Aggravating Circumstances in Sentencing

The crime alone doesn't determine the sentence: Courts consider the circumstances of the offense and information about the offender.

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When a judge sentences a defendant after a guilty or “no contest” plea or a jury conviction, a variety of factors come into play. Judges consider mitigating circumstances—factors that weigh in the defendant’s favor—and aggravating circumstances—factors supporting a stiffer penalty.

(For more information about sentencing, see Sentencing Hearings and Probation ReportsSentencing Alternatives: Prison, Probation, Fines, and Community Service, andCriminal Sentencing FAQ.)

A previous record of the same type of offense is the most common aggravating factor. Other aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. However, except for prior convictions, judges in jury trials may not impose a harsher-than-normal sentence unless the jury has found aggravating factors to be true beyond a reasonable doubt. (Cunningham v. California, 549 U.S. 270, (2007).)

Some crimes include their own aggravating factors. For example:

  • Use of a dangerous weapon when assaulting, intimidating, or interfering with a federal employee carrying out official duties increases the punishment from eight to 20 years. (18 U.S.C. § 111.)
  • Committing mail fraud against a financial institution (as opposed to an individual or some other type of institution) can add 10 years to the punishment. (18 U.S.C. § 1341.)

Aggravating Circumstances at Work

Suppose that Tommy Rotten robbed several teachers from the Kind ’R Garden Nursery School by pointing a loaded gun at the children and demanding that the teachers hand over their purses. Bob Bracci, on the other hand, brandished a silver nail file while robbing a convenience store at 4 a.m., when no customers were present.

Criminal records aside, Rotten and Bracci probably won’t receive the same sentences, even if they are in the same jurisdiction, took the same amount of money, and were convicted of the same crime (robbery). The judge would take aggravating and mitigating factors into account, and these differ greatly in the two cases.

Rotten used a clearly dangerous weapon (a loaded gun), and by doing so put many people, including children, in harm’s way. Bracci used a makeshift weapon that’s not inherently dangerous. He robbed the store in the middle of the night, when few customers, and certainly not children, would be present. Because of these factors, Rotten would almost certainly get a much harsher sentence than Bracci.

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For a more thorough understanding of sentencing law and aggravating circumstances, consult an experienced criminal defense attorney. And if you're facing criminal charges or are already approaching the sentencing stage, rely on that kind of lawyer for representation. There's no substitute for knowledge and experience, particularly when the stakes are so high.

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