Virtually every person facing criminal punishment wants to know the factors that might cause a judge to increase the sentence. These are called aggravating circumstances. But for every yin there’s a yang: Judges must also consider mitigating circumstances when sentencing defendants. These are facts or situations that don’t relate to the question of the defendant’s guilt, but that support leniency.
Anything That’s Relevant
When determining a sentence, a judge or jury (usually a judge) can consider all information that reasonably relates to the defendant’s culpability. Information of this type falls into two categories: information about the offense and information about the offender.
For guidance as to the factors they should consider, judges can look to statutes that list aggravating and mitigating circumstances. But the mitigating factors that a statute lists generally aren’t exclusive—judges can consider other criteria that relate to the defendant and the crime.
Common Mitigating Circumstances
Here are some common mitigating circumstances. The list is far from exclusive.
Minor role. The defendant played a relatively minor role in the crime. For example, suppose Pete received $20 for knowingly driving a codefendant to a location where the latter made a drug deal. At sentencing for his conviction for transporting methamphetamine, Pete has a good argument that his small role in the criminal activity is a mitigating circumstance.
Victim culpability. The victim willingly participated in the crime or initiated the events leading to it. If Domingo started a fight by attacking Walter and Walter responded with more force than was necessary to defend himself, this factor would come into play at Walt’s assault-and-battery sentencing.
Unusual circumstance. The defendant committed the crime because of temporary emotional difficulty or significant provocation. This circumstance applies when a defendant acts out while under extreme stress. For example, suppose that Jesse, in anguish over the recent death of his girlfriend, stole some beer from a liquor store so he could get drunk.
No harm. The defendant didn’t hurt anyone and committed the crime in a manner unlikely to cause harm. The no-harm circumstance would be relevant if Hank carjacked a driver by sternly ordering her out of her car, but carefully and gently helped her out of it.
Lack of record. The defendant doesn’t have a criminal record, or only has a relatively minor record.
Relative necessity. The defendant acted out of a desire to provide life necessities. This circumstance would be relevant for someone who stole a rotisserie chicken from the grocery store so that he could feed his starving family.
Remorse. The defendant accepted responsibility and showed remorse. A defendant who confesses upon arrest and is contrite in court has this factor in his favor.
Difficult personal history. The defendant’s unique upbringing or family circumstances led to her criminal conduct. For example, a lawyer might try to persuade a sentencing judge that the client’s violent acts are attributable to abuse she suffered as a child.
Addiction. Drug or alcohol addiction contributed to—but wasn’t just an incentive or excuse to commit—the crime. Addiction would be a mitigating factor for Bubbles’s theft conviction if he had showed a concerted effort at rehabilitation, but relapsed into drug use and stole some copper wire while high.
Not Everything Under the Sun
Not everything can be a mitigating circumstance. For example, some courts have ignored as a mitigating factor the defendant’s waiver of the right to a jury trial. One court rejected harsh prison conditions the defendant faced as a mitigator.
But as long as it bears some relation to the crime, defense lawyers should present every fact in the defendant’s favor at sentencing. Judges have wide discretion in what they can consider, and an argument that doesn’t appeal to one judge might resonate with another.