by Attorney Eric D. PuryearIllinois law requires a sentencing judge in a criminal case to consider a series of factors when determining a sentence to impose upon a defendant who has been convicted of a crime. There are factors in aggravation, which suggest a harsher sentence, and factors in mitigation, which suggest a lighter sentence. Those factors and additional guidance as to sentencing are provided in 730 ILCS 5/5-5-3.1 and 730 ILCS 5/5-5-3.2, and are discussed below.
At the Illinois sentencing hearing, the prosecution will attempt to persuade the court that factors in aggravation apply and factors in mitigation do not apply, which in turn would indicate that the court should impose a longer or harsher sentence. The defense attorney will argue that factors in aggravation do not apply, and that factors in mitigation do apply, which in turn suggests that the court should impose a lighter sentence. The presentation of that argument can take minutes in some cases, and hours in other cases, and is quite important to handle properly in Illinois.
Sometimes at sentencing in Illinois, witnesses will be called by the prosecution and/or the defendant. The prosecution’s witnesses will often attempt to show that the harm committed by the defendant was great, that the defendant had no justification for his or her actions, that the defendant remains a dangerous person, etc. Defense witnesses will generally attempt to show the court that the defendant does not pose a danger to the community, that the defendant has strong family support that will help keep him or her out of trouble in the future, that imposing a jail or prison term upon the defendant will cause hardship to his or her family, etc. Preparation with a defendant’s attorney is vital to ensure such witness testimony is presented in the best manner possible, so as to seek the best sentence possible.
It is also important to ensure that case law is correctly argued as it applies to the factors in aggravation and mitigation. Many of the factors have been interpreted by the Illinois Supreme Court and Illinois Court of Appeals as being inapplicable to certain crimes, which if properly presented to the court can be the difference between a harsher or lighter sentence.
Illinois Sentencing Factors in mitigation under 730 ILCS 5/5-5-3.1
The follow is a list of factors in mitigation, which are things the sentencing circuit judge in Illinois criminal cases is required to consider as reasons to impose a lighter sentence upon a defendant.
(1) The defendant’s criminal conduct neither caused nor threatened serious physical harm to another.
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
(5) The defendant’s criminal conduct was induced or facilitated by someone other than the defendant.
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to comply with the terms of a period of probation.
(11) The imprisonment of the defendant would entail excessive hardship to his dependents.
(12) The imprisonment of the defendant would endanger his or her medical condition.
(13) The defendant was a person with an intellectual disability as defined in Section 5-1-13 of this Code.
(14) The defendant sought or obtained emergency medical assistance for an overdose and was convicted of a Class 3 felony or higher possession, manufacture, or delivery of a controlled, counterfeit, or look-alike substance or a controlled substance analog under the Illinois Controlled Substances Act or a Class 2 felony or higher possession, manufacture or delivery of methamphetamine under the Methamphetamine Control and Community Protection Act.
Illinois Sentencing Factors in mitigation under 730 ILCS 5/5-5-3.2
The follow is a list of factors in aggravtion, which are things the sentencing circuit judge in Illinois criminal cases is required to consider as reasons to impose a tougher sentence upon a defendant.
(1) the defendant’s conduct caused or threatened serious harm;
(2) the defendant received compensation for committing the offense;
(3) the defendant has a history of prior delinquency or criminal activity;
(4) the defendant, by the duties of his office or by his position, was obliged to prevent the particular offense committed or to bring the offenders committing it to justice;
(5) the defendant held public office at the time of the offense, and the offense related to the conduct of that office;
(6) the defendant utilized his professional reputation or position in the community to commit the offense, or to afford him an easier means of committing it;
(7) the sentence is necessary to deter others from committing the same crime;
(8) the defendant committed the offense against a person 60 years of age or older or such person’s property;
(9) the defendant committed the offense against a person who is physically handicapped or such person’s property;
(10) by reason of another individual’s actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin, the defendant committed the offense against (i) the person or property of that individual; (ii) the person or property of a person who has an association with, is married to, or has a friendship with the other individual; or (iii) the person or property of a relative (by blood or marriage) of a person described in clause (i) or (ii). For the purposes of this Section, “sexual orientation” has the meaning ascribed to it in paragraph (O-1) of Section 1-103 of the Illinois Human Rights Act;
(11) the offense took place in a place of worship or on the grounds of a place of worship, immediately prior to, during or immediately following worship services. For purposes of this subparagraph, “place of worship” shall mean any church, synagogue or other building, structure or place used primarily for religious worship;
(12) the defendant was convicted of a felony committed while he was released on bail or his own recognizance pending trial for a prior felony and was convicted of such prior felony, or the defendant was convicted of a felony committed while he was serving a period of probation, conditional discharge, or mandatory supervised release under subsection (d) of Section 5-8-1 for a prior felony;
(13) the defendant committed or attempted to commit a felony while he was wearing a bulletproof vest. For the purposes of this paragraph (13), a bulletproof vest is any device which is designed for the purpose of protecting the wearer from bullets, shot or other lethal projectiles;
(14) the defendant held a position of trust or supervision such as, but not limited to, family member as defined in Section 11-0.1 of the Criminal Code of 2012, teacher, scout leader, baby sitter, or day care worker, in relation to a victim under 18 years of age, and the defendant committed an offense in violation of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-6, 11-11, 11-14.4 except for an offense that involves keeping a place of juvenile prostitution, 11-15.1, 11-19.1, 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13, 12-14, 12-14.1, 12-15 or 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 against that victim;
(15) the defendant committed an offense related to the activities of an organized gang. For the purposes of this factor, “organized gang” has the meaning ascribed to it in Section 10 of the Streetgang Terrorism Omnibus Prevention Act;
(16) the defendant committed an offense in violation of one of the following Sections while in a school, regardless of the time of day or time of year; on any conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity; on the real property of a school; or on a public way within 1,000 feet of the real property comprising any school: Section 10-1, 10-2, 10-5, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-14.4, 11-15.1, 11-17.1, 11-18.1, 11-19.1, 11-19.2, 12-2, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-6, 12-6.1, 12-6.5, 12-13, 12-14, 12-14.1, 12-15, 12-16, 18-2, or 33A-2, or Section 12-3.05 except for subdivision (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal Code of 2012;
(16.5) the defendant committed an offense in violation of one of the following Sections while in a day care center, regardless of the time of day or time of year; on the real property of a day care center, regardless of the time of day or time of year; or on a public way within 1,000 feet of the real property comprising any day care center, regardless of the time of day or time of year: Section 10-1, 10-2, 10-5, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-14.4, 11-15.1, 11-17.1, 11-18.1, 11-19.1, 11-19.2, 12-2, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-6, 12-6.1, 12-6.5, 12-13, 12-14, 12-14.1, 12-15, 12-16, 18-2, or 33A-2, or Section 12-3.05 except for subdivision (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal Code of 2012;
(17) the defendant committed the offense by reason of any person’s activity as a community policing volunteer or to prevent any person from engaging in activity as a community policing volunteer. For the purpose of this Section, “community policing volunteer” has the meaning ascribed to it in Section 2-3.5 of the Criminal Code of 2012;
(18) the defendant committed the offense in a nursing home or on the real property comprising a nursing home. For the purposes of this paragraph (18), “nursing home” means a skilled nursing or intermediate long term care facility that is subject to license by the Illinois Department of Public Health under the Nursing Home Care Act, the Specialized Mental Health Rehabilitation Act of 2013, or the ID/DD Community Care Act;
(19) the defendant was a federally licensed firearm dealer and was previously convicted of a violation of subsection (a) of Section 3 of the Firearm Owners Identification Card Act and has now committed either a felony violation of the Firearm Owners Identification Card Act or an act of armed violence while armed with a firearm;
(20) the defendant (i) committed the offense of reckless homicide under Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012 or the offense of driving under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof under Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance and (ii) was operating a motor vehicle in excess of 20 miles per hour over the posted speed limit as provided in Article VI of Chapter 11 of the Illinois Vehicle Code;
(21) the defendant (i) committed the offense of reckless driving or aggravated reckless driving under Section 11-503 of the Illinois Vehicle Code and (ii) was operating a motor vehicle in excess of 20 miles per hour over the posted speed limit as provided in Article VI of Chapter 11 of the Illinois Vehicle Code;
(22) the defendant committed the offense against a person that the defendant knew, or reasonably should have known, was a member of the Armed Forces of the United States serving on active duty. For purposes of this clause (22), the term “Armed Forces” means any of the Armed Forces of the United States, including a member of any reserve component thereof or National Guard unit called to active duty;
(23) the defendant committed the offense against a person who was elderly, disabled, or infirm by taking advantage of a family or fiduciary relationship with the elderly, disabled, or infirm person;
(24) the defendant committed any offense under Section 11-20.1 of the Criminal Code of 1961 or the Criminal Code of 2012 and possessed 100 or more images;
(25) the defendant committed the offense while the defendant or the victim was in a train, bus, or other vehicle used for public transportation;
(26) the defendant committed the offense of child pornography or aggravated child pornography, specifically including paragraph (1), (2), (3), (4), (5), or (7) of subsection (a) of Section 11-20.1 of the Criminal Code of 1961 or the Criminal Code of 2012 where a child engaged in, solicited for, depicted in, or posed in any act of sexual penetration or bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in a sexual context and specifically including paragraph (1), (2), (3), (4), (5), or (7) of subsection (a) of Section 11-20.1B or Section 11-20.3 of the Criminal Code of 1961 where a child engaged in, solicited for, depicted in, or posed in any act of sexual penetration or bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in a sexual context;
(27) the defendant committed the offense of first degree murder, assault, aggravated assault, battery, aggravated battery, robbery, armed robbery, or aggravated robbery against a person who was a veteran and the defendant knew, or reasonably should have known, that the person was a veteran performing duties as a representative of a veterans’ organization. For the purposes of this paragraph (27), “veteran” means an Illinois resident who has served as a member of the United States Armed Forces, a member of the Illinois National Guard, or a member of the United States Reserve Forces; and “veterans’ organization” means an organization comprised of members of which substantially all are individuals who are veterans or spouses, widows, or widowers of veterans, the primary purpose of which is to promote the welfare of its members and to provide assistance to the general public in such a way as to confer a public benefit; or
(28) the defendant committed the offense of assault, aggravated assault, battery, aggravated battery, robbery, armed robbery, or aggravated robbery against a person that the defendant knew or reasonably should have known was a letter carrier or postal worker while that person was performing his or her duties delivering mail for the United States Postal Service.