When a person commits a capital crime, a **mitigating factor** is something that might help the person avoid getting the death penalty. ("To mitigate" means "to decrease." A "factor" is something that causes something else. So, in law, a mitigating factor is something that can cause punishment to decrease.)

Mitigating factors do not automatically result in decreased punishment. Judges and juries also think about aggravating factors – things that are likely to cause a more severe punishment. 

Also, mitigating factors are not an excuse for committing a crime. They may help explain what caused a person to commit a crime, but they do not mean the person did nothing wrong.

Importance
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In the United States, mitigating factors are very important in death penalty cases. Mitigating factors can help prosecutors decide whether to ask for the death penalty. Also, the United States Supreme Court has ruled several times that judges and juries must think about mitigating factors before deciding on a sentence.

Supreme Court rulings
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Since 1972, the Supreme Court has tried to make capital punishment in the United States fairer and more consistent. The Court has ruled that state laws cannot say a person *must* get the death penalty if they commit a certain crime, no matter what. To be fair, the Court ruled, each judge or jury has to think about whether an individual defendant deserves the death penalty. As Supreme Court Justice Harry Blackmun wrote in a 1994 case: 

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| "| [A fair death penalty sentencing system gives] the sentencer the power and discretion to grant mercy in a particular case, and [allows] for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death." | "|

As part of this process, the judge or jury has to think about mitigating factors that might make a less severe punishment fit better.

In *Lockett v. Ohio*, 438 U.S. 586 (1978), the Court ruled that state laws may not limit what mitigating factors judges and juries can consider. The Court added that mitigating factors should include:

* Things about the defendant's character (what they are like, and how they act)
* What the defendant has done in the past
* Anything about the crime that the defendant brings up as an argument for why they should not get the death penalty

In other words, as legal scholar Jeffrey Kirchmeier explains:

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| "| [T]he Constitution requires that a defendant's presentation of mitigating factors not be limited ... the Constitution requires that a defendant be able to present all mitigating factors [to the judge or jury]. | "|

Each state has its own death penalty law. Each law gives a list of capital crimes in the state; aggravating factors that can make person more likely to get the death penalty; and specific mitigating factors. However, the mitigating factors listed in each state law are only examples of possible mitigating factors. Even if a state does not list a certain thing as a mitigating factor, a defendant can still bring up that factor in court.

Federal law
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The United States' federal courts can try people for federal crimes and can sentence them to death. Federal law includes a death penalty law, 18 U.S. Code § 3592. It says that when deciding whether or not to give a defendant the death penalty, the judge or jury must "consider any factor, including these:

* The defendant was not able to understand how wrong their crime was (they had "impaired capacity")
* The defendant was forced or severely pressured to commit the crime
* Somebody else committed most of the crime
* Another defendant who is just as guilty will not be given the death penalty
* The defendant never committed a crime before
* The defendant committed the crime while they were badly mentally ill or having severe emotional problems
* The victim agreed to the criminal behavior that caused their death
* Any other things about the defendant's past, behavior, crime, or anything else that might be a mitigating factor

State laws
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While each state law is a little different, most of them list the same mitigating factors as the federal law. Examples of other mitigating factors in some of the states' laws include:

* Age (the defendant is old enough to be given the death penalty, but is still young)
* Intoxication with drugs or alcohol
* Cooperation with law enforcement officers and prosecutors
* The defendant was severely abused as a child, or was abused by the victim

Oklahoma's sentencing law, Code Section OUJI-CR 4-78, just says that mitigating factors are: 

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| "| 1) circumstances that may ... reduce the [defendant's] moral [guilt] or blame, or 2) circumstances which in fairness, sympathy or mercy may lead you as jurors individually or [together] to decide against [giving] the death penalty. | "|