Aggravating and Mitigating Circumstances

Aggravating and mitigating circumstances are important legal considerations in the sentencing of convicted offenders under modern sentencing laws in the United States. Evidence regarding the two areas is typically presented during a sentencing hearing after the offender has been convicted, and is weighed by the decision maker in deciding on the appropriate disposition. Aggravating circumstances are factors that make an offense seem worse to the evaluator. In contrast, mitigating circumstances are factors that suggest that the offense or the offender should be regarded in a less harsh way by the sentencing authority. These circumstances are relevant concerns in murder cases in which a convicted offender is facing the death sentence. They are also critical considerations in many states that have adopted determinate or presumptive sentencing.

In 1972, the United States Supreme Court, the highest court in the nation, held in Furman v. Georgia that the death penalty as it was being administered at the time constituted “cruel and unusual punishment,” in violation of the Eighth and Fourteenth Amendments. The Court in this landmark ruling did not abolish [Page 4]capital punishment, but made it clear, however, that new legislation drafted with respect to the death penalty must ensure that its imposition in the future remedied the random and capricious nature of sentencing policies in the past.

Four years later, the United States Supreme Court, in recognizing that various state death penalty laws had adequately reduced the arbitrariness of previous statutes, allowed capital punishment to resume under certain conditions. In the 1976 case of Gregg v. Georgia, the Court approved a two-stage process whereby jurors would first determine the guilt of an offender standing trial for murder. If the accused were found guilty of capital murder, the jury would consider aggravating and mitigating factors and then make a recommendation to the judge to impose either the death sentence or imprisonment. The judge, after careful consideration of the jury's recommendation, would make findings with respect to aggravating and mitigating factors and then impose the appropriate sentence.

In an attempt to comply with the Supreme Court's directive, the typical modern death penalty statute contains separate lists of aggravating and mitigating factors. Aggravating circumstances are typically limited by statute. The prosecutor must prove that at least one aggravating circumstance exists for the defendant to be eligible for the imposition of the death penalty. In most jurisdictions, however, the prosecution may offer proof relevant only to establishing one of the previously delineated aggravating criteria; aggravating circumstances not previously set out in the statute are typically irrelevant. In contrast, the defense is not limited to the specific mitigators enumerated in the state statute. In the 1978 case of Lockett v. Ohio, the Court struck down the Ohio law that did not allow the sentencing judge to consider nonstatutory mitigators (which included, in this particular case, the defendant's age, character, lack of specific intent to bring about death, and relatively minor participation in the crime). As a result, during the sentencing phase, defense attorneys are typically allowed to introduce any case-related factors that may be viewed as mitigating.

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