Criminal Law

Criminal Sentencing Enhancements and Aggravating Factors

By John McCurley, Attorney
How certain circumstances related to a defendant’s conduct or history can lead to a more severe sentence.

For most crimes, the law specifies a range of possible punishments. For instance, in some states, misdemeanor crimes are punishable by up to a year in jail and a maximum $1,000 in fines. After a defendant is convicted of an offense at trial, the judge decides the appropriate sentence within the allowable range. Sentence enhancements (also called “aggravating factors”) allow—and sometimes require—judges to increase a defendant’s sentence beyond the normal range. Typically, enhancements relate to the defendant’s criminal history or specific details about how the current offense was accomplished that increase its gravity.

Types of Enhancements

Specifics vary, but all states have sentencing enhancements. Some of the more common types of enhancements relate to:

  • Weapons. Lots of crimes can be committed with or without a weapon. And using a weapon typically increases the likelihood that someone will get hurt. So many states have enhancements that increase a defendant’s sentence when a weapon is used in the commission of the crime.
  • Prior convictions. Enhancements based on criminal history exist in every state. With DUI laws, for example, the applicable penalties generally increase with the number of prior convictions. And many states have laws that dramatically enhance penalties for felony convictions where the defendant has a serious felony record. For instance, under California’s “three strikes law,” a defendant convicted of a third “serious or violent” felony can be sentenced to 25-years-to-life in state prison. (Cal. Penal Code § 667 (2017).)
  • Hate crimes. Many states have hate-crime laws. Generally, these laws enhance the penalties for crimes when the offender targets the victim because of characteristics like race, ethnicity, gender, nationality origin, disability, and sexual orientation.
  • Gang crimes. In an effort to combat gang-related crime, legislatures in many states passed criminal-street-gang-enhancement laws. Generally, gang enhancements increase the penalties for crimes committed for the benefit of or in association with a criminal street gang.

Enhancements often play a big part in criminal cases. While in some cases an enhancement might add only a year or two to an already-severe sentence, in other cases, the enhancement carries substantially more prison time than the crime it attaches to. With so much on the line, defense attorneys must devote significant attention to defeating enhancements.

Enhancements Facts Must be Alleged and Proven

The constitution affords all criminal defendants certain rights. Under most circumstances, criminal defendants are entitled to have a jury decide their case. And with any criminal charge, the prosecution must prove all the elements of the offense beyond a reasonable doubt; otherwise, the jury is supposed to find the defendant not guilty.

But sentencing enhancements aren’t elements of the crime. They’re additional facts that, if established, increase the potential penalty of a crime. So, do the same constitutional protections that apply to the elements of a crime also apply to enhancements? Generally, yes.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the U.S. Supreme Court ruled that any fact—apart from the existence of a prior conviction—that increases the penalty for a crime beyond the allowable range specified by statute must be submitted to a jury and found true beyond a reasonable doubt. Because sentencing enhancements by definition increase a defendant’s sentence, they fall under the Apprendi rule.

(Note that Apprendi is a U.S. Supreme Court case that interprets the federal constitution. The laws of your state might be more protective of criminal defendants than federal law.)

Talk to a Criminal Defense Lawyer

Criminal sentencing laws vary by state. If you’ve been arrested or charged with a crime, talk to a criminal defense attorney in your area. A qualified criminal lawyer can tell you how the law applies to the facts of your case, whether you have any viable defenses, and what you’re facing if convicted.

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