Aggravating Circumstances in Sentencing

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

By , UCLA Law School Professor

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.

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:

  • Using a deadly or dangerous weapon when committing an assault on an officer or employee of the United States who is on the job increases the maximum potential sentence from one or eight years to 20 years. (18 U.S.C. § 111 (2016).)
  • Mail fraud carries a maximum sentence of 20 years, but if it relates to major-disaster or emergency benefits or affects a financial institution, the maximum is 30 years. (18 U.S.C. § 1341 (2016).)


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.

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.

Talk to a Lawyer

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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