Aggravating and Mitigating Factors

Jurors Must Weigh the Circumstances

Jurors in the jury box
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When deciding the sentencing for a defendant who has been found guilty, jurors and the judge in most states are asked to weigh the aggravating and mitigating circumstances of the case.

The weighing of aggravating and mitigating factors is most often used in connection with the penalty phase of capital murder cases, when the jury is deciding the life or death of the defendant, but the same principle applies to many different cases, such as driving under the influence cases.

Aggravating Factors

Aggravating factors are any relevant circumstances, supported by the evidence presented during the trial, that makes the harshest penalty appropriate, in the judgment of the jurors or judge.

Mitigating Factors

Mitigating factors are any evidence presented regarding the defendant's character or the circumstances of the crime, which would cause a juror or judge to vote for a lesser sentence.

The Weighing of Aggravating and Mitigating Factors

Each state has its own laws regarding how jurors are instructed to weigh aggravating and mitigating circumstances. In California, for example, these are the aggravating and mitigating factors a jury can consider:

  • The circumstances of the crime and the existence of special circumstances.
    Example: A jury might consider the special circumstances of a defendant that was charged with driving while intoxicated on the day that he received divorce papers and was fired from a company where he had been employed for 25 years and he had no previous criminal record.
  • The presence or absence of violent criminal activity by the defendant.
    Example: The defendant broke into a home and the family inside the home woke up. The teenager in the family attacked the defendant, and instead of attacking back the defendant calmed the teen down and led him to his parents for reassurance, and then he left their home.
  • The presence or absence of any prior felony convictions.
    Example: A defendant found guilty of shoplifting an expensive television might be given a lesser sentence if he had no criminal record.
  • Whether the crime was committed while the defendant was under the influence of extreme mental or emotional disorder.
    Example: A woman was found guilty of assault after attacking a stranger, however, it was discovered that she was on new medication for depression which had a possible side effect of patients exhibiting unexplained and unprovoked violent behavior.
  • Whether the victim was a participant in the defendant's homicidal conduct or consented to the killing.
    Example: The victim hired the defendant to blow up his house for the insurance premiums, but he failed to leave the house at the time the two agreed on. When the bomb exploded the victim was inside the house, resulting in his death. 
  • Whether the crime was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
    Example: A defendant guilty of stealing a specific drug from a drugstore, but could prove that he did it because he needed it to save his child's life and could not afford to buy the medicine.
  • Whether the defendant acted under extreme duress or under the substantial domination of another person.
    Example: A woman found guilty of child abuse suffered years of extreme abuse from her dominating husband and did not immediately report him for abusing their child.
  • Whether at the time of the crime the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, or the affects of intoxication.
    Example: It would likely be a mitigating factor if the defendant suffered from dementia.
  • The age of the defendant at the time of the crime.
    Example: A woman found guilty of severely injuring people when, in the 1970s as an act of political protest, she (who was 16 years old at the time) and others set off a bomb in an office building that they believed was empty. She was never caught but turned herself in for the crime in 2015. For the past 40 years, she was law abiding, had married and was the mother of three children, and was active in her community and in her church.
  • Whether the defendant was an accomplice to the crime and their participation was relatively minor.
    Example: A defendant was found guilty of being an accomplice in a breaking and entering case after it was learned that he mentioned to the co-defendants that the people who owned the home were away on vacation. He did not participate in actually breaking into the home.
  • Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.
    Example: A male teen, 16 years old, shot and killed his abusive step-father after finding him in the act of sexually molesting his 9-year-old sister.

Not All Circumstances are Mitigating

A good defense attorney will use all relevant facts, no matter how minor, that could help the defendant during the sentencing phase of the trial. It is up to a jury or judge to decide which facts to consider before deciding on the sentence. However, there are some circumstances that do not warrant consideration.

For example, one jury might reject a lawyer presenting the mitigating factor that a college student found guilty of multiple charges of date rape would not be able to finish college if he went to prison. Or, for example, that a man found guilty of murder would have a hard time in prison because of his small size. Those are circumstances, but ones that the defendants should have considered before committing the crimes.

Unanimous Decision

In death penalty cases, each juror individually and/or the judge must weigh the circumstances and decide whether the defendant is sentenced to death or life in prison. In order to sentence a defendant to death, a jury must return a unanimous decision.

The jury does not have to return a unanimous decision to recommend life in prison. If any one juror votes against the death penalty, the jury must return a recommendation for the lesser sentence.