Aggravating Circumstances: Sentence Enhancements

For certain serious offenses, enhancements related to the defendant's conduct or history can seriously increase the sentence.

A defendant’s conviction results in a sentence of six years in prison. How did the judge arrive at that number?

Understanding how the court calculates a particular sentence in a criminal case can be complicated, especially when sentence enhancements are involved.

State and federal laws create these enhancements, which are essentially aggravating circumstances, for many offenses. A sentence enhancement typically allows or requires a judge to increase a defendant’s sentence by a specified term. One of the most common enhancements is for prior offenses. For example, typical DUI laws enhance the punishment each time a driver commits the offense: The first DUI may not lead to any time in jail, but by the third or fourth offense the driver could be looking at hard prison time.


Sentencing law is complex. For example, a statute might list a “minimum” jail sentence that’s longer than the actual amount of time (if any) a defendant will have to spend behind bars. All kinds of factors can affect actual punishment, including credits for good in-custody behavior and jail-alternative work programs.

If you face criminal charges, consult an experienced criminal defense lawyer. An attorney with command of the rules in your jurisdiction will be able to explain the law as it applies to your situation.

Compelling Circumstances

Like traditional aggravating circumstances, judges employ sentence enhancements when the conduct is much worse than that involved in a typical violation of the same law and when the defendant has a criminal history. For instance, some statutes require an enhanced sentence when a defendant threatens a victim’s life, while others impose greater punishment if a defendant committed perjury in a trial leading to his or her conviction.

Other situations that might trigger sentence enhancements include the defendant:

  • being armed with, using (for example, pointing), or firing a gun or other deadly weapon (or an instrument that looks like such a weapon)
  • seriously injuring the victim
  • committing the crime while out on bail, probation, or parole, or
  • having a history as a dangerous offender.

Some enhancements, like those involving guns, can carry more years in prison than the convictions they attach to. For example, a defendant might receive a three-year sentence for robbery with an additional ten years for using a gun in the course of it.

Mandatory Minimums

Judges must “enhance” some offenses not because of any specific conduct by defendants in the course committing them, but because they fall under “mandatory minimum” statutes.

Suppose that a statute provides for a range of two to six years’ imprisonment for a felony drug sale. A defendant is convicted of selling crack cocaine. Normally, the judge would be left to choose a sentence within the two-to-six range. But if another statute provides that selling crack incurs a mandatory five-year minimum, then the judge has no choice but to sentence the defendant to between five and six years in prison.

Hate Crimes

The federal government and almost every state have hate-crime legislation, often in the form of sentence enhancements. Hate-crime laws increase penalties for any crime when the defendant commits it specifically because of the victim’s protected characteristic. Among the protected characteristics these laws often cover are race, nationality, disability, sexual orientation, and gender identity.

Leaders and Organizers

The federal sentencing guidelines and many state statutes call for harsher penalties for those convicted of offenses in which they played a leadership or managerial role. If a defendant exercised a degree of influence or control over others involved in the operation, then the judge may use a sentence enhancement to increase the punishment. Courts generally consider whether a defendant was essential or material to the offense—for example, the ringleader in a bank robbery—in deciding if this enhancement applies.

Not a Separate Crime

A sentence enhancement statute doesn’t create a new crime—rather, it increases the punishment for an existing offense. And judges generally don't sentence defendants for both an enhancement and an additional crime that are based on the exact same conduct.

For example, there is a federal sentence enhancement for carrying a firearm in relation to drug trafficking. There’s a separate statute that makes brandishing a weapon a crime. So, if a defendant waved a weapon once during a drug deal, the court might not be able to sentence him for both the enhancement and the brandishing crime. (The judge will obviously also sentence the defendant for drug trafficking.)

Not Always Mandatory

Not all sentence enhancements are mandatory—some simply grant the judge the authority to give a stiffer punishment than usual. But even when sentence enhancements aren’t mandatory, they tend to lead to tougher sentences.

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