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Aggravating Factors in Law: Definition & Sentencing

Instructor: Melanie Norwood

Melanie has taught several criminal justice courses, holds an MS in Sociology concentrating in Criminal Justice & is completing her Ph.D. in Criminology, Law & Justice.

In this lesson, we will define the term aggravating factor as it is used in our criminal justice system. We will also take a look at several examples of how aggravating factors work in sentencing.

What Is an Aggravating Factor in the Legal System?

Have you ever heard the phrase 'to add insult to injury?' To some extent, this notion is part and parcel of an aggravating factor to a crime. An aggravating factor is a circumstance or set of circumstances that makes the crime more heinous or intense and, as such, deems it a more egregious offense to society than simply the crime itself.

Aggravating factors vary by crime, state and federal statutes. They may include the instrument used to commit the crime and intent behind the commission of the crime (e.g., cruelty or treason), as well as the offender's criminal history, age and condition. Keep in mind that not all crimes have aggravating factors.

Aggravating Factors in Sentencing

Now that we have covered how aggravating factors are defined, we must examine how they work in sentencing. An aggravating factor functions to increase the penalty for the accused perpetrator of the crime, often a longer prison sentence, ineligibility for early release from prison, a larger fine or higher restitution costs. If the defendant is convicted of the crime with aggravating factors, the sentence is generally longer and more severe than if the defendant were simply charged with the crime. One example is aggravated rape as opposed to rape. An individual convicted of rape may be sentenced to prison for 5-10 years. However, an individual convicted with aggravated rape could be sentenced 25 years to life in some states.

There are a wide variety of aggravating factors that can play a role in sentencing, so let's look at a few of the more common aggravating factors:

Criminal History of the Offender

Perhaps you hear on the news tonight that there was a shooting in your city last week, and an arrest was made. The young man accused of the shooting is charged with second degree murder. The young man is a known member of a notorious gang in the area and has a lengthy criminal record. The prosecutor wants to send a message to the rest of the gang that she is tired of the crimes they are committing, and she decides to charge him with aggravated second-degree murder. The prosecutor has the ability to proceed with that charge given her position and the fact that his criminal history, filled with similar violent offenses, meets the criteria for an aggravating factor in second-degree murder.

Instrument Used to Commit the Crime

Let's say a convenience store was robbed. The man who committed the crime was armed with a machine gun, so that makes the crime an armed robbery. Let's say that the state in which the crime occurred had aggravating factors that dealt with the type of weapon used written into the statute for the crime of armed robbery. In this case, since the individual robbed the store with a machine gun, the weapon used would qualify as an aggravating factor in this crime.

Intent Behind the Commission of the Crime

Imagine that a parent was charged with child abuse for failing to provide adequate food, clothing and shelter to her seven-year-old son. The child's clothes were dirty, ill-fitting, tattered and torn, and that alone supports the charge based on the state's statute for what defines child abuse. However, perhaps this child was found to be severely malnourished and 20 pounds underweight for his height and age. Investigators also found that the child was being fed out of dog bowls and kept in a large dog crate in the family's garage. Given that there are aggravating factors written into the statute that defines the crime of child abuse in that state (as there are in all states) and these conditions meet those criteria (which they undoubtedly would), this parent would be charged with the crime of aggravated child abuse.

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