Abstract

Mitigating factors may seem either to be partially exculpatory factors considered at sentencing or else disparate reasons of public policy other than a defendant’s diminished culpability why he should be punished less harshly. I argue, however, that there is a set of factors at the core of mitigation that are distinct from partially exculpatory factors, yet do not encompass just any non-exculpatory factor relevant to sentencing. Mitigating factors of this undertheorized kind do not diminish a defendant’s culpability. But they are more than mere reasons to mitigate his punishment. They are factors that strengthen his complaint against punishment, thereby giving him a claim to mitigation—even if not a moral or legal right to it. Hence, there are three types of mitigating factors: partially exculpatory mitigating factors, mere public policy reasons for mitigation, and defendant claims to mitigation without exculpation.