Illinois Death Penalty Reform Legislation
By Edwin Colfax
Summary of the portions of Senate Bill 472 that Governor Rod Blagojevich agreed to approve on July 29, 2003:
Capital Punishment Reform Study Committee created
A commission is created to "study the impact of the various reforms to the capital punishment system," including issues of proportionality, quality of evidence, quality of representation, costs, and training. Members are appointed by legislative leaders of both parties in each house, the attorney general, the governor, prosecutorial, and public defender agencies. The commission will issue an annual report and a final report in five years. The members are unpaid.
This measure does not follow upon any GCCP recommendation. This provision was added to the bill to provide a mechanism for ongoing critical analysis of the system, and to provide a forum for considering other measures needed. Efforts to build in specific data collection processes were unsuccessful, however the scope of the commission's charge creates good opportunities for collecting information.
Recording of interrogations pilot program
This is a supplement to Senate Bill15, which implements a taping requirement for homicide cases in two years. This bill provides for four jurisdictions to gain funding and training to implement taping procedures right away, and to tape in cases other than murder. The bill includes a waiver of the eavesdropping law to permit surreptitious taping in police stations if the subject knows the interviewer is a police officer or prosecutor.
See analysis of SB15 (Recording of Custodial Interrogations) for more information.
Felony murder aggravating factor modified
The most used aggravating factor, "murder in the course of another felony" has been modified to very modestly reduce death-eligible crimes. The original list of felonies has been replaced by the description "inherently violent crime" along with a partial list of included felonies. The upshot is that arson, burglary, calculated criminal drug conspiracy, and streetgang criminal drug conspiracy are eliminated felonies. [Note that aggravated arson and residential burglary are not eliminated.] Arson figured into 6 capital convictions and burglary in 13 since reinstatement of the Illinois death penalty in 1977. The legislative history of specific deletions should prevent the general description from sanctioning a construal broader than the original statute.
Aggravating factor of murder to prevent victim from testifying is expanded
This factor is expanded to include those participating in an investigation or prosecution, defined as "those appearing in the proceedings in any capacity, such as trial judges, prosecutors, defense attorneys, investigators, witnesses or jurors."
Two mitigating factors added
Mitigating factors now include: 1) "the defendant's background includes a history of extreme emotional or physical abuse" and 2) "the defendant suffers from a reduced mental capacity."
Jury instruction modified
Previous law stated that "If the jury [or court] 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." This bill changes the language to: "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."
These changes reflect the concern that juries may feel that they are compelled to issue a death sentence based on a vaguely defined calculus. The new language places emphasis on the jury's role in determining the "appropriateness" of a death sentence, rather than on a presumption that the defendant should be sentenced to death.
Trial judge non-concurrence
If the trial judge does not agree with a jury's imposition of the death sentence, the judge shall set forth reasons in writing with associated documentation, and this becomes part of the record for appellate review. The court is still bound by the jury's sentencing determination. This provision, in conjunction with the new Supreme Court power to overturn death sentences without regard to procedural problems, reflects a compromise on the GCCP's recommendation that a death sentence should require the concurrence of the trial judge.
Retraction of death-eligibility based on very limited evidence
Upon the close of evidence the defendant or the court may motion to de-certify the case as a capital case "if the court finds that the only evidence supporting the defendant's conviction is the uncorroborated testimony of an informant witness. . . 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." The state may appeal a ruling to decertify a case as death eligible according to Supreme Court rules.
Supreme Court given broad power to overturn death sentences
The Supreme Court is empowered to overturn death sentences it deems "fundamentally unjust as applied to the particular case, independent of any procedural grounds for relief." Previous law required some procedural failing in order for the Supreme Court to grant relief. This, combined with the requirement for trial judges to document nonconcurrence with a jury's death sentence, reflects a compromise on the GCCP's recommendation that the trial judge must concur with a jury's finding that death is the appropriate sentence for a death sentence to be imposed.
Non-binding guidelines for seeking the death penalty
"The Attorney General and the 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."
Line-up requirements
The bill imposes the following requirements on all line-ups:
1) All live line-ups must be photographed and photos provided to the defense in discovery. All photos in photo-spreads must be similarly disclosed.
2) All eyewitnesses exposed to a live or photo-spread line-up must sign a form informing the witness of the following:
a) The suspect might not be in the line-up or photo-spread, and the witness
is not obligated to make an identification
b) The eyewitness should not assume that the person administering the line-up
or photo-spread knows which person is the suspect in the case. [Note: this
law does not require double-blind line-ups. The pilot project below includes
double-blind procedures.
3) Suspects in line-ups "should not appear substantially different" from
fillers based on the original description of the perpetrator or any other
factors that call attention to the suspect.
Double-blind sequential line-up protocol pilot project
A pilot project is created in jurisdictions of varying size, including a
police district in Chicago, to evaluate a double-blind sequential procedure.
The Illinois State Police will oversee the pilot. In such a procedure the
administrator of the photo or live line-up is unaware of which person is
the suspect, and members of the line-up are presented one at a time, rather
than in an array, and the witness is asked for each whether he or she is
the perpetrator. Finally, the witness is required to state in his or her
own words how certain he or she is that the person identified is the perpetrator,
and a record is made of the witness's words. Line-ups in the pilot jurisdictions
will be selected for the new procedure according to a protocol which is
"practical, designed to elicit information for comparative evaluation purposes,
and is consistent with objective scientific research methodology."
Police required to provide all investigative material and exculpatory
information to prosecutor
The bill creates explicit obligations of police to provide to the prosecutor
all materials associated with an investigation that have been generated
by or come into the possession of the investigative agency. The bill requires
all investigative agencies to adopt policies for compliance. Field notes
are explicitly included in this requirement for homicide investigations.
The bill makes explicit the obligations of the police to provide exculpatory
evidence regardless of whether the information was documented or memorialized
in any way.
No death penalty for mentally retarded defendants
The bill prohibits execution of mentally retarded defendants. Retardation
is determined by the court by a preponderance of the evidence in a pre-trial
hearing, with an IQ of 75 defined as "presumptive evidence" of mental retardation.
The finding of the court on a pre-trial motion may be appealed according
to Supreme Court rules.
The definition of mental retardation is as follows: "In determining whether
the defendant is mentally retarded, the mental retardation must have manifested
itself by the age of 18. IQ tests and psychometric tests administered to
the defendant must be the kind and type recognized by experts in the field
of mental retardation. In order for the defendant to be considered mentally
retarded, a low IQ must be accompanied by significant deficits in at least
2 of the following skill areas: communication, self-care, social or interpersonal
skills, home living, self-direction, academics, health and safety, use of
community resources, and work. An intelligence quotient (IQ) of 75 or below
is presumptive evidence of mental retardation."
The court may appoint an expert, and the state and defense may offer qualified
experts. The defense may raise the issue of mental retardation again in
the sentencing phase, even if the court does not find mental retardation
upon pre-trial motion. Finally, the bill provides for the issue of mental
retardation to be raised post-conviction.
The mental retardation provisions in this bill are considered progressive,
and the definition of mental retardation is the one currently favored by
leading advocates of the mentally disabled. The definition of mental retardation
does not contain any specific IQ requirement; the specific figure of the
75 IQ here is set forth as grounding a presumption of mental retardation,
but does not constitute a "bright line" test.
Disclosure of information on informant witnesses
In capital cases the state will be required to provide information to the
defense in discovery concerning jailhouse snitch witnesses, including criminal
history, any inducements for testimony, details of the purported statements
of the accused, whether the informant ever recanted, other cases in which
the informant testified and whether any inducements were offered in those
case(s), and any other information relevant to the credibility of the witness.
Pre-trial screening of jailhouse snitch testimony
In capital cases in which the state seeks to offer informant testimony the
court must conduct a hearing to determine by a preponderance of the evidence
that the informant testimony is reliable before such testimony can be admitted
at trial.
Disclosure requirements for witness inducements In capital cases the state
is required to disclose in writing the following: any inducements provided
to witnesses in exchange for testimony; other cases in which the witness
testified or offered statements against a defendant and whether there were
inducements in those cases; whether the witness ever changed his/her testimony;
criminal history; and "any other information relevant to the credibility
of the witness." Access to post-conviction DNA database searches The bill
provides that a defendant claiming innocence may make a motion for post-conviction
searches of DNA databases as well as other forensic testing. Access to post-conviction
forensic testing Currently the criterion for testing to be granted is whether
the "testing has scientific potential to produce new, non-cumulative evidence
materially relevant to the defendant's assertion of actual innocence." This
bill adds the following proviso: "even though the results may not completely
exonerate the defendant."
Access to the DNA database searches pre-trial
"A defendant charged with any offence where DNA evidence may be material
to the defense investigation or relevant at trial" may make a motion for
DNA database searches prior to trial. The defense shall have access to analyses
done by the State Police, and shall be provided with copies of all documentation,
correspondence, including digital correspondence, notes, memoranda and reports
generated in relation to the analysis." This provision is not limited to
capital cases.
No time-limit on petitions for hearing in trial court claiming actual
innocence
The criteria for a hearing is whether "there is newly discovered evidence
not available to the person at the time of the proceeding [at which s/he
was convicted] that establishes a substantial basis to believe that the
defendant is actually innocent by clear and convincing evidence." Proceedings
must be commenced within a "reasonable period of time."
For petitions in trial court for a hearing concerning substantial denial
of constitutional rights but not claiming actual innocence, capital defendants
must file the petition no later than 6 months after the denial of petition
for certiorari, or no more than 6 months after the deadline for filing for
certiorari if none is filed. For non-capital cases, the deadline for filing
is 6 months after denial of Petition for Leave to Appeal to the Illinois
Supreme Court, or 6 months after the deadline for filing that petition if
none is filed. In both cases, the deadline can be waived if the defendant
establishes that the delay was not the result of culpable negligence. These
deadlines do not apply to petitions based on claims of actual innocence.
Petitions of defendants sentenced to death must be docketed for consideration
within one year, with continuances possible at the discretion of the court.
Funding for DNA testing and database searches, analyses, and expert testimony
in capital cases to be provided from the Capital Litigation Trust Fund
In 2000 the Illinois General Assembly created the Capital Litigation Trust
Fund to provide adequate resources for both the prosecution and defense
of capital cases. Previous acts were silent on funding for DNA testing.
This bill explicitly provides funding for DNA testing and database searches
and other forensic and expert services.
Capital Litigation Trust Fund is made permanent
The law creating the Capital Litigation Trust Fund was set to expire after
5 years. This bill makes the Fund permanent.
