By Jane Rydholm
A crime may be charged as a lesser offense, or a sentence may be light, if extenuating circumstances (or mitigating factors) convince the prosecutor or judge to cut the defendant a break.
Two people rob a convenience store at gunpoint. One is a 13-year-old girl, with no criminal record, a runaway with a drug problem, who has fallen under the spell of an older man. The other is her 26-year-old boyfriend. He has a long criminal history, including other armed robberies. The robbery was his idea, and he planned the crime and obtained the weapons. Are these two people equally responsible for their criminal conduct? Do they deserve the same sentence? If not, why not?
Extenuating circumstances are facts that tend to lessen the severity of a crime or its punishment by making the defendant’s conduct understandable or less blameworthy. Extenuating circumstances might include a defendant’s young age, mental illness or addiction, or minor role in the crime. For example, people sometimes break the law while acting in accordance with their religious or cultural beliefs, and this might be considered an extenuating circumstance. A parent who is convicted of child abuse for failing to obtain medical care for a child for religious reasons might be considered less culpable than a person who does the same thing due to neglect, and might raise this issue as a defense to a criminal charge.
How Are Extenuating Circumstances Used?
In law, the concept of extenuating circumstances, sometimes called mitigating circumstances, is broad and the term may mean different things to different jurists. Sometimes, it refers onlyto factors that impact sentencing. Other times, it refers to anything short of a defense that makes the defendant’s criminal behavior less blameworthy and results in a less serious charge or sentence. Sometimes, what is an affirmative defense in some situations or states is an extenuating circumstance is others.
For example, possession of any nude or sexual image of a child under the age of 18 is a crime (child pornography). Sometimes, state laws are written in a way that takes extenuating circumstances into account. In such states, a teen who possesses a nude cell phone picture of another teen might be charged with the less serious crime of teen sexting. Even if the law is not explicit in how to deal with the defendant's age, in many states, if the defendant is also under the age of 18 and the teen depicted willingly sent the image, the crime will be punished less severely than if the defendant were an adult with a collection of computer child pornography.
Decision-makers in the criminal justice system, such as police officers, prosecutors, judges and jurors, are always considering extenuating circumstances along with all the other facts in deciding how best to handle a case. If a person with a developmental disability steals a soda from a store, a police officer might decide not to make an arrest, a prosecutor might decide not to charge the person at all or to charge a person with a less serious crime, the jury might decide not to convict, or a judge might sentence the defendant to a lighter sentence than the maximum.
In contrast, aggravating circumstances make a crime more severe or serious. Common aggravating circumstances include the defendant's lengthy prior record or that the crime caused serious injury to a victim.
Normally, judges, not jurors decide a defendant’s punishment, based not only on the law and the facts, but often on a probation report, which often contains many details about a defendant’s life that are not necessarily part of the criminal case. Death penalty cases are unique because, in most states, jurors decide whether to sentence a defendant to life in prison or death.
In making those decisions, jurors are first required to consider any mitigating (extenuating) circumstances. Mitigating circumstances are not defenses or excuses, but factors that tend to reduce the defendant's blame. State laws vary, but in some states, jurors are required to find the existence of aggravating and mitigating circumstances and then assign weight to these circumstances in fixing the verdict. Examples of mitigating circumstances in capital cases include the defendant's:
- lack of a prior criminal record
- extreme mental or emotional disturbance at the time of the crime
- belief that the crime was justified
- role as a minor participant in the crime
- old age or youth (including being a minor), or
- extreme duress.
In addition, the jury may take into account that the victim was participating in the crime with defendant; and consider any mental illness, disability, or serious intoxication that prevented defendant from understanding or controlling his or her behavior, as well as any other circumstances that lessen the severity of the crime.
Obtaining Legal Assistance
If you were arrested or charged with a crime, but believe that extenuating circumstances are present, you should talk to an attorney about your case. An experienced criminal defense attorney will be able to explain the law, and how to best present your extenuating circumstances so that you achieve the best possible outcome in your case.
Defendants who are arrested and taken to jail are normally booked shortly upon arrival.
Booking records provide information about the people who are brought to jail. Because booking creates an official arrest record, arrested suspects who can post bail immediately often can’t be released until after the booking process is complete. Even suspects who receive citations in lieu of being taken to jail often must go through a booking process within a few days of their arrest.
How Long Does Booking Take?
At its slowest, the booking process may take hours to complete. How long it takes depends on how many of the standard booking procedures are conducted (explained below), the number of arrestees being booked at the same time, and the number of police officers involved in the booking process.
Typical Steps in the Booking Process
Step 1: Recording the suspect’s name and the crime for which the suspect was arrested
In olden days, this information became part of a handwritten police blotter; now virtually all booking records are computerized.
Step 2: Taking a "mug shot"
Mug shots have a variety of possible uses. For instance, a mug shot can help to determine which of two people with the same name was arrested. A mug shot can also help to establish a suspect’s physical condition at the time of arrest. The suspect’s physical condition at arrest can be relevant to a claim of police use of unlawful force or to whether the suspect had been in an altercation before being arrested.
Step 3: Taking the suspect’s clothing and personal property into police custody
At a suspect’s request, some booking officers allow suspects to keep small personal items like a wristwatch. Any articles taken from the suspect must be returned upon release from jail, unless they constitute contraband or evidence of a crime.
Example: Sticky Fingers is arrested for stealing a calculator. The police seize the calculator at the scene of the arrest. During the booking process, the police find a packet of illegal drugs and a stolen camera in Fingers’s backpack. These items will not be returned to Fingers upon his release on bail. The calculator and the camera are evidence of the crime of shoplifting. The drugs are illegal contraband; the police can take them regardless of whether drug charges are filed against Fingers.
Step 4: Taking fingerprints
Fingerprints are a standard part of a booking record, and are typically entered into a nationwide database maintained by the FBI and accessible to most local, state, and federal police agencies. Comparing fingerprints left at the scene of a crime to those already in the database helps police officers identify perpetrators of crimes.
Step 5: Conducting a full body search
Police officers routinely make cursory pat-down inspections at the time of arrest. Far more intrusive (and to many people, deeply humiliating) is the strip search that is often part of the booking process. To prevent weapons and drugs from entering a jail, booking officers frequently require arrestees to remove all their clothing and submit to a full body search.
Strip searches are legal even when the arrestee has been brought in for a relatively minor crime, such as an infraction; and even when there are no facts that would suggest that the arrestee is carrying a weapon or contraband. In a 2012 case, the U.S. Supreme Court ruled that such a search was legitimate even in the case of a person who was stopped for a traffic violation and arrested for failure to pay an outstanding fine (the fine had in fact been paid long ago). (Florence v. County of Burlington, No. 10-945.)
Step 6: Checking for warrants
The booking officer checks to see if an arrestee has any other charges pending, ranging from unpaid parking tickets to murder charges in other states. Suspects with warrants pending are normally not released on bail.
Step 7: Health screening
To protect the health and safety of jail officials and other inmates, the booking process may include X-rays (to detect tuberculosis) and blood tests (to detect sexually transmitted diseases such as gonorrhea and AIDS).
Step 8: Eliciting information relevant to incarceration conditions
To reduce the likelihood of violence and injuries, jail officials often ask arrestees about gang affiliations, former gang affiliations, and other outside relationships. Depending on the answers, an inmate may have to be placed in protective custody or housed in one section of a jail rather than another. Routine questioning along these lines does not constitute an “interrogation” that requires officers to give a Miranda warning to the suspect. Information that suspects disclose in response to a booking officer’s questions may be admissible in evidence under the “routine booking question exception” to Miranda. (Pennsylvania v. Muniz, U.S. Sup. Ct. (1990); see Exceptions to the Miranda Rule.)
Step 9: DNA sample
Suspects may be required to provide DNA samples that are entered in national DNA databases. (Can officers collect DNA samples from suspects?)
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
Police need a warrant before they can search a home, unless an exception to the warrant requirement applies. One such exception is consent: If someone with control over the property agrees to a police search request, the subsequent search is legal. Someone with “control” over the property includes a resident of the home, but not someone who is clearly a momentary visitor. (For more on guests, see Ignorance Isn’t Bliss: When Police Search a Home With Only a Guest’s Consent.)
But even when it’s clear that someone has authority to consent to a police search, that person doesn’t necessarily have authority to allow the police to search all parts of the home. This issue frequently arises with roommates, who might share certain areas of the home but not others (such as their bedrooms). When police come knocking at the door and find only one cotenant or roommate home who readily invites the officers in to take a look, is the consent sufficient? If so, what is the scope of that invitation? Where, exactly, can the police search?
Police Searches When Only One Roommate Consents
The police can enter a home when only one occupant of several is present and consents—the agreement of any other occupant isn’t needed. For example, if college students Alex and Brian share an apartment and the police ask to enter when only Alex is home, his consent is all that’s needed to make their entry legal.
To learn about what happens when there's conflicting consent, see If my roommate tells the cops they can come in, but I tell them they can’t, can they?
One Roommate Consents: Where May the Police Search?
In general, the police may search all parts of the home that the person who gave consent uses. So, they can search any part of the premises the consenting party occupies (such as that person’s private room) and any areas of the home where all roommates or tenants have access. Shared areas generally include places like the living room and kitchen.
Importantly, though, the police generally cannot search the private room or belongings of a person who, either present or not, did not grant consent. To determine whether the police may search a specific part of a home, courts evaluate whether the person who granted consent has access and authority over it. To return to our example of Alex and Brian, the police would not have authority to search Brian’s bedroom, if that room were his alone and not one Alex had use of.
When only one roommate has granted consent for the police to perform a search, courts often look at the relationship and understanding between the roommates to decide how much of the home the police were authorized to examine. For example, searching an entire residence would be justified if the roommates were romantic partners—the assumption is that no areas of the home were off-limits to either partner. But if the residents are simply roommates or cotenants and one doesn’t have permission to use or access another’s bedroom, then that bedroom is off-limits. On the other hand, if Alex and Brian, starving students that they are, can afford only a one-bedroom apartment, then the bedroom and closet that they share means that the consent of one will probably permit the police to search the shared space.
With almost all search issues, the issue is as much how the circumstances reasonably appeared to the police as it is whoactually has access to and uses what in the home.
The considerations that dictate whether the police may search certain areas of a home also apply to items within the residence. Even if a roommate consents, the police cannot search a closed bag or suitcase of another occupant unless the consenting roommate has access to that item as well. (For a related issue, see Can a host give consent for a search of a guest’s belongings?)
A crime may be charged as a lesser offense, or a sentence may be light, if extenuating circumstances (or mitigating factors) convince the prosecutor or judge to cut the defendant a break.
A plea bargain or no contest plea may turn out to be a worse deal than it appears if it makes you deportable or removable from the U.S.
If you are an immigrant and you have been arrested, be sure to consider the immigration consequences of pleading guilty or no contest, even if you have your green card.
Although criminal defense lawyers may encourage such a strategy to help you avoid a trial and jail time, it is vitally important that you also get informed advice about whether the conviction to which you agree will result in removal proceedings being instituted against you in Immigration Court.
If you have already made a plea bargain and been convicted of a crime that could make you deportable, you should explore whether there is anything else you can do to avoid deportation.
When a Ruling Counts as a "Conviction" for Immigration Purposes
If you were arrested for a crime but the charges were dropped or dismissed, it is not considered a "conviction." Arrests can nevertheless have immigration consequences, most likely when you need to demonstrate that you have good moral character on an immigration application.
Convictions in juvenile court will also not count against you, but if you were charged as an adult despite being under the age of eighteen, you could still be deported for your crime.
What if you were never officially found guilty? According to the U.S. law (specifically, the Immigration and Nationality Act at I.N.A § 101 (a)(48)), a person can be found to have been “convicted” of a crime with or without having been formally judged guilty. If there was no official finding of guilt but you pled guilty or no contest (“nolo contendere”), or if you admitted enough facts for a finding of guilt to be made and the judge ordered some sort of punishment, penalty, payment of court costs, or restraint of liberty against you, you could be viewed as having been convicted of the crime and deported on that basis. This is true even if the plea is later "withdrawn" after you complete court-ordered requirements such as drug or alcohol rehabilitation or counseling.
In addition, pre-plea diversion programs (where you do not have to enter an official plea) and deferred prosecution or sentencing will not count as a conviction for immigration purposes. Many states offer different types of deferred adjudication alternatives to traditional sentences in which criminal charges may be dismissed after the person completes certain conditions, such as community service or probation. Whether a sentence under a deferred adjudication scheme can be used against you will depend on the type of program and whether you ever pled guilty. Simply put, if you were never required to enter a formal plea, chances are it will not be considered a conviction under immigration law.
Additionally, some states have separate categories of crimes called "violations" or "infractions" that are not considered criminal convictions for purposes of immigration law. These infractions are not handled in traditional court proceedings.
Expungement Won’t Avoid Immigration Consequences for a Criminal Conviction
Some states will allow you to request that your conviction be "expunged" or removed from your criminal record after a certain period of good behavior. While this may help you in other areas of your life, such as securing employment or applying to college, an expungement of a criminal conviction will not allow you to avoid removal proceedings.
Immigration law regards expunged crimes to be the same as regular convictions. You must disclose on any immigration forms (such as an application for a green card or naturalization) any offenses that you have had expunged and tell any immigration officer about them, for example if you are asked about them at the border.
A Vacated Criminal Conviction May Not Count Against You
Although it’s difficult to undo the damage of a crime on your record for immigration purposes, some possibilities do exist. For instance, if your conviction is deemed unconstitutional for any reason and a judge vacates it "for cause," you can ask the Immigration Court to terminate your deportation proceedings (assuming they're based on that conviction). A common reason for criminal court judges to find that a conviction was unconstitutional is that the defendant received ineffective assistance of counsel from his or her criminal attorney.
If a judge vacates your conviction for any other nonconstitutional basis (for example, because he or she feels sorry for you and doesn’t want to see you deported), this will not help you in immigration court.
In 2010 the United States Supreme Court held in a case called Padilla v. Kentucky that it is considered ineffective assistance of counsel for a criminal attorney not to advise a client of the immigration consequences of certain criminal convictions prior to advising the client to enter into a plea bargain agreement. This was a very important decision because it helps protect immigrants from pleading guilty to crimes without knowing whether they will become deportable as a result. Furthermore, the Court’s decision implied that if you were not provided with information about the immigration consequences of your conviction, your constitutional rights were violated and you have a sound basis to vacate your conviction.
Unfortunately, the Supreme Court ruled in 2013 that Padilla does not apply retroactively. In other words, it helps only people whose criminal cases are currently open. Defendants whose convictions have already become final -- that is, who are finished with all appeals or have passed the time when they could file an appeal -- cannot reopen and challenge their convictions based on ineffective assistance of counsel.
A Pardon Could Help You Avoid Deportation
If you have been convicted of a state crime that makes you deportable and are unable to get your conviction vacated by any other means, you could try to get a pardon from your state governor, pardoning panel, or prisoner review board.
Unfortunately, in some states this process could take years. If you have been convicted of a federal crime that makes you deportable, you could attempt to obtain a pardon from the President of the United States. If you are successful in getting a pardon, the conviction will not count against you and you can avoid deportation.
If You've Been Arrested for a Crime But No Further Action Has Yet Been Taken
If you have been arrested for a crime that could have immigration consequences -- most likely because it could be considered either a crime of moral turpitude or an aggravated felony -- you must take all possible measures to avoid a conviction. Find out whether your attorney is familiar with the immigration consequences of your conviction and whether it is possible to plead your charge down to something that would not make you deportable.
Many criminal lawyers know little or nothing about immigration law. They may thus counsel you in ways that would lead to a good result for most clients -- for example, to accept a plea agreement and avoid jail time -- but would be the worst possible result for an immigrant, because the crime to which you plead guilty will make you deportable. If you find that your criminal lawyer is not experienced with immigration law matters, you should also consult with an immigration attorney.
The other option is to take the risk and possible expense of a trial on the hope that you may be found not guilty of the offense you were charged with. Even innocent people sometimes plead guilty to a crime just to avoid a trial. However, this is a decision that no immigrant should take lightly. It is especially important that your charges be handled competently, because if you are ever deported on the basis of committing certain types of crimes, it may not be possible for you to ever legally come to the United States again.