Mitigating Factor: Necessity
Our blog has recently focused on mitigating factors and with good reason. Statutorily-recognized mitigating factors are a tremendous tool that defendants can use in Tennessee to obtain more favorable treatment at sentencing. Sometimes this means a defendant can obtain a sentence below the presumptive sentence, and sometimes mitigating factors simply serve to counteract the effect of enhancement factors, allowing the defendant to avoid a sentence harsher than the presumptive sentence.
One of the mitigating factors that is especially applicable today can be found in T.C.A. section 40-35-113(7) and reads that one mitigating factor can be that “the defendant was motivated by the necessity to provide necessities for the defendant’s family or the defendant’s self.” The applicability of this factor, however, will be largely dependent on the circumstances. For example, a defendant who breaks in to an electronics store and steals a plasma TV will have a harder time convincing the sentencing judge that this factor should apply than will a defendant who is caught shoplifting baby food or diapers. That is not to say that the former defendant would never be able to convince the judge that this factor applies to the crime they committed, but judges will clearly be more accepting of the latter.
Societal factors can also play a role in how legitimate the application of this mitigating factor will seem. For example, the economy is currently trying to recover from one of the worst economic periods in history, a period which has been marked by joblessness, reduced profits, and pay cuts. This factor alone makes it more believable and probable that someone would be committing a crime in order to provide necessities for herself or her family. Thus, this factor currently has an added legitimacy and should be used whenever possible. However, this is not to be construed to mean that one can simply take what he or she wants and suffer no punishment at all. These mitigating factors might serve to reduce a defendant’s sentence somewhat, but they do not work to drastically alter the punishment in most cases. Rather, they generally enable a defendant to obtain the presumptive sentence or a somewhat reduced sentence.
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