OCTOBER TERM, 1999
Syllabus
APPRENDI
v. NEW JERSEY
CERTIORARI TO THE SUPREME COURT OF NEW JERSEY
No. 99-478. Argued March 28, 2000-Decided June 26, 2000
Petitioner Apprendi fired several shots into the home of an
MricanAmerican family and made a statement-which he later
retracted-that he did not want the family in his neighborhood
because of their race. He was charged under New Jersey law with,
inter alia, second-degree possession of a firearm for an
unlawful purpose, which carries a prison term of 5 to lO years. The
count did not refer to the State's hate crime statute, which
provides for an enhanced sentence if a trial judge finds, by a
preponderance of the evidence, that the defendant committed the
crime with a purpose to intimidate a person or group because of,
inter alia, race. After Apprendi pleaded guilty, the
prosecutor filed a motion to enhance the sentence. The court found
by a preponderance of the evidence that the shooting was racially
motivated and sentenced Apprendi to a 12-year term on the firearms
count. In upholding the sentence, the appeals court rejected
Apprendi's claim that the Due Process Clause requires that a bias
finding be proved to a jury beyond a reasonable doubt. The State
Supreme Court affirmed.
Held: The Constitution requires that any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum, other than the fact of a prior conviction, must be
submitted to a jury and proved beyond a reasonable doubt.
Pp.474-497.
(a) The answer to the narrow constitutional question
presentedwhether Apprendi's sentence was permissible, given that it
exceeds the lO-year maximum for the offense charged-was
foreshadowed by the holding in
Jones v.
United
States, 526 U. S.
227, that, with regard to federal law, the Fifth Amendment's
Due Process Clause and the Sixth Amendment's notice and jury trial
guarantees require that any fact other than prior conviction that
increases the maximum penalty for a crime must be charged in an
indictment, submitted to a jury, and proved beyond a reasonable
doubt. The Fourteenth Amendment commands the same answer when a
state statute is involved. Pp.474-476.
(b) The Fourteenth Amendment right to due process and the Sixth
Amendment right to trial by jury, taken together, entitle a
criminal defendant to a jury determination that he is guilty of
every element of the crime with which he is charged, beyond a
reasonable doubt.
E. g., In re Winship, 397 U. S. 358, 364. The
historical foundation for these principles extends down centuries
into the common law. While
467
judges in this country have long exercised discretion in
sentencing, such discretion is bound by the range of sentencing
options prescribed by the legislature. See,
e. g., United
States v.
Tucker, 404 U. S. 443, 447. The
historic inseparability of verdict and judgment and the consistent
limitation on judges' discretion highlight the novelty of a scheme
that removes the jury from the determination of a fact that exposes
the defendant to a penalty exceeding the maximum he could receive
if punished according to the facts reflected in the jury verdict
alone. Pp.476-485.
(c)
McMillan v.
Pennsylvania, 477 U. S. 79, was the
first case in which the Court used "sentencing factor" to refer to
a fact that was not found by the jury but could affect the sentence
imposed by the judge. In finding that the scheme at issue there did
not run afoul of
Winship's strictures, this Court did not
budge from the position that (1) constitutional limits exist to
States' authority to define away facts necessary to constitute a
criminal offense, 477 U. S., at 85-88, and (2) a state scheme that
keeps from the jury facts exposing defendants to greater or
additional punishment may raise serious constitutional concerns,
id., at
88. Almendarez-Torres v.
United
States, 523 U. S.
224-in which the Court upheld a federal law allowing a judge to
impose an enhanced sentence based on prior convictions not alleged
in the indictment-represents at best an exceptional departure from
the historic practice. Pp. 485-490.
(d) In light of the constitutional rule expressed here, New
Jersey's practice cannot stand. It allows a jury to convict a
defendant of a second-degree offense on its finding beyond a
reasonable doubt and then allows a judge to impose punishment
identical to that New Jersey provides for first-degree crimes on
his finding, by a preponderance of the evidence, that the
defendant's purpose was to intimidate his victim based on the
victim's particular characteristic. The State's argument that the
biased purpose finding is not an "element" of a distinct hate crime
offense but a "sentencing factor" of motive is nothing more than a
disagreement with the rule applied in this case. Beyond this, the
argument cannot succeed on its own terms. It does not matter how
the required finding is labeled, but whether it exposes the
defendant to a greater punishment than that authorized by the
jury's verdict, as does the sentencing "enhancement" here. The
degree of culpability the legislature associates with factually
distinct conduct has significant implications both for a
defendant's liberty and for the heightened stigma associated with
an offense the legislature has selected as worthy of greater
punishment. That the State placed the enhancer within the criminal
code's sentencing provisions does not mean that it is not an
essential element of the offense. Pp.491-497.
159 N. J. 7,731 A. 2d 485, reversed and remanded.
468
STEVENS, J., delivered the opinion of the Court, in which
SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. SCALIA, J.,
filed a concurring opinion,
post, p. 498. THOMAS, J., filed
a concurring opinion, in which SCALIA, J., joined as to Parts I and
II,
post, p. 499. O'CONNOR, J., filed a dissenting opinion,
in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined,
post, p. 523. BREYER, J., filed a dissenting opinion, in
which REHNQUIST, C. J., joined,
post, p. 555.
Joseph D. O'Neill argued the cause for petitioner. With him on
the briefs were Charles 1. Coant, Richard G. Singer, and Jeffrey T.
Green.
Lisa Sarnoff Gochman, Deputy Attorney General of New
Jersey, argued the cause for respondent. With her on the brief was
John J. Farmer, Jr., Attorney General.
Edward C. DuMont argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Waxman, Assistant Attorney General Robinson,
Deputy Solicitor General Dreeben, and Nina Goodman.
*
JUSTICE STEVENS delivered the opinion of the Court.
A New Jersey statute classifies the possession of a firearm for
an unlawful purpose as a "second-degree" offense. N. J. Stat. Ann.
§ 2C:39-4(a) (West 1995). Such an offense is punishable by
imprisonment for "between five years and 10 years." §
2C:43-6(a)(2). A separate statute, described by that State's
Supreme Court as a "hate crime" law, provides for an "extended
term" of imprisonment if the trial judge finds, by a preponderance
of the evidence, that "[t]he de-
*Briefs of
amici curiae urging reversal were filed for
the National Association of Criminal Defense Lawyers et al. by
Steven B. Duke, Kyle O'Dowd, Lisa B. Kemler, and
Peter
Goldberger; and for the Rutherford Institute by
John W
Whitehead and
Steven H. Aden.
Briefs of
amici curiae urging affirmance were filed for
the AntiDefamation League by
David M. Raim, Steven M.
Freeman, and
Michael Lieberman; and for the Brudnick
Center on Violence and Conflict et al. by
Brian H.
Levin.
469
fendant in committing the crime acted with a purpose to
intimidate an individual or group of individuals because of race,
color, gender, handicap, religion, sexual orientation or
ethnicity." N. J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-2000).
The extended term authorized by the hate crime law for
second-degree offenses is imprisonment for "between 10 and 20
years." § 2C:43-7(a)(3).
The question presented is whether the Due Process Clause of the
Fourteenth Amendment requires that a factual determination
authorizing an increase in the maximum prison sentence for an
offense from 10 to 20 years be made by a jury on the basis of proof
beyond a reasonable doubt.
I
At 2:04 a.m. on December 22, 1994, petitioner Charles C.
Apprendi, Jr., fired several .22-caliber bullets into the home
of an African-American family that had recently moved into a
previously all-white neighborhood in Vineland, New Jersey. Apprendi
was promptly arrested and, at 3:05 a.m., admitted that he was the
shooter. After further questioning, at 6:04 a.m., he made a
statement-which he later retracted-that even though he did not know
the occupants of the house personally, "because they are black in
color he does not want them in the neighborhood." 159 N. J. 7, 10,
731 A. 2d 485, 486 (1999).
ANew Jersey grand jury returned a 23-count indictment charging
Apprendi with four first-degree, eight seconddegree, six
third-degree, and five fourth-degree offenses. The charges alleged
shootings on four different dates, as well as the unlawful
possession of various weapons. None of the counts referred to the
hate crime statute, and none alleged that Apprendi acted with a
racially biased purpose.
The parties entered into a plea agreement, pursuant to which
Apprendi pleaded guilty to two counts (3 and 18) of second-degree
possession of a firearm for an unlawful pur-
470
pose, N. J. Stat. Ann. § 2C:39-4a (West 1995), and one count
(22) of the third-degree offense of unlawful possession of an
antipersonnel bomb, § 2C:39-3a; the prosecutor dismissed the other
20 counts. Under state law, a second-degree offense carries a
penalty range of 5 to 10 years, § 2C:43-6(a)(2); a third-degree
offense carries a penalty range of between 3 and 5 years, §
2C:43-6(a)(3). As part of the plea agreement, however, the State
reserved the right to request the court to impose a higher
"enhanced" sentence on count 18 (which was based on the December 22
shooting) on the ground that that offense was committed with a
biased purpose, as described in § 2C:44-3(e). Apprendi,
correspondingly, reserved the right to challenge the hate crime
sentence enhancement on the ground that it violates the United
States Constitution.
At the plea hearing, the trial judge heard sufficient evidence
to establish Apprendi's guilt on counts 3, 18, and 22; the judge
then confirmed that Apprendi understood the maximum sentences that
could be imposed on those counts. Because the plea agreement
provided that the sentence on the sole third-degree offense (count
22) would run concurrently with the other sentences, the potential
sentences on the two second-degree counts were critical. If the
judge found no basis for the biased purpose enhancement, the
maximum consecutive sentences on those counts would amount to 20
years in aggregate; if, however, the judge enhanced the sentence on
count 18, the maximum on that count alone would be 20 years and the
maximum for the two counts in aggregate would be 30 years, with a
15-year period of parole ineligibility.
After the trial judge accepted the three guilty pleas, the
prosecutor filed a formal motion for an extended term. The trial
judge thereafter held an evidentiary hearing on the issue of
Apprendi's "purpose" for the shooting on December 22. Apprendi
adduced evidence from a psychologist and from seven character
witnesses who testified that he did not
471
have a reputation for racial bias. He also took the stand
himself, explaining that the incident was an unintended consequence
of overindulgence in alcohol, denying that he was in any way biased
against African-Americans, and denying that his statement to the
police had been accurately described. The judge, however, found the
police officer's testimony credible, and concluded that the
evidence supported a finding "that the crime was motivated by
racial bias." App. to Pet. for Cert. 143a. Having found "by a
preponderance of the evidence" that Apprendi's actions were taken
"with a purpose to intimidate" as provided by the statute,
id., at 138a, 139a, 144a, the trial judge held that the hate
crime enhancement applied. Rejecting Apprendi's constitutional
challenge to the statute, the judge sentenced him to a 12year term
of imprisonment on count 18, and to shorter concurrent sentences on
the other two counts.
Apprendi appealed, arguing,
inter alia, that the Due
Process Clause of the United States Constitution requires that the
finding of bias upon which his hate crime sentence was based must
be proved to a jury beyond a reasonable doubt,
In re
Winship, 397 U.
S. 358 (1970). Over dissent, the Appellate Division of the
Superior Court of New Jersey upheld the enhanced sentence. 304 N.
J. Super. 147,698 A. 2d 1265 (1997). Relying on our decision in
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), the
appeals court found that the state legislature decided to make the
hate crime enhancement a "sentencing factor," rather than an
element of an underlying offense-and that decision was within the
State's established power to define the elements of its crimes. The
hate crime statute did not create a presumption of guilt, the court
determined, and did not appear "'tailored to permit the ... finding
to be a tail which wags the dog of the substantive offense.'" 304
N. J. Super., at 154, 698 A. 2d, at 1269 (quoting
McMillan,
477 U. S., at 88). Characterizing the required finding as one of
"motive," the court described it as a traditional "sentencing
factor," one not considered an "essen-
472
tial element" of any crime unless the legislature so provides.
304 N. J. Super., at 158, 698 A. 2d, at 1270. While recognizing
that the hate crime law did expose defendants to " 'greater and
additional punishment,'"
id., at 156, 698 A. 2d, at 1269
(citing
McMillan, 477 U. S., at 88), the court held that
that "one factor standing alone" was not sufficient to render the
statute unconstitutional, 304 N. J. Super., at 156, 698 A. 2d, at
1269.
A divided New Jersey Supreme Court affirmed. 159 N. J. 7, 731 A.
2d 485 (1999). The court began by explaining that while due process
only requires the State to prove the "elements" of an offense
beyond a reasonable doubt, the mere fact that a state legislature
has placed a criminal component "within the sentencing provisions"
of the criminal code "does not mean that the finding of a biased
purpose to intimidate is not an essential element of the offense."
Id., at 20, 731 A. 2d, at 492. "Were that the case," the
court continued, "the Legislature could just as easily allow
judges, not juries, to determine if a kidnapping victim has been
released unharmed."
Ibid. (citing state precedent requiring
such a finding to be submitted to a jury and proved beyond a
reasonable doubt). Neither could the constitutional question be
settled simply by defining the hate crime statute's "purpose to
intimidate" as "motive" and thereby excluding the provision from
any traditional conception of an "element" of a crime. Even if one
could characterize the language this way-and the court doubted that
such a characterization was accurate-proof of motive did not
ordinarily "increase the penal consequences to an actor."
Ibid. Such "[l]abels," the court concluded, would not yield
an answer to Apprendi's constitutional question.
Ibid.
While noting that we had just last year expressed serious doubt
concerning the constitutionality of allowing penaltyenhancing
findings to be determined by a judge by a preponderance of the
evidence,
Jones v.
United States, 526 U. S.
473
227 (1999), the court concluded that those doubts were not
essential to our holding. Turning then, as the appeals court had,
to
McMillan, as well as to
Almendarez-Torres v.
United States, 523 U. S. 224 (1998), the
court undertook a multifactor inquiry and then held that the hate
crime provision was valid. In the majority's view, the statute did
not allow impermissible burden shifting, and did not "create a
separate offense calling for a separate penalty." 159 N. J., at 24,
731 A. 2d, at 494. Rather, "the Legislature simply took one factor
that has always been considered by sentencing courts to bear on
punishment and dictated the weight to be given that factor."
Ibid., 731 A. 2d, at 494-495. As had the appeals court, the
majority recognized that the state statute was unlike that in
McMillan inasmuch as it increased the maximum penalty to
which a defendant could be subject. But it was not clear that this
difference alone would "change the constitutional calculus,"
especially where, as here, "there is rarely any doubt whether the
defendants committed the crimes with the purpose of intimidating
the victim on the basis of race or ethnicity." 159 N. J., at 24-25,
731 A. 2d, at 495. Moreover, in light of concerns "idiosyncratic"
to hate crime statutes drawn carefully to avoid "punishing thought
itself," the enhancement served as an appropriate balance between
those concerns and the State's compelling interest in vindicating
the right "to be free of invidious discrimination."
Id., at
25-26, 731 A. 2d, at 495.
The dissent rejected this conclusion, believing instead that the
case turned on two critical characteristics: (1) "[A] defendant's
mental state in committing the subject offense ... necessarily
involves a finding so integral to the charged offense that it must
be characterized as an element thereof"; and (2) "the significantly
increased sentencing range triggered by ... the finding of a
purpose to intimidate" means that the purpose "must be treated as a
material element [that] must be found by a jury beyond a reasonable
doubt."
474
Id., at 30, 731 A. 2d, at 498. In the dissent's view, the
facts increasing sentences in both
Almendarez-Torres
(recidivism) and
Jones (serious bodily injury) were quite
distinct from New Jersey's required finding of purpose here; the
latter finding turns directly on the conduct of the defendant
during the crime and defines a level of culpability necessary to
form the hate crime offense. While acknowledging "analytical
tensions" in this Court's
post-Winship jurisprudence, the
dissenters concluded that "there can be little doubt that the
sentencing factor applied to this defendant-the purpose to
intimidate a victim because of race-must fairly be regarded as an
element of the crime requiring inclusion in the indictment and
proof beyond a reasonable doubt." 159 N. J., at 51, 731 A. 2d, at
512.
We granted certiorari, 528 U. S. 1018 (1999), and now
reverse.
II
It is appropriate to begin by explaining why certain aspects of
the case are not relevant to the narrow issue that we must resolve.
First, the State has argued that even without the trial judge's
finding of racial bias, the judge could have imposed consecutive
sentences on counts 3 and 18 that would have produced the 12-year
term of imprisonment that Apprendi received; Apprendi's actual
sentence was thus within the range authorized by statute for the
three offenses to which he pleaded guilty. Brief for Respondent 4.
The constitutional question, however, is whether the 12-year
sentence imposed on count 18 was permissible, given that it was
above the 10-year maximum for the offense charged in that count.
The finding is legally significant because it increased-indeed, it
doubled-the maximum range within which the judge could exercise his
discretion, converting what otherwise was a maximum 10-year
sentence on that count into a minimum sentence. The sentences on
counts 3 and 22 have no more relevance to our disposition than the
dismissal of the remaining 18 counts.
475
Second, although the constitutionality of basing an enhanced
sentence on racial bias was argued in the New Jersey courts, that
issue was not raised here.1 The substantive basis for New Jersey's
enhancement is thus not at issue; the adequacy of New Jersey's
procedure is. The strength of the state interests that are served
by the hate crime legislation has no more bearing on this
procedural question than the strength of the interests served by
other provisions of the criminal code.
Third, we reject the suggestion by the State Supreme Court that
"there is rarely any doubt" concerning the existence of the biased
purpose that will support an enhanced sentence, 159 N. J., at 25,
731 A. 2d, at 495. In this very case, that issue was the subject of
the full evidentiary hearing we described. We assume that both the
purpose of the offender, and even the known identity of the victim,
will sometimes be hotly disputed, and that the outcome may well
depend in some cases on the standard of proof and the identity of
the factfinder.
Fourth, because there is no ambiguity in New Jersey's statutory
scheme, this case does not raise any question concerning the
State's power to manipulate the prosecutor's burden of proof by,
for example, relying on a presumption rather than evidence to
establish an element of an offense, cf.
Mullaney v.
Wilbur, 421 U.
S. 684 (1975);
Sandstrom v.
Montana, 442 U. S. 510 (1979), or
by placing the affirmative defense label on "at least some
elements" of traditional crimes,
Patterson v.
New
York, 432 U. S.
197, 210 (1977). The prosecutor did not invoke any presumption
to buttress the evidence of racial bias and did not claim that
Apprendi had the burden of disproving an improper motive. The
question whether Apprendi had a constitutional right to
1 We have previously rejected a First Amendment challenge to an
enhanced sentence based on a jury finding that the defendant had
intentionally selected his victim because of the victim's race.
Wisconsin v.
Mitchell, 508 U. S. 476, 480
(1993).
476
have a jury find such bias on the basis of proof beyond a
reasonable doubt is starkly presented.
Our answer to that question was foreshadowed by our opinion in
Jones v.
United States, 526 U. S. 227 (1999),
construing a federal statute. We there noted that "under the Due
Process Clause of the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment, any fact (other than prior
conviction) that increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt."
Id., at 243, n. 6. The Fourteenth
Amendment commands the same answer in this case involving a state
statute.
III
In his 1881 lecture on the criminal law, Oliver Wendell Holmes,
Jr., observed: "The law threatens certain pains if you do certain
things, intending thereby to give you a new motive for not doing
them. If you persist in doing them, it has to inflict the pains in
order that its threats may continue to be believed."z New Jersey
threatened Apprendi with certain pains if he unlawfully possessed a
weapon and with additional pains if he selected his victims with a
purpose to intimidate them because of their race. As a matter of
simple justice, it seems obvious that the procedural safeguards
designed to protect Apprendi from unwarranted pains should apply
equally to the two acts that New Jersey has singled out for
punishment. Merely using the label "sentence enhancement" to
describe the latter surely does not provide a principled basis for
treating them differently.
At stake in this case are constitutional protections of
surpassing importance: the proscription of any deprivation of
liberty without "due process of law," Arndt. 14, and the guarantee
that "[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an im-
2 O. Holmes, The Common Law 40 (M. Howe ed. 1963).
477
partial jury," Arndt. 6.3 Taken together, these rights
indisputably entitle a criminal defendant to "a jury determination
that [he] is guilty of every element of the crime with which he is
charged, beyond a reasonable doubt."
United States v.
Gaudin, 515 U.
S. 506, 510 (1995); see also
Sullivan v.
Louisiana, 508
U. S. 275, 278 (1993);
Winship, 397 U. S., at 364
("[T]he Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged").
As we have, unanimously, explained,
Gaudin, 515 U. S., at
510-511, the historical foundation for our recognition of these
principles extends down centuries into the common law. "[T]o guard
against a spirit of oppression and tyranny on the part of rulers,"
and "as the great bulwark of [our] civil and political liberties,"
2 J. Story, Commentaries on the Constitution of the United States
540-541 (4th ed. 1873), trial by jury has been understood to
require that
"the truth of every accusation, whether
preferred in the shape of indictment, information, or appeal,
should afterwards be confirmed by the unanimous suffrage of twelve
of [the defendant's] equals and neighbours .... " 4 W. Blackstone,
Commentaries on the Laws of England 343 (1769) (hereinafter
Blackstone) (emphasis added). See also
Duncan v.
Louisiana, 391
U. S. 145, 151-154 (1968).
3 Apprendi has not here asserted a constitutional claim based on
the omission of any reference to sentence enhancement or racial
bias in the indictment. He relies entirely on the fact that the
"due process of law" that the Fourteenth Amendment requires the
States to provide to persons accused of crime encompasses the right
to a trial by jury,
Duncan v.
Louisiana, 391 U. S. 145 (1968), and
the right to have every element of the offense proved beyond a
reasonable doubt,
In re Winship, 397 U. S. 358 (1970).
That Amendment has not, however, been construed to include the
Fifth Amendment right to "presentment or indictment of a Grand
Jury" that was implicated in our recent decision in
Almendarez-Torres v.
United States, 523 U. S. 224 (1998). We
thus do not address the indictment question separately today.
478
Equally well founded is the companion right to have the jury
verdict based on proof beyond a reasonable doubt. "The 'demand for
a higher degree of persuasion in criminal cases was recurrently
expressed from ancient times, [though] its crystallization into the
formula "beyond a reasonable doubt" seems to have occurred as late
as 1798. It is now accepted in common law jurisdictions as the
measure of persuasion by which the prosecution must convince the
trier of all the essential elements of guilt.' C. McCormick,
Evidence § 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence
§ 2497 (3d ed. 1940)."
Winship, 397 U. S., at 361. We went
on to explain that the reliance on the "reasonable doubt" standard
among common-law jurisdictions" 'reflect[s] a profound judgment
about the way in which law should be enforced and justice
administered.'"
Id., at 361-362 (quoting
Duncan, 391
U. S., at 155).
Any possible distinction between an "element" of a felony
offense and a "sentencing factor" was unknown to the practice of
criminal indictment, trial by jury, and judgment by court 4 as it
existed during the years surrounding our N ation's founding. As a
general rule, criminal proceedings were submitted to a jury after
being initiated by an indictment containing "all the facts and
circumstances which constitute the offence, ... stated with such
certainty and precision, that the defendant ... may be enabled to
determine the species of offence they constitute, in order that he
may prepare his defence accordingly ... and
that there may be no
doubt as to the judgment which should be given, if the
defendant be convicted." J. Archbold, Pleading and Evidence in
Criminal Cases 44 (15th ed. 1862) (emphasis added). The defendant's
ability to predict with certainty the judgment from the face of the
felony indictment flowed from the invariable linkage of punishment
with crime. See 4 Black-
4 "[A]fter trial and conviction are past," the defendant is
submitted to "judgment" by the court, 4 Blackstone 368-the stage
approximating in modern terms the imposition of sentence.
479
stone 369-370 (after verdict, and barring a defect in the
indictment, pardon, or benefit of clergy, "the court
must
pronounce that judgment, which the law hath annexed to the
crime" (emphasis added)).
Thus, with respect to the criminal law of felonious conduct,
"the English trial judge of the later eighteenth century had very
little explicit discretion in sentencing. The substantive criminal
law tended to be sanction-specific; it prescribed a particular
sentence for each offense. The judge was meant simply to impose
that sentence (unless he thought in the circumstances that the
sentence was so inappropriate that he should invoke the pardon
process to commute it)." Langbein, The English Criminal Trial Jury
on the Eve of the French Revolution, in The Trial Jury in England,
France, Germany 1700-1900, pp. 36-37 (A. Schioppa ed. 1987).5 As
Blackstone, among many others, has made clear,6 "[t]he judg-
5 As we suggested in
Jones v.
United States,
526 U. S. 227
(1999), juries devised extralegal ways of avoiding a guilty
verdict, at least of the more severe form of the offense alleged,
if the punishment associated with the offense seemed to them
disproportionate to the seriousness of the conduct of the
particular defendant.
Id., at 245 ("This power to thwart
Parliament and Crown took the form not only of flat-out acquittals
in the face of guilt but of what today we would call verdicts of
guilty to lesser included offenses, manifestations of what
Blackstone described as 'pious perjury' on the jurors' part. 4
Blackstone 238-239").
6 As the principal dissent would chide us for this single
citation to Blackstone's third volume, rather than his fourth,
post, at 525-526 (opinion of O'CONNOR, J.), we suggest that
Blackstone himself directs us to it for these purposes. See 4
Blackstone 343 ("The antiquity and excellence of this [jury] trial,
for the settling of civil property, has before been explained at
large"). See 3
id., at 379 ("Upon these accounts the trial
by jury ever has been, and I trust ever will be, looked upon as the
glory of the English law. And, if it has so great an advantage over
others in regulating civil property, how much must that advantage
be heightened, when it is applied to criminal cases!"); 4
id., at 343 ("And it will hold much stronger in criminal
cases; since, in times of difficulty and danger, more is to be
apprehended from the violence and partiality of judges appointed by
the crown, in suits between the king and the subject, than in
disputes between one individual and another, to settle the metes
and boundaries of private property");
480
ment, though pronounced or awarded by the judges, is not their
determination or sentence, but the determination and sentence of
the law." 3 Blackstone 396 (emphasis deleted).7
This practice at common law held true when indictments were
issued pursuant to statute. Just as the circumstances of the crime
and the intent of the defendant at the time of commission were
often essential elements to be alleged in the indictment, so too
were the circumstances mandating a particular punishment. "Where a
statute annexes a higher degree of punishment to a common-law
felony, if committed under particular circumstances, an indictment
for the offence, in order to bring the defendant within that higher
degree of punishment, must expressly charge it to have been
committed under those circumstances, and must state the
circumstances with certainty and precision. [2 M. Hale, Pleas of
the Crown *170]." Archbold, Pleading and Evidence in Criminal
Cases, at 51. If, then, "upon an indictment under the statute, the
prosecutor prove the felony to have been committed, but fail in
proving it to have been committed under the circumstances specified
in the statute, the
4 id., at 344 ("What was said of juries in general, and
the trial thereby, in
civil cases, will greatly shorten our
present remarks, with regard to the trial of
criminal suits;
indictments, informations, and appeals").
7 The common law of punishment for misdemeanors-those "smaller
faults, and omissions of less consequence," 4
id., at 5-was,
as we noted in
Jones, 526 U. S., at 244, substantially more
dependent upon judicial discretion. Subject to the limitations that
the punishment not "touch life or limb," that it be proportionate
to the offense, and, by the 17th century, that it not be "cruel or
unusual," judges most commonly imposed discretionary "sentences" of
fines or whippings upon misdemeanants. J. Baker, Introduction to
English Legal History 584 (3d ed. 1990). Actual sentences of
imprisonment for such offenses, however, were rare at common law
until the late 18th century,
ibid., for "the idea of prison
as a punishment would have seemed an absurd expense," Baker,
Criminal Courts and Procedure at Common Law 1550-1800, in Crime in
England 1550-1800, p. 43 (J. Cockburn ed. 1977).
481
defendant shall be convicted of the common-law felony only."
Id., at 188.8
We should be clear that nothing in this history suggests that it
is impermissible for judges to exercise discretiontaking into
consideration various factors relating both to offense and
offender-in imposing a judgment
within the range prescribed
by statute. We have often noted that judges in this country have
long exercised discretion of this nature in imposing sentence
within statutory limits in the individual case. See,
e.
g., Williams v.
New York, 337 U. S. 241, 246 (1949)
("[B]oth before and since the American colonies became a nation,
courts in this country and in England practiced a policy under
which a sentencing judge could exercise a wide discretion in the
sources and types of evidence used to assist him in determining the
kind and extent of punishment to be imposed
within limits fixed
by law" (emphasis added)). As in
Williams, our periodic
recognition of judges' broad discretion in sentencing-since the
19thcentury shift in this country from statutes providing fixedterm
sentences to those providing judges discretion within a permissible
range, Note, The Admissibility of Character Evidence in Determining
Sentence, 9 U. Chi. L. Rev. 715 (1942)-has been regularly
accompanied by the qualification that that discretion was bound by
the range of sentencing options prescribed by the legislature. See,
e. g., United States v.
Tucker, 404 U. S. 443, 447 (1972)
(agreeing that "[t]he Government is also on solid ground in
asserting that a
8 To the extent the principal dissent appears to take issue with
our reliance on Archbold (among others) as an authoritative source
on the common law of the relevant period,
post, at 525, 526,
we simply note that Archbold has been cited by numerous opinions of
this Court for that very purpose, his Criminal Pleading treatise
being generally viewed as "an essential reference book for every
criminal lawyer working in the Crown Court." Biographical
Dictionary of the Common Law 13 (A. Simpson ed. 1984); see also
Holdsworth, The Literature of the Common Law, in 13 A History of
English Law 464-465 (A. Goodhart & H. Hanbury eds. 1952).
482
sentence imposed by a federal district judge,
if within
statutory limits, is generally not subject to review" (emphasis
added));
Williams, 337 U. S., at 246, 247 (explaining that,
in contrast to the guilt stage of trial, the judge's task in
sentencing is to determine, "within fixed statutory or
constitutional limits[,] the type and extent of punishment after
the issue of guilt" has been resolved).9
The historic link between verdict and judgment and the
consistent limitation on judges' discretion to operate within the
limits of the legal penalties provided highlight the novelty of a
legislative scheme that removes the jury from
9 See also 1 J. Bishop, Criminal Law §§ 933-934(1) (9th ed.
1923) ("With us legislation ordinarily fixes the penalties for the
common law offences equally with the statutory ones .... Under the
common-law procedure, the court determines in each case what
within the limits of the law shall be the punishment,-the
question being one of discretion" (emphasis added));
id., §
948 ("[I]f the law has given the court a discretion as to the
punishment, it will look in pronouncing sentence into any evidence
proper to influence a judicious magistrate to make it heavier or
lighter, yet not to exceed the limits fixed for what of crime is
within the allegation and the verdict. Or this sort of evidence may
be placed before the jury at the trial, if it has the power to
assess the punishment. But in such a case the aggravating matter
must not be of a crime separate from the one charged in the
indictment,-a rule not applicable where a delinquent offence under
an habitual criminal act is involved" (footnotes omitted)).
The principal dissent's discussion of
Williams, post, at
545-546, 547, fails to acknowledge the significance of the Court's
caveat that judges' discretion is constrained by the "limits fixed
by law." Nothing in
Williams implies that a judge may impose
a more severe sentence than the maximum authorized by the facts
found by the jury. Indeed, the commentators cited in the dissent
recognize precisely this same limitation. See
post, at
544-545 (quoting K. Stith & J. Cabranes, Fear of Judging:
Sentencing Guidelines in the Federal Courts 9 (1998) ("From the
beginning of the Republic, federal judges were entrusted with wide
sentencing discretion ... , permitting the sentencing judge to
impose any term of imprisonment and any fine
up to the statutory
maximum" (emphasis added)); Lynch, Towards A Model Penal Code,
Second (Federal?), 2 Buffalo Crim. L. Rev. 297, 320 (1998) (noting
that judges in discretionary sentencing took account of facts
relevant to a particular offense "within the spectrum of conduct
covered by the statute of conviction")).
483
the determination of a fact that, if found, exposes the criminal
defendant to a penalty
exceeding the maximum he would
receive if punished according to the facts reflected in the jury
verdict alone.10
We do not suggest that trial practices cannot change in the
course of centuries and still remain true to the principles that
emerged from the Framers' fears "that the jury right could be lost
not only by gross denial, but by erosion."
Jones, 526 U. S.,
at 247-248.11 But practice must at least adhere to the basic
principles undergirding the requirements of trying to a jury all
facts necessary to constitute a statutory offense, and proving
those facts beyond reason-
10 In support of its novel view that this Court has "long
recognized" that not all facts affecting punishment need go to the
jury,
post, at 524, the principal dissent cites three cases
decided within the past quarter century; and each of these is
plainly distinguishable. Rather than offer any historical account
of its own that would support the notion of a "sentencing factor"
legally increasing punishment beyond the statutory maximum-and
JUSTICE THOMAS' concurring opinion in this case makes clear that
such an exercise would be futile-the dissent proceeds by
mischaracterizing our account. The evidence we describe that
punishment was, by law, tied to the offense (enabling the defendant
to discern, barring pardon or clergy, his punishment from the face
of the indictment), and the evidence that American judges have
exercised sentencing discretion within a legally prescribed range
(enabling the defendant to discern from the statute of indictment
what maximum punishment conviction under that statute could bring),
point to a single, consistent conclusion: The judge's role in
sentencing is constrained at its outer limits by the facts alleged
in the indictment and found by the jury. Put simply, facts that
expose a defendant to a punishment greater than that otherwise
legally prescribed were by definition "elements" of a separate
legal offense.
11 As we stated in
Jones: "One contributor to the
ratification debates, for example, commenting on the jury trial
guarantee in Art. III, § 2, echoed Blackstone in warning of the
need 'to guard with the most jealous circumspection against the
introduction of new, and arbitrary methods of trial, which, under a
variety of plausible pretenses, may in time, imperceptibly
undermine this best preservative of LIBERTY.' A [New Hampshire]
Farmer, No.3, June 6, 1788, quoted in The Complete Bill of Rights
477 (N. Cogan ed. 1997)." 526 U. S., at 248.
484
able doubt. As we made clear in
Winship, the "reasonable
doubt" requirement "has [a] vital role in our criminal procedure
for cogent reasons." 397 U. S., at 363. Prosecution subjects the
criminal defendant both to "the possibility that he may lose his
liberty upon conviction and ... the certainty that he would be
stigmatized by the conviction."
Ibid. We thus require this,
among other, procedural protections in order to "provid[e] concrete
substance for the presumption of innocence," and to reduce the risk
of imposing such deprivations erroneously.
Ibid. If a
defendant faces punishment beyond that provided by statute when an
offense is committed under certain circumstances but not others, it
is obvious that both the loss of liberty and the stigma attaching
to the offense are heightened; it necessarily follows that the
defendant should not-at the moment the State is put to proof of
those circumstances-be deprived of protections that have, until
that point, unquestionably attached.
Since
Winship, we have made clear beyond peradventure
that
Winship's due process and associated jury protections
extend, to some degree, "to determinations that [go] not to a
defendant's guilt or innocence, but simply to the length of his
sentence."
Almendarez-Torres, 523 U. S., at 251 (SCALIA, J.,
dissenting). This was a primary lesson of
Mullaney v.
Wilbur, 421 U.
S. 684 (1975), in which we invalidated a Maine statute that
presumed that a defendant who acted with an intent to kill
possessed the "malice aforethought" necessary to constitute the
State's murder offense (and therefore, was subject to that crime's
associated punishment of life imprisonment). The statute placed the
burden on the defendant of proving, in rebutting the statutory
presumption, that he acted with a lesser degree of culpability,
such as in the heat of passion, to win a reduction in the offense
from murder to manslaughter (and thus a reduction of the maximum
punishment of 20 years).
The State had posited in
Mullaney that requiring a
defendant to prove heat-of-passion intent to overcome a pre-
485
sumption of murderous intent did not implicate
Winship
protections because, upon conviction of either offense, the
defendant would lose his liberty and face societal stigma just the
same. Rejecting this argument, we acknowledged that criminal law
"is concerned not only with guilt or innocence in the abstract, but
also with the degree of criminal culpability" assessed. 421 U. S.,
at 697-698. Because the
"consequences" of a guilty verdict
for murder and for manslaughter differed substantially, we
dismissed the possibility that a State could circumvent the
protections of
Winship merely by "redefin[ing] the elements
that constitute different crimes, characterizing them as factors
that bear solely on the extent of punishment." 421 U. S., at
698.12
IV
It was in
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), that
this Court, for the first time, coined the term "sentencing factor"
to refer to a fact that was not found by a jury but that could
affect the sentence imposed by the judge. That case involved a
challenge to the State's Man-
12 Contrary to the principal dissent's suggestion,
post,
at 530-532,
Patterson v.
New York, 432 U. S. 197, 198
(1977), posed no direct challenge to this aspect of
Mullaney. In upholding a New York law allowing defendants to
raise and prove extreme emotional distress as an affirmative
defense to murder,
Patterson made clear that the state law
still required the State to prove every element of that State's
offense of murder and its accompanying punishment. "No further
facts are either presumed or inferred in order to constitute the
crime." 432 U. S., at 205-206. New York, unlike Maine, had not made
malice aforethought, or any described
mens rea, part of its
statutory definition of second-degree murder; one could tell from
the face of the statute that if one intended to cause the death of
another person and did cause that death, one could be subject to
sentence for a second-degree offense.
Id., at 198.
Responding to the argument that our view could be seen "to permit
state legislatures to reallocate burdens of proof by labeling as
affirmative defenses at least some elements of the crimes now
defined in their statutes," the Court made clear in the very next
breath that there were "obviously constitutional limits beyond
which the States may not go in this regard."
Id., at
210.
486
datory Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982).
According to its provisions, anyone convicted of certain felonies
would be subject to a mandatory minimum penalty of five years'
imprisonment if the judge found, by a preponderance of the
evidence, that the person "visibly possessed a firearm" in the
course of committing one of the specified felonies. 477 U. S., at
81-82. Articulating for the first time, and then applying, a
multifactor set of criteria for determining whether the
Winship protections applied to bar such a system, we
concluded that the Pennsylvania statute did not run afoul of our
previous admonitions against relieving the State of its burden of
proving guilt, or tailoring the mere form of a criminal statute
solely to avoid
Winship's strictures. 477 U. S., at
86-88.
We did not, however, there budge from the position that (1)
constitutional limits exist to States' authority to define away
facts necessary to constitute a criminal offense,
id., at
85-88, and (2) that a state scheme that keeps from the jury facts
that "expos[e] [defendants] to greater or additional punishment,"
id., at 88, may raise serious constitutional concern. As we
explained:
"Section 9712 neither alters the maximum penalty for the crime
committed nor creates a separate offense calling for a separate
penalty; it operates solely to limit the sentencing court's
discretion in selecting a penalty within the range already
available to it without the special finding of visible possession
of a firearm .... The statute gives no impression of having been
tailored to permit the visible possession finding to be a tail
which wags the dog of the substantive offense. Petitioners' claim
that visible possession under the Pennsylvania statute is 'really'
an element of the offenses for which they are being punished-that
Pennsylvania has in effect defined a new set of upgraded
felonies-would have at least more superficial appeal if a finding
of visible possession exposed them to greater or additional
punish-
487
ment, cf. 18 U. S. C. § 2113(d) (providing separate and greater
punishment for bank robberies accomplished through 'use of a
dangerous weapon or device'), but it does not." Id., at
87-88.13
Finally, as we made plain in
Jones last Term,
AlmendarezTorres v.
United States, 523 U. S. 224 (1998),
represents at best an exceptional departure from the historic
practice that we have described. In that case, we considered a
federal grand jury indictment, which charged the petitioner with
"having been 'found in the United States ... after being
deported,'" in violation of 8 U. S. C. § 1326(a)-an offense
carrying a maximum sentence of two years. 523 U. S., at 227.
Almendarez-Torres pleaded guilty to the indictment, admitting at
the plea hearing that he had been deported, that he had unlawfully
reentered this country, and that "the earlier deportation had taken
place 'pursuant to' three earlier 'convictions' for aggravated
felonies."
Ibid. The Government then filed a presentence
report indicating that Almendarez-Torres' offense fell within the
bounds of § 1326(b) because, as specified in that provision, his
original deportation had been subsequent to an aggravated felony
conviction; accordingly, Almendarez-Torres could be subject to a
sentence of up to 20 years. Almendarez-Torres objected, contending
that because the indictment "had not mentioned his earlier
aggravated felony convictions," he could be sentenced to no more
than two years in prison.
Ibid.
13The principal dissent accuses us of today "overruling
McMillan."
Post, at 533. We do not overrule
McMillan. We
limit its holding to cases that do not involve the imposition of a
sentence more severe than the statutory maximum for the offense
established by the jury's verdicta limitation identified in the
McMillan opinion itself. Conscious of the likelihood that
legislative decisions may have been made in reliance on
McMillan, we reserve for another day the question whether
stare decisis considerations preclude reconsideration of its
narrower holding.
488
Rejecting Almendarez-Torres' objection, we concluded that
sentencing him to a term higher than that attached to the offense
alleged in the indictment did not violate the strictures of
Winship in that case. Because Almendarez-Torres had
admitted the three earlier convictions for aggravated
felonies-all of which had been entered pursuant to proceedings with
substantial procedural safeguards of their ownno question
concerning the right to a jury trial or the standard of proof that
would apply to a contested issue of fact was before the Court.
Although our conclusion in that case was based in part on our
application of the criteria we had invoked in
McMillan, the
specific question decided concerned the sufficiency of the
indictment. More important, as
Jones made crystal clear, 526
U. S., at 248-249, our conclusion in
Almendarez-Torres
turned heavily upon the fact that the additional sentence to which
the defendant was subject was "the prior commission of a serious
crime." 523 U. S., at 230; see also
id., at 243 (explaining
that "recidivism ... is a traditional, if not the most traditional,
basis for a sentencing court's increasing an offender's sentence");
id., at 244 (emphasizing "the fact that recidivism 'does not
relate to the commission of the offense ... ' ");
Jones, 526
U. S., at 249-250, n. 10 ("The majority and the dissenters in
AlmendarezTorres disagreed over the legitimacy of the
Court's decision to restrict its holding to recidivism, but both
sides agreed that the Court had done just that"). Both the
certainty that procedural safeguards attached to any "fact" of
prior conviction, and the reality that Almendarez-Torres did not
challenge the accuracy of that "fact" in his case, mitigated the
due process and Sixth Amendment concerns otherwise implicated in
allowing a judge to determine a "fact" increasing punishment beyond
the maximum of the statutory range.14
14 The principal dissent's contention that our decision in
Monge v.
California, 524 U. S. 721 (1998),
"demonstrates that
Almendarez-Torres was" something other
than a limited exception to the jury trial rule is both
489
Even though it is arguable that
Almendarez-Torres was
incorrectly decided,15 and that a logical application of our
reasoning today should apply if the recidivist issue were
inaccurate and misleading.
Post, at 536.
Monge was
another recidivism case in which the question presented and the
bulk of the Court's analysis related to the scope of double
jeopardy protections in sentencing. The dissent extracts from that
decision the majority's statement that "the Court has rejected an
absolute rule that an enhancement constitutes an element of the
offense any time that it increases the maximum sentence." 524 U.
S., at 729. Far from being part of "reasoning essential" to the
Court's holding,
post, at 536, that statement was in
response to a dissent by JUSTICE SCALIA on an issue that the Court
itself had, a few sentences earlier, insisted "was neither
considered by the state courts nor discussed in petitioner's brief
before this Court." 524 U. S., at 728. Moreover, the sole citation
supporting the
Monge Court's proposition that "the Court has
rejected" such a rule was none other than
Almendarez-Torres;
as we have explained, that case simply cannot bear that broad
reading. Most telling of
Monge's distance from the issue at
stake in this case is that the double jeopardy question in
Monge arose because the State had failed to satisfy its own
statutory burden of proving beyond a reasonable doubt that the
defendant had committed a prior offense (and was therefore subject
to an enhanced, recidivism-based sentence). 524 U. S., at 725
("According to California law, a number of procedural safeguards
surround the assessment of prior conviction allegations: Defendants
may invoke the right to a jury trial ... ; the prosecution must
prove the allegations beyond a reasonable doubt; and the rules of
evidence apply"). The Court thus itself warned against a contrary
double jeopardy rule that could "create disincentives that would
diminish these important procedural protections."
Id., at
734.
15 In addition to the reasons set forth in JUSTICE SCALIA'S
dissent, 523 U. S., at 248-260, it is noteworthy that the Court's
extensive discussion of the term "sentencing factor" virtually
ignored the pedigree of the pleading requirement at issue. The rule
was succinctly stated by Justice Clifford in his separate opinion
in
United States v.
Reese, 92 U. S. 214, 232-233
(1876): "[T]he indictment must contain an allegation of every fact
which is legally essential to the punishment to be inflicted." As
he explained in "[s]peaking of that principle, Mr. Bishop says it
pervades the entire system of the adjudged law of criminal
procedure, as appears by all the cases; that, wherever we move in
that department of our jurisprudence, we come in contact with it;
and that we can no more escape from it than from
490
contested, Apprendi does not contest the decision's validity and
we need not revisit it for purposes of our decision today to treat
the case as a narrow exception to the general rule we recalled at
the outset. Given its unique facts, it surely does not warrant
rejection of the otherwise uniform course of decision during the
entire history of our jurisprudence.
In sum, our reexamination of our cases in this area, and of the
history upon which they rely, confirms the opinion that we
expressed in
Jones. Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt. With that exception, we endorse
the statement of the rule set forth in the concurring opinions in
that case: "[I]t is unconstitutional for a legislature to remove
from the jury the assessment of facts that increase the prescribed
range of penalties to which a criminal defendant is exposed. It is
equally clear that such facts must be established by proof beyond a
reasonable doubt." 526 U. S., at 252-253 (opinion of STEVENS, J.);
see also
id., at 253 (opinion of SCALIA, J.).16
the atmosphere which surrounds us. 1 Bishop, Cr. Pro., 2d ed.,
sect. 81; Archbold's Crim. Plead., 15th ed., 54; 1 Stark Crim.
Plead., 236; 1 Am. Cr. Law, 6th rev. ed., sect. 364;
Steel
v.
Smith, 1 Barn. & Ald. 99."
16 The principal dissent would reject the Court's rule as a
"meaningless formalism," because it can conceive of hypothetical
statutes that would comply with the rule and achieve the same
result as the New Jersey statute.
Post, at 539-542. While a
State could, hypothetically, undertake to revise its entire
criminal code in the manner the dissent suggests,
post, at
540-extending all statutory maximum sentences to, for example, 50
years and giving judges guided discretion as to a few specially
selected factors within that range-this possibility seems remote.
Among other reasons, structural democratic constraints exist to
discourage legislatures from enacting penal statutes that expose
every defendant convicted of, for example, weapons
possession, to a maximum sentence exceeding that which is, in the
legislature's judgment, generally proportional to the crime. This
is as it should be. Our rule ensures that a State is obliged "to
make its choices concerning the substantive content of its criminal
laws with full awareness of the consequences, unable to mask
substantive policy choices"
491
v
The New Jersey statutory scheme that Apprendi asks us to
invalidate allows a jury to convict a defendant of a second-degree
offense based on its finding beyond a reasonable doubt that he
unlawfully possessed a prohibited weapon; after a subsequent and
separate proceeding, it then allows a judge to impose punishment
identical to that New Jersey provides for crimes of the first
degree, N. J. Stat. Ann. § 2C:43-6(a)(1) (West 1999), based upon
the judge's finding, by a preponderance of the evidence, that the
defendant's "purpose" for unlawfully possessing the weapon was "to
intimidate" his victim on the basis of a particular characteristic
the victim possessed. In light of the constitutional rule ex-
of exposing all who are convicted to the maximum sentence it
provides.
Patterson v.
New York, 432 U. S., at
228-229, n. 13 (Powell, J., dissenting). So exposed, "[t]he
political check on potentially harsh legislative action is then
more likely to operate."
Ibid.
In all events, if such an extensive revision of the State's
entire criminal code were enacted for the purpose the dissent
suggests, or if New Jersey simply reversed the burden of the hate
crime finding (effectively assuming a crime was performed with a
purpose to intimidate and then requiring a defendant to prove that
it was not,
post, at 542), we would be required to question
whether the revision was constitutional under this Court's prior
decisions. See
Patterson, 432 U. S., at 210;
Mullaney
v.
Wilbur, 421
U. S. 684,698-702 (1975).
Finally, the principal dissent ignores the distinction the Court
has often recognized, see,
e. g., Martin v.
Ohio,
480 U. S. 228
(1987), between facts in aggravation of punishment and facts in
mitigation. See
post, at 541542. If facts found by a jury
support a guilty verdict of murder, the judge is authorized by that
jury verdict to sentence the defendant to the maximum sentence
provided by the murder statute. If the defendant can escape the
statutory maximum by showing, for example, that he is a war
veteran, then a judge that finds the fact of veteran status is
neither exposing the defendant to a deprivation of liberty greater
than that authorized by the verdict according to statute, nor is
the judge imposing upon the defendant a greater stigma than that
accompanying the jury verdict alone. Core concerns animating the
jury and burden-of-proof requirements are thus absent from such a
scheme.
492
plained above, and all of the cases supporting it, this practice
cannot stand.
New Jersey's defense of its hate crime enhancement statute has
three primary components: (1) The required finding of biased
purpose is not an "element" of a distinct hate crime offense, but
rather the traditional "sentencing factor" of motive; (2)
McMillan holds that the legislature can authorize a judge to
find a traditional sentencing factor on the basis of a
preponderance of the evidence; and (3)
Almendarez-Torres
extended
McMillan's holding to encompass factors that
authorize a judge to impose a sentence beyond the maximum provided
by the substantive statute under which a defendant is charged. None
of these persuades us that the constitutional rule that emerges
from our history and case law should incorporate an exception for
this New Jersey statute.
New Jersey's first point is nothing more than a disagreement
with the rule we apply today. Beyond this, we do not see how the
argument can succeed on its own terms. The state high court evinced
substantial skepticism at the suggestion that the hate crime
statute's "purpose to intimidate" was simply an inquiry into
"motive." We share that skepticism. The text of the statute
requires the factfinder to determine whether the defendant
possessed, at the time he committed the subject act, a "purpose to
intimidate" on account of,
inter alia, race. By its very
terms, this statute mandates an examination of the defendant's
state of minda concept known well to the criminal law as the
defendant's
mens rea.17 It makes no difference in
identifying the nature
17 Among the most common definitions of
mens rea is
"criminal intent."
Black's Law Dictionary 1137 (rev. 4th ed. 1968). That dictionary
un surprisingly defines "purpose" as synonymous with intent,
id., at 1400, and "intent" as, among other things, "a state
of mind,"
id., at 947. But we need not venture beyond New
Jersey's own criminal code for a definition of purpose that makes
it central to the description of a criminal offense. As the
dissenting judge on the state appeals court pointed out, according
to the New Jersey Criminal Code, "[a] person acts purposely with
respect to the nature of his conduct or a result thereof if it is
his conscious object
493
of this finding that Apprendi was also required, in order to
receive the sentence he did for weapons possession, to have
possessed the weapon with a "purpose to use [the weapon] unlawfully
against the person or property of another," § 2C:39-4(a). A second
mens rea requirement hardly defeats the reality that the
enhancement statute imposes of its own force an intent requirement
necessary for the imposition of sentence. On the contrary, the fact
that the language and structure of the "purpose to use" criminal
offense is identical in relevant respects to the language and
structure of the "purpose to intimidate" provision demonstrates to
us that it is precisely a particular criminal
mens rea that
the hate crime enhancement statute seeks to target. The defendant's
intent in committing a crime is perhaps as close as one might hope
to come to a core criminal offense "element." 18
to engage in conduct of that nature or to cause such a result."
N. J. Stat. Ann. § 2C:2-2(b)(1) (West 1999). The hate crime
statute's application to those who act "with a
purpose to
intimidate because of" certain statusbased characteristics
places it squarely within the inquiry whether it was a defendant's
"conscious object" to intimidate for that reason.
18 Whatever the effect of the State Supreme Court's comment that
the law here targets "motive," 159 N. J. 7,20,731 A. 2d 485, 492
(1999)-and it is highly doubtful that one could characterize that
comment as a "binding" interpretation of the state statute, see
Wisconsin v.
Mitchell, 508 U. S., at 483-484
(declining to be bound by state court's characterization of state
law's "operative effect"), even if the court had not immediately
thereafter called into direct question its "ability to view this
finding as merely a search for motive," 159 N. J., at 21, 731 A.
2d, at 492-a State cannot through mere characterization change the
nature of the conduct actually targeted. It is as clear as day that
this hate crime law defines a particular kind of prohibited
intent, and a particular intent is more often than not the
sine qua non of a violation of a criminal law.
When the principal dissent at long last confronts the actual
statute at issue in this case in the final few pages of its
opinion, it offers in response to this interpretation only that our
reading is contrary to "settled precedent" in
Mitchell.
Post, at 553. Setting aside the fact that Wisconsin's hate
crime statute was, in text and substance, different from New
Jersey's,
Mitchell did not even begin to consider whether
the Wisconsin hate crime
494
The foregoing notwithstanding, however, the New Jersey Supreme
Court correctly recognized that it does not matter whether the
required finding is characterized as one of intent or of motive,
because "[l]abels do not afford an acceptable answer." 159 N. J.,
at 20, 731 A. 2d, at 492. That point applies as well to the
constitutionally novel and elusive distinction between "elements"
and "sentencing factors."
McMillan, 477 U. S., at 86 (noting
that the sentencing factor-visible possession of a firearm-"might
well have been included as an element of the enumerated offenses").
Despite what appears to us the clear "elemental" nature of the
factor here, the relevant inquiry is one not of form, but of
effect-does the required finding expose the defendant to a greater
punishment than that authorized by the jury's guilty verdict?
19
As the New Jersey Supreme Court itself understood in rejecting
the argument that the required "motive" finding was simply a
"traditional" sentencing factor, proof of motive did not ordinarily
"increase the penal consequences to an actor." 159 N. J., at 20,
731 A. 2d, at 492. Indeed, the effect of New Jersey's sentencing
"enhancement" here is unquestionably to turn a second-degree
offense into a first-degree offense, under the State's own criminal
code. The law thus runs directly into our warning in
Mullaney that
Winship is
requirement was an offense "element" or not; it did not have
to-the required finding under the Wisconsin statute was made by the
jury.
19 This is not to suggest that the term "sentencing factor" is
devoid of meaning. The term appropriately describes a circumstance,
which may be either aggravating or mitigating in character, that
supports a specific sentence
within the range authorized by
the jury's finding that the defendant is guilty of a particular
offense. On the other hand, when the term "sentence enhancement" is
used to describe an increase beyond the maximum authorized
statutory sentence, it is the functional equivalent of an element
of a greater offense than the one covered by the jury's guilty
verdict. Indeed, it fits squarely within the usual definition of an
"element" of the offense. See
post, at 501-502 (THOMAS, J.,
concurring) (reviewing the relevant authorities).
495
concerned as much with the category of substantive offense as
"with the degree of criminal culpability" assessed. 421 U. S., at
698. This concern flows not only from the historical pedigree of
the jury and burden rights, but also from the powerful interests
those rights serve. The degree of criminal culpability the
legislature chooses to associate with particular, factually
distinct conduct has significant implications both for a
defendant's very liberty, and for the heightened stigma associated
with an offense the legislature has selected as worthy of greater
punishment.
The preceding discussion should make clear why the State's
reliance on
McMillan is likewise misplaced. The differential
in sentence between what Apprendi would have received without the
finding of biased purpose and what he could receive with it is not,
it is true, as extreme as the difference between a small fine and
mandatory life imprisonment.
Mullaney, 421 U. S., at 700.
But it can hardly be said that the potential doubling of one's
sentence-from 10 years to 20-has no more than a nominal effect.
Both in terms of absolute years behind bars, and because of the
more severe stigma attached, the differential here is
unquestionably of constitutional significance. When a judge's
finding based on a mere preponderance of the evidence authorizes an
increase in the maximum punishment, it is appropriately
characterized as "a tail which wags the dog of the substantive
offense."
McMillan, 477 U. S., at 88.
New Jersey would also point to the fact that the State did not,
in placing the required biased purpose finding in a sentencing
enhancement provision, create a "separate offense calling for a
separate penalty."
Ibid. As for this, we agree
wholeheartedly with the New Jersey Supreme Court that merely
because the state legislature placed its hate crime sentence
"enhancer" "within the sentencing provisions" of the criminal code
"does not mean that the finding of a biased purpose to intimidate
is not an essential element of the offense." 159 N. J., at 20, 731
A. 2d, at 492. Indeed,
496
the fact that New Jersey, along with numerous other States, has
also made precisely the same conduct the subject of an independent
substantive offense makes it clear that the mere presence of this
"enhancement" in a sentencing statute does not define its
character.2o
New Jersey's reliance on
Almendarez-Torres is also
unavailing. The reasons supporting an exception from the general
rule for the statute construed in that case do not apply to the New
Jersey statute. Whereas recidivism "does not relate to the
commission of the offense" itself, 523 U. S., at 230, 244, New
Jersey's biased purpose inquiry goes precisely to what happened in
the "commission of the offense." Moreover, there is a vast
difference between accepting the validity of a prior judgment of
conviction entered in a proceeding in which the defendant had the
right to a jury trial and the right to require the prosecutor to
prove guilt beyond a reasonable doubt, and allowing the judge to
find the required fact under a lesser standard of proof.
Finally, this Court has previously considered and rejected the
argument that the principles guiding our decision today render
invalid state capital sentencing schemes requiring judges, after a
jury verdict holding a defendant guilty of a capital crime, to find
specific aggravating factors before imposing a sentence of death.
Walton v.
Arizona, 497 U. S. 639,647-649
(1990);
id., at 709-714 (STEVENS, J., dissenting). For
reasons we have explained, the capital cases are not
controlling:
20 Including New Jersey, N. J. Stat. Ann. §
2C:33-4 (West
Supp. 2000) ("A person commits a crime of the fourth degree if in
committing an offense [of harassment] under this section, he acted
with a purpose to intimidate an individual or group of individuals
because of race, color, religion, gender, handicap, sexual
orientation or ethnicity"), 26 States currently have laws making
certain acts of racial or other bias freestanding violations of the
criminal law, see generally F. Lawrence, Punishing Hate: Bias
Crimes Under American Law 178-189 (1999) (listing current state
hate crime laws).
497
"Neither the cases cited, nor any other case, permits a judge to
determine the existence of a factor which makes a crime a capital
offense. What the cited cases hold is that, once a jury has found
the defendant guilty of all the elements of an offense which
carries as its maximum penalty the sentence of death, it may be
left to the judge to decide whether that maximum penalty, rather
than a lesser one, ought to be imposed .... The person who is
charged with actions that expose him to the death penalty has an
absolute entitlement to jury trial on all the elements of the
charge." AlmendarezTorres, 523 U. S., at 257, n. 2 (SCALIA,
J., dissenting) (emphasis deleted).
See also
Jones, 526 U. S., at 250-251;
post, at
520-522 (THOMAS, J., concurring).21
***
The New Jersey procedure challenged in this case is an
unacceptable departure from the jury tradition that is an
indispensable part of our criminal justice system. Accordingly, the
judgment of the Supreme Court of New Jersey is reversed, and the
case is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
21 The principal dissent, in addition, treats us to a lengthy
disquisition on the benefits of determinate sentencing schemes, and
the effect of today's decision on the federal Sentencing
Guidelines.
Post, at 544-552. The Guidelines are, of course,
not before the Court. We therefore express no view on the subject
beyond what this Court has already held. See,
e. g.,
Edwards v.
United States, 523 U. S. 511, 515 (1998)
(opinion of BREYER, J., for a unanimous court) (noting that "[o]f
course, petitioners' statutory and constitutional claims would make
a difference if it were possible to argue, say, that the sentences
imposed exceeded the maximum that the statutes permit for a
cocaine-only conspiracy. That is because a maximum sentence set by
statute trumps a higher sentence set forth in the Guidelines.
[United States Sentencing Commission, Guidelines Manual § 5Gl.l
(Nov. 1994)]").
498
JUSTICE SCALIA, concurring.
I feel the need to say a few words in response to JUSTICE
BREYER'S dissent. It sketches an admirably fair and efficient
scheme of criminal justice designed for a society that is prepared
to leave criminal justice to the State. (Judges, it is sometimes
necessary to remind ourselves, are part of the State-and an
increasingly bureaucratic part of it, at that.) The founders of the
American Republic were not prepared to leave it to the State, which
is why the jury-trial guarantee was one of the least controversial
provisions of the Bill of Rights. It has never been efficient; but
it has always been free.
As for fairness, which JUSTICE BREYER believes "[i]n modern
times,"
post, at 555, the jury cannot provide: I think it
not unfair to tell a prospective felon that if he commits his
contemplated crime he is exposing himself to a jail sentence of 30
years-and that if, upon conviction, he gets anything less than that
he may thank the mercy of a tenderhearted judge (just as he may
thank the mercy of a tenderhearted parole commission if he is let
out inordinately early, or the mercy of a tenderhearted governor if
his sentence is commuted). Will there be disparities? Of course.
But the criminal will never get
more punishment than he
bargained for when he did the crime, and his guilt of the crime
(and hence the length of the sentence to which he is exposed) will
be determined
beyond a reasonable doubt by the unanimous vote
of 12
of his fellow citizens.
In JUSTICE BREYER'S bureaucratic realm of perfect equity, by
contrast, the facts that determine the length of sentence to which
the defendant is exposed will be determined to exist (on a
more-likely-than-not basis) by a single employee of the State. It
is certainly arguable (JUSTICE BREYER argues it) that this
sacrifice of prior protections is worth it. But it is not arguable
that, just because one thinks it is a better system, it must be, or
is even more likely to be, the system envisioned by a Constitution
that guarantees trial by jury. What ultimately demolishes the case
for the dis-
499
senters is that they are unable to say what the right to trial
by jury
does guarantee if, as they assert, it does not
guarantee-what it has been assumed to guarantee throughout our
history-the right to have a jury determine those facts that
determine the maximum sentence the law allows. They provide no
coherent alternative.
JUSTICE BREYER proceeds on the erroneous and all-toocommon
assumption that the Constitution means what we think it ought to
mean. It does not; it means what it says. And the guarantee that
"[i]n all criminal prosecutions, the accused shall enjoy the right
to ... trial, by an impartial jury," has no intelligible content
unless it means that all the facts which must exist in order to
subject the defendant to a legally prescribed punishment
must be found by the jury.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Parts I and
II, concurring.
I join the opinion of the Court in full. I write separately to
explain my view that the Constitution requires a broader rule than
the Court adopts.
I
This case turns on the seemingly simple question of what
constitutes a "crime." Under the Federal Constitution, "the
accused" has the right (1) "to be informed of the nature and cause
of the accusation" (that is, the basis on which he is accused of a
crime), (2) to be "held to answer for a capital, or otherwise
infamous crime" only on an indictment or presentment of a grand
jury, and (3) to be tried by "an impartial jury of the State and
district wherein the crime shall have been committed." Amdts. 5 and
6. See also Art. III, § 2, cl. 3 ("The Trial of all Crimes ...
shall be by Jury"). With the exception of the Grand Jury Clause,
see
Hurtado v.
California, 110 U. S. 516, 538
(1884), the Court has held that these protections apply in state
prosecutions,
Herring v.
New York, 422 U. S. 853, 857, and
n. 7 (1975). Further, the Court has held that due process requires
that the jury find
500
beyond a reasonable doubt every fact necessary to constitute the
crime.
In re Winship, 397 U. S. 358, 364
(1970).
All of these constitutional protections turn on determining
which facts constitute the "crime"-that is, which facts are the
"elements" or "ingredients" of a crime. In order for an accusation
of a crime (whether by indictment or some other form) to be proper
under the common law, and thus proper under the codification of the
common-law rights in the Fifth and Sixth Amendments, it must allege
all elements of that crime; likewise, in order for a jury trial of
a crime to be proper, all elements of the crime must be proved to
the jury (and, under
Winship, proved beyond a reasonable
doubt). See J. Story, Commentaries on the Constitution §§ 928929,
pp. 660-662, § 934, p. 664 (1833); J. Archbold, Pleading and
Evidence in Criminal Cases *41, *99-*100 (hereinafter
Archbold).l
Thus, it is critical to know which facts are elements. This
question became more complicated following the Court's decision in
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), which
spawned a special sort of fact known as a sentencing enhancement.
See
ante, at 478, 485, 494. Such a fact increases a
defendant's punishment but is not subject to the constitutional
protections to which elements are subject. JUSTICE O'CONNOR'S
dissent, in agreement with
McMillan and
Almendarez-Torres v.
United States, 523 U. S. 224 (1998),
takes the view that a legislature is free (within unspecified outer
limits) to decree which facts are elements and which are sentencing
enhancements.
Post, at 524.
Sentencing enhancements may be new creatures, but the question
that they create for courts is not. Courts have
IJUSTICE O'CONNOR mischaracterizes my argument. See
post,
at 527528 (dissenting opinion). Of course the Fifth and Sixth
Amendments did not codify common-law procedure wholesale. Rather,
and as Story notes, they codified a few particular common-law
procedural rights. As I have explained, the scope of those rights
turns on what constitutes a "crime." In answering that question, it
is entirely proper to look to the common law.
501
long had to consider which facts are elements in order to
determine the sufficiency of an accusation (usually an indictment).
The answer that courts have provided regarding the accusation tells
us what an element is, and it is then a simple matter to apply that
answer to whatever constitutional right may be at issue in a
case-here,
Winship and the right to trial by jury. A long
line of essentially uniform authority addressing accusations, and
stretching from the earliest reported cases after the founding
until well into the 20th century, establishes that the original
understanding of which facts are elements was even broader than the
rule that the Court adopts today.
This authority establishes that a "crime" includes every fact
that is by law a basis for imposing or increasing punishment (in
contrast with a fact that mitigates punishment). Thus, if the
legislature defines some core crime and then provides for
increasing the punishment of that crime upon a finding of some
aggravating fact-of whatever sort, including the fact of a prior
conviction-the core crime and the aggravating fact together
constitute an aggravated crime, just as much as grand larceny is an
aggravated form of petit larceny. The aggravating fact is an
element of the aggravated crime. Similarly, if the legislature,
rather than creating grades of crimes, has provided for setting the
punishment of a crime based on some fact-such as a fine that is
proportional to the value of stolen goods-that fact is also an
element. No multifactor parsing of statutes, of the sort that we
have attempted since
McMillan, is necessary. One need only
look to the kind, degree, or range of punishment to which the
prosecution is by law entitled for a given set of facts. Each fact
necessary for that entitlement is an element.
II A
Cases from the founding to roughly the end of the Civil War
establish the rule that I have described, applying it to
502
all sorts of facts, including recidivism. As legislatures varied
common-law crimes and created new crimes, American courts,
particularly from the 1840's on, readily applied to these new laws
the common-law understanding that a fact that is by law the basis
for imposing or increasing punishment is an element.2
Massachusetts, which produced the leading cases in the
antebellum years, applied this rule as early as 1804, in
Commonwealth v.
Smith, 1 Mass. *245, and foreshadowed
the fuller discussion that was to come. Smith was indicted for and
found guilty of larceny, but the indictment failed to allege the
value of all of the stolen goods. Massachusetts had abolished the
common-law distinction between grand and simple larceny, replacing
it with a single offense of larceny whose punishment (triple
damages) was based on the value of the stolen goods. The prosecutor
relied on this abolition of the traditional distinction to justify
the indictment's omissions. The court, however, held that it could
not sentence the defendant for the stolen goods whose value was not
set out in the indictment.
Id., at *246-*247.
The understanding implicit in
Smith was explained in
Hope v.
Commonwealth, 50 Mass. 134 (1845). Hope was
indicted for and convicted of larceny. The larceny statute at
2 It is strange that JUSTICE O'CONNOR faults me for beginning my
analysis with cases primarily from the 1840's, rather from the time
of the founding. See
post, at 527-528 (dissenting opinion).
As the Court explains,
ante, at 478-480, and as she
concedes,
post, at 525 (O'CONNOR, J., dissenting), the very
idea of a sentencing enhancement was foreign to the common law of
the time of the founding. JUSTICE O'CONNOR therefore, and
understandably, does not contend that any history from the founding
supports her position. As far as I have been able to tell, the
argument that a fact that was by law the basis for imposing or
increasing punishment might not be an element did not seriously
arise (at least not in reported cases) until the 1840's. As I
explain below, from that time on-for at least a century-essentially
all authority rejected that argument, and much of it did so in
reliance upon the common law. I find this evidence more than
sufficient.
503
issue retained the single-offense structure of the statute
addressed in
Smith, and established two levels of sentencing
based on whether the value of the stolen property exceeded $100.
The statute was structured similarly to the statutes that we
addressed in
Jones v.
United States, 526 U. S. 227, 230
(1999), and, even more,
Castillo v.
United States,
ante, at 122, in that it first set out the core crime and then,
in subsequent clauses, set out the ranges of punishments.3 Further,
the statute opened by referring simply to "the offence of larceny,"
suggesting, at least from the perspective of our
post-McMillan cases, that larceny was the crime whereas the
value of the stolen property was merely a fact for sentencing. But
the matter was quite simple for the Massachusetts high court. Value
was an element because punishment varied with value:
"Our statutes, it will be remembered, prescribe the punishment
for larceny, with reference to the value of the property stolen;
and for this reason, as well as because it is in conformity with
long established practice, the court are of opinion that the value
of the property alleged to be stolen must be set forth in the
indictment." 50 Mass., at 137.
Two years after
Hope, the court elaborated on this rule
in a case involving burglary, stating that if "certain acts are, by
force of the statutes, made punishable with greater severity, when
accompanied with aggravating circumstances," then
3 The Massachusetts statute provided: "Every person who shall
commit the offence of larceny, by stealing of the property of
another any money, goods or chattels [or other sort of property],
if the property stolen shall exceed the value of one hundred
dollars, shall be punished by imprisonment in the state prison, not
more than five years, or by fine not exceeding six hundred dollars,
and imprisonment in the county jail, not more than two years; and
if the property stolen shall not exceed the value of one hundred
dollars, he shall be punished by imprisonment in the state prison
or the county jail, not more than one year, or by fine not
exceeding three hundred dollars." Mass. Rev. Stat., ch. 126, § 17
(1836).
504
the statute has "creat[ed] two grades of crime."
Larned
v.
Commonwealth, 53 Mass. 240, 242 (1847). See also
id., at 241 ("[T]here is a gradation of offences of the same
species" where the statute sets out "various degrees of
punishment").
Conversely, where a fact was
not the basis for
punishment, that fact was, for that reason, not an element. Thus,
in
Commonwealth v.
McDonald, 59 Mass. 365 (1850),
which involved an indictment for attempted larceny from the person,
the court saw no error in the failure of the indictment to allege
any value of the goods that the defendant had attempted to steal.
The defendant, in challenging the indictment, apparently relied on
Smith and
Hope, and the court rejected his challenge
by explaining that "[a]s the punishment ... does not depend on the
amount stolen, there was no occasion for any allegation as to value
in this indictment." 59 Mass., at 367. See
Commonwealth v.
Burke, 94 Mass. 182, 183 (1866) (applying same reasoning to
completed larceny from the person; finding no trial error where
value was not proved to jury).
Similar reasoning was employed by the Wisconsin Supreme Court in
Lacy v.
State, 15 Wis. *13 (1862), in interpreting a
statute that was also similar to the statutes at issue in
Jones and
Castillo. The statute, in a single
paragraph, outlawed arson of a dwelling house at night. Arson that
killed someone was punishable by life in prison; arson that did not
kill anyone was punishable by 7 to 14 years in prison; arson of a
house in which no person was lawfully dwelling was punishable by 3
to 10 years.4 The court had no trouble
4 The Wisconsin statute provided: "Every person who shall
willfully and maliciously burn, in the night time, the dwelling
house of another, whereby the life of any person shall be
destroyed, or shall in the night time willfully and maliciously set
fire to any other building, owned by himself or another, by the
burning whereof such dwelling house shall be burnt in the night
time, whereby the life of any person shall be destroyed, shall
suffer the same punishment as provided for the crime of murder in
the second degree; but if the life of no person shall have been
destroyed, he shall be punished by imprisonment in the state
prison, not more than fourteen
505
concluding that the statute "creates three distinct statutory
offenses," 15 Wis., at *15, and that the lawful presence of a
person in the dwelling was an element of the middle offense. The
court reasoned from the gradations of punishment:
"That the legislature considered the circumstance that a person
was lawfully in the dwelling house when fire was set to it most
material and important, and as greatly aggravating the crime, is
clear from the severity of the punishment imposed."
Id., at
*16. The "aggravating circumstances" created "the higher statutory
offense[s]."
Id., at *17. Because the indictment did not
allege that anyone had been present in the dwelling, the court
reversed the defendant's 14-year sentence, but, relying on
Larned, supra, the court remanded to permit sentencing under
the lowest grade of the crime (which was properly alleged in the
indictment). 15 Wis., at *17.
Numerous other state and federal courts in this period took the
same approach to determining which facts are elements of a crime.
See
Ritchey v.
State, 7 Blackf. 168, 169 (Ind. 1844)
(citing
Commonwealth v.
Smith, 1 Mass. *245 (1804),
and holding that indictment for arson must allege value of property
destroyed, because statute set punishment based on value);
Spencer v.
State, 13 Ohio 401, 406, 408 (1844)
(holding that value of goods intended to be stolen is not "an
ingredient of the crime" of burglary with intent to steal, because
punishment under statute did not depend on value; contrasting
larceny, in which "[v]alue must be laid, and value proved, that the
jury may find it, and the court, by that means, know whether it is
grand or petit, and apply the grade of punishment the statute
awards");
United States v.
Fisher, 25 F. Cas. 1086
(CC Ohio 1849) (McLean, J.) ("A car-
years nor less than seven years; and if at the time of
committing the offense there was no person lawfully in the dwelling
house so burnt, he shall be punished by imprisonment in the state
prison, not more than ten years nor less than three years." Wis.
Rev. Stat., ch. 165, § 1 (1858). The punishment for second-degree
murder was life in prison. Ch. 164, § 2.
506
rier of the mail is subject to a higher penalty where he steals
a letter out of the mail, which contains an article of value. And
when this offense is committed, the indictment must allege the
letter contained an article of value, which aggravates the offense
and incurs a higher penalty");
Brightwell v.
State,
41 Ga. 482, 483 (1871) ("When the law prescribes a different
punishment for different phases of the same crime, there is good
reason for requiring the indictment to specify which of the phases
the prisoner is charged with. The record ought to show that the
defendant is convicted of the offense for which he is sentenced").
Cf.
State v.
Farr, 12 Rich. 24, 29 (S. C. App. 1859)
(where two statutes barred purchasing corn from a slave, and one
referred to purchasing from slave who lacked a permit, absence of
permit was not an element, because both statutes had the same
punishment).
Also demonstrating the common-law approach to determining
elements was the well-established rule that, if a statute increased
the punishment of a common-law crime, whether felony or
misdemeanor, based on some fact, then that fact must be charged in
the indictment in order for the court to impose the increased
punishment. Archbold *106; see
id., at *50;
ante, at
480-481. There was no question of treating the statutory
aggravating fact as merely a sentencing enhancement-as a nonelement
enhancing the sentence of the common-law crime. The aggravating
fact was an element of a new, aggravated grade of the common-law
crime simply because it increased the punishment of the common-law
crime. And the common-law crime was, in relation to the statutory
one, essentially just like any other lesser included offense. See
Archbold *106.
Further evidence of the rule that a crime includes every fact
that is by law a basis for imposing or increasing punishment comes
from early cases addressing recidivism statutes. As JUSTICE SCALIA
has explained, there was a tradition of treating recidivism as an
element. See
Almendarez-Torres, 523 U. S., at 256-257, 261
(dissenting opinion). That tradi-
507
tion stretches back to the earliest years of the Republic. See,
e. g., Commonwealth v.
Welsh, 4 Va. 57 (1817);
Smith v.
Commonwealth, 14 Sergo & Rawle 69 (Pa.
1826); see also Archbold *695-*696. For my purposes, however, what
is noteworthy is not so much the fact of that tradition as the
reason for it: Courts treated the fact of a prior conviction just
as any other fact that increased the punishment by law. By the same
reasoning that the courts employed in
Hope, Lacy, and the
other cases discussed above, the fact of a prior conviction was an
element, together with the facts constituting the core crime of
which the defendant was charged, of a new, aggravated crime.
The two leading antebellum cases on whether recidivism is an
element were
Plumbly v.
Commonwealth, 43 Mass. 413
(1841), and
Tuttle v.
Commonwealth, 68 Mass. 505
(1854). In the latter, the court explained the reason for treating
as an element the fact of the prior conviction:
"When the statute imposes a higher penalty upon a second and
third conviction, respectively, it makes the prior conviction of a
similar offence a part of the description and character of the
offence intended to be punished; and therefore the fact of such
prior conviction must be charged, as well as proved. It is
essential to an indictment, that the facts constituting the offence
intended to be punished should be averred." Id., at 506.
The court rested this rule on the common law and the
Massachusetts equivalent of the Sixth Amendment's Notice Clause.
Ibid. See also
Commonwealth v.
Haynes, 107
Mass. 194, 198 (1871) (reversing sentence, upon confession of error
by attorney general, in case similar to
Tuttle).
Numerous other cases treating the fact of a prior conviction as
an element of a crime take the same view. They make clear, by both
their holdings and their language, that when a statute increases
punishment for some core crime based on the fact of a prior
conviction, the core crime and
508
the fact of the prior crime together create a new, aggravated
crime.
Kilbourn v.
State, 9 Conn. 560, 563 (1833)
("No person ought to be, or can be, subjected to a cumulative
penalty, without being charged with a cumulative offence");
Plumbly, supra, at 414 (conviction under recidivism statute
is "one conviction, upon one aggregate offence");
Hines v.
State, 26 Ga. 614, 616 (1859) (reversing enhanced sentence
imposed by trial judge and explaining: "[T]he question, whether the
offence was a second one, or not, was a question for the jury ....
The allegation [of a prior offence] is certainly one of the first
importance to the accused, for if it is true, he becomes subject to
a greatly increased punishment"). See also
Commonwealth v.
Phillips, 28 Mass. 28, 33 (1831) ("[U]pon a third
conviction, the court may sentence the convict to hard labor for
life. The punishment is to be awarded upon that conviction, and for
the offence of which he is then and there convicted").
Even the exception to this practice of including the fact of a
prior conviction in the indictment and trying it to the jury helps
to prove the rule that that fact is an element because it increases
the punishment by law. In
State v.
Freeman, 27 Vt.
523 (1855), the Vermont Supreme Court upheld a statute providing
that, in an indictment or complaint for violation of a liquor law,
it was not necessary to allege a prior conviction of that law in
order to secure an increased sentence. But the court did not hold
that the prior conviction was not an element; instead, it held that
the liquor law created only minor offenses that did not qualify as
crimes. Thus, the state constitutional protections that would
attach were a "crime" at issue did not apply.
Id., at 527;
see
Goeller v.
State, 119 Md. 61, 66-67, 85 A. 954,
956 (1912) (discussing
Freeman). At the same time, the court
freely acknowledged that it had "no doubt" of the general rule,
particularly as articulated in Massachusetts, that "it is necessary
to allege the former conviction, in the indictment, when a
higher
509
sentence is claimed on that account."
Freeman, supra, at
526. Unsurprisingly, then, a leading treatise explained
Freeman as only "apparently" contrary to the general rule
and as involving a "special statute." 3 F. Wharton, Criminal Law §
3417, p. 307, n.
r (7th rev. ed. 1874) (hereinafter
Wharton). In addition, less than a decade after
Freeman, the
same Vermont court held that if a defendant charged with a
successive violation of the liquor laws contested identitythat is,
whether the person in the record of the prior conviction was the
same as the defendant-he should be permitted to have a jury resolve
the question.
State v.
Haynes, 35 Vt. 570, 572-573
(1863).
(Freeman itself had anticipated this holding by
suggesting the use of a jury to resolve disputes over identity. See
27 Vt., at 528.) In so holding,
Haynes all but applied the
general rule, since a determination of identity was usually the
chief factual issue whenever recidivism was charged. See Archbold
*695-*696; see also,
e. g., Graham v.
West
Virginia, 224 U.
S. 616, 620-621 (1912) (defendant had been convicted under
three different names).5
5 Some courts read
State v.
Smith, 8 Rich. 460 (S.
C. App. 1832), a South Carolina case, to hold that the indictment
need not allege a prior conviction in order for the defendant to
suffer an enhanced punishment. See,
e. g., State v.
Burgett, 22 Ark. 323, 324 (1860) (so reading
Smith
and questioning its correctness). The
Smith court's holding
was somewhat unclear because the court did not state whether the
case involved a first or second offense-if a first, the court was
undoubtedly correct in rejecting the defendant's challenge to the
indictment, because there is no need in an indictment to negate the
existence of any prior offense. See
Burgett, supra, at 324
(reading indictment that was silent about prior offenses as only
charging first offense and as sufficient for that purpose). In
addition, the
Smith court did not acknowledge the
possibility of disputes over identity. Finally, the extent to which
the court's apparent holding was followed in practice in South
Carolina is unclear, and subsequent South Carolina decisions
acknowledged that
Smith was out of step with the general
rule. See
State v.
Parris, 89 S. C. 140, 141, 71 S.
E. 808, 809 (1911);
State v.
Mitchell, 220 S. C. 433,
434-436, 68 S. E. 2d 350, 351-352 (1951).
510
B
An 1872 treatise by one of the leading authorities of the era in
criminal law and procedure confirms the common-law understanding
that the above cases demonstrate. The treatise condensed the
traditional understanding regarding the indictment, and thus
regarding the elements of a crime, to the following: "[T]he
indictment must allege whatever is in law essential to the
punishment sought to be inflicted." 1 J. Bishop, Law of Criminal
Procedure 50 (2d ed. 1872) (hereinafter Bishop, Criminal
Procedure). See
id., § 81, at 51 ("[T]he indictment must
contain an allegation of every fact which is legally essential to
the punishment to be inflicted");
id., § 540, at 330 ("[T]he
indictment must ... contain an averment of every particular thing
which enters into the punishment"). Crimes, he explained, consist
of those "acts to which the law affixes ... punishment,"
id., § 80, at 51, or, stated differently, a crime consists
of the whole of "the wrong upon which the punishment is based,"
id., § 84, at 53. In a later edition, Bishop similarly
defined the elements of a crime as "that wrongful aggregation out
of which the punishment proceeds." 1 J. Bishop, New Criminal
Procedure § 84,
Bishop grounded his definition in both a generalization from
well-established common-law practice, 1 Bishop, Criminal Procedure
§§ 81-84, at 51-53, and in the provisions of Federal and State
Constitutions guaranteeing notice of an accusation in all criminal
cases, indictment by a grand jury for serious crimes, and trial by
jury. With regard to the common law, he explained that his rule was
"not made apparent to our understandings by a single case only, but
by all the cases,"
id., § 81, at 51, and was followed "in
all cases, without one exception,"
id., § 84, at 53. To
illustrate, he observed that there are
"various statutes whereby, when ... assault is committed with a
particular intent, or with a particular
511
weapon, or the like, it is subjected to a particular
corresponding punishment, heavier than that for common assault, or
differing from it, pointed out by the statute. And the reader will
notice that, in all cases where the peculiar or aggravated
punishment is to be inflicted, the peculiar or aggravating matter
is required to be set out in the indictment." Id., § 82, at
52.
He also found burglary statutes illustrative in the same way.
Id., § 83, at 52-53. Bishop made no exception for the fact
of a prior conviction-he simply treated it just as any other
aggravating fact: "[If] it is sought to make the sentence heavier
by reason of its being [a second or third offence], the fact thus
relied on must be averred in the indictment; because the rules of
criminal procedure require the indictment, in all cases, to contain
an averment of every fact essential to the punishment sought to be
inflicted." 1 J. Bishop, Commentaries on Criminal Law § 961, pp.
564-565 (5th ed. 1872).
The constitutional provisions provided further support, in his
view, because of the requirements for a proper accusation at common
law and because of the common-law understanding that a proper jury
trial required a proper accusation: "The idea of a jury trial, as
it has always been known where the common law prevails, includes
the allegation, as part of the machinery of the trial .... [A]n
accusation which lacks any particular fact which the law makes
essential to the punishment is ... no accusation within the
requirements of the common law, and it is no accusation in reason."
1 Bishop, Criminal Procedure § 87, at 55. See
id., § 88, at
56 (notice and indictment requirements ensure that before "persons
held for crimes ... shall be convicted, there shall be an
allegation made against them of every element of crime which the
law makes essential to the punishment to be inflicted").
Numerous high courts contemporaneously and explicitly agreed
that Bishop had accurately captured the common-law understanding of
what facts are elements of a crime. See,
512
e. g., Hobbs v.
State, 44 Tex. 353, 354 (1875)
(favorably quoting 1 Bishop, Criminal Procedure § 81);
Maguire v.
State, 47 Md. 485, 497 (1878) (approvingly
citing different Bishop treatise for the same rule);
Larney
v.
Cleveland, 34 Ohio St. 599, 600 (1878) (rule and reason
for rule "are well stated by Mr. Bishop");
State v.
Hayward, 83 Mo. 299, 307 (1884) (extensively quoting § 81 of
Bishop's "admirable treatise");
Riggs v.
State, 104
Ind. 261, 262, 3 N. E. 886, 887 (1885) ("We agree with Mr. Bishop
that the nature and cause of the accusation are not stated where
there is no mention of the full act or series of acts for which the
punishment is to be inflicted" (internal quotation marks omitted));
State v.
Perley, 86 Me. 427, 431, 30 A. 74, 75 (1894)
("The doctrine of the court, says Mr. Bishop, is identical with
that of reason, viz: that the indictment must contain an allegation
of every fact which is legally essential to the punishment to be
inflicted" (internal quotation marks omitted)); see also
United
States v.
Reese, 92 U. S. 214, 232-233
(1876) (Clifford, J., concurring in judgment) (citing and
paraphrasing 1 Bishop, Criminal Procedure § 81).
C
In the half century following publication of Bishop's treatise,
numerous courts applied his statement of the commonlaw
understanding; most of them explicitly relied on his treatise. Just
as in the earlier period, every fact that was by law a basis for
imposing or increasing punishment (including the fact of a prior
conviction) was an element. Each such fact had to be included in
the accusation of the crime and proved to the jury.
Courts confronted statutes quite similar to the ones with which
we have struggled since
McMillan, and, applying the
traditional rule, they found it not at all difficult to determine
whether a fact was an element. In
Hobbs, supra, the
defendant was indicted for a form of burglary punishable by 2 to 5
years in prison. A separate statutory section provided for an
increased sentence, up to double the punishment
513
to which the defendant would otherwise be subject, if the entry
into the house was effected by force exceeding that incidental to
burglary. The trial court instructed the jury to sentence the
defendant to 2 to 10 years if it found the requisite level of
force, and the jury sentenced him to 3. The Texas Supreme Court,
relying on Bishop, reversed because the indictment had not alleged
such force; even though the jury had sentenced Hobbs within the
range (2 to 5 years) that was permissible under the lesser crime
that the indictment had charged, the court thought it "impossible
to say ... that the erroneous charge of the court may not have had
some weight in leading the jury" to impose the sentence that it
did. 44 Tex., at 355.6 See also
Searcy v.
State, 1
Tex. App. 440, 444 (1876) (similar);
Garcia v.
State,
19 Tex. App. 389, 393 (1885) (not citing
Hobbs, but relying
on Bishop to reverse 10-year sentence for assault with a bowie
knife or dagger, where statute doubled range for assault from 2 to
7 to 4 to 14 years if the assault was committed with either weapon
but where indictment had not so alleged).
As in earlier cases, such as
McDonald (discussed
supra, at 504), courts also used the converse of the Bishop
rule to explain when a fact was not an element of the crime. In
Perley, supra, the defendant was indicted for and convicted
of robbery, which was punishable by imprisonment for life
6 The gulf between the traditional approach to determining
elements and that of our recent cases is manifest when one
considers how one might, from the perspective of those cases,
analyze the issue in
Hobbs. The chapter of the Texas code
addressing burglary was entitled simply "Of Burglary" and began
with a section explicitly defining "the offense of burglary." After
a series of sections defining terms, it then set out six separate
sections specifying the punishment for various kinds of burglary.
The section regarding force was one of these. See 1 G. Paschal,
Digest of Laws of Texas, Part II, Tit. 20, ch. 6, pp. 462-463 (4th
ed. 1875). Following an approach similar to that in
Almendarez-Torres v.
United States, 523 U. S. 224, 231-234,
242-246 (1998), and
Castillo v.
United States, ante,
at 124-125, one would likely find a clear legislative intent to
make force a sentencing enhancement rather than an element.
514
or any term of years. The court, relying on Bishop,
Hope,
McDonald, and other authority, rejected his argument that Maine's
Notice Clause (which of course required all elements to be alleged)
required the indictment to allege the value of the goods stolen,
because the punishment did not turn on value: "[T]here is no
provision of this statute which makes the amount of property taken
an essential element of the offense; and there is no statute in
this State which creates degrees in robbery, or in any way makes
the punishment of the offense dependent upon the value of the
property taken." 86 Me., at 432, 30 A., at 75. The court further
explained that "where the value is not essential to the punishment
it need not be distinctly alleged or proved."
Id., at 433,
30 A., at 76.
Reasoning similar to
Perley and the Texas cases is
evident in other cases as well. See
Jones v.
State,
63 Ga. 141, 143 (1879) (where punishment for burglary in the day is
3 to 5 years in prison and for burglary at night is 5 to 20, time
of burglary is a "constituent of the offense"; indictment should
"charge all that is requisite to render plain and certain every
constituent of the offense");
United States v.
Woodruff, 68 F.5d
6, 538 (Kan. 1895) (where embezzlement statute "contemplates
that there should be an ascertainment of the exact sum for which a
fine may be imposed" and jury did not determine amount, judge
lacked authority to impose fine; "[o]n such an issue the defendant
is entitled to his constitutional right of trial by jury").
Courts also, again just as in the pre-Bishop period, applied the
same reasoning to the fact of a prior conviction as they did to any
other fact that aggravated the punishment by law. Many, though far
from all, of these courts relied on Bishop. In 1878, Maryland's
high court, in
Maguire v.
State, 47 Md. 485, stated
the rule and the reason for it in language indistinguishable from
that of
Tuttle a quarter century before:
"The law would seem to be well settled, that if the party be
proceeded against for a second or third offence under
515
the statute, and the sentence prescribed be different from the
first, or severer, by reason of its being such second or third
offence, the fact thus relied on must be averred in the indictment;
for the settled rule is, that the indictment must contain an
averment of every fact essential to justify the punishment
inflicted." Maguire, supra, at 496 (citing English cases,
Plumbly v. Commonwealth, 43 Mass. 413 (1841),
Wharton, and Bishop).
In
Goeller v.
State, 119 Md. 61, 85 A. 954 (1912),
the same court reaffirmed
Maguire and voided, as contrary to
Maryland's Notice Clause, a statute that permitted the trial judge
to determine the fact of a prior conviction. The court extensively
quoted Bishop, who had, in the court's view, treated the subject
"more fully, perhaps, than any other legal writer," and it cited,
among other authorities, "a line of Massachusetts decisions" and
Riggs (quoted
supra, at 512). 119 Md., at 66, 85 A.,
at 955. In
Larney, 34 Ohio St., at 600-601, the Supreme
Court of Ohio, in an opinion citing only Bishop, reversed a
conviction under a recidivism statute where the indictment had not
alleged any prior conviction. (The defendant had also relied on
Plumbly, supra, and
Kilbourn v.
State, 9 Conn.
560 (1833). 34 Ohio St., at 600.) And in
State v.
Adams, 64 N. H. 440, 13 A. 785 (1888), the court, relying on
Bishop, explained that "[t]he former conviction being a part of the
description and character of the offense intended to be punished,
because of the higher penalty imposed, it must be alleged."
Id., at 442, 13 A., at 786. The defendant had been "charged
with an offense aggravated by its repetitious character."
Ibid. See also
Evans v.
State, 150 Ind. 651,
653, 50 N. E. 820 (1898) (similar);
Shiflett v.
Commonwealth, 114 Va. 876, 877, 77 S. E. 606, 607 (1913)
(similar).
Even without any reliance on Bishop, other courts addressing
recidivism statutes employed the same reasoning as did he and the
above cases-that a crime includes any fact to which punishment
attaches. One of the leading cases was
516
Wood v.
People, 53 N. Y. 511 (1873). The statute
in
Wood provided for increased punishment if the defendant
had previously been convicted of a felony then discharged from the
conviction. The court, repeatedly referring to "the aggravated
offence,"
id., at 513, 515, held that the facts of the prior
conviction and of the discharge must be proved to the jury, for
"[b]oth enter into and make a part of the offence ... subjecting
the prisoner to the increased punishment."
Id., at 513; see
ibid. (fact of prior conviction was an "essential
ingredient" of the offense). See also
Johnson v.
People,
55 N. Y. 512, 514 (1874) ("A more severe penalty is denounced
by the statute for a second offence; and all the facts to bring the
case within the statute must be [alleged in the indictment and]
established on the trial");
People v.
Sickles, 156 N.
Y. 541, 544-545, 51 N. E. 288, 289 (1898) (reaffirming
Wood
and
Johnson and explaining that "the charge is not merely
that the prisoner has committed the offense specifically described,
but that, as a former convict, his second offense has subjected him
to an enhanced penalty").
Contemporaneously with the New York Court of Appeals in
Wood and
Johnson, state high courts in California and
Pennsylvania offered similar explanations for why the fact of a
prior conviction is an element. In
People v.
Delany,
49 Cal. 394 (1874), which involved a statute making petit larceny
(normally a misdemeanor) a felony if committed following a prior
conviction for petit larceny, the court left no doubt that the fact
of the prior conviction was an element of an aggravated crime
consisting of petit larceny committed following a prior conviction
for petit larceny:
"The particular circumstances of the offense are stated [in the
indictment], and consist of the prior convictions and of the facts
constituting the last larceny.
"[T]he former convictions are made to adhere to and constitute a
portion of the aggravated offense." Id., at 395.
517
"The felony consists both of the former convictions and of the
particular larceny .... [T]he former convictions were a separate
fact; which, taken in connection with the facts constituting the
last offense, make a distinct and greater offense than that
charged, exclusive of the prior convictions." Id., at
396.7
See also
People v.
Coleman, 145 Cal. 609, 610-611,
79 P. 283, 284-285 (1904).
Similarly, in
Rauch v.
Commonwealth, 78 Pa. 490
(1876), the court applied its 1826 decision in
Smith v.
Commonwealth, 14 Sergo & Rawle 69, and reversed the
trial court's imposition of an enhanced sentence "upon its own
knowledge of its records." 78 Pa., at 494. The court explained that
"imprisonment in jail is not a lawful consequence of a mere
conviction for an unlawful sale of liquors. It is the lawful
consequence of a second sale only after a former conviction. On
every principle of personal security and the due administration of
justice, the fact which gives rightfulness to the greater
punishment should appear in the record."
Ibid. See also
id., at 495 ("But clearly the substantive offence, which
draws to itself the greater punishment, is the unlawful sale after
a former conviction. This, therefore, is the very offence he is
called upon to defend against").
Meanwhile, Massachusetts reaffirmed its earlier decisions,
striking down, in
Commonwealth v.
Harrington, 130
Mass. 35 (1880), a liquor law that provided a small fine for a
first or second conviction, provided a larger fine or imprisonment
up to a year for a third conviction, and specifically provided that
a prior conviction need not be alleged in the complaint. The court
found this law plainly inconsistent with
Tuttle and with the
State's Notice Clause, explaining that "the offence which is
punishable with the higher penalty is not fully and
7 The court held that a general plea of "guilty" to an
indictment that includes an allegation of a prior conviction
applies to the fact of the prior conviction.
518
substantially described to the defendant, if the complaint fails
to set forth the former convictions which are essential features of
it." 130 Mass., at 36.8
Without belaboring the point any further, I simply note that
this traditional understanding-that a "crime" includes every fact
that is by law a basis for imposing or increasing
punishment-continued well into the 20th century, at least until the
middle of the century. See Knoll & Singer, Searching for the
"Tail of the Dog": Finding "Elements" of Crimes in the Wake of
McMillan v. Pennsylvania, 22 Seattle U. L. Rev. 1057,
1069-1081 (1999) (surveying 20th-century decisions of federal
courts prior to
McMillan); see also
People v.
Ratner, 67 Cal. App. 2d Supp. 902, 903-906, 153 P. 2d 790,
791-793 (1944). In fact, it is fair to say that
McMillan
began a revolution in the law regarding the definition of "crime."
Today's decision, far from being a sharp break with the past, marks
nothing more than a return to the
status quo ante-the status
quo that reflected the original meaning of the Fifth and Sixth
Amendments.
III
The consequence of the above discussion for our decisions in
Almendarez-Torres and
McMillan should be plain
enough, but a few points merit special mention.
8 See also
State v.
Austin, 113 Mo. 538, 542, 21
S. W. 31, 32 (1893) (prior conviction is a "material fac[t]" of the
"aggravated offense");
Bandy v.
Hehn, 10 Wyo. 167,
172-174,67 P. 979, 980 (1902) ("[I]n reason, and by the great
weight of authority, as the fact of a former conviction enters into
the offense to the extent of aggravating it and increasing the
punishment, it must be alleged in the information and proved like
any other material fact, if it is sought to impose the greater
penalty. The statute makes the prior conviction a part of the
description and character of the offense intended to be punished"
(citing
Tuttle v.
Commonwealth, 68 Mass. 505
(1854))); State v.
Smith, 129 Iowa 709, 711-712, 106
N. W. 187, 188-189 (1906) (similar);
State v.
Scheminisky, 31 Idaho 504, 506-507, 174 P. 611, 611-612
(1918) (similar).
519
First, it is irrelevant to the question of which facts are
elements that legislatures have allowed sentencing judges
discretion in determining punishment (often within extremely broad
ranges). See
ante, at 481-482;
post, at 544-545
(O'CONNOR, J., dissenting). Bishop, immediately after setting out
the traditional rule on elements, explained why:
"The reader should distinguish between the foregoing doctrine,
and the doctrine ... that, within the limits of any discretion as
to the punishment which the law may have allowed, the judge, when
he pronounces sentence, may suffer his discretion to be influenced
by matter shown in aggravation or mitigation, not covered by the
allegations of the indictment .... The aggravating circumstances
spoken of cannot swell the penalty above what the law has provided
for the acts charged against the prisoner, and they are interposed
merely to check the judicial discretion in the exercise of the
permitted mercy [in finding mitigating circumstances]. This is an
entirely different thing from punishing one for what is not alleged
against him." 1 Bishop, Criminal Procedure § 85, at 54.
See also 1 J. Bishop, New Commentaries on the Criminal Law §§
600-601, pp. 370-371, § 948, p. 572 (8th ed. 1892) (similar). In
other words, establishing what punishment is available by law and
setting a specific punishment within the bounds that the law has
prescribed are two different things.9
9 This is not to deny that there may be laws on the borderline
of this distinction. In
Brightwell v.
State, 41 Ga.
482 (1871), the court stated a rule for elements equivalent to
Bishop's, then held that whether a defendant had committed arson in
the day or at night need not be in the indictment. The court
explained that there was "no provision that arson in the night
shall be punished for any different period" than arson in the day
(both being punishable by 2 to 7 years in prison).
Id., at
483. Although there was a statute providing that "arson in the day
time shall be punished for a less period than arson in the night
time," the court concluded that it merely set "a rule for the
exercise of [the sentencing
520
Cf. 4 W. Blackstone, Commentaries on the Law of England 371-372
(1769) (noting judges' broad discretion in setting amount of fine
and length of imprisonment for misdemeanors, but praising
determinate punishment and "discretion ... regulated by law");
Perley, 86 Me., at 429, 432, 30 A., at 74, 75-76 (favorably
discussing Bishop's rule on elements without mentioning, aside from
quotation of statute in statement of facts, that defendant's
conviction for robbery exposed him to imprisonment for life or any
term of years). Thus, it is one thing to consider what the
Constitution requires the prosecution to do in order to entitle
itself to a particular kind, degree, or range of punishment of the
accused, see
Woodruff, 68 F., at 538, and quite another to
consider what constitutional constraints apply either to the
imposition of punishment within the limits of that entitlement or
to a legislature's ability to set broad ranges of punishment. In
answering the former constitutional question, I need not, and do
not, address the latter.
Second, and related, one of the chief errors of
AlmendarezTorres-an error to which I succumbed-was to
attempt to discern whether a particular fact is traditionally (or
typically) a basis for a sentencing court to increase an offender's
sentence. 523 U. S., at 243-244; see
id., at 230, 241. For
the
judge's] discretion" by specifying a particular fact for the
judge to consider along with the many others that would enter into
his sentencing decision.
Ibid. Cf.
Jones v.
State, 63 Ga. 141, 143 (1879) (whether burglary occurred in
day or at night is a "constituent of the offense" because law fixes
different ranges of punishment based on this fact). And the statute
attached no definite consequence to that particular fact: A
sentencing judge presumably could have imposed a sentence of seven
years less one second for daytime arson. Finally, it is likely that
the statute in
Brightwell, given its language ("a less
period") and its placement in a separate section, was read as
setting out an affirmative defense or mitigating circumstance. See
Wright v.
State, 113 Ga. App. 436, 437-438, 148 S. E.
2d 333, 335-336 (1966) (suggesting that it would be error to refuse
to charge later version of this statute to jury upon request of
defendant). See generally Archbold *52, *105-*106 (discussing rules
for determining whether fact is an element or a defense).
521
reasons I have given, it should be clear that this approach just
defines away the real issue. What matters is the way by which a
fact enters into the sentence. If a fact is by law the basis for
imposing or increasing punishment-for establishing or increasing
the prosecution's entitlement-it is an element. (To put the point
differently, I am aware of no historical basis for treating as a
nonelement a fact that by law sets or increases punishment.) When
one considers the question from this perspective, it is evident why
the fact of a prior conviction is an element under a recidivism
statute. Indeed, cases addressing such statutes provide some of the
best discussions of what constitutes an element of a crime. One
reason frequently offered for treating recidivism differently, a
reason on which we relied in
Almendarez-Torres, supra, at
235, is a concern for prejudicing the jury by informing it of the
prior conviction. But this concern, of which earlier courts were
well aware, does not make the traditional understanding of what an
element is any less applicable to the fact of a prior conviction.
See,
e. g., Maguire, 47 Md., at
498; Sickles, 156 N.
Y., at 547, 51 N. E., at 290.10
Third, I think it clear that the common-law rule would cover the
McMillan situation of a mandatory minimum sentence (in that
case, for visible possession of a firearm during the commission of
certain crimes). No doubt a defendant could, under such a scheme,
find himself sentenced to the same term to which he could have been
sentenced absent the mandatory minimum. The range for his
underlying crime
10 In addition, it has been common practice to address this
concern by permitting the defendant to stipulate to the prior
conviction, in which case the charge of the prior conviction is not
read to the jury, or, if the defendant decides not to stipulate, to
bifurcate the trial, with the jury only considering the prior
conviction after it has reached a guilty verdict on the core crime.
See,
e. g., 1 J. Bishop, Criminal Law § 964, pp.
566-567 (5th ed. 1872) (favorably discussing English practice of
bifurcation);
People v.
Saunders, 5 Cal. 4th 580,
587-588, 853 P. 2d 1093, 1095-1096 (1993) (detailing California
approach, since 1874, of permitting stipulation and, more recently,
of also permitting bifurcation).
522
could be 0 to 10 years, with the mandatory minimum of 5 years,
and he could be sentenced to 7. (Of course, a similar scenario is
possible with an increased maximum.) But it is equally true that
his expected punishment has increased as a result of the narrowed
range and that the prosecution is empowered, by invoking the
mandatory minimum, to require the judge to impose a higher
punishment than he might wish. The mandatory minimum "entitl[es]
the government,"
Woodruff, supra, at 538, to more than it
would otherwise be entitled (5 to 10 years, rather than 0 to 10 and
the risk of a sentence below 5). Thus, the fact triggering the
mandatory minimum is part of "the punishment sought to be
inflicted," Bishop, Criminal Procedure 50; it undoubtedly "enters
into the punishment" so as to aggravate it,
id., § 540, at
330, and is an "ac[t] to which the law affixes ... punishment,"
id., § 80, at 51. Further, just as in
Hobbs and
Searcy, see
supra, at 512-513, it is likely that the
change in the range available to the judge affects his choice of
sentence. Finally, in numerous cases, such as
Lacy, Garcia,
and
Jones, see
supra, at 504-505, 514, the
aggravating fact raised the whole rangeboth the top and bottom.
Those courts, in holding that such a fact was an element, did not
bother with any distinction between changes in the maximum and the
minimum. What mattered was simply the overall increase in the
punishment provided by law. And in several cases, such as
Smith and
Woodruff, see
supra, at 502, 514,
the very concept of maximums and minimums had no applicability, yet
the same rule for elements applied. See also
Harrington
(discussed
supra, at 517-518).
Finally, I need not in this case address the implications of the
rule that I have stated for the Court's decision in
Walton
v.
Arizona, 497 U. S. 639, 647-649
(1990). See
ante, at 496.
Walton did approve a scheme
by which a judge, rather than a jury, determines an aggravating
fact that makes a convict eligible for the death penalty, and thus
eligible for a greater punishment. In this sense, that fact is an
element. But that scheme exists in a unique context, for in the
area of cap-
523
ital punishment, unlike any other area, we have imposed special
constraints on a legislature's ability to determine what facts
shall lead to what punishment-we have restricted the legislature's
ability to define crimes. Under our recent capital-punishment
jurisprudence, neither Arizona nor any other jurisdiction could
provide-as, previously, it freely could and did-that a person shall
be death eligible automatically upon conviction for certain crimes.
We have interposed a barrier between a jury finding of a capital
crime and a court's ability to impose capital punishment. Whether
this distinction between capital crimes and all others, or some
other distinction, is sufficient to put the former outside the rule
that I have stated is a question for another dayY
***
For the foregoing reasons, as well as those given in the Court's
opinion, I agree that the New Jersey procedure at issue is
unconstitutional.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JusTICE KENNEDY,
and JUSTICE BREYER join, dissenting.
Last Term, in
Jones v.
United States, 526 U. S. 227 (1999),
this Court found that our prior cases suggested the following
principle: "[U]nder the Due Process Clause of the Fifth Amendment
and the notice and jury trial guarantees of the Sixth Amendment,
any fact (other than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment, submitted to
a jury, and proven beyond a reasonable doubt."
Id., at 243,
n. 6. At the time, JUSTICE KENNEDY rightly criticized the Court for
its failure to ex-
11 It is likewise unnecessary to consider whether (and, if so,
how) the rule regarding elements applies to the Sentencing
Guidelines, given the unique status that they have under
Mistretta v.
United States, 488 U. S. 361 (1989). But
it may be that this special status is irrelevant, because the
Guidelines "have the force and effect of laws."
Id., at 413
(SCALIA, J., dissenting).
524
plain the origins, contours, or consequences of its purported
constitutional principle; for the inconsistency of that principle
with our prior cases; and for the serious doubt that the holding
cast on sentencing systems employed by the Federal Government and
States alike.
Id., at 254, 264-272 (dissenting opinion).
Today, in what will surely be remembered as a watershed change in
constitutional law, the Court imposes as a constitutional rule the
principle it first identified in
Jones.
I
Our Court has long recognized that not every fact that bears on
a defendant's punishment need be charged in an indictment,
submitted to a jury, and proved by the government beyond a
reasonable doubt. Rather, we have held that the "legislature's
definition of the elements of the offense is usually dispositive."
McMillan v.
Pennsylvania, 477 U. S. 79, 85 (1986);
see also
Almendarez-Torres v.
United States, 523 U. S. 224, 228
(1998);
Patterson v.
New York, 432 U. S. 197, 210, 211,
n. 12 (1977). Although we have recognized that "there are obviously
constitutional limits beyond which the States may not go in this
regard,"
id., at 210, and that "in certain limited
circumstances
Winship's reasonabledoubt requirement applies
to facts not formally identified as elements of the offense
charged,"
McMillan, supra, at 86, we have proceeded with
caution before deciding that a certain fact must be treated as an
offense element despite the legislature's choice not to
characterize it as such. We have therefore declined to establish
any bright-line rule for making such judgments and have instead
approached each case individually, sifting through the
considerations most relevant to determining whether the legislature
has acted properly within its broad power to define crimes and
their punishments or instead has sought to evade the constitutional
requirements associated with the characterization of a fact as an
offense element. See,
e. g., Monge v.
California, 524
U. S. 721, 728-729 (1998);
McMillan, supra, at 86.
525
In one bold stroke the Court today casts aside our traditional
cautious approach and instead embraces a universal and seemingly
bright-line rule limiting the power of Congress and state
legislatures to define criminal offenses and the sentences that
follow from convictions thereunder. The Court states: "Other than
the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."
Ante, at 490. In its opinion, the Court marshals virtually
no authority to support its extraordinary rule. Indeed, it is
remarkable that the Court cannot identify a
single instance,
in the over 200 years since the ratification of the Bill of Rights,
that our Court has applied, as a constitutional requirement, the
rule it announces today.
According to the Court, its constitutional rule "emerges from
our history and case law."
Ante, at 492. None of the history
contained in the Court's opinion requires the rule it ultimately
adopts. The history cited by the Court can be divided into two
categories: first, evidence that judges at common law had virtually
no discretion in sentencing,
ante, at 478-480, and, second,
statements from a 19th-century criminal procedure treatise that the
government must charge in an indictment and prove at trial the
elements of a statutory offense for the defendant to be sentenced
to the punishment attached to that statutory offense,
ante,
at 480481. The relevance of the first category of evidence can be
easily dismissed. Indeed, the Court does not even claim that the
historical evidence of nondiscretionary sentencing at common law
supports its "increase in the maximum penalty" rule. Rather, almost
as quickly as it recites that historical practice, the Court
rejects its relevance to the constitutional question presented here
due to the conflicting American practice of judges exercising
sentencing discretion and our decisions recognizing the legitimacy
of that American practice. See
ante, at 481-482 (citing
Williams v.
New York, 337 U. S. 241, 246
(1949)). Even if the Court were to
526
claim that the common-law history on this point did bear on the
instant case, one wonders why the historical practice of judges
pronouncing judgments in cases between private parties is relevant
at all to the question of criminal punishment presented here. See
ante, at 479-480 (quoting 3 W. Blackstone, Commentaries on
the Laws of England 396 (1768), which pertains to "remed[ies]
prescribed by law for the redress of injuries").
Apparently, then, the historical practice on which the Court
places so much reliance consists of only two quotations taken from
an 1862 criminal procedure treatise. See
ante, at 480-481
(quoting J. Archbold, Pleading and Evidence in Criminal Cases 51,
188 (15th ed. 1862)). A closer examination of the two statements
reveals that neither supports the Court's "increase in the maximum
penalty" rule. Both of the excerpts pertain to circumstances in
which a commonlaw felony had also been made a separate statutory
offense carrying a greater penalty. Taken together, the statements
from the Archbold treatise demonstrate nothing more than the
unremarkable proposition that a defendant could receive the greater
statutory punishment only if the indictment expressly charged and
the prosecutor proved the facts that made up the statutory offense,
as opposed to simply those facts that made up the common-law
offense. See
id., at 51 (indictment);
id., at 188
(proof). In other words, for the defendant to receive the statutory
punishment, the prosecutor had to charge in the indictment and
prove at trial
the elements of the statutory offense. To the
extent there is any doubt about the precise meaning of the treatise
excerpts, that doubt is dispelled by looking to the treatise
sections from which the excerpts are drawn and the broader
principle each section is meant to illustrate. See
id., at
43 ("Every offence consists of certain acts done or omitted under
certain circumstances; and in an indictment for the offence, it is
not sufficient to charge the defendant generally with having
committed it, ... but all the facts and circumstances
constituting
527
the offence must be specially set forth");
id., at 180
("Every offence consists of certain acts done or omitted, under
certain circumstances, all of which must be stated in the
indictment ... and be proved as laid"). And, to the extent further
clarification is needed, the authority cited by the Archbold
treatise to support its stated proposition with respect to the
requirements of an indictment demonstrates that the treatise
excerpts mean only that the prosecutor must charge and then prove
at trial
the elements of the statutory offense. See 2 M.
Hale, Pleas of the Crown *170 (hereinafter Hale) ("An indictment
grounded upon an offense made by act of parliament must by express
words bring the offense within the substantial description made in
the act of parliament"). No Member of this Court questions the
proposition that a State must charge in the indictment and prove at
trial beyond a reasonable doubt the actual elements of the offense.
This case, however, concerns the distinct question of when a fact
that bears on a defendant's punishment, but which the legislature
has not classified as an element of the charged offense, must
nevertheless be treated as an offense element. The excerpts drawn
from the Archbold treatise do not speak to this question at all.
The history on which the Court's opinion relies provides no support
for its "increase in the maximum penalty" rule.
In his concurring opinion, JUSTICE THOMAS cites additional
historical evidence that, in his view, dictates an even broader
rule than that set forth in the Court's opinion. The history cited
by JUSTICE THOMAS does not require, as a matter of federal
constitutional law, the application of the rule he advocates. To
understand why, it is important to focus on the basis for JUSTICE
THOMAS' argument. First, he claims that the Fifth and Sixth
Amendments "codified" preexisting common law. Second, he contends
that the relevant common law treated any fact that served to
increase a defendant's punishment as an element of an offense. See
ante, at 500-501. Even if JUSTICE THOMAS' first assertion
were
528
correct-a proposition this Court has not before embracedhe fails
to gather the evidence necessary to support his second assertion.
Indeed, for an opinion that purports to be founded upon the
original understanding of the Fifth and Sixth Amendments, JUSTICE
THOMAS' concurrence is notable for its failure to discuss any
historical practice, or to cite any decisions, predating (or
contemporary with) the ratification of the Bill of Rights. Rather,
JUSTICE THOMAS divines the common-law understanding of the Fifth
and Sixth Amendment rights by consulting decisions rendered by
American courts well after the ratification of the Bill of Rights,
ranging primarily from the 1840's to the 1890's. Whatever those
decisions might reveal about the way American state courts resolved
questions regarding the distinction between a crime and its
punishment under general rules of criminal pleading or their own
state constitutions, the decisions fail to demonstrate any settled
understanding with respect to the definition of a crime under the
relevant, pre-existing common law. Thus, there is a crucial
disconnect between the historical evidence JUSTICE THOMAS cites and
the proposition he seeks to establish with that evidence.
An examination of the decisions cited by JUSTICE THOMAS makes
clear that they did not involve a simple application of a
long-settled common-law rule that any fact that increases
punishment must constitute an offense element. That would have been
unlikely, for there does not appear to have been any such
common-law rule. The most relevant common-law principles in this
area were that an indictment must charge the elements of the
relevant offense and must do so with certainty. See,
e.
g., 2 Hale *182 ("Touching the thing wherein or of which the
offense is committed, there is required a certainty in an
indictment");
id., at *183 ("The fact itself must be
certainly set down in an indictment");
id., at *184 ("The
offense itself must be alledged, and the manner of it"). Those
principles, of course, say little about when a specific fact
constitutes an element of the offense.
529
JUSTICE THOMAS is correct to note that American courts in the
19th century came to confront this question in their cases, and
often treated facts that served to increase punishment as elements
of the relevant statutory offenses. To the extent JUSTICE THOMAS'
broader rule can be drawn from those decisions, the rule was one of
those courts' own invention, and not a previously existing rule
that would have been "codified" by the ratification of the Fifth
and Sixth Amendments. Few of the decisions cited by JUSTICE THOMAS
indicate a reliance on pre-existing common-law principles. In fact,
the converse rule that he identifies in the 19th-century American
cases-that a fact that does not make a difference in punishment
need not be charged in an indictment, see,
e. g.,
Larned v.
Commonwealth, 53 Mass. 240, 242-244
(1847)-was assuredly created by American courts, given that English
courts of roughly the same period followed a contrary rule. See,
e. g., Rex v.
Marshall, 1 Moody C. C.
158,168 Eng. Rep. 1224 (1827). JUSTICE THOMAS' collection of
state-court opinions is therefore of marginal assistance in
determining the original understanding of the Fifth and Sixth
Amendments. While the decisions JUSTICE THOMAS cites provide some
authority for the rule he advocates, they certainly do not control
our resolution of the
federal constitutional question
presented in the instant case and cannot, standing alone, justify
overruling three decades' worth of decisions by this Court.
In contrast to JUSTICE THOMAS, the Court asserts that its rule
is supported by "our cases in this area."
Ante, at 490. That
the Court begins its review of our precedent with a quotation from
a dissenting opinion speaks volumes about the support that actually
can be drawn from our cases for the "increase in the maximum
penalty" rule announced today. See
ante, at 484 (quoting
Almendarez-Torres, 523 U. S., at 251 (SCALIA, J.,
dissenting)). The Court then cites our decision in
Mullaney
v.
Wilbur, 421
U. S. 684 (1975), to demonstrate the "lesson" that due process
and jury protec-
530
tions extend beyond those factual determinations that affect a
defendant's guilt or innocence.
Ante, at 484. The Court
explains
Mullaney as having held that the due process
proof-beyond-a-reasonable-doubt requirement applies to those
factual determinations that, under a State's criminal law, make a
difference in the degree of punishment the defendant receives.
Ante, at 484. The Court chooses to ignore, however, the
decision we issued two years later,
Patterson v.
New
York, 432 U. S.
197 (1977), which clearly rejected the Court's broad reading of
Mullaney.
In
Patterson, the jury found the defendant guilty of
second-degree murder. Under New York law, the fact that a person
intentionally killed another while under the influence of extreme
emotional disturbance distinguished the reduced offense of
first-degree manslaughter from the more serious offense of
second-degree murder. Thus, the presence or absence of this one
fact was the defining factor separating a greater from a lesser
punishment. Under New York law, however, the State did not need to
prove the absence of extreme emotional disturbance beyond a
reasonable doubt. Rather, state law imposed the burden of proving
the presence of extreme emotional disturbance on the defendant, and
required that the fact be proved by a preponderance of the
evidence. 432 U. S., at 198-200. We rejected Patterson's due
process challenge to his conviction:
"We thus decline to adopt as a constitutional imperative,
operative countrywide, that a State must disprove beyond a
reasonable doubt every fact constituting any and all affirmative
defenses related to the culpability of an accused. Traditionally,
due process has required that only the most basic procedural
safeguards be observed; more subtle balancing of society's
interests against those of the accused have been left to the
legislative branch." Id., at 210.
531
Although we characterized the factual determination under New
York law as one going to the mitigation of culpability,
id.,
at 206, as opposed to the aggravation of the punishment, it is
difficult to understand why the rule adopted by the Court in to
day's case (or the broader rule advocated by JusTICE THOMAS) would
not require the overruling of
Patterson. Unless the Court is
willing to defer to a legislature's formal definition of the
elements of an offense, it is clear that the fact that Patterson
did not act under the influence of extreme emotional disturbance,
in substance, "increase[d] the penalty for [his] crime beyond the
prescribed statutory maximum" for first-degree manslaughter.
Ante, at 490. Nonetheless, we held that New York's
requirement that the defendant, rather than the State, bear the
burden of proof on this factual determination comported with the
Fourteenth Amendment's Due Process Clause.
Patterson, 432 U.
S., at 205-211, 216; see also
id., at 204-205 (reaffirming
Leland v.
Oregon, 343 U. S. 790 (1952),
which upheld against due process challenge Oregon's requirement
that the defendant, rather than the State, bear the burden on
factual determination of defendant's insanity).
Patterson is important because it plainly refutes the
Court's expansive reading of
Mullaney. Indeed, the defendant
in
Patterson characterized
Mullaney exactly as the
Court has today and we
rejected that interpretation:
"Mullaney's holding, it is argued, is that the State may
not permit the blameworthiness of an act or the severity of
punishment authorized for its commission to depend on the
presence or absence of an identified fact without assuming the
burden of proving the presence or absence of that fact, as the case
may be, beyond a reasonable doubt. In our view, the Mullaney
holding should not be so broadly read." Patterson, supra, at
214-215 (emphasis added) (footnote omitted).
532
We explained
Mullaney instead as holding only "that a
State must prove every ingredient of an offense beyond a reasonable
doubt, and that it may not shift the burden of proof to the
defendant by presuming that ingredient upon proof of the other
elements of the offense." 432 U. S., at 215. Because nothing had
been presumed against Patterson under New York law, we found no due
process violation.
Id., at 216. Ever since our decision in
Patterson, we have consistently explained the holding in
Mullaney in these limited terms and have rejected the broad
interpretation the Court gives
Mullaney today. See
Jones, 526 U. S., at 241 ("We identified the use of a
presumption to establish an essential ingredient of the offense as
the curse of the Maine law [in
Mullaney]");
Almendarez-Torres, 523 U. S., at 240
("[Mullaney]
suggests that Congress cannot permit judges to increase a sentence
in light of recidivism, or any other factor, not set forth in an
indictment and proved to a jury beyond a reasonable doubt. This
Court's later case,
Patterson v.
New York, ...
however, makes absolutely clear that such a reading of
Mullaney is wrong");
McMillan, 477 U. S., at 84
(same).
The case law from which the Court claims that its rule emerges
consists of only one other decision-McMillan v.
Pennsylvania. The Court's reliance on
McMillan is
also puzzling, given that our holding in that case points to the
rejection of the Court's rule. There, we considered a Pennsylvania
statute that subjected a defendant to a mandatory minimum sentence
of five years' imprisonment if a judge found, by a preponderance of
the evidence, that the defendant had visibly possessed a firearm
during the commission of the offense for which he had been
convicted.
Id., at 81. The petitioners claimed that the
Fourteenth Amendment's Due Process Clause and the Sixth Amendment's
jury trial guarantee (as incorporated by the Fourteenth Amendment)
required the State to prove to the jury beyond a reasonable
533
doubt that they had visibly possessed firearms. We rejected both
constitutional claims.
Id., at 84-91, 93.
The essential holding of
McMillan conflicts with at least
two of the several formulations the Court gives to the rule it
announces today. First, the Court endorses the following principle:
"'[I]t is unconstitutional for a legislature to remove from the
jury the assessment of facts
that increase the prescribed range
of penalties to which a criminal defendant is exposed. It is
equally clear that such facts must be established by proof beyond a
reasonable doubt.'''
Ante, at 490 (emphasis added) (quoting
Jones, supra, at 252-253 (STEVENS, J., concurring)). Second,
the Court endorses the rule as restated in JUSTICE SCALIA'S
concurring opinion in
Jones. See
ante, at 490. There,
JUSTICE SCALIA wrote: "[I]t is unconstitutional to remove from the
jury the assessment of facts
that alter the congressionally
prescribed range of penalties to which a criminal defendant is
exposed."
Jones, supra, at 253 (emphasis added). Thus, the
Court appears to hold that any fact that increases or alters
the
range of penalties to which a defendant is exposed-which, by
definition, must include increases or alterations to either the
minimum or maximum penalties-must be proved to a jury beyond a
reasonable doubt. In
McMillan, however, we rejected such a
rule to the extent it concerned those facts that increase or alter
the minimum penalty to which a defendant is exposed. Accordingly,
it is incumbent on the Court not only to admit that it is
overruling
McMillan, but also to explain why such a course
of action is appropriate under normal principles of
stare
decisis.
The Court's opinion does neither. Instead, it attempts to lay
claim to
McMillan as support for its "increase in the
maximum penalty" rule. According to the Court,
McMillan
acknowledged that permitting a judge to make findings that expose a
defendant to greater or additional punishment "may raise serious
constitutional concern."
Ante, at 486. We said nothing of
the sort in
McMillan. To the contrary, we
534
began our discussion of the petitioners' constitutional claims
by emphasizing that we had already "rejected the claim that
whenever a State links the 'severity of punishment' to 'the
presence or absence of an identified fact' the State must prove
that fact beyond a reasonable doubt." 477 U. S., at 84 (quoting
Patterson, 432 U. S., at 214). We then reaffirmed the rule
set forth in
Patterson-"that in determining what facts must
be proved beyond a reasonable doubt the state legislature's
definition of the elements of the offense is usually dispositive."
McMillan, 477 U. S., at 85. Although we acknowledged that
there are constitutional limits to the State's power to define
crimes and prescribe penalties, we found no need to establish those
outer boundaries in
McMillan because "several factors"
persuaded us that the Pennsylvania statute did not exceed those
limits, however those limits might be defined.
Id., at 86.
The Court's assertion that
McMillan supports the application
of its bright-line rule in this area is, therefore, unfounded.
The Court nevertheless claims to find support for its rule in
our discussion of one factor in
McMillan-namely, our
statement that the petitioners' claim would have had "at least more
superficial appeal" if the firearm possession finding had exposed
them to greater or additional punishment.
Id., at 88. To say
that a claim may have had "more superficial appeal" is, of course,
a far cry from saying that a claim would have been upheld.
Moreover, we made that statement in the context of examining one of
several factors that, in combination, ultimately gave "no doubt
that Pennsylvania's [statute fell] on the permissible side of the
constitutional line."
Id., at 91. The confidence of that
conclusion belies any argument that our ruling would have been
different had the Pennsylvania statute instead increased the
maximum penalty to which the petitioners were exposed. In short, it
is clear that we did not articulate any bright-line rule that
States must prove to a jury beyond a reasonable doubt any fact that
exposes a defendant to a greater punishment.
535
Such a rule would have been in substantial tension with both our
earlier acknowledgment that
Patterson rejected such a rule,
see 477 U. S., at 84, and our recognition that a state
legislature's definition of the elements is normally dispositive,
see
id., at 85. If any single rule can be derived from
McMillan, it is not the Court's "increase in the maximum
penalty" principle, but rather the following: When a State takes a
fact that has always been considered by sentencing courts to bear
on punishment, and dictates the precise weight that a court should
give that fact in setting a defendant's sentence, the relevant fact
need not be proved to a jury beyond a reasonable doubt as would an
element of the offense. See
id., at 89-90.
Apart from
Mullaney and
McMillan, the Court does
not claim to find support for its rule in any other
pre-Jones decision. Thus, the Court is in error when it says
that its rule emerges from our case law. Nevertheless, even if one
were willing to assume that
Mullaney and
McMillan
lend some support for the Court's position, that feeble foundation
is shattered by several of our precedents directly addressing the
issue. The only one of those decisions that the Court addresses at
any length is
Almendarez-Torres. There, we squarely rejected
the "increase in the maximum penalty" rule: "Petitioner also
argues, in essence, that this Court should simply adopt a rule that
any significant increase in a statutory maximum sentence would
trigger a constitutional 'elements' requirement. We have explained
why we believe the Constitution, as interpreted in
McMillan
and earlier cases, does not impose that requirement." 523 U. S., at
247. Whether
Almendarez-Torres directly refuted the
"increase in the maximum penalty" rule was extensively debated in
Jones, and that debate need not be repeated here. See 526 U.
S., at 248-249;
id., at 268-270 (KENNEDY, J., dissenting). I
continue to agree with JUSTICE KENNEDY that
Almendarez-
Torres constituted a clear repudiation of the rule the Court
adopts today. See
Jones, supra, at 268 (dis-
536
senting opinion). My understanding is bolstered by
Monge
v.
California, a decision relegated to a footnote by the
Court today. In
Monge, in reasoning essential to our
holding, we reiterated that "the Court has rejected an absolute
rule that an enhancement constitutes an element of the offense any
time that it increases the maximum sentence to which a defendant is
exposed." 524 U. S., at 729 (citing
AlmendarezTorres). At
the very least,
Monge demonstrates that
Almendarez-
Torres was not an "exceptional departure" from "historic
practice."
Ante, at 487.
Of all the decisions that refute the Court's "increase in the
maximum penalty" rule, perhaps none is as important as
Walton v.
Arizona, 497 U. S. 639 (1990).
There, a jury found Walton, the petitioner, guilty of first-degree
murder. Under Arizona law, a trial court conducts a separate
sentencing hearing to determine whether a defendant convicted of
first-degree murder should receive the death penalty or life
imprisonment. See
id., at 643 (citing Ariz. Rev. Stat. Ann.
§ 13-703(B) (1989)). At that sentencing hearing, the judge, rather
than the jury, must determine the existence or nonexistence of the
statutory aggravating and mitigating factors. See
Walton,
497 U. S., at 643 (quoting § 13-703(B)). The Arizona statute
directs the judge to " 'impose a sentence of death if the court
finds one or more of the aggravating circumstances enumerated in
[the statute] and that there are no mitigating circumstances
sufficiently substantial to call for leniency.'''
Id., at
644 (quoting § 13-703(E)). Thus, under Arizona law, a defendant
convicted of first-degree murder can be sentenced to death
only
if the judge finds the existence of a statutory aggravating
factor.
Walton challenged the Arizona capital sentencing scheme, arguing
that the Constitution requires that the jury, and not the judge,
make the factual determination of the existence or nonexistence of
the statutory aggravating factors. We rejected that contention:
"'Any argument that the Constitution requires that a jury impose
the sentence of death or
537
make the findings prerequisite to imposition of such a sentence
has been soundly rejected by prior decisions of this Court.'"
Id., at 647 (quoting
Clemons v.
Mississippi,
494 U. S. 738, 745 (1990)). Relying in part on our decisions
rejecting challenges to Florida's capital sentencing scheme, which
also provided for sentencing by the trial judge, we added that"
'the Sixth Amendment does not require that the specific findings
authorizing the imposition of the sentence of death be made by the
jury.'"
Walton, supra, at 648 (quoting
Hildwin v.
Florida, 490
U. S. 638, 640-641 (1989)
(per curiam)).
While the Court can cite no decision that would require its
"increase in the maximum penalty" rule,
Walton plainly
rejects it. Under Arizona law, the fact that a statutory
aggravating circumstance exists in the defendant's case "'increases
the maximum penalty for [the] crime'" of first-degree murder to
death.
Ante, at 476 (quoting
Jones, supra, at 243, n.
6). If the judge does not find the existence of a statutory
aggravating circumstance, the maximum punishment authorized by the
jury's guilty verdict is life imprisonment. Thus, using the
terminology that the Court itself employs to describe the
constitutional fault in the New Jersey sentencing scheme presented
here, under Arizona law, the judge's finding that a statutory
aggravating circumstance exists "exposes the criminal defendant to
a penalty
exceeding the maximum he would receive if punished
according to the facts reflected in the jury verdict alone."
Ante, at 483 (emphasis in original). Even JUSTICE THOMAS,
whose vote is necessary to the Court's opinion today, agrees on
this point. See
ante, at 522 (concurring opinion). If a
State can remove from the jury a factual determination that makes
the difference between life and death, as
Walton holds that
it can, it is inconceivable why a State cannot do the same with
respect to a factual determination that results in only a 10-year
increase in the maximum sentence to which a defendant is
exposed.
538
The distinction of
Walton offered by the Court today is
baffling, to say the least. The key to that distinction is the
Court's claim that, in Arizona, the jury makes all of the findings
necessary to expose the defendant to a death sentence. See
ante, at 496-497 (quoting
Almendarez-Torres, 523 U.
S., at 257, n. 2 (SCALIA, J., dissenting)). As explained above,
that claim is demonstrably untrue. A defendant convicted of
first-degree murder in Arizona cannot receive a death sentence
unless a judge makes the factual determination that a statutory
aggravating factor exists. Without that critical finding, the
maximum sentence to which the defendant is exposed is life
imprisonment, and not the death penalty. Indeed, at the time
Walton was decided, the author of the Court's opinion today
understood well the issue at stake. See
Walton, 497 U. S.,
at 709 (STEVENS, J., dissenting) ("[U]nder Arizona law, as
construed by Arizona's highest court, a first-degree murder is not
punishable by a death sentence until at least one statutory
aggravating circumstance has been proved"). In any event, the
extent of our holding in
Walton should have been perfectly
obvious from the face of our decision. We upheld the Arizona scheme
specifically on the ground that the Constitution does not require
the jury to make the factual findings that serve as the"
'prerequisite to imposition of [a death] sentence,'"
id., at
647 (quoting
Clemons, supra, at 745), or "'the specific
findings authorizing the imposition of the sentence of death,'"
Walton, supra, at 648 (quoting
Hildwin, supra, at
640-641). If the Court does not intend to overrule
Walton,
one would be hard pressed to tell from the opinion it issues
today.
The distinction of
Walton offered by JUSTICE THOMAS is
equally difficult to comprehend. According to JUSTICE THOMAS,
because the Constitution requires state legislatures to narrow
sentencing discretion in the capital punishment context, facts that
expose a convicted defendant to a capital sentence may be different
from all other facts that expose a defendant to a more severe
sentence. See
ante, at 522-523.
539
JUSTICE THOMAS gives no specific reason for excepting capital
defendants from the constitutional protections he would extend to
defendants generally, and none is readily apparent. If JUSTICE
THOMAS means to say that the Eighth Amendment's restriction on a
state legislature's ability to define capital crimes should be
compensated for by permitting States more leeway under the Fifth
and Sixth Amendments in proving an aggravating fact necessary to a
capital sentence, his reasoning is without precedent in our
constitutional jurisprudence.
In sum, the Court's statement that its "increase in the maximum
penalty" rule emerges from the history and case law that it cites
is simply incorrect. To make such a claim, the Court finds it
necessary to rely on irrelevant historical evidence, to ignore our
controlling precedent
(e. g., Patterson), and to offer
unprincipled and inexplicable distinctions between its decision and
previous cases addressing the same subject in the capital
sentencing context
(e. g., Walton). The Court has failed to
offer any meaningful justification for deviating from years of
cases both suggesting and holding that application of the "increase
in the maximum penalty" rule is not required by the
Constitution.
II
That the Court's rule is unsupported by the history and case law
it cites is reason enough to reject such a substantial departure
from our settled jurisprudence. Significantly, the Court also fails
to explain adequately why the Due Process Clauses of the Fifth and
Fourteenth Amendments and the jury trial guarantee of the Sixth
Amendment require application of its rule. Upon closer examination,
it is possible that the Court's "increase in the maximum penalty"
rule rests on a meaningless formalism that accords, at best,
marginal protection for the constitutional rights that it seeks to
effectuate.
540
Any discussion of either the constitutional necessity or the
likely effect of the Court's rule must begin, of course, with an
understanding of what exactly that rule is. As was the case in
Jones, however, that discussion is complicated here by the
Court's failure to clarify the contours of the constitutional
principle underlying its decision. See
Jones, 526 U. S., at
267 (KENNEDY, J., dissenting). In fact, there appear to be several
plausible interpretations of the constitutional principle on which
the Court's decision rests.
For example, under one reading, the Court appears to hold that
the Constitution requires that a fact be submitted to a jury and
proved beyond a reasonable doubt only if that fact, as a formal
matter, extends the range of punishment
beyond the prescribed
statutory maximum. See,
e. g., ante, at 490. A State
could, however, remove from the jury (and subject to a standard of
proof below "beyond a reasonable doubt") the assessment of those
facts that define narrower ranges of punishment,
within the
overall statutory range, to which the defendant may be
sentenced. See,
e. g., ante, at 494, n. 19. Thus, apparently
New Jersey could cure its sentencing scheme, and achieve virtually
the same results, by drafting its weapons possession statute in the
following manner:
First, New Jersey could prescribe, in the weapons possession
statute itself, a range of 5 to 20 years' imprisonment for one who
commits that criminal offense. Second, New Jersey could provide
that only those defendants convicted under the statute who are
found by a judge, by a preponderance of the evidence, to have acted
with a purpose to intimidate an individual on the basis of race may
receive a sentence greater than 10 years' imprisonment.
The Court's proffered distinction of
Walton v.
Arizona suggests that it means to announce a rule of only
this limited effect. The Court claims the Arizona capital
sentencing scheme is consistent with the constitutional principle
underlying today's decision because Arizona's first-degree murder
statute itself authorizes both life imprisonment and
541
the death penalty. See Ariz. Rev. Stat. Ann. § 13-1105(C)
(1989). "'[O]nce a
jury has found the defendant
guilty of
all the elements of an offense which
carries as its maximum penalty the sentence of death, it may be
left to the judge to decide whether that maximum penalty, rather
than a lesser one, ought to be imposed.'"
Ante, at 497
(emphasis in original) (quoting
Almendarez-Torres, 523 U.
S., at 257, n. 2 (SCALIA, J., dissenting)). Of course, as explained
above, an Arizona sentencing judge can impose the maximum penalty
of death only if the judge first makes a statutorily required
finding that at least one aggravating factor exists in the
defendant's case. Thus, the Arizona first-degree murder statute
authorizes a maximum penalty of death only in a formal sense. In
real terms, however, the Arizona sentencing scheme removes from the
jury the assessment of a fact that determines whether the defendant
can receive that maximum punishment. The only difference, then,
between the Arizona scheme and the New Jersey scheme we consider
here-apart from the magnitude of punishment at stake-is that New
Jersey has not prescribed the 20-year maximum penalty in the same
statute that it defines the crime to be punished. It is difficult
to understand, and the Court does not explain, why the Constitution
would require a state legislature to follow such a meaningless and
formalistic difference in drafting its criminal statutes.
Under another reading of the Court's decision, it may mean only
that the Constitution requires that a fact be submitted to a jury
and proved beyond a reasonable doubt if it, as a formal matter,
increases the range of punishment
beyond that which could
legally be imposed absent that fact. See,
e. g., ante,
at 482-483, 490. A State could, however, remove from the jury (and
subject to a standard of proof below "beyond a reasonable doubt")
the assessment of those facts that, as a formal matter,
decrease the range of punishment
below that which could
legally be imposed absent that fact. Thus, consistent with our
decision in
Patterson, New
542
Jersey could cure its sentencing scheme, and achieve virtually
the same results, by drafting its weapons possession statute in the
following manner: First, New Jersey could prescribe, in the weapons
possession statute itself, a range of 5 to 20 years' imprisonment
for one who commits that criminal offense. Second, New Jersey could
provide that a defendant convicted under the statute whom a judge
finds, by a preponderance of the evidence,
not to have acted
with a purpose to intimidate an individual on the basis of race may
receive a sentence no greater than 10 years' imprisonment.
The rule that JUSTICE THOMAS advocates in his concurring opinion
embraces this precise distinction between a fact that increases
punishment and a fact that decreases punishment. See
ante,
at 501 ("[A] 'crime' includes every fact that is by law a basis for
imposing or increasing punishment (in contrast with a fact that
mitigates punishment)"). The historical evidence on which JUSTICE
THOMAS relies, however, demonstrates both the difficulty and the
pure formalism of making a constitutional "elements" rule turn on
such a difference. For example, the Wisconsin statute considered in
Lacy v.
State, 15 Wis. *13 (1862), could plausibly
qualify as either increasing or mitigating punishment on the basis
of the same specified fact. There, Wisconsin provided that the
willful and malicious burning of a dwelling house in which "the
life of no person shall have been destroyed" was punishable by 7 to
14 years in prison, but that the same burning at a time in which
"there was no person lawfully in the dwelling house" was punishable
by only 3 to 10 years in prison. Wis. Rev. Stat., ch. 165, § 1
(1858). Although the statute appeared to make the
absence of
persons from the affected dwelling house a fact that mitigated
punishment, the Wisconsin Supreme Court found that the
presence of a person in the affected house constituted an
aggravating circumstance.
Lacy, supra, at *15-*16. As both
this example and the above hypothetical redrafted New Jersey
statute demonstrate, see
supra, at 540, whether a fact is
responsible for an
543
increase or a decrease in punishment rests in the eye of the
beholder. Again, it is difficult to understand, and neither the
Court nor JUSTICE THOMAS explains, why the Constitution would
require a state legislature to follow such a meaningless and
formalistic difference in drafting its criminal statutes.
If either of the above readings is all that the Court's decision
means, "the Court's principle amounts to nothing more than
chastising [the New Jersey Legislature] for failing to use the
approved phrasing in expressing its intent as to how [unlawful
weapons possession] should be punished."
Jones, 526 U. S.,
at 267 (KENNEDY, J., dissenting). If New Jersey can, consistent
with the Constitution, make precisely the same differences in
punishment turn on precisely the same facts, and can remove the
assessment of those facts from the jury and subject them to a
standard of proof below "beyond a reasonable doubt," it is
impossible to say that the Fifth, Sixth, and Fourteenth Amendments
require the Court's rule. For the same reason, the "structural
democratic constraints" that might discourage a legislature from
enacting either of the above hypothetical statutes would be no more
significant than those that would discourage the enactment of New
Jersey's present sentence-enhancement statute. See
ante, at
490-491, n. 16 (majority opinion). In all three cases, the
legislature is able to calibrate punishment perfectly, and subject
to a maximum penalty only those defendants whose cases satisfy the
sentence-enhancement criterion. As JUSTICE KENNEDY explained in
Jones, "[n]o constitutional values are served by so
formalistic an approach, while its constitutional costs in statutes
struck down ... are real." 526 U. S., at 267.
Given the pure formalism of the above readings of the Court's
opinion, one suspects that the constitutional principle underlying
its decision is more far reaching. The actual principle underlying
the Court's decision may be that any fact (other than prior
conviction) that has the effect,
in real terms, of
increasing the maximum punishment beyond an
544
otherwise applicable range must be submitted to a jury and
proved beyond a reasonable doubt. See,
e. g.,
ante, at 494 ("[T]he relevant inquiry is one not of form,
but of effectdoes the required finding expose the defendant to a
greater punishment than that authorized by the jury's guilty
verdict?"). The principle thus would apply not only to schemes like
New Jersey's, under which a factual determination exposes the
defendant to a sentence beyond the prescribed statutory maximum,
but also to all determinate-sentencing schemes in which the length
of a defendant's sentence within the statutory range turns on
specific factual determinations
(e. g., the federal
Sentencing Guidelines). JUSTICE THOMAS essentially concedes that
the rule outlined in his concurring opinion would require the
invalidation of the Sentencing Guidelines. See
ante, at 523,
n. 11.
I would reject any such principle. As explained above, it is
inconsistent with our precedent and would require the Court to
overrule, at a minimum, decisions like
Patterson and
Walton. More importantly, given our approval of-and the
significant history in this country of-discretionary sentencing by
judges, it is difficult to understand how the Fifth, Sixth, and
Fourteenth Amendments could possibly require the Court's or JUSTICE
THOMAS' rule. Finally, in light of the adoption of
determinate-sentencing schemes by many States and the Federal
Government, the consequences of the Court's and JUSTICE THOMAS'
rules in terms of sentencing schemes invalidated by to day's
decision will likely be severe.
As the Court acknowledges, we have never doubted that the
Constitution permits Congress and the state legislatures to define
criminal offenses, to prescribe broad ranges of punishment for
those offenses, and to give judges discretion to decide where
within those ranges a particular defendant's punishment should be
set. See
ante, at 481-482. That view accords with historical
practice under the Constitution. "From the beginning of the
Republic, federal judges were entrusted with wide sentencing
discretion. The great
545
majority of federal criminal statutes have stated only a maximum
term of years and a maximum monetary fine, permitting the
sentencing judge to impose any term of imprisonment and any fine up
to the statutory maximum." K. Stith & J. Cabranes, Fear of
Judging: Sentencing Guidelines in the Federal Courts 9 (1998)
(footnote omitted). Under discretionary-sentencing schemes, a judge
bases the defendant's sentence on any number of facts neither
presented at trial nor found by a jury beyond a reasonable doubt.
As one commentator has explained:
"During the age of broad judicial sentencing discretion, judges
frequently made sentencing decisions on the basis of facts that
they determined for themselves, on less than proof beyond a
reasonable doubt, without eliciting very much concern from civil
libertarians .... The sentence in any number of traditional
discretionary situations depended quite directly on judicial
findings of specific contested facts .... Whether because such
facts were directly relevant to the judge's retributionist
assessment of how serious the particular offense was (within the
spectrum of conduct covered by the statute of conviction), or
because they bore on a determination of how much rehabilitation the
offender's character was likely to need, the sentence would be
higher or lower, in some specific degree determined by the judge,
based on the judge's factual conclusions." Lynch, Towards A Model
Penal Code, Second (Federal?), 2 Buffalo Crim. L. Rev. 297, 320
(1998) (footnote omitted).
Accordingly, under the discretionary-sentencing schemes, a
factual determination made by a judge on a standard of proof below
"beyond a reasonable doubt" often made the difference between a
lesser and a greater punishment.
For example, in
Williams v.
New York, a jury found
the defendant guilty of first-degree murder and recommended life
imprisonment. The judge, however, rejected the jury's
546
recommendation and sentenced Williams to death on the basis of
additional facts that he learned through a presentence
investigation report and that had neither been charged in an
indictment nor presented to the jury. 337 U. S., at 242-245. In
rejecting Williams' due process challenge to his death sentence, we
explained that there was a long history of sentencing judges
exercising "wide discretion in the sources and types of evidence
used to assist [them] in determining the kind and extent of
punishment to be imposed within limits fixed by law."
Id.,
at 246. Specifically, we held that the Constitution does not
restrict a judge's sentencing decision to information that is
charged in an indictment and subject to cross-examination in open
court. "The due process clause should not be treated as a device
for freezing the evidential procedure of sentencing in the mold of
trial procedure."
Id., at 251.
Under our precedent, then, a State may leave the determination
of a defendant's sentence to a judge's discretionary decision
within a prescribed range of penalties. When a judge, pursuant to
that sentencing scheme, decides to increase a defendant's sentence
on the basis of certain contested facts, those facts need not be
proved to a jury beyond a reasonable doubt. The judge's findings,
whether by proof beyond a reasonable doubt or less, suffice for
purposes of the Constitution. Under the Court's decision today,
however, it appears that once a legislature constrains judges'
sentencing discretion by prescribing certain sentences that may
only be imposed (or must be imposed) in connection with the same
determinations of the same contested facts, the Constitution
requires that the facts instead be proved to a jury beyond a
reasonable doubt. I see no reason to treat the two schemes
differently. See,
e. g., McMillan, 477 U. S.,
at 92 ("We have some difficulty fathoming why the due process
calculus would change simply because the legislature has seen fit
to provide sentencing courts with additional guidance"). In this
respect, I agree with the Solicitor General that "[a] sen-
547
tence that is constitutionally permissible when selected by a
court on the basis of whatever factors it deems appropriate does
not become impermissible simply because the court is permitted to
select that sentence only after making a finding prescribed by the
legislature." Brief for United States as
Amicus Curiae 7.
Although the Court acknowledges the legitimacy of discretionary
sentencing by judges, see
ante, at 481-482, it never
provides a sound reason for treating judicial factfinding under
determinate-sentencing schemes differently under the
Constitution.
JUSTICE THOMAS' attempt to explain this distinction is similarly
unsatisfying. His explanation consists primarily of a quotation, in
turn, of a 19th-century treatise writer, who contended that the
aggravation of punishment within a statutory range on the basis of
facts found by a judge "'is an entirely different thing from
punishing one for what is not alleged against him.'"
Ante,
at 519 (quoting 1 J. Bishop, Commentaries on Law of Criminal
Procedure § 85, p. 54 (rev. 2d ed. 1872)). As our decision in
Williams v.
New York demonstrates, however, that
statement does not accurately describe the reality of discretionary
sentencing conducted by judges. A defendant's actual punishment can
be affected in a very real way by facts never alleged in an
indictment, never presented to a jury, and never proved beyond a
reasonable doubt. In Williams' case, facts presented for the first
time to the judge, for purposes of sentencing alone, made the
difference between life imprisonment and a death sentence.
Consideration of the purposes underlying the Sixth Amendment's
jury trial guarantee further demonstrates why our acceptance of
judge-made findings in the context of discretionary sentencing
suggests the approval of the same judge-made findings in the
context of determinate sentencing as well. One important purpose of
the Sixth Amendment's jury trial guarantee is to protect the
criminal defendant against potentially arbitrary judges. It
effectuates this promise by preserving, as a constitutional matter,
certain
548
fundamental decisions for a jury of one's peers, as opposed to a
judge. For example, the Court has recognized that the Sixth
Amendment's guarantee was motivated by the English experience of
"competition ... between judge and jury over the real significance
of their respective roles,"
Jones, 526 U. S., at 245, and
"measures [that were taken] to diminish the juries' power,"
ibid. We have also explained that the jury trial guarantee
was understood to provide "an inestimable safeguard against the
corrupt or overzealous prosecutor and against the compliant,
biased, or eccentric judge. If the defendant preferred the
common-sense judgment of a jury to the more tutored but perhaps
less sympathetic reaction of the single judge, he was to have it."
Duncan v.
Louisiana, 391 U. S. 145, 156
(1968). Blackstone explained that the right to trial by jury was
critically important in criminal cases because of "the violence and
partiality of judges appointed by the crown, ... who might then, as
in France or Turkey, imprison, dispatch, or exile any man that was
obnoxious to the government, by an instant declaration, that such
is their will and pleasure." 4 Blackstone, Commentaries, at 343.
Clearly, the concerns animating the Sixth Amendment's jury trial
guarantee, if they were to extend to the sentencing context at all,
would apply with greater strength to a discretionary-sentencing
scheme than to determinate sentencing. In the former scheme, the
potential for mischief by an arbitrary judge is much greater, given
that the judge's decision of where to set the defendant's sentence
within the prescribed statutory range is left almost entirely to
discretion. In contrast, under a determinate-sentencing system, the
discretion the judge wields within the statutory range is tightly
constrained. Accordingly, our approval of discretionary-sentencing
schemes, in which a defendant is not entitled to have a jury make
factual findings relevant to sentencing despite the effect those
findings have on the severity of the defendant's sentence,
demonstrates that the defendant should have no right to demand that
a jury make
549
the equivalent factual determinations under a
determinatesentencing scheme.
The Court appears to hold today, however, that a defendant is
entitled to have a jury decide, by proof beyond a reasonable doubt,
every fact relevant to the determination of sentence under a
determinate-sentencing scheme. If this is an accurate description
of the constitutional principle underlying the Court's opinion, its
decision will have the effect of invalidating significant
sentencing reform accomplished at the federal and state levels over
the past three decades. JUSTICE THOMAS' rule, as he essentially
concedes, see
ante, at 523, n. 11, would have the same
effect.
Prior to the most recent wave of sentencing reform, the Federal
Government and the States employed indeterminate-sentencing schemes
in which judges and executive branch officials
(e. g.,
parole board officials) had substantial discretion to determine the
actual length of a defendant's sentence. See,
e. g.,
U. S. Dept. of Justice, S. Shane- DuBow, A. Brown, & E. Olsen,
Sentencing Reform in the United States: History, Content, and
Effect 6-7 (Aug. 1985) (hereinafter Shane-DuBow); Report of
Twentieth Century Fund Task Force on Criminal Sentencing, Fair and
Certain Punishment 11-13 (1976) (hereinafter Task Force Report); A.
Dershowitz, Criminal Sentencing in the United States: An Historical
and Conceptual Overview, 423 Annals Am. Acad. Pol. & Soc. Sci.
117, 128-129 (1976). Studies of indeterminate-sentencing schemes
found that similarly situated defendants often received widely
disparate sentences. See,
e. g., Shane-Dubow 7; Task
Force Report 14. Although indeterminate sentencing was intended to
soften the harsh and uniform sentences formerly imposed under
mandatorysentencing systems, some studies revealed that
indeterminate sentencing actually had the opposite effect. See,
e. g., A. Campbell, Law of Sentencing 13 (1978)
("Paradoxically the humanitarian impulse sparking the adoption of
indeterminate sentencing systems in this country has resulted
in
550
an actual increase of the average criminal's incarceration
term"); Task Force Report 13 ("[T]he data seem to indicate that in
those jurisdictions where the sentencing structure is more
indeterminate, judicially imposed sentences tend to be
longer").
In response, Congress and the state legislatures shifted to
determinate-sentencing schemes that aimed to limit judges'
sentencing discretion and, thereby, afford similarly situated
offenders equivalent treatment. See,
e. g., Cal.
Penal Code Ann. § 1170 (West Supp. 2000). The most well known of
these reforms was the federal Sentencing Reform Act of 1984, 18 U.
S. C. § 3551
et seq. In the Act, Congress created the United
States Sentencing Commission, which in turn promulgated the
Sentencing Guidelines that now govern sentencing by federal judges.
See,
e. g., United States Sentencing Commission,
Guidelines Manual (Nov. 1998). Whether one believes the
determinate-sentencing reforms have proved successful or not-and
the subject is one of extensive debate among commentators-the
apparent effect of the Court's opinion today is to halt the current
debate on sentencing reform in its tracks and to invalidate with
the stroke of a pen three decades' worth of nationwide reform, all
in the name of a principle with a questionable constitutional
pedigree. Indeed, it is ironic that the Court, in the name of
constitutional rights meant to protect criminal defendants from the
potentially arbitrary exercise of power by prosecutors and judges,
appears to rest its decision on a principle that would render
unconstitutional efforts by Congress and the state legislatures to
place constraints on that very power in the sentencing context.
Finally, perhaps the most significant impact of the Court's
decision will be a practical one-its unsettling effect on
sentencing conducted under current federal and state
determinate-sentencing schemes. As I have explained, the Court does
not say whether these schemes are constitutional,
551
but its reasoning strongly suggests that they are not. Thus,
with respect to past sentences handed down by judges under
determinate-sentencing schemes, the Court's decision threatens to
unleash a flood of petitions by convicted defendants seeking to
invalidate their sentences in whole or in part on the authority of
the Court's decision today. Statistics compiled by the United
States Sentencing Commission reveal that almost a half-million
cases have been sentenced under the Sentencing Guidelines since
1989. See Memorandum from U. S. Sentencing Commission to Supreme
Court Library, dated June 8, 2000 (total number of cases sentenced
under federal Sentencing Guidelines since 1989) (available in Clerk
of Court's case file). Federal cases constitute only the tip of the
iceberg. In 1998, for example, federal criminal prosecutions
represented only about 0.4% of the total number of criminal
prosecutions in federal and state courts. See National Center for
State Courts, A National Perspective: Court Statistics Project
(federal and state court filings, 1998),
http://www.ncsc.dni.us/divisions/researchlcsp/
csp98-fscf.html (showing that, in 1998, 57,691 criminal cases were
filed in federal court compared to 14,623,330 in state courts)
(available in Clerk of Court's case file). Because many States,
like New Jersey, have determinate-sentencing schemes, the number of
individual sentences drawn into question by the Court's decision
could be colossal.
The decision will likely have an even more damaging effect on
sentencing conducted in the immediate future under current
determinate-sentencing schemes. Because the Court fails to clarify
the precise contours of the constitutional principle underlying its
decision, federal and state judges are left in a state of limbo.
Should they continue to assume the constitutionality of the
determinate-sentencing schemes under which they have operated for
so long, and proceed to sentence convicted defendants in accord
with those governing statutes and guidelines? The Court provides no
answer,
552
yet its reasoning suggests that each new sentence will rest on
shaky ground. The most unfortunate aspect of today's decision is
that our precedents did not foreordain this disruption in the world
of sentencing. Rather, our cases traditionally took a cautious
approach to questions like the one presented in this case. The
Court throws that caution to the wind and, in the process,
threatens to cast sentencing in the United States into what will
likely prove to be a lengthy period of considerable confusion.
III
Because I do not believe that the Court's "increase in the
maximum penalty" rule is required by the Constitution, I would
evaluate New Jersey's sentence-enhancement statute, N. J. Stat.
Ann. §
2C:44-3 (West Supp. 2000), by analyzing the factors
we have examined in past cases. See,
e. g.,
Almendarez-Torres, 523 U. S., at 242-243;
McMillan,
477 U. S., at 86-90. First, the New Jersey statute does not shift
the burden of proof on an essential ingredient of the offense by
presuming that ingredient upon proof of other elements of the
offense. See,
e. g., id., at 86-87;
Patterson, 432 U.
S., at 215. Second, the magnitude of the New Jersey sentence
enhancement, as applied in petitioner's case, is constitutionally
permissible. Under New Jersey law, the weapons possession offense
to which petitioner pleaded guilty carries a sentence range of 5 to
10 years' imprisonment. N. J. Stat. Ann. §§ 2C:39-4(a),
2C:43-6(a)(2) (West 1995). The fact that petitioner, in committing
that offense, acted with a purpose to intimidate because of race
exposed him to a higher sentence range of 10 to 20 years'
imprisonment. §
2C:437(a)(3). The 10-year increase in the
maximum penalty to which petitioner was exposed falls well within
the range we have found permissible. See
Almendarez-Torres,
supra, at 226, 242-243 (approving 18-year enhancement). Third,
the New Jersey statute gives no impression of having been
553
enacted to evade the constitutional requirements that attach
when a State makes a fact an element of the charged offense. For
example, New Jersey did not take what had previously been an
element of the weapons possession offense and transform it into a
sentencing factor. See
McMillan, 477 U. S., at 89.
In sum, New Jersey "simply took one factor that has always been
considered by sentencing courts to bear on punishment"-a
defendant's motive for committing the criminal offense-"and
dictated the precise weight to be given that factor" when the
motive is to intimidate a person because of race.
Id., at
89-90. The Court claims that a purpose to intimidate on account of
race is a traditional
mens rea element, and not a motive.
See
ante, at 492-493. To make this claim, the Court finds it
necessary once again to ignore our settled precedent. In
Wisconsin v.
Mitchell, 508 U. S. 476 (1993), we
considered a statute similar to the one at issue here. The
Wisconsin statute provided for an increase in a convicted
defendant's punishment if the defendant intentionally selected the
victim of the crime because of that victim's race.
Id., at
480. In a unanimous decision upholding the statute, we specifically
characterized it as providing a sentence enhancement based on the
"motive" of the defendant. See
id., at 485 (distinguishing
between punishment of defendant's "criminal conduct" and penalty
enhancement "for conduct
motivated by a discriminatory point
of view" (emphasis added));
id., at 484-485 ("[U]nder the
Wisconsin statute the same criminal conduct may be more heavily
punished if the victim is selected because of his race ... than if
no such
motive obtained" (emphasis added)). That same
characterization applies in the case of the New Jersey statute. As
we also explained in
Mitchell, the motive for committing an
offense has traditionally been an important factor in determining a
defendant's sentence.
Id., at 485. New Jersey, therefore,
has done no more than what we held permissible
554
in
McMillan; it has taken a traditional sentencing factor
and dictated the precise weight judges should attach to that factor
when the specific motive is to intimidate on the basis of race.
The New Jersey statute resembles the Pennsylvania statute we
upheld in
McMillan in every respect but one. That
difference-that the New Jersey statute increases the maximum
punishment to which petitioner was exposed-does not persuade me
that New Jersey "sought to evade the constitutional requirements
associated with the characterization of a fact as an offense
element."
Supra, at 524. There is no question that New
Jersey could prescribe a range of 5 to 20 years' imprisonment as
punishment for its weapons possession offense. Thus, as explained
above, the specific means by which the State chooses to control
judges' discretion within that permissible range is of no moment.
Cf.
Patterson, supra, at 207-208 ("The Due Process Clause,
as we see it, does not put New York to the choice of abandoning
[the affirmative defense] or undertaking to disprove [its]
existence in order to convict of a crime which otherwise is within
its constitutional powers to sanction by substantial punishment").
The New Jersey statute also resembles in virtually every respect
the federal statute we considered in
Almendarez-Torres. That
the New Jersey statute provides an enhancement based on the
defendant's motive while the statute in
Almendarez-Torres
provided an enhancement based on the defendant's commission of a
prior felony is a difference without constitutional importance.
Both factors are traditional bases for increasing an offender's
sentence and, therefore, may serve as the grounds for a sentence
enhancement.
On the basis of our prior precedent, then, I would hold that the
New Jersey sentence-enhancement statute is constitutional, and
affirm the judgment of the Supreme Court of New Jersey.
555
JUSTICE BREYER, with whom THE CHIEF JUSTICE joins,
dissenting.
The majority holds that the Constitution contains the following
requirement: "[A]ny fact [other than recidivism] that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."
Ante, at 490. This rule would seem to promote a procedural
ideal-that of juries, not judges, determining the existence of
those facts upon which increased punishment turns. But the real
world of criminal justice cannot hope to meet any such ideal. It
can function only with the help of procedural compromises,
particularly in respect to sentencing. And those compromises, which
are themselves necessary for the fair functioning of the criminal
justice system, preclude implementation of the procedural model
that today's decision reflects. At the very least, the impractical
nature of the requirement that the majority now recognizes supports
the proposition that the Constitution was not intended to embody
it.
I
In modern times, the law has left it to the sentencing judge to
find those facts which (within broad sentencing limits set by the
legislature) determine the sentence of a convicted offender. The
judge's factfinding role is not inevitable. One could imagine, for
example, a pure "charge offense" sentencing system in which the
degree of punishment depended only upon the crime charged
(e.
g., eight mandatory years for robbery, six for arson, three for
assault). But such a system would ignore many harms and risks of
harm that the offender caused or created, and it would ignore many
relevant offender characteristics. See United States Sentencing
Commission, Sentencing Guidelines and Policy Statements, Part A, at
1.5 (1987) (hereinafter Sentencing Guidelines or Guidelines)
(pointing out that a "charge offense"
556
system by definition would ignore any fact "that did not
constitute [a] statutory elemen[t] of the offens[e] of which the
defendant was convicted"). Hence, that imaginary "charge offense"
system would not be a fair system, for it would lack
proportionality, i.
e., it would treat different offenders
similarly despite major differences in the manner in which each
committed the same crime.
There are many such manner-related differences in respect to
criminal behavior. Empirical data collected by the Sentencing
Commission make clear that, before the Guidelines, judges who
exercised discretion within broad legislatively determined
sentencing limits (say, a range of 0 to 20 years) would impose very
different sentences upon offenders engaged in the same basic
criminal conduct, depending, for example, upon the amount of drugs
distributed (in respect to drug crimes), the amount of money taken
(in respect to robbery, theft, or fraud), the presence or use of a
weapon, injury to a victim, the vulnerability of a victim, the
offender's role in the offense, recidivism, and many other
offenserelated or offender-related factors. See United States
Sentencing Commission, Supplementary Report on the Initial
Sentencing Guidelines and Policy Statements 35-39 (1987)
(hereinafter Supplementary Report) (table listing data representing
more than 20 such factors); see generally Department of Justice, W.
Rhodes & C. Conly, Analysis of Federal Sentencing (May 1981).
The majority does not deny that judges have exercised, and,
constitutionally speaking,
may exercise sentencing
discretion in this way.
Nonetheless, it is important for present purposes to understand
why
judges, rather than
juries, traditionally have
determined the presence or absence of such sentence-affecting facts
in any given case. And it is important to realize that the reason
is not a theoretical one, but a practical one. It does not reflect
(JUSTICE SCALIA'S opinion to the contrary notwithstanding) an ideal
of procedural "fairness,"
ante, at 498 (concurring opinion),
but rather an administrative need
557
for procedural
compromise. There are, to put it simply,
far too many potentially relevant sentencing factors to permit
submission of all (or even many) of them to a jury. As the
Sentencing Guidelines state the matter,
"[a] bank robber with (or without) a gun, which the robber kept
hidden (or brandished), might have frightened (or merely warned),
injured seriously (or less seriously), tied up (or simply pushed) a
guard, a teller or a customer, at night (or at noon), for a bad (or
arguably less bad) motive, in an effort to obtain money for other
crimes (or for other purposes), in the company of a few (or many)
other robbers, for the first (or fourth) time that day, while sober
(or under the influence of drugs or alcohol), and so forth."
Sentencing Guidelines, Part A, at 1.2.
The Guidelines note that "a sentencing system tailored to fit
every conceivable wrinkle of each case can become unworkable and
seriously compromise the certainty of punishment and its deterrent
effect."
Ibid. To ask a jury to consider all, or many, such
matters would do the same.
At the same time, to require jury consideration of all such
factors-say, during trial where the issue is guilt or
innocence-could easily place the defendant in the awkward (and
conceivably unfair) position of having to deny he committed the
crime yet offer proof about how he committed it,
e.
g., "I did not sell drugs, but I sold no more than 500
grams." And while special postverdict sentencing juries could cure
this problem, they have seemed (but for capital cases) not worth
their administrative costs. Hence, before the Guidelines, federal
sentencing judges typically would obtain relevant factual
sentencing information from probation officers' presentence
reports, while permitting a convicted offender to challenge the
information's accuracy at a hearing before the judge without
benefit of trial-type evidentiary rules. See
Williams v.
New York, 337
U. S. 241,
558
249-251 (1949) (describing the modern "practice of
individualizing punishments" under which judges often consider
otherwise inadmissible information gleaned from probation reports);
see also Kadish, Legal Norm and Discretion in the Police and
Sentencing Processes, 75 Harv. L. Rev. 904, 915-917 (1962).
It is also important to understand how a judge traditionally
determined which factors should be taken into account for
sentencing purposes. In principle, the number of potentially
relevant behavioral characteristics is endless. A judge might ask,
for example, whether an unlawfully possessed knife was "a
switchblade, drawn or concealed, opened or closed, large or small,
used in connection with a car theft (where victim confrontation is
rare), a burglary (where confrontation is unintended) or a robbery
(where confrontation is intentional)." United States Sentencing
Commission, Preliminary Observations of the Commission on
Commissioner Robinson's Dissent 3, n. 3 (May 1, 1987). Again, the
method reflects practical, rather than theoretical, considerations.
Prior to the Sentencing Guidelines, federal law left the individual
sentencing judge free to determine which factors were relevant.
That freedom meant that each judge, in an effort to tailor
punishment to the individual offense and offender, was guided
primarily by experience, relevance, and a sense of proportional
fairness. Cf. Supplementary Report 16-17 (noting that the goal of
the Sentencing Guidelines was to create greater sentencing
uniformity among judges, but in doing so the Guidelines themselves
had to rely primarily upon empirical studies that showed which
factors had proved important to federal judges in the past).
Finally, it is important to understand how a legislature decides
which factual circumstances among all those potentially related to
generally harmful behavior it should transform into elements of a
statutorily defined crime (where they would become relevant to the
guilt or innocence of an accused), and which factual circumstances
it should leave to
559
the sentencing process (where, as sentencing factors, they would
help to determine the sentence imposed upon one who has been found
guilty). Again, theory does not provide an answer. Legislatures, in
defining crimes in terms of elements, have looked for guidance to
common-law tradition, to history, and to current social need. And,
traditionally, the Court has left legislatures considerable freedom
to make the element determination. See
Almendarez-Torres v.
United States, 523 U. S. 224, 228
(1998);
McMillan v.
Pennsylvania, 477 U. S. 79, 85
(1986).
By placing to day's constitutional question in a broader
context, this brief survey may help to clarify the nature of to
day's decision. It also may explain why, in respect to sentencing
systems, proportionality, uniformity, and administrability are all
aspects of that basic "fairness" that the Constitution demands. And
it suggests my basic problem with the Court's rule: A sentencing
system in which judges have discretion to find sentencing-related
factors is a workable system and one that has long been thought
consistent with the Constitution; why, then, would the Constitution
treat sentencing
statutes any differently?
II
As JUSTICE THOMAS suggests, until fairly recent times many
legislatures rarely focused upon sentencing factors. Rather, it
appears they simply identified typical forms of antisocial conduct,
defined basic "crimes," and attached a broad sentencing range to
each definition-leaving judges free to decide how to sentence
within those ranges in light of such factors as they found
relevant.
Ante, at 510-512, 518 (concurring opinion). But
the Constitution does not freeze 19th-century sentencing practices
into permanent law. And dissatisfaction with the traditional
sentencing system (reflecting its tendency to treat similar cases
differently) has led modern legislatures to write new laws that
refer specifically to sentencing factors. See Supplementary Report
1
560
(explaining that "a growing recognition of the need to bring
greater rationality and consistency to penal statutes and to
sentences imposed under those statutes" led to reform efforts such
as the Federal Sentencing Guidelines).
Legislatures have tended to address the problem of too much
judicial sentencing discretion in two ways. First, legislatures
sometimes have created sentencing commissions armed with delegated
authority to make more uniform judicial exercise of that
discretion. Congress, for example, has created a federal Sentencing
Commission, giving it the power to create Guidelines that (within
the sentencing range set by individual statutes) reflect the host
of factors that might be used to determine the actual sentence
imposed for each individual crime. See 28 U. S. C. § 994(a); see
also United States Sentencing Commission, Guidelines Manual (Nov.
1999). Federal judges must apply those Guidelines in typical cases
(those that lie in the "heartland" of the crime as the statute
defines it) while retaining freedom to depart in atypical cases.
Id., ch. 1, pt. A, 4(b).
Second, legislatures sometimes have directly limited the use (by
judges or by a commission) of particular factors in sentencing,
either by specifying statutorily how a particular factor will
affect the sentence imposed or by specifying how a commission
should use a particular factor when writing a guideline. Such a
statute might state explicitly, for example, that a particular
factor, say, use of a weapon, recidivism, injury to a victim, or
bad motive, "shall" increase, or "may" increase, a particular
sentence in a particular way. See,
e. g.,
McMillan, supra, at 83 (Pennsylvania statute expressly
treated "visible possession of a firearm" as a sentencing
consideration that subjected a defendant to a mandatory 5-year term
of imprisonment).
The issue the Court decides today involves this second kind of
legislation. The Court holds that a legislature cannot enact such
legislation (where an increase in the maximum is involved) unless
the factor at issue has been charged,
561
tried to a jury, and found to exist beyond a reasonable doubt.
My question in respect to this holding is, simply,
"why
would the Constitution contain such a requirement"?
III
In light of the sentencing background described in Parts I and
II, I do not see how the majority can find in the Constitution a
requirement that "any fact" (other than recidivism) that increases
the maximum penalty for a crime "must be submitted to a jury."
Ante, at 490. As JUSTICE O'CONNOR demonstrates, this Court
has previously failed to view the Constitution as embodying any
such principle, while sometimes finding to the contrary. See
Almendarez- Torres, supra, at 239-247;
McMillan,
supra, at 84-91. The majority raises no objection to
traditional pre-Guidelines sentencing procedures under which
judges, not juries, made the factual findings that would lead to an
increase in an individual offender's sentence. How does a
legislative determination differ in any significant way? For
example, if a judge may on his or her own decide that victim injury
or bad motive should increase a bank robber's sentence from 5 years
to 10, why does it matter that a legislature instead enacts a
statute that increases a bank robber's sentence from 5 years to 10
based on this same judicial finding?
With the possible exception of the last line of JUSTICE SCALIA'S
concurring opinion, the majority also makes no constitutional
objection to a legislative delegation to a commission of the
authority to create guidelines that determine how a judge is to
exercise sentencing discretion. See also
ante, at 523, n. 11
(THOMAS, J., concurring) (reserving the question). But if the
Constitution permits Guidelines, why does it not permit Congress
similarly to guide the exercise of a judge's sentencing discretion?
That is, if the Constitution permits a delegatee (the commission)
to exercise sentencing-related rulemaking power, how can it deny
the
562
delegator (the legislature) what is, in effect, the same
rulemaking power?
The majority appears to offer two responses. First, it argues
for a limiting principle that would prevent a legislature with
broad authority from transforming (jury-determined) facts that
constitute elements of a crime into (judgedetermined) sentencing
factors, thereby removing procedural protections that the
Constitution would otherwise require. See
ante, at 486
("[C]onstitutional limits" prevent States from "defin[ing] away
facts necessary to constitute a criminal offense"). The majority's
cure, however, is not aimed at the disease.
The same "transformational" problem exists under traditional
sentencing law, where legislation, silent as to sentencing factors,
grants the judge virtually unchecked discretion to sentence within
a broad range. Under such a system, judges or prosecutors can
similarly "transform" crimes, punishing an offender convicted of
one crime as if he had committed another. A prosecutor, for
example, might charge an offender with five counts of embezzlement
(each subject to a lO-year maximum penalty), while asking the judge
to impose maximum and consecutive sentences because the embezzler
murdered his employer. And, as part of the traditional sentencing
discretion that the majority concedes judges retain, the judge, not
a jury, would determine the last-mentioned relevant fact, i.
e., that the murder actually occurred.
This egregious example shows the problem's complexity.
The source of the problem lies not in a legislature's power to
enact sentencing factors, but in the traditional legislative power
to select elements defining a crime, the traditional legislative
power to set broad sentencing ranges, and the traditional judicial
power to choose a sentence within that range on the basis of
relevant offender conduct. Conversely, the solution to the problem
lies, not in prohibiting legislatures from enacting sentencing
factors, but in sentencing rules that determine punishments on the
basis of properly defined
563
relevant conduct, with sensitivity to the need for procedural
protections where sentencing factors are determined by a judge (for
example, use of a "reasonable doubt" standard), and invocation of
the Due Process Clause where the history of the crime at issue,
together with the nature of the facts to be proved, reveals unusual
and serious procedural unfairness. Cf.
McMillan, 477 U. S.,
at 88 (upholding statute in part because it "gives no impression of
having been tailored to permit the [sentencing factor] to be a tail
which wags the dog of the substantive offense").
Second, the majority, in support of its constitutional rule,
emphasizes the concept of a statutory "maximum." The Court points
out that a sentencing judge (or a commission) traditionally has
determined, and now still determines, sentences
within a
legislated range capped by a maximum (a range that the legislature
itself sets). See
ante, at 481-482. I concede the truth of
the majority's statement, but I do not understand its
relevance.
From a defendant's perspective, the legislature's decision to
cap the possible range of punishment at a statutorily prescribed
"maximum" would affect the actual sentence imposed no differently
than a sentencing commission's (or a sentencing judge's) similar
determination. Indeed, as a practical matter, a legislated
mandatory "minimum" is far more important to an actual defendant. A
judge and a commission, after all, are legally free to select any
sentence below a statute's maximum, but they are not free to
subvert a statutory minimum. And, as JUSTICE THOMAS indicates, all
the considerations of fairness that might support submission to a
jury of a factual matter that increases a statutory maximum apply
a fortiori to any matter that would increase a statutory
minimum. See
ante, at 521-522 (concurring opinion). To
repeat, I do not understand why, when a legislature
authorizes a judge to impose a higher penalty for
bank robbery (based, say, on the court's finding that a victim was
injured or the defendant's motive was bad), a new crime is born;
but
564
where a legislature
requires a judge to impose a higher
penalty than he otherwise would (within a pre-existing statutory
range) based on similar criteria, it is not. Cf.
AlmendarezTorres, 523 U. S., at 246.
IV
I certainly do not believe that the present sentencing system is
one of "perfect equity,"
ante, at 498 (SCALIA, J.,
concurring), and I am willing, consequently, to assume that the
majority's rule would provide a degree of increased procedural
protection in respect to those particular sentencing factors
currently embodied in statutes. I nonetheless believe that any such
increased protection provides little practical help and comes at
too high a price. For one thing, by leaving mandatory minimum
sentences untouched, the majority's rule simply encourages any
legislature interested in asserting control over the sentencing
process to do so by creating those minimums. That result would mean
significantly less procedural fairness, not more.
For another thing, this Court's case law, prior to
Jones
v.
United States, 526 U. S. 227, 243, n. 6
(1999), led legislatures to believe that they were permitted to
increase a statutory maximum sentence on the basis of a sentencing
factor. See
ante, at 529-539 (O'CONNOR, J., dissenting); see
also,
e. g., McMillan, supra, at 84-91 (indicating that a
legislature could impose mandatory sentences on the basis of
sentencing factors, thereby suggesting it could impose more
flexible statutory maximums on same basis). And legislatures may
well have relied upon that belief. See,
e. g., 21 U.
S. C. § 841(b) (1994 ed. and Supp. III) (providing penalties for,
among other things, possessing a "controlled substance" with intent
to distribute it, which sentences vary dramatically depending upon
the amount of the drug possessed, without requiring jury
determination of the amount); N. J. Stat. Ann. §§
2C:43-6,
2C:43-7, 2C:44-1a-f,
2C:44-3 (West 1995 and Supp.
1999-2000) (setting sentencing ranges for crimes, while providing
for lesser or greater punishments
565
depending upon judicial findings regarding certain "aggravating"
or "mitigating" factors); Cal. Penal Code Ann. § 1170 (West Supp.
2000) (similar); see also Cal. Court Rule 420(b) (1996) (providing
that "[c]ircumstances in aggravation and mitigation" are to be
established by the sentencing judge based on "the case record, the
probation officer's report, [and] other reports and statements
properly received").
As JUSTICE O'CONNOR points out, the majority's rule creates
serious uncertainty about the constitutionality of such statutes
and about the constitutionality of the confinement of those
punished under them. See
ante, at 549552 (dissenting
opinion). The few
amicus briefs that the Court received in
this case do not discuss the impact of the Court's new rule on, for
example, drug crime statutes or state criminal justice systems.
This fact, I concede, may suggest that my concerns about disruption
are overstated; yet it may also suggest that (despite
Jones
and given
Almendarez-Torres) so absolute a constitutional
prohibition is unexpected. Moreover, the rationale that underlies
the Court's rule suggests a principle-jury determination of all
sentencing-related facts-that, unless restricted, threatens the
workability of every criminal justice system (if applied to judges)
or threatens efforts to make those systems more uniform, hence more
fair (if applied to commissions).
Finally, the Court's new rule will likely impede legislative
attempts to provide authoritative guidance as to how courts should
respond to the presence of traditional sentencing factors. The
factor at issue here-motive-is such a factor. Whether a robber
takes money to finance other crimes or to feed a starving family
can matter, and long has mattered, when the length of a sentence is
at issue. The State of New Jersey has determined that one
motive-racial hatred-is particularly bad and ought to make a
difference in respect to punishment for a crime. That determination
is reasonable. The procedures mandated are consistent with
traditional sentencing practice. Though additional proce-
566
dural protections might well be desirable, for the reasons
JUSTICE O'CONNOR discusses and those I have discussed, I do not
believe the Constitution requires them where ordinary sentencing
factors are at issue. Consequently, in my view, New Jersey's
statute is constitutional.
I respectfully dissent.
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