OCTOBER TERM, 1998
Syllabus
JONES
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 97-6203. Argued October 5, 1998-Decided March 24,1999
Petitioner was charged with,
inter alia, carjacking, in
violation of 18 U. S. C. § 2119, which at the time provided, as
relevant here, that a person possessing a firearm who "takes a
motor vehicle ... from the person or presence of another by force
and violence or by intimidation ... shall-(l) be ... imprisoned not
more than 15 years ... , (2) if serious bodily injury ... results,
be ... imprisoned not more than 25 years ... , and (3) if death
results, be ... imprisoned for any number of years up to life ....
" The indictment made no reference to §2119's numbered subsections
and charged none of the facts mentioned in the latter two.
Petitioner was told at the arraignment that he faced a maximum
15-year sentence for carjacking, and the jury instructions at his
trial defined that offense by reference solely to § 2119(1). After
he was found guilty, however, the District Court imposed a 25-year
sentence on the carjacking charge because one victim suffered
serious bodily injury. The court rejected petitioner's objection
that serious bodily injury was an element of the offense, which had
been neither pleaded in the indictment nor proven before the jury.
In affirming, the Ninth Circuit agreed that § 2119(2) set out a
sentencing factor, not an element of an independent offense.
Held: Section 2119 establishes three separate offenses by
the specification of elements, each of which must be charged by
indictment, proven beyond a reasonable doubt, and submitted to a
jury for its verdict. Pp. 232-252.
(a) The superficial impression that § 2119's subsections are
only sentencing provisions loses clarity when one looks at
subsections (2) and (3), which not only provide for steeply higher
penalties, but condition them on further facts (injury, death) that
seem quite as important as the elements in the principal paragraph
(force, violence, intimidation). The Government stresses that the
numbered subsections do not stand alone in defining offenses, most
of whose elements are set out in the statute's opening paragraph,
and that this integrated structure suggests that the statute
establishes only a single offense. The Government also argues that
the numbered subsections come after the word "shall," which often
divides offense-defining provisions from those that specify
sentences. A number of countervailing structural considerations,
how-
228
Syllabus
ever, weaken those points. First, if the shorter subsection (2)
does not stand alone, neither does § 2119's more voluminous first
paragraph, which by itself would merely describe some obnoxious
behavior, never actually telling the reader that it is a crime.
Only the numbered subsections complete the thought. Second, "shall"
does not invariably separate offense-defining clauses from
sentencing provisions. Section 2119's text alone does not justify
any confident inference. Statutory drafting, however, occurs
against a backdrop not merely of structural conventions of varying
significance, but of traditional treatment of certain categories of
important facts, like degree of injury to victims, in relation to
particular crimes. If a statute is unclear about whether it treats
a fact as element or penalty aggravator, it makes sense to look at
what other statutes have done, since Congress is unlikely to intend
any radical departures from past practice without making a point of
saying so. See
Almendarez-Torres v.
United States,
523 U. S. 224,
230. Here, a search for comparable examples suggests that Congress
had separate and aggravated offenses in mind when it employed
numbered subsections in § 2119, for it unmistakably identified
serious bodily injury or related facts of violence as an offense
element in several other federal statutes, including two of the
three robbery statutes on which it modeled the carjacking statute.
This conclusion is bolstered by the States' practice of treating
serious bodily injury as an element defining a distinct offense of
aggravated robbery. Neither a 1996 amendment to the statute nor the
statute's legislative history supports the Government's reading.
Pp. 232-239.
(b) The Government's construction of the statute would raise a
serious constitutional question under the Fifth Amendment's Due
Process Clause and the Sixth Amendment's notice and jury trial
guarantees: when a jury determination has not been waived, may
judicial factfinding by a preponderance support the application of
a provision that increases the potential severity of the penalty
for a variant of a given crime? Although this question has been
recognized in a series of cases over the past quarter century, see,
e. g., Mullaney v.
Wilbur, 421 U. S. 684, it has not
been resolved by those cases, see,
e. g., Almendarez-Torres
v.
United States, supra. Any doubt on the issue of statutory
construction should thus be resolved in favor of avoiding the
question, under the rule that, "where a statute is susceptible of
two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such
questions are avoided, [this Court's] duty is to adopt the latter."
United States ex rel. Attorney General v.
Delaware
&
Hudson Co.,
213 U. S. 366, 408. pp.
239-252.
116 F.3d
1487, reversed and remanded.
229
SOUTER, J., delivered the opinion of the Court, in which
STEVENS, SCALIA, THOMAS, and GINSBURG, JJ., joined. STEVENS, J.,
post, p. 252, and SCALIA, J.,
post, p. 253, filed
concurring opinions. KENNEDY, J., filed a dissenting opinion, in
which REHNQUIST, C. J., and O'CONNOR and BREYER, JJ., joined,
post, p. 254.
Quin Denvir argued the cause for petitioner. With him on
the briefs were
Francine Zepeda and
John P.
Balazs.
Edward C. DuMont argued the cause for the United States. With
him on the brief were Solicitor General Waxman, Assistant Attorney
General Robinson, Deputy Solicitor General Dreeben, and Nina
Goodman. *
JUSTICE SOUTER delivered the opinion of the Court.
This case turns on whether the federal carjacking statute, 18 U.
S. C. § 2119, as it was when petitioner was charged, defined three
distinct offenses or a single crime with a choice of three maximum
penalties, two of them dependent on sentencing factors exempt from
the requirements of charge and jury verdict. We think the better
reading is of three distinct offenses, particularly in light of the
rule that any interpretive uncertainty should be resolved to avoid
serious questions about the statute's constitutionality.
I
In December 1992, petitioner, Nathaniel Jones, and two others,
Oliver and McMillan, held up two men, Mutanna and Mardaie. While
Jones and McMillan went through the victims' pockets, Oliver stuck
his gun in Mutanna's left ear, and later struck him on the head.
Oliver and McMillan made their getaway in the Cadillac Jones had
driven to the scene, while Jones forced Mardaie into Mutanna's
Honda and drove off after them. After stopping to put Mardaie out,
Jones
*David M. Porter and
Edward M. Chikofsky filed a
brief for the National Association of Criminal Defense Lawyers as
amicus curiae urging reversal.
230
sped away in the stolen car subject to police pursuit, which
ended when Jones crashed into a telephone pole.
United
States v.
Oliver, 60 F.3d
547, 549
(CA9 1995); Tr. 159, 387, 310 (July 27-28,
1993).
A grand jury in the Eastern District of California indicted
Jones and his two accomplices on two counts: using or aiding and
abetting the use of a firearm during and in relation to a crime of
violence, in violation of 18 U. s. C. § 924(c), and carjacking or
aiding and abetting carjacking, in violation of 18 U. s. C. § 2119,
which then read as follows:
"Whoever, possessing a firearm as defined in section 921 of this
title, takes a motor vehicle that has been transported, shipped, or
received in interstate or foreign commerce from the person or
presence of another by force and violence or by intimidation, or
attempts to do so, shall-
"(1) be fined under this title or imprisoned not more than 15
years, or both,
"(2) if serious bodily injury (as defined in section 1365 of
this title) results, be fined under this title or imprisoned not
more than 25 years, or both, and
"(3) if death results, be fined under this title or imprisoned
for any number of years up to life, or both." 18 U. s. C. § 2119
(1988 ed., Supp. V).l
The indictment made no reference to the statute's numbered
subsections and charged none of the facts mentioned in the latter
two, and at the arraignment the Magistrate Judge told
1 Congress amended the statute in 1994 and 1996. In the Violent
Crime Control and Law Enforcement Act of 1994, it deleted the
phrase in the first paragraph concerning firearm possession and
replaced it with the phrase, "with the intent to cause death or
serious bodily harm." § 60003(a)(14), 108 Stat. 1970. It also made
death a possible punishment for offenses committed under subsection
(3).
Ibid. In the Carjacking Correction Act of 1996,
Congress specified that the term "serious bodily injury" in
subsection (2) includes certain sexual assaults. § 2, 110 Stat.
3020.
231
Jones that he faced a maximum sentence of 15 years on the
carjacking charge. App. 4-5, 7. Consistently with this advice, the
District Court's subsequent jury instructions defined the elements
subject to the Government's burden of proof by reference solely to
the first paragraph of § 2119, with no mention of serious bodily
injury.
Id., at 10. The jury found Jones guilty on both
counts.
The case took a new turn, however, with the arrival of the
presentence report, which recommended that petitioner be sentenced
to 25 years for the carjacking because one of the victims had
suffered serious bodily injury. The report noted that Mutanna had
testified that Oliver's gun caused profuse bleeding in Mutanna's
ear, and that a physician had concluded that Mutanna had suffered a
perforated eardrum, with some numbness and permanent hearing loss.
I d., at 15-16; 60 F. 3d, at 554. Jones objected that the
25-year recommendation was out of bounds, since serious bodily
injury was an element of the offense defined in part by § 2119(2),
which had been neither pleaded in the indictment nor proven before
the jury. App. 12-13. The District Court saw the matter differently
and, based on its finding that the serious bodily injury allegation
was supported by a preponderance of the evidence, imposed a 25-year
sentence on the carjacking count,
ibid., together with a
consecutive 5-year sentence for the firearm offense, 60 F. 3d, at
549.
Like the trial court, the Court of Appeals did not read §
2119(2) as setting out an element of an independent offense.2
Id., at 551-554. The Ninth Circuit thus agreed with the
Eleventh, see
United States v.
Williams, 51 F.3d
1004, 1009-1010 (1995), in reasoning that the structure of
2 The Ninth Circuit vacated another portion of the District
Court's sentencing decision and remanded.
United States v.
Oliver, 60 F.3d
547, 555-556 (1995). On remand, the District Court reduced
petitioner's carjacking sentence to 20 years and his total sentence
to 25 years, and the Court of Appeals affirmed. App. 41-43; judgt.
order reported at
116 F.3d
1487 (1997).
232
the statute, particularly the grammatical dependence of the
numbered subsections on the first paragraph, demonstrated
Congress's understanding that the subsections did not complete the
definitions of separate crimes. 60 F. 3d, at 552553. For its view
that the subsections provided sentencing factors, the court found
additional support in the statute's legislative history. The
heading on the subtitle of the bill creating § 2119 was "Enhanced
Penalties for Auto Theft," which the court took as indicating that
the statute's numbered subsections merely defined sentencing
enhancements.
I d., at 553. The court also noted several
references in the Committee Reports and floor debate on the bill to
enhanced penalties for an apparently single carjacking offense.
Ibid. Because of features arguably distinguishing this case
from
Almendarez-Torres v.
United States, 523 U. S. 224 (1998), we
granted certiorari, 523 U. S. 1045 (1998), and now reverse.
II
Much turns on the determination that a fact is an element of an
offense rather than a sentencing consideration, given that elements
must be charged in the indictment, submitted to a jury, and proven
by the Government beyond a reasonable doubt. See,
e. g.,
Hamling v.
United States, 418 U. S. 87, 117 (1974);
United States v.
Gaudin, 515 U. S. 506, 509510
(1995). Accordingly, some statutes come with the benefit of
provisions straightforwardly addressing the distinction between
elements and sentencing factors. See
McMillan v.
Pennsylvania, 477 U. S. 79, 85-86 (1986)
(express identification of statutory provision as sentencing
factor). Even without any such help, however, § 2119 at first
glance has a look to it suggesting that the numbered subsections
are only sentencing provisions. It begins with a principal
paragraph listing a series of obvious elements (possession of a
firearm, taking a motor vehicle, connection with interstate
commerce, and so on). That paragraph comes close to standing on its
own, followed by sentencing provisions, the first of which,
233
subsection (1), certainly adds no further element. But the
superficial impression loses clarity when one looks at the penalty
subsections (2) and (3). These not only provide for steeply higher
penalties, but condition them on further facts (injury, death) that
seem quite as important as the elements in the principal paragraph
(e. g., force and violence, intimidation). It is at best
questionable whether the specification of facts sufficient to
increase a penalty range by two-thirds, let alone from 15 years to
life, was meant to carry none of the process safeguards that
elements of an offense bring with them for a defendant's benefit.
The "look" of the statute, then, is not a reliable guide to
congressional intentions, and the Government accordingly advances
two, more subtle structural arguments for its position that the
fact specified in subsection (2) is merely a sentencing factor.
Like the Court of Appeals, the Government stresses that the
statute's numbered subsections do not stand alone in defining
offenses, most of whose elements on anyone's reckoning are set out
in the statute's opening paragraph. This integrated structure is
said to suggest that the statute establishes only a single offense.
To the same point, the Government argues that the numbered
subsections come after the word "shall," which often divides
offense-defining provisions from those that specify sentences.
Brief for United States 15-18. While these points are sound enough
as far as they go, they are far short of dispositive even on their
own terms, whereas they are weakened here by a number of
countervailing structural considerations. First, as petitioner
notes, Reply Brief for Petitioner 1-2, if the shorter subsection
(2) of § 2119 does not stand alone, neither does the section's more
voluminous first paragraph. In isolation, it would merely describe
some very obnoxious behavior, leaving any reader assuming that it
must be a crime, but never being actually told that it is. Only the
numbered subsidiary provisions complete the thought. Section 2119
is thus unlike most offense-defining provisions in the federal
criminal
234
code, which genuinely stand on their own grammatical feet thanks
to phrases such as "shall be unlawful," see,
e. g.,
18 U. S. C. § 922(g), "shall be punished," see,
e.
g., § 511A(a), or "shall be guilty of," see,
e. g., 18 U. S.
C. § 514 (1994 ed., Supp. II), which draw a provision to its close.
Second, as for the significance of the word "shall," although it
frequently separates offense-defining clauses from sentencing
provisions, it hardly does so invariably. One of the robbery
statutes that served as a model for § 2119,3 see 18 U. S. C. §§
2118(a)(3), (b)(3), for example, places elements of the offense on
either side of "shall." And, of course, where the supposedly
"elements" side is itself grammatically incomplete (as here), the
placement of "shall" is oddly equivocal. Indeed, both the
Government and the Courts of Appeals treat the statute perhaps most
closely resembling this one, § 1365(a) (consumer tampering), as
defining basic and aggravated offenses, one of which is defined in
terms of serious bodily injury. See,
e. g., United States v.
Me ling, 47 F.3d
1546, 1551 (CA9 1995).
These clues derived from attention to structure and parsing of
wording, like those the dissent holds up to distinguish the
carjacking act both from the robbery statutes upon which it was
modeled and state aggravated robbery statutes, see
post, at
260-262, 263-264 (opinion of KENNEDY, J.), turn out to move us only
so far in our effort to infer congressional intent. The text alone
does not justify any confident inference. But statutory drafting
occurs against a backdrop not merely of structural conventions of
varying significance, but of traditional treatment of certain
categories of important facts, like the degree ofinjury to victims
of crime, in relation to particular crimes. If a given statute is
unclear about treating such a fact as element or penalty
aggravator, it makes sense to look at what other statutes have
done, on the fair assumption that Congress is unlikely to intend
any radical departures from past practice without making a point of
saying so.
3 See n. 4,
infra.
235
We engaged in just such an enquiry this past Term in
Almendarez- Torres, where we stressed the history of
treating recidivism as a sentencing factor, and noted that, with
perhaps one exception, Congress had never clearly made prior
conviction an offense element where the offense conduct, in the
absence of recidivism, was independently unlawful. 523 U. S., at
230. Here, on the contrary, the search for comparable examples more
readily suggests that Congress had separate and aggravated offenses
in mind when it employed the scheme of numbered subsections in §
2119. Although Congress has explicitly treated serious bodily
injury as a sentencing factor, see,
e. g., 18 U. S. C. §
2262(b)(2) (interstate violation of a protection order); §
248(b)(2) (free access to clinic entrances; bodily injury), it has
unmistakably identified serious bodily injury as an offense element
in any number of statutes, see,
e. g., 10 U. S. C. §
928(b)(2) (assault by a member of the armed forces); 18 U. S. C. §
37(a)(1) (violence at international airports); § 1091(a)(2)
(genocide). The likelihood that Congress understood injury to be an
offense element here follows all the more from the fact that
carjacking is a type of robbery, and serious bodily injury has
traditionally been treated, both by Congress and by the state
legislatures, as defining an element of the offense of aggravated
robbery. As the Government acknowledges, Brief for United States
20-21, and n. 8, Congress modeled the federal carjacking statute on
several other federal robbery statutes.4 One of them, 18 U. S. C. §
2118 (robbery involving controlled substances), clearly makes
causing serious bodily injury an element of the offense. It
provides that "[w]hoever takes or attempts to take from the person
or presence of another by force or violence or by intimidation any
[of certain controlled
4 Legislative history identifies three such models. See H. R.
Rep.
No. 102-851, pt. 1, p. 17 (1992) ("The definition of the offense
tracks the language used in other federal robbery statutes (18 U.
S. C. §§ 2111, 2113, 2118)"). One of them, 18 U. S. C. §2111
(robbery in areas of federal maritime or territorial jurisdiction),
lacks aggravated forms of the offense altogether, and thus is not
on point here.
236
substances] shall ... be fined ... or imprisoned not more than
twenty years, or both, if (1) the replacement cost of the
[controlled substance] was not less than $500, ... or (3) another
person was killed or suffered significant bodily injury as a result
of such taking or attempt." § 2118(a)(3); see also § 2118(b)(3).5 A
second model, § 2113 (bank robbery), as the Government concedes,
see Brief for United States 17, makes related facts of violence,
that is, assault and jeopardizing life by using a dangerous weapon,
elements defining an aggravated form of that type of robbery. See
§§ 2113(d), (e); cf.
Almendarez-Torres, supra, at 231
(citing bank robbery statute as example of statute establishing
greater and lesser included offenses);
McMillan, 477 U. S.,
at 88 (contrasting § 2113(d) with provision defining a sentencing
enhancement).
When pressed at oral argument, the Government proved unable to
explain why Congress might have chosen one treatment of serious
bodily harm or violence in defining two of the three offenses it
used as its models for § 2119 and a different treatment in writing
the carjacking statute itself, see Tr. of Oral Arg. 41-44, and we
are unable to imagine a convincing reason ourselves. We thus think
it fair to say that, as in the earlier robbery statutes, so in the
carjacking statute, Congress probably intended serious bodily
injury to be an element defining an aggravated form of the
crime.
State practice bolsters the conclusion. Many States use
causation of serious bodily injury or harm as an element defining a
distinct offense of aggravated robbery. See,
e. g., Ala.
Code § 13A-8-41(a)(2) (1994) (robbery in the first degree defined
in part by the causing of "serious physical injury");
5 The dissent, in passing, questions our view that § 2118(a)
makes the causing of significant bodily injury an element of the
offense defined by that section, see
post, at 261-262, but
it offers no reason to doubt our reading. Given that § 2118(a)
establishes only one maximum punishment, and that it makes
eligibility for such punishment contingent on the establishment of
at least one of three facts, one of which is the causing of death
or significant bodily injury, we think our reading is the only
sensible one.
237
Alaska Stat. Ann. § 11.41.500(a)(3) (1996) (same); Ark. Code
Ann. § 5-12-103 (1997) (aggravated robbery; "[i]nflicts or attempts
to inflict death or serious physical injury"); Conn. Gen. Stat. §
53a-134(a)(1) (1994) (robbery in the first degree; "[c]auses
serious physical injury"); Iowa Code § 711.2 (1993) (robbery in the
first degree; "purposely inflicts or attempts to inflict serious
injury"); Kan. Stat. Ann. § 21-3427 (1995) (aggravated robbery;
"inflicts bodily harm"); Ky. Rev. Stat. Ann. § 515.020(1)(a)
(Michie 1990) (robbery in the first degree; "causes physical
injury"); N. H. Rev. Stat. Ann. § 636:1(III)(c) (1996) (class A
felony of robbery; "[i]nflicted or attempted to inflict death or
serious injury"); N. Y. Penal Law § 160.15 (McKinney 1988) (robbery
in the first degree; "[c]auses serious physical injury"); Ore. Rev.
Stat. § 164.415(1)(c) (1990) (robbery in the first degree;
"[c]auses or attempts to cause serious physical injury"); Tex.
Penal Code Ann. § 29.03(a)(1) (1994) (aggravated robbery; "causes
serious bodily injury"); Utah Code Ann. § 76-6-302(1)(b) (1995)
(aggravated robbery; "causes serious bodily injury"); Wash. Rev.
Code § 9A.56.200(1)(c) (1994) (robbery in the first degree;
"[i]nflicts bodily injury"). While the state practice is not,
admittedly, direct authority for reading the federal carjacking
statute, it does show that in treating serious bodily injury as an
element, Congress would have been treading a well-worn path.
Despite these indications and the equivocal structural clues,
the Government suggests that a 1996 amendment supports its reading
of the carjacking statute as previously enacted. In the Carjacking
Correction Act of 1996, 110 Stat. 3020, Congress provided that the
term "serious bodily injury" in subsection (2) should include
sexual abuse and aggravated sexual abuse as defined in §§ 2241 and
2242. The Government points to several statements in the 1996
amendment's legislative history in which subsection (2) is
described as providing a "penalty enhancement," see,
e. g.,
H. R. Rep. No. 104-787, pp. 2, 3 (1996), as showing that subsection
(2)
238
defines a sentencing factor. Even those of us disposed to treat
legislative history as authority, however, find the quoted
statements unimpressive. Assuming that "penalty enhancement" was
meant to be synonymous with "sentencing factor," the legislative
history also contains contrary indications in some of the
statements made by the 1996 amendment's sponsors, suggesting an
assumption that subsection (2) established an element or elements
that had to be proven at trial. See 142 Congo Rec. 19769 (1996)
(statement of Sen. Biden) ("[T]he defendant had been
convicted of raping the woman" (emphasis added)). This
hardly seems the occasion to doubt that "subsequent legislative
history is a 'hazardous basis for inferring the intent of an
earlier' Congress."
Pension Benefit Guaranty Corporation v.
LTV Corp., 496
U. S. 633,650 (1990) (quoting
United States v.
Price, 361 U.
S. 304, 313 (1960)). Indeed, our leeriness of relying on
hindsight expressed in legislative history is only confirmed by
recognizing what oddity there would be in defining the fact of
serious bodily injury by reference to a distinct offense with its
own offense elements, like sexual abuse, while at the same time
assuming that the fact so defined is merely a sentencing
consideration.
Nor do we think the legislative history that attracted the Court
of Appeals is any more helpful to the Government. See 60 F. 3d, at
553. The Committee Reports and floor debate on the statute refer to
its augmentation of the criminal law in the singular, not the
plural, speaking only of a new federal "crime" or "offense" of
carjacking in the singular. See,
e. g., H. R. Rep. No.
102-851, pt. 1, p. 17 (1992); 138 Congo Rec. 32500 (1992)
(statement of Rep. Dingell). But what we make of the
singular-plural distinction turns on the circumstances.
Characterizing a cluster of provisions as enacting something to be
described by the singular terms "offense" or "crime" would signify
a good deal if the speakers or writers were addressing a point on
which the distinction mattered. That is not, however, what they
were doing in the
239
passages cited, where those references couched in the singular
did not occur in discussions of the issue of offense elements
versus sentencing factors that we confront here. So, we think their
significance is slight. On the subject of legislative history, we
should add that we see nothing favorable to the Government in the
fact that the statement in the House Report explaining that the
drafters of the carjacking statute drew on the examples of other
federal robbery statutes referred to an early version of the
carjacking statute when it lacked any reference to the aggravated
forms of the offense now defined by subsections (2) and (3). See H.
R. Rep. No. 102-851,
supra, at 17. As against the suggestion
that Congress looked to the earlier robbery statutes only when it
settled on the language contained in the carjacking statute's first
paragraph, we think it would have been strange for Congress to find
guidance in the other robbery statutes at the beginning of the
legislative process and then just forget about them. As the
Government itself suggests in a somewhat different context, there
is no reason to think that Congress "might have abandoned [those]
ready federal models" in developing the more fully elaborated
version of the statute that it ultimately adopted. Brief for United
States 21, n. 8.
III
While we think the fairest reading of § 2119 treats the fact of
serious bodily harm as an element, not a mere enhancement, we
recognize the possibility of the other view. Any doubt that might
be prompted by the arguments for that other reading should,
however, be resolved against it under the rule, repeatedly
affirmed, that "where a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are
avoided, our duty is to adopt the latter."
United States ex rel.
Attorney General v.
Delaware &
Hudson Co.,
213 U. S. 366,
408 (1909); see also
United States v.
Jin Fuey Moy,
241 U. S. 394,
401 (1916). It is "out
240
of respect for Congress, which we assume legislates in the light
of constitutional limitations,"
Rust v.
Sullivan, 500
U. S. 173, 191 (1991), that we adhere to this principle, which "has
for so long been applied by this Court that it is beyond debate."
Edward J.
DeBartolo Corp. v.
Florida Gulf Coast
Building &
Constr. Trades Council, 485 U. S. 568, 575
(1988); see also
United States v.
X-Citement Video,
Inc., 513 U. S.
64, 78 (1994).
As the Government would have us construe it, the statute would
be open to constitutional doubt in light of a series of cases over
the past quarter century, dealing with due process and the
guarantee of trial by jury. The first of these,
Mullaney v.
Wilbur, 421 U.
S. 684 (1975), reviewed a Maine murder statute providing that
the element of malice (in the sense of want of provocation,
Patterson v.
New York, 432 U. S. 197, 215
(1977)) would be presumed upon proof of intent to kill resulting in
death, subject to a defendant's right of rebuttal that he had acted
on provocation in the heat of passion, which would reduce the
offense to manslaughter.
Mullaney, supra, at 686, and n. 3.
The challenge was that the presumption subject to rebuttal relieved
the State of its due process burden to prove every element of the
crime beyond a reasonable doubt, as explained in
In re
Winship, 397 U.
S. 358, 364 (1970). The State replied that the challenge was
merely formalistic, that the State's law in effect established a
generic crime of felonious homicide,
Mullaney, supra, at
688, 696-697, on which view the fact subject to presumption and
rebuttal would have gone simply to sentence, and
Winship
would not have been controlling. But the Court declined to accord
the State this license to recharacterize the issue, in part because
the State's reading left its statute at odds both with the
centuries-old common law recognition of malice as the fact
distinguishing murder from manslaughter and with the widely held
modern view that heat of passion, once raised by the evidence, was
a subject of the State's burden, 421 U. S., at 692-696, and in part
because an unlimited
241
choice over characterizing a stated fact as an element would
leave the State substantially free to manipulate its way out of
Winship, 421 U. S., at 698.
Two Terms later, in
Patterson v.
New York, supra,
the Court ruled on a
Winship challenge to a scheme defining
murder as causing death with intent, subject to an affirmative
defense of extreme emotional disturbance for which there was a
reasonable explanation. 432 U. S., at 205-206. Unlike Maine's law,
New York's raised no presumption of malice; malice was omitted from
the elements of murder. Patterson contended that because the
presence or absence of an extreme emotional disturbance affected
the severity of sentence,
Winship and
Mullaney
required the State to prove the absence of that fact beyond a
reasonable doubt. We rejected this argument and "decline[d] to
adopt as a constitutional imperative ... that a State must disprove
beyond a reasonable doubt every fact constituting any and all
affirmative defenses related to the culpability of an accused." 432
U. S., at 210. We identified the use of a presumption to establish
an essential ingredient of the offense as the curse of the Maine
law, because the "shifting of the burden of persuasion with respect
to a fact which the State deems so important that it must be either
proved or presumed is impermissible under the Due Process Clause."
Id., at 215. With one caveat, therefore,
Patterson
left the States free to choose the elements that define their
crimes, without any impediment from
Winship. The caveat was
a stated recognition of some limit upon state authority to
reallocate the traditional burden of proof, 432 U. S., at 210,
which in that case was easily satisfied by the fact that "at common
law the burden of proving" the mitigating circumstances of severe
emotional disturbance "rested on the defendant."
Id., at
202; see also
id., at 211;
Mullaney, supra, at
693-694. While a narrow reading of this limit might have been no
more than a ban on using presumptions to reduce elements to the
point of being nominal, a broader reading was equally open, that
the State
242
lacked the discretion to omit "traditional" elements from the
definition of crimes and instead to require the accused to disprove
such elements.
These cases about allocation of burden, with their implications
about the charging obligation and the requisite quantum of proof,
were succeeded by
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), in
which the
Winship issue rose from a provision that a judge's
finding (by a preponderance) of visible possession of a firearm
would require a mandatory minimum sentence for certain felonies,
but a minimum that fell within the sentencing ranges otherwise
prescribed. Although the Court rejected the petitioner's claim
insofar as it would have required a finding beyond a reasonable
doubt of any fact upon which a mandatory minimum sentence depended
(and rejected certain subsidiary arguments as well), it did observe
that the result might have been different if proof of visible
possession had exposed a defendant to a sentence beyond the maximum
that the statute otherwise set without reference to that fact. 477
U. S., at 88.
McMillan is notable not only for acknowledging the
question of due process requirements for factfinding that raises a
sentencing range, but also for disposing of a claim that the
Pennsylvania law violated the Sixth Amendment right to jury trial
as well. The petitioner's basic argument was for a right to jury
determination of all "ultimate facts concerning the offense
committed," id., at 93, and although the Court disposed of this by
reference back to its due process discussion, that discussion had
broached the potential constitutional significance of factfinding
that raised the sentencing ceiling.
McMillan, then, recognizes a question under both the Due
Process Clause of the Fourteenth Amendment and the jury guarantee
of the Sixth: when a jury determination has not been waived, may
judicial factfinding by a preponderance support the application of
a provision that increases the potential severity of the penalty
for a variant of a given crime?
243
The seriousness of the due process issue is evident from
Mul
laney's insistence that a State cannot manipulate its way
out of
Winship, and from
Patterson's recognition of a
limit on state authority to reallocate traditional burdens of
proof; the substantiality of the jury claim is evident from the
practical implications of assuming Sixth Amendment indifference to
treating a fact that sets the sentencing range as a sentencing
factor, not an element.6
The terms of the carjacking statute illustrate very well what is
at stake. If serious bodily injury were merely a sentencing factor
under § 2119(2) (increasing the authorized penalty by two thirds,
to 25 years), then death would presumably be nothing more than a
sentencing factor under subsection (3) (increasing the penalty
range to life). If a potential penalty might rise from 15 years to
life on a nonjury determination, the jury's role would
correspondingly shrink
6 The dissent repeatedly chides us for failing to state
precisely enough the principle animating our view that the
carjacking statute, as construed by the Government, may violate the
Constitution. See
post, at 254, 266, 277. The preceding
paragraph in the text expresses that principle plainly enough, and
we restate it here: 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. Because
our prior cases suggest rather than establish this principle, our
concern about the Government's reading of the statute rises only to
the level of doubt, not certainty.
Contrary to the dissent's suggestion, the constitutional
proposition that drives our concern in no way "call[s] into
question the principle that the definition of the elements of a
criminal offense is entrusted to the legislature."
Post, at
270 (internal quotation marks omitted). The constitutional
guarantees that give rise to our concern in no way restrict the
ability of legislatures to identify the conduct they wish to
characterize as criminal or to define the facts whose proof is
essential to the establishment of criminal liability. The
constitutional safeguards that figure in our analysis concern not
the identity of the elements defining criminal liability but only
the required procedures for finding the facts that determine the
maximum permissible punishment; these are the safeguards going to
the formality of notice, the identity of the factfinder, and the
burden of proof.
244
from the significance usually carried by determinations of guilt
to the relative importance of low-level gatekeeping: in some cases,
a jury finding of fact necessary for a maximum is-year sentence
would merely open the door to a judicial finding sufficient for
life imprisonment. It is therefore no trivial question to ask
whether recognizing an unlimited legislative power to authorize
determinations setting ultimate sentencing limits without a jury
would invite erosion of the jury's function to a point against
which a line must necessarily be drawn.
The question might well be less serious than the constitutional
doubt rule requires if the history bearing on the Framers'
understanding of the Sixth Amendment principle demonstrated an
accepted tolerance for exclusively judicial factfinding to peg
penalty limits. But such is not the history. To be sure, the
scholarship of which we are aware does not show that a question
exactly like this one was ever raised and resolved in the period
before the framing. On the other hand, several studies demonstrate
that on a generallevel the tension between jury powers and powers
exclusively judicial would likely have been very much to the fore
in the Framers' conception of the jury right.
The fact that we point to no statutes of the earlier time
exemplifying the distinction between elements and facts that
elevate sentencing ranges is unsurprising, given the breadth of
judicial discretion over fines and corporal punishment in less
important, misdemeanor cases, see,
e. g., J. Baker,
Introduction to English Legal History 584 (3d ed. 1990); 4 W.
Blackstone, Commentaries on the Laws of England 372 (1769)
(hereinafter Blackstone); Preyer, Penal Measures in the American
Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982), and
the norm of fixed sentences in cases of felony, see 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.
245
1987); 4 Blackstone 238-239; A. Scott, Criminal Law in Colonial
Virginia 27-28, 103-106 (1930).
Even in this system, however, competition developed between
judge and jury over the real significance of their respective
roles. The potential or inevitable severity of sentences was
indirectly checked by juries' assertions of a mitigating power when
the circumstances of a prosecution pointed to political abuse of
the criminal process or endowed a criminal conviction with
particularly sanguinary consequences. 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 238-239.7
Countervailing measures to diminish the juries' power were
naturally forthcoming, with ensuing responses both in the mother
country and in the Colonies that validate, though they do not
answer, the question that the Government's position here would
raise. One such move on the Government's side was a parliamentary
practice of barring the right to jury trial when defining new,
statutory offenses. See,
e. g., Frankfurter & Corcoran,
Petty Federal Offenses and the Constitutional Guaranty of Trial by
Jury, 39 Harv. L. Rev. 917,925-930 (1926); 4 Blackstone 277-279.
This practice extended to violations of the Stamp Act and recurred
in statutes regulating imperial trade, see C. Ubbelohde,
ViceAdmiralty Courts and the American Revolution 16-21, 74-80
(1960); Wroth, The Massachusetts Vice Admiralty Court, in
7For English practice, see,
e. g., Langbein, Shaping the
EighteenthCentury Criminal Trial, 50 U. Chi. L. Rev. 1, 22, 52-54
(1983); Green, The English Criminal Trial Jury, in The Trial Jury
in England, France, Germany 1700-1900, pp. 41, 48-49 (A. Schioppa
ed. 1987). For Colonial American practice, see,
e. g., J.
Goebell & T. Naughton, Law Enforcement in Colonial New York
673-674 (1944);
State v.
Bennet, 3 Brevard 515 (S. C.
1815).
246
Law and Authority in Colonial America 32, 50 (G. Billias ed.
1965), and was one of the occasions for the protest in the
Declaration of Independence against deprivation of the benefit of
jury trial, see P. Maier, American Scripture 118 (1997). But even
before the Declaration, a less revolutionary voice than the
Continental Congress had protested against the legislative
practice, in words widely read in America. The use of nonjury
proceedings had "of late been so far extended," Blackstone warned
in the 1760's, "as, if a check be not timely given, to threaten the
disuse of our admirable and truly English trial by jury." 4
Blackstone 278. Identifying trial by jury as "the grand bulwark" of
English liberties, Blackstone contended that other liberties would
remain secure only "so long as this
palladium remains sacred
and inviolate, not only from all open attacks, (which none will be
so hardy as to make) but also from all secret machinations, which
may sap and undermine it; by introducing new and arbitrary methods
of trial, by justices of the peace, commissioners of the revenue,
and courts of conscience. And however
convenient these may
appear at first, (as doubtless all arbitrary powers, well executed,
are the most
convenient), yet let it be again remembered,
that delays, and little inconveniences in the forms of justice, are
the price that all free nations must pay for their liberty in more
substantial matters."
Id., at 342-344.
A second response to the juries' power to control outcomes
occurred in attempts to confine jury determinations in libel cases
to findings of fact, leaving it to the judges to apply the law and,
thus, to limit the opportunities for juror nullification.
Ultimately, of course, the attempt failed, the juries' victory
being embodied in Fox's Libel Act in Britain, see generally T.
Green, Verdict According to Conscience 318-355 (1985), and
exemplified in John Peter Zenger's acquittal in the Colonies, see,
e. g., J. Rakove, Original Meanings 300-302 (1996). It is
significant here not merely that the denouement of the restrictive
efforts left the juries in control, but
247
that the focus of those efforts was principally the juries'
control over the ultimate verdict, applying law to fact (or
"finding" the law, see,
e. g., id., at 301), and not the
factfinding role itself.8 There was apparently some accepted
understanding at the time that the finding of facts was simply too
sacred a jury prerogative to be trifled with in prosecution for
such a significant and traditional offense in the commonlaw
courts.9 That this history had to be in the minds of the Framers is
beyond cavil. According to one authority, the leading account of
Zenger's trial was, with one possible exception, "the most widely
known source of libertarian thought in England and America during
the eighteenth century." L. Levy, Freedom of Speech and Press in
Early American History 133 (1963). It is just as much beyond
8 The principle that the jury were the judges of fact and the
judges the deciders of law was stated as an established principle
as early as 1628 by Coke. See 1 E. Coke, Institutes of the Laws of
England 155b (1628)
("ad questionem facti non respondent
judices; ad questionem juris non respondent juratores"). See also
Langbein, The English Criminal Trial Jury on the Eve of the French
Revolution, in The Trial Jury in England, France, Germany,
supra, at 34, n. 60. Even the traditional, juryrestrictive
view of libel law recognized the jury's authority over matters of
fact. See,
e. g., King v.
Francklin, 17 How. St. Tr.
626, 672 (K. B. 1731) ("These [publications and the words having
the meaning ascribed to them] are the two matters of fact that come
under your consideration; and of which you are proper judges. But
then there is a third thing, to wit, Whether these defamatory
expressions amount to a libel or not? This does not belong to the
office of the jury, but to the office of the Court; because it is a
matter of law, and not of fact; and of which the Court are the only
proper judges"). Thus most participants in the struggle over jury
autonomy in seditious libel cases viewed the debate as concerned
with the extent of the jury's law-finding power, not its
unquestioned role as the determiner of factual issues. See T.
Green, Verdict According to Conscience 318-319 (1985). Some
influential jurists suggested that it might also be seen as a
struggle over the jury's right to find a particular fact, namely,
the required criminal intent. See 10 W. Holdsworth, History of
English Law 680-683 (1938).
9 See 4 Blackstone 354
(jurors could choose to stop at
special verdicts if they wished).
248
question that Americans of the period perfectly well understood
the lesson that the jury right could be lost not only by gross
denial, but by erosion. See
supra, at 245-247. 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).
In sum, there is reason to suppose that in the present
circumstances, however peculiar their details to our time and
place, the relative diminution of the jury's significance would
merit Sixth Amendment concern. It is not, of course, that anyone
today would claim that every fact with a bearing on sentencing must
be found by a jury; we have resolved that general issue and have no
intention of questioning its resolution. The point is simply that
diminishment of the jury's significance by removing control over
facts determining a statutory sentencing range would resonate with
the claims of earlier controversies, to raise a genuine Sixth
Amendment issue not yet settled.
Our position that the Sixth Amendment and due process issues are
by no means by the boards calls for a word about several cases that
followed
McMillan. Almendarez-Torres v.
United
States, 523 U. S.
224 (1998), decided last Term, stands for the proposition that
not every fact expanding a penalty range must be stated in a felony
indictment, the precise holding being that recidivism increasing
the maximum penalty need not be so charged. But the case is not
dispositive of the question here, not merely because we are
concerned with the Sixth Amendment right to jury trial and not
alone the rights to indictment and notice as claimed by
249
Almendarez-Torres, but because the holding last Term rested in
substantial part on the tradition of regarding recidivism as a
sentencing factor, not as an element to be set out in the
indictment. The Court's repeated emphasis on the distinctive
significance of recidivism leaves no question that the Court
regarded that fact as potentially distinguishable for
constitutional purposes from other facts that might extend the
range of possible sentencing. See id., at 230 ("At the outset, we
note that the relevant statutory subject matter is recidivism");
ibid. ("With recidivism as the subject matter in mind, we
turn to the statute's language"); id., at 243 ("First, the
sentencing factor at issue here-recidivismis a traditional, if not
the most traditional, basis for a sentencing court's increasing an
offender's sentence"); id., at 245 (distinguishing
McMillan
"in light of the particular sentencing factor at issue in this
case-recidivism"). One basis for that possible constitutional
distinctiveness is not hard to see: unlike virtually any other
consideration used to enlarge the possible penalty for an offense,
and certainly unlike the factor before us in this case, a prior
conviction must itself have been established through procedures
satisfying the fair notice, reasonable doubt, and jury trial
guarantees.
Almendarez-Torres cannot, then, be read to
resolve the due process and Sixth Amendment questions implicated by
reading the carjacking statute as the Government urges.10
10 The dissent insists that
Almendarez- Torres "controls
the question before us,"
post, at 266, but in substantiating
that assertion, it tellingly relies more heavily on the claims of
the
Almendarez-Torres dissenters than on the statements of
the
Almendarez-Torres majority. Neither source bears out the
current dissent's conclusion. If, as the dissenters in this case
suggest,
Almendarez-Torres did not turn on the particular
"sentencing factor at issue" there, 523 U. S., at 243, but instead
stood for the broad proposition that any fact increasing the
maximum permissible punishment may be determined by a judge by a
preponderance, it is a mystery why the
Almendarez-Torres
majority engaged in so much discussion of recidivism, or why, at
the crux of its constitutional discussion, it turned first to
discuss
250
Nor is the question resolved by a series of three cases dealing
with factfinding in capital sentencing. The first of these,
Spaziano v.
Florida, 468 U. S. 447 (1984),
contains no discussion of the sort of factfinding before us in this
case. It addressed the argument that capital sentencing must be a
jury task and rejected that position on the ground that capital
sentencing is like sentencing in other cases, being a choice of the
appropriate disposition, as against an alternative or a range of
alternatives.
Id., at 459.
Spaziano was followed in a few years by
Hildwin v.
Florida, 490
U. S. 638 (1989)
(per curiam), holding that the
determination of death-qualifying aggravating facts could be
entrusted to a judge, following a verdict of guilty of murder and a
jury recommendation of death, without violating the Sixth
Amendment's jury clause. Although citing
Spaziano as
authority, 490 U. S., at 639-640,
Hildwin was the first case
to deal expressly with factfinding necessary to authorize
imposition of the more severe of alternative sentences, and thus
arguably comparable to factfinding necessary to expand the
sentencing range available on conviction of a lesser crime than
murder. Even if we were satisfied that the analogy was sound,
Hildwin could not drive the answer to the Sixth Amendment
question raised by the Government's position here. In
Hildwin, a jury made a sentencing recommendation of death,
thus necessarily engaging in the factfinding required for
imposition of a higher sentence, that is, the de-
the "tradition" of recidivism's treatment as a sentencing
factor, ibid., or why it never announced the unqualified holding
that today's dissenters claim to find in it. Admittedly, as the
dissent here notes, the dissenters in
Almendarez-Torres
criticized the majority for what they considered the majority's
unsupportable restraint in restricting their holding to recidivism.
But that very criticism would have lacked its target if the
Almendarez-Torres majority had not so doggedly refrained
from endorsing the general principle the dissent in this case now
attributes to them. The majority and the dissenters in
Almendarez-Torres 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.
251
termination that at least one aggravating factor had been
proved.
Hildwin, therefore, can hardly be read as resolving
the issue discussed here, as the reasoning in
Walton v.
Arizona, 497
U. S. 639 (1990), confirms.
Walton dealt with an argument only slightly less
expansive than the one in
Spaziano, that every finding
underlying a sentencing determination must be made by a jury.
Although the Court's rejection of that position cited
Hildwin, it characterized the nature of capital sentencing
by quoting from
Poland v.
Arizona, 476 U. S. 147, 156
(1986). See 497 U. S., at 648. There, the Court described statutory
specifications of aggravating circumstances in capital sentencing
as "standards to guide the ... choice between the alternative
verdicts of death and life imprisonment."
Ibid. (quoting
Poland, supra, at 156 (internal quotation marks omitted)).
The Court thus characterized the finding of aggravating facts
falling within the traditional scope of capital sentencing as a
choice between a greater and a lesser penalty, not as a process of
raising the ceiling of the sentencing range available. We are frank
to say that we emphasize this careful reading of
Walton's
rationale because the question implicated by the Government's
position on the meaning of § 2119(2) is too significant to be
decided without being squarely faced.
In sum, the Government's view would raise serious constitutional
questions on which precedent is not dispositive. Any doubt on the
issue of statutory construction is hence to be resolved in favor of
avoiding those questions.u This is
11 In tones of alarm, the dissent suggests, see
post, at
254, 271, that our decision will unsettle the efforts of many
States to bring greater consistency to their sentencing practices
through provisions for determinate sentences and statutorily or
administratively established guidelines governing sentencing
decisions. The dissent's concern is misplaced for several reasons.
Most immediately, our decision today does not announce any new
principle of constitutional law, but merely interprets a particular
federal statute in light of a set of constitutional concerns that
have emerged through a series of our decisions over the past
quarter century. But even
252
done by construing § 2119 as establishing three separate
offenses by the specification of distinct elements, each of which
must be charged by indictment, proven beyond a reasonable doubt,
and submitted to a jury for its verdict. The judgment of the Court
of Appeals is accordingly reversed, and the case is remanded for
proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
Like JUSTICE SCALIA, see
post, at 253, I am convinced
that it 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.
if we assume that the question we raise will someday be followed
by the answer the dissenters seem to fear, that answer would in no
way hinder the States (or the National Government) from choosing to
pursue policies aimed at rationalizing sentencing practices. If the
constitutional concern we have expressed should lead to a rule
requiring jury determination of facts that raise a sentencing
ceiling, that rule would in no way constrain legislative authority
to identify the facts relevant to punishment or to establish fixed
penalties. The constitutional guarantees that prompt our
interpretation bear solely on the procedures by which the facts
that raise the possible penalty are to be found, that is, what
notice must be given, who must find the facts, and what burden must
be satisfied to demonstrate them. Finally, while we disagree with
the dissent's dire prediction about the effect of our decision on
the States' ability to choose certain sentencing policies, it
should go without saying that, if such policies conflict with
safeguards enshrined in the Constitution for the protection of the
accused, those policies have to yield to the constitutional
guarantees. See,
e. g.,
Burch v.
Louisiana,
441 U. S. 130,
139 (1979) (Nonunanimous verdicts by six-person criminal juries
"sufficiently threate[n] the constitutional principles [animating
the jury trial guarantee] that any countervailing interest of the
State should yield"); cf.
Almeida-Sanchez v.
United
States, 413 U. S.
266, 273 (1973) ("The needs of law enforcement stand in
constant tension with the Constitution's protections of the
individual against certain exercises of official power. It is
precisely the predictability of these pressures that counsels a
resolute loyalty to constitutional safeguards").
253
It is equally clear that such facts must be established by proof
beyond a reasonable doubt. That is the essence of the Court's
holdings in
In re Winship, 397 U. S. 358 (1970),
Mullaney v.
Wilbur, 421 U. S. 684 (1975), and
Patterson v.
New York, 432 U. S. 197 (1977). To
permit anything less "with respect to a fact which the State deems
so important that it must be either proved or presumed is
impermissible under the Due Process Clause."
Id., at 215.
This principle was firmly embedded in our jurisprudence through
centuries of common-law decisions. See,
e. g., Winship, 397
U. S., at 361
364; Duncan v.
Louisiana, 391 U. S. 145, 151-156
(1968). Indeed, in my view, a proper understanding of this
principle encompasses facts that increase the minimum as well as
the maximum permissible sentence, and also facts that must be
established before a defendant may be put to death. If
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), and
Part II of the Court's opinion in
Walton v.
Arizona,
497 U. S. 639,
647649 (1990), departed from that principle, as I think they did,
see
McMillan, 477 U. S., at 95-104 (STEVENS, J.,
dissenting), and
Walton, 497 U. S., at 709-714 (STEVENS, J.,
dissenting), they should be reconsidered in due course. It is not,
however, necessary to do so in order to join the Court's opinion
today, which I do.
JUSTICE SCALIA, concurring.
In dissenting in
Almendarez-Torres v.
United States,
523 U. S. 224 (1998), I suggested the possibility, and in
dissenting in
Monge v.
California, 524 U. S. 721, 737
(1998), I set forth as my considered view, that it 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. Because I think it necessary
to resolve all ambiguities in criminal statutes in such fashion as
to avoid violation of this constitutional principle, I join the
opinion of the Court.
254
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR,
and JUSTICE BREYER join, dissenting.
The question presented is whether the federal carjacking
statute, prohibiting the taking of a motor vehicle from the person
or presence of another by force and violence or by intimidation,
contains in the first paragraph a complete definition of the
offense, with all of the elements of the crime Congress intended to
codify. 18 U. S. C. § 2119. In my view, shared by every Court of
Appeals to have addressed the issue, it does. The Court adopts a
contrary, strained reading according to which the single statutory
section prohibits three distinct offenses.
Had it involved simply a question of statutory interpretation,
the majority opinion would not have been cause for much concern.
Questions of statutory interpretation can be close but nonetheless
routine. That should have been so in to day's case. The Court,
however, is unwilling to rest its opinion on textual analysis.
Rather, to bolster its statutory interpretation, the Court raises
the specter of "'grave and doubtful constitutional questions,'"
ante, at 239, without an adequate explanation of the
origins, contours, or consequences of its constitutional concerns.
The Court's reliance on the so-called constitutional doubt rule is
inconsistent with usual principles of
stare decisis and
contradicts the approach followed just last Term in
Almendarez-Torres v.
United States, 523 U. S. 224 (1998). Our
precedents admit of no real doubt regarding the power of Congress
to establish serious bodily injury and death as sentencing factors
rather than offense elements, as we made clear in
Almendarez-Torres. Departing from this recent authority, the
Court's sweeping constitutional discussion casts doubt on
sentencing practices and assumptions followed not only in the
federal system but also in many States. Thus, among other
unsettling consequences, today's decision intrudes upon legitimate
and vital state interests, upsetting the proper federal balance. I
dissent from this unfortunate and unnecessary result.
255
Before it departs on its troubling constitutional discussion,
the Court analyzes the text of § 2119. This portion of the Court's
opinion, it should be acknowledged, is careful and comprehensive.
In my submission, however, the analysis suggests the presence of
more interpretative ambiguity than in fact exists and reaches the
wrong result. Like the Court, I begin with the textual
question.
I
Criminal laws proscribe certain conduct and specify punishment
for transgressions. A person commits a crime when his or her
conduct violates the essential parts of the defined offense, which
we refer to as its elements. As a general rule, each element of a
charged crime must be set forth in an indictment,
Hamling v.
United States, 418 U. S. 87, 117 (1974),
and established by the government by proof beyond a reasonable
doubt,
In re Winship, 397 U. S. 358, 364
(1970), as determined by a jury, assuming the jury right is
invoked,
Sullivan v.
Louisiana, 508 U. S. 275, 277-278
(1993);
Almendarez-Torres v.
United States, 523 U.
S., at 239. The same rigorous requirements do not apply with
respect to "factors relevant only to the sentencing of an offender
found guilty of the charged crime."
Id., at 228; see also
McMillan v.
Pennsylvania, 477 U. S. 79, 93 (1986).
"[T]he question of which factors are which is normally a matter for
Congress."
Almendarez-Torres v.
United States, 523 U.
S., at 228.
In determining whether clauses (1)-(3) of § 2119 set forth
sentencing factors or define distinct criminal offenses, our task
is to "look to the statute before us and ask what Congress
intended."
Ibid. The statute is as follows:
"Whoever, possessing a firearm as defined in section 921 of this
title, takes a motor vehicle that has been transported, shipped, or
received in interstate or foreign commerce from the person or
presence of another by force and violence or by intimidation, or
attempts to do so, shall-
256
"(1) be fined under this title or imprisoned not more than 15
years, or both,
"(2) if serious bodily injury (as defined in section 1365 of
this title) results, be fined under this title or imprisoned not
more than 25 years, or both, and
"(3) if death results, be fined under this title or imprisoned
for any number of years up to life, or both." 18 U. S. C. § 2119
(1988 ed., Supp. V).
As the Court is quite fair to acknowledge, the first reading or
initial look of the statute suggests that clauses (1)-(3) are
sentencing provisions.
Ante, at 232. In my view, this
conclusion survives further and meticulous examination.
Section 2119 begins by setting forth in its initial paragraph
elements typical of a robbery-type offense. For all ordinary
purposes, this is a complete crime. If, for instance, there were
only a single punishment, as provided in clause (1), I think there
could be no complaint with jury instructions drawn from the first
paragraph of § 2119, without reference to the punishment set forth
in clause (1). The design of the statute yields the conclusion that
the following numbered provisions do not convert each of the
clauses into additional elements. These are punishment provisions
directed to the sentencing judge alone. To be sure, the drafting
could have been more clear, and my proffered interpretation would
have been better implemented, if the word "shall" at the end of the
first paragraph had been followed by a verb form (e. g., "be
punished") and a period. Even as written, though, the statute sets
forth a complete crime in the first paragraph. It is difficult to
see why Congress would double back and insert additional elements
for the jury's consideration in clauses (2) and (3). The more
likely explanation is that Congress set forth the offense first and
the punishment second, without intending to combine the two.
Unlike the Court, I am unpersuaded by other factors that this
commonsense reading is at odds with congressional intent. As to the
substance of clauses (2) and (3), the harm
257
from a crime-including whether the crime, after its commission,
results in the serious bodily injury or death of a victim-has long
been deemed relevant for sentencing purposes. Like recidivism, it
is "as typical a sentencing factor as one might imagine,"
Almendarez-Torres v.
United States, supra, at 230, a
point the Court cannot dispute. To fix punishment based on the harm
resulting from a crime has been the settled practice under
traditional, discretionary sentencing regimes. See,
e. g.,
U. S. Dept. of Justice, W. Rhodes & C. Conly, Analysis of
Federal Sentencing X-13, XV-ll (Federal Justice Research Program
Rep. No. FJRP-81/004, 1981) (under preguidelines practice, with
respect to a variety of crimes, the amount of harm threatened or
done to victims made a significant difference in the length of
sentence). Even if we confine our attention to codified law,
however, examples abound to prove the point. Other federal
statutes, as the Court notes, treat serious bodily injury as a
sentencing factor.
Ante, at 235. As for state law, common
practice discloses widespread reliance on victim-impact factors for
sentencing purposes. See,
e. g., Alaska Stat. Ann. §
12.55.125(c)(2) (1998) ("physical injury"); Ariz. Rev. Stat. Ann. §
13.702(C) (Supp. 1998-1999) ("serious physical injury"); Colo. Rev.
Stat. § 18-1-105(9)(f) (1997) ("serious bodily injury"); Fla. Stat.
Ann. § 921.0016(3)(l) (Supp. 1999) ("permanent physical injury");
Haw. Rev. Stat. § 706-662(5) (Supp. 1996) ("serious or substantial
bodily injury" upon certain victims); Ill. Compo Stat., ch. 730, §
5/5-5-3.2(a) (1997) ("serious harm"); La. Code Crim. Proc. Ann.,
Art. 894.1(B)(5) (West 1997) ("risk of death or great bodily harm
to more than one person"); N. J. Stat. Ann. §2C:44-1(a)(2) (West
1995) ("gravity and seriousness of harm inflicted on the victim");
N. C. Gen. Stat. § 15A-1340.16(d)(19) (1997) ("[t]he serious injury
inflicted upon the victim is permanent and debilitating"); Ohio
Rev. Code Ann. § 2929.12(B)(2) (1997) ("serious physical ...
harm"); are. Admin. Rules § 213-0080002(1)(b)(I) (1997) ("permanent
injury"); Tenn. Code Ann.
258
§ 40-35-114(12) (1997) ("death ... or serious bodily injury");
Utah Code of Judicial Admin., App. D, Form 2 (1998) ("substantial
bodily injury"). Given this widespread understanding, there is
nothing surprising or anomalous in the conclusion that Congress
chose to treat serious bodily injury and resulting death as
sentencing factors in § 2119.
In addition, the plain reading of § 2119 is reinforced by common
patterns of statutory drafting. For example, in one established
statutory model, Congress defines the elements of an offense in an
initial paragraph ending with the phrase "shall be punished as
provided in" a separate subsection. The subsection provides for
graded sentencing ranges, predicated upon specific findings (such
as serious bodily injury or death). See,
e. g., 8 U. S. C. §
1324(a)(1). Section 2119 follows a similar logic. It is true that
clauses (1)-(3) are not separated into a separate subsection, thus
giving rise to the textual problem we must resolve. Congress does
not always separate sentencing factors into separate subsections,
however. See,
e. g., 18 U. S. C. § 1347 (1994 ed., Supp.
III) (health-care fraud; enhanced penalties if the violation
"results in serious bodily injury" or "results in death"). As with
statutes like § 1324, the structure of § 2119 suggests a design
which defines the offense first and the punishment afterward.
In addition, there is some significance in the use of the active
voice in the main paragraph and the passive voice in clauses (2)
and (3) of § 2119. In the more common practice, criminal statutes
use the active voice to define prohibited conduct. See,
e.
g., 18 U. S. C. § 1116 (1994 ed., Supp. III) ("[w]hoever kills or
attempts to kill"); § 2114 ("assaults," "robs or attempts to rob,"
"receives, possesses, conceals, or disposes"); Tex. Penal Code Ann.
§§ 29.03(a)(1), (2) (1994) (aggravated robbery; "causes serious
bodily injury," or "uses or exhibits a deadly weapon"); cf. 18 U.
S. C. § 248(b) (setting forth, as sentencing factors, "if bodily
injury results," and "if death results"); United States
Sentencing
259
Commission, Guidelines Manual § 2B3.1(b)(3) (Nov. 1998) (robbery
guideline; "[i]f any victim sustained bodily injury").
These drafting conventions are not absolute rules. Congress uses
active language in phrasing sentencing factors in some instances.
See,
e. g., 18 U. S. C. § 2262(b)(3) (1994 ed., Supp. III)
("if serious bodily injury to the victim results or if the offender
uses a dangerous weapon during the offense"). Nevertheless, the
more customary drafting conventions support, rather than
contradict, the interpretation that § 2119 sets forth but one
offense.
The Court offers specific arguments regarding these background
considerations, each deserving of consideration and response.
First, as its principal argument, the Court cites the three
federal robbery statutes on which (according to the legislative
history) § 2119 was modeled. As the Court acknowledges, however,
one of those statutes, 18 U. S. C. § 2111, does not refer to
"serious bodily injury" or "death" "result[ing]" at all. Because of
the omission, the Court deems this statute irrelevant for our
purposes. Yet the Committee Report cited by the Court states that
"'[t]he definition of the offense'" in § 2119 "'tracks the language
used in other federal robbery statutes'" including § 2111.
Ante, at 235, n. 4 (quoting H. R. Rep. No. 102-851, pt. 1,
p. 17 (1992)). The definition of the offense in § 2119 includes
"tak[ing]" or "attempt[ing]" to take a motor vehicle, "from the
person or presence of another," "by force and violence or by
intimidation." This is altogether consistent with the definition of
the offense in § 2111, which provides in part that "[w]hoever ...
by force and violence, or by intimidation, takes or attempts to
take from the person or presence of another" something of value
"shall be imprisoned." Of course §§ 2111 and 2119 each include at
least one element the other does not (e. g., "within the special
maritime and territorial jurisdiction of the United States" in the
former, "transported, shipped, or received in interstate or foreign
commerce" in the latter). Those ele-
260
ments, however, are included in unambiguous fashion in the
offense-defining part of the statutes. With respect to the
debatable interpretive question-whether serious bodily injury and
death are part of the carjacking offense-the circumstance that the
definition of the offense in § 2119 is based on § 2111 and that §
2111 does not include these elements suggests § 2119 does not
include the elements either.
Passing over § 2111, the Court suggests §§ 2113 and 2118 support
its reading of § 2119. I disagree. Section 2113, captioned "Bank
robbery and incidental crimes," consists of eight subsections. The
last three are definitional and irrelevant to the question at hand.
The first subsection, subsection (a), proscribes the crime of bank
robbery in language that tracks the definition of the offense in §
2119, i.
e., "tak[ing], or attempt[ing] to take," something
of value "from the person or presence of another," "by force and
violence, or by intimidation." Subsection (b) proceeds to define
the offense of bank larceny and is cast in different terms-as is
natural in light of the different conduct proscribed. Subsections
(d) and (e) of § 2113, the two subsections relied upon by the
Court, provide as follows:
"(d) Whoever, in committing, or in attempting to commit, any
offense defined in subsections (a) and (b) of this section,
assaults any person, or puts in jeopardy the life of any person by
the use of a dangerous weapon or device, shall be fined under this
title or imprisoned not more than twenty-five years, or both.
"(e) Whoever, in committing any offense defined in this section,
or in avoiding or attempting to avoid apprehension for the
commission of such offense, or in freeing himself or attempting to
free himself from arrest or confinement for such offense, kills any
person, or forces any person to accompany him without the consent
of such person, shall be imprisoned not less than ten years, or if
death results shall be punished by death or life imprisonment.
"
261
We have not held that subsections (d) and (e) set forth separate
offenses. (The Court's citations to
AlmendarezTorres and
McMillan on this score are inapt. In neither case did we
hold that §§ 2113(d) and (e) set forth distinct offenses.) Assuming
they do, however, they fail to prove the Court's point, for two
reasons. First, as a matter of structure, § 2113 is divided into
distinct subsections with a parallel form. Excluding the
definitional provisions at the end, each of the five subsections
begins with the word "[w]hoever," followed by specified conduct.
Given that some of these subsections (e. g., subsections (a) and
(b)) set forth distinct offenses, it is fair to presume their like
structured neighbors do so as well. One finds no analogous
subsections in § 2119 with which clauses (1)-(3) can be matched. On
the contrary, clause (1) plainly fails to introduce anything that
could be construed as an offense element, making it all the less
likely that offense elements are introduced in clauses (2) and (3).
Second, the phrases from § 2113 cited by the Court-"assaults any
person" and "puts in jeopardy the life of any person by the use of
a dangerous weapon or device"-are rather different from the
"serious bodily injury results" and "death results" language of §
2119. The former phrases occur before, not after, the
punishment-introducing clause "shall be .... " They are also
phrased in the active voice, placing attention on the defendant's
actions, rather than their consequences. The "or if death results"
phrase at the end of subsection (e) is a closer analogue to clauses
(2) and (3) of § 2119, but there is no reason to assume that this
phrase by itselfas opposed to the preceding portion of subsection
(e)-defines an element of an offense.
With respect to § 2118, the Court asserts without citation to
authority that the phrase "another person ... suffered significant
bodily injury" in subsection (a)(3) is an element of the offense.
Ante, at 235-236. Even assuming the Court is correct on the
point, however, the differences in structure between that provision
and § 2119 show them not to be com-
262
parable. Clauses (1)-(3) in § 2119 set forth alternative
sentences; but the three clauses in § 2118(a) set forth alternative
ways of qualifying for the only punishment provided. The more
natural reading is that the drafters of § 2119 took from § 2118 the
same thing they took from §§ 2111 and 2113: the language defining
the basic elements of robbery. It is this language, and not other
provisions, that is common to all four statutes.
In short, even indulging the Court's assumptions, the federal
robbery statutes do not support the conclusion that § 2119 contains
three substantive offenses. Rather, all four statutes employ
similar language to define the elements of a basic robbery-type
offense. It is in this sense that § 2119 is modeled on §§ 2111,
2113, and 2118.
The Court next relies on the consumer product-tampering statute,
18 U. S. C. § 1365(a), as support for its reading of § 2119. It is
indeed true, as the Court suggests, that the structure and phrasing
of § 1365(a) is similar to the carjacking statute. However, neither
the Court nor, my research indicates, any Court of Appeals has held
that § 1365(a) creates multiple offenses. The only case cited for
the proposition that "the Courts of Appeals treat the statute ...
as defining basic and aggravated offenses,"
ante, at 234,
establishes nothing of the kind. There, the Court of Appeals did no
more than recite that the defendant had been charged and convicted
on multiple counts of product tampering, under three subsections of
§ 1365(a).
United States v.
Me ling, 47 F.3d
1546, 1551 (CA9 1995). None of the issues presented turned on
whether the subsections set forth additional elements.
The Court's final justification for its reading of § 2119 rests
on state practice. Of course, the Court cannot argue that States do
not take factors like serious bodily injury into account at
sentencing; as discussed above, they do. Instead, the Court says
many States have created a distinct offense of aggravated robbery,
requiring proof of serious bodily in-
263
jury or harm. This is unremarkable. The laws reflect nothing
more than common intuition that a forcible theft, all else being
equal, is more blameworthy when it results in serious bodily injury
or death. I have no doubt Congress was responding to this same
intuition when it added clauses (2) and (3) to § 2119. Recognizing
the common policy concern, however, gives scant guidance on the
question before us: whether Congress meant to give effect to the
policy by making serious bodily injury and death elements of
distinct offenses or by making them sentencing factors. I agree
with the Court that these state statutes are not direct authority
for the issue presented here.
Ante, at 237.
The persuasive force of the Court's state-law citations is
further undercut by the structural differences between those laws
and § 2119. Ten of the thirteen statutes cited by the Court follow
the same pattern. One statutory section sets forth the elements of
the basic robbery offense. Another section (captioned "Aggravated
robbery" or "Robbery in the first degree") incorporates the basic
robbery offense (either by explicit cross-reference or by obvious
implication), adds the bodily or physical injury element (in the
active voice), and then provides that the aggravated crime is
subject to a higher penalty set forth elsewhere (e. g., "a class A
felony"). Two of the remaining three statutes, N. Y. Penal Law §
160.15 (McKinney 1988), and Ky. Rev. Stat. Ann. § 515.020 (Michie
1990), deviate from this pattern in only minor respects while the
third, N. H. Rev. Stat. Ann. § 636:1 (1996), has a singular
structure.
Had Congress wished to emulate this state practice in detail,
one might have expected it to structure § 2119 in a similar manner
to the majority model. Cf. 18 U. S. C. §§ 2113(e), (d). It did not
do so. This suggests to me either (i) that Congress chose a
different structure than utilized by the States in order to show
its intent to treat "serious bodily injury" as a sentencing factor,
or (ii) that Congress simply did not concentrate on state practice
in deciding whether "se-
264
rious bodily injury" should be classed as an element or a
sentencing factor. Neither possibility sustains the Court's
interpretation of § 2119.
II
Although the Court, in my view, errs in its reading of § 2119 as
a simple matter of statutory construction, of far greater concern
is its constitutional discussion. In order to inject the rule of
constitutional doubt into the case, the Court treats the relevant
line of authorities from
Winship to
Almendarez-
Torres as if it had been the Court's purpose to write them at
odds with each other, not to produce a coherent body of case law
interpreting the relevant constitutional provisions. This attempt
to create instability is neither a proper use of the rule of
constitutional doubt nor a persuasive reading of our precedents. We
have settled more than the Court's opinion says.
In re Winship, 397 U. S. 358 (1970),
made clear what has long been accepted in our criminal justice
system. It is the principle that in a criminal case the government
must establish guilt beyond a reasonable doubt. To implement this
constitutional protection, it follows, there must be an
understanding of the essential elements of the crime; and cases
like this one will arise, requiring statutory analysis.
Nonetheless, the holding of the first case decided in the wake
of
Winship, Mullaney v.
Wilbur, 421 U. S. 684 (1975), now
seems straightforward. In homicide cases, Maine sought to presume
malice from the fact of an intentional killing alone, subject to
the defendant's right to prove he had acted in the heat of passion.
This was so even though "the fact at issue ... -the presence or
absence of the heat of passion on sudden provocation-has been,
almost from the inception of the common law of homicide, the single
most important factor in determining the degree of culpability
attaching to an unlawful homicide."
Id., at 696. As we later
explained,
Mullaney "held that a State must prove every
ingredient of an offense beyond a reasonable doubt, and that
265
it may not shift the burden of proof to the defendant by
presuming that ingredient upon proof of the other elements of the
offense."
Patterson v.
New York, 432 U. S. 197, 215
(1977).
In
Patterson, the Court confronted a state rule placing
on the defendant the burden of establishing extreme emotional
disturbance as an affirmative defense to murder. As today's
majority opinion recognizes,
Patterson stands for the
proposition that the State has considerable leeway in determining
which factors shall be included as elements of its crimes. We
determined that New York was permitted to place the burden of
proving the affirmative defense on defendants because "nothing was
presumed or implied against" them.
I d., at 216.
In
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), we
upheld a state law requiring imposition of a mandatory minimum
sentence upon the trial judge's determination that the defendant
had visibly possessed a firearm during the commission of an
enumerated offense. Today's majority errs, in my respectful view,
by suggesting
McMillan is somewhat inconsistent with
Patterson. McMillan's holding follows easily from
Patterson. McMillan confirmed the State's authority to treat
aggravated behavior as a factor increasing the sentence, rather
than as an element of the crime. The opinion made clear 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 v.
New York,
supra, at 214).
In to day's decision, the Court chooses to rely on language from
McMillan to create a doubt where there should be none.
Ante, at 242. Yet any uncertainty on this score ought to
have been put to rest by our decision last Term in
Almendarez-
Torres. To say otherwise, the majority must strive to limit
Almendarez-Torres, just as it must struggle
266
with
Patterson and
McMillan. Almendarez-Torres,
however, controls the question before us.
As an initial matter,
Almendarez-Torres makes clear that
the constitutional doubt methodology employed by the Court today is
incorrect. It teaches that the constitutional doubt canon of
construction is applicable only if the statute at issue is
"genuinely susceptible to two constructions after, and not before,
its complexities are unraveled. Only then is the statutory
construction that avoids the constitutional question a 'fair' one."
523 U. S., at 238. For the reasons given in Part I,
supra,
the Court of Appeals' interpretation of § 2119 is, in my view,
superior to petitioner's reading. At a minimum, the question
whether 8 U. S. C. § 1326(b), the statute at issue in
Almendarez-Torres, set forth sentencing factors or elements
of distinct offenses was a closer one than the statutory question
presented here. Yet we found insufficient ambiguity to warrant
application of the constitutional doubt principle there. 523 U. S.,
at 238. Unless we are to abandon any pretense of consistency in the
application of the principle, it is incumbent on the Court to
explain how it reconciles its analysis with
Almendarez-Torres.
Not only is the proper construction of the statute clearer here,
but there is less reason, in light of
Almendarez-Torres
itself, to question the constitutionality of the statute as
construed by the Court of Appeals. The insubstantiality of the
Court's constitutional concern is indicated by its quite summary
reference to the principle of constitutional law the statute might
offend. The Court puts the argument this way: "[A]ny 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."
Ante, at 243, n. 6. It
suggests the carjacking statute violates this principle because
absent a finding of serious bodily injury, a defendant may be
sentenced to a maximum of 15 years' imprisonment and, absent a
finding of death, he may be sentenced to a maximum of 25 years'
imprisonment.
267
A finding of serious bodily injury increases the maximum penalty
for the crime of carjacking from 15 to 25 years' imprisonment and a
finding of death increases the maximum to life imprisonment.
If the Court is to be taken at its word, Congress could comply
with this principle by making only minor changes of phraseology
that would leave the statutory scheme, for practical purposes,
unchanged. Congress could leave the initial paragraph of § 2119
intact, and provide that one who commits the conduct described
there shall "be imprisoned for any number of years up to life." It
could then add that "if the sentencing judge determines that no
death resulted, one convicted under this section shall be
imprisoned not more than 25 years" and "if the sentencing judge
determines that no serious bodily injury resulted, one convicted
under this section shall be imprisoned not more than 15 years." The
practical result would be the same as the current version of § 2119
(as construed by the Court of Appeals): The jury makes the
requisite findings under the initial paragraph, and the court
itself sentences the defendant within one of the prescribed ranges
based on the judge's own determination whether serious bodily
injury or death resulted.
The Court does not tell us whether this version of the statute
would pass constitutional muster. If so, the Court's principle
amounts to nothing more than chastising Congress for failing to use
the approved phrasing in expressing its intent as to how carjackers
should be punished. No constitutional values are served by so
formalistic an approach, while its constitutional costs in statutes
struck down or, as today, misconstrued, are real.
If, on the other hand, a rephrased § 2119 would still violate
the Court's underlying constitutional principle, the Court ought to
explain how it would determine which sentencing schemes cross the
constitutional line. For example, a statute that sets a maximum
penalty and then provides detailed sentencing criteria to be
applied by a sentencing judge (along
268
the lines of the federal Sentencing Guidelines) would be only a
more detailed version of the rephrased § 2119 suggested above. We
are left to guess whether statutes of that sort might be in
jeopardy. (Further, by its terms, JUSTICE SCALIA'S view-"that it 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,"
ante, at 253
(concurring opinion)-would call into question the validity of
judge-administered mandatory minimum sentencing provisions,
contrary to our holding in
McMillan. Once the facts
triggering application of the mandatory minimum are found by the
judge, the sentencing range to which the defendant is exposed is
altered.) In light of these uncertainties, today's decision raises
more questions than the Court acknowledges.
In any event, the Court's constitutional doubts are not well
founded. In
Almendarez-Torres, we squarely rejected the
petitioner's argument that "any significant increase in a statutory
maximum sentence would trigger a constitutional 'elements'
requirement"; as we said, the Constitution "does not impose that
requirement." 523 U. S., at 247. See also
Monge v.
California, 524 U. S. 721, 729 (1998)
("[T]he 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"). Indeed, the
dissenters in
Almendarez-Torres had no doubt on this score.
523 U. S., at 260 (opinion of SCALIA, J.) (arguing that "there was,
until to day's unnecessary resolution of the point, 'serious doubt'
whether the Constitution permits a defendant's sentencing exposure
to be increased tenfold on the basis of a fact that is not charged,
tried to a jury, and found beyond a reasonable doubt").
The Court suggests two bases on which
AlmendarezTorres is
distinguishable, neither of which is persuasive. First, the Court
suggests that this case is "concerned with the Sixth Amendment
right to jury trial and not alone the
269
rights to indictment and notice as claimed by AlmendarezTorres."
Ante, at 248-249. This is not a valid basis upon which to
distinguish
Almendarez-Torres. The petitioner in
Almendarez- Torres claimed that "the Constitution requires
Congress to treat recidivism as an element of the offense" and
that, as a corollary, "[t]he Government must prove that 'element'
to a jury." 523 U. S., at 239.
The Court has not suggested in its previous opinions, moreover,
that there is a difference, in the context relevant here, between,
on the one hand, a right to a jury determination, and, on the
other, a right to notice by indictment and to a determination based
upon proof by the prosecution beyond a reasonable doubt. The Court
offers no reason why the concept of an element of a crime should
mean one thing for one inquiry and something else for another.
There would be little to guide us in formulating a standard to
differentiate between elements of a crime for purposes of
indictment, jury trial, and proof beyond a reasonable doubt.
Inviting such confusion is a curious way to safeguard the important
procedural rights of criminal defendants.
Second, the Court is eager to find controlling significance in
the fact that the statute at issue in
Almendarez-Torres made
recidivism a sentencing factor, while the sentencing factor at
issue here is serious bodily injury. This is not a difference of
constitutional dimension, and
AlmendarezTorres does not say
otherwise. It is true that our statutory analysis was informed in
substantial measure by the fact that recidivism is a common
sentencing factor.
Id., at 230. In our constitutional
analysis we invoked the long history of using recidivism as a basis
for increasing an offender's sentence to illustrate the novel and
anomalous character of the petitioner's proposed constitutional
rule-i.
e., that under
McMillan v.
Pennsylvania any factor that increases the maximum penalty
for a crime must be deemed an element of the offense. We proceeded
to reject that rule.
Almendarez-Torres v.
United
States, 523 U. S., at 247. The
270
dissenters there (like the Court today) misunderstood the import
of this discussion, but they were correct in their observation that
"[i]t is impossible to understand how
McMillan could mean
one thing in a later case where recidivism is at issue, and
something else in a later case where some other sentencing factor
is at issue."
Id., at 258 (opinion of SCALIA, J.).
The constitutional portion of
Almendarez-Torres also
rejected the argument that constitutional concerns were raised by a
"different 'tradition' -that of courts having treated recidivism as
an element of the related crime."
Id., at 246. We found this
argument unconvincing because "any such tradition is not uniform."
Ibid. Of course, the same is true with respect to the
sentencing factors at issue here. See
supra, at 257-258. In
sum, "there is no rational basis for making recidivism an
exception." 523 U. S., at 258 (SCALIA, J., dissenting) (emphasis
deleted).
If the Court deems its new direction to be a justified departure
from
stare decisis, it does not make the case. There is no
support for the view that
Almendarez-Torres was based on a
historical misunderstanding or misinterpretation. By the Court's
own submission, its historical discussion demonstrates no more than
that "the tension between jury powers and powers exclusively
judicial" would probably and generally have informed the Framers'
conception of the jury right.
Ante, at 244. That must be
correct, but it does not call into question the principle that"
'[t]he definition of the elements of a criminal offense is
entrusted to the legislature.'"
Staples v.
United
States, 511 U. S.
600, 604 (1994) (quoting
Liparota v.
United
States, 471 U. S.
419, 424 (1985)).
The Court's historical analysis might have some bearing on the
instant case if § 2119 disclosed the intent to serve the real
objective of punishing (without constitutional safeguards) those
who caused serious bodily harm, rather than to prevent the
underlying conduct of carjacking. See
Almendarez-Torres v.
United States, supra, at 243, 246. No
271
such inference or implication can be drawn from the text and
statutory history of the offense here under consideration. In fact,
the Court makes no attempt to argue that anything particular to the
carjacking statute suggests the jury's role has been
unconstitutionally diminished. The gravamen of the offense is
carjacking coupled with a threat of bodily harm. The jury resolves
these issues, i.
e., whether a vehicle is taken "by force
and violence or by intimidation." Indeed, whether serious bodily
injury results can be outside of the defendant's control. As
already explained, it is not in the least a novel view that after
the offense is established, the extent of the harm caused is taken
into account in the sentencing phase. In this respect, to day's
case is far easier than
McMillan, where the sentencing
factor was inherent in the criminal conduct itself.
The rationale of the Court's constitutional doubt holding makes
it difficult to predict the full consequences of to day's holding,
but it is likely that it will cause disruption and uncertainty in
the sentencing systems of the States. Sentencing is one of the most
difficult tasks in the enforcement of the criminal law. In seeking
to bring more order and consistency to the process, some States
have sought to move from a system of indeterminate sentencing or a
grant of vast discretion to the trial judge to a regime in which
there are more uniform penalties, prescribed by the legislature.
See A. Campbell, Law of Sentencing §§ 1:3, 4:6-4:8 (2d ed. 1991).
These States should not be confronted with an unexpected rule
mandating that what were once factors bearing upon the sentence now
must be treated as offense elements for determination by the jury.
This is especially so when, as here, what is at issue is not the
conduct of the defendant, but the consequences of a completed
criminal act.
A further disconcerting result of to day's decision is the
needless doubt the Court's analysis casts upon our cases involving
capital sentencing. For example, while in
Walton v.
Arizona, 497
U. S. 639, 648 (1990), we viewed the aggravat-
272
ing factors at issue as sentencing enhancements and not as
elements of the offense, the same is true of serious bodily injury
under the reading of § 2119 the Court rejects as constitutionally
suspect. The question is why, given that characterization, the
statutory scheme in
Walton was constitutionally permissible.
Under the relevant Arizona statute, Walton could not have been
sentenced to death unless the trial judge found at least one of the
enumerated aggravating factors. See Ariz. Rev. Stat. Ann. § 13-703
(1989). Absent such a finding, the maximum potential punishment
provided by law was a term of imprisonment. If it is
constitutionally impermissible to allow a judge's finding to
increase the maximum punishment for carjacking by 10 years, it is
not clear why a judge's finding may increase the maximum punishment
for murder from imprisonment to death. In fact,
Walton would
appear to have been a better candidate for the Court's new approach
than is the instant case. In
Walton, the question was the
aggravated character of the defendant's conduct, not, as here, a
result that followed after the criminal conduct had been
completed.
In distinguishing this line of precedent, the Court suggests
Walton did not "squarely fac[e]" the key constitutional
question "implicated by the Government's position on the meaning of
§ 2119(2)."
Ante, at 251. The implication is clear.
Reexamination of this area of our capital jurisprudence can be
expected.
***
The Court misreads § 2119 and seeks to create constitutional
doubt where there is none. In my view,
AlmendarezTorres
controls this case. I would hold § 2119 as interpreted by the Court
of Appeals constitutional, and I dissent from the opinion and
judgment of the Court.
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