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Reitz discusses real-offense sentencing systems and conviction-offense states, and urges that conviction-offense sentencing be implemented in other states.  Reitz defines real-offense sentencing as a system that allows the judge to impose punishment based on current conviction offenses and their circumstances, nonconvictions offenses committed at the same time as the conviction offense, prior convictions and their surrounding circumstances, all nonconviction offenses committed in the past, and all other behavior of the defendant.  This system allows judges a great deal of discretion in establishing sentences, and allows the judge to consider any behaviors, even offenses for which the defendant has been acquitted.
     In real-offense sentencing systems, any information may be examined by the sentencing court including earlier acquittals, pleas, and dismissed charges.  Judges are allowed the discretion to base the length of the defendant's sentence not only on the proven convictions found at trial, but also on any other reliable evidence.  Reitz contrasts this system with three states that have established conviction-offense sentencing.  Conviction-offense sentencing only allows judges to punish the defendant based on the current conviction offense, aggravating and mitigating factors of the conviction offenses, and prior conviction offenses.  This system focuses solely on convictions themselves and do not take into account other circumstances.  However, the conviction-offense states have also allowed exceptions into their sentencing standards.  Reitz notes that the states do not have a principled rationale for allowing these deviations, and should develop articulated reasons for allowing exceptions to conviction-offense sentencing.  Reitz also remarks that the three states that have adopted conviction-offense sentencing so far have not had negative impacts from the decision.
     Currently, the Supreme Court has not found any constitutional constraints on real-offense sentencing.  In both Williams v. New York and McMillan v. Pennsylvania, the Court has allowed nonconviction factors to influence sentencing.  Reitz finds that even though the Supreme Court has not specifically ruled on judges considering acquitted offenses in sentencing, the Court would also most likely find this constitutional as well.  Thus, without constitutional constraints, Reitz feels that the decision to use real-offense or conviction-offense sentencing should be made on policy grounds.
     Reitz believes that conviction-offense systems should be adopted.  While criminal trials have many procedural safeguards, sentencing hearings do not have such provisions.  Reitz notes that since both proceedings are equally important, both should also have strict procedural rules.  Allowing defendants to be sentenced based on acquitted offenses diminishes the purpose of finding guilt at criminal trials, and forces individuals to defend themselves twice.  Sentencing based on dismissed charges discourages settlement and allows prosecutors to make meaningless bargains.  Reitz also discusses the theoretical bases for real-offense sentencing including the outlaw theory, the sensitive judgment claim, the shortcut theory, and the determinate sentencing and prosecutorial power argument.  He refutes each of these arguments and establishes that each one does not establish that states should continue to adhere to real-offense sentencing.
     Thus, Reitz suggests that convictions (and not other factors) should be the basis of sentencing.  Although conviction-bases sentencing has some problems, these can be solved through the use of legislative action.  A conviction-offense system provides that important procedural protections are employed during sentencing hearings.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999