What Are Mitigating or Extenuating Circumstances?

Mitigating circumstances (such as a defendant's young age or lack of a criminal record) could convince the prosecutor or judge to cut the defendant a break.

By , Attorney · UC Berkeley School of Law
Updated 11/17/2020

Mitigating (or extenuating) circumstances are factors that tend to lessen the severity of a crime or its punishment by making the defendant's conduct understandable or less blameworthy. Mitigating circumstances might include a defendant's young age, mental illness or addiction, or minor role in the crime.

Say two people rob a convenience store at gunpoint. One is a 13-year-old girl with no criminal record. She's a runaway and has a serious drug addiction. The other is her 26-year-old boyfriend. He has a long criminal history, including other armed robberies. The robbery was his idea, and he planned the crime and obtained the weapons. Are these two people equally responsible for their criminal conduct? Do they deserve the same sentence?

How Mitigating (or Extenuating) Circumstances Are Used

In law, the concept of mitigating circumstances is broad, and the term may mean different things to different judges. Sometimes, it refers only to factors that impact sentencing. Other times, it refers to anything short of a defense that makes the defendant's criminal behavior less blameworthy and results in a less serious charge or sentence. Sometimes, a factor that one state considers to be an affirmative defense might be a mitigating circumstance in another.

For example, possession of any nude or sexual image of a child is a crime (child pornography). Some state laws are written in a way that takes mitigating circumstances into account. In these states, a teenager who possesses a nude cell phone picture of another teen might be charged with the less serious crime of teen sexting. Even if the law doesn't specifically say how to deal with the defendant's age, in many states, if the defendant is also a minor and the child depicted in the image willingly sent it, the crime will be punished less severely than if the defendant were an adult with a collection of computer child pornography.

Decisionmakers in the criminal justice system, such as police officers, prosecutors, judges, and jurors, are always considering mitigating circumstances along with all the other facts in deciding how best to handle a case. If a person with a developmental disability steals a soda from a store, a police officer might decide not to make an arrest, a prosecutor might not file criminal charges, the jury might decide not to convict, or a judge might impose a lighter sentence.

Aggravating Circumstances

In contrast, aggravating circumstances make a crime more severe or serious. Common aggravating circumstances include the defendant's lengthy prior record, use of a weapon, or targeting of a vulnerable victim.

Capital vs. Non-Capital Cases

Normally, judges, not jurors, decide a defendant's punishment. A judge refers not only to the law and the facts but also looks to the presentencing report, which often contains many details about a defendant's life (including mitigating factors) that are not necessarily part of the criminal case.

Death penalty cases are unique because, in most states, jurors decide whether to sentence a defendant to life in prison or death. In making those decisions, jurors are first required to consider any mitigating circumstances. Mitigating circumstances are not defenses or excuses but factors that tend to reduce the defendant's blame. State laws vary, but in some states, jurors are required to find the existence of aggravating and mitigating circumstances and then assign a weight to these circumstances in fixing the verdict.

Examples of mitigating circumstances in capital cases include the defendant's:

  • lack of a prior criminal record
  • extreme mental or emotional disturbance at the time of the crime
  • belief that the crime was justified
  • role as a minor participant in the crime
  • old age or youth (including being a minor), or
  • extreme duress.

In addition, the jury may take into account whether the victim participated in the crime with the defendant, as well as any other circumstances that lessen the severity of the crime.

Obtaining Legal Assistance

If you were arrested or charged with a crime, contact an attorney about your case. An experienced criminal defense attorney can evaluate your case and determine how to best present any mitigating circumstances.

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