What are Aggravating and Mitigating Factors in a Criminal Case?

Criminal prosecutions are never as black-and-white as they seem to be on television and in movies. Before a case is brought before a judge and jury, a lot goes on behind the scenes that can determine how severe a crime the defendant is charged with and how serious the penalty can be. The aggravating and mitigating factors determine the severity of the case.

What are Mitigating Factors?

When a person is charged with a crime, the sentence can vary widely. Some less-severe crimes can be charged as misdemeanors or felonies, depending upon aggravating factors or mitigating factors. For instance, serious crimes such as motor vehicle homicide may be reduced to reckless driving if mitigating factors weigh in the defendant’s favor.

When considering what mitigating factors are, think of a criminal case like a scale that can be tipped to one side or another. If there are more aggravating factors than mitigating factors then the defendant is starting with strikes against them. If there are more mitigating factors then the penalty will be somewhat easier on the defendant.

Mitigating factors cause the court to show lenience toward the defendant. Perhaps it is the person’s first-ever criminal offense, or they were with a group and got swept up in an activity that became a criminal incident. The defendant may be less responsible than if there was a fully-formed intent to commit a serious crime.

Mitigating Factors Examples

Prosecutors may be more lenient on someone who is employed, stable, and a breadwinner for a family because they rationalize that the crime was an aberration. Rather than facing a severe punishment, the defendant may be given a second chance with probation rather than jail time.

Examples of mitigating factors include:

  • Being gainfully employed
  • Age
  • Mental capacity
  • Showing remorse and/or cooperating with authorities
  • No prior criminal convictions
  • Attending school
  • Breadwinner for family
  • Acting under the influence of alcohol or drugs

Victims of sex trafficking are often charged differently now that there is an appreciation for the psychological trauma they endure. This is a new twist on the mitigating vs aggravating considerations. Sex abuse and trafficking victims are less frequently charged with felony-level crimes that are related to their situations as a result. In these cases, being under the control of abusive pimps is a mitigating factor that results in fewer prosecutions for prostitution and similar activity.

Many state courts now have diversion programs that treat those with alcohol or drug dependency under different standards due to mitigating circumstances. The convictions for this group may be suspended pending the completion of a class or treatment program. However, subsequent criminal activity is less likely to be treated with the same deference.

Mitigating Circumstances

A good defense attorney brings forward mitigating circumstances for the prosecution to consider, whether they are a history of family dysfunction and abuse, a history of mental illness, being under the influence of drugs, acting out of fear of retaliation from a criminal ringleader, or when the crime was an act of desperation for money needed to avoid eviction.

If faced with criminal prosecution, offering mitigating circumstances never hurts and may sway the prosecutor, judge, or jury to offer lenience. If you still ask, “What is the difference between aggravating and mitigating factors?” remember it this way: mitigating factors Minus (subtract) from the sentence, and aggravating factors Add to the sentence.

When the defendant is a person of color who was not directly involved in the crime, they may claim police used criminal profiling and that the prosecution lacks concrete evidence.

Aggravating And Mitigating Factors

Aggravating Factors Definition

Aggravating factors are those that prompt prosecutors to seek higher-level charges and the most severe penalties for a crime. The aggravating factors definition is “to make worse.” For instance, prosecutors may seek a higher-level charge against a person who has a history of criminal activity or who lacks remorse. They may cite available court records of past criminal prosecutions to make the case for a tougher penalty.

Aggravating Factors Examples

Aggravating factors are circumstances that increase the severity or culpability of a criminal act. They can lead to harsher penalties during sentencing. Understanding these factors is crucial in distinguishing between mitigating and aggravating circumstances. Here are some common examples of aggravating factors:

  • Indifference to victims
  • Lack of remorse
  • Crime with gratuitous violence
  • Vulnerable elderly or children as victims
  • Perpetrator was in a position of trust
  • The crime was committed by a gang
  • The crime was planned in advance
  • Numerous victims 

Criminal records, including past offenses of any type, may be used to convince a judge or jury that the defendant is guilty. The judge must allow these records to be introduced in a trial. A prosecutor may use criminal records to get a defendant to plead guilty in exchange for a lighter sentence, like probation.

Aggravating Circumstances

Similar to aggravating factors, circumstances may propel a sentence beyond the minimum penalty for a criminal with a long history, for depraved indifference to victims, participating in organized crime, or not showing remorse.

Aggravating circumstances may be required in some jurisdictions in order for the death penalty to be considered an appropriate punishment. In some states, the murder of a law enforcement officer is automatically considered an aggravating circumstance that merits the death penalty.

What are The Differences Between Aggravating and Mitigating Factors?

Many factors are in play in a criminal trial, from the crime’s impact on the victim’s life to the number of victims, the circumstances of the crime, and the age of the victim. The perpetrator’s stature in the community, past criminal history, admission of guilt (or claim of innocence), and other influences in their life are all taken into consideration.

The difference between aggravating and mitigating factors is that one, aggravating, results in a tougher prosecution and potentially longer sentence, while the other, mitigating, is likely to reduce the severity of the prosecution and resulting penalty. Ultimately, the decision to incorporate aggravating factors or mitigating factors into a criminal prosecution is at the discretion of the prosecutor and judge.

Aggravating And Mitigating Factors

Criminal cases can vary significantly when mitigating factors or aggravating factors are included. The most common aggravating factor is a record of criminal activity, followed by habitual drug or alcohol abuse. A common mitigating factor is being a first-time offender who was caught up in the moment.

Mitigating factors and mitigating circumstances may be encoded in law, including prohibitions against the death penalty for youthful offenders (under age 18). Mental capacity and/or severe emotional disturbances may also be legal barriers to severe punishment, such as the death penalty.

Aggravating circumstances are less likely to be clearly codified in law. Things like aggravated assault rely on a judge or jury’s interpretation of the defendant’s actions.


What Role Do Aggravating and Mitigating Factors Play in Plea Negotiations?

Plea negotiations are when aggravating and mitigating factors are brought to the court’s attention. A defense attorney will discuss potential aggravating or mitigating factors with the defendant before they plea. Sometimes, a guilty plea and show of remorse will reduce the charges, whereas a plea of not guilty and an attitude of contempt for the court can be an aggravating factor.

Can Both Aggravating and Mitigating Factors Be Presented During a Trial?

It is not uncommon for both mitigating and aggravating circumstances to be presented during a trial. The prosecution will use aggravating factors to show the defendant deserves the maximum penalty for the crime. The defense uses mitigating factors to show the defendant did not intend to commit the crime or is really a good person caught up in a bad situation (and will call character witnesses like teachers, neighbors, and employers to speak to that point). It’s up to the judge or jury to decide which carries more weight and how to apply mitigating or aggravating circumstances to the penalty the defendant deserves.

Do Aggravating and Mitigating Factors Vary Across Jurisdictions?

There is a slight variation of aggravating and mitigating factors from one jurisdiction to another, but rarely will a mitigating factor in one state be considered an aggravating factor in another. What is the difference between aggravating and mitigating factors in Alabama vs. New York can be that the law does not clearly define the factors in one state or another but relies on case law and accepted practice.