apprendi new jersey argued march decided june petitioner apprendi fired several shots home family made statement later retracted want family neighborhood race charged new jersey law inter alia possession firearm unlawful purpose carries prison term years count refer state hate crime statute provides enhanced sentence trial judge finds preponderance evidence defendant committed crime purpose intimidate person group inter alia race apprendi pleaded guilty prosecutor filed motion enhance sentence found preponderance evidence shooting racially motivated sentenced apprendi term firearms count upholding sentence appeals rejected apprendi claim due process clause requires bias finding proved jury beyond reasonable doubt state affirmed held constitution requires fact increases penalty crime beyond prescribed statutory maximum fact prior conviction must submitted jury proved beyond reasonable doubt pp answer narrow constitutional question presented whether apprendi sentence permissible given exceeds maximum offense charged foreshadowed holding jones regard federal law fifth amendment due process clause sixth amendment notice jury trial guarantees require fact prior conviction increases maximum penalty crime must charged indictment submitted jury proved beyond reasonable doubt fourteenth amendment commands answer state statute involved pp fourteenth amendment right due process sixth amendment right trial jury taken together entitle criminal defendant jury determination guilty every element crime charged beyond reasonable doubt winship historical foundation principles extends centuries common law judges country long exercised discretion sentencing discretion bound range sentencing options prescribed legislature see tucker historic inseparability verdict judgment consistent limitation judges discretion highlight novelty scheme removes jury determination fact exposes defendant penalty exceeding maximum receive punished according facts reflected jury verdict alone pp mcmillan pennsylvania first case used sentencing factor refer fact found jury affect sentence imposed judge finding scheme issue run afoul winship strictures budge position constitutional limits exist authority define away facts necessary constitute criminal offense state scheme keeps jury facts exposing defendants greater additional punishment may raise serious constitutional concerns upheld federal law allowing judge impose enhanced sentence based prior convictions alleged indictment represents best exceptional departure historic practice pp light constitutional rule expressed new jersey practice stand allows jury convict defendant offense finding beyond reasonable doubt allows judge impose punishment identical new jersey provides crimes finding preponderance evidence defendant purpose intimidate victim based victim particular characteristic state argument biased purpose finding element distinct hate crime offense sentencing factor motive nothing disagreement rule applied case beyond argument succeed terms matter required finding labeled whether exposes defendant greater punishment authorized jury verdict sentencing enhancement degree culpability legislature associates factually distinct conduct significant implications defendant liberty heightened stigma associated offense legislature selected worthy greater punishment state placed enhancer within criminal code sentencing provisions mean essential element offense pp reversed remanded stevens delivered opinion scalia souter thomas ginsburg joined scalia filed concurring opinion thomas filed concurring opinion scalia joined parts ii filed dissenting opinion rehnquist kennedy breyer joined breyer filed dissenting opinion rehnquist joined charles apprendi petitioner new jersey writ certiorari new jersey june justice stevens delivered opinion new jersey statute classifies possession firearm unlawful purpose offense stat ann west offense punishable imprisonment five years years separate statute described state hate crime law provides extended term imprisonment trial judge finds preponderance evidence defendant committing crime acted purpose intimidate individual group individuals race color gender handicap religion sexual orientation ethnicity stat ann west supp extended term authorized hate crime law offenses imprisonment years question presented whether due process clause fourteenth amendment requires factual determination authorizing increase maximum prison sentence offense years made jury basis proof beyond reasonable doubt december petitioner charles apprendi fired several bullets home family recently moved previously neighborhood vineland new jersey apprendi promptly arrested admitted shooter questioning made statement later retracted even though know occupants house personally black color want neighborhood new jersey grand jury returned indictment charging apprendi four eight six five offenses charges alleged shootings four different dates well unlawful possession various weapons none counts referred hate crime statute none alleged apprendi acted racially biased purpose parties entered plea agreement pursuant apprendi pleaded guilty two counts possession firearm unlawful purpose stat ann west one count offense unlawful possession antipersonnel bomb prosecutor dismissed counts state law offense carries penalty range years offense carries penalty range years part plea agreement however state reserved right request impose higher enhanced sentence count based december shooting ground offense committed biased purpose described apprendi correspondingly reserved right challenge hate crime sentence enhancement ground violates constitution plea hearing trial judge heard sufficient evidence establish apprendi guilt counts judge confirmed apprendi understood maximum sentences imposed counts plea agreement provided sentence sole offense count run concurrently sentences potential sentences two counts critical judge found basis biased purpose enhancement maximum consecutive sentences counts amount years aggregate however judge enhanced sentence count maximum count alone years maximum two counts aggregate years period parole ineligibility trial judge accepted three guilty pleas prosecutor filed formal motion extended term trial judge thereafter held evidentiary hearing issue apprendi purpose shooting december apprendi adduced evidence psychologist seven character witnesses testified reputation racial bias also took stand explaining incident unintended consequence overindulgence alcohol denying way biased denying statement police accurately described judge however found police officer testimony credible concluded evidence supported finding crime motivated racial bias app pet cert found preponderance evidence apprendi actions taken purpose intimidate provided statute trial judge held hate crime enhancement applied rejecting apprendi constitutional challenge statute judge sentenced term imprisonment count shorter concurrent sentences two counts apprendi appealed arguing inter alia due process clause constitution requires finding bias upon hate crime sentence based must proved jury beyond reasonable doubt winship dissent appellate division superior new jersey upheld enhanced sentence super relying decision mcmillan pennsylvania appeals found state legislature decided make hate crime enhancement sentencing factor rather element underlying offense decision within state established power define elements crimes hate crime statute create presumption guilt determined appear tailored permit finding tail wags dog substantive offense quoting mcmillan characterizing required finding one motive described traditional sentencing factor one considered essential element crime unless legislature provides recognizing hate crime law expose defendants greater additional punishment quoting mcmillan held one factor standing alone sufficient render statute unconstitutional ibid divided new jersey affirmed began explaining due process requires state prove elements offense beyond reasonable doubt mere fact state legislature placed criminal component within sentencing provisions criminal code mean finding biased purpose intimidate essential element offense case continued legislature easily allow judges juries determine kidnapping victim released unharmed ibid citing state precedent requiring finding submitted jury proved beyond reasonable doubt neither constitutional question settled simply defining hate crime statute purpose intimidate motive thereby excluding provision traditional conception element crime even one characterize language way doubted characterization accurate proof motive ordinarily increase penal consequences actor ibid abels concluded yield answer apprendi constitutional question ibid noting last year expressed serious doubt concerning constitutionality allowing findings determined judge preponderance evidence jones concluded doubts essential holding turning appeals mcmillan well undertook multifactor inquiry held hate crime provision valid majority view statute allow impermissible burden shifting create separate offense calling separate penalty rather legislature simply took one factor always considered sentencing courts bear punishment dictated weight given factor appeals majority recognized state statute unlike mcmillan inasmuch increased maximum penalty defendant subject clear difference alone change constitutional calculus especially rarely doubt whether defendants committed crimes purpose intimidating victim basis race ethnicity moreover light concerns idiosyncratic hate crime statutes drawn carefully avoid punishing thought enhancement served appropriate balance concerns state compelling interest vindicating right free invidious discrimination dissent rejected conclusion believing instead case turned two critical characteristics defendant mental state committing subject offense necessarily involves finding integral charged offense must characterized element thereof significantly increased sentencing range triggered finding purpose intimidate means purpose must treated material element must found jury beyond reasonable doubt dissent view facts increasing sentences recidivism jones serious bodily injury quite distinct new jersey required finding purpose latter finding turns directly conduct defendant crime defines level culpability necessary form hate crime offense acknowledging analytical tensions jurisprudence dissenters concluded little doubt sentencing factor applied defendant purpose intimidate victim race must fairly regarded element crime requiring inclusion indictment proof beyond reasonable doubt granted certiorari reverse ii appropriate begin explaining certain aspects case relevant narrow issue must resolve first state argued even without trial judge finding racial bias judge imposed consecutive sentences counts produced term imprisonment apprendi received apprendi actual sentence thus within range authorized statute three offenses pleaded guilty brief respondent constitutional question however whether sentence imposed count permissible given maximum offense charged count finding legally significant increased indeed doubled maximum range within judge exercise discretion converting otherwise maximum sentence count minimum sentence sentences counts relevance disposition dismissal remaining counts second although constitutionality basing enhanced sentence racial bias argued new jersey courts issue raised substantive basis new jersey enhancement thus issue adequacy new jersey procedure strength state interests served hate crime legislation bearing procedural question strength interests served provisions criminal code third reject suggestion state rarely doubt concerning existence biased purpose support enhanced sentence case issue subject full evidentiary hearing described assume purpose offender even known identity victim sometimes hotly disputed outcome may well depend cases standard proof identity factfinder fourth ambiguity new jersey statutory scheme case raise question concerning state power manipulate prosecutor burden proof example relying presumption rather evidence establish element offense cf mullaney wilbur sandstrom montana placing affirmative defense label least elements traditional crimes patterson new york prosecutor invoke presumption buttress evidence racial bias claim apprendi burden disproving improper motive question whether apprendi constitutional right jury find bias basis proof beyond reasonable doubt starkly presented answer question foreshadowed opinion jones construing federal statute noted due process clause fifth amendment notice jury trial guarantees sixth amendment fact prior conviction increases maximum penalty crime must charged indictment submitted jury proven beyond reasonable doubt fourteenth amendment commands answer case involving state statute iii lecture criminal law oliver wendell holmes observed law threatens certain pains certain things intending thereby give new motive persist inflict pains order threats may continue believed new jersey threatened apprendi certain pains unlawfully possessed weapon additional pains selected victims purpose intimidate race matter simple justice seems obvious procedural safeguards designed protect apprendi unwarranted pains apply equally two acts new jersey singled punishment merely using label sentence enhancement describe latter surely provide principled basis treating differently stake case constitutional protections surpassing importance proscription deprivation liberty without due process law amdt guarantee criminal prosecutions accused shall enjoy right speedy public trial impartial jury amdt taken together rights indisputably entitle criminal defendant jury determination guilty every element crime charged beyond reasonable doubt gaudin see also sullivan louisiana winship due process clause protects accused conviction except upon proof beyond reasonable doubt every fact necessary constitute crime charged unanimously explained gaudin equally well founded companion right jury verdict based proof beyond reasonable doubt demand higher degree persuasion criminal cases recurrently expressed ancient times though crystallization formula beyond reasonable doubt seems occurred late accepted common law jurisdictions measure persuasion prosecution must convince trier essential elements guilt mccormick evidence pp see also wigmore evidence ed winship went explain reliance reasonable doubt standard among jurisdictions reflect profound judgment way law enforced justice administered quoting duncan possible distinction element felony offense sentencing factor unknown practice criminal indictment trial jury judgment existed years surrounding nation founding general rule criminal proceedings submitted jury initiated indictment containing facts circumstances constitute offence stated certainty precision defendant may enabled determine species offence constitute order may prepare defence accordingly may doubt judgment given defendant convicted archbold pleading evidence criminal cases ed emphasis added defendant ability predict certainty judgment face felony indictment flowed invariable linkage punishment crime see blackstone verdict barring defect indictment pardon benefit clergy must pronounce judgment law hath annexed crime emphasis added thus respect criminal law felonious conduct english trial judge later eighteenth century little explicit discretion sentencing substantive criminal law tended prescribed particular sentence offense judge meant simply impose sentence unless thought circumstances sentence inappropriate invoke pardon process commute langbein english criminal trial jury eve french revolution trial jury england france germany pp schioppa ed blackstone among many others made judgment though pronounced awarded judges determination sentence determination sentence law blackstone emphasis deleted practice common law held true indictments issued pursuant statute circumstances crime intent defendant time commission often essential elements alleged indictment circumstances mandating particular punishment statute annexes higher degree punishment felony committed particular circumstances indictment offence order bring defendant within higher degree punishment must expressly charge committed circumstances must state circumstances certainty precision hale pleas crown archbold pleading evidence criminal cases upon indictment statute prosecutor prove felony committed fail proving committed circumstances specified statute defendant shall convicted felony clear nothing history suggests impermissible judges exercise discretion taking consideration various factors relating offense offender imposing judgment within range prescribed statute often noted judges country long exercised discretion nature imposing sentence within statutory limits individual case see williams new york oth since american colonies became nation courts country england practiced policy sentencing judge exercise wide discretion sources types evidence used assist determining kind extent punishment imposed within limits fixed law emphasis added williams periodic recognition judges broad discretion sentencing since shift country statutes providing sentences providing judges discretion within permissible range note admissibility character evidence determining sentence chi rev regularly accompanied qualification discretion bound range sentencing options prescribed legislature see tucker agreeing government also solid ground asserting sentence imposed federal district judge within statutory limits generally subject review emphasis added williams explaining contrast guilt stage trial judge task sentencing determine within fixed statutory constitutional limits type extent punishment issue guilt resolved historic link verdict judgment consistent limitation judges discretion operate within limits legal penalties provided highlight novelty legislative scheme removes jury determination fact found exposes criminal defendant penalty exceeding maximum receive punished according facts reflected jury verdict suggest trial practices change course centuries still remain true principles emerged framers fears jury right lost gross denial erosion jones practice must least adhere basic principles undergirding requirements trying jury facts necessary constitute statutory offense proving facts beyond reasonable doubt made clear winship reasonable doubt requirement vital role criminal procedure cogent reasons prosecution subjects criminal defendant possibility may lose liberty upon conviction certainty stigmatized conviction ibid thus require among procedural protections order provid concrete substance presumption innocence reduce risk imposing deprivations erroneously ibid defendant faces punishment beyond provided statute offense committed certain circumstances others obvious loss liberty stigma attaching offense heightened necessarily follows defendant moment state put proof circumstances deprived protections point unquestionably attached since winship made clear beyond peradventure winship due process associated jury protections extend degree determinations go defendant guilt innocence simply length sentence invalidated maine statute presumed defendant acted intent kill possessed malice aforethought necessary constitute state murder offense therefore subject crime associated punishment life imprisonment statute placed burden defendant proving rebutting statutory presumption acted lesser degree culpability heat passion win reduction offense murder manslaughter thus reduction maximum punishment years state posited mullaney requiring defendant prove intent overcome presumption murderous intent implicate winship protections upon conviction either offense defendant lose liberty face societal stigma rejecting argument acknowledged criminal law concerned guilt innocence abstract also degree criminal culpability assessed consequences guilty verdict murder manslaughter differed substantially dismissed possibility state circumvent protections winship merely redefin ing elements constitute different crimes characterizing factors bear solely extent punishment iv mcmillan pennsylvania first time coined term sentencing factor refer fact found jury affect sentence imposed judge case involved challenge state mandatory minimum sentencing act cons stat according provisions anyone convicted certain felonies subject mandatory minimum penalty five years imprisonment judge found preponderance evidence person visibly possessed firearm course committing one specified felonies articulating first time applying multifactor set criteria determining whether winship protections applied bar system concluded pennsylvania statute run afoul previous admonitions relieving state burden proving guilt tailoring mere form criminal statute solely avoid winship strictures however budge position constitutional limits exist authority define away facts necessary constitute criminal offense state scheme keeps jury facts expos defendants greater additional punishment may raise serious constitutional concern explained section neither alters maximum penalty crime committed creates separate offense calling separate penalty operates solely limit sentencing discretion selecting penalty within range already available without special finding visible possession firearm statute gives impression tailored permit visible possession finding tail wags dog substantive offense petitioners claim visible possession pennsylvania statute really element offenses punished pennsylvania effect defined new set upgraded felonies least superficial appeal finding visible possession exposed greater additional punishment cf providing separate greater punishment bank robberies accomplished use dangerous weapon device finally made plain jones last term represents best exceptional departure historic practice described case considered federal grand jury indictment charged petitioner found deported violation offense carrying maximum sentence two years pleaded guilty indictment admitting plea hearing deported unlawfully reentered country earlier deportation taken place pursuant three earlier convictions aggravated felonies ibid government filed presentence report indicating offense fell within bounds specified provision original deportation subsequent aggravated felony conviction accordingly subject sentence years objected contending indictment mentioned earlier aggravated felony convictions sentenced two years prison ibid rejecting objection concluded sentencing term higher attached offense alleged indictment violate strictures winship case admitted three earlier convictions aggravated felonies entered pursuant proceedings substantial procedural safeguards question concerning right jury trial standard proof apply contested issue fact although conclusion case based part application criteria invoked mcmillan specific question decided concerned sufficiency indictment important jones made crystal clear conclusion turned heavily upon fact additional sentence defendant subject prior commission serious crime see also explaining recidivism traditional traditional basis sentencing increasing offender sentence emphasizing fact recidivism relate commission offense jones majority dissenters disagreed legitimacy decision restrict holding recidivism sides agreed done certainty procedural safeguards attached fact prior conviction reality challenge accuracy fact case mitigated due process sixth amendment concerns otherwise implicated allowing judge determine fact increasing punishment beyond maximum statutory even though arguable incorrectly logical application reasoning today apply recidivist issue contested apprendi contest decision validity need revisit purposes decision today treat case narrow exception general rule recalled outset given unique facts surely warrant rejection otherwise uniform course decision entire history jurisprudence sum reexamination cases area history upon rely confirms opinion expressed jones fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt exception endorse statement rule set forth concurring opinions case unconstitutional legislature remove jury assessment facts increase prescribed range penalties criminal defendant exposed equally clear facts must established proof beyond reasonable doubt opinion stevens see also opinion scalia new jersey statutory scheme apprendi asks us invalidate allows jury convict defendant offense based finding beyond reasonable doubt unlawfully possessed prohibited weapon subsequent separate proceeding allows judge impose punishment identical new jersey provides crimes first degree stat ann west based upon judge finding preponderance evidence defendant purpose unlawfully possessing weapon intimidate victim basis particular characteristic victim possessed light constitutional rule explained cases supporting practice stand new jersey defense hate crime enhancement statute three primary components required finding biased purpose element distinct hate crime offense rather traditional sentencing factor motive mcmillan holds legislature authorize judge find traditional sentencing factor basis preponderance evidence extended mcmillan holding encompass factors authorize judge impose sentence beyond maximum provided substantive statute defendant charged none persuades us constitutional rule emerges history case law incorporate exception new jersey statute new jersey first point nothing disagreement rule apply today beyond see argument succeed terms state high evinced substantial skepticism suggestion hate crime statute purpose intimidate simply inquiry motive share skepticism text statute requires factfinder determine whether defendant possessed time committed subject act purpose intimidate account inter alia race terms statute mandates examination defendant state mind concept known well criminal law defendant mens makes difference identifying nature finding apprendi also required order receive sentence weapons possession possessed weapon purpose use weapon unlawfully person property another second mens rea requirement hardly defeats reality enhancement statute imposes force intent requirement necessary imposition sentence contrary fact language structure purpose use criminal offense identical relevant respects language structure purpose intimidate provision demonstrates us precisely particular criminal mens rea hate crime enhancement statute seeks target defendant intent committing crime perhaps close one might hope come core criminal offense element foregoing notwithstanding however new jersey correctly recognized matter whether required finding characterized one intent motive abels afford acceptable answer point applies well constitutionally novel elusive distinction elements sentencing factors mcmillan noting sentencing factor visible possession firearm might well included element enumerated offenses despite appears us clear elemental nature factor relevant inquiry one form effect required finding expose defendant greater punishment authorized jury guilty verdict new jersey understood rejecting argument required motive finding simply traditional sentencing factor proof motive ordinarily increase penal consequences actor indeed effect new jersey sentencing enhancement unquestionably turn offense degree offense state criminal code law thus runs directly warning mullaney winship concerned much category substantive offense degree criminal culpability assessed concern flows historical pedigree jury burden rights also powerful interests rights serve degree criminal culpability legislature chooses associate particular factually distinct conduct significant implications defendant liberty heightened stigma associated fense legislature selected worthy greater punishment preceding discussion make clear state reliance mcmillan likewise misplaced differential sentence apprendi received without finding biased purpose receive true extreme difference small fine mandatory life imprisonment mullaney hardly said potential doubling one sentence years nominal effect terms absolute years behind bars severe stigma attached differential unquestionably constitutional significance judge finding based mere preponderance evidence authorizes increase maximum punishment appropriately characterized tail wags dog substantive offense mcmillan new jersey also point fact state placing required biased purpose finding sentencing enhancement provision create separate offense calling separate penalty ibid agree wholeheartedly new jersey merely state legislature placed hate crime sentence enhancer within sentencing provisions criminal code mean finding biased purpose intimidate essential element offense indeed fact new jersey along numerous also made precisely conduct subject independent substantive fense makes clear mere presence enhancement sentencing statute define new jersey reliance also unavailing reasons supporting exception general rule statute construed case apply new jersey statute whereas recidivism relate commission offense new jersey biased purpose inquiry goes precisely happened commission offense moreover vast difference accepting validity prior judgment conviction entered proceeding defendant right jury trial right require prosecutor prove guilt beyond reasonable doubt allowing judge find required fact lesser standard proof finally previously considered rejected argument principles guiding decision today render invalid state capital sentencing schemes requiring judges jury verdict holding defendant guilty capital crime find specific aggravating factors imposing sentence death walton arizona stevens dissenting reasons explained capital cases controlling neither cases cited case permits judge determine existence factor makes crime capital offense cited cases hold jury found defendant guilty elements offense carries maximum penalty sentence death may left judge decide whether maximum penalty rather lesser one imposed person charged actions expose death penalty absolute entitlement jury trial elements charge scalia dissenting emphasis deleted see also jones post thomas concurring new jersey procedure challenged case unacceptable departure jury tradition indispensable part criminal justice system accordingly judgment new jersey reversed case remanded proceedings inconsistent opinion ordered charles apprendi petitioner new jersey writ certiorari new jersey june justice scalia concurring feel need say words response justice breyer dissent sketches admirably fair efficient scheme criminal justice designed society prepared leave criminal justice state judges sometimes necessary remind part state increasingly bureaucratic part founders american republic prepared leave state guarantee one least controversial provisions bill rights never efficient always free fairness justice breyer believes modern times post jury provide think unfair tell prospective felon commits contemplated crime exposing jail sentence years upon conviction gets anything less may thank mercy tenderhearted judge may thank mercy tenderhearted parole commission let inordinately early mercy tenderhearted governor sentence commuted disparities course criminal never get punishment bargained crime guilt crime hence length sentence exposed determined beyond reasonable doubt unanimous vote fellow citizens justice breyer bureaucratic realm perfect equity contrast facts determine length sentence defendant exposed determined exist basis single employee state certainly arguable justice breyer argues sacrifice prior protections worth arguable one thinks better system must even likely system envisioned constitution guarantees trial jury ultimately demolishes case dissenters unable say right trial jury guarantee assert guarantee assumed guarantee throughout history right jury determine facts determine maximum sentence law allows provide coherent alternative justice breyer proceeds erroneous assumption constitution means think mean means says guarantee criminal prosecutions accused shall enjoy right trial impartial jury intelligible content unless means facts must exist order subject defendant legally prescribed punishment must found jury charles apprendi petitioner new jersey writ certiorari new jersey june justice thomas justice scalia joins parts ii concurring join opinion full write separately explain view constitution requires broader rule adopts case turns seemingly simple question constitutes crime federal constitution accused right informed nature cause accusation basis accused crime held answer capital otherwise infamous crime indictment presentment grand jury tried impartial jury state district wherein crime shall committed amdts see also art iii cl trial crimes shall jury exception grand jury clause see hurtado california held protections apply state prosecutions herring new york held due process requires jury find beyond reasonable doubt every fact necessary constitute crime winship constitutional protections turn determining facts constitute crime facts elements ingredients crime order accusation crime whether indictment form proper common law thus proper codification rights fifth sixth amendments must allege elements crime likewise order jury trial crime proper elements crime must proved jury winship proved beyond reasonable doubt see story commentaries constitution pp archbold pleading evidence criminal cases ed hereinafter archbold thus critical know facts elements question became complicated following decision mcmillan pennsylvania spawned special sort fact known sentencing enhancement see ante fact increases defendant punishment subject constitutional protections elements subject justice dissent agreement mcmillan takes view legislature free within unspecified outer limits decree facts elements sentencing enhancements post sentencing enhancements may new creatures question create courts courts long consider facts elements order determine sufficiency accusation usually indictment answer courts provided regarding accusation tells us element simple matter apply answer whatever constitutional right may issue case winship right trial jury long line essentially uniform authority addressing accusations stretching earliest reported cases founding well century establishes original understanding facts elements even broader rule adopts today authority establishes crime includes every fact law basis imposing increasing punishment contrast fact mitigates punishment thus legislature defines core crime provides increasing punishment crime upon finding aggravating fact whatever sort including fact prior conviction core crime aggravating fact together constitute aggravated crime much grand larceny aggravated form petit larceny aggravating fact element aggravated crime similarly legislature rather creating grades crimes provided setting punishment crime based fact fine proportional value stolen goods fact also element parsing statutes sort attempted since mcmillan necessary one need look kind degree range punishment prosecution law entitled given set facts fact necessary entitlement element ii cases founding roughly end civil war establish rule described applying sorts facts including recidivism legislatures varied crimes created new crimes american courts particularly readily applied new laws understanding fact law basis imposing increasing punishment massachusetts produced leading cases antebellum years applied rule early commonwealth smith mass foreshadowed fuller discussion come smith indicted found guilty larceny indictment failed allege value stolen goods massachusetts abolished distinction grand simple larceny replacing single offense larceny whose punishment triple damages based value stolen goods prosecutor relied abolition traditional distinction justify indictment omissions however held sentence defendant stolen goods whose value set indictment understanding implicit smith explained hope commonwealth mass hope indicted convicted larceny larceny statute issue retained structure statute addressed smith established two levels sentencing based whether value stolen property exceeded statute structured similarly statutes addressed jones even castillo ante slip first set core crime subsequent clauses set ranges statute opened referring simply offence larceny suggesting least perspective cases larceny crime whereas value stolen property merely fact sentencing matter quite simple massachusetts high value element punishment varied value statutes remembered prescribe punishment larceny reference value property stolen reason well conformity long established practice opinion value property alleged stolen must set forth indictment two years hope elaborated rule case involving burglary stating certain acts force statutes made punishable greater severity accompanied aggravating circumstances statute creat ed two grades crime larned commonwealth mass see also gradation offences species statute sets various degrees punishment conversely fact basis punishment fact reason element thus commonwealth mcdonald mass involved indictment attempted larceny person saw error failure indictment allege value goods defendant attempted steal defendant challenging indictment apparently relied smith hope rejected challenge explaining punishment depend amount stolen occasion allegation value indictment see commonwealth burke mass applying reasoning completed larceny person finding trial error value proved jury similar reasoning employed wisconsin lacy state interpreting statute also similar statutes issue jones castillo statute single paragraph outlawed arson dwelling house night arson killed someone punishable life prison arson kill anyone punishable years prison arson house person lawfully dwelling punishable trouble concluding statute creates three distinct statutory offenses lawful presence person dwelling element middle offense reasoned gradations punishment legislature considered circumstance person lawfully dwelling house fire set material important greatly aggravating crime clear severity punishment imposed aggravating circumstances created higher statutory offense indictment allege anyone present dwelling reversed defendant sentence relying larned supra remanded permit sentencing lowest grade crime properly alleged indictment numerous state federal courts period took approach determining facts elements crime see ritchey state blackf ind citing commonwealth smith mass holding indictment arson must allege value property destroyed statute set punishment based value spencer state ohio holding value goods intended stolen ingredient crime burglary intent steal punishment statute depend value contrasting larceny alue must laid value proved jury may find means know whether grand petit apply grade punishment statute awards fisher cas cc ohio mclean carrier mail subject higher penalty steals letter mail contains article value offense committed indictment must allege letter contained article value aggravates offense incurs higher penalty brightwell state law prescribes different punishment different phases crime good reason requiring indictment specify phases prisoner charged record show defendant convicted offense sentenced cf state farr rich app two statutes barred purchasing corn slave one referred purchasing slave lacked permit absence permit element statutes punishment also demonstrating approach determining elements rule statute increased punishment crime whether felony misdemeanor based fact fact must charged indictment order impose increased punishment archbold see ante question treating statutory aggravating fact merely sentencing enhancement nonelement enhancing sentence crime aggravating fact element new aggravated grade crime simply increased punishment crime crime relation statutory one essentially like lesser included offense see archbold evidence rule crime includes every fact law basis imposing increasing punishment comes early cases addressing recidivism statutes justice scalia explained tradition treating recidivism element see dissenting opinion tradition stretches back earliest years republic see commonwealth welsh smith commonwealth serg rawle see also archbold purposes however noteworthy much fact tradition reason courts treated fact prior conviction fact increased punishment law reasoning courts employed hope lacy cases discussed fact prior conviction element together facts constituting core crime defendant charged new aggravated crime two leading antebellum cases whether recidivism element plumbly commonwealth mass tuttle commonwealth mass latter explained reason treating element fact prior conviction statute imposes higher penalty upon second third conviction respectively makes prior conviction similar offence part description character offence intended punished therefore fact prior conviction must charged well proved essential indictment facts constituting offence intended punished averred rested rule common law massachusetts equivalent sixth amendment notice clause ibid see also commonwealth haynes mass reversing sentence upon confession error attorney general case similar tuttle numerous cases treating fact prior conviction element crime take view make clear holdings language statute increases punishment core crime based fact prior conviction core crime fact prior crime together create new aggravated crime kilbourn state person subjected cumulative penalty without charged cumulative offence plumbly supra conviction recidivism statute one conviction upon one aggregate offence hines state reversing enhanced sentence imposed trial judge explaining question whether offence second one question jury allegation prior offence certainly one first importance accused true becomes subject greatly increased punishment see also commonwealth phillips mass pon third conviction may sentence convict hard labor life punishment awarded upon conviction offence convicted even exception practice including fact prior conviction indictment trying jury helps prove rule fact element increases punishment law state freeman vermont upheld statute providing indictment complaint violation liquor law necessary allege prior conviction law order secure increased sentence hold prior conviction element instead held liquor law created minor offenses qualify crimes thus state constitutional protections attach crime issue apply see goeller state md discussing freeman time freely acknowledged doubt general rule particularly articulated massachusetts necessary allege former conviction indictment higher sentence claimed account freeman supra unsurprisingly leading treatise explained freeman apparently contrary general rule involving special statute wharton criminal law rev ed hereinafter wharton addition less decade freeman vermont held defendant charged successive violation liquor laws contested identity whether person record prior conviction defendant permitted jury resolve question state haynes freeman anticipated holding suggesting use jury resolve disputes identity see holding haynes applied general rule since determination identity usually chief factual issue whenever recidivism charged see archbold see also graham west virginia defendant convicted three different names treatise one leading authorities era criminal law procedure confirms understanding cases demonstrate treatise condensed traditional understanding regarding indictment thus regarding elements crime following indictment must allege whatever law essential punishment sought inflicted bishop law criminal procedure ed hereinafter bishop criminal procedure see indictment must contain allegation every fact legally essential punishment inflicted indictment must contain averment every particular thing enters punishment crimes explained consist acts law affixes punishment stated differently crime consists whole wrong upon punishment based later edition bishop similarly defined elements crime wrongful aggregation punishment proceeds bishop new criminal procedure ed bishop grounded definition generalization practice bishop criminal procedure provisions federal state constitutions guaranteeing notice accusation criminal cases indictment grand jury serious crimes trial jury regard common law explained rule made apparent understandings single case cases followed cases without one exception illustrate observed various statutes whereby assault committed particular intent particular weapon like subjected particular corresponding punishment heavier common assault differing pointed statute reader notice cases peculiar aggravated punishment inflicted peculiar aggravating matter required set indictment also found burglary statutes illustrative way bishop made exception fact prior conviction simply treated aggravating fact sought make sentence heavier reason second third offence fact thus relied must averred indictment rules criminal procedure require indictment cases contain averment every fact essential punishment sought inflicted bishop commentaries criminal law pp ed constitutional provisions provided support view requirements proper accusation common law understanding proper jury trial required proper accusation idea jury trial always known common law prevails includes allegation part machinery trial accusation lacks particular fact law makes essential punishment accusation within requirements common law accusation reason bishop criminal procedure see notice indictment requirements ensure persons held crimes shall convicted shall allegation made every element crime law makes essential punishment inflicted numerous high courts contemporaneously explicitly agreed bishop accurately captured understanding facts elements crime see hobbs state tex favorably quoting bishop criminal procedure maguire state md approvingly citing different bishop treatise rule larney cleveland ohio rule reason rule well stated bishop state hayward mo extensively quoting bishop admirable treatise riggs state ind agree bishop nature cause accusation stated mention full act series acts punishment inflicted internal quotation marks omitted state perley doctrine says bishop identical reason viz indictment must contain allegation every fact legally essential punishment inflicted internal quotation marks omitted see also reese clifford concurring judgment citing paraphrasing bishop criminal procedure half century following publication bishop treatise numerous courts applied statement understanding explicitly relied treatise earlier period every fact law basis imposing increasing punishment including fact prior conviction element fact included accusation crime proved jury courts confronted statutes quite similar ones struggled since mcmillan applying traditional rule found difficult determine whether fact element hobbs supra defendant indicted form burglary punishable years prison separate statutory section provided increased sentence double punishment defendant otherwise subject entry house effected force exceeding incidental burglary trial instructed jury sentence defendant years found requisite level force jury sentenced texas relying bishop reversed indictment alleged force even though jury sentenced hobbs within range years permissible lesser crime indictment charged thought impossible say erroneous charge may weight leading jury impose sentence see also searcy state tex app similar garcia state tex app citing hobbs relying bishop reverse sentence assault dagger statute doubled range assault years assault committed either weapon indictment alleged earlier cases mcdonald discussed supra courts also used converse bishop rule explain fact element crime perley supra defendant indicted convicted robbery punishable imprisonment life term years relying bishop hope mcdonald authority rejected argument maine notice clause course required elements alleged required indictment allege value goods stolen punishment turn value provision statute makes amount property taken essential element offense statute state creates degrees robbery way makes punishment offense dependent upon value property taken explained value essential punishment need distinctly alleged proved reasoning similar perley texas cases evident cases well see jones state punishment burglary day years prison burglary night time burglary constituent offense indictment charge requisite render plain certain every constituent offense woodruff embezzlement statute contemplates ascertainment exact sum fine may imposed jury determine amount judge lacked authority impose fine issue defendant entitled constitutional right trial jury courts also period applied reasoning fact prior conviction fact aggravated punishment law many though far courts relied bishop maryland high maguire state md stated rule reason language indistinguishable tuttle quarter century law seem well settled party proceeded second third offence statute sentence prescribed different first severer reason second third offence fact thus relied must averred indictment settled rule indictment must contain averment every fact essential justify punishment inflicted maguire supra citing english cases plumbly commonwealth mass wharton bishop goeller state md reaffirmed maguire voided contrary maryland notice clause statute permitted trial judge determine fact prior conviction extensively quoted bishop view treated subject fully perhaps legal writer cited among authorities line massachusetts decisions riggs quoted supra larney ohio ohio opinion citing bishop reversed conviction recidivism statute indictment alleged prior conviction defendant also relied plumbly supra kilbourn state ohio state adams relying bishop explained former conviction part description character offense intended punished higher penalty imposed must alleged defendant charged offense aggravated repetitious character ibid see also evans state ind similar shiflett commonwealth similar even without reliance bishop courts addressing recidivism statutes employed reasoning cases crime includes fact punishment attaches one leading cases wood people statute wood provided increased punishment defendant previously convicted felony discharged conviction repeatedly referring aggravated offence held facts prior conviction discharge must proved jury oth enter make part offence subjecting prisoner increased punishment see ibid fact prior conviction essential ingredient offense see also johnson people severe penalty denounced statute second offence facts bring case within statute must alleged indictment established trial people sickles reaffirming wood johnson explaining charge merely prisoner committed offense specifically described former convict second offense subjected enhanced penalty contemporaneously new york appeals wood johnson state high courts california pennsylvania offered similar explanations fact prior conviction element people delany cal involved statute making petit larceny normally misdemeanor felony committed following prior conviction petit larceny left doubt fact prior conviction element aggravated crime consisting petit larceny committed following prior conviction petit larceny particular circumstances offense stated indictment consist prior convictions facts constituting last larceny former convictions made adhere constitute portion aggravated offense felony consists former convictions particular larceny former convictions separate fact taken connection facts constituting last offense make distinct greater offense charged exclusive prior convictions see also people coleman cal similarly rauch commonwealth applied decision smith commonwealth serg rawle reversed trial imposition enhanced sentence upon knowledge records explained imprisonment jail lawful consequence mere conviction unlawful sale liquors lawful consequence second sale former conviction every principle personal security due administration justice fact gives rightfulness greater punishment appear record ibid see also clearly substantive offence draws greater punishment unlawful sale former conviction therefore offence called upon defend meanwhile massachusetts reaffirmed earlier decisions striking commonwealth harrington mass liquor law provided small fine first second conviction provided larger fine imprisonment year third conviction specifically provided prior conviction need alleged complaint found law plainly inconsistent tuttle state notice clause explaining offence punishable higher penalty fully substantially described defendant complaint fails set forth former convictions essential features without belaboring point simply note traditional understanding crime includes every fact law basis imposing increasing punishment continued well century least middle century see knoll singer searching tail dog finding elements crimes wake mcmillan pennsylvania seattle rev surveying century decisions federal courts prior mcmillan see also people ratner cal app supp fact fair say mcmillan began revolution law regarding definition crime today decision far sharp break past marks nothing return status quo ante status quo reflected original meaning fifth sixth amendments iii consequence discussion decisions mcmillan plain enough points merit special mention first irrelevant question facts elements legislatures allowed sentencing judges discretion determining punishment often within extremely broad ranges see ante post dissenting bishop immediately setting traditional rule elements explained reader distinguish foregoing doctrine doctrine within limits discretion punishment law may allowed judge pronounces sentence may suffer discretion influenced matter shown aggravation mitigation covered allegations indictment aggravating circumstances spoken swell penalty law provided acts charged prisoner interposed merely check judicial discretion exercise permitted mercy finding mitigating circumstances entirely different thing punishing one alleged bishop criminal procedure see also bishop new commentaries criminal law pp ed similar words establishing punishment available law setting specific punishment within bounds law prescribed two different cf blackstone commentaries law england noting judges broad discretion setting amount fine length imprisonment misdemeanors praising determinate punishment discretion regulated law perley favorably discussing bishop rule elements without mentioning aside quotation statute statement facts defendant conviction robbery exposed imprisonment life term years thus one thing consider constitution requires prosecution order entitle particular kind degree range punishment accused see woodruff quite another consider constitutional constraints apply either imposition punishment within limits entitlement legislature ability set broad ranges punishment answering former constitutional question need address latter second related one chief errors error succumbed attempt discern whether particular fact traditionally typically basis sentencing increase offender sentence see reasons given clear approach defines away real issue matters way fact enters sentence fact law basis imposing increasing punishment establishing increasing prosecution entitlement element put point differently aware historical basis treating nonelement fact law sets increases punishment one considers question perspective evident fact prior conviction element recidivism statute indeed cases addressing statutes provide best discussions constitutes element crime one reason frequently offered treating recidivism differently reason relied supra concern prejudicing jury informing prior conviction concern earlier courts well aware make traditional understanding element less applicable fact prior conviction see maguire sickles third think clear rule cover mcmillan situation mandatory minimum sentence case visible possession firearm commission certain crimes doubt defendant scheme find sentenced term sentenced absent mandatory minimum range underlying crime years mandatory minimum years sentenced course similar scenario possible increased maximum equally true expected punishment increased result narrowed range prosecution empowered invoking mandatory minimum require judge impose higher punishment might wish mandatory minimum entitl es government woodruff otherwise entitled years rather risk sentence thus fact triggering mandatory minimum part punishment sought inflicted bishop criminal procedure undoubtedly enters punishment aggravate ac law affixes punishment hobbs searcy see supra likely change range available judge affects choice sentence finally numerous cases lacy garcia jones see supra aggravating fact raised whole range top bottom courts holding fact element bother distinction changes maximum minimum mattered simply overall increase punishment provided law several cases smith woodruff see supra concept maximums minimums applicability yet rule elements applied see also harrington discussed supra finally need case address implications rule stated decision walton arizona see ante walton approve scheme judge rather jury determines aggravating fact makes convict eligible death penalty thus eligible greater punishment sense fact element scheme exists unique context area capital punishment unlike area imposed special constraints legislature ability determine facts shall lead punishment restricted legislature ability define crimes recent jurisprudence neither arizona jurisdiction provide previously freely person shall death eligible automatically upon conviction certain crimes interposed barrier jury finding capital crime ability impose capital punishment whether distinction capital crimes others distinction sufficient put former outside rule stated question another foregoing reasons well given opinion agree new jersey procedure issue unconstitutional charles apprendi petitioner new jersey writ certiorari new jersey june justice chief justice justice kennedy justice breyer join dissenting last term jones found prior cases suggested following principle nder due process clause fifth amendment notice jury trial guarantees sixth amendment fact prior conviction increases maximum penalty crime must charged indictment submitted jury proven beyond reasonable doubt time justice kennedy rightly criticized failure explain origins contours consequences purported constitutional principle inconsistency principle prior cases serious doubt holding cast sentencing systems employed federal government alike dissenting opinion today surely remembered watershed change constitutional law imposes constitutional rule principle first identified jones long recognized every fact bears defendant punishment need charged indictment submitted jury proved government beyond reasonable doubt rather held legislature definition elements offense usually dispositive mcmillan pennsylvania see also patterson new york although recognized obviously constitutional limits beyond may go regard certain limited circumstances winship requirement applies facts formally identified elements offense charged mcmillan supra proceeded caution deciding certain fact must treated offense element despite legislature choice characterize therefore declined establish rule making judgments instead approached case individually sifting considerations relevant determining whether legislature acted properly within broad power define crimes punishments instead sought evade constitutional requirements associated characterization fact offense element see monge california mcmillan supra one bold stroke today casts aside traditional cautious approach instead embraces universal seemingly rule limiting power congress state legislatures define criminal offenses sentences follow convictions thereunder fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt ante opinion marshals virtually authority support extraordinary rule indeed remarkable identify single instance years since ratification bill rights applied constitutional requirement rule announces today according constitutional rule emerges history case law ante none history contained opinion requires rule ultimately adopts history cited divided two categories first evidence judges common law virtually discretion sentencing ante second statements criminal procedure treatise government must charge indictment prove trial elements statutory offense defendant sentenced punishment attached statutory offense ante relevance first category evidence easily dismissed indeed even claim historical evidence nondiscretionary sentencing common law supports increase maximum penalty rule rather almost quickly recites historical practice rejects relevance constitutional question presented due conflicting american practice judges exercising sentencing discretion decisions recognizing legitimacy american practice see ante citing williams new york even claim history point bear instant case one wonders historical practice judges pronouncing judgments cases private parties relevant question criminal punishment presented see ante quoting blackstone commentaries laws england pertains remed ies prescribed law redress injuries apparently historical practice places much reliance consists two quotations taken criminal procedure treatise see ante quoting archbold pleading evidence criminal cases ed closer examination two statements reveals neither supports increase maximum penalty rule excerpts pertain circumstances felony also made separate statutory offense carrying greater penalty taken together statements archbold treatise demonstrate nothing unremarkable proposition defendant receive greater statutory punishment indictment expressly charged prosecutor proved facts made statutory offense opposed simply facts made offense see indictment proof words defendant receive statutory punishment prosecutor charge indictment prove trial elements statutory offense extent doubt precise meaning treatise excerpts doubt dispelled looking treatise sections excerpts drawn broader principle section meant illustrate see every offence consists certain acts done omitted certain circumstances indictment offence sufficient charge defendant generally committed facts circumstances constituting offence must specially set forth every offence consists certain acts done omitted certain circumstances must stated indictment proved laid extent clarification needed authority cited archbold treatise support stated proposition respect requirements indictment demonstrates treatise excerpts mean prosecutor must charge prove trial elements statutory offense see hale pleas crown hereinafter hale indictment grounded upon offense made act parliament must express words bring offense within substantial description made act parliament member questions proposition state must charge indictment prove trial beyond reasonable doubt actual elements offense case however concerns distinct question fact bears defendant punishment legislature classified element charged offense must nevertheless treated offense element excerpts drawn archbold treatise speak question history opinion relies provides support increase maximum penalty rule concurring opinion justice thomas cites additional historical evidence view dictates even broader rule set forth opinion history cited justice thomas require matter federal constitutional law application rule advocates understand important focus basis justice thomas argument first claims fifth sixth amendments codified common law second contends relevant common law treated fact served increase defendant punishment element offense see ante even justice thomas first assertion correct proposition embraced fails gather evidence necessary support second assertion indeed opinion purports founded upon original understanding fifth sixth amendments justice thomas concurrence notable failure discuss historical practice cite decisions predating contemporary ratification bill rights rather justice thomas divines understanding fifth sixth amendment rights consulting decisions rendered american courts well ratification bill rights ranging primarily whatever decisions might reveal way american state courts resolved questions regarding distinction crime punishment general rules criminal pleading state constitutions decisions fail demonstrate settled understanding respect definition crime relevant preexisting common law thus crucial disconnect historical evidence justice thomas cites proposition seeks establish evidence examination decisions cited justice thomas makes clear involve simple application rule fact increases punishment must constitute offense element unlikely appear rule relevant principles area indictment must charge elements relevant offense must certainty see hale touching thing wherein offense committed required certainty indictment fact must certainly set indictment offense must alledged manner principles course say little specific fact constitutes element offense justice thomas correct note american courts century came confront question cases often treated facts served increase punishment elements relevant statutory offenses extent justice thomas broader rule drawn decisions rule one courts invention previously existing rule codified ratification fifth sixth amendments decisions cited justice thomas indicate reliance principles fact converse rule identifies american cases fact make difference punishment need charged indictment see larned commonwealth mass assuredly created american courts given english courts roughly period followed contrary rule see rex marshall moody eng justice thomas collection opinions therefore marginal assistance determining original understanding fifth sixth amendments decisions justice thomas cites provide authority rule advocates certainly control resolution federal constitutional question presented instant case standing alone justify overruling three decades worth decisions contrast justice thomas asserts rule supported cases area ante begins review precedent quotation dissenting opinion speaks volumes support actually drawn cases increase maximum penalty rule announced today see ante quoting demonstrate lesson due process jury protections extend beyond factual determinations affect defendant guilt innocence ante explains mullaney held due process requirement applies factual determinations state criminal law make difference degree punishment defendant receives ante chooses ignore however decision issued two years later patterson new york clearly rejected broad reading mullaney patterson jury found defendant guilty murder new york law fact person intentionally killed another influence extreme emotional disturbance distinguished reduced offense manslaughter serious offense murder thus presence absence one fact defining factor separating greater lesser punishment new york law however state need prove absence extreme emotional disturbance beyond reasonable doubt rather state law imposed burden proving presence extreme emotional disturbance defendant required fact proved preponderance evidence rejected patterson due process challenge conviction thus decline adopt constitutional imperative operative countrywide state must disprove beyond reasonable doubt every fact constituting affirmative defenses related culpability accused traditionally due process required basic procedural safeguards observed subtle balancing society interests accused left legislative branch although characterized factual determination new york law one going mitigation culpability opposed aggravation punishment difficult understand rule adopted today case broader rule advocated justice thomas require overruling patterson unless willing defer legislature formal definition elements offense clear fact patterson act influence extreme emotional disturbance substance increase penalty crime beyond prescribed statutory maximum manslaughter ante nonetheless held new york requirement defendant rather state bear burden proof factual determination comported fourteenth amendment due process clause patterson upheld due process challenge oregon requirement defendant rather state bear burden factual determination defendant insanity patterson important plainly refutes expansive reading mullaney indeed defendant patterson characterized mullaney exactly today rejected interpretation mullaney holding argued state may permit blameworthiness act severity punishment authorized commission depend presence absence identified fact without assuming burden proving presence absence fact case may beyond reasonable doubt view mullaney holding broadly read patterson supra emphasis added omitted explained mullaney instead holding state must prove every ingredient offense beyond reasonable doubt may shift burden proof defendant presuming ingredient upon proof elements offense nothing presumed patterson new york law found due process violation ever since decision patterson consistently explained holding mullaney limited terms rejected broad interpretation gives mullaney today see jones identified use presumption establish essential ingredient offense curse maine law mullaney mullaney suggests congress permit judges increase sentence light recidivism factor set forth indictment proved jury beyond reasonable doubt later case patterson new york however makes absolutely clear reading mullaney wrong mcmillan case law claims rule emerges consists one decision mcmillan pennsylvania reliance mcmillan also puzzling given holding case points rejection rule considered pennsylvania statute subjected defendant mandatory minimum sentence five years imprisonment judge found preponderance evidence defendant visibly possessed firearm commission offense convicted petitioners claimed fourteenth amendment due process clause sixth amendment jury trial guarantee incorporated fourteenth amendment required state prove jury beyond reasonable doubt visibly possessed firearms rejected constitutional claims essential holding mcmillan conflicts least two several formulations gives rule announces today first endorses following principle unconstitutional legislature remove jury assessment facts increase prescribed range penalties criminal defendant exposed equally clear facts must established proof beyond reasonable doubt ante emphasis added quoting jones stevens concurring second endorses rule restated justice scalia concurring opinion jones see ante justice scalia wrote unconstitutional remove jury assessment facts alter congressionally prescribed range penalties criminal defendant exposed jones emphasis added thus appears hold fact increases alters range penalties defendant exposed definition must include increases alterations either minimum maximum penalties must proved jury beyond reasonable doubt mcmillan however rejected rule extent concerned facts increase alter minimum penalty defendant exposed accordingly incumbent admit overruling mcmillan also explain course action appropriate normal principles stare decisis opinion neither instead attempts lay claim mcmillan support increase maximum penalty rule according mcmillan acknowledged permitting judge make findings expose defendant greater additional punishment may raise serious constitutional concern ante said nothing sort mcmillan contrary began discussion petitioners constitutional claims emphasizing already rejected claim whenever state links severity punishment presence absence identified fact state must prove fact beyond reasonable doubt quoting patterson reaffirmed rule set forth patterson determining facts must proved beyond reasonable doubt state legislature definition elements offense usually dispositive mcmillan although acknowledged constitutional limits state power define crimes prescribe penalties found need establish outer boundaries mcmillan several factors persuaded us pennsylvania statute exceed limits however limits might defined assertion mcmillan supports application rule area therefore unfounded nevertheless claims find support rule discussion one factor mcmillan namely statement petitioners claim least superficial appeal firearm possession finding exposed greater additional punishment say claim may superficial appeal course far cry saying claim upheld moreover made statement context examining one several factors combination ultimately gave doubt pennsylvania statute fell permissible side constitutional line confidence conclusion belies argument ruling different pennsylvania statute instead increased maximum penalty petitioners exposed short clear articulate rule must prove jury beyond reasonable doubt fact exposes defendant greater punishment rule substantial tension earlier acknowledgment patterson rejected rule see recognition state legislature definition elements normally dispositive see single rule derived mcmillan increase maximum penalty principle rather following state takes fact always considered sentencing courts bear punishment dictates precise weight give fact setting defendant sentence relevant fact need proved jury beyond reasonable doubt element offense see apart mullaney mcmillan claim find support rule decision thus error says rule emerges case law nevertheless even one willing assume mullaney mcmillan lend support position feeble foundation shattered several precedents directly addressing issue one decisions addresses length squarely rejected increase maximum penalty rule petitioner also argues essence simply adopt rule significant increase statutory maximum sentence trigger constitutional elements requirement explained believe constitution interpreted mcmillan earlier cases impose requirement whether directly refuted increase maximum penalty rule extensively debated jones debate need repeated see kennedy dissenting continue agree justice kennedy constituted clear repudiation rule adopts today see jones supra dissenting opinion understanding bolstered monge california decision relegated today monge reasoning essential holding reiterated rejected absolute rule enhancement constitutes element offense time increases maximum sentence defendant exposed citing least monge demonstrates exceptional departure historic practice ante decisions refute increase maximum penalty rule perhaps none important walton arizona jury found walton petitioner guilty murder arizona law trial conducts separate sentencing hearing determine whether defendant convicted murder receive death penalty life imprisonment see citing rev stat ann sentencing hearing judge rather jury must determine existence nonexistence statutory aggravating mitigating factors see walton quoting arizona statute directs judge impose sentence death finds one aggravating circumstances enumerated statute mitigating circumstances sufficiently substantial call leniency quoting thus arizona law defendant convicted murder sentenced death judge finds existence statutory aggravating factor walton challenged arizona capital sentencing scheme arguing constitution requires jury judge make factual determination existence nonexistence statutory aggravating factors rejected contention argument constitution requires jury impose sentence death make findings prerequisite imposition sentence soundly rejected prior decisions quoting clemons mississippi relying part decisions rejecting challenges florida capital sentencing scheme also provided sentencing trial judge added sixth amendment require specific findings authorizing imposition sentence death made jury walton supra quoting hildwin florida per curiam cite decision require increase maximum penalty rule walton plainly rejects arizona law fact statutory aggravating circumstance exists defendant case increases maximum penalty murder death ante quoting jones supra judge find existence statutory aggravating circumstance maximum punishment authorized jury guilty verdict life imprisonment thus using terminology employs describe constitutional fault new jersey sentencing scheme presented arizona law judge finding statutory aggravating circumstance exists exposes criminal defendant penalty exceeding maximum receive punished according facts reflected jury verdict alone ante emphasis original even justice thomas whose vote necessary opinion today agrees point see ante state remove jury factual determination makes difference life death walton holds inconceivable state respect factual determination results increase maximum sentence defendant exposed distinction walton offered today baffling say least key distinction claim arizona jury makes findings necessary expose defendant death sentence see ante quoting scalia dissenting explained claim demonstrably untrue defendant convicted murder arizona receive death sentence unless judge makes factual determination statutory aggravating factor exists without critical finding maximum sentence defendant exposed life imprisonment death penalty indeed time walton decided author opinion today understood well issue stake see walton stevens dissenting nder arizona law construed arizona highest murder punishable death sentence least one statutory aggravating circumstance proved event extent holding walton perfectly obvious face decision upheld arizona scheme specifically ground constitution require jury make factual findings serve prerequisite imposition death sentence quoting clemons supra specific findings authorizing imposition sentence death walton supra quoting hildwin supra intend overrule walton one hard pressed tell opinion issues today distinction walton offered justice thomas equally difficult comprehend according justice thomas constitution requires state legislatures narrow sentencing discretion context facts expose convicted defendant capital sentence may different facts expose defendant severe sentence see ante justice thomas gives specific reason excepting capital defendants constitutional protections extend defendants generally none readily apparent justice thomas means say eighth amendment restriction state legislature ability define capital crimes compensated permitting leeway fifth sixth amendments proving aggravating fact necessary capital sentence reasoning without precedent constitutional jurisprudence sum statement increase maximum penalty rule emerges history case law cites simply incorrect make claim finds necessary rely irrelevant historical evidence ignore controlling precedent patterson offer unprincipled inexplicable distinctions decision previous cases addressing subject capital sentencing context walton failed offer ful justification deviating years cases suggesting holding application increase maximum penalty rule required constitution ii rule unsupported history case law cites reason enough reject substantial departure settled jurisprudence significantly also fails explain adequately due process clauses fifth fourteenth amendments jury trial guarantee sixth amendment require application rule upon closer examination possible increase maximum penalty rule rests meaningless formalism accords best marginal protection constitutional rights seeks effectuate discussion either constitutional necessity likely effect rule must begin course understanding exactly rule case jones however discussion complicated failure clarify contours constitutional principle underlying decision see jones kennedy dissenting fact appear several plausible interpretations constitutional principle decision rests example one reading appears hold constitution requires fact submitted jury proved beyond reasonable doubt fact formal matter extends range punishment beyond prescribed statutory maximum see ante state however remove jury subject standard proof beyond reasonable doubt assessment facts define narrower ranges punishment within overall statutory range defendant may sentenced see ante thus apparently new jersey cure sentencing scheme achieve virtually results drafting weapons possession statute following manner first new jersey prescribe weapons possession statute range years imprisonment one commits criminal offense second new jersey provide defendants convicted statute found judge preponderance evidence acted purpose intimidate individual basis race may receive sentence greater years imprisonment proffered distinction walton arizona suggests means announce rule limited effect claims arizona capital sentencing scheme consistent constitutional principle underlying today decision arizona murder statute authorizes life imprisonment death penalty see rev stat ann nce jury found defendant guilty elements offense carries maximum penalty sentence death may left judge decide whether maximum penalty rather lesser one imposed ante emphasis original quoting scalia dissenting course explained arizona sentencing judge impose maximum penalty death judge first makes statutorily required finding least one aggravating factor exists defendant case thus arizona murder statute authorizes maximum penalty death formal sense real terms however arizona sentencing scheme removes jury assessment fact determines whether defendant receive maximum punishment difference arizona scheme new jersey scheme consider apart magnitude punishment stake new jersey prescribed maximum penalty statute defines crime punished difficult understand explain constitution require state legislature follow meaningless formalistic difference drafting criminal statutes another reading decision may mean constitution requires fact submitted jury proved beyond reasonable doubt formal matter increases range punishment beyond legally imposed absent fact see ante state however remove jury subject standard proof beyond reasonable doubt assessment facts formal matter decrease range punishment legally imposed absent fact thus consistent decision patterson new jersey cure sentencing scheme achieve virtually results drafting weapons possession statute following manner first new jersey prescribe weapons possession statute range years imprisonment one commits criminal offense second new jersey provide defendant convicted statute judge finds preponderance evidence acted purpose intimidate individual basis race may receive sentence greater years imprisonment rule justice thomas advocates concurring opinion embraces precise distinction fact increases punishment fact decreases punishment see ante crime includes every fact law basis imposing increasing punishment contrast fact mitigates punishment historical evidence justice thomas relies however demonstrates difficulty pure formalism making constitutional elements rule turn difference example wisconsin statute considered lacy state plausibly qualify either increasing mitigating punishment basis specified fact wisconsin provided willful malicious burning dwelling house life person shall destroyed punishable years prison burning time person lawfully dwelling house punishable years prison rev ch although statute appeared make absence persons affected dwelling house fact mitigated punishment wisconsin found presence person affected house constituted aggravating circumstance lacy supra example hypothetical redrafted new jersey statute demonstrate see supra whether fact responsible increase decrease punishment rests eye beholder difficult understand neither justice thomas explains constitution require state legislature follow meaningless formalistic difference drafting criminal statutes either readings decision means principle amounts nothing chastising new jersey legislature failing use approved phrasing expressing intent unlawful weapons possession punished jones kennedy dissenting new jersey consistent constitution make precisely differences punishment turn precisely facts remove assessment facts jury subject standard proof beyond reasonable doubt impossible say fifth sixth fourteenth amendments require rule reason structural democratic constraints might discourage legislature enacting either hypothetical statutes significant discourage enactment new jersey present statute see ante majority opinion three cases legislature able calibrate punishment perfectly subject maximum penalty defendants whose cases satisfy criterion justice kennedy explained jones constitutional values served formalistic approach constitutional costs statutes struck real given pure formalism readings opinion one suspects constitutional principle underlying decision far reaching actual principle underlying decision may fact prior conviction effect real terms increasing maximum punishment beyond otherwise applicable range must submitted jury proved beyond reasonable doubt see ante relevant inquiry one form effect required finding expose defendant greater punishment authorized jury guilty verdict principle thus apply schemes like new jersey factual determination exposes defendant sentence beyond prescribed statutory maximum also schemes length defendant sentence within statutory range turns specific factual determinations federal sentencing guidelines justice thomas essentially concedes rule outlined concurring opinion require invalidation sentencing guidelines see ante reject principle explained inconsistent precedent require overrule minimum decisions like patterson walton importantly given approval significant history country discretionary sentencing judges difficult understand fifth sixth fourteenth amendments possibly require justice thomas rule finally light adoption schemes many federal government consequences justice thomas rules terms sentencing schemes invalidated today decision likely severe acknowledges never doubted constitution permits congress state legislatures define criminal offenses prescribe broad ranges punishment offenses give judges discretion decide within ranges particular defendant punishment set see ante view accords historical practice constitution beginning republic federal judges entrusted wide sentencing discretion great majority federal criminal statutes stated maximum term years maximum monetary fine permitting sentencing judge impose term imprisonment fine statutory maximum stith cabranes fear judging sentencing guidelines federal courts omitted schemes judge bases defendant sentence number facts neither presented trial found jury beyond reasonable doubt one commentator explained age broad judicial sentencing discretion judges frequently made sentencing decisions basis facts determined less proof beyond reasonable doubt without eliciting much concern civil libertarians sentence number traditional discretionary situations depended quite directly judicial findings specific contested facts whether facts directly relevant judge retributionist assessment serious particular offense within spectrum conduct covered statute conviction bore determination much rehabilitation offender character likely need sentence higher lower specific degree determined judge based judge factual conclusions lynch towards model penal code second federal buffalo crim rev omitted accordingly schemes factual determination made judge standard proof beyond reasonable doubt often made difference lesser greater punishment example williams new york jury found defendant guilty murder recommended life imprisonment judge however rejected jury recommendation sentenced williams death basis additional facts learned investigation report neither charged indictment presented jury rejecting williams due process challenge death sentence explained long history sentencing judges exercising wide discretion sources types evidence used assist determining kind extent punishment imposed within limits fixed law specifically held constitution restrict judge sentencing decision information charged indictment subject open due process clause treated device freezing evidential procedure sentencing mold trial procedure precedent state may leave determination defendant sentence judge discretionary decision within prescribed range penalties judge pursuant sentencing scheme decides increase defendant sentence basis certain contested facts facts need proved jury beyond reasonable doubt judge findings whether proof beyond reasonable doubt less suffice purposes constitution decision today however appears legislature constrains judges sentencing discretion prescribing certain sentences may imposed must imposed connection determinations contested facts constitution requires facts instead proved jury beyond reasonable doubt see reason treat two schemes differently see mcmillan difficulty fathoming due process calculus change simply legislature seen fit provide sentencing courts additional guidance respect agree solicitor general sentence constitutionally permissible selected basis whatever factors deems appropriate become impermissible simply permitted select sentence making finding prescribed legislature brief amicus curiae although acknowledges legitimacy discretionary sentencing judges see ante never provides sound reason treating judicial factfinding schemes differently constitution justice thomas attempt explain distinction similarly unsatisfying explanation consists primarily quotation turn treatise writer contended aggravation punishment within statutory range basis facts found judge entirely different thing punishing one alleged ante quoting bishop commentaries law criminal procedure rev ed decision williams new york demonstrates however statement accurately describe reality discretionary sentencing conducted judges defendant actual punishment affected real way facts never alleged indictment never presented jury never proved beyond reasonable doubt williams case facts presented first time judge purposes sentencing alone made difference life imprisonment death sentence consideration purposes underlying sixth amendment jury trial guarantee demonstrates acceptance findings context discretionary sentencing suggests approval findings context determinate sentencing well one important purpose sixth amendment jury trial guarantee protect criminal defendant potentially arbitrary judges effectuates promise preserving constitutional matter certain fundamental decisions jury one peers opposed judge example recognized sixth amendment guarantee motivated english experience competition judge jury real significance respective roles jones blackstone explained right trial jury critically important criminal cases violence partiality judges appointed crown might france turkey imprison dispatch exile man obnoxious government instant declaration pleasure blackstone commentaries clearly concerns animating sixth amendment jury trial guarantee extend sentencing context apply greater strength scheme determinate sentencing former scheme potential mischief arbitrary judge much greater given judge decision set defendant sentence within prescribed statutory range left almost entirely discretion contrast system discretion judge wields within statutory range tightly constrained accordingly approval schemes defendant entitled jury make factual findings relevant sentencing despite effect findings severity defendant sentence demonstrates defendant right demand jury make equivalent factual determinations scheme appears hold today however defendant entitled jury decide proof beyond reasonable doubt every fact relevant determination sentence scheme accurate description constitutional principle underlying opinion decision effect invalidating significant sentencing reform accomplished federal state levels past three decades justice thomas rule essentially concedes see ante effect prior recent wave sentencing reform federal government employed schemes judges executive branch officials parole board officials substantial discretion determine actual length defendant sentence see dept justice brown olsen sentencing reform history content effect hereinafter report twentieth century fund task force criminal sentencing fair certain punishment hereinafter task force report dershowitz criminal sentencing historical conceptual overview annals acad pol soc sci studies schemes found similarly situated defendants often received widely disparate sentences see task force report although indeterminate sentencing intended soften harsh uniform sentences formerly imposed systems studies revealed indeterminate sentencing actually opposite effect see campbell law sentencing paradoxically humanitarian impulse sparking adoption indeterminate sentencing systems country resulted actual increase average criminal incarceration term task force report data seem indicate jurisdictions sentencing structure indeterminate judicially imposed sentences tend longer response congress state legislatures shifted schemes aimed limit judges sentencing discretion thereby afford similarly situated offenders equivalent treatment see cal penal code ann west supp well known reforms federal sentencing reform act et seq act congress created sentencing commission turn promulgated sentencing guidelines govern sentencing federal judges see sentencing commission guidelines manual whether one believes reforms proved successful subject one extensive debate among commentators apparent effect opinion today halt current debate sentencing reform tracks invalidate stroke pen three decades worth nationwide reform name principle questionable constitutional pedigree indeed ironic name constitutional rights meant protect criminal defendants potentially arbitrary exercise power prosecutors judges appears rest decision principle render unconstitutional efforts congress state legislatures place constraints power sentencing context finally perhaps significant impact decision practical one unsettling effect sentencing conducted current federal state schemes explained say whether schemes constitutional reasoning strongly suggests thus respect past sentences handed judges schemes decision threatens unleash flood petitions convicted defendants seeking invalidate sentences whole part authority decision today statistics compiled sentencing commission reveal almost cases sentenced sentencing guidelines since see memorandum sentencing commission library dated june total number cases sentenced federal sentencing guidelines since available clerk case file federal cases constitute tip iceberg example federal criminal prosecutions represented total number criminal prosecutions federal state courts see national center state courts national perspective statistics project federal state filings http showing criminal cases filed federal compared state courts many like new jersey schemes number individual sentences drawn question decision colossal decision likely even damaging effect sentencing conducted immediate future current schemes fails clarify precise contours constitutional principle underlying decision federal state judges left state limbo continue assume constitutionality schemes operated long proceed sentence convicted defendants accord governing statutes guidelines provides answer yet reasoning suggests new sentence rest shaky ground unfortunate aspect today decision precedents foreordain disruption world sentencing rather cases traditionally took cautious approach questions like one presented case throws caution wind process threatens cast sentencing likely prove lengthy period considerable confusion iii believe increase maximum penalty rule required constitution evaluate new jersey statute stat ann west supp analyzing factors examined past cases see mcmillan first new jersey statute shift burden proof essential ingredient offense presuming ingredient upon proof elements offense see patterson second magnitude new jersey sentence enhancement applied petitioner case constitutionally permissible new jersey law weapons possession offense petitioner pleaded guilty carries sentence range years imprisonment stat ann west fact petitioner committing offense acted purpose intimidate race exposed higher sentence range years imprisonment increase maximum penalty petitioner exposed falls well within range found permissible see supra approving enhancement third new jersey statute gives impression enacted evade constitutional requirements attach state makes fact element charged offense example new jersey take previously element weapons possession offense transform sentencing factor see mcmillan sum new jersey simply took one factor always considered sentencing courts bear punishment defendant motive committing criminal offense dictated precise weight given factor motive intimidate person race claims purpose intimidate account race traditional mens rea element motive see ante make claim finds necessary ignore settled precedent wisconsin mitchell considered statute similar one issue wisconsin statute provided increase convicted defendant punishment defendant intentionally selected victim crime victim race unanimous decision upholding statute specifically characterized providing sentence enhancement based motive defendant see distinguishing punishment defendant criminal conduct penalty enhancement conduct motivated discriminatory point view emphasis added nder wisconsin statute criminal conduct may heavily punished victim selected race motive obtained emphasis added characterization applies case new jersey statute also explained mitchell motive committing offense traditionally important factor determining defendant sentence new jersey therefore done held permissible mcmillan taken traditional sentencing factor dictated precise weight judges attach factor specific motive intimidate basis race new jersey statute resembles pennsylvania statute upheld mcmillan every respect one difference new jersey statute increases maximum punishment petitioner exposed persuade new jersey sought evade constitutional requirements associated characterization fact offense element supra question new jersey prescribe range years imprisonment punishment weapons possession offense thus explained specific means state chooses control judges discretion within permissible range moment cf patterson supra due process clause see put new york choice abandoning affirmative defense undertaking disprove existence order convict crime otherwise within constitutional powers sanction substantial punishment new jersey statute also resembles virtually every respect federal statute considered new jersey statute provides enhancement based defendant motive statute provided enhancement based defendant commission prior felony difference without constitutional importance factors traditional bases increasing offender sentence therefore may serve grounds sentence enhancement basis prior precedent hold new jersey statute constitutional affirm judgment new jersey charles apprendi petitioner new jersey writ certiorari new jersey june justice breyer chief justice rehnquist joins dissenting majority holds constitution contains following requirement fact recidivism increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt ante rule seem promote procedural ideal juries judges determining existence facts upon increased punishment turns real world criminal justice hope meet ideal function help procedural compromises particularly respect sentencing compromises necessary fair functioning criminal justice system preclude implementation procedural model today decision reflects least impractical nature requirement majority recognizes supports proposition constitution intended embody modern times law left sentencing judge find facts within broad sentencing limits set legislature determine sentence convicted offender judge factfinding role inevitable one imagine example pure charge offense sentencing system degree punishment depended upon crime charged eight mandatory years robbery six arson three assault system ignore many harms risks harm offender caused created ignore many relevant offender characteristics see sentencing commission sentencing guidelines policy statements part hereinafter sentencing guidelines guidelines pointing charge offense system definition ignore fact constitute statutory elemen offens defendant convicted hence imaginary charge offense system fair system lack proportionality treat different offenders similarly despite major differences manner committed crime many differences respect criminal behavior empirical data collected sentencing commission makes clear guidelines judges exercised discretion within broad legislatively determined sentencing limits say range years impose different sentences upon offenders engaged basic criminal conduct depending example upon amount drugs distributed respect drug crimes amount money taken respect robbery theft fraud presence use weapon injury victim vulnerability victim offender role offense recidivism many factors see sentencing commission supplementary report initial sentencing guidelines policy statements table listing data representing factors hereinafter supplementary report see generally department justice rhodes conly analysis federal sentencing may majority deny judges exercised constitutionally speaking may exercise sentencing discretion way nonetheless important present purposes understand judges rather juries traditionally determined presence absence facts given case important realize reason theoretical one practical one reflect justice scalia opinion contrary notwithstanding ideal procedural fairness ante concurring opinion rather administrative need procedural compromise put simply far many potentially relevant sentencing factors permit submission even many jury sentencing guidelines state matter bank robber without gun robber kept hidden brandished might frightened merely warned injured seriously less seriously tied simply pushed guard teller customer night noon bad arguably less bad motive effort obtain money crimes purposes company many robbers first fourth time day sober influence drugs alcohol forth sentencing guidelines part guidelines note sentencing system tailored fit every conceivable wrinkle case become unworkable seriously compromise certainty punishment deterrent effect ibid ask jury consider many matters time require jury consideration factors say trial issue guilt innocence easily place defendant awkward conceivably unfair position deny committed crime yet offer proof committed sell drugs sold grams special postverdict sentencing juries cure problem seemed capital cases worth administrative costs hence guidelines federal sentencing judges typically obtain relevant factual sentencing information probation officers presentence reports permitting convicted offender challenge information accuracy hearing judge without benefit evidentiary rules see williams new york describing modern practice individualizing punishments judges often consider otherwise inadmissible information gleaned probation reports see also kadish legal norm discretion police sentencing processes harv rev also important understand judge traditionally determined factors taken account sentencing purposes principle number potentially relevant behavioral characteristics endless judge might ask example whether unlawfully possessed knife switchblade drawn concealed opened closed large small used connection car theft victim confrontation rare burglary confrontation unintended robbery confrontation intentional sentencing commission preliminary observations commission commissioner robinson dissent may method reflects practical rather theoretical considerations prior sentencing guidelines federal law left individual sentencing judge free determine factors relevant freedom meant judge effort tailor punishment individual offense offender guided primarily experience relevance sense proportional fairness cf supplementary report noting goal sentencing guidelines create greater sentencing uniformity among judges guidelines rely primarily upon empirical studies showed factors proved important federal judges past finally important understand legislature decides factual circumstances among potentially related generally harmful behavior transform elements statutorily defined crime become relevant guilt innocence accused factual circumstances leave sentencing process sentencing factors help determine sentence imposed upon one found guilty theory provide answer legislatures defining crimes terms elements looked guidance tradition history current social need traditionally left legislatures considerable freedom make element determination see mcmillan pennsylvania placing today constitutional question broader context brief survey may help clarify nature today decision also may explain respect sentencing systems proportionality uniformity administrability aspects basic fairness constitution demands suggests basic problem rule sentencing system judges discretion find factors workable system one long thought consistent constitution constitution treat sentencing statutes differently ii justice thomas suggests fairly recent times many legislatures rarely focused upon sentencing factors rather appears simply identified typical forms antisocial conduct defined basic crimes attached broad sentencing range definition leaving judges free decide sentence within ranges light factors found relevant ante concurring opinion constitution freeze sentencing practices permanent law dissatisfaction traditional sentencing system reflecting tendency treat similar cases differently led modern legislatures write new laws refer specifically sentencing factors see supplementary report explaining growing recognition need bring greater rationality consistency penal statutes sentences imposed statutes led reform efforts federal sentencing guidelines legislatures tended address problem much judicial sentencing discretion two ways first legislatures sometimes created sentencing commissions armed delegated authority make uniform judicial exercise discretion congress example created federal sentencing commission giving power create guidelines within sentencing range set individual statutes reflect host factors might used determine actual sentence imposed individual crime see see also sentencing commission guidelines manual federal judges must apply guidelines typical cases lie heartland crime statute defines retaining freedom depart atypical cases ch pt second legislatures sometimes directly limited use judges commission particular factors sentencing either specifying statutorily particular factor affect sentence imposed specifying commission use particular factor writing guideline statute might state explicitly example particular factor say use weapon recidivism injury victim bad motive shall increase may increase particular sentence particular way see mcmillan supra pennsylvania statute expressly treated visible possession firearm sentencing consideration subjected defendant mandatory term imprisonment issue decides today involves second kind legislation holds legislature enact legislation increase maximum involved unless factor issue charged tried jury found exist beyond reasonable doubt question respect holding simply constitution contain requirement iii light sentencing background described parts ii see majority find constitution requirement fact recidivism increases maximum penalty crime must submitted jury ante justice demonstrates previously failed view constitution embodying principle sometimes finding contrary see supra mcmillan supra majority raises objection traditional sentencing procedures judges juries made factual findings lead increase individual offender sentence legislative determination differ significant way example judge may decide victim injury bad motive increase bank robber sentence years matter legislature instead enacts statute increases bank robber sentence years based judicial finding possible exception last line justice scalia concurring opinion majority also makes constitutional objection legislative delegation commission authority create guidelines determine judge exercise sentencing discretion see also ante thomas concurring reserving question constitution permits guidelines permit congress similarly guide exercise judge sentencing discretion constitution permits delegatee commission exercise rulemaking power deny delegator legislature effect rulemaking power majority appears offer two responses first argues limiting principle prevent legislature broad authority transforming facts constitute elements crime sentencing factors thereby removing procedural protections constitution otherwise require see ante constitutional limits prevent defin ing away facts necessary constitute criminal offense majority cure however aimed disease transformational problem exists traditional sentencing law legislation silent sentencing factors grants judge virtually unchecked discretion sentence within broad range system judges prosecutors similarly transform crimes punishing offender convicted one crime committed another prosecutor example might charge offender five counts embezzlement subject maximum penalty asking judge impose maximum consecutive sentences embezzler murdered employer part traditional sentencing discretion majority concedes judges retain judge jury determine relevant fact murder actually occurred egregious example shows problem complexity source problem lies legislature power enact sentencing factors traditional legislative power select elements defining crime traditional legislative power set broad sentencing ranges traditional judicial power choose sentence within range basis relevant offender conduct conversely solution problem lies prohibiting legislatures enacting sentencing factors sentencing rules determine punishments basis properly defined relevant conduct sensitivity need procedural protections sentencing factors determined judge example use reasonable doubt standard invocation due process clause history crime issue together nature facts proved reveals unusual serious procedural unfairness cf mcmillan upholding statute part gives impression tailored permit sentencing factor tail wags dog substantive offense second majority support constitutional rule emphasizes concept statutory maximum points sentencing judge commission traditionally determined still determines sentences within legislated range capped maximum range legislature sets see ante concede truth majority statement understand relevance defendant perspective legislature decision cap possible range punishment statutorily prescribed maximum affect actual sentence imposed differently sentencing commission sentencing judge similar determination indeed practical matter legislated mandatory minimum far important actual defendant judge commission legally free select sentence statute maximum free subvert statutory minimum justice thomas indicates considerations fairness might support submission jury factual matter increases statutory maximum apply fortiori matter increase statutory minimum see ante concurring opinion repeat understand legislature authorizes judge impose higher penalty bank robbery based say finding victim injured defendant motive bad new crime born legislature requires judge impose higher penalty otherwise within statutory range based similar criteria cf iv certainly believe present sentencing system one perfect equity ante scalia concurring willing consequently assume majority rule provide degree increased procedural protection respect particular sentencing factors currently embodied statutes nonetheless believe increased protection provides little practical help comes high price one thing leaving mandatory minimum sentences untouched majority rule simply encourages legislature interested asserting control sentencing process creating minimums result mean significantly less procedural fairness another thing case law prior jones led legislatures believe permitted increase statutory maximum sentence basis sentencing factor see ante dissenting see also mcmillan supra indicating legislature impose mandatory sentences basis sentencing factors thereby suggesting impose flexible statutory maximums basis legislatures may well relied upon belief see ed supp iii providing penalties among things possessing controlled substance intent distribute sentences vary dramatically depending upon amount drug possessed without requiring jury determination amount stat ann west supp setting sentencing ranges crimes providing lesser greater punishments depending upon judicial findings regarding certain aggravating mitigating factors cal penal code ann west supp similar see also cal rule providing ircumstances aggravation mitigation established sentencing judge based case record probation officer report reports statements properly received justice points majority rule creates serious uncertainty constitutionality statutes constitutionality confinement punished see ante dissenting opinion amicus briefs received case discuss impact new rule example drug crime statutes state criminal justice systems fact concede may suggest concerns disruption overstated yet may also suggest despite jones given absolute constitutional prohibition unexpected moreover rationale underlies rule suggests principle jury determination facts unless restricted threatens workability every criminal justice tem applied judges threatens efforts make systems uniform hence fair applied commissions finally new rule likely impede legislative attempts provide authoritative guidance courts respond presence traditional sentencing factors factor issue motive factor whether robber takes money finance crimes feed starving family matter long mattered length sentence issue state new jersey determined one motive racial hatred particularly bad make difference respect punishment crime determination reasonable procedures mandated consistent traditional sentencing practice though additional procedural protections might well desirable reasons justice discusses discussed believe constitution requires ordinary sentencing factors issue consequently view new jersey statute constitutional respectfully dissent footnotes previously rejected first amendment challenge enhanced sentence based jury finding defendant intentionally selected victim victim race wisconsin mitchell holmes common law howe ed apprendi asserted constitutional claim based omission reference sentence enhancement racial bias indictment relies entirely fact due process law fourteenth amendment requires provide persons accused crime encompasses right trial jury duncan louisiana right every element offense proved beyond reasonable doubt winship amendment however construed include fifth amendment right presentment indictment grand jury implicated recent decision thus address indictment question separately today fter trial conviction past defendant submitted judgment blackstone stage approximating modern terms imposition sentence suggested jones juries devised extralegal ways avoiding guilty verdict least severe form offense alleged punishment associated offense seemed disproportionate seriousness conduct particular defendant power thwart parliament crown took form acquittals face guilt today call verdicts guilty lesser included offenses manifestations blackstone described pious perjury jurors part blackstone principal dissent chide us single citation blackstone third volume rather fourth post dissenting opinion suggest blackstone directs us purposes see blackstone antiquity excellence jury trial settling civil property explained large see upon accounts trial jury ever trust ever looked upon glory english law great advantage others regulating civil property much must advantage heightened applied criminal cases hold much stronger criminal cases since times difficulty danger apprehended violence partiality judges appointed crown suits king subject disputes one individual another settle metes boundaries private property said juries general trial thereby civil cases greatly shorten present remarks regard trial criminal suits indictments informations appeals common law punishment misdemeanors smaller faults omissions less consequence blackstone noted jones substantially dependent upon judicial discretion subject limitations punishment touch life limb proportionate offense century cruel unusual judges commonly imposed discretionary sentences fines whippings upon misdemeanant offenders baker introduction english legal history ed actual sentences imprisonment offenses however rare common law late century idea prison punishment seemed absurd expense baker criminal courts procedure common law crime england cockburn ed extent principal dissent appears take issue reliance archbold among others authoritative source common law relevant period post simply note archbold cited numerous opinions purpose criminal pleading treatise generally viewed essential reference book every criminal lawyer working crown biographical dictionary common law simpson ed see also holdsworth literature common law history english law goodhart hanbury eds see also bishop criminal law ed us legislation ordinarily fixes penalties common law offences equally statutory ones procedure determines case within limits law shall punishment question one emphasis added law given discretion punishment look pronouncing sentence evidence proper influence judicious magistrate make heavier lighter yet exceed limits fixed crime within allegation verdict sort evidence may placed jury trial power assess punishment case aggravating matter must crime separate one charged indictment rule applicable delinquent offence habitual criminal act involved footnotes omitted principal dissent discussion williams post fails acknowledge significance caveat judges discretion constrained limits fixed law nothing williams implies judge may impose severe sentence maximum authorized facts found jury indeed commentators cited dissent recognize precisely limitation see post quoting stith cabranes fear judging sentencing guidelines federal courts beginning republic federal judges entrusted wide sentencing discretion permitting sentencing judge impose term imprisonment fine statutory maximum emphasis added lynch towards model penal code second federal buff crim rev noting judges discretionary sentencing took account facts relevant particular offense within spectrum conduct covered statute conviction support novel view long recognized facts affecting punishment need go jury post principal dissent cites three cases decided within past quarter century plainly distinguishable rather offer historical account support notion sentencing factor legally increasing punishment beyond statutory maximum justice thomas concurring opinion case makes clear exercise futile dissent proceeds mischaracterizing account evidence describe punishment law tied offense enabling defendant discern barring pardon clergy punishment face indictment evidence american judges exercised sentencing discretion within legally prescribed range enabling defendant discern statute indictment maximum punishment conviction statute bring point single consistent conclusion judge role sentencing constrained outer limits facts alleged indictment found jury put simply facts expose defendant punishment greater otherwise legally prescribed definition elements separate legal offense stated jones one contributor ratification debates example commenting jury trial guarantee art iii echoed blackstone warning need guard jealous circumspection introduction new arbitrary methods trial variety plausible pretenses may time imperceptibly undermine best preservative liberty new hampshire farmer june quoted complete bill rights cogan ed contrary principal dissent suggestion post patterson new york posed direct challenge aspect mullaney upholding new york law allowing defendants raise prove extreme emotional distress affirmative defense murder patterson made clear state law still required state prove every element state offense murder accompanying punishment facts either presumed inferred order constitute crime new york unlike maine made malice aforethought described mens rea part statutory definition murder one tell face statute one intended cause death another person cause death one subject sentence offense responding argument view seen permit state legislatures reallocate burdens proof labeling affirmative defenses least elements crimes defined statutes made clear next breath obviously constitutional limits beyond may go regard principal dissent accuses us today overruling mcmillan post overrule mcmillan limit holding cases involve imposition sentence severe statutory maximum offense established jury verdict limitation identified mcmillan opinion conscious likelihood legislative decisions may made reliance mcmillan reserve another day question whether stare decisis considerations preclude reconsideration narrower holding principal dissent contention decision monge california demonstrates something limited exception jury trial rule inaccurate misleading post monge another recidivism case question presented bulk analysis related scope double jeopardy protections sentencing dissent extracts decision majority statement rejected absolute rule enhancement constitutes element offense time increases maximum sentence far part reasoning essential holding post statement response dissent justice scalia issue sentences earlier insisted neither considered state courts discussed petitioner brief moreover sole citation supporting monge proposition rejected rule none explained case simply bear broad reading telling monge distance issue stake case double jeopardy question monge arose state failed satisfy statutory burden proving beyond reasonable doubt defendant committed prior offense therefore subject enhanced sentence according california law number procedural safeguards surround assessment prior conviction allegations defendants may invoke right jury trial prosecution must prove allegation beyond reasonable doubt rules evidence apply thus warned contrary double jeopardy rule create disincentives diminish important procedural protections addition reasons set forth justice scalia dissent indictment must contain allegation every fact legally essential punishment inflicted explained peaking principle bishop says pervades entire system adjudged law criminal procedure appears cases wherever move department jurisprudence come contact escape atmosphere surrounds us bishop cr sect archbold crim stark crim cr law rev sect steel smith barn ald principal dissent reject rule meaningless formalism conceive hypothetical statutes comply rule achieve result new jersey statute post state hypothetically undertake revise entire criminal code manner dissent suggests post extending statutory maximum sentences example years giving judges guided discretion specially selected factors within range possibility seems remote among reasons structural democratic constraints exist discourage legislatures enacting penal statutes expose every defendant convicted example weapons possession maximum sentence exceeding legislature judgment generally proportional crime rule ensures state obliged make choices concerning substantive content criminal laws full awareness consequence unable mask substantive policy choices exposing convicted maximum sentence provides patterson new york powell dissenting exposed political check potentially harsh legislative action likely operate ibid events extensive revision state entire criminal code enacted purpose dissent suggests new jersey simply reversed burden hate crime finding effectively assuming crime performed purpose intimidate requiring defendant prove post required question whether revision constitutional prior decisions see patterson finally principal dissent ignores distinction often recognized see martin ohio facts aggravation punishment facts mitigation see post facts found jury support guilty verdict murder judge authorized jury verdict sentence defendant maximum sentence provided murder statute defendant escape statutory maximum showing example war veteran judge finds fact veteran status neither exposing defendant deprivation liberty greater authorized verdict according statute judge imposing upon defendant greater stigma accompanying jury verdict alone see supra core concerns animating jury requirements thus absent scheme among common definitions mens rea criminal intent black law dictionary rev ed dictionary unsurprisingly defines purpose synonymous intent intent among things state mind need venture beyond new jersey criminal code definition purpose makes central description criminal offense dissenting judge state appeals pointed according new jersey criminal code person acts purposely respect nature conduct result thereof conscious object engage conduct nature cause result stat ann west hate crime statute application act purpose intimidate certain characteristics places squarely within inquiry whether defendant conscious object intimidate reason whatever effect state comment law targets motive highly doubtful one characterize comment binding interpretation state statute see wisconsin mitchell declining bound state characterization state law operative effect even immediately thereafter called direct question ability view finding merely search motive state mere characterization change nature conduct actually targeted clear day hate crime law defines particular kind prohibited intent particular intent often sine qua non violation criminal law principal dissent long last confronts actual statute issue case final pages opinion offers response interpretation reading contrary settled precedent mitchell post setting aside fact wisconsin hate crime statute text substance different new jersey mitchell even begin consider whether wisconsin hate crime requirement offense element required finding wisconsin statute made jury suggest term sentencing factor devoid meaning term appropriately describes circumstance may either aggravating mitigating character supports specific sentence within range authorized jury finding defendant guilty particular offense hand term sentence enhancement used describe increase beyond maximum authorized statutory sentence functional equivalent element greater offense one covered jury guilty verdict indeed fits squarely within usual definition element offense see post thomas concurring reviewing relevant authorities including new jersey stat ann west supp person commits crime fourth degree committing offense harassment section acted purpose intimidate individual group individuals race color religion gender handicap sexual orientation ethnicity currently laws making certain acts racial bias freestanding violations criminal law see generally lawrence punishing hate bias crimes american law listing current state hate crime laws principal dissent addition treats us lengthy disquisition benefits determinate sentencing schemes effect today decision federal sentencing guidelines post guidelines course therefore express view subject beyond already held see edwards opinion breyer unanimous noting course petitioners statutory constitutional claims make difference possible argue say sentences imposed exceeded maximum statutes permit conspiracy maximum sentence set statute trumps higher sentence set forth guidelines sentencing guidelines manual footnotes justice mischaracterizes argument see post dissenting opinion course fifth sixth amendments codify common law procedure wholesale rather story notes codified particular procedural rights explained scope rights turns constitutes crime answering question entirely proper look common law strange justice faults beginning analysis cases primarily rather time founding see post dissenting opinion explains ante concedes post dissenting idea sentencing enhancement foreign common law time founding justice therefore understandably contend history founding supports position far able tell argument fact law basis imposing increasing punishment might element seriously arise least reported cases explain time least century essentially authority rejected argument much reliance upon common law find evidence sufficient massachusetts statute provided every person shall commit offence larceny stealing property another money goods chattels sort property property stolen shall exceed value one hundred dollars shall punished imprisonment state prison five years fine exceeding six hundred dollars imprisonment county jail two years property stolen shall exceed value one hundred dollars shall punished imprisonment state prison county jail one year fine exceeding three hundred dollars mass rev ch wisconsin statute provided every person shall willfully maliciously burn night time dwelling house another whereby life person shall destroyed shall night time willfully maliciously set fire building owned another burning whereof dwelling house shall burnt night time whereby life person shall destroyed shall suffer punishment provided crime murder second degree life person shall destroyed shall punished imprisonment state prison fourteen years less seven years time committing offense person lawfully dwelling house burnt shall punished imprisonment state prison ten years less three years rev ch punishment murder life prison ch courts read state smith rich app south carolina case hold indictment need allege prior conviction order defendant suffer enhanced punishment see state burgett ark reading smith questioning correctness smith holding somewhat unclear state whether case involved first second offense first undoubtedly correct rejecting defendant challenge indictment need indictment negate existence prior offense see burgett supra reading indictment silent prior offenses charging first offense sufficient purpose addition smith acknowledge possibility disputes identity finally extent apparent holding followed practice south carolina unclear subsequent south carolina decisions acknowledged smith step general rule see state parris state mitchell gulf traditional approach determining elements recent cases manifest one considers one might perspective cases analyze issue hobbs chapter texas code addressing burglary entitled simply burglary began section explicitly defining offense burglary series sections defining terms set six separate sections specifying punishment various kinds burglary section regarding force one see paschal digest laws texas part ii tit ch pp ed following approach similar castillo ante slip one likely find clear legislative intent make force sentencing enhancement rather element held general plea guilty indictment includes allegation prior conviction applies fact prior conviction see also state austin mo prior conviction material fac aggravated offense bandy hehn wyo reason great weight authority fact former conviction enters offense extent aggravating increasing punishment must alleged information proved like material fact sought impose greater penalty statute makes prior conviction part description character offense intended punished citing tuttle commonwealth mass state smith iowa similar state scheminisky idaho similar deny may laws borderline distinction brightwell state stated rule elements equivalent bishop held whether defendant committed arson day night need indictment explained provision arson night shall punished different period arson day punishable years prison although statute providing arson day time shall punished less period arson night time concluded merely set rule exercise sentencing judge discretion specifying particular fact judge consider along many others enter sentencing decision ibid cf jones state whether burglary occurred day night constituent offense law fixes different ranges punishment based fact statute attached definite consequence particular fact sentencing judge presumably imposed sentence seven years less one second daytime arson finally likely statute brightwell given language less period placement separate section read setting affirmative defense mitigating circumstance see wright state app suggesting error refuse charge later version statute jury upon request defendant see generally archbold discussing rules determining whether fact element defense addition common practice address concern permitting defendant stipulate prior conviction case charge prior conviction read jury defendant decides stipulate bifurcate trial jury considering prior conviction reached guilty verdict core crime see bishop criminal law ed favorably discussing english practice bifurcation people saunders cal detailing california approach since permitting stipulation recently also permitting bifurcation likewise unnecessary consider whether rule regarding elements applies sentencing guidelines given unique status mistretta may special status irrelevant guidelines force effect laws scalia dissenting