Criminal law distinguishes ‘aggravating factors,’ features of a crime that may be a basis for more severe sentencing. For those convicted of first degree murder, aggravators may even render a case death-penalty (or capital) eligible. Various aggravating factors (also known as ‘special circumstances,’ or ‘aggravating circumstances’) can likewise add years to a sentence for assault and other non-murder violent crimes, sex crimes, and even non-violent felonies.
Aggravating factors vary from state law to state law, and are designed to narrow those eligible for more severe punishment (Rosen,1986). For example, where the State can prove, beyond a reasonable doubt (Ring v. Arizona, 536 U.S. 584, 2002), that the perpetrator committed the crime while committing another felony (e.g., Nev. Rev. Stat. Ann. § 200.033; Conn. Gen. Stat. § 53a-46a), that the victim was a law enforcement official (e.g., Cal. Penal Code § 190.2; C.R.S. § 18-1.3- 1201(5)), that the perpetrator had prior felony convictions (e.g., C.R.S. § 18-1.3-1201(5); 11 Del. C. §4209; Wyo. Stat. § 6-2-102), or that murder was carried out for financial gain (e.g., Ala. Stat. Ann. 13A-5- 40(a)(1)-(19); Fla. Stat. Ann. § 921.141(5)(f)), criteria for a harsher penalty are met in those respective states.
Included among these aggravators, in numerous states, is the distinction of a crime as “heinous, atrocious, or cruel,” less commonly designated in other states as “vile,” “horribly inhuman,” or “depraved.” This aggravating factor, whatever its term, speaks to the worst of crimes.
Court decisions in cases of murder (e.g., Hall v. Florida, 87 So. 3d 667, 2012), kidnapping (e.g., Tennessee v. Perry, Tenn. Crim. App. LEXIS 446, 2015), assault (e.g., New Jersey v. Lawless, 214 N.J. 594, 2013), aggravated battery (e.g., People v. Holman, 20 N.E. 3d 450, 2014), rape (e.g., U.S. v. Begaye, 635 F. 3d 456, 2011), arson (e.g., U.S. v. Tolliver, 730 F.3d 1216, 2013), attempted murder (e.g., Maine v. Ward, 2011 ME 74, 2011), and even parole eligibility (e.g., In re Rosenkrantz, 59 P.3d 174, 2002) reflect sentencing determinations that a crime exemplified these synonyms of criminal evil. Yet despite the law's recognition that some crimes reflect the worst of their type, there are currently no standardized, clear, reliably applicable, and evidence-driven definitions for what denotes a “heinous, atrocious, and cruel (referred to as the HAC aggravating factor)” or “depraved” crime.
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