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Since 1986, the country has been witness to a revolution in federal sentencing practice: indeterminate sentencing, dominated by discretion and focused on the rehabilitative prospects of the offender, has been replaced by guidelines infused with offense-based considerations. As sweeping as the change in sentencing procedure has been, the system retains troubling aspects of the former regime. The most controversial among these is the Guidelines' reliance on unadjudicated conduct to determine proper punishment levels.

This approach is a variation on “real offense” sentencing, which severs the punishment inquiry from the offense of conviction, focusing instead on an offender's "actual" conduct. Under the Guidelines, the "real offense" often encompasses acts prohibited by criminal statute that have never been the subject of a formal conviction. This Article challenges the constitutionality of treating such unconvicted criminal conduct as an aggravating factor at sentencing.

Part I of this Article briefly describes the adoption of the Guidelines model, discusses the decision to rely on nonconviction crimes at sentencing, and illustrates the operation of principal provisions by which nonconviction offenses are incorporated into the Guidelines scoring process. Part II examines Supreme Court and courts of appeals cases rejecting constitutional challenges to punishment for unconvicted criminal conduct. Part III argues that the prevailing due process analysis of nonconviction offense sentencing must be rejected, not as a result of any change in sentencing philosophy, but because it was wrong in the first instance. Using the Guidelines as a paradigm for systems embracing nonconviction offense sentencing, Part III demonstrates the disruptive effect punishment absent conviction has upon the structure and integrity of the criminal justice system through the classic jury trial model. The Article concludes that sentencing factors encompassing conduct separately proscribed by criminal statute must be excised from the Guidelines system as unconstitutional.