A previous record of the same type of offense is a common aggravating factor. Aggravating circumstances also grow out of the way a crime was committed, as when an offender is particularly cruel to a victim.
Sometimes laws specify particular circumstances that might be described as aggravating factors. Here are a couple examples as they relate to time behind bars:
HOW MUCH TIME WOULD YOU ACTUALLY SPEND IN JAIL?
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. And punishment can take many forms, including fines, probation, community service, restitution, and other consequences.
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.
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.
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.
]]>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.
HOW MUCH TIME WOULD YOU ACTUALLY SPEND IN JAIL?
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. And punishment can take many forms, including fines, probation, community service, restitution, and other consequences.
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.
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 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 often try to present just about every fact in the defendant’s favor at sentencing. Judges tend to have wide discretion in what they can consider, and an argument that doesn’t appeal to one judge might resonate with another.
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