Nonstatutory Aggravating Factors

By special request, this post recaps the law of nonstatutory aggravating factors. Under G.S. 15A-1340.16(d), the State may, in addition to the 25 statutory aggravating factors set out in that subsection, attempt to prove "any other aggravating factor reasonably related to the purposes of sentencing." There's no universal agreement on the "purposes of sentencing," but in North Carolina, the General Assembly has set out the primary purposes in G.S. 15A-1340.12. Unlike statutory aggravating factors, which need not be pled in a charging document,  G.S. 15A-924(a)(7) requires that a criminal pleading must include a plain and concise factual statement of any nonstatutory aggravating factors the State intends to use. Nonstatutory factors are, of course, still subject to the rules applicable to any aggravating factor: evidence necessary to prove an element of the conviction offense may not be used to prove a factor in aggravation; the same item of evidence may not be used to prove more than one aggravating factor; and a defendant's exercise of the right to a jury trial may not be an aggravating factor. Because Fair Sentencing also allowed for nonstatutory aggravating factors, a substantial body of case law has developed over the years. The following list (by no means a full treatment of the subject) touches on some of the factors that have been approved, some that have been deemed improper, and the general themes that run through the cases. Note that our courts have said that to be reasonably related to the purposes of sentencing, a nonstatutory [...]