In Arizona, aggravating or mitigating factors can drastically change a criminal defendant’s prison sentence for a felony offense. If these factors are present, the judge in a sentencing hearing can impose a prison term that is longer than the maximum sentence, or shorter than the minimum term.
Death penalty and homicide cases have their own, unique set of aggravating or mitigating circumstances.
1. What are aggravating factors in Arizona?
Aggravating factors are facts or circumstances surrounding a felony-level criminal offense that make the offense worse in some way.
Arizona criminal law recognizes no fewer than 27 potential aggravating factors for non-capital felony convictions. They are:
- the infliction, or the threatened infliction, of a serious physical injury, unless the injury made the crime a dangerous offense or was an element in the offense,
- using, threatening to use, or possessing a deadly weapon or dangerous instrument, unless this made the crime a dangerous offense or was an element in the crime,
- the value of any property that was taken or damaged,
- the presence of an accomplice to the crime,
- the offense was committed in an especially heinous, cruel, or depraved way,
- the defendant was paid in some way to commit the crime,
- the defendant paid, or promised to pay, someone to commit a crime,
- the defendant worked for the government and the offense was directly related to his or her job,
- the degree of the physical, emotional, or financial harm suffered by the victim or, if the victim died, by the victim’s family,
- an unborn child died during the offense,
- the defendant had been convicted of a felony in the last 10 years,
- the defendant wore body armor,
- the victim was either older than 65 or had a disability,
- the defendant was a fiduciary and the offense was directly related to their duties as a fiduciary to the victim,
- the defendant acted out of malice towards the victim’s actual or perceived race, skin color, national origin, gender, sexual orientation, or disability,
- the offense was vehicular manslaughter or vehicular assault and the defendant is accused of driving under the influence (DUI) with a blood alcohol content (BAC) at or above 0.15 percent,
- the defendant was lying in wait for the victim,
- the offense was a crime of domestic violence and happened in the presence of a child,
- the crime was done in retaliation for the victim reporting criminal activity or being a part of a group that reports criminal activity,
- the defendant impersonated a police officer,
- the defendant was an illegal immigrant or was helping immigrants enter the U.S. illegally,
- the defendant used a stun gun,
- either during or immediately after the offense, the defendant caused a hit-and-run accident with their motor vehicle,
- the conviction was for human or sex trafficking and the defendant found the victim at a shelter,
- the conviction was for aggravated assault and the defendant acted out of malice because the victim was a peace officer,
- either during or immediately after the offense, the defendant used a mask to avoid identification, and
- any factor that the prosecutor claims is relevant to the offense.[1]
Once a single aggravating factor is present, the court can sentence the defendant to an aggravated term.[2] However, multiple factors often need to be present for a judge to go past the maximum term and impose the aggravated sentence.
Except for aggravating factor number 11 in this list,[3] it is the jury that has to find the presence of an aggravating circumstance beyond a reasonable doubt for the court to increase the potential sentence at the sentencing hearing.[4] Once a single aggravating factor has been proven beyond a reasonable doubt to the jury, further aggravating factors can be proven to the judge by a preponderance of the evidence.[5] If the defendant has waived his or her right to a jury, then the judge, rather than the jury, can make these findings.[6] These burdens of proof do not apply to aggravating factors that the defendant has admitted to.
A reason for the high number of potential aggravating factors is that the Arizona Supreme Court decided that a “catch-all” aggravation factor, which would allow courts to increase a maximum prison sentence for any reason a judge might deem appropriate, violates a defendant’s Due Process rights.[7]
2. What are mitigating factors?
Mitigating factors or circumstances are facts or elements of the offense that reduce the severity of the crime or the defendant’s culpability.
The law in Arizona recognizes 6 mitigating factors for non-capital felony offenses:
- the defendant’s age,
- the defendant’s ability to appreciate the wrongfulness of his or her conduct or their inability to follow the law,
- there was unusual or substantial duress on the defendant,
- the defendant’s role in the commission of the crime was only a small one,
- during or after a crime involving a car accident, the defendant stopped to help the victim, and
- any other mitigating factor related to the circumstances of the offense or the defendant’s background or character.[8]
3. How do these factors influence a prison sentence?
If a judge or jury determines that any mitigating or aggravating factors were present during the offense, it can increase or decrease the prison sentence.
A felony sentencing chart shows how much the prison term can change for each type of crime and each class of felony. For example, in the sentencing range for a first-time, non-dangerous Class 3 felony, the difference between a mitigated sentence and an aggravated sentence is 6 years and 9 months[9]:
| Mitigated sentence | Minimum sentence | Presumptive sentence | Maximum sentence | Aggravated sentence |
| 2 years | 2 years and 6 months | 3 years and 6 months | 7 years | 8 years and 9 months |
When there are no aggravated or mitigated circumstances, the court will impose a presumptive sentence.
As soon as there is an aggravating factor, the judge can impose an aggravated sentence. The more aggravating circumstances there are, the more likely that the judge will impose an aggravated sentence. If there are aggravating factors and no mitigating ones, the court will impose an aggravated term.[10]
If there are mitigating factors, the court can impose a minimum or a mitigated prison term.
If there are both aggravating and mitigating factors, the court will weigh them against each other when imposing a sentence.
4. What about death penalty or life imprisonment cases?
Under Arizona law, cases that carry the death penalty or life in prison look to different aggravating or mitigating factors.[11]
Cases that could carry a death sentence or life imprisonment are Class 1 felonies for first-degree murder or second-degree murder.
In these cases, there are 10 potential aggravating factors:
- the defendant has a criminal record that includes a prior conviction that could have led to life in prison or the death penalty in Arizona,
- the defendant has been convicted for completing or preparing a serious offense, including those that were consolidated in the homicide trial or were committed at the same time as the homicide, such as:
- first-degree or second-degree murder,
- manslaughter,
- an aggravated assault that amounts to a dangerous offense in Arizona,
- sexual assault,
- a dangerous crime against children,
- arson of an occupied structure,
- robbery or armed robbery,
- first-degree or second-degree burglary,
- kidnapping,
- sexual conduct with someone under 15 years of age, or
- terrorism.
- the defendant either committed the offense for pecuniary gain, or paid for the offense to be committed,
- the offense was done in an especially cruel, heinous, or depraved manner,
- the commission of the offense happened while the defendant was on release from prison or while on probation for a felony offense,
- the defendant has been convicted for one or more other homicides from the same course of events,
- the defendant was an adult and the victim was either:
- over 70 years old,
- under 15 years old, or
- an unborn child.
- the victim was a police officer who was on duty and working at the time of their death, and the defendant knew or should have known that the victim was a police officer,
- the defendant committed the offense as a part of a criminal street gang or to join one, and
- the defendant committed the offense to stop the victim from testifying in court or from cooperating with a law enforcement investigation, or to retaliate against the victim for doing so.[12]
The prosecutor has the burden of proving any of these aggravating factors beyond a reasonable doubt.[13] If the jury finds that there was one or more aggravating factors present, and also that there were no sufficiently mitigating factors, then the death penalty will be imposed.[14]
In cases that carry the death penalty or life in prison, there are 5 statutory mitigating factors:
- the defendant’s ability to understand the wrongfulness of his or her conduct, or inability to comply with the law,
- any unusual and substantial duress that the defendant was under at the time of the offense,
- the defendant was legally accountable for someone else involved in the offense, but his or her actual role in the crime was minor,
- there was no way for the defendant to reasonably foresee the possibility of someone dying, and
- the defendant’s age.[15]
Additionally, the trier of fact can consider any other aspect of the defendant’s character or the nature of the offense as a mitigation factor.[16]
The criminal defense attorney has the burden of proving these mitigating factors by a preponderance of the evidence. The rules for admitting evidence for mitigating factors is relaxed. If a jury is making the determination, the presence of a mitigating circumstance does not have to be unanimous.[17]
[1] ARS 13-701(D)(1)-(27).
[2] ARS 13-701(C).
[3] ARS 13-701(D).
[4] Blakely v. Washington, 124 S.Ct. 2531 (2004) and State v. Brown, 209 Ariz. 200 (Ariz. 2004).
[5] ARS 13-701(F) and State v. Martinez, 210 Ariz. 578 (Ariz. 2005).
[6] ARS 13-701(J).
[7] Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) and State v. Schmidt, 220 Ariz. 563 (Ariz. 2009).
[8] ARS 13-701(E).
[9] ARS 13-702.
[10] ARS 13-701(F).
[11] ARS 13-701(H) and ARS 13-751.
[12] ARS 13-751(F).
[13] ARS 13-751(B).
[14] ARS 13-751(E).
[15] ARS 13-751(G).
[16] ARS 13-751(G).
[17] ARS 13-751(C).