Apprendi v. New Jersey

Justice STEVENS delivered the opinion of the Court.

A New Jersey statute classifies the possession of a firearm for an unlawful purpose as a “second-degree” offense. . . Such an offense is punishable by imprisonment for “between five years and 10 years.” . . . A separate statute, described by that State's Supreme Court as a “hate crime” law, provides for an “extended term” of imprisonment if the trial judge finds, by a preponderance of the evidence, that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” . . . The extended term authorized by the hate crime law for second-degree offenses is imprisonment for “between 10 and 20 years.” . . .

The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.

I

At 2:04 a.m. on December 22, 1994, petitioner Charles C. Apprendi, Jr., fired several .22-caliber bullets into the home of an African-American family that had recently moved into a previously all-white neighborhood in Vineland, New Jersey. Apprendi was promptly arrested and, at 3:05 a.m., admitted that he was the shooter. After further questioning, at 6:04 a.m., he made a statement-which he later retracted-that even though he did not know the occupants of the house personally, “because they are black in color he does not want them in the neighborhood.” . . .

A New Jersey grand jury returned a 23-count indictment charging Apprendi with four first-degree, eight second-degree, six third-degree, and five fourth-degree offenses. The charges alleged shootings on four different dates, as well as the unlawful possession of various weapons. None of the counts referred to the hate crime statute, and none alleged that Apprendi acted with a racially biased purpose.

The parties entered into a plea agreement, pursuant to which Apprendi pleaded guilty to two counts (3 and 18) of second-degree possession of a firearm for an unlawful purpose, . . . and one count (22) of the third-degree offense of unlawful possession of an antipersonnel bomb, . . . the prosecutor dismissed the other 20 counts. . . .

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After the trial judge accepted the three guilty pleas, the prosecutor filed a formal motion for an extended term. The trial judge thereafter held an evidentiary hearing on the issue of Apprendi's “purpose” for the shooting on December 22. Apprendi adduced evidence from a psychologist and from seven character witnesses who testified that he did not have a reputation for racial bias. He also took the stand himself, explaining that the incident was an unintended consequence of overindulgence in alcohol, denying that he was in any way biased against African-Americans, and denying that his statement to the police had been accurately described. The judge, however, found the police officer's testimony credible, and concluded that the evidence supported a finding “that the crime was motivated by racial bias.” . . . Having found “by a preponderance of the evidence” that Apprendi's actions were taken “with a purpose to intimidate” as provided by the statute, . . . the trial judge held that the hate crime enhancement applied. Rejecting Apprendi's constitutional challenge to the statute, the judge sentenced him to a 12-year term of imprisonment on count 18, and to shorter concurrent sentences on the other two counts.

Apprendi appealed, arguing, inter alia, that the Due Process Clause of the United States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt, . . . Over dissent, the Appellate Division of the Superior Court of New Jersey upheld the enhanced sentence. . . . Relying on our decision in McMillan v. Pennsylvania, . . . the appeals court found that the state legislature decided to make the hate crime enhancement a “sentencing factor,” rather than an element of an underlying offense-and that decision was within the State's established power to define the elements of its crimes. The hate crime statute did not create a presumption of guilt, the court determined, and did not appear “ ‘tailored to permit the ... finding to be a tail which wags the dog of the substantive offense.’ ” . . . Characterizing the required finding as one of “motive,” the court described it as a traditional “sentencing factor,” one not considered an “essential element” of any crime unless the legislature so provides. . . . While recognizing that the hate crime law did expose defendants to “ ‘greater and additional punishment,’ ” . . . the court held that that “one factor standing alone” was not sufficient to render the statute unconstitutional, . . .

A divided New Jersey Supreme Court affirmed. . . .

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II

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. . . The question whether Apprendi had a constitutional right to have a jury find such bias on the basis of proof beyond a reasonable doubt is starkly presented.

Our answer to that question was foreshadowed by our opinion in Jones v. United States, . . . construing a federal statute. We there noted that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” . . . The Fourteenth Amendment commands the same answer in this case involving a state statute.

III

In his 1881 lecture on the criminal law, Oliver Wendell Holmes, Jr., observed: “The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.” New Jersey threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race. As a matter of simple justice, it seems obvious that the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to the two acts that New Jersey has singled out for punishment. Merely using the label “sentence enhancement” to describe the latter surely does not provide a principled basis for treating them differently.

At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without “due process of law,” . . . and the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” . . . Taken together, these rights indisputably entitle a criminal defendant to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” . . .

As we have, unanimously, . . . the historical foundation for our recognition of these principles extends down centuries into the common law. “[T]o guard against a spirit of oppression and tyranny on the part of rulers,” and “as the great bulwark of [our] civil and political liberties,” . . . trial by jury has been understood to require that “ the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbors....” . . .

Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt. . . .

Any possible distinction between an “element” of a felony offense and a “sentencing factor” was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation's founding. As a general rule, criminal proceedings were submitted to a jury after being initiated by an indictment containing “all the facts and circumstances which constitute the offence, ... stated with such certainty and precision, that the defendant ... may be enabled to determine the species of offence they constitute, in order that he may prepare his defense accordingly ... and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.” . . . The defendant's ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime. . . .

Thus, with respect to the criminal law of felonious conduct, “the English trial judge of the later eighteenth century had very little explicit discretion in sentencing. The substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense. The judge was meant simply to impose that sentence (unless he thought in the circumstances that the sentence was so inappropriate that he should invoke the pardon process to commute it).” . . . As Blackstone, among many others, has made clear, “[t]he judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law.” . . .

This practice at common law held true when indictments were issued pursuant to statute. Just as the circumstances of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment, so too were the circumstances mandating a particular punishment. “Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision. . . .” . . . If, then, “upon an indictment under the statute, the prosecutor prove the felony to have been committed, but fail in proving it to have been committed under the circumstances specified in the statute, the defendant shall be convicted of the common-law felony only.” . . .

We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. . . . As in Williams, our periodic recognition of judges' broad discretion in sentencing-since the 19th-century shift in this country from statutes providing fixed-term sentences to those providing judges discretion within a permissible range, . . . has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature. . . .

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We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers' fears “that the jury right could be lost not only by gross denial, but by erosion.” . . . But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt. As we made clear in Winship, the “reasonable doubt” requirement “has [a] vital role in our criminal procedure for cogent reasons.” . . . Prosecution subjects the criminal defendant both to “the possibility that he may lose his liberty upon conviction and ... the certainty that he would be stigmatized by the conviction.” We thus require this, among other, procedural protections in order to “provid[e] concrete substance for the presumption of innocence,” and to reduce the risk of imposing such deprivations erroneously. If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not-at the moment the State is put to proof of those circumstances-be deprived of protections that have, until that point, unquestionably attached.

Since Winship, we have made clear beyond peradventure that Winship's due process and associated jury protections extend, to some degree, “to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence.” . . . This was a primary lesson of Mullaney v. Wilbur, . . . in which we invalidated a Maine statute that presumed that a defendant who acted with an intent to kill possessed the “malice aforethought” necessary to constitute the State's murder offense (and therefore, was subject to that crime's associated punishment of life imprisonment). The statute placed the burden on the defendant of proving, in rebutting the statutory presumption, that he acted with a lesser degree of culpability, such as in the heat of passion, to win a reduction in the offense from murder to manslaughter (and thus a reduction of the maximum punishment of 20 years).

The State had posited in Mullaney that requiring a defendant to prove heat-of-passion intent to overcome a presumption of murderous intent did not implicate Winship protections because, upon conviction of either offense, the defendant would lose his liberty and face societal stigma just the same. Rejecting this argument, we acknowledged that criminal law “is concerned not only with guilt or innocence in the abstract, but also with the degree of criminal culpability” assessed. . . . Because the “ consequences ” of a guilty verdict for murder and for manslaughter differed substantially, we dismissed the possibility that a State could circumvent the protections of Winship merely by “redefin[ing] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.” . . .

IV

It was in McMillan v. Pennsylvania, . . . that this Court, for the first time, coined the term “sentencing factor” to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge. That case involved a challenge to the State's Mandatory Minimum Sentencing Act, . . . According to its provisions, anyone convicted of certain felonies would be subject to a mandatory minimum penalty of five years' imprisonment if the judge found, by a preponderance of the evidence, that the person “visibly possessed a firearm” in the course of committing one of the specified felonies. . . . Articulating for the first time, and then applying, a multifactor set of criteria for determining whether the Winship protections applied to bar such a system, we concluded that the Pennsylvania statute did not run afoul of our previous admonitions against relieving the State of its burden of proving guilt, or tailoring the mere form of a criminal statute solely to avoid Winship's strictures. . . .

We did not, however, there budge from the position that (1) constitutional limits exist to States' authority to define away facts necessary to constitute a criminal offense, . . . and (2) that a state scheme that keeps from the jury facts that “expos[e] [defendants] to greater or additional punishment,” . . . may raise serious constitutional concern. . . .

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Finally, as we made plain in Jones last Term, Almendarez-Torres v. United States, . . . represents at best an exceptional departure from the historic practice that we have described. . . .

Rejecting Almendarez-Torres' objection, we concluded that sentencing him to a term higher than that attached to the offense alleged in the indictment did not violate the strictures of Winship in that case. Because Almendarez-Torres had admitted the three earlier convictions for aggravated felonies-all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own-no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court. Although our conclusion in that case was based in part on our application of the criteria we had invoked in McMillan, the specific question decided concerned the sufficiency of the indictment. More important, as Jones made crystal clear, . . . our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was “the prior commission of a serious crime.” . . . Both the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that “fact” in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a “fact” increasing punishment beyond the maximum of the statutory range.

Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.

In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” . . .

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V

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New Jersey's defense of its hate crime enhancement statute has three primary components: (1) The required finding of biased purpose is not an “element” of a distinct hate crime offense, but rather the traditional “sentencing factor” of motive; (2) McMillan holds that the legislature can authorize a judge to find a traditional sentencing factor on the basis of a preponderance of the evidence; and (3) Almendarez-Torres extended McMillan's holding to encompass factors that authorize a judge to impose a sentence beyond the maximum provided by the substantive statute under which a defendant is charged. None of these persuades us that the constitutional rule that emerges from our history and case law should incorporate an exception for this New Jersey statute.

New Jersey's first point is nothing more than a disagreement with the rule we apply today. Beyond this, we do not see how the argument can succeed on its own terms. . . .

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Despite what appears to us the clear “elemental” nature of the factor here, the relevant inquiry is one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?

As the New Jersey Supreme Court itself understood in rejecting the argument that the required “motive” finding was simply a “traditional” sentencing factor, proof of motive did not ordinarily “increase the penal consequences to an actor.” . . . Indeed, the effect of New Jersey's sentencing “enhancement” here is unquestionably to turn a second-degree offense into a first degree offense, under the State's own criminal code. The law thus runs directly into our warning in Mullaney that Winship is concerned as much with the category of substantive offense as “with the degree of criminal culpability” assessed. . . . This concern flows not only from the historical pedigree of the jury and burden rights, but also from the powerful interests those rights serve. The degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant's very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.

The preceding discussion should make clear why the State's reliance on McMillan is likewise misplaced. The differential in sentence between what Apprendi would have received without the finding of biased purpose and what he could receive with it is not, it is true, as extreme as the difference between a small fine and mandatory life imprisonment. . . . But it can hardly be said that the potential doubling of one's sentence-from 10 years to 20-has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judge's finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as “a tail which wags the dog of the substantive offense.” . . .

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New Jersey's reliance on Almendarez-Torres is also unavailing. The reasons supporting an exception from the general rule for the statute construed in that case do not apply to the New Jersey statute. Whereas recidivism “does not relate to the commission of the offense” itself, . . . New Jersey's biased purpose inquiry goes precisely to what happened in the “commission of the offense.” Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.

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The New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system. Accordingly, the judgment of the Supreme Court of New Jersey is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice SCALIA, concurring.

I feel the need to say a few words in response to Justice BREYER's dissent. It sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State-and an increasingly bureaucratic part of it, at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.

As for fairness, which Justice BREYER believes “[i]n modern times,” . . . the jury cannot provide: I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a jail sentence of 30 years-and that if, upon conviction, he gets anything less than that he may thank the mercy of a tenderhearted judge (just as he may thank the mercy of a tenderhearted parole commission if he is let out inordinately early, or the mercy of a tenderhearted governor if his sentence is commuted). Will there be disparities? Of course. But the criminal will never get more punishment than he bargained for when he did the crime, and his guilt of the crime (and hence the length of the sentence to which he is exposed) will be determined beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens.

In Justice BREYER's bureaucratic realm of perfect equity, by contrast, the facts that determine the length of sentence to which the defendant is exposed will be determined to exist (on a more-likely-than-not basis) by a single employee of the State. It is certainly arguable (Justice BREYER argues it) that this sacrifice of prior protections is worth it. But it is not arguable that, just because one thinks it is a better system, it must be, or is even more likely to be, the system envisioned by a Constitution that guarantees trial by jury. What ultimately demolishes the case for the dissenters is that they are unable to say what the right to trial by jury does guarantee if, as they assert, it does not guarantee-what it has been assumed to guarantee throughout our history-the right to have a jury determine those facts that determine the maximum sentence the law allows. They provide no coherent alternative.

Justice BREYER proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says. And the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... trial, by an impartial jury,” has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.

Justice THOMAS, with whom Justice SCALIA joins as to Parts I and II, concurring. . .

I

This case turns on the seemingly simple question of what constitutes a “crime.” Under the Federal Constitution, “the accused” has the right (1) “to be informed of the nature and cause of the accusation” (that is, the basis on which he is accused of a crime), (2) to be “held to answer for a capital, or otherwise infamous crime” only on an indictment or presentment of a grand jury, and (3) to be tried by “an impartial jury of the State and district wherein the crime shall have been committed.” . . . With the exception of the Grand Jury Clause, . . . the Court has held that these protections apply in state prosecutions, . . . Further, the Court has held that due process requires that the jury find beyond a reasonable doubt every fact necessary to constitute the crime. . . .

All of these constitutional protections turn on determining which facts constitute the “crime”-that is, which facts are the “elements” or “ingredients” of a crime. . . .

. . . This question became more complicated following the Court's decision in McMillan v. Pennsylvania, . . . which spawned a special sort of fact known as a sentencing enhancement. . . . Such a fact increases a defendant's punishment but is not subject to the constitutional protections to which elements are subject. Justice O'CONNOR's dissent, in agreement with McMillan and Almendarez-Torres v. United States, . . . takes the view that a legislature is free (within unspecified outer limits) to decree which facts are elements and which are sentencing enhancements. . . .

Sentencing enhancements may be new creatures, but the question that they create for courts is not. Courts have long had to consider which facts are elements in order to determine the sufficiency of an accusation (usually an indictment). The answer that courts have provided regarding the accusation tells us what an element is, and it is then a simple matter to apply that answer to whatever constitutional right may be at issue in a case-here, Winship and the right to trial by jury. A long line of essentially uniform authority addressing accusations, and stretching from the earliest reported cases after the founding until well into the 20th century, establishes that the original understanding of which facts are elements was even broader than the rule that the Court adopts today.

This authority establishes that a “crime” includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment). Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact-of whatever sort, including the fact of a prior conviction-the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact-such as a fine that is proportional to the value of stolen goods-that fact is also an element. No multifactor parsing of statutes, of the sort that we have attempted since McMillan, is necessary. One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact necessary for that entitlement is an element.

II

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Cases from the founding to roughly the end of the Civil War establish the rule that I have described, applying it to all sorts of facts, including recidivism.

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Without belaboring the point any further, I simply note that this traditional understanding-that a “crime” includes every fact that is by law a basis for imposing or increasing punishment-continued well into the 20th-century, at least until the middle of the century. . . . In fact, it is fair to say that McMillan began a revolution in the law regarding the definition of “crime.” Today's decision, far from being a sharp break with the past, marks nothing more than a return to the status quo ante-the status quo that reflected the original meaning of the Fifth and Sixth Amendments.

III

The consequence of the above discussion for our decisions in Almendarez-Torres and McMillan should be plain enough, but a few points merit special mention.

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[O]ne of the chief errors of Almendarez-Torres-an error to which I succumbed-was to attempt to discern whether a particular fact is traditionally (or typically) a basis for a sentencing court to increase an offender's sentence. . . For the reasons I have given, it should be clear that this approach just defines away the real issue. What matters is the way by which a fact enters into the sentence. If a fact is by law the basis for imposing or increasing punishment-for establishing or increasing the prosecution's entitlement-it is an element. (To put the point differently, I am aware of no historical basis for treating as a nonelement a fact that by law sets or increases punishment.) When one considers the question from this perspective, it is evident why the fact of a prior conviction is an element under a recidivism statute. Indeed, cases addressing such statutes provide some of the best discussions of what constitutes an element of a crime. One reason frequently offered for treating recidivism differently, a reason on which we relied in Almendarez-Torres, . . . is a concern for prejudicing the jury by informing it of the prior conviction. But this concern, of which earlier courts were well aware, does not make the traditional understanding of what an element is any less applicable to the fact of a prior conviction. . . .

. . . I think it clear that the common-law rule would cover the McMillan situation of a mandatory minimum sentence (in that case, for visible possession of a firearm during the commission of certain crimes). No doubt a defendant could, under such a scheme, find himself sentenced to the same term to which he could have been sentenced absent the mandatory minimum. . . . But it is equally true that his expected punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. . . . Thus, the fact triggering the mandatory minimum is part of “the punishment sought to be inflicted,” . . . it undoubtedly “enters into the punishment” so as to aggravate it, . . . and is an “ac[t] to which the law affixes ... punishment,” . . . Further, just as in Hobbs and Searcy, . . . it is likely that the change in the range available to the judge affects his choice of sentence. . . .

[. . .]

Justice O'CONNOR, with whom THE CHIEF JUSTICE, Justice KENNEDY, and Justice BREYER join, dissenting.

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I

Our Court has long recognized that not every fact that bears on a defendant's punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the “legislature's definition of the elements of the offense is usually dispositive.” . . . Although we have recognized that “there are obviously constitutional limits beyond which the States may not go in this regard,” . . . and that “in certain limited circumstances Winship's reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged,” . . . we have proceeded with caution before deciding that a certain fact must be treated as an offense element despite the legislature's choice not to characterize it as such. We have therefore declined to establish any bright-line rule for making such judgments and have instead approached each case individually, sifting through the considerations most relevant to determining whether the legislature has acted properly within its broad power to define crimes and their punishments or instead has sought to evade the constitutional requirements associated with the characterization of a fact as an offense element. . . .

In one bold stroke the Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of Congress and state legislatures to define criminal offenses and the sentences that follow from convictions thereunder. The Court states: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” . . . In its opinion, the Court marshals virtually no authority to support its extraordinary rule. Indeed, it is remarkable that the Court cannot identify a single instance, in the over 200 years since the ratification of the Bill of Rights, that our Court has applied, as a constitutional requirement, the rule it announces today.

According to the Court, its constitutional rule “emerges from our history and case law.” . . . None of the history contained in the Court's opinion requires the rule it ultimately adopts. . . .

Apparently, then, the historical practice on which the Court places so much reliance consists of only two quotations taken from an 1862 criminal procedure treatise. . . . A closer examination of the two statements reveals that neither supports the Court's “increase in the maximum penalty” rule. Both of the excerpts pertain to circumstances in which a common-law felony had also been made a separate statutory offense carrying a greater penalty. Taken together, the statements from the Archbold treatise demonstrate nothing more than the unremarkable proposition that a defendant could receive the greater statutory punishment only if the indictment expressly charged and the prosecutor proved the facts that made up the statutory offense, as opposed to simply those facts that made up the common-law offense. . . . In other words, for the defendant to receive the statutory punishment, the prosecutor had to charge in the indictment and prove at trial the elements of the statutory offense. To the extent there is any doubt about the precise meaning of the treatise excerpts, that doubt is dispelled by looking to the treatise sections from which the excerpts are drawn and the broader principle each section is meant to illustrate. . . . And, to the extent further clarification is needed, the authority cited by the Archbold treatise to support its stated proposition with respect to the requirements of an indictment demonstrates that the treatise excerpts mean only that the prosecutor must charge and then prove at trial the elements of the statutory offense. . . . No Member of this Court questions the proposition that a State must charge in the indictment and prove at trial beyond a reasonable doubt the actual elements of the offense. This case, however, concerns the distinct question of when a fact that bears on a defendant's punishment, but which the legislature has not classified as an element of the charged offense, must nevertheless be treated as an offense element. The excerpts drawn from the Archbold treatise do not speak to this question at all. . . .

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. . . [T]he Court asserts that its rule is supported by “our cases in this area.” . . . That the Court begins its review of our precedent with a quotation from a dissenting opinion speaks volumes about the support that actually can be drawn from our cases for the “increase in the maximum penalty” rule announced today. . . . The Court then cites our decision in Mullaney v. Wilbur. . . to demonstrate the “lesson” that due process and jury protections extend beyond those factual determinations that affect a defendant's guilt or innocence. . . . The Court explains Mullaney as having held that the due process proof- beyond-a-reasonable-doubt requirement applies to those factual determinations that, under a State's criminal law, make a difference in the degree of punishment the defendant receives. . . . The Court chooses to ignore, however, the decision we issued two years later, . . . which clearly rejected the Court's broad reading of Mullaney.

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Patterson is important because it plainly refutes the Court's expansive reading of Mullaney. Indeed, the defendant in Patterson characterized Mullaney exactly as the Court has today and we rejected that interpretation:

“Mullaney's holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt. In our view, the Mullaney holding should not be so broadly read.” . . .

[. . .]

The case law from which the Court claims that its rule emerges consists of only one other decision- McMillan v. Pennsylvania. The Court's reliance on McMillan is also puzzling, given that our holding in that case points to the rejection of the Court's rule. There, we considered a Pennsylvania statute that subjected a defendant to a mandatory minimum sentence of five years' imprisonment if a judge found, by a preponderance of the evidence, that the defendant had visibly possessed a firearm during the commission of the offense for which he had been convicted. . . The petitioners claimed that the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's jury trial guarantee (as incorporated by the Fourteenth Amendment) required the State to prove to the jury beyond a reasonable doubt that they had visibly possessed firearms. We rejected both constitutional claims. . . .

. . . Accordingly, it is incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action is appropriate under normal principles of stare decisis.

[. . .]

II

That the Court's rule is unsupported by the history and case law it cites is reason enough to reject such a substantial departure from our settled jurisprudence. Significantly, the Court also fails to explain adequately why the Due Process Clauses of the Fifth and Fourteenth Amendments and the jury trial guarantee of the Sixth Amendment require application of its rule. Upon closer examination, it is possible that the Court's “increase in the maximum penalty” rule rests on a meaningless formalism that accords, at best, marginal protection for the constitutional rights that it seeks to effectuate.

Any discussion of either the constitutional necessity or the likely effect of the Court's rule must begin, of course, with an understanding of what exactly that rule is. As was the case in Jones, however, that discussion is complicated here by the Court's failure to clarify the contours of the constitutional principle underlying its decision. . . . In fact, there appear to be several plausible interpretations of the constitutional principle on which the Court's decision rests.

For example, under one reading, the Court appears to hold that the Constitution requires that a fact be submitted to a jury and proved beyond a reasonable doubt only if that fact, as a formal matter, extends the range of punishment beyond the prescribed statutory maximum. . . . A State could, however, remove from the jury (and subject to a standard of proof below “beyond a reasonable doubt”) the assessment of those facts that define narrower ranges of punishment, within the overall statutory range, to which the defendant may be sentenced. . . . Thus, apparently New Jersey could cure its sentencing scheme, and achieve virtually the same results, by drafting its weapons possession statute in the following manner: First, New Jersey could prescribe, in the weapons possession statute itself, a range of 5 to 20 years' imprisonment for one who commits that criminal offense. Second, New Jersey could provide that only those defendants convicted under the statute who are found by a judge, by a preponderance of the evidence, to have acted with a purpose to intimidate an individual on the basis of race may receive a sentence greater than 10 years' imprisonment.

[. . .]

If either of the above readings is all that the Court's decision means, “the Court's principle amounts to nothing more than chastising [the New Jersey Legislature] for failing to use the approved phrasing in expressing its intent as to how [unlawful weapons possession] should be punished.” . . .

Given the pure formalism of the above readings of the Court's opinion, one suspects that the constitutional principle underlying its decision is more far reaching. The actual principle underlying the Court's decision may be that any fact (other than prior conviction) that has the effect, in real terms, of increasing the maximum punishment beyond an otherwise applicable range must be submitted to a jury and proved beyond a reasonable doubt. . . . The principle thus would apply not only to schemes like New Jersey's, under which a factual determination exposes the defendant to a sentence beyond the prescribed statutory maximum, but also to all determinate-sentencing schemes in which the length of a defendant's sentence within the statutory range turns on specific factual determinations (e.g., the federal Sentencing Guidelines). Justice THOMAS essentially concedes that the rule outlined in his concurring opinion would require the invalidation of the Sentencing Guidelines. . . .

I would reject any such principle.

[. . .]

The dissenting opinion of Justice BREYER, with whom THE CHIEF JUSTICE joins, is omitted.