Mitigating factor

A mitigating factor, in law, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence.

In the United States, the issue of mitigating factors is most important in death penalty cases. In a series of decisions since 1972, the United States Supreme Court has attempted to make the sentence of death in the United States less arbitrary by emphasizing that the judge or jury must be given the opportunity to consider all mitigating evidence before determining the sentence. Thus the Court has stressed that because of the constitutional requirement of the fundamental respect for human dignity set out by the Eighth Amendment to the United States Constitution, information must be provided on the character and previous history of the defendant, as well as the circumstances surrounding the particular offense.

The Supreme Court in Penry v. Lynaugh, and subsequently the Fifth Circuit Court of Appeals in Bigby v. Dretke, remanded cases in which the jury instructions in death penalty cases did not ask the jury to consider as mitigating factors the defendant's mental health, saying that the jury be instructed to consider mitigating factors when answering unrelated questions. The Supreme Court's rulings have broadened the definition of mitigating evidence in the United States and systematically removed the procedural barriers to jury consideration and weight of that evidence.

The effect of these decisions is to broaden the definition of mitigating factors related to mental illness within the U.S. justice system, and to be more consistent with standard psychiatric and psychological findings that correlate specific behaviors to identifiable mental disorders. As a result of these decisions, even in the absence of a direct connection between the illness and the illegal action (as is required in the guilt phase of the insanity defense), the court acknowledges that the effects of a severe mental illness have pervasive effect on a person's behavior and can therefore be a relevant consideration in death penalty considerations. If all relevant mitigating factors are not considered in a death penalty case, the punishment can be considered "cruel and unusual", the Supreme Court ruled in Tennard v. Dretke, a case in which the prosecution sought to exclude evidence of a low IQ in the penalty phase of the trial. There is also an ongoing tendency of the Supreme Court to seek to include evidence of a defendant's potential for rehabilitation and a law-abiding future.

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