blakely washington argued march decided june counsel record petitioner blakely jeffrey fisher davis wright tremaine llp seattle wa respondent washington john knodell iii prosecuting attorney ofc ephrata wa petitioner pleaded guilty kidnaping estranged wife facts admitted plea standing alone supported maximum sentence months judge imposed sentence finding petitioner acted deliberate cruelty statutorily enumerated ground departing standard range washington appeals affirmed rejecting petitioner argument sentencing procedure deprived federal constitutional right jury determine beyond reasonable doubt facts legally essential sentence held facts supporting petitioner exceptional sentence neither admitted petitioner found jury sentence violated sixth amendment right trial jury pp case requires apply rule apprendi new jersey ther fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt relevant statutory maximum apprendi purposes maximum judge may impose based solely facts reflected jury verdict admitted defendant judge imposed sentence based solely facts admitted guilty plea washington law requires exceptional sentence based factors used computing sentence petitioner sentence analogous upheld mcmillan pennsylvania williams new york greater state law authorized based verdict alone regardless whether judge authority impose enhanced sentence depends judge finding specified fact one several specified facts aggravating fact remains case jury verdict alone authorize sentence pp commitment apprendi context reflects respect longstanding precedent need give intelligible content fundamental constitutional right jury trial pp case constitutionality determinate sentencing implemented way respects sixth amendment framers paradigm criminal justice ideal limited state power accomplished strict division authority judge jury preserved without abandoning determinate sentencing sacrifice fairness defendant pp app reversed remanded scalia delivered opinion stevens souter thomas ginsburg joined filed dissenting opinion breyer joined rehnquist kennedy joined except part kennedy filed dissenting opinion breyer joined breyer filed dissenting opinion joined ralph howard blakely petitioner washington writ certiorari appeals washington division june justice scalia delivered opinion petitioner ralph howard blakely pleaded guilty kidnaping estranged wife facts admitted plea standing alone supported maximum sentence months pursuant state law imposed exceptional sentence months making judicial determination acted deliberate cruelty app consider whether violated petitioner sixth amendment right trial jury petitioner married wife yolanda evidently difficult man live diagnosed various times psychological personality disorders including paranoid schizophrenia wife ultimately filed divorce abducted orchard home grant county washington binding duct tape forcing knifepoint wooden box bed pickup truck process implored dismiss divorce suit related trust proceedings couple son ralphy returned home school petitioner ordered follow another car threatening harm yolanda shotgun ralphy escaped sought help stopped gas station petitioner continued yolanda friend house montana finally arrested friend called police state charged petitioner kidnaping rev code ann upon reaching plea agreement however reduced charge kidnaping involving domestic violence use firearm see petitioner entered guilty plea admitting elements kidnaping firearm allegations relevant facts case proceeded sentencing ton kidnaping class felony state law provides person convicted class felony shall punished confinement exceeding term ten years provisions state law however limit range sentences judge may impose washington sentencing reform act specifies petitioner offense kidnaping firearm standard range months see seriousness level kidnaping app offender score based box standard range months firearm enhancement judge may impose sentence standard range finds substantial compelling reasons justifying exceptional sentence act lists aggravating factors justify departure recites illustrative rather exhaustive nevertheless reason offered justify exceptional sentence considered takes account factors used computing standard range sentence offense state gore judge imposes exceptional sentence must set forth findings fact conclusions law supporting reviewing reverse sentence finds clearly erroneous standard insufficient evidence record support reasons imposing exceptional sentence gore supra citing pursuant plea agreement state recommended sentence within standard range months hearing yolanda description ing however judge rejected state mendation imposed exceptional sentence months months beyond standard maximum justified sentence ground petitioner acted deliberate cruelty statutorily enumerated ground departure cases iii faced unexpected increase three years sentence petitioner objected judge accordingly conducted bench hearing featuring testimony petitioner yolanda ralphy police officer medical experts hearing issued findings fact concluding defendant motivation commit kidnapping complex contributed mental condition personality disorders pressures divorce litigation impending trust litigation trial anger troubled interpersonal relationships spouse children misguidedly intended forcefully reunite family attempt subservient desire terminate lawsuits modify title ownerships benefit defendant methods homogeneous motive used stealth surprise took advantage victim isolation immediately employed physical violence restrained victim tape threatened injury death others immediately coerced victim providing information threatening application knife violated subsisting restraining order app judge adhered initial determination deliberate cruelty petitioner appealed arguing sentencing procedure deprived federal constitutional right jury determine beyond reasonable doubt facts legally essential sentence state appeals affirmed app relying washington rejection similar challenge gore supra washington denied discretionary review granted certiorari ii case requires us apply rule expressed apprendi new jersey fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt rule reflects two longstanding tenets criminal jurisprudence truth every accusation defendant afterwards confirmed unanimous suffrage twelve equals neighbours blackstone commentaries laws england accusation lacks particular fact law makes essential punishment accusation within requirements common law accusation reason bishop criminal procedure ed principles acknowledged courts treatises since earliest days graduated sentencing compiled relevant authorities apprendi see thomas concurring need repeat apprendi involved new jersey statute authorized sentence despite usual maximum judge found crime committed purpose intimidate race color gender handicap religion sexual orientation ethnicity quoting stat ann west supp ring arizona applied apprendi arizona law authorized death penalty judge found one ten aggravating factors case concluded defendant constitutional rights violated judge imposed sentence greater maximum imposed state law without challenged factual finding apprendi supra ring supra case petitioner sentenced three years statutory maximum standard range acted deliberate cruelty facts supporting finding neither admitted petitioner found jury state nevertheless contends apprendi violation relevant statutory maximum months maximum class felonies observes exceptional sentence may exceed limit see precedents make clear however statutory maximum apprendi purposes maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant see ring supra maximum receive punished according facts reflected jury verdict quoting apprendi supra harris plurality opinion cf apprendi supra facts admitted defendant words relevant statutory maximum maximum sentence judge may impose finding additional facts maximum may impose without additional findings judge inflicts punishment jury verdict alone allow jury found facts law makes essential punishment bishop supra judge exceeds proper authority judge case imposed exceptional sentence solely basis facts admitted guilty plea facts alone insufficient washington explained reason offered justify exceptional sentence considered takes account factors used computing standard range sentence offense gore case included elements kidnaping use firearm see judge imposed sentence solely basis plea reversed see maximum sentence years years apprendi judge imposed upon finding hate crime death ring judge imposed upon finding aggravator state defends sentence drawing analogy upheld mcmillan pennsylvania williams new york neither case point mcmillan involved sentencing scheme imposed statutory minimum judge found particular fact specifically noted statute authorize sentence excess otherwise allowed underlying offense cf harris supra williams involved regime allowed judge compel rely facts outside trial record determining whether sentence defendant death judge sentenced defendant death giving reason thus neither case involved sentence greater state law authorized basis verdict alone finally state tries distinguish apprendi ring pointing enumerated grounds departure regime illustrative rather exhaustive distinction immaterial whether judge authority impose enhanced sentence depends finding specified fact apprendi one several specified facts ring aggravating fact remains case jury verdict alone authorize sentence judge acquires authority upon finding additional state sentencing procedure ply sixth amendment petitioner sentence iii commitment apprendi context reflects respect longstanding precedent need give intelligible content right jury trial right mere procedural formality fundamental reservation power constitutional structure suffrage ensures people ultimate control legislative executive branches jury trial meant ensure control judiciary see letter xv federal farmer reprinted complete storing ed describing jury secur ing people large rightful controul judicial department john adams diary entry reprinted works john adams adams ed common people complete control every judgment judicature legislature letter thomas jefferson abbé arnoux july reprinted papers thomas jefferson boyd ed called upon decide whether people best omitted legislative judiciary department say better leave legislative jones apprendi carries design ensuring judge authority sentence derives wholly jury verdict without restriction jury exercise control framers intended reject apprendi resigned one two alternatives first jury need find whatever facts legislature chooses label elements crime labels sentencing factors matter much may increase punishment may found judge mean example judge sentence man committing murder even jury convicted illegally possessing firearm used commit making illegal lane change fleeing death scene even apprendi critics advocate absurd result cf dissenting jury function circuitbreaker state machinery justice relegated making determination defendant point something wrong mere preliminary judicial inquisition facts crime state actually seeks second alternative legislatures may establish legally essential sentencing factors within limits limits crossed perhaps sentencing factor tail wags dog substantive offense mcmillan means operation law must go far must exceed judicial estimation proper role judge subjectivity standard obvious petitioner argued kidnaping deliberate cruelty essentially kidnaping charge avoided pleading lesser offense conceded might held irrelevant see wash petitioner sentence exceeded standard maximum almost washington cases upheld exceptional sentences times standard maximum see state oxborrow exceptional sentence standard maximum sentence state branch exceptional sentence standard maximum sentence go far cases answer legal analysis provide far yardstick always possible disagree judgments never refute whether sixth amendment incorporates manipulable standard rather apprendi rule depends plausibility claim framers left definition scope jury power judges intuitive sense far far think claim plausible reason framers put guarantee constitution unwilling trust government mark role jury iv reversing judgment state find ing determinate sentencing schemes unconstitutional brief respondent case whether determinate sentencing constitutional implemented way respects sixth amendment several policies prompted washington adoption determinate sentencing including proportionality gravity offense parity among defendants see rev code ann nothing said impugns salutary objectives justice argues determinate sentencing schemes involving judicial factfinding entail less judicial discretion indeterminate schemes constitutionality latter implies constitutionality former post argument flawed number levels first sixth amendment terms limitation judicial power reservation jury power limits judicial power extent claimed judicial power infringes province jury indeterminate sentencing increases judicial discretion sure expense jury traditional function finding facts essential lawful imposition penalty course indeterminate schemes involve judicial factfinding judge like parole board may implicitly rule facts deems important exercise sentencing discretion facts pertain whether defendant legal right lesser sentence makes difference insofar judicial impingement upon traditional role jury concerned system says judge may punish burglary years every burglar knows risking years jail system punishes burglary sentence another added use gun burglar enters home unarmed entitled sentence reason sixth amendment facts bearing upon entitlement must found jury even assuming restraint judicial power unrelated jury role sixth amendment objective far clear apprendi disserves goal determinate schemes entail less judicial power indeterminate schemes judicial power determinate schemes whether apprendi increases judicial power overall depends determinate schemes given choice two alternatives justice simply assumes net effect favor judges empirical basis prediction indeed evidence points exactly way kansas found apprendi infirmities state regime state gould legislature responded reestablishing indeterminate sentencing applying apprendi requirements current regime see act may ch sess laws pp codified stat ann cum supp brief kansas appellate defender office amicus curiae result less judicial power justice breyer argues apprendi works detriment criminal defendants plead guilty depriving opportunity argue sentencing factors judge post nothing prevents defendant waiving apprendi rights defendant pleads guilty state free seek judicial sentence enhancements long defendant either stipulates relevant facts consents judicial factfinding see apprendi appropriate waivers procured may continue offer judicial factfinding matter course defendants plead guilty even defendant stands trial may consent judicial factfinding sentence enhancements may well interest relevant evidence prejudice trial understand apprendi possibly work detriment free think costs outweigh benefits render see merit justice breyer contention apprendi unfair criminal defendants respond enacting robbery crime prosecutors elements bargain post citing bibas judicial sentence enhancements world guilty pleas yale bargaining already exists regard sentencing factors defendants either stipulate contest facts make applicable difference bargaining sentencing factors bargaining elements latter probably favors defendant every new element prosecutor threaten charge also element defendant threaten contest trial make prosecutor prove beyond reasonable doubt moreover given sprawling scope criminal codes power affect sentences making even nonbinding sentencing recommendations already shortage terrorem tools prosecutors disposal see king klein apprendi plea bargaining stan rev every prosecutorial bargaining chip mentioned professor bibas existed exactly evaluation apprendi fairness criminal defendants must compare regime replaced defendant warning either indictment plea routinely see maximum potential sentence balloon little five years much life imprisonment see based facts proved peers beyond reasonable doubt facts extracted trial report compiled probation officer judge thinks likely got right got wrong conceive measure fairness find fault utterly speculative bargaining effects justice breyer identifies regime champions suffice say measure exists one framers left us implausibility justice breyer contention apprendi unfair criminal defendants exposed lineup amici case hard believe national association criminal defense lawyers somehow duped arguing wrong side justice breyer authority asking defendants protected apprendi article written criminal defense lawyer law professor former prosecutor see post citing bibas supra association american law schools directory law teachers justice breyer also claims apprendi attenuate connection real criminal conduct real punishment encouraging plea bargaining restricting alternatives adversarial factfinding post short answer former point even assuming questionable premise apprendi encourage plea bargaining see supra sixth amendment written benefit choose forgo protection guarantees right jury trial guarantee particular number jury trials actually take place defendants elect waive right example government moment particularly oppressive prove constitutional provision guaranteeing availability option disserved justice breyer general argument apprendi undermines alternatives adversarial factfinding much criticism apprendi assault jury trial generally esteem processes post supports well argument either constitution traditions entrenches however admit contention facts better discovered judicial inquisition adversarial testing jury see blackstone commentaries justice breyer may convinced equity regime favors views ones bound uphold ultimately decision turn whether degree trial jury impairs efficiency fairness criminal justice one certainly argue values better served leaving justice entirely hands professionals many nations world particularly following traditions take course one shred doubt however framers paradigm criminal justice ideal administrative perfection ideal limited state power accomplished strict division authority judge jury apprendi held every defendant right insist prosecutor prove jury facts legally essential punishment dissenters alternative right end matter petitioner sentenced prison three years beyond law allowed crime confessed basis disputed finding acted deliberate cruelty framers thought much demand depriving man three years liberty state suffer modest inconvenience submitting accusation unanimous suffrage twelve equals neighbours blackstone commentaries rather lone employee state judgment washington appeals reversed case remanded proceedings inconsistent opinion ordered ralph howard blakely petitioner washington writ certiorari appeals washington division june justice justice breyer joins chief justice justice kennedy join part dissenting legacy today opinion whether intended consolidation sentencing power state federal judiciaries says congress state legislatures want constrain sentencing discretion judges bring uniformity sentencing cost dearly congress faced burdens imposed extension apprendi present context either trim eliminate altogether sentencing guidelines schemes years sentencing reform thus little moment majority expressly declare guidelines schemes unconstitutional ante residents fond saying relevant inquiry one form effect apprendi new jersey ring arizona scalia concurring effect today decision greater judicial discretion less uniformity sentencing find implausible framers considered result required due process clause sixth amendment practical consequences today decision may disastrous respectfully dissent one need look history leading following enactment washington guidelines scheme appreciate damage today decision cause prior washington like federal government employed indeterminate sentencing scheme washington criminal code separated felonies three broad categories class carrying sentence years life class carrying sentence years class carrying sentence years rev code ann see also sentencing reform act laws ch sentencing judges conjunction parole boards virtually unfettered discretion sentence defendants prison terms falling anywhere within statutory range including probation jail sentence rev code ann boerner lieb sentencing reform washington crime justice tonry ed hereinafter boerner lieb judges authorized choose prison probation exceptions subject review abuse discretion see also boerner sentencing washington pp system unguided discretion inevitably resulted severe disparities sentences received served defendants committing offense similar criminal histories boerner lieb cf senate report precursor federal sentencing reform act day federal judges mete unjustifiably wide range sentences offenders similar histories convicted similar crimes committed similar circumstances disparities whether occur time initial sentencing parole stage traced directly unfettered discretion law confers judges parole authorities responsible imposing implementing sentence indeed rather reflect legally relevant criteria disparities often correlated constitutionally suspect variables race boerner lieb see also breyer federal sentencing guidelines key compromises upon rest hofstra rev elimination racial disparity one reason behind congress creation federal sentencing commission counteract trends state legislature passed sentencing reform act act laudable purposes mak ing criminal justice system accountable public nsur ing punishment criminal offense proportionate seriousness offense commensurate punishment imposed others committing similar offenses rev code ann act neither increased statutory sentencing ranges three types felonies though eliminate statutory mandatory minimum class felonies reclassified substantive offenses laws ch merely placed meaningful constraints discretion sentence offenders within statutory ranges eliminated parole thus evidence legislature attempting manipulate statutory elements criminal offenses circumvent procedural protections bill rights rather lawmakers trying bring uniformity transparency accountability otherwise sentencing corrections system ed principle except unguided discretion boerner lieb quoting zimring making punishment fit crime consumers guide sentencing reform occasional paper ii far disregarding principles due process jury trial right majority today suggests washington reform served passage act defendant charged second degree kidnaping like petitioner idea whether receive sentence probation ultimate sentencing determination turn much idiosyncracies particular judge specifics defendant crime background defendant know facts offense history considered relevant sentencing judge parole board passage act defendant charged second degree kidnaping knows presumptive sentence good idea types factors sentencing judge consider deciding whether sentence outside range guaranteed meaningful appellate review protect arbitrary sentence boerner lieb consulting one sheet practitioners identify applicable scoring rules criminal history sentencing range available sentencing options case criminal defendants still face statutory maximum sentences least know much real consequences actions washington move system guided discretion served equal protection principles well past years substantial reduction racial disparity sentencing across state racial disparities exist accounted differences legally relevant variables offense viction prior criminal record udicial authority impose exceptional sentences departure authority shows little evidence disparity correlated race reduction tly traceable constraining effects guidelines namely presumptive range limits imposition exceptional sentences outside ranges instance sentencing judges still retain unreviewable discretion offender cases certain sex offender cases impose alternative sentences far lenient contemplated guidelines extent unjustifiable racial disparities persisted washington imposition alternative sentences lesson powerful racial disparity correlated unstructured unreviewed discretion ibid see also washington state minority justice commission crutchfield weis engen gainey disparities exceptional sentences washington state final report xceptional sentences major source racial disparities sentencing majority disagree determinate sentencing schemes like washington serve important constitutional values ante thus majority says case whether determinate sentencing constitutional implemented way respects sixth amendment ibid extension apprendi present context impose significant costs legislature determination particular fact historically element warrants higher sentence constitutional prohibition guidelines schemes majority decision today exacts substantial constitutional tax costs substantial real majority approach fact increases upper bound judge sentencing discretion element offense thus facts historically taken account sentencing judges assess sentence within broad range drug quantity role offense risk bodily harm must charged indictment submitted jury winship simply legislature rather judge constrains extent facts may used impose sentence within statutory range alone enough threaten continued use sentencing guidelines schemes additional costs example legislature might rightly think factors bearing sentencing prior bad acts criminal history considered jury determination defendant guilt character evidence traditionally limits guilt phase criminal proceedings tendency inflame passions jury see fed rule evid imwinkelried giannelli gilligan leaderer courtroom criminal evidence ed legislature desires uniform consideration factors sentencing want impact jury initial determination guilt state may bear additional expense separate jury trial penalty phase proceeding facts bear sentencing either discovered discoverable prior trial instance legislature might desire defendants act obstructive manner trial proceedings receive greater sentence defendants see sentencing commission guidelines manual hereinafter ussg increase offense level obstruction justice cases violation arises late state provide notice defendant argue facts jury state wanting make facts relevant sentencing must either vest sufficient discretion judge account bring separate criminal prosecution obstruction justice perjury latter option available extent defendant obstructive behavior severe constitute separate offense unless legislature willing undertake unlikely expense criminalizing relatively minor obstructive behavior likewise facts historically relevant sentencing always known prior trial instance trial sentencing proceedings drug distribution defendant might reveal sold primarily children majority approach state wishing revelation result higher sentence within statutory range either must vest judges sufficient discretion account trust exercise discretion bring separate criminal prosecution indeed latter choice might available separate prosecution aggravated offense likely barred altogether double jeopardy clause blockburger prosecute separate offense unless two offenses least one element majority may correct federal government willing bear costs ante simple economics dictate bear extent inevitable increase judicial discretion attendant iii washington sentencing reform act alter statutory maximum sentence petitioner exposed see rev code ann second degree kidnaping class felony since see also state pawling app citing second degree kidnapping provision existed petitioner informed charging document plea agreement plea hearing faced potential statutory maximum years prison app discussed guidelines served due process providing notice petitioner consequences acts vindicated jury trial right informing stakes risking trial served equal protection ensuring petitioner invidious characteristics race impact sentence given observations difficult discern principle besides doctrinaire formalism actually motivates today decision majority chides apprendi dissenters preferring nuanced interpretation due process clause sixth amendment jury trial guarantee generally defer legislative labels acknowledging existence constitutional constraints majority calls law must go far approach ante emphasis deleted indeed choice adopting balanced approach takes consideration values underlying bill rights well history particular sentencing reform law adopting rigid rule destroys everything path choose former see apprendi dissenting believe maximum penalty rule required constitution evaluate new jersey statute analyzing factors examined past cases citation omitted even one accept formalism principle worth vindicating sake explain apprendi today result rule deferring legislative labels less formal pedigree consistent decisions leading apprendi see fact prior conviction element aggravated recidivist offense watts per curiam acquittal offense bar consideration underlying conduct purposes guidelines enhancement witte double jeopardy bar consideration uncharged conduct imposition guidelines enhancement walton arizona aggravating factors need found jury capital case mistretta federal sentencing guidelines violate separation powers mcmillan pennsylvania facts increasing mandatory minimum sentence necessarily elements vest primary authority defining crimes political branches belongs apprendi supra dissenting also easier administer majority rule inasmuch courts forced look behind statutes regulations determine whether particular fact increase penalty defendant exposed majority correct rigid adherence approach conceivably produce absurd results ante today decision demonstrates rigid adherence majority approach continue produce results disserve principles majority purports vindicate rule deference legislature retains political check prevent lawmakers shifting prosecution crimes penalty phase proceedings lesser included offenses majority hypothesized prosecution murder guise traffic offense sentencing proceeding ante similar check however application majority fact increases upper bound judicial courts majority claims mantle history original intent explained elsewhere handful state decisions century criminal procedure treatise little persuasive value evidence framers federal constitution intended late century see apprendi dissenting broad judicial sentencing discretion foreign framers citing archbold pleading evidence criminal cases ed never faced constitutional choice submitting every fact increases sentence jury vesting sentencing judge broad ary authority account differences offenses offenders iv consequences today decision far reaching disturbing washington sentencing system means unique numerous enacted guidelines systems federal government see alaska stat ark code ann supp stat stat ann et seq comp laws ann west supp stat stat lexis admin rule code et seq reproduced following cons stat ann purden supp et seq today decision casts constitutional doubt threatens untold number criminal judgments every sentence imposed guidelines cases currently pending direct appeal jeopardy despite fact hold schriro summerlin post ring fortiori apprendi apply retroactively habeas review criminal sentences imposed federal state guidelines since apprendi decided arguably remain open collateral attack see teague lane plurality opinion case announces new rule result dictated precedent existing time defendant conviction became final practical consequences trial courts starting today equally unsettling courts mete guidelines sentences courts apply guidelines mitigating factors aggravating factors jettison guidelines altogether ignores havoc wreak trial courts across country answer say today opinion impacts washington scheme others example federal sentencing guidelines see ante federal guidelines us express opinion cf apprendi supra claiming overrule walton supra soon thereafter overruled ring apprendi supra reserving question federal sentencing guidelines fact federal sentencing guidelines promulgated administrative agency nominally located judicial branch irrelevant majority reasoning guidelines force law see stinson congress unfettered control reject accept particular guideline mistretta structure federal guidelines likewise government suggests provide grounds distinction brief amicus curiae washington scheme almost identical upward departure regime established implemented ussg anything structural differences exist make federal guidelines vulnerable attack provision struck provides increase upper bound presumptive sentencing range sentencing finds considering purpose act substantial compelling reasons justifying exceptional sentence rev code ann act elsewhere provides nonexhaustive list aggravating factors satisfy definition flatly rejects respondent argument soft constraints still allow washington judges exercise substantial amount discretion survive apprendi ante suggests hard constraints found throughout chapters federal sentencing guidelines require increase sentencing range upon specified factual findings meet fate see ussg increases offense level firearms offenses based number firearms involved whether possession connection another offense whether firearm stolen increase offense level financial crimes based amount money involved number victims possession weapon general increase offense level obstruction justice indeed extraordinary sentence provision struck today inoffensive holding apprendi regime guided discretion possibly list facts justify increase range nonexhaustive state real facts doctrine precludes reliance sentencing courts upon facts constitute elements different aggravated offense see rev code ann codifying real facts doctrine washington scheme comport constitution hard imagine guidelines scheme feared come pass years sentencing reform lost tens thousands criminal judgments jeopardy apprendi dissenting ring dissenting respectfully dissent ralph howard blakely petitioner washington writ certiorari appeals washington division june justice kennedy justice breyer joins dissenting majority opinion considerable damage laws administration criminal justice system reasons well stated justice dissent plus one respectful submission disregards fundamental principle constitutional system different branches government converse matters vital common interest mistretta mistretta explained constitution establishes system government presupposes also quoting youngstown sheet tube sawyer jackson concurring constant constructive discourse courts legislatures integral admirable part constitutional design judicial determinations often yield intelligible patterns refined legislatures codified statutes rules general standards legislative enactments followed incremental judicial interpretation legislatures may respond cycle repeats recurring dialogue essential source elaboration evolution law basic constitutional theory action sentencing guidelines prime example collaborative process dissatisfied wide disparity sentencing participants criminal justice system including judges pressed legislative reforms response legislators drew participants shared experiences enacted measures correct problems justice explains sometimes rise level constitutional injury mistretta recognized interchange among different actors constitutional scheme consistent constitution structural protections sure case concerns work state legislature congress anything however distinction counsels even greater judicial caution unlike mistretta case implicates collective wisdom legislators side continuing dialogue fair sentencing also interest serve laboratories innovation experiment see new state ice liebmann brandeis dissenting apparent sense irony effect today decision destruction sentencing scheme devised democratically elected legislators majority shuts alternative nonjudicial sources ideas experience faintly disguised distrust judges purported usurpation jury function criminal trials tells trial judges spent years studying problem also legislators devoted valuable time resources calling upon accumulated wisdom experience judicial branch matter uniquely within ken judges mistretta supra efforts judgments naught numerous enacted sentencing guidelines similar one washington state commanded scrap everything start constitution required result majority decision unfortunate least understandable defensible justice dissent demonstrates however simply case reason constitution prohibit dynamic fruitful dialogue judicial legislative branches government marked sentencing reform state federal levels years dissent ralph howard blakely petitioner washington writ certiorari appeals washington division june justice breyer justice joins dissenting makes clear means said apprendi new jersey view sixth amendment says fact increases penalty crime beyond prescribed statutory maximum must submitted jury ante quoting apprendi supra rescribed statutory means penalty relevant statute authorizes solely basis facts reflected jury verdict ante emphasis deleted thus jury must find facts make crime offender charged also facts way offender carried crime difficult understand impulse produced holding imagine classic example statute mandatory sentencing guideline provides sentence ordinary bank robbery sentence bank robbery committed gun one might ask matter jury trial purposes whether statute guideline labels gun presence sentencing fact way offender carried lesser crime ordinary bank robbery factual element greater crime bank robbery gun sixth amendment requires jury finding gun latter circumstance also require jury find fact former circumstance two sets circumstances functionally identical instances identical punishment follows identical factual findings related bank taking force threat force gun difference two circumstances concerns legislative sentencing commission decision label sentencing fact element greater crime affix one facts namely presence gun lead greater sentence given identity circumstances apart label jury traditional factfinding role law insistence upon treating like cases alike legislature labeling choice make important sixth amendment difference apprendi concludes make difference sixth amendment jury trial guarantee applies similarly agree majority analysis conclusion say agree classically speaking difference traditional sentencing factor element greater offense often comes legislative choice label affix jump conclusion sixth amendment always requires identical treatment two scenarios jump fraught consequences threaten fairness traditional criminal justice system distorts historical sentencing criminal trial practices upsets settled law legislatures relied designing punishment systems justices dissented apprendi written many matters opinions see kennedy breyer concurring part concurring judgment jones kennedy dissenting monge california mcmillan pennsylvania rehnquist risk repetition shall set forth several important considerations lead conclude must dissent majority ignores adverse consequences inherent conclusion result majority rule sentencing must take one three forms risks either impracticality unfairness harm jury trial right majority purports strengthen circumstance shows majority sixth amendment interpretation right first option legislators create simple pure nearly pure charge offense determinate sentencing system see breyer federal sentencing guidelines key compromises upon rest hofstra rev system indictment charge facts taken together constitute crime robbery robbery carry single sentence say five years imprisonment every person convicted robbery receive sentence centuries ago everyone convicted almost serious crime sentenced death see lillquist puzzling return jury sentencing misgivings apprendi rev system assures uniformity intolerable costs first simple determinate sentencing systems impose identical punishments people committed crimes different ways dramatically different conduct ends punished way injustice taken place simple determinate sentencing virtue treating like cases alike simultaneously fails treat different cases differently commentators leveled charge sentencing guideline systems see schulhofer assessing federal sentencing process problem uniformity disparity crim rev arguing important problem federal guidelines system much disparity rather excessive uniformity arguing adjustments including elimination mandatory minimums make guidelines system responsive relevant differences charge doubly applicable simple pure charge systems permit departures prescribed sentences even extraordinary cases second world statutorily fixed mandatory sentences many crimes determinate sentencing gives tremendous power prosecutors manipulate sentences choice charges prosecutors simply charge threaten charge defendants crimes bearing higher mandatory sentences defendants knowing chance argue lower sentence front judge may plead charges might otherwise contest considering criminal cases go trial resolution plea bargaining norm rule apprendi extent results return determinate sentencing threatens serious unfairness see bibas judicial sentence enhancements world guilty pleas yale explaining rule apprendi hurts defendants depriving sentencing hearings hearings likely forcing defendants surrender sentencing issues like drug quantity agree plea transferring power prosecutors second option legislators return system indeterminate sentencing california recent sentencing reform movement see payne tennessee increasing importance probation opposed imprisonment part penological process california developed sentence time incarceration left almost entirely penological authorities rather courts thompson navigating hidden obstacles reentry boston college rev late california switched indeterminate criminal sentencing scheme determinate sentencing omitted indeterminate systems length sentence entirely almost entirely within discretion judge parole board typically broad power decide release prisoner systems vogue criticized rightly producing unfair disparities including disparities punishment similarly situated defendants see ante dissenting citing sources length time person spent prison appeared depend judge ate breakfast day sentencing judge got factors made difference length sentence see breyer supra citing congressional expert studies indicating sentencing guidelines promulgated punishments identical crimes second circuit ranged years imprisonment sentences varied depending upon region gender defendant race defendant system judge vary sentence greatly based upon findings defendant committed crime findings might made preponderance evidence much less beyond reasonable doubt see mcmillan returning system diminish majority claims trying uphold ante quoting bishop criminal procedure ed also little ensur control majority calls peopl jury judiciary ante since peopl decide defendant guilt finding effect duration sentence judge authority sentence formally derive jury verdict jury exercise little control sentence ante difficult see outcome protects structural safeguards majority claims defending third option seems believe legislators fact take option retaining structured schemes attempt punish similar conduct similarly different conduct differently modifying conform apprendi dictates judges able depart downward presumptive sentences upon finding mitigating factors present able depart upward unless prosecutor charged aggravating fact jury proved beyond reasonable doubt majority argues based single example kansas legislatures enact amendments along lines face oncoming apprendi train see ante citing state gould act may ch sess laws pp codified stat ann cum supp brief kansas appellate defender office amicus curiae therefore worth exploring option work practice well assumptions depends option implemented one two ways first way legislatures subdivide crime list complex crimes defined include commonly found sentencing factors drug quantity type victim presence violence degree injury use gun legislature example might enact robbery statute modeled robbery sentencing guidelines increases punishment depending upon nature institution robbed presence brandishing use firearm making death threat presence ordinary serious permanent life threatening bodily injury abduction physical restraint taking firearm taking drugs value property loss etc cf sentencing commission guidelines manual hereinafter ussg possibility course merely highly calibrated form pure charge system discussed part supra suffers defects prosecutor control precise charge controls punishment thereby marching sentencing system directly away toward one important guideline goal rough uniformity punishment engage roughly real criminal conduct artificial consequently unfair nature resulting sentence aggravated fact prosecutors must charge relevant facts way crime committed presentence investigation examines criminal conduct perhaps trial many facts relevant punishment known complex charge offense system also prejudices defendants seek trial put untenable position contesting material aggravating facts guilt phases trials consider defendant charged mere possession cocaine specific offense possession grams cocaine consider defendant charged murder new crime murder using machete consider defendant prosecution wants claim supervisor rather ordinary gang member constitution guarantees due process put defendants matter course position arguing sell drugs sell grams kill use machete engage gang activity certainly supervisor single jury see apprendi breyer dissenting monge system tolerate kind problem point consider defendant wants argue innocence alternative murder rereading many distinctions made typical robbery guideline see supra suggests effort incorporate real set guidelines complex statute reach well beyond point majority announces really problem may continue offer judicial factfinding matter course defendants plead guilty defendants may stipulat relevant facts consen judicial factfinding ante problem course concerns defendants want plead guilty elements recently commonly thought sentencing factors defendants fairness problem arises may well decide permit defendants carve subsets facts new robbery crime seeking judicial determination facts jury determination others instead may simply require defendants plead guilty elements proceed likely prejudicial trial elements majority deny may make choice simply fails understand state want exercise ante answer shall explain moment alternative may prove expensive unwieldy provide offer defendants option judicial factfinding facts sentencing facts say fairness concerns also offer defendant second sentencing jury kansas done therefore turn alternative second way make sentencing guidelines require least two juries defendant whenever aggravating facts present one jury determine guilt crime charged additional jury try disputed facts found aggravate sentence experience bifurcated trials capital punishment context suggests requiring sentences costly money judicial time resources cf kozinski gallagher death ultimate sentence case res rev estimating costs capital case around million noncapital case tabak empirical studies affect positively politics death penalty cornell rev attributing greater cost death penalty cases part bifurcated proceedings context noncapital crimes potential need second indictment alleging aggravating facts likely need formal evidentiary rules prevent prejudice increased difficulty obtaining relevant sentencing information mean greater complexity added cost delay see part infra indeed cost delay lead legislatures revert complex charge offense system described part supra majority refers amicus curiae brief filed kansas appellate defender office suggests system proved workable kansas ante may likelihood workability reflects uncomfortable fact fact majority hints ante whose constitutional implications seem grasp uncomfortable fact make system seem workable even desirable minds including defense attorneys called plea bargaining see bibas yale reporting fewer adjudicated state felony defendants jury trials bench trials plead guilty see also ante making clear plea bargaining applies announce constitution requires least two jury trials criminal defendant one guilt another sentencing knows full well defendants go trial even much less insist two trials consequences holding defendants go trial truthful answer know defendants may receive bargaining advantages increased cost double jury trial guarantee makes prosecutors willing cede certain sentencing issues defense defendants may hurt approach makes reluctant risk trial perhaps want argue know cocaine bag small amount regardless unaware confederate gun etc see bibas yale many defendants going trial desirable option left without real hearings trial right little good defendants go trial least greater expense attached trials greater complexity taken together context overworked criminal justice system likely mean things equal fewer trials greater reliance upon plea bargaining system punishment set judges juries advocates acting bargaining constraints time greater power prosecutor control punishment charge likely weaken relation real conduct real punishment well see schulhofer crim estimating evasion proper sentence federal guidelines may occur guilty plea cases even holding embed practices fear success depends upon existence present practice understand sixth amendment require sentencing system work practice handful defendants exercise right jury trial majority response state bargaining elements probably favors defendant ante adding many criminal defense lawyers favor position ante basic problem one fairness defendants matter fairness prosecutors rather concerns greater fairness sentencing system uniform correspondence real criminal conduct real punishment helps create minimum system preventing judge taking account aggravating fact without prosecutor acquiescence undercut nullify legislative efforts ensure guidelines punishments reflect convicted offender real criminal conduct rather portion offender conduct prosecutor decides charge prove efforts tie real punishment real conduct new embodied sentencing practices practices judge looking presentence report seek tailor sentence significant part fit criminal conduct offender actually engaged century questions punishment guilt innocence reflected determinations made juries also judges probation officers executive parole boards determinations rested upon adversarial processes holding undermines efforts reform processes means legislatures permit judges base sentencing upon real conduct seek guidelines make results uniform ways system work radical change criminal law surprising never previously suggested constitution outside unique context death penalty might require bifurcated sentencing impediment holding poses legislative efforts achieve greater systematic fairness casts doubt constitutional validity fourth option perhaps congress state legislatures might example rewrite criminal codes attaching astronomically high sentences crime followed long lists mitigating facts part consist absence aggravating facts apprendi dissenting explaining legislatures evade majority rule making yet another labeling choice political impediments legislative action make rewrites difficult achieve difficult see sixth amendment require legislatures undertake may also prove possible find combinations variations upon first three options unaware variation involve shift power prosecutor weakening connection real conduct real punishment inherent charge offense system lack uniformity inherent system pure judicial discretion complexity expense increased reliance plea bargains involved system simple fact design fair sentencing system must involve efforts make practical compromises among competing goals majority reading sixth amendment makes effort find compromises already difficult virtually impossible ii majority rests conclusion significant part upon claimed historical therefore constitutional imperative according majority rule applies case rooted longstanding tenets criminal jurisprudence ante every accusation defendant must proved jury accusation lacks particular fact law makes essential punishment accusation within requirements common law accusation reason ibid quoting bishop criminal procedure historical sources upon majority relies however compel result reaches see ante dissenting apprendi dissenting quotation bishop majority attributes great weight stands nothing unremarkable proposition legislature passes statute setting forth heavier penalties available committing offense specifying facts triggered statutory penalty defendant receive greater statutory punishment indictment expressly charged prosecutor proved facts made statutory offense opposed simply facts made offense dissenting characterizing similar statement law archbold pleading evidence criminal cases ed obvious one considers problem bishop addressing provides example statutes whereby crime committed particular intent particular weapon like subjected particular corresponding punishment heavier simple offense though course concerns limited example ante bishop supra discussing example common assault statutes assaults committed intent rob indictments historically charge statutorily labeled elements offense proposition agree see apprendi supra dissenting see also archbold pleading evidence criminal cases ed fact circumstance necessary ingredient offence must set forth indictment may doubt judgment given defendant convicted starkie criminal pleading ed indictment must state criminal nature degree offence conclusions law facts also particular facts circumstances render defendant guilty offence neither bishop historical treatise writer however disputes proposition judges historically discretion vary sentence within range provided statute based facts proved trial see bishop supra ithin limits discretion punishment law may allowed judge pronounces sentence may suffer discretion influenced matter shown aggravation mitigation covered allegations indictment stith cabranes fear judging sentencing guidelines federal courts modern history sentencing likewise indicates judges broad discretion set sentences within statutory range based uncharged conduct usually judge based sentencing decision facts gleaned presentence report defendant dispute sentencing hearing federal system example federal rule criminal procedure provided probation officers employees judicial branch prepared presentence report judge copy generally given prosecution defense sentencing hearing see stith cabranes supra note see also ante dissenting describing state washington former indeterminate sentencing law case statute provides kidnaping may punished years imprisonment rev code ann modern structured sentencing schemes like washington change statutorily fixed maximum penalty purport establish new elements crime instead undertake structure previously unfettered discretion sentencing judge channeling limiting discretion even within statutory range thus contrary majority arguments ante kidnapers state washington know risk years imprisonment also benefit additional information long within maximum sentences likely based kidnaping committed historical treatises speak practice done century cf jones scholarship aware show question exactly like one ever raised resolved period framing makes sense one considers prior century prescribed penalty felonies often death judge limited sometimes power vary see lillquist century saw movement rehabilitative mode punishment prison terms became norm shifting power judge impose longer shorter term within statutory maximum see ibid ability legislatures guide judge discretion designating presumptive ranges allowing judge impose less severe penalty unusual cases therefore never considered argue otherwise majority must ignore significant differences modern structured sentencing schemes history relies strike majority insists historical sources particularly bishop limited context written ante never explained must transplant discussions different context sentencing schemes designed structure judges discretion within statutory sentencing range given history silence question laws structure judge discretion within range provided legislatively labeled maximum term surprising modern cases made clear legislatures within broad limits distinguish sentencing facts elements crimes see mcmillan choice label legislatures indicate whether judge jury must make relevant factual determination history preclude legislatures making decision argued part supra allowing legislatures structure sentencing way dual effect enhancing giving meaning sixth amendment jury trial right core crimes affording additional due process defendants form sentencing hearings judges hearings majority rule eliminate many risk unfairness involved permitting congress make labeling decision course recognized tail sentencing fact might wa dog substantive offense mcmillan supra congress might permit judge sentence individual murder though convicted making illegal lane change see ante majority opinion kind problem due process clause well suited cure mcmillan foresaw possibility judges use judgment dealing problem judges part supra makes clear alternatives worse practically although majority refuses admit constitutionally well historic practice compel result majority reaches constitutional concerns counsel opposite iii majority also overlooks important institutional considerations congress relied upon believed constitutional power decide within broad limits whether make particular fact sentencing factor element greater crime relied upon mcmillan guaranteeing constitutional validity proposition created sentencing reform effort change criminal justice system reflects systematically simply upon guilt innocence also upon done offender efforts spanned generation led state sentencing guidelines federal sentencing guideline system ante dissenting describing sentencing reform state washington systems imperfect yield far perfect results believe constitution forbids state legislatures congress adopt systems try improve time believe constitution hamstrings legislatures way justice discussed iv let us return question posed outset sixth amendment permit jury trial right respect particular fact depend upon legislative labeling decision namely legislative decision label fact sentencing fact instead element crime answer fairness effectiveness sentencing system related fairness effectiveness criminal justice system depends upon legislature possessing constitutional authority within due process limits make labeling decision restrict radically legislature power respect majority interprets sixth amendment prevents legislature seeking sentencing systems consistent indeed may help advance constitution greater fairness goals say simply express concerns fairness defendants also express concerns serious practical impractical changes decision seems likely impose upon criminal process tendency decision embed plea bargaining processes lack transparency often mean nonuniform sometimes arbitrary sentencing practices obstacles decision poses legislative efforts bring greater uniformity real criminal conduct real punishment ultimately limitations imposes upon legislatures ability make democratic legislative decisions whatever faults guidelines systems many likely find cure legislation emerging experience discussion among elements criminal justice community virtually unchangeable constitutional decision taken together three sets considerations concerning consequences concerning history ing institutional reliance leave apprendi convinced wrong thought might limited apprendi underlying principle undo sentencing reform efforts today case dispels illusion minimum case sets aside numerous state efforts direction perhaps distinguish federal sentencing guidelines uncertain result today decision federal prosecutors like state prosecutors must decide next handle tomorrow case consider matters federal prosecutors must know guess prosecute next case today decision apply full force federal sentencing guidelines must initial indictment contain sentencing factors charged elements crime evidentiary rules prosecution continue use say presentence reports conclusions reflecting layers hearsay cf crawford washington slip clarifying sixth amendment requirement confrontation respect testimonial hearsay numerous cases holding sentencing judge may consider virtually reliable information still good law juries judges required determine matter see watts per curiam evidence conduct defendant acquitted may considered sentencing cf witte evidence uncharged criminal conduct used determining sentence juries deal highly complex sentencing guidelines obviously written application experienced trial judge see ussg requiring greater sentence defendant leader criminal activity involved four participants otherwise extensive emphasis added highly complex multiple count rules relevant conduct rules ordinarily simply waits cases arise answer questions case affects tens thousands criminal prosecutions including federal prosecutions federal prosecutors proceed prosecutions subject risk defendants cases sentenced perhaps tried anew given consequence need certainty proceed piecemeal rather call argument ramifications concerns raised view reasons given dissent footnotes parts washington criminal code recodified amended cite throughout provisions effect time sentencing petitioner agreed additional charge assault involving domestic violence rev code ann sentence count ran concurrently relevant stipulation subjected petitioner measures order see increase standard range sentence judge found aggravating factors appeals questioned validity state law independent sufficiency support extent departure see app affirmed sentence solely finding domestic violence deliberate cruelty ibid therefore focus factor justice breyer cites justice apprendi dissent point bishop quotation means indictments must charge facts trigger statutory aggravation offense post dissenting opinion course notes justice referring entirely different quotation archbold treatise see citing archbold pleading evidence criminal cases ed justice breyer claims two similar post similar chalk cheese bishop addressing problem statutes aggravate offenses ibid rather entire chapter treatise devoted point every fact legally essential punishment must charged indictment proved jury bishop criminal procedure ch pp ed one example principle appearing several pages language quote text notes statute aggravating assault nowhere slightest indication general principle limited example even justice breyer academic supporters make claim see bibas judicial sentence enhancements world guilty pleas yale conceding bishop treatise supports apprendi criticizing theorizing justice criticism quantity historical support apprendi rule post dissenting opinion bears repeating issue us whether constitution limits authority reclassify elements sentencing factors agree line constitution draws criticism quantity evidence favoring alternative force accompanied evidence favoring justice even provide coherent alternative meaning guarantee unless one considers whatever legislature chooses leave jury long go far coherent see infra state contend stipulation alone supports departure statute lists domestic violence grounds departure combined aggravating factor suggests see iii matter judge must finding aggravating facts make judgment present compelling ground departure make judgment without finding facts support beyond bare elements offense whether judicially determined facts require sentence enhancement merely allow verdict alone authorize sentence amicus curiae urges us affirm notes differences washington sentencing regime federal sentencing guidelines questions whether differences constitutionally significant see brief amicus curiae federal guidelines us express opinion justice believes political check prevent lawmakers manipulating offense elements fashion post many immediate practical advantages judicial factfinding see post suggest political forces anything pull opposite direction case framers decision entrench right constitution shows trust government make political decisions area another example conversion separate crime sentence enhancement justice evidently consider going far enhancement see post perjury trial grounds judicial sentence enhancement underlying offense rather entirely separate offense found jury beyond reasonable doubt centuries see blackstone commentaries laws england unclear justice breyer responds required give defendants option waiving jury trial elements others post true enough asserts coercing want determinate sentencing norm wo let want prevent defendant choosing regime justice breyer claims alternative may prove expensive unwieldy provide post obvious reason forcing defendants choose contesting elements hypothetical robbery crime contesting none less expensive also giving third option pleading guilty elements submitting rest judicial factfinding justice breyer argument rests entirely speculative prediction number defendants likely choose first rather second option denied third sure justice breyer dissenters forbid increases sentence violate constitutional principle tail shall wag dog source principle entirely unclear precise effect precise effect presumably require ratio basic criminal sentence greater ratio caudal vertebrae body breed canine longest tail perhaps greater average ratio breeds perhaps median regrettably apprendi prevented full development line jurisprudence footnotes paucity empirical evidence regarding impact extending apprendi new jersey guidelines schemes come surprise majority ante prior today one ever applied apprendi invalidate application guidelines scheme compare state gould goodine luciano desumma kinter randle helton johnson per curiam piggie toliver sanchez fields cadc state dilts state gore state lucas state dean wl ct june unpublished opinion thus map uncharted territory blazed today unprecedented holding numbers available federal system alone staggering march federal criminal appeals pending defendant sentence issue memorandum carl schlesinger administrative office courts library june available clerk case file june apprendi decided march defendants sentenced federal memorandum supra given nearly federal sentences governed federal sentencing guidelines vast majority cases guidelines cases