For both Misdemeanor and Felony Cases, Mitigation is a powerful tool in order to try to keep charges from being filed in the first place. In addition, they are also very powerful when seeking the lowest amount of Punishment during Sentencing. Mitigating Terms include Statutory and Non-Statutory factors. The statutory factors are contained in ARS 13-701, and the Non-Statutory factors are contained within the past Caselaw in the State of Arizona. The following are some of the possible Statutory and Non-Statutory mitigating factors:
Prior Good Acts
Prior Good Acts have carried mitigating weight with the Courts in Arizona in the past. Good deeds for others in the community (such as money, moral support, church activities, and overall good deeds) will carry significant weight. In addition, previous long-term employment and being a productive member of society also carry mitigating weight.
Family Contributions and Responsibilities
In many cases the Court has held the support and contributions that a Defendant makes toward the care of his family carries mitigating weight. Obviously, if the breadwinner of the family goes to prison, the entire family could become homeless. The Court will take this into consideration.
Lack of Prior Bad Acts
It has been held that the lack of any significant Prior Bad Acts before a crime is a relevant non-statutory mitigating factor in many cases. This isn’t just a lack of a criminal record, but the lack of other Bad Acts that were never charged.
Good Character and Reputation
This factor has been given weight as mitigation when the record contains attestations to the Defendant’s Good Character from a variety of sources. It has also been given weight where the Defendant has a law-abiding and peaceful reputation.
Cooperation in the Investigation
Cooperating with the Police in an Investigation has been held as a mitigating factor. For example, cooperation was given weight as a mitigating factor in many cases where the Defendant gave permission to search him to provide samples. Also, the Court has assigned mitigating value to good behavior during Pretrial Release and Presentence Incarceration.
Although remorse is not a Statutory Mitigator, it has been given weight as a mitigating factor by Arizona courts in the past. Other cases have also stated if there is a “Genuine Remorse,” that this serves as a mitigating factor. Lastly, it has been held by the Courts that sympathy for the victim’s family also serves a mitigation.
New directions, such as religious beliefs, potential for rehabilitation, lack of future dangerousness, have all been held to carry mitigating weight in Arizona. The Courts have held in the past that the placidity of the Defendant while in custody and his or her religious outlook did carry some mitigating weight. Specifically, the Courts have held that the criminal code includes provisions for both rehabilitation and punishment. They also consider a lack of future dangerousness as a mitigating factor, and if the defendant was never a danger prior to the existing incident, nor have they been a danger to anyone since. These should all serve as a mitigating factor.
Opinions and Feelings of Family Members
Love for and of family is a mitigating circumstance. The Arizona Courts have considered situations where the Defendant’s family was supportive and would suffer considerably from the imposition of a severe punishment.
Destructive Biographical Misfortune
Although this factor is sometimes not afforded substantial weight without causation, it has been considered as a pivotal mitigating factor in certain cases. The Supreme Courts in Arizona has found it would be proper to look at an individual’s family history when determining mitigation. Literally, if somebody has suffered a large amount of trauma while growing up (for instance child abuse), then this can serve as a mitigating factor.
Reduction in Length of Legal Proceedings
In Arizona, the Courts have held that if the length of the case be reduced greatly by a plea and acceptance of responsibility, then this can serve as a mitigating factor. This does not mean they hold it against a person if they go to Trial, but they will look to whether a person has fully accepted responsibility and is voluntarily entering into a Plea Agreement without force, threats or coercion.
Biological Impairments and Mental Health Issues
If a person has suffered from a Traumatic Brain Injury (TBI), is on the Autism spectrum, has a lower IQ, or impaired by some other type of substances, this can serve as a mitigating factor. Mental Health Issues that can be documented also can serve as a mitigating factor. It is important when using this factor of mitigation, that all records can be obtained regarding previous Mental Health Treatment; current Neuropsychological evaluation; Rehab and Substance Abuse Treatment records; and all previous Counseling records. This is also considered to be a statutory mitigator pursuant to ARS 13-701(E)(2).
Per ARS 13-701(E)(3), Duress is a statutory mitigator if a person was “under unusual substantial duress, although not to a degree that would constitute a defense to the prosecution.” Many times, this includes situations where younger people are told to get in a car with a group of others, and then they end up in some type of fight, robbery, burglary, or other altercation.
When putting together mitigation, it is best to have a Board-Certified Criminal Law Specialist represent you. Sometimes, at DM Cantor, we will bring in a Mitigation Expert who helps put together an entire package while a case is in process. Either they, or us, will gather all past medical records, any Individual Educational Plan records (IEPs), all past Counseling records, all past Substance Abuse Records, and anything that may help our Clients.
In addition, we may have our Clients submit to Polygraph Examinations which can help rule out more serious allegations contained in a Criminal Complaint. Also, we may have then conduct Neuropsychological Evaluations and Brain Mapping in order to show some type of Diminished Capacity or Mental Health Issue. Lastly, if the case involves Sex Crimes Allegations, we may have our Clients engage in a Psycho-Sexual Risk Evaluation in order to show that they are not a threat of future dangerousness.