Aggravating Factors in Criminal Sentences

Aggravating factors are the reasons judges use when choosing a sentence that is higher than the average term. They include the severity of the crime, the vulnerability of the victim, and the history of the defendant.

By , Attorney · UC Law San Francisco
Updated August 11, 2021

Aggravating factors in criminal cases generally provide a basis for a judge to sentence at the high end of the permitted legal range.

Sentencing and Aggravating Factors

States have various ways to specify the punishment for criminal acts. Some states classify crimes into groups, or levels, and specify the sentence (or a range of sentences) for each level. Other states assign a specific sentence for each offense. Some adopt a hybrid approach, using levels or groups but also setting specific sentences for particular crimes. Finally, Kansas and the federal system use a unique approach, which takes into consideration the nature of the crime and the defendant's criminal history.

Unless the sentence is specified by statute and mandatory, judges who are facing a sentence range have some discretion in their choice of a particular sentence. For example, a level or group might give a range of say two to four years and provide that the default sentence for that range will be the middle sentence (three years in the above example). When a judge wants to deviate from the default sentence, the law often requires a justification for that deviation. Giving a lower sentence requires that the judge articulate "mitigating" circumstances, whereas giving the higher sentence involves a finding of "aggravating" factors.

Common Aggravating Factors

Most states and the federal government list aggravating factors in statutes, rules of court, and sentencing guidelines. But the aggravating factors listed generally aren't exclusive—judges can consider all information that reasonably relates to the defendant and the crime.

Two categories of enhancements exist: conduct enhancements, which pertain to how a crime was committed; and status enhancements, which generally address the defendant's prior criminal history or factors such as gang affiliation.

Here are some common aggravating factors.

Prior convictions. The defendant's criminal record contains several prior convictions or convictions that are of increasing seriousness.

Vulnerable victim. The victim was particularly vulnerable or the defendant took advantage of a position of trust to commit the crime.

Weapon. The defendant was armed with a weapon.

Hate crime. The defendant targeted a victim based on the victim's actual or perceived race, color, religion, sex, sexual orientation, disability, age, or national origin.

Harm. The defendant committed the crime in a way that was especially violent or cruel and caused or threatened to cause bodily harm.

Major offense. The offense involved higher than usual quantities of contraband (drugs, stolen property) or multiple victims.

Leadership and sophistication. The defendant played a prominent role in a criminal scheme or committed an offense that involved a high degree of sophistication or planning.

How Do Judges Use Aggravating Factors?

Mitigating and aggravating factors are intended to help judges craft sentences that are consistent and proportional to the severity of the offense and the defendant's criminal history.

Judges can't use a fact that is an element of the crime to impose an aggravated (higher than default) sentence. For example, say William Douglas tries to stab someone with a knife during a bar fight. He is convicted of assault with a deadly weapon. The judge can sentence him to two, three, or four years in prison. But the judge can't choose the high term (4 years) based on William's use of a knife because it is already an element of the crime.

Aggravating factors are often outlined in presentence reports. Probation officers typically prepare presentence reports in serious misdemeanor and felony cases. Probation officers summarize police reports and interview defendants and victims to give judges a fuller picture of the defendant than that developed during the prosecution. Before sentencing, prosecutors can submit statements to judges, in which they outline factors in aggravation, hoping to persuade the judge to impose a stiff sentence. Defendants can ask for leniency in statements in mitigation.

Sentencing judges must weigh all aggravating and mitigating factors and state on the record the reasons for their sentencing choices. In most jurisdictions, prosecutors must prove aggravating factors to a judge by a preponderance of the evidence (more likely than not) standard. A minority of jurisdictions require prosecutors to meet a higher standard in some cases. Prosecutors must prove enhancements (see above) to the trier of fact—a judge or a jury—beyond a reasonable doubt.

Capital Cases (Death Penalty)

In jurisdictions where murder is a capital crime, a defendant can get the death penalty only if the offense involves at least one aggravating circumstance (sometimes called a special circumstance).

Examples of aggravating circumstances in capital cases include murders where two or more victims are killed, murders of vulnerable victims (children or elderly people), murders for hire, murders committed in a cruel or heinous manner (torture), and murders of police officers.

The Sixth Amendment of the United States Constitution requires a jury—not a judge—to find beyond a reasonable doubt any aggravating circumstance to impose the death penalty.

Talk to a Lawyer

If you are facing criminal punishment and want to know what factors might cause a judge to increase your sentence, consult with an experienced criminal defense lawyer. An experienced lawyer can explain the applicable sentencing laws to you and help you decide whether to plea bargain or fight your case.

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