All sentencing systems make use of information beyond the elements of the offense of conviction. This practice, known generally as "real-offense sentencing," is necessary because of the complexity and variety of criminal behavior and the need to keep criminal statutes relatively simple. Two defendants convicted of violating the same statute may be very different in terms of amount of harm caused, levels of personal culpability, and degrees of dangerousness to the community.

One of the enduring challenges in sentencing policymaking is the need to identify the appropriate structure and scope of real-offense sentencing. What facts beyond the elements of the offense of conviction should have an impact on the defendant's sentence? Should consideration of such additional facts be *268 systematized or left to the discretion of individual judges? Should certain types of information be excluded from sentencing decisionmaking, even if they are logically relevant? What process and burden of proof should apply to such fact-finding?... 

 

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