par. 9-2 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. LRB100 08614 SLF 18748 b A BILL FOR SB1761LRB100 08614 SLF 18748 b 1 AN ACT concerning criminal law. 2 Be it enacted by the People of the State of Illinois, 3represented in the General Assembly: 4 Section 5. The Criminal Code of 2012 is amended by changing 5Sections 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 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 22commission of the offense has attained the age of 18 or more 23and who has been found guilty of first degree murder may be SB1761- 2 -LRB100 08614 SLF 18748 b 1sentenced 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 SB1761- 3 -LRB100 08614 SLF 18748 b 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 SB1761- 4 -LRB100 08614 SLF 18748 b 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 SB1761- 5 -LRB100 08614 SLF 18748 b 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, SB1761- 6 -LRB100 08614 SLF 18748 b 1 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 SB1761- 7 -LRB100 08614 SLF 18748 b 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 person with a 13 disability and the defendant knew or should have known that 14 the murdered individual was a person with a disability. For 15 purposes of this paragraph (17), "person with a disability" 16 means a person who suffers from a permanent physical or 17 mental impairment resulting from disease, an injury, a 18 functional disorder, or a congenital condition that 19 renders the person incapable of adequately providing for 20 his or her own health or personal care; or 21 (18) the murder was committed by reason of any person's 22 activity as a community policing volunteer or to prevent 23 any person from engaging in activity as a community 24 policing volunteer; or 25 (19) the murdered individual was subject to an order of 26 protection and the murder was committed by a person against SB1761- 8 -LRB100 08614 SLF 18748 b 1 whom the same order of protection was issued under the 2 Illinois Domestic Violence Act of 1986; or 3 (20) the murdered individual was known by the defendant 4 to be a teacher or other person employed in any school and 5 the teacher or other employee is upon the grounds of a 6 school or grounds adjacent to a school, or is in any part 7 of a building used for school purposes; or 8 (21) the murder was committed by the defendant in 9 connection with or as a result of the offense of terrorism 10 as defined in Section 29D-14.9 of this Code. 11 (b-5) Aggravating Factor; Natural Life Imprisonment. A 12defendant who has been found guilty of first degree murder and 13who at the time of the commission of the offense had attained 14the age of 18 years or more may be sentenced to natural life 15imprisonment if (i) the murdered individual was a physician, 16physician assistant, psychologist, nurse, or advanced practice 17nurse, (ii) the defendant knew or should have known that the 18murdered individual was a physician, physician assistant, 19psychologist, nurse, or advanced practice nurse, and (iii) the 20murdered individual was killed in the course of acting in his 21or her capacity as a physician, physician assistant, 22psychologist, nurse, or advanced practice nurse, or to prevent 23him or her from acting in that capacity, or in retaliation for 24his or her acting in that capacity. 25 (c) Consideration of factors in Aggravation and 26Mitigation. SB1761- 9 -LRB100 08614 SLF 18748 b 1 The court shall consider, or shall instruct the jury to 2consider any aggravating and any mitigating factors which are 3relevant to the imposition of the death penalty. Aggravating 4factors may include but need not be limited to those factors 5set forth in subsection (b). Mitigating factors may include but 6need not be limited to the following: 7 (1) the defendant has no significant history of prior 8 criminal activity; 9 (2) the murder was committed while the defendant was 10 under the influence of extreme mental or emotional 11 disturbance, although not such as to constitute a defense 12 to prosecution; 13 (3) the murdered individual was a participant in the 14 defendant's homicidal conduct or consented to the 15 homicidal act; 16 (4) the defendant acted under the compulsion of threat 17 or menace of the imminent infliction of death or great 18 bodily harm; 19 (5) the defendant was not personally present during 20 commission of the act or acts causing death; 21 (6) the defendant's background includes a history of 22 extreme emotional or physical abuse; 23 (7) the defendant suffers from a reduced mental 24 capacity. 25 Provided, however, that neither a non-violent sexual 26advance, nor the discovery, knowledge, or perception of a SB1761- 10 -LRB100 08614 SLF 18748 b 1person's sex or sexual orientation as defined in Section 1-103 2of the Illinois Human Rights Act, including under circumstances 3in which the defendant and victim dated or had a romantic or 4sexual relationship, can mitigate first-degree murder. 5 (d) Separate sentencing hearing. 6 Where requested by the State, the court shall conduct a 7separate sentencing proceeding to determine the existence of 8factors set forth in subsection (b) and to consider any 9aggravating or mitigating factors as indicated in subsection 10(c). The proceeding shall be conducted: 11 (1) before the jury that determined the defendant's 12 guilt; or 13 (2) before a jury impanelled for the purpose of the 14 proceeding if: 15 A. the defendant was convicted upon a plea of 16 guilty; or 17 B. the defendant was convicted after a trial before 18 the court sitting without a jury; or 19 C. the court for good cause shown discharges the 20 jury that determined the defendant's guilt; or 21 (3) before the court alone if the defendant waives a 22 jury for the separate proceeding. 23 (e) Evidence and Argument. 24 During the proceeding any information relevant to any of 25the factors set forth in subsection (b) may be presented by 26either the State or the defendant under the rules governing the SB1761- 11 -LRB100 08614 SLF 18748 b 1admission of evidence at criminal trials. Any information 2relevant to any additional aggravating factors or any 3mitigating factors indicated in subsection (c) may be presented 4by the State or defendant regardless of its admissibility under 5the rules governing the admission of evidence at criminal 6trials. The State and the defendant shall be given fair 7opportunity to rebut any information received at the hearing. 8 (f) Proof. 9 The burden of proof of establishing the existence of any of 10the factors set forth in subsection (b) is on the State and 11shall not be satisfied unless established beyond a reasonable 12doubt. 13 (g) Procedure - Jury. 14 If at the separate sentencing proceeding the jury finds 15that none of the factors set forth in subsection (b) exists, 16the court shall sentence the defendant to a term of 17imprisonment under Chapter V of the Unified Code of 18Corrections. If there is a unanimous finding by the jury that 19one or more of the factors set forth in subsection (b) exist, 20the jury shall consider aggravating and mitigating factors as 21instructed by the court and shall determine whether the 22sentence of death shall be imposed. If the jury determines 23unanimously, after weighing the factors in aggravation and 24mitigation, that death is the appropriate sentence, the court 25shall sentence the defendant to death. If the court does not 26concur with the jury determination that death is the SB1761- 12 -LRB100 08614 SLF 18748 b 1appropriate sentence, the court shall set forth reasons in 2writing including what facts or circumstances the court relied 3upon, along with any relevant documents, that compelled the 4court to non-concur with the sentence. This document and any 5attachments shall be part of the record for appellate review. 6The court shall be bound by the jury's sentencing 7determination. 8 If after weighing the factors in aggravation and 9mitigation, one or more jurors determines that death is not the 10appropriate sentence, the court shall sentence the defendant to 11a term of imprisonment under Chapter V of the Unified Code of 12Corrections. 13 (h) Procedure - No Jury. 14 In a proceeding before the court alone, if the court finds 15that none of the factors found in subsection (b) exists, the 16court shall sentence the defendant to a term of imprisonment 17under Chapter V of the Unified Code of Corrections. 18 If the Court determines that one or more of the factors set 19forth in subsection (b) exists, the Court shall consider any 20aggravating and mitigating factors as indicated in subsection 21(c). If the Court determines, after weighing the factors in 22aggravation and mitigation, that death is the appropriate 23sentence, the Court shall sentence the defendant to death. 24 If the court finds that death is not the appropriate 25sentence, the court shall sentence the defendant to a term of 26imprisonment under Chapter V of the Unified Code of SB1761- 13 -LRB100 08614 SLF 18748 b 1Corrections. 2 (h-5) Decertification as a capital case. 3 In a case in which the defendant has been found guilty of 4first degree murder by a judge or jury, or a case on remand for 5resentencing, and the State seeks the death penalty as an 6appropriate sentence, on the court's own motion or the written 7motion of the defendant, the court may decertify the case as a 8death penalty case if the court finds that the only evidence 9supporting the defendant's conviction is the uncorroborated 10testimony of an informant witness, as defined in Section 115-21 11of the Code of Criminal Procedure of 1963, concerning the 12confession or admission of the defendant or that the sole 13evidence against the defendant is a single eyewitness or single 14accomplice without any other corroborating evidence. If the 15court decertifies the case as a capital case under either of 16the grounds set forth above, the court shall issue a written 17finding. The State may pursue its right to appeal the 18decertification pursuant to Supreme Court Rule 604(a)(1). If 19the court does not decertify the case as a capital case, the 20matter shall proceed to the eligibility phase of the sentencing 21hearing. 22 (i) Appellate Procedure. 23 The conviction and sentence of death shall be subject to 24automatic review by the Supreme Court. Such review shall be in 25accordance with rules promulgated by the Supreme Court. The 26Illinois Supreme Court may overturn the death sentence, and SB1761- 14 -LRB100 08614 SLF 18748 b 1order the imposition of imprisonment under Chapter V of the 2Unified Code of Corrections if the court finds that the death 3sentence is fundamentally unjust as applied to the particular 4case. If the Illinois Supreme Court finds that the death 5sentence is fundamentally unjust as applied to the particular 6case, independent of any procedural grounds for relief, the 7Illinois Supreme Court shall issue a written opinion explaining 8this finding. 9 (j) Disposition of reversed death sentence. 10 In the event that the death penalty in this Act is held to 11be unconstitutional by the Supreme Court of the United States 12or of the State of Illinois, any person convicted of first 13degree murder shall be sentenced by the court to a term of 14imprisonment under Chapter V of the Unified Code of 15Corrections. 16 In the event that any death sentence pursuant to the 17sentencing provisions of this Section is declared 18unconstitutional by the Supreme Court of the United States or 19of the State of Illinois, the court having jurisdiction over a 20person previously sentenced to death shall cause the defendant 21to be brought before the court, and the court shall sentence 22the defendant to a term of imprisonment under Chapter V of the 23Unified Code of Corrections. 24 (k) Guidelines for seeking the death penalty. 25 The Attorney General and State's Attorneys Association 26shall consult on voluntary guidelines for procedures governing SB1761- 15 -LRB100 08614 SLF 18748 b 1whether or not to seek the death penalty. The guidelines do not 2have the force of law and are only advisory in nature. 3(Source: P.A. 99-143, eff. 7-27-15.) 4 (720 ILCS 5/9-2) (from Ch. 38, par. 9-2) 5 Sec. 9-2. Second degree murder. 6 (a) A person commits the offense of second degree murder 7when he or she commits the offense of first degree murder as 8defined in paragraph (1) or (2) of subsection (a) of Section 99-1 of this Code and either of the following mitigating factors 10are present: 11 (1) at the time of the killing he or she is acting 12 under a sudden and intense passion resulting from serious 13 provocation by the individual killed or another whom the 14 offender endeavors to kill, but he or she negligently or 15 accidentally causes the death of the individual killed; or 16 (2) at the time of the killing he or she believes the 17 circumstances to be such that, if they existed, would 18 justify or exonerate the killing under the principles 19 stated in Article 7 of this Code, but his or her belief is 20 unreasonable. 21 (b) Serious provocation is conduct sufficient to excite an 22intense passion in a reasonable person, provided, however, that 23neither a non-violent sexual advance, nor the discovery, 24knowledge, or perception of a person's sex or sexual 25orientation as defined in Section 1-103 of the Illinois Human SB1761- 16 -LRB100 08614 SLF 18748 b 1Rights Act, including under circumstances in which the 2defendant and victim dated or had a romantic or sexual 3relationship, constitutes serious provocation. 4 (c) When evidence of either of the mitigating factors 5defined in subsection (a) of this Section has been presented, 6the burden of proof is on the defendant to prove either 7mitigating factor by a preponderance of the evidence before the 8defendant can be found guilty of second degree murder. The 9burden of proof, however, remains on the State to prove beyond 10a reasonable doubt each of the elements of first degree murder 11and, when appropriately raised, the absence of circumstances at 12the time of the killing that would justify or exonerate the 13killing under the principles stated in Article 7 of this Code. 14 (d) Sentence. Second degree murder is a Class 1 felony. 15(Source: P.A. 96-710, eff. 1-1-10.)

Public Act 100-0460 SB1761 EnrolledLRB100 08614 SLF 18748 b 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 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 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 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, 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 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 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. 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 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 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 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. (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 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 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 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.)