A Look at Indiana’s Aggravating & Mitigating Factors When It Comes to Sentencing
Many people know that a judge generally has considerable leeway in imposing a sentence after a person is convicted of a crime. For example, a sentence for a Level 5 felony can range from 1 to 6 years. So how do judges come to a sentencing decision in any given case? Indiana law contains certain aggravating and mitigating circumstances that a judge can use in determining what sentence is appropriate in any given case. Sometimes these circumstances are also referred to as aggravating factors and mitigating factors. In this blog the Indianapolis Criminal Defense Attorneys at Banks & Brower take a look at these sentencing considerations.
Aggravating circumstances are those which might make the crime more heinous or otherwise make the crime “worse” in the eyes of observers. Mitigating circumstances are those that may in some way lessen the severity of the crime as compared to other similar crimes. Indiana law provides that a court may consider the statutory circumstances, and the court is not limited to considering the enumerated circumstances in making a sentencing decision. Further, courts are expressly permitted to impose any sentence authorized by statute and the Indiana constitution regardless of the presence or absence of any of the following circumstances. Though courts retain this discretion, it is common for courts to impose sentences after consideration of the aggravating and mitigating circumstances in a particular case.
The eleven aggravating circumstances provided by statute are as follows:
(1) The harm, injury, loss, or damage suffered by the victim of an offense was significant and greater than the elements necessary to prove the commission of the offense.
(2) The person has a history of criminal or delinquent behavior.
(3) The victim of the offense was less than twelve (12) years of age or at least sixty-five (65) years of age at the time the person committed the offense.
(4) The person committed a crime of violence (IC 35-50-1-2) and knowingly committed the offense in the presence or within hearing of an individual who (i) was less than eighteen (18) years of age at the time the person committed the offense and (ii) is not the victim of the offense.
(5) The person violated a protective order issued against the person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or IC 34-4-5.1 before their repeal), a workplace violence restraining order issued against the person under IC 34-26-6, or a no contact order issued against the person.
(6) The person has recently violated the conditions of any probation, parole, pardon, community corrections placement, or pretrial release granted to the person.
(7) The victim of the offense was a person with a disability (as defined in IC 27-7-6-12), and the defendant knew or should have known that the victim was a person with a disability, or the victim mentally or physically infirm.
(8) The person was in a position having care, custody, or control of the victim of the offense.
(9) The injury to or death of the victim of the offense was the result of shaken baby syndrome (as defined in IC 16-41-40-2).
(10) The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense.
(11) The person committed trafficking with an inmate under IC 35-44.1-3-5 and is an employee of the penal facility.
The eleven mitigating circumstances provided by statute are as follows:
(1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.
(2) The crime was the result of circumstances unlikely to recur.
(3) The victim of the crime induced or facilitated the offense.
(4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.
(5) The person acted under strong provocation.
(6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.
(7) The person is likely to respond affirmatively to probation or short term imprisonment.
(8) The character and attitudes of the person indicate that the person is unlikely to commit another crime.
(9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.
(10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person.
(11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery as a result of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.
Courts often consider the number of aggravating versus mitigating circumstances in reaching a sentencing decision. Different factors or circumstances can also be given different weight by the court in determining a sentence. Arguments as to which factors are present and the weight to which each is entitled are generally presented by the defendant’s attorney and the prosecutor at a sentencing hearing or in a sentencing memorandum.
In practice, courts commonly decide that the aggravating circumstances outweigh the mitigating circumstances or vice versa, and this determination generally leads the court to impose a sentence above or below the advisory sentence depending on which set of circumstances prevail. Again, however, a court retains inherent discretion to impose any permissible sentence. Therefore, the outcome of weighing the aggravating and mitigating factors will not always control the sentence imposed. Still, if a court finds aggravating and mitigating circumstances, the court must make a record of the court’s reasons for selecting the sentence that is imposed.
The aggravating and mitigating factors listed above, as well as others that the court may consider, can significantly impact the amount of time to which an individual is sentenced after being convicted of a crime. This is yet another reason why it is crucial to consult with an Indianapolis criminal defense attorney if you have been charged with a crime.
If you or someone you know has been charged with a crime, call the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower. Initial consultations are always free, whether over the phone or at our new main office located at 9102 N. Meridian Street, Suite 500, Indianapolis, Indiana 46260. You can reach us by phone 24/7 at 317-870-0019 or by email at firstname.lastname@example.org.