Considerations in Sentencing

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There are many occasions over the course of criminal cases where the Judge gets to decide what the sentence will be. If someone loses a trial, then the judge can sentence someone to whatever they want within the range of sentences prescribed by statute. For example, if someone is convicted of a Level 5 Felony after a trial, they can be convicted of anything between 1 and 6 years, with an advisory sentence of 3 years. The Judge could sentence the Defendant to anything between one year of probation, to 6 years in the department of correction. The same can be said for plea agreements that contain an “open” term. Some plea agreements contain a term that allows the Judge to decide certain aspects of the plea.

Indiana Code 35-38-1-7.1 is a list of factors the Judge may consider when deciding what an appropriate sentence is. Below is a review of those factors:

Aggravating Factors (things that can cause a bigger sentence):

  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:
    • This provides for situations where the harm to the victim was severe. For example, take a drunk driver who causes a crash and inflicts injury on the other driver. Whether the other driver loses a finger or an entire leg, would essentially be the same offense, but clearly one is much worse than the other.
  2. The person has a history of criminal or delinquent behavior:
    • The Judge will take a persons criminal history into consideration. The worse the history, the worse the sentence.
  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:
    • This is intended to punish offenders who target the young and elderly who cannot defend themselves.
  4. The person committed a crime of violence in front of someone who was less than eighteen (18) years of age:
    • The state legislature determined that people who commit violent crimes in front of children should be punished more harshly as it is likely to have a negative impact on that child.
  5. The person violated a protective order, a workplace violence restraining order, or a no contact order:
    • This is to punish people who were already ordered by a court not to have contact with a person and still committed a crime against them. The court may find that the only option in keeping that person safe is to keep the defendant behind bars.
  6. The person has recently violated the conditions of probation, parole, pardon, community corrections placement, or pretrial release:
    • This allows for an aggravated sentence because the Judge may not feel that they can trust the person to follow the rules of any of these listed programs, and therefore must place in them in jail or department of corrections.
  7. The victim of the offense was a person with a disability, mentally, or physically infirm:
    • This is to provide extra punishment for offenders who target those who are vulnerable. It is the same reasoning as number three (3).
  8. The person was in a position having care, custody, or control of the victim of the offense:
    • This is to provide extra punishment for someone who took advantage of being in a position of trust.
  9. The injury to or death of the victim of the offense was the result of shaken baby syndrome:
    • This is a decision by the legislature to provide extra punishment for this specific offense.
  10. The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense:
    • This is the State providing extra protection for people who report crimes.
  11. The person committed trafficking with an inmate and is an employee of a penal facility:
    • This is, again, the State providing extra punishment for those placed in a position of trust.
  12. The person committed the offense with bias due to the victim’s or the group’s real or perceived characteristic, trait, belief, practice, association, or other attribute the court chooses to consider:
    • The State wants to put an end to racism and other unfair prejudices and therefore punishes these crimes more harshly.

Mitigating Factors (things that can reduce a sentence)

  1. The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so:
    • This is to save Defendants that, while they may have committed a crime, it didn’t really hurt anything or anyone.
  2. The crime was a result of circumstances unlikely to recur:
    • This is to help out people who were put in a very unusual situation, and the way they responded happened to be a crime.
  3. The victim of the crime induced or facilitated the offense:
    • This can be a tough one to argue without “victim blaming”, but sometimes the victim of an offense can be partially to blame. The Defendant should be given a break when, but for the victim’s actions, the Defendant probably would not have committed a crime.
  4. There are substantial ground tending to excuse or justify the crime, though failing to establish a defense:
    • This is a classic case of stealing bread to feed your starving family. Yes, it is a crime still, but understandable why someone would do it and therefore worth of a reduced punishment.
  5. The person acted under strong provocation:
    • This is similar to number 3, but includes situations where the inducing behavior was from someone other than the victim.
  6. The person has no history of delinquency or criminal activity:
    • Someone who doesn’t have much of a record, or at least a recent record, should be given a break.
  7. The person is likely to respond affirmatively to probation or short-term imprisonment:
    • Someone who has a history of successfully completing probation or other similar programs should be considered to be in those programs again.
  8. The character and attitudes of the person indicate that the person is unlikely to commit another crime:
    • If the person is genuinely sorry and understands the serious nature of their offense, and they show that they are reformed, then they can receive a mitigated sentence.
  9. The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained:
    • An example here is someone who has damaged someone’s property, and then pays to have it repaired. That is to be considered in mitigating a sentence.
  10. Imprisonment of the person will result in undue hardship to the person or the dependents of the person
    • This is usually in the case of a single parent whose children will seriously suffer if place in prison. The Judge can reduce a sentence to probation or house arrest if necessary for the well-being of others.
  11. The person committed a crime involving the use of force against someone who had repeatedly inflicted physical or sexual abuse upon the person convicted
    • This is the account for situations where someone is abused over a long period of time and finally stands up to their abuser. Maybe it does not amount to self-defense, but still could cause a sentence to be reduced.
  12. The person was convicted of a crime relating to a controlled substance and the person’s arrest or prosecution was facilitated in part because the person requested emergency medical assistance for them or another person:
    • This is to make sure that people will not be afraid to contact 911 during a drug overdose of themselves or someone else.
  13. The person has PTSD, traumatic brain injury, or a post-concussive brain injury:
    • This is to take into account the unpredictable nature of such brain injuries and the occasional lack of control from which the offender may be suffering.
  14. The person committed the offense while the person was a child but is now at least twenty-one (21) years of age
    • Of course, we all have experienced growth in the sense that we are not the same person at 21+ as we were at age 15 or 16. Therefore, a punishment for something done as a teenager may not be appropriate several years later.

These are all factors that the Judge is required by statute to consider when determining an appropriate sentence for a crime. Ultimately, the Judge is afforded a lot of discretion in considering the sentence and none of these factors are to be given a specific amount of weight. There is no mathematical formula to determine the correct outcome. If you have any questions, don’t hesitate to contact the criminal defense attorneys in Indianapolis at Banks and Brower at (317) 870-0019 or