noting that while section 109– 1(a) “requires that an arrestee be presented to a judge ‘without unnecessary delay,’ noncompliance therewith does not, by itself, obviate a confession or render an otherwise voluntary confession inadmissible at trial. Rather, such delay is merely a factor to be considered on the question of voluntariness.”
How later courts described this case
- noting that while section 109– 1(a) “requires that an arrestee be presented to a judge ‘without unnecessary delay,’ noncompliance therewith does not, by itself, obviate a confession or render an otherwise voluntary confession inadmissible at trial. Rather, such delay is merely a factor to be considered on the question of voluntariness.”
- “a delay of 24 to 36 hours prior to presentment is usually not considered to be unnecessary”
- Aa delay of 24 to 36 hours prior to presentment is usually not considered to be unnecessary"
- “[T]his court has recognized that ‘a history of substance abuse is a double-edged sword at the aggravation/mitigation phase of the penalty -9- No. 1-18-0621 hearing.’ ”
Written by the judges who cited it.
The opinion
JUSTICE McMORROW, specially concurring:
I agree with the majority that defendant’s convictions and sentences should be affirmed. I write separately to comment on defendant’s argument that the Illinois death penalty statute is unconstitutional because it fails to adequately narrow the class of defendants eligible for the death penalty.
In Furman v. Georgia, 408 U.S. 238 , 33 L. Ed. 2d 346 , 92 S. Ct. 2726 (1972), the United States Supreme Court held unconstitutional the death penalty statutes of Georgia, Texas and other states, which left the decision of whether to impose a sentence of death for a capital offense to the unfettered discretion of a judge or jury. Although there was no majority opinion in Furman, each of the justices who made up the Furman majority and, in particular, Justices Stewart, White and Douglas, voiced concern about the infrequent 1 and arbitrary manner in which the death penalty was then imposed under the existing discretionary sentencing schemes. The relative infrequency with which the death penalty was then being administered, and the lack of any limits on the sentencer’s discretion to impose the death penalty, led Justice Stewart to conclude that the death penalty schemes at issue in Furman allowed the death sentence to be “wantonly” and “freakishly imposed.” Furman, 408 U.S. at 310 , 33 L. Ed. 2d at 390 , 92 S. Ct. at 2763 (Stewart, J., concurring). Thus, according to Justice Stewart, the death sentences in Furman were
“cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [capital offenses], many just as reprehensible as [the offenses at issue], the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.” Furman, 408 U.S. at 309-10 , 33 L. Ed. 2d at 390 , 92 S. Ct. at 2762 (Stewart, J., concurring).
The views of Justice White were similar to those expressed by Justice Stewart. In his concurrence, Justice White observed that, under the death penalty statutes at issue in Furman, “the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Furman, 408 U.S. at 313 , 33 L. Ed. 2d at 392 , 92 S. Ct. at 2764 (White, J., concurring); see also Furman, 408 U.S. at 253 , 33 L. Ed. 2d at 357 , 92 S. Ct. at 2734 (Douglas, J., concurring) (“Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12”).
Four years after Furman, the Supreme Court again addressed the constitutionality of Georgia’s death penalty statute in Gregg v. Georgia, 428 U.S. 153 , 49 L. Ed. 2d 859 , 96 S. Ct. 2909 (1976). The Georgia statute at issue in Gregg, which had been amended in response to Fur-man, narrowed the range of offenses for which the death penalty was available. Much like Illinois’ current death penalty statute, the amended Georgia statute provided that a defendant would be eligible for the death penalty only if the circumstances of the murder met one of several statutorily defined aggravating or eligibility factors.
The Supreme Court upheld the amended Georgia statute. As in Furman, there was no majority opinion in Gregg. However, the two concurring opinions of the Court, authored by Justice Stewart and Justice White, understood the meaning of Furman in similar terms:
“Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189 , 49 L. Ed. 2d at 883 , 96 S. Ct. at 2932 (opinion of Stewart, Powell and Stevens, JJ.).
“In Furman, this Court held that as a result of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder, the penalty was being imposed discriminatorily, wantonly and freakishly, and so infrequently that any given death sentence was cruel and unusual”. Gregg, 428 U.S. at 220-21 , 49 L. Ed. 2d at 901 , 96 S. Ct. at 2947 (White, J., concurring, joined by Burger, C.J., and Rehnquist, J.).
With this understanding of Furman, the Court in Gregg concluded that the amended Georgia statute eliminated the constitutional problem of arbitrariness. Critical to this decision was the fact that, under the new statute, the statutory aggravating factors limited the number of capital offenses. By narrowing the number of offenses for which the death penalty was available to a select few, the amended statute necessarily reduced the risk of arbitrary and capricious sentencing. Justice White explained:
“As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate *** it becomes reasonable to expect that juries — even given discretion not to impose the death penalty — will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly or so infrequently that it loses its usefulness as a sentencing device.” (Emphasis in original.) Gregg, 428 U.S. at 222-23 , 49 L. Ed. 2d at 901-02 , 96 S. Ct. at 2947-48 (White, J., concurring, joined by Burger, C.J., and Rehnquist, J.).
This principle — that a narrowly drawn death penalty statute reduces the risk of arbitrary and capricious sentencing — was later explained in these terms:
“[T]he risk of arbitrariness condemned in Furman is a function of the size of the class of convicted persons who are eligible for the death penalty. When Furman was decided, Georgia included virtually all defendants convicted of forcible rape, armed robbery, kidnapping, and first-degree murder in that class. As the opinions in Furman observed, in that large class of cases race and other irrelevant factors unquestionably played an unacceptable role in determining which defendants would die and which would live. However, the size of the class may be narrowed to reduce sufficiently that risk of arbitrariness, even if a jury is then given complete discretion to show mercy when evaluating the individual characteristics of the few individuals who have been found death eligible.” Walton v. Arizona, 497 U.S. 639, 715-16 , 111 L. Ed. 2d 511, 568 , 110 S. Ct. 3047, 3090 (1990) (Stevens, J., dissenting).
In cases following Gregg, the United States Supreme Court has continued to reaffirm the principle that death penalty statutes must be narrowly circumscribed:
“To avoid [the] constitutional flaw [of arbitrary and capricious sentencing], an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. ***
Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 877-78 , 77 L. Ed. 2d 235, 249-50 , 103 S. Ct. 2733, 2742-43 (1983).
See also Pulley v. Harris, 465 U.S. 37, 50 , 79 L. Ed. 2d 29, 40 , 104 S. Ct. 871, 879 (1984) (noting the “constitutionally necessary narrowing function of statutory aggravating circumstances”); McCleskey v. Kemp, 481 U.S. 279, 305 , 95 L. Ed. 2d 262, 287 , 107 S. Ct. 1756, 1774 (1987) (state may not impose death unless it has “rational criteria that narrow the decisionmaker’s judgment”); Tuilaepa v. California, 512 U.S. 967, 972 , 129 L. Ed. 2d 750, 759 , 114 S. Ct. 2630, 2635 (1994) (narrowing circumstances “must apply only to a subclass of defendants convicted of murder”).
In the case at bar, defendant argues that the Illinois’ death penalty statute is unconstitutional because, when the statutory aggravating factors are considered in the aggregate, the statute fails to “genuinely narrow the class of persons eligible for the death penalty.” Zant, 462 U.S. at 877 , 77 L. Ed. 2d at 249 , 103 S. Ct. at 2742 . Defendant’s argument is an attack on the death penalty scheme as a whole and is essentially the same argument addressed by the Supreme Court in Furman. Defendant argues that all, or nearly all, of the first degree murders in Illinois are rendered death eligible by the large number of aggravating factors contained within our death penalty statute. Because each statutory aggravating factor potentially subjects a defendant to the same penalty, i.e., death, it follows that the circumstances of the murders covered by the various aggravating factors must be considered equally reprehensible. Yet, only a small percentage of first degree murder defendants actually receive the death penalty. Thus, at root, defendant’s argument is that Illinois’ current death penalty scheme is no different from the schemes held unconstitutional in Fur-man. In essence, defendant is contending that his death sentence is “cruel and unusual in the same way that being struck by lightning is cruel and unusual” (Furman, 408 U.S. at 309 , 33 L. Ed. 2d at 390 , 92 S. Ct. at 2762 (Stewart, J., concurring)), for of all the defendants eligible for the death penalty in Illinois, many convicted of murders just as reprehensible as the murder at issue in this case, defendant is “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed” (Furman, 408 U.S. at 309-10 , 33 L. Ed. 2d at 390 , 92 S. Ct. at 2762 (Stewart, J., concurring)).
The current Illinois death penalty statute contains 20 aggravating factors which render a first degreé murder death eligible. These factors are:
(1) The murder victim was a police officer or firefighter killed in the course of performing his official duties, to prevent the performance of official duties, or in retaliation for performing official duties.
(2) The murder victim was an employee of an institution or facility of the Department of Corrections or any similar local correctional agency and was killed in the course of performing official duties, to prevent the performance of official duties, or in retaliation for performing official duties. Or the victim was an inmate at such an institution or facility.
(3) The defendant has been convicted of the first degree murder of two or more individuals, regardless of whether the deaths were the result of the same or several acts.
(4) The murder victim was killed as a result of the hijacking of an airplane, train, ship, bus or other public conveyance.
(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 the defendant procured another to commit the murder for money or anything of value.
(6) The defendant murdered the victim in the course of one or more predicate felony offenses. The defendant must have actually killed or injured the victim, and the defendant must have acted with the intent to kill or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another. The predicate felonies for this factor are: armed robbeiy, armed violence, robbery, predatory criminal sexual assault of a child, aggravated criminal sexual assault, aggravated kidnapping, aggravated vehicular hijacking, forcible detention, arson, aggravated arson, aggravated stalking, burglary, residential burglary, home invasion, calculated criminal drug conspiracy, streetgang criminal drug conspiracy, or the attempt to commit any of the foregoing felonies.
(7) The murder victim was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.
(8) The defendant committed the murder to prevent the victim from testifying in a criminal prosecution or giving material assistance to the State. Or the defendant committed the murder because the victim was a witness in a prosecution or gave material assistance to the State.
(9) The defendant, while committing one of several drug offenses, or while engaged in a conspiracy or solicitation to commit such an offense, murdered the victim or commanded the murder.
(10) The defendant, while incarcerated, and while committing a felony offense or while engaged in a conspiracy or solicitation to commit a felony offense, murdered the victim or commanded the murder.
(11) The murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design.
(12) The murder victim was an emergency medical technician, paramedic, ambulance driver, or another medical assistance official, employed by a municipality or other governmental unit and was killed in the course of performing official duties.
(13) The defendant was the leader of a criminal drug conspiracy and caused or commanded the victim’s murder.
(14) The murder was intentional and involved the use of torture.
(15) The defendant shot the murder victim with a firearm fired from a motor vehicle.
(16) The murder victim was 60 years of age or older and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.
(17) The murder victim was a physically or mentally disabled person and the defendant knew or should have known that the victim was disabled.
(18) The murder was committed by reason of any person’s activity as a community policing volunteer or to prevent any person engaging in activity as a community policing volunteer.
(19) The murder victim had an order of protection against the defendant.
(20) The murder victim was known by the defendant to be a teacher or other person employed in any school and the victim was on or near school grounds.
See 720 ILCS 5/9 — 1(b)(1) (West 2000).
As the foregoing list shows, the Illinois death penalty statute appears on its face to be quite extensive. Indeed, the current number of aggravating factors is almost three times what it was when the statute was first enacted and is one of the highest in the country. See Fixing the Death Penalty, Chi. Trib., December 29, 2000, at 22 (noting that, in 2000, only the death penalty statutes in Delaware and California, with 22 aggravating factors each, had more aggravating factors than Illinois); see also A. Chambers, Political Aggravation, Ill. Issues, October 2001, at 30, 32-33. Not only is the total number of aggravating factors high but, in addition, some of the aggravating factors are individually broad. The felony-murder factor (720 ILCS 5/9 — 1(b)(6) (West 2000)), for example, contains some 15 predicate felonies. Thus, while that factor is narrowly drawn in the sense that it requires both actual participation in the killing by the defendant and intent, the long list of felonies makes a large number of first degree murders death eligible. The “cold, calculated and premeditated” factor (720 ILCS 5/9 — l(b)(ll) (West 2000)) also has a broad reach. To establish death eligibility under this factor, the State must prove that the murder was “deliberated or reflected upon for an extended period of time.” People v. Williams, 193 Ill. 2d 1, 37 (2000) (plurality op.). This court has held that the period of deliberation may be as little as three hours. See People v. Brown, 169 Ill. 2d 132, 166-67 (1996); Williams, 193 Ill. 2d at 33 (plurality op.), citing Brown, 169 Ill. 2d at 166-67 . Thus, for a first degree murder not to be death eligible in Illinois, the murder must be of a single individual, the victim must not be one of those listed among the aggravating factors (e.g., community policing volunteer, teacher), the murder must be unaccompanied by any of the 15 felonies contained in the felony-murder aggravating factor, and the murder must be deliberated upon for less than three hours. Considering these facts, one would be tempted to conclude that, in Illinois, “it is virtually impossible to find a murder case that is not potentially death-eligible.” T. Sullivan, Repair or Repeal — Report of the Governor’s Comm’n on Capital Punishment, 90 Ill. B.J. 304 , 306 (2002).
Furman and its progeny can be read as providing guidelines for determining how narrowly a death penalty statute must be drawn to satisfy constitutional concerns. See S. Shatz & N. Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72 N.Y. L. Rev. 1283 (1997). Regardless of where the fine is ultimately drawn, however, the question of whether the constitutional requirement of narrowing has occurred is a factual one. 72 N.Y. L. Rev. at 1318. In other words, to determine whether the Illinois death penalty statute is actually narrowing the pool of death-eligible defendants, we must know what the scope of the statute is with respect to actual cases. We must have some idea, for example, what percentage of first degree murder defendants are potentially death eligible and what percentage of those defendants actually receive the death penalty. Defendant, however, has not supplied us with this information. Although one might suspect that relatively few first degree murders in Illinois are not death eligible, suspicion is not a substitute for evidence. We cannot answer defendant’s argument without the pertinent empirical data. Accordingly, defendant’s contention that the death penalty statute is unconstitutional fails in this case, not as a matter of law, but rather, as the majority notes, because defendant has failed to “substantiate [his] contention in any way.” 206 Ill. 2d at 200.
The court’s rejection of defendant’s constitutional argument in this case should not be viewed as diminishing the importance of the general policy issue which he has raised. Among the numerous organizations which have examined the scope of the Illinois death penalty statute, there is unanimous agreement that, as a matter of legislative policy, the Illinois death penalty statute is overbroad. Foremost among these organizations is Governor Ryan’s Commission on Capital Punishment. This 14-member commission, 2 created by Governor Ryan to study the capital punishment system in Illinois, was charged with making “recommendations to the governor ‘designed to further ensure the application and administration of the death penalty in Illinois is just, fair and accurate.’ ” 90 Ill. B.J. at 304. The commission has recently issued its report. One of the commission’s principal, and unanimous, recommendations is that the number of aggravating factors in the Illinois death penalty statute should be reduced:
“It appeared to the members of the Commission that to the extent that the death penalty was to remain an effective statute in terms of achieving its constitutional objective of narrowing the class of cases to which the penalty should be applied, the number of eligibility factors should be reduced. *** The Commission members unanimously expressed the view that the current proliferation of eligibility factors, as found in the Illinois death penalty statute, was unwise. ***
Reducing the number of eligibility factors should lead to more uniformity in the way in which the death penalty is applied in Illinois, and provide greater clarity in the statute, while retaining capital punishment for the most heinous of homicides. The scope of the statute should be narrowed.” Report of the Governor’s Commission on Capital Punishment, ch. 4, at 67 (April 2002).
The Illinois Attorneys General Association, in response to the report of the Governor’s commission, has expressed agreement that our death penalty statute is overly broad and has recommended that the number of aggravating factors be cut in half. See J. Crimmins, Prosecutors Object to Quarter of Death Penalty Reforms, Chi. Daily L. Bulletin, May 17, 2002, at 1, 24. The assembly of the Illinois State Bar Association has also recently voted in favor of reducing the number of aggravating factors. See J. Brunts, ISBA Supports Execution Hold, Case Review, Chi. Daily L. Bulletin, June 24, 2002, at 1. Even before the commission’s report, both opponents and advocates of the death penalty in the academic community had recognized the need to reconsider and reduce the scope of current death penalty statutes. See, e.g., R. Blecker, Among Killers, Searching for the Worst of the Worst, Wash. Post, December 3, 2000, at B1 (“Execution is society’s ultimate sanction, to be threatened rarely and applied even more rarely. We must rethink the death penalty, revise and refine our statutes. If we *** rethink it right, I am convinced we will end up converting the sentences of thousands of murderers presently on death row. The remaining few hundred monsters we should execute”); D. McCord, An Open Letter to Governor George Ryan Concerning How to Fix the Death Penalty System, 32 Loy. U. Chi. L.J. 451 , 453 (2001) (“Aggravating factors in every jurisdiction are over-inclusive. While they render almost all the absolute worst murderers death-eligible, they also render defendants whose crimes are not as egregious death-eligible”).
Each time an additional aggravating factor is added to our death penalty statute, the risk of arbitrary and capricious sentencing is increased. As Governor Ryan noted last year in vetoing a twenty-first aggravating factor passed by the legislature, 3 “as we continue to almost annually add eligibility factors to our death penalty statute, we introduce more arbitrariness and discretion and edge ever closer to our previous capital punishment system that was effectively held unconstitutional by the United States Supreme Court in 1972.” Governor George Ryan’s Veto Message, August 17, 2001, at 3. The federal constitution mandates that death penalty statutes be narrowly drawn. As the legislature considers proposed reforms to the Illinois death penalty statute (see A. Chambers, The Future of Illinois’ Death Penalty System is Now in Lawmakers’ Hands, Ill. Issues, June 2002, at 6) reducing the breadth of the statute is a matter that should be given serious consideration.
Studies cited in Furman estimated that, in the late 1960s and early 1970s, only 15 to 20% of death-eligible murderers were actually sentenced to death. See, e.g., Furman, 408 U.S. at 386 n.11, 33 L. Ed. 2d at 434 n.11, 92 S. Ct. at 2802 n.11 (Burger, C.J., dissenting, joined by Blackmun, Powell and Rehnquist, JJ.); 408 U.S. at 309 n.10, 33 L. Ed. 2d at 390 n.10, 92 S. Ct. at 2762 n.10 (Stewart, J., concurring).
The commission members included both former or current prosecutors and members of the defense bar. For a list of the commission members, see Report of the Governor’s Commission on Capital Punishment, Preamble, at v through vii (April 2002). See also D. Vock, Deadly Equation, Ill. Issues, June 2002, at 17, 18.
The new aggravating factor would have made a defendant eligible for the death penalty where the murder was committed in furtherance of the activities of an organized gang. See 92d Ill. Gen. Assem., House Bill 1812, 2001 Sess.