Aggravation and Mitigation: How They Add or Subtract From Your Sentence After Conviction

If you make a deal with the prosecution to plead guilty to a crime, part of the deal usually includes an agreement of some sort about your sentence. If you go to trial and get convicted, however, there can be a big gap between what the prosecution wants your sentence to be and what your defense attorney thinks is fair. That's where the court has to end up weighing any aggravating and mitigating factors that might increase or decrease your sentence. Learn more about how this process works.

The prosecution has the burden of presenting any aggravating factors to the court.

Aggravating factors often start with the way a crime was committed—is there something you did during the crime that was particularly cruel or offensive? For example, robbing a bank is bad, but an aggravating factor might be something like putting a gun to the head of a pregnant bank teller or taking a child hostage. Those sorts of things offend the sensibilities of ordinary people and automatically make you likely to face a stiffer sentence.

It's also important to note that things that were never brought up in trial—including evidence that was purposefully excluded by the court during your trial so that it wouldn't prejudice the jury—can now be considered by the court for the purposes of sentencing. That also includes things that had nothing to do with the actual crime, including whether or not you have previous criminal convictions, don't keep a steady job, or associate with other known criminals.

The defense attorney's job is to try to mitigate the damage and ask for a lighter sentence.

Mitigating factors—which are any facts that might support a more lenient sentence—are very broad, and courts are generally fairly liberal about what they'll take into consideration. Sometimes they focus on aspects of the crime that didn't make a difference when it came to whether or not you were convicted. For example, if your gun was actually unloaded when you robbed the bank because you'd never dream of actually shooting someone, that doesn't make you less guilty of bank robbery, but it could sway a judge into lowering your sentence a little.

Other mitigating factors can include things like the length of time since you committed the crime and the fact that you've led an exemplary life since then, the fact that you are the sole provider for your family, being a first-time offender, or a struggle with a physical or mental disorder. Mental disorders, in particular, can be mitigating factors if you were untreated at the time of the crime but have sought treatment since then, and the treatment has made you less likely to re-offend. For example, maybe you had an undiagnosed bipolar disorder and were on a manic high when you robbed the bank. If you have since been properly diagnosed and begun medication that's controlling your symptoms, the judge may have some sympathy for your situation and reduce your sentence. A physical disorder might be taken into account only if you're very ill and jail would be unnecessarily cruel. For example, if you have terminal cancer, a judge may allow you to go to a locked nursing home instead of prison.

Pre-sentencing reports (and what you say) can have a big influence.

A lot of judges will order a pre-sentencing report before they make up their mind about your sentence. This is often when you can help yourself the most. While your criminal-defense attorney can show any mitigating factors to the court during his or her turn to address the judge, the pre-sentencing report looks at things like how likely you are to re-offend and how contrite you are about your crime. The more clearly you convey the fact that you accept responsibility for your crime, show your remorse, and express a willingness to follow any restrictions the court places on you in the future, the more likely you are to get a recommendation of leniency.

For more information on how specific issues may affect the severity of your sentence, discuss the situation with your attorney. Pay close attention to his or her advice, particularly when it comes to what you need to make the person handling your pre-sentencing report understand this could have a dramatic effect on your future.

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