Aggravating Factors

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 What is an Aggravating Factor?

“To aggravate” means “to make worse, more serious, or more severe; to intensify unpleasantly.” Thus, in criminal law, an aggravating factor is any circumstance related to a crime charged that somehow makes the crime itself worse. The phrase “aggravating factor” refers to a number of features involved in a criminal act, including the particular victim, the motivation behind the crime or the tool used to commit it, that make it worse.

Aggravating factors are sometimes referred to as “enhancement.” While the terminology might be different, the effect is the same. An enhanced crime is one that is viewed as deserving a more harsh punishment than a crime that is not enhanced.

For example, with a drug crime, aggravation of the crime comes about when the amount of the drug is greater than a certain amount. Or, in the case of a burglary, the use of a weapon, physical force or the threat of force makes the crime worse in the view of the law. This can worsen both the degree of the crime as well as the punishment.

Under the law in some states, an aggravating factor might mean that a crime is charged as a felony instead of a misdemeanor. Or, it might raise the level of a felony from a lesser offense to a more serious one. The basic result, however, is that the punishment is more severe because of the aggravating factor.

Most people are familiar with the degrees of the crime of murder. It is the presence of aggravating factors that makes a homicide first degree murder as opposed to second degree murder or manslaughter.

While the factors that make a homicide first degree murder as opposed to a lesser crime vary by state, generally, a homicide that is premeditated is a factor in a first degree murder. Other aggravating factors would be that the murder took place as part of a kidnapping. Or, the defendant laid in wait or ambushed the victim. Or, the victim was a police officer. Other circumstances may lead to a first degree murder charge depending on the law of the state where the crime took place.

Why Are Aggravating Factors Important?

If a person is convicted of a crime, any related aggravating factors could increase the severity of the punishment. For example, if a person is sentenced to a term in prison, the length of the sentence could be increased. This would mean that the person serves more years in prison than they would have if there had not been aggravating factors. Or if the defendant must pay a fine, the aggravating factors could increase the amount of the fine significantly.

What Are Some Examples of Aggravating Factors?

The list of what can be considered an aggravating factor is determined by statutes and varies widely by state. Some examples of commonly accepted aggravating factors include:

  • Prior Convictions: In all states, a defendant with prior convictions for other crimes is going to face a harsher punishment than a defendant who has no prior convictions. For example, California has its so-called “Three Strikes law”. This law specifies increasingly severe punishment for each subsequent conviction of a crime.
    • Originally enacted in 1994, the original version required a defendant convicted of any second felony, having been convicted of one prior serious felony, to be sentenced to state prison for twice the term otherwise provided for the crime. If a defendant with two or more prior strikes was convicted of a third felony, they had to be sentenced to state prison for a term of at least 25 years to life.
    • In November 2012, the law was amended in two major ways as follows: The third strike requirement has been changed to a felony that is a serious or violent felony in order for the defendant to be sentenced to 25 years to life in prison;
  • Sophistication and Leadership Roles: A court can consider an offense aggravated if the defendant played a leadership role in the commission of the crime. Or, a court might also impose a harsher penalty if the crime of which the defendant is convicted involved a high degree of planning or sophistication;
  • Vulnerable Victim: In some states, a court can impose harsher penalties if the defendant’s victim was especially vulnerable in some way. For example, a victim might be vulnerable because they trusted the defendant and the defendant exploited that trust in the commission of their crime. Or the victim might have been an elderly person or a child;
  • Use of Weapons: Using or being in possession of a dangerous weapon, such as a firearm or knife, during commission of a crime is very likely to be an aggravating factor when the time for sentencing comes;
  • Hate Crime: If the crime was targeted at a member of a protected class because of their membership in the class, this can be an aggravating factor. So, if the defendant targeted a victim because of their race, religion, sexual orientation, color, sex, age, disability, or national origin, this can lead to a harsher punishment.

These are not all of the possible aggravating factors in every state in the U.S. There are many other possible aggravating factors that may be considered by a sentencing judge.

It is important, however, to keep in mind that a judge cannot use an aggravating factor against a defendant unless the existence of the factor is proven beyond a reasonable doubt.

How Can I Prevent Aggravating Factors From Being Used Against Me?

As mentioned above, the prosecution must prove that an aggravating factor exists beyond a reasonable doubt. So, one way to prevent the prosecution from arguing aggravating factors at sentencing would be to aggressively defend against the prosecution’s case for the existence of an aggravating factor.

For example, the defendant would want to challenge the prosecution’s evidence and work to exclude it by arguing that it is not admissible for a variety of reasons. The evidence might not be admissible, because it is the product of an illegal search or seizure. Or, some evidence might be inadmissible as hearsay. There are a number of ways to exclude evidence, and a defense attorney would want to explore them all.

Finally, even if aggravating factors are proven, the defense can raise any mitigating factors to try to counter the aggravating factors and reduce the sentence. Mitigating factors are any circumstance related to the crime or the defendant in question that would reduce the defendant’s sentence.

Such factors can include the defendant’s remorse, their lack of a prior criminal record, the minor role that the defendant played in the crime, the defendant’s drug addiction and, hopefully, their efforts to fight their addiction. Any factors that lessen the defendant’s culpability would be mitigation factors.

Can Aggravating Factors Be Used to Postpone My Release?

In some states, aggravating factors can still be used against the defendant after they are sentenced at the end of their initial trial. They can be used, for example, at parole hearings or other hearings about whether the defendant should be released from prison.

Should I Contact a Lawyer if I Do Not Know about Aggravating Factors in My Case?

This area is specific to each state’s criminal justice system and the federal criminal justice system. It is important to understand how aggravating factors may play a role in your case. In order to learn which factors in your particular case may be considered aggravating factors, you need to consult an experienced criminal defense lawyer.

They are knowledgeable in the criminal law of your state or the federal system, if your case is a federal case. They can help you identify any possible aggravating factors in your case, how they might affect your case and the best strategy for defending against them or countering their effect with mitigating factors.


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