No. 99-478. Argued March 28, 2000--Decided June 26, 2000
Petitioner Apprendi fired several shots into the home of an African-American family and made a statement--which he later retracted--that he did not want the family in his neighborhood because of their race. He was charged under New Jersey law with, inter alia, second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. The count did not refer to the State's hate crime statute, which provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of, inter alia, race. After Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence. The court found by a preponderance of the evidence that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count. In upholding the sentence, the appeals court rejected Apprendi's claim that the Due Process Clause requires that a bias finding be proved to a jury beyond a reasonable doubt. The State Supreme Court affirmed.
Held: The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. Pp. 7-31.
(a) The answer to the narrow constitutional question presented--whether Apprendi's sentence was permissible, given that it exceeds the 10-year maximum for the offense charged--was foreshadowed by the holding in Jones v. United States, 526 U. S. 227, that, with regard to federal law, the Fifth Amendment's Due Process Clause and the Sixth Amendment's notice and jury trial guarantees require that any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. The Fourteenth Amendment commands the same answer when a state statute is involved. Pp. 7-9.
(b) The Fourteenth Amendment right to due process and the Sixth Amendment right to trial by jury, taken together, entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. E.g., In re Winship, 397 U. S. 358, 364. The historical foundation for these principles extends down centuries into the common law. While judges in this country have long exercised discretion in sentencing, such discretion is bound by the range of sentencing options prescribed by the legislature. See, e.g., United States v. Tucker, 404 U. S. 443, 447. The historic inseparability of verdict and judgment and the consistent limitation on judges' discretion highlight the novelty of a scheme that removes the jury from the determination of a fact that exposes the defendant to a penalty exceeding the maximum he could receive if punished according to the facts reflected in the jury verdict alone. Pp. 9-18.
(c) McMillan v. Pennsylvania, 477 U. S. 79, was the first case in which the Court used "sentencing factor" to refer to a fact that was not found by the jury but could affect the sentence imposed by the judge. In finding that the scheme at issue there did not run afoul of Winship's strictures, this Court did not budge from the position that (1) constitutional limits exist to States' authority to define away facts necessary to constitute a criminal offense, id., at 85-88, and (2) a state scheme that keeps from the jury facts exposing defendants to greater or additional punishment may raise serious constitutional concerns, id., at 88. Almendarez-Torres v. United States, 523 U. S. 224--in which the Court upheld a federal law allowing a judge to impose an enhanced sentence based on prior convictions not alleged in the indictment--represents at best an exceptional departure from the historic practice. Pp. 19-24.
(d) In light of the constitutional rule expressed here, New Jersey's practice cannot stand. It allows a jury to convict a defendant of a second-degree offense on its finding beyond a reasonable doubt and then allows a judge to impose punishment identical to that New Jersey provides for first-degree crimes on his finding, by a preponderance of the evidence, that the defendant's purpose was to intimidate his victim based on the victim's particular characteristic. The State's argument that the biased purpose finding is not an "element" of a distinct hate crime offense but a "sentencing factor" of motive is nothing more than a disagreement with the rule applied in this case. Beyond this, the argument cannot succeed on its own terms. It does not matter how the required finding is labeled, but whether it exposes the defendant to a greater punishment than that authorized by the jury's verdict, as does the sentencing "enhancement" here. The degree of culpability the legislature associates with factually distinct conduct has significant implications both for a defendant's liberty and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment. That the State placed the enhancer within the criminal code's sentencing provisions does not mean that it is not an essential element of the offense. Pp. 25-31.
159 N. J. 7, 731 A. 2d 485, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Thomas, J., filed a concurring opinion, in which Scalia, J., joined as to Parts I and II. O'Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., joined.
[June 26, 2000]
A New Jersey statute classifies the possession of a firearm for an unlawful purpose as a "second-degree" offense. N. J. Stat. Ann. §2C:39-4(a) (West 1995). Such an offense is punishable by imprisonment for "between five years and 10 years." §2C:43-6(a)(2). A separate statute, described by that State's Supreme Court as a "hate crime" law, provides for an "extended term" of imprisonment if the trial judge finds, by a preponderance of the evidence, that "[t]he 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." N. J. Stat. Ann. §2C:44-3(e) (West Supp. 2000). The extended term authorized by the hate crime law for second-degree offenses is imprisonment for "between 10 and 20 years." §2C:43-7(a)(3).
The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.
At 2:04 a.m. on December 22, 1994, petitioner Charles C. Apprendi, Jr., fired several .22-caliber bullets into the home of an African-American family that had recently moved into a previously all-white neighborhood in Vineland, New Jersey. Apprendi was promptly arrested and, at 3:05 a.m., admitted that he was the shooter. After further questioning, at 6:04 a.m., he made a statement--which he later retracted--that even though he did not know the occupants of the house personally, "because they are black in color he does not want them in the neighborhood." 159 N. J. 7, 10, 731 A. 2d 485, 486 (1999).
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, N. J. Stat. Ann. §2C:39-4a (West 1995), and one count (22) of the third-degree offense of unlawful possession of an antipersonnel bomb, §2C:39-3a; the prosecutor dismissed the other 20 counts. Under state law, a second-degree offense carries a penalty range of 5 to 10 years, §2C:43-6(a)(2); a third-degree offense carries a penalty range of between 3 and 5 years, §2C:43-6(a)(3). As part of the plea agreement, however, the State reserved the right to request the court to impose a higher "enhanced" sentence on count 18 (which was based on the December 22 shooting) on the ground that that offense was committed with a biased purpose, as described in §2C:44-3(e). Apprendi, correspondingly, reserved the right to challenge the hate crime sentence enhancement on the ground that it violates the United States Constitution.
At the plea hearing, the trial judge heard sufficient evidence to establish Apprendi's guilt on counts 3, 18, and 22; the judge then confirmed that Apprendi understood the maximum sentences that could be imposed on those counts. Because the plea agreement provided that the sentence on the sole third-degree offense (count 22) would run concurrently with the other sentences, the potential sentences on the two second-degree counts were critical. If the judge found no basis for the biased purpose enhancement, the maximum consecutive sentences on those counts would amount to 20 years in aggregate; if, however, the judge enhanced the sentence on count 18, the maximum on that count alone would be 20 years and the maximum for the two counts in aggregate would be 30 years, with a 15-year period of parole ineligibility.
After the trial judge accepted the three guilty pleas, the prosecutor filed a formal motion for an extended term. The trial judge thereafter held an evidentiary hearing on the issue of Apprendi's "purpose" for the shooting on December 22. Apprendi adduced evidence from a psychologist and from seven character witnesses who testified that he did not have a reputation for racial bias. He also took the stand himself, explaining that the incident was an unintended consequence of overindulgence in alcohol, denying that he was in any way biased against African-Americans, and denying that his statement to the police had been accurately described. The judge, however, found the police officer's testimony credible, and concluded that the evidence supported a finding "that the crime was motivated by racial bias." App. to Pet. for Cert. 143a. Having found "by a preponderance of the evidence" that Apprendi's actions were taken "with a purpose to intimidate" as provided by the statute, id., at 138a, 139a, 144a, the trial judge held that the hate crime enhancement applied. Rejecting Apprendi's constitutional challenge to the statute, the judge sentenced him to a 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, In re Winship, 397 U. S. 358 (1970). Over dissent, the Appellate Division of the Superior Court of New Jersey upheld the enhanced sentence. 304 N. J. Super. 147, 698 A. 2d 1265 (1997). Relying on our decision in McMillan v. Pennsylvania, 477 U. S. 79 (1986), the appeals court found that the state legislature decided to make the hate crime enhancement a "sentencing factor," rather than an element of an underlying offense--and that decision was within the State's established power to define the elements of its crimes. The hate crime statute did not create a presumption of guilt, the court determined, and did not appear "tailored to permit the ... finding to be a tail which wags the dog of the substantive offense." 304 N. J. Super., at 154, 698 A. 2d, at 1269 (quoting McMillan, 477 U. S., at 88). Characterizing the required finding as one of "motive," the court described it as a traditional "sentencing factor," one not considered an "essential element" of any crime unless the legislature so provides. 304 N. J. Super., at 158, 698 A. 2d, at 1270. While recognizing that the hate crime law did expose defendants to "greater and additional punishment," id., at 156, 698 A. 2d, at 1269 (quoting McMillan, 477 U. S., at 88), the court held that that "one factor standing alone" was not sufficient to render the statute unconstitutional, Ibid.
A divided New Jersey Supreme Court affirmed. 159 N. J. 7, 731 A. 2d 485 (1999). The court began by explaining that while due process only requires the State to prove the "elements" of an offense beyond a reasonable doubt, the mere fact that a state legislature has placed a criminal component "within the sentencing provisions" of the criminal code "does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense." Id., at 20, 731 A. 2d, at 492. "Were that the case," the court continued, "the Legislature could just as easily allow judges, not juries, to determine if a kidnapping victim has been released unharmed." Ibid. (citing state precedent requiring such a finding to be submitted to a jury and proved beyond a reasonable doubt). Neither could the constitutional question be settled simply by defining the hate crime statute's "purpose to intimidate" as "motive" and thereby excluding the provision from any traditional conception of an "element" of a crime. Even if one could characterize the language this way--and the court doubted that such a characterization was accurate--proof of motive did not ordinarily "increase the penal consequences to an actor." Ibid. Such "[l]abels," the court concluded, would not yield an answer to Apprendi's constitutional question. Ibid.
While noting that we had just last year expressed serious doubt concerning the constitutionality of allowing penalty-enhancing findings to be determined by a judge by a preponderance of the evidence, Jones v. United States, 526 U. S. 227 (1999), the court concluded that those doubts were not essential to our holding. Turning then, as the appeals court had, to McMillan, as well as to Almendarez-Torres v. United States, 523 U. S. 224 (1998), the court undertook a multifactor inquiry and then held that the hate crime provision was valid. In the majority's view, the statute did not allow impermissible burden shifting, and did not "create a separate offense calling for a separate penalty." 159 N. J., at 24, 731 A. 2d, at 494. Rather, "the Legislature simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the weight to be given that factor." Ibid., 731 A. 2d, at 494-495. As had the appeals court, the majority recognized that the state statute was unlike that in McMillan inasmuch as it increased the maximum penalty to which a defendant could be subject. But it was not clear that this difference alone would "change the constitutional calculus," especially where, as here, "there is rarely any doubt whether the defendants committed the crimes with the purpose of intimidating the victim on the basis of race or ethnicity." 159 N. J., at 24-25, 731 A. 2d, at 495. Moreover, in light of concerns "idiosyncratic" to hate crime statutes drawn carefully to avoid "punishing thought itself," the enhancement served as an appropriate balance between those concerns and the State's compelling interest in vindicating the right "to be free of invidious discrimination." Id., at 25-26, 731 A. 2d, at 495.
The dissent rejected this conclusion, believing instead that the case turned on two critical characteristics: (1) "a defendant's mental state in committing the subject offense ... necessarily involves a finding so integral to the charged offense that it must be characterized as an element thereof"; and (2) "the significantly increased sentencing range triggered by ... the finding of a purpose to intimidate" means that the purpose "must be treated as a material element [that] must be found by a jury beyond a reasonable doubt." Id., at 30, 731 A. 2d, at 498. In the dissent's view, the facts increasing sentences in both Almendarez-Torres (recidivism) and Jones (serious bodily injury) were quite distinct from New Jersey's required finding of purpose here; the latter finding turns directly on the conduct of the defendant during the crime and defines a level of culpability necessary to form the hate crime offense. While acknowledging "analytical tensions" in this Court's post-Winship jurisprudence, the dissenters concluded that "there can be little doubt that the sentencing factor applied to this defendant--the purpose to intimidate a victim because of race--must fairly be regarded as an element of the crime requiring inclusion in the indictment and proof beyond a reasonable doubt." 159 N. J., at 51, 731 A. 2d, at 512.
We granted certiorari, 528 U. S. 1018 (1999), and now reverse.
It is appropriate to begin by explaining why certain aspects of the case are not relevant to the narrow issue that we must resolve. First, the State has argued that even without the trial judge's finding of racial bias, the judge could have imposed consecutive sentences on counts 3 and 18 that would have produced the 12-year term of imprisonment that Apprendi received; Apprendi's actual sentence was thus within the range authorized by statute for the three offenses to which he pleaded guilty. Brief for Respondent 4. The constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. The finding is legally significant because it increased--indeed, it doubled--the maximum range within which the judge could exercise his discretion, converting what otherwise was a maximum 10-year sentence on that count into a minimum sentence. The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts.
Second, although the constitutionality of basing an enhanced sentence on racial bias was argued in the New Jersey courts, that issue was not raised here.1 The substantive basis for New Jersey's enhancement is thus not at issue; the adequacy of New Jersey's procedure is. The strength of the state interests that are served by the hate crime legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.
Third, we reject the suggestion by the State Supreme Court that "there is rarely any doubt" concerning the existence of the biased purpose that will support an enhanced sentence, 159 N. J., at 25, 731 A. 2d, at 495. In this very case, that issue was the subject of the full evidentiary hearing we described. We assume that both the purpose of the offender, and even the known identity of the victim, will sometimes be hotly disputed, and that the outcome may well depend in some cases on the standard of proof and the identity of the factfinder.
Fourth, because there is no ambiguity in New Jersey's statutory scheme, this case does not raise any question concerning the State's power to manipulate the prosecutor's burden of proof by, for example, relying on a presumption rather than evidence to establish an element of an offense, cf. Mullaney v. Wilbur, 421 U. S. 684 (1975); Sandstrom v. Montana, 442 U. S. 510 (1979), or by placing the affirmative defense label on "at least some elements" of traditional crimes, Patterson v. New York, 432 U. S. 197, 210 (1977). The prosecutor did not invoke any presumption to buttress the evidence of racial bias and did not claim that Apprendi had the burden of disproving an improper motive. The question whether Apprendi had a constitutional right to have a jury find such bias on the basis of proof beyond a reasonable doubt is starkly presented.
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."2 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," Amdt. 14, 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," Amdt. 6.3 Taken together, these rights indisputably entitle a criminal defendant to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U. S. 506, 510 (1995); see also Sullivan v. Louisiana, 508 U. S. 275, 278 (1993); Winship, 397 U. S., at 364 ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged").
As we have, unanimously, explained, Gaudin, 515 U. S., at 510-511, the historical foundation for our recognition of these principles extends down centuries into the common law. "[T]o guard against a spirit of oppression and tyranny on the part of rulers," and "as the great bulwark of [our] civil and political liberties," 2 J. Story, Commentaries on the Constitution of the United States 540-541 (4th ed. 1873), trial by jury has been understood to require that "the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours ... ." 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) (hereinafter Blackstone) (emphasis added). See also Duncan v. Louisiana, 391 U. S. 145, 151-154 (1968).
Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt. "The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula "beyond a reasonable doubt" seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.' C. McCormick, Evidence § 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed. 1940)." Winship, 397 U. S., at 361. We went on to explain that the reliance on the "reasonable doubt" standard among common-law jurisdictions " `reflect[s] a profound judgment about the way in which law should be enforced and justice administered.' " Id., at 361-362 (quoting Duncan, 391 U. S., at 155).
Any possible distinction between an "element" of a felony offense and a "sentencing factor" was unknown to the practice of criminal indictment, trial by jury, and judgment by court4 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 defence accordingly ... and that there may be no doubt as to the judgment which should be given, if the defendant be convicted." J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) (emphasis added). The defendant's ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime. See 4 Blackstone 369-370 (after verdict, and barring a defect in the indictment, pardon or benefit of clergy, "the court must pronounce that judgment, which the law hath annexed to the crime" (emphasis added)).
Thus, with respect to the criminal law of felonious conduct, "the English trial judge of the later eighteenth century had very little explicit discretion in sentencing. The substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense. The judge was meant simply to impose that sentence (unless he thought in the circumstances that the sentence was so inappropriate that he should invoke the pardon process to commute it)." Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700-1900, pp. 36-37 (A. Schioppa ed. 1987).5 As Blackstone, among many others, has made clear,6 "[t]he judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law." 3 Blackstone 396 (emphasis deleted).7
This practice at common law held true when indictments were issued pursuant to statute. Just as the circumstances of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment, so too were the circumstances mandating a particular punishment. "Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170]." Archbold, Pleading and Evidence in Criminal Cases, at 51. If, then, "upon an indictment under the statute, the prosecutor prove the felony to have been committed, but fail in proving it to have been committed under the circumstances specified in the statute, the defendant shall be convicted of the common-law felony only." Id., at 188.8
We should be clear that nothing in this history suggests that it is impermissible for judges to exercise 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. See, e.g., Williams v. New York, 337 U. S. 241, 246 (1949) ("[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law" (emphasis added)). As in Williams, our periodic recognition of judges' broad discretion in sentencing--since the 19th-century shift in this country from statutes providing fixed-term sentences to those providing judges discretion within a permissible range, Note, The Admissibility of Character Evidence in Determining Sentence, 9 U. Chi. L. Rev. 715 (1942)--has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature. See, e.g., United States v. Tucker, 404 U. S. 443, 447 (1972) (agreeing that "[t]he Government is also on solid ground in asserting that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review" (emphasis added)); Williams, 337 U. S., at 246, 247 (explaining that, in contrast to the guilt stage of trial, the judge's task in sentencing is to determine, "within fixed statutory or constitutional limits[,] the type and extent of punishment after the issue of guilt" has been resolved).9
The historic link between verdict and judgment and the consistent limitation on judges' discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.10
We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers' fears "that the jury right could be lost not only by gross denial, but by erosion." Jones, 526 U. S., at 247-248.11 But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt. As we made clear in Winship, the "reasonable doubt" requirement "has a vital role in our criminal procedure for cogent reasons." 397 U. S., at 363. Prosecution subjects the criminal defendant both to "the possibility that he may lose his liberty upon conviction and ... the certainty that he would be stigmatized by the conviction." Ibid. We thus require this, among other, procedural protections in order to "provid[e] concrete substance for the presumption of innocence," and to reduce the risk of imposing such deprivations erroneously. Ibid. If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not--at the moment the State is put to proof of those circumstances--be deprived of protections that have, until that point, unquestionably attached.
Since Winship, we have made clear beyond peradventure that Winship's due process and associated jury protections extend, to some degree, "to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence." Almendarez-Torres, 523 U. S., at 251 (Scalia, J., dissenting). This was a primary lesson of Mullaney v. Wilbur, 421 U. S. 684 (1975), in which we invalidated a Maine statute that presumed that a defendant who acted with an intent to kill possessed the "malice aforethought" necessary to constitute the State's murder offense (and therefore, was subject to that crime's associated punishment of life imprisonment). The statute placed the burden on the defendant of proving, in rebutting the statutory presumption, that he acted with a lesser degree of culpability, such as in the heat of passion, to win a reduction in the offense from murder to manslaughter (and thus a reduction of the maximum punishment of 20 years).
The State had posited in Mullaney that requiring a defendant to prove heat-of-passion intent to overcome a 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. 421 U. S., at 697-698. Because the "consequences" of a guilty verdict for murder and for manslaughter differed substantially, we dismissed the possibility that a State could circumvent the protections of Winship merely by "redefin[ing] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment." 421 U. S., at 698.12
IV
It was in McMillan v. Pennsylvania, 477 U. S. 79 (1986), that this Court, for the first time, coined the term "sentencing factor" to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge. That case involved a challenge to the State's Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. §9712 (1982). According to its provisions, anyone convicted of certain felonies would be subject to a mandatory minimum penalty of five years imprisonment if the judge found, by a preponderance of the evidence, that the person "visibly possessed a firearm" in the course of committing one of the specified felonies. 477 U. S., at 81-82. Articulating for the first time, and then applying, a multifactor set of criteria for determining whether the Winship protections applied to bar such a system, we concluded that the Pennsylvania statute did not run afoul of our previous admonitions against relieving the State of its burden of proving guilt, or tailoring the mere form of a criminal statute solely to avoid Winship's strictures. 477 U. S., at 86-88.
We did not, however, there budge from the position that (1) constitutional limits exist to States' authority to define away facts necessary to constitute a criminal offense, id., at 85-88, and (2) that a state scheme that keeps from the jury facts that "expos[e] [defendants] to greater or additional punishment," id., at 88, may raise serious constitutional concern. As we explained:
"Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. . . . The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners' claim that visible possession under the Pennsylvania statute is `really' an element of the offenses for which they are being punished--that Pennsylvania has in effect defined a new set of upgraded felonies--would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U. S. C. §2113(d) (providing separate and greater punishment for bank robberies accomplished through `use of a dangerous weapon or device'), but it does not." Id., at 87-88.13
Finally, as we made plain in Jones last Term, Almendarez-Torres v. United States, 523 U. S. 224 (1998), represents at best an exceptional departure from the historic practice that we have described. In that case, we considered a federal grand jury indictment, which charged the petitioner with "having been `found in the United States ... after being deported,' " in violation of 8 U. S. C. §1326(a)--an offense carrying a maximum sentence of two years. 523 U. S., at 227. Almendarez-Torres pleaded guilty to the indictment, admitting at the plea hearing that he had been deported, that he had unlawfully reentered this country, and that "the earlier deportation had taken place `pursuant to' three earlier `convictions' for aggravated felonies." Ibid. The Government then filed a presentence report indicating that Almendarez-Torres' offense fell within the bounds of §1326(b) because, as specified in that provision, his original deportation had been subsequent to an aggravated felony conviction; accordingly, Almendarez-Torres could be subject to a sentence of up to 20 years. Almendarez-Torres objected, contending that because the indictment "had not mentioned his earlier aggravated felony convictions," he could be sentenced to no more than two years in prison. Ibid.
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, 526 U. S., at 248-249, our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was "the prior commission of a serious crime." 523 U. S., at 230; see also id., at 243 (explaining that "recidivism ... is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence"); id., at 244 (emphasizing "the fact that recidivism `does not relate to the commission of the offense ...' "); Jones, 526 U. S, at 249-250, n. 10 ("The majority and the dissenters in Almendarez-Torres disagreed over the legitimacy of the Court's decision to restrict its holding to recidivism, but both sides agreed that the Court had done just that"). Both the certainty that procedural safeguards attached to any "fact" of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that "fact" in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a "fact" increasing punishment beyond the maximum of the statutory range.14
Even though it is arguable that Almendarez-Torres was incorrectly decided,15 and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.
In sum, our reexamination of our cases in this
area, and of the history upon which they rely, confirms the opinion that we
expressed in Jones. Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt. With that
exception, we endorse the statement of the rule set forth in the concurring
opinions in that case: "[I]t is unconstitutional for a legislature to
remove from the jury the assessment of facts that increase the prescribed range
of penalties to which a criminal defendant is exposed. It
is equally clear that such facts must be established by proof beyond a
reasonable doubt." 526
U. S., at 252-253 (opinion of Stevens, J.); see also id., at
253 (opinion of Scalia, J.).16
The New Jersey statutory scheme that Apprendi asks us to invalidate allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree, N. J. Stat. Ann. §2C:43-6(a)(1) (West 1999), based upon the judge's finding, by a preponderance of the evidence, that the defendant's "purpose" for unlawfully possessing the weapon was "to intimidate" his victim on the basis of a particular characteristic the victim possessed. In light of the constitutional rule explained above, and all of the cases supporting it, this practice cannot stand.
New Jersey's defense of its hate crime enhancement statute has three primary components: (1) the required finding of biased purpose is not an "element" of a distinct hate crime offense, but rather the traditional "sentencing factor" of motive; (2) McMillan holds that the legislature can authorize a judge to find a traditional sentencing factor on the basis of a preponderance of the evidence; and (3) Almendarez-Torres extended McMillan's holding to encompass factors that authorize a judge to impose a sentence beyond the maximum provided by the substantive statute under which a defendant is charged. None of these persuades us that the constitutional rule that emerges from our history and case law should incorporate an exception for this New Jersey statute.
New Jersey's first point is nothing more than a disagreement with the rule we apply today. Beyond this, we do not see how the argument can succeed on its own terms. The state high court evinced substantial skepticism at the suggestion that the hate crime statute's "purpose to intimidate" was simply an inquiry into "motive." We share that skepticism. The text of the statute requires the factfinder to determine whether the defendant possessed, at the time he committed the subject act, a "purpose to intimidate" on account of, inter alia, race. By its very terms, this statute mandates an examination of the defendant's state of mind--a concept known well to the criminal law as the defendant's mens rea.17 It makes no difference in identifying the nature of this finding that Apprendi was also required, in order to receive the sentence he did for weapons possession, to have possessed the weapon with a "purpose to use [the weapon] unlawfully against the person or property of another," §2C:39-4(a). A second mens rea requirement hardly defeats the reality that the enhancement statute imposes of its own force an intent requirement necessary for the imposition of sentence. On the contrary, the fact that the language and structure of the "purpose to use" criminal offense is identical in relevant respects to the language and structure of the "purpose to intimidate" provision demonstrates to us that it is precisely a particular criminal mens rea that the hate crime enhancement statute seeks to target. The defendant's intent in committing a crime is perhaps as close as one might hope to come to a core criminal offense "element."18
The foregoing notwithstanding, however, the New Jersey Supreme Court correctly recognized that it does not matter whether the required finding is characterized as one of intent or of motive, because "[l]abels do not afford an acceptable answer." 159 N. J., at 20, 731 A. 2d, at 492. That point applies as well to the constitutionally novel and elusive distinction between "elements" and "sentencing factors." McMillan, 477 U. S., at 86 (noting that the sentencing factor--visible possession of a firearm--"might well have been included as an element of the enumerated offenses"). Despite what appears to us the clear "elemental" nature of the factor here, the relevant inquiry is one not of form, but of effect--does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?19
As the New Jersey Supreme Court itself
understood in rejecting the argument that the required "motive"
finding was simply a "traditional" sentencing factor, proof of motive
did not ordinarily "increase the penal consequences to an actor." 159
N. J., at 20, 731 A. 2d, at 492. Indeed, the effect of New Jersey's
sentencing "enhancement" here is unquestionably to turn a
second-degree offense into a first- degree offense, under the State's own
criminal code. The law thus runs directly into our warning in Mullaney
that Winship is concerned as much with the category of substantive
offense as "with the degree of criminal culpability" assessed. 421
U. S., 698. This concern flows not only from the historical pedigree of the
jury and burden rights, but also from the powerful interests those rights serve.
The degree of criminal culpability the legislature chooses to associate with
particular, factually distinct conduct has significant implications both for a
defendant's very liberty, and for the heightened stigma associated with an of-
fense the legislature has selected as worthy of greater
punishment.
The preceding discussion should make clear why the State's reliance on McMillan is likewise misplaced. The differential in sentence between what Apprendi would have received without the finding of biased purpose and what he could receive with it is not, it is true, as extreme as the difference between a small fine and mandatory life imprisonment. Mullaney, 421 U. S., at 700. But it can hardly be said that the potential doubling of one's sentence--from 10 years to 20--has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judge's finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as "a tail which wags the dog of the substantive offense." McMillan, 477 U. S., at 88.
New Jersey would also point to the fact that
the State did not, in placing the required biased purpose finding in a
sentencing enhancement provision, create a "separate offense calling for a
separate penalty." Ibid. As for this, we agree wholeheartedly with
the New Jersey Supreme Court that merely because the state legislature placed
its hate crime sentence "enhancer" "within the sentencing
provisions" of the criminal code "does not mean that the finding of a
biased purpose to intimidate is not an essential element of the offense."
159 N. J., at 20, 731 A. 2d, at 492. Indeed, the fact that New Jersey,
along with numerous other States, has also made precisely the same
conduct the subject of an independent substantive of-
fense makes it clear that the mere presence of this "enhancement" in a
sentencing statute does not define its character.20
New Jersey's reliance on Almendarez-Torres is also unavailing. The reasons supporting an exception from the general rule for the statute construed in that case do not apply to the New Jersey statute. Whereas recidivism "does not relate to the commission of the offense" itself, 523 U. S., at 230, 244, New Jersey's biased purpose inquiry goes precisely to what happened in the "commission of the offense." Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Walton v. Arizona, 497 U. S. 639, 647-649 (1990); id., at 709-714 (Stevens, J., dissenting). For reasons we have explained, the capital cases are not controlling:
"Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. What the cited cases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed ... . The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge." Almendarez-Torres, 523 U. S., at 257, n. 2 (Scalia, J., dissenting) (emphasis deleted).
See also Jones, 526 U. S., at 250-251; post, at 25-26 (Thomas, J., concurring).21
The New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system. Accordingly, the judgment of the Supreme Court of New Jersey is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
[June 26, 2000]
I feel the need to say a few words in response to Justice Breyer's dissent. It sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State--and an increasingly bureaucratic part of it, at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.
As for fairness, which Justice Breyer believes "[i]n modern times," post, at 1, 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.
[June 26, 2000]
I join the opinion of the Court in full. I write separately to explain my view that the Constitution requires a broader rule than the Court adopts.
I
This case turns on the seemingly simple question of what constitutes a "crime." Under the Federal Constitution, "the accused" has the right (1) "to be informed of the nature and cause of the accusation" (that is, the basis on which he is accused of a crime), (2) to be "held to answer for a capital, or otherwise infamous crime" only on an indictment or presentment of a grand jury, and (3) to be tried by "an impartial jury of the State and district wherein the crime shall have been committed." Amdts. 5 and 6. See also Art. III, §2, cl. 3 ("The Trial of all Crimes ... shall be by Jury"). With the exception of the Grand Jury Clause, see Hurtado v. California, 110 U. S. 516, 538 (1884), the Court has held that these protections apply in state prosecutions, Herring v. New York, 422 U. S. 853, 857, and n. 7 (1975). Further, the Court has held that due process requires that the jury find beyond a reasonable doubt every fact necessary to constitute the crime. In re Winship, 397 U. S. 358, 364 (1970).
All of these constitutional protections turn on determining which facts constitute the "crime"--that is, which facts are the "elements" or "ingredients" of a crime. In order for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime; likewise, in order for a jury trial of a crime to be proper, all elements of the crime must be proved to the jury (and, under Winship, proved beyond a reasonable doubt). See J. Story, Commentaries on the Constitution §§928-929, pp. 660-662, §934, p. 664 (1833); J. Archbold, Pleading and Evidence in Criminal Cases *41, *99-*100 (5th Am. ed. 1846) (hereinafter Archbold).1
Thus, it is critical to know which facts are elements. This question became more complicated following the Court's decision in McMillan v. Pennsylvania, 477 U. S. 79 (1986), which spawned a special sort of fact known as a sentencing enhancement. See ante, at 11, 19, 28. Such a fact increases a defendant's punishment but is not subject to the constitutional protections to which elements are subject. Justice O'Connor's dissent, in agreement with McMillan and Almendarez-Torres v. United States, 523 U. S. 224 (1998), takes the view that a legislature is free (within unspecified outer limits) to decree which facts are elements and which are sentencing enhancements. Post, at 2.
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 multi-factor 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
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. As legislatures varied common-law crimes and created new crimes, American courts, particularly from the 1840's on, readily applied to these new laws the common-law understanding that a fact that is by law the basis for imposing or increasing punishment is an element.2
Massachusetts, which produced the leading cases in the antebellum years, applied this rule as early as 1804, in Commonwealth v. Smith, 1 Mass. *245, and foreshadowed the fuller discussion that was to come. Smith was indicted for and found guilty of larceny, but the indictment failed to allege the value of all of the stolen goods. Massachusetts had abolished the common-law distinction between grand and simple larceny, replacing it with a single offense of larceny whose punishment (triple damages) was based on the value of the stolen goods. The prosecutor relied on this abolition of the traditional distinction to justify the indictment's omissions. The court, however, held that it could not sentence the defendant for the stolen goods whose value was not set out in the indictment. Id., at *246-*247.
The understanding implicit in Smith was explained in Hope v. Commonwealth, 50 Mass. 134 (1845). Hope was indicted for and convicted of larceny. The larceny statute at issue retained the single-offense structure of the statute addressed in Smith, and established two levels of sentencing based on whether the value of the stolen property exceeded $100. The statute was structured similarly to the statutes that we addressed in Jones v. United States, 526 U. S. 227, 230 (1999), and, even more, Castillo v. United States, ante, at __ (slip op., at 2), in that it first set out the core crime and then, in subsequent clauses, set out the ranges of punishments.3 Further, the statute opened by referring simply to "the offence of larceny," suggesting, at least from the perspective of our post-McMillan cases, that larceny was the crime whereas the value of the stolen property was merely a fact for sentencing. But the matter was quite simple for the Massachusetts high court. Value was an element because punishment varied with value:
"Our statutes, it will be remembered, prescribe the punishment for larceny, with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long established practice, the court are of opinion that the value of the property alleged to be stolen must be set forth in the indictment." 50 Mass., at 137.
Two years after Hope, the court elaborated on this rule in a case involving burglary, stating that if "certain acts are, by force of the statutes, made punishable with greater severity, when accompanied with aggravating circumstances," then the statute has "creat[ed] two grades of crime." Larned v. Commonwealth, 53 Mass. 240, 242 (1847). See also id., at 241 ("[T]here is a gradation of offences of the same species" where the statute sets out "various degrees of punishment").
Conversely, where a fact was not the basis for punishment, that fact was, for that reason, not an element. Thus, in Commonwealth v. McDonald, 59 Mass. 365 (1850), which involved an indictment for attempted larceny from the person, the court saw no error in the failure of the indictment to allege any value of the goods that the defendant had attempted to steal. The defendant, in challenging the indictment, apparently relied on Smith and Hope, and the court rejected his challenge by explaining that "[a]s the punishment ... does not depend on the amount stolen, there was no occasion for any allegation as to value in this indictment." 59 Mass., at 367. See Commonwealth v. Burke, 94 Mass. 182, 183 (1866) (applying same reasoning to completed larceny from the person; finding no trial error where value was not proved to jury).
Similar reasoning was employed by the Wisconsin Supreme Court in Lacy v. State, 15 Wis. *13 (1862), in interpreting a statute that was also similar to the statutes at issue in Jones and Castillo. The statute, in a single paragraph, outlawed arson of a dwelling house at night. Arson that killed someone was punishable by life in prison; arson that did not kill anyone was punishable by 7 to 14 years in prison; arson of a house in which no person was lawfully dwelling was punishable by 3 to 10 years.4 The court had no trouble concluding that the statute "creates three distinct statutory offenses," 15 Wis., at *15, and that the lawful presence of a person in the dwelling was an element of the middle offense. The court reasoned from the gradations of punishment: "That the legislature considered the circumstance that a person was lawfully in the dwelling house when fire was set to it most material and important, and as greatly aggravating the crime, is clear from the severity of the punishment imposed." Id., at *16. The "aggravating circumstances" created "the higher statutory offense[s]." Id., at *17. Because the indictment did not allege that anyone had been present in the dwelling, the court reversed the defendant's 14-year sentence, but, relying on Larned, supra, the court remanded to permit sentencing under the lowest grade of the crime (which was properly alleged in the indictment). 15 Wis., at *17.
Numerous other state and federal courts in this period took the same approach to determining which facts are elements of a crime. See Ritchey v. State, 7 Blackf. 168, 169 (Ind. 1844) (citing Commonwealth v. Smith, 1 Mass. *245 (1804), and holding that indictment for arson must allege value of property destroyed, because statute set punishment based on value); Spencer v. State, 13 Ohio 401, 406, 408 (1844) (holding that value of goods intended to be stolen is not "an ingredient of the crime" of burglary with intent to steal, because punishment under statute did not depend on value; contrasting larceny, in which "[v]alue must be laid, and value proved, that the jury may find it, and the court, by that means, know whether it is grand or petit, and apply the grade of punishment the statute awards"); United States v. Fisher, 25 F. Cas. 1086 (CC Ohio 1849) (McLean, J.) ("A carrier of the mail is subject to a higher penalty where he steals a letter out of the mail, which contains an article of value. And when this offense is committed, the indictment must allege the letter contained an article of value, which aggravates the offense and incurs a higher penalty"); Brightwell v. State, 41 Ga. 482, 483 (1871) ("When the law prescribes a different punishment for different phases of the same crime, there is good reason for requiring the indictment to specify which of the phases the prisoner is charged with. The record ought to show that the defendant is convicted of the offense for which he is sentenced"). Cf. State v. Farr, 12 Rich. 24, 29 (S. C. App. 1859) (where two statutes barred purchasing corn from a slave, and one referred to purchasing from slave who lacked a permit, absence of permit was not an element, because both statutes had the same punishment).
Also demonstrating the common-law approach to determining elements was the well-established rule that, if a statute increased the punishment of a common-law crime, whether felony or misdemeanor, based on some fact, then that fact must be charged in the indictment in order for the court to impose the increased punishment. Archbold *106; see id., at *50; ante, at 13-14. There was no question of treating the statutory aggravating fact as merely a sentencing enhancement--as a nonelement enhancing the sentence of the common-law crime. The aggravating fact was an element of a new, aggravated grade of the common-law crime simply because it increased the punishment of the common-law crime. And the common-law crime was, in relation to the statutory one, essentially just like any other lesser included offense. See Archbold *106.
Further evidence of the rule that a crime includes every fact that is by law a basis for imposing or increasing punishment comes from early cases addressing recidivism statutes. As Justice Scalia has explained, there was a tradition of treating recidivism as an element. See Almendarez-Torres, 523 U. S., at 256-257, 261 (dissenting opinion). That tradition stretches back to the earliest years of the Republic. See, e.g., Commonwealth v. Welsh, 4 Va. 57 (1817); Smith v. Commonwealth, 14 Serg. & Rawle 69 (Pa. 1826); see also Archbold *695-*696. For my purposes, however, what is noteworthy is not so much the fact of that tradition as the reason for it: Courts treated the fact of a prior conviction just as any other fact that increased the punishment by law. By the same reasoning that the courts employed in Hope, Lacy, and the other cases discussed above, the fact of a prior conviction was an element, together with the facts constituting the core crime of which the defendant was charged, of a new, aggravated crime.
The two leading antebellum cases on whether recidivism is an element were Plumbly v. Commonwealth, 43 Mass. 413 (1841), and Tuttle v. Commonwealth, 68 Mass. 505 (1854). In the latter, the court explained the reason for treating as an element the fact of the prior conviction:
"When the statute imposes a higher penalty upon a second and third conviction, respectively, it makes the prior conviction of a similar offence a part of the description and character of the offence intended to be punished; and therefore the fact of such prior conviction must be charged, as well as proved. It is essential to an indictment, that the facts constituting the offence intended to be punished should be averred." Id., at 506.
The court rested this rule on the common law and the Massachusetts equivalent of the Sixth Amendment's Notice Clause. Ibid. See also Commonwealth v. Haynes, 107 Mass. 194, 198 (1871) (reversing sentence, upon confession of error by attorney general, in case similar to Tuttle).
Numerous other cases treating the fact of a prior conviction as an element of a crime take the same view. They make clear, by both their holdings and their language, that when a statute increases punishment for some core crime based on the fact of a prior conviction, the core crime and the fact of the prior crime together create a new, aggravated crime. Kilbourn v. State, 9 Conn. 560, 563 (1833) ("No person ought to be, or can be, subjected to a cumulative penalty, without being charged with a cumulative offence"); Plumbly, supra, at 414 (conviction under recidivism statute is "one conviction, upon one aggregate offence"); Hines v. State, 26 Ga. 614, 616 (1859) (reversing enhanced sentence imposed by trial judge and explaining, "[T]he question, whether the offence was a second one, or not, was a question for the jury... . The allegation [of a prior offence] is certainly one of the first importance to the accused, for if it is true, he becomes subject to a greatly increased punishment"). See also Commonwealth v. Phillips, 28 Mass. 28, 33 (1831) ("[U]pon a third conviction, the court may sentence the convict to hard labor for life. The punishment is to be awarded upon that conviction, and for the offence of which he is then and there convicted").
Even the exception to this practice of including the fact of a prior conviction in the indictment and trying it to the jury helps to prove the rule that that fact is an element because it increases the punishment by law. In State v. Freeman, 27 Vt. 523 (1855), the Vermont Supreme Court upheld a statute providing that, in an indictment or complaint for violation of a liquor law, it was not necessary to allege a prior conviction of that law in order to secure an increased sentence. But the court did not hold that the prior conviction was not an element; instead, it held that the liquor law created only minor offenses that did not qualify as crimes. Thus, the state constitutional protections that would attach were a "crime" at issue did not apply. Id., at 527; see Goeller v. State, 119 Md. 61, 66-67, 85 A. 954, 956 (1912) (discussing Freeman). At the same time, the court freely acknowledged that it had "no doubt" of the general rule, particularly as articulated in Massachusetts, that "it is necessary to allege the former conviction, in the indictment, when a higher sentence is claimed on that account." Freeman, supra, at 526. Unsurprisingly, then, a leading treatise explained Freeman as only "apparently" contrary to the general rule and as involving a "special statute." 3 F. Wharton, Criminal Law §3417, p. 307, n. r (7th rev. ed. 1874) (hereinafter Wharton). In addition, less than a decade after Freeman, the same Vermont court held that if a defendant charged with a successive violation of the liquor laws contested identity--that is, whether the person in the record of the prior conviction was the same as the defendant--he should be permitted to have a jury resolve the question. State v. Haynes, 35 Vt. 570, 572-573 (1863). (Freeman itself had anticipated this holding by suggesting the use of a jury to resolve disputes over identity. See 27 Vt., at 528.) In so holding, Haynes all but applied the general rule, since a determination of identity was usually the chief factual issue whenever recidivism was charged. See Archbold *695-*696; see also, e.g., Graham v. West Virginia, 224 U. S. 616, 620-621 (1912) (defendant had been convicted under three different names).5
An 1872 treatise by one of the leading authorities of the era in criminal law and procedure confirms the common-law understanding that the above cases demonstrate. The treatise condensed the traditional understanding regarding the indictment, and thus regarding the elements of a crime, to the following: "The indictment must allege whatever is in law essential to the punishment sought to be inflicted." 1 J. Bishop, Law of Criminal Procedure 50 (2d ed. 1872) (hereinafter Bishop, Criminal Procedure). See id., §81, at 51 ("[T]he indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted"); id., §540, at 330 ("[T]he indictment must ... contain an averment of every particular thing which enters into the punishment"). Crimes, he explained, consist of those "acts to which the law affixes ... punishment," id., §80, at 51, or, stated differently, a crime consists of the whole of "the wrong upon which the punishment is based," id., §84, at 53. In a later edition, Bishop similarly defined the elements of a crime as "that wrongful aggregation out of which the punishment proceeds." 1 J. Bishop, New Criminal Procedure §84, p. 49 (4th ed. 1895).
Bishop grounded his definition in both a generalization from well-established common-law practice, 1 Bishop, Criminal Procedure §§81-84, at 51-53, and in the provisions of Federal and State Constitutions guaranteeing notice of an accusation in all criminal cases, indictment by a grand jury for serious crimes, and trial by jury. With regard to the common law, he explained that his rule was "not made apparent to our understandings by a single case only, but by all the cases," id., §81, at 51, and was followed "in all cases, without one exception," id., §84, at 53. To illustrate, he observed that there are
"various statutes whereby, when ... assault is committed with a particular intent, or with a particular weapon, or the like, it is subjected to a particular corresponding punishment, heavier than that for common assault, or differing from it, pointed out by the statute. And the reader will notice that, in all cases where the peculiar or aggravated punishment is to be inflicted, the peculiar or aggravating matter is required to be set out in the indictment." Id., §82, at 52.
He also found burglary statutes illustrative in the same way. Id., §83, at 52-53. Bishop made no exception for the fact of a prior conviction--he simply treated it just as any other aggravating fact: "[If] it is sought to make the sentence heavier by reason of its being [a second or third offence], the fact thus relied on must be averred in the indictment; because the rules of criminal procedure require the indictment, in all cases, to contain an averment of every fact essential to the punishment sought to be inflicted." 1 J. Bishop, Commentaries on Criminal Law §961, pp. 564-565 (5th ed. 1872).
The constitutional provisions provided further support, in his view, because of the requirements for a proper accusation at common law and because of the common-law understanding that a proper jury trial required a proper accusation: "The idea of a jury trial, as it has always been known where the common law prevails, includes the allegation, as part of the machinery of the trial... . [A]n accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason." 1 Bishop, Criminal Procedure §87, at 55. See id., §88, at 56 (notice and indictment requirements ensure that before "persons held for crimes ... shall be convicted, there shall be an allegation made against them of every element of crime which the law makes essential to the punishment to be inflicted").
Numerous high courts contemporaneously and explicitly agreed that Bishop had accurately captured the common-law understanding of what facts are elements of a crime. See, e.g., Hobbs v. State, 44 Tex. 353, 354 (1875) (favorably quoting 1 Bishop, Criminal Procedure §81); Maguire v. State, 47 Md. 485, 497 (1878) (approvingly citing different Bishop treatise for the same rule); Larney v. Cleveland, 34 Ohio St. 599, 600 (1878) (rule and reason for rule "are well stated by Mr. Bishop"); State v. Hayward, 83 Mo. 299, 307 (1884) (extensively quoting §81 of Bishop's "admirable treatise"); Riggs v. State, 104 Ind. 261, 262, 3 N. E. 886, 887 (1885) ("We agree with Mr. Bishop that the nature and cause of the accusation are not stated where there is no mention of the full act or series of acts for which the punishment is to be inflicted" (internal quotation marks omitted)); State v. Perley, 86 Me. 427, 431, 30 A. 74, 75 (1894) ("The doctrine of the court, says Mr. Bishop, is identical with that of reason, viz: that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted" (internal quotation marks omitted)); see also United States v. Reese, 92 U. S. 214, 232-233 (1876) (Clifford, J., concurring in judgment) (citing and paraphrasing 1 Bishop, Criminal Procedure §81).
C
In the half century following publication of Bishop's treatise, numerous courts applied his statement of the common-law understanding; most of them explicitly relied on his treatise. Just as in the earlier period, every fact that was by law a basis for imposing or increasing punishment (including the fact of a prior conviction) was an element. Each such fact had to be included in the accusation of the crime and proved to the jury.
Courts confronted statutes quite similar to the ones with which we have struggled since McMillan, and, applying the traditional rule, they found it not at all difficult to determine whether a fact was an element. In Hobbs, supra, the defendant was indicted for a form of burglary punishable by 2 to 5 years in prison. A separate statutory section provided for an increased sentence, up to double the punishment to which the defendant would otherwise be subject, if the entry into the house was effected by force exceeding that incidental to burglary. The trial court instructed the jury to sentence the defendant to 2 to 10 years if it found the requisite level of force, and the jury sentenced him to 3. The Texas Supreme Court, relying on Bishop, reversed because the indictment had not alleged such force; even though the jury had sentenced Hobbs within the range (2 to 5 years) that was permissible under the lesser crime that the indictment had charged, the court thought it "impossible to say ... that the erroneous charge of the court may not have had some weight in leading the jury" to impose the sentence that it did. 44 Tex., at 355.6 See also Searcy v. State, 1 Tex. App. 440, 444 (1876) (similar); Garcia v. State, 19 Tex. App. 389, 393 (1885) (not citing Hobbs, but relying on Bishop to reverse 10-year sentence for assault with a bowie-knife or dagger, where statute doubled range for assault from 2 to 7 to 4 to 14 years if the assault was committed with either weapon but where indictment had not so alleged).
As in earlier cases, such as McDonald (discussed supra, at 5-6), courts also used the converse of the Bishop rule to explain when a fact was not an element of the crime. In Perley, supra, the defendant was indicted for and convicted of robbery, which was punishable by imprisonment for life or any term of years. The court, relying on Bishop, Hope, McDonald, and other authority, rejected his argument that Maine's Notice Clause (which of course required all elements to be alleged) required the indictment to allege the value of the goods stolen, because the punishment did not turn on value: "[T]here is no provision of this statute which makes the amount of property taken an essential element of the offense; and there is no statute in this State which creates degrees in robbery, or in any way makes the punishment of the offense dependent upon the value of the property taken." 86 Me., at 432, 30 A., at 75. The court further explained that "where the value is not essential to the punishment it need not be distinctly alleged or proved." Id., at 433, 30 A., at 76.
Reasoning similar to Perley and the Texas cases is evident in other cases as well. See Jones v. State, 63 Ga. 141, 143 (1879) (where punishment for burglary in the day is 3 to 5 years in prison and for burglary at night is 5 to 20, time of burglary is a "constituent of the offense"; indictment should "charge all that is requisite to render plain and certain every constituent of the offense"); United States v. Woodruff, 68 F. 536, 538 (Kan. 1895) (where embezzlement statute "contemplates that there should be an ascertainment of the exact sum for which a fine may be imposed" and jury did not determine amount, judge lacked authority to impose fine; "[o]n such an issue the defendant is entitled to his constitutional right of trial by jury").
Courts also, again just as in the pre-Bishop period, applied the same reasoning to the fact of a prior conviction as they did to any other fact that aggravated the punishment by law. Many, though far from all, of these courts relied on Bishop. In 1878, Maryland's high court, in Maguire v. State, 47 Md. 485, stated the rule and the reason for it in language indistinguishable from that of Tuttle a quarter century before:
"The law would seem to be well settled, that if the party be proceeded against for a second or third offence under the statute, and the sentence prescribed be different from the first, or severer, by reason of its being such second or third offence, the fact thus relied on must be averred in the indictment; for the settled rule is, that the indictment must contain an averment of every fact essential to justify the punishment inflicted." Maguire, supra, at 496 (citing English cases, Plumbly v. Commonwealth, 43 Mass. 413 (1841), Wharton, and Bishop).
In Goeller v. State, 119 Md. 61, 85 A. 954 (1912), the same
court reaffirmed Maguire and voided, as contrary to Maryland's Notice
Clause, a statute that permitted the trial judge to determine the fact of a
prior conviction. The court extensively quoted Bishop, who had, in the court's
view, treated the subject "more fully, perhaps, than any other legal
writer," and it cited, among other authorities, "a line of
Massachusetts decisions" and Riggs (quoted supra, at 14).
119 Md., at 66, 85 A., at 955. In Larney, 34 Ohio St., at 600-601, the
Supreme Court of Ohio, in an opinion citing only Bishop, reversed a conviction
under a recidivism statute where the indictment had not alleged any prior
conviction. (The defendant had also relied on Plumbly, supra,
and Kilbourn v. State, 9 Conn. 560 (1833). 34 Ohio St., at
600.) And in State v. Adams, 64 N. H. 440, 13 A. 785
(1888), the court, relying on Bishop, explained that "[t]he former
conviction being a part of the description and character of the offense intended
to be punished, because of the higher penalty imposed, it must be alleged."
Id., at 442, 13 A., at 786. The defendant had been "charged with
an offense aggravated by its repetitious character." Ibid. See
also Evans v. State, 150 Ind.
651, 653, 50 N. E. 820 (1898) (similar); Shiflett v. Commonwealth,
114 Va. 876, 877, 77 S. E. 606, 607 (1913) (similar).
Even without any reliance on Bishop, other courts addressing recidivism statutes employed the same reasoning as did he and the above cases--that a crime includes any fact to which punishment attaches. One of the leading cases was Wood v. People, 53 N. Y. 511 (1873). The statute in Wood provided for increased punishment if the defendant had previously been convicted of a felony then discharged from the conviction. The court, repeatedly referring to "the aggravated offence," id., at 513, 515, held that the facts of the prior conviction and of the discharge must be proved to the jury, for "[b]oth enter into and make a part of the offence... . subjecting the prisoner to the increased punishment." Id., at 513; see ibid. (fact of prior conviction was an "essential ingredient" of the offense). See also Johnson v. People, 55 N. Y. 512, 514 (1874) ("A more severe penalty is denounced by the statute for a second offence; and all the facts to bring the case within the statute must be [alleged in the indictment and] established on the trial"); People v. Sickles, 156 N. Y. 541, 544-545, 51 N. E. 288, 289 (1898) (reaffirming Wood and Johnson and explaining that "the charge is not merely that the prisoner has committed the offense specifically described, but that, as a former convict, his second offense has subjected him to an enhanced penalty").
Contemporaneously with the New York Court of Appeals in Wood and Johnson, state high courts in California and Pennsylvania offered similar explanations for why the fact of a prior conviction is an element. In People v. Delany, 49 Cal. 394 (1874), which involved a statute making petit larceny (normally a misdemeanor) a felony if committed following a prior conviction for petit larceny, the court left no doubt that the fact of the prior conviction was an element of an aggravated crime consisting of petit larceny committed following a prior conviction for petit larceny:
"The particular circumstances of the offense are stated [in the indictment], and consist of the prior convictions and of the facts constituting the last
larceny.
. . . . .
"[T]he former convictions are made to adhere to and constitute a portion of the aggravated offense." Id., at 395.
"The felony consists both of the former convictions and of the particular larceny... . [T]he former convictions were a separate fact; which, taken in connection with the facts constituting the last offense, make a distinct and greater offense than that charged, exclusive of the prior convictions." Id., at 396.7
See also People v. Coleman, 145 Cal. 609, 610-611, 79 P. 283, 284-285 (1904).
Similarly, in Rauch v. Commonwealth, 78 Pa. 490 (1876), the court applied its 1826 decision in Smith v. Commonwealth, 14 Serg. & Rawle 69, and reversed the trial court's imposition of an enhanced sentence "upon its own knowledge of its records." 78 Pa., at 494. The court explained that "imprisonment in jail is not a lawful consequence of a mere conviction for an unlawful sale of liquors. It is the lawful consequence of a second sale only after a former conviction. On every principle of personal security and the due administration of justice, the fact which gives rightfulness to the greater punishment should appear in the record." Ibid. See also id., at 495 ("But clearly the substantive offence, which draws to itself the greater punishment, is the unlawful sale after a former conviction. This, therefore, is the very offence he is called upon to defend against").
Meanwhile, Massachusetts reaffirmed its earlier decisions, striking down, in Commonwealth v. Harrington, 130 Mass. 35 (1880), a liquor law that provided a small fine for a first or second conviction, provided a larger fine or imprisonment up to a year for a third conviction, and specifically provided that a prior conviction need not be alleged in the complaint. The court found this law plainly inconsistent with Tuttle and with the State's Notice Clause, explaining that "the offence which is punishable with the higher penalty is not fully and substantially described to the defendant, if the complaint fails to set forth the former convictions which are essential features of it." 130 Mass., at 36.8
Without belaboring the point any further, I simply note that this traditional understanding--that a "crime" includes every fact that is by law a basis for imposing or increasing punishment--continued well into the 20th century, at least until the middle of the century. See Knoll & Singer, Searching for the "Tail of the Dog": Finding "Elements" of Crimes in the Wake of McMillan v. Pennsylvania, 22 Seattle U. L. Rev. 1057, 1069-1081 (1999) (surveying 20th century decisions of federal courts prior to McMillan); see also People v. Ratner, 67 Cal. App. 2d Supp. 902, 153 P. 2d 790, 791-793 (1944). In fact, it is fair to say that McMillan began a revolution in the law regarding the definition of "crime." Today's decision, far from being a sharp break with the past, marks nothing more than a return to the status quo ante--the status quo that reflected the original meaning of the Fifth and Sixth Amendments.
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.
First, it is irrelevant to the question of which facts are elements that legislatures have allowed sentencing judges discretion in determining punishment (often within extremely broad ranges). See ante, at 14-15; post, at 23-25 (O'Connor, J., dissenting). Bishop, immediately after setting out the traditional rule on elements, explained why:
"The reader should distinguish between the foregoing doctrine, and the doctrine ... that, within the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment... . The aggravating circumstances spoken of cannot swell the penalty above what the law has provided for the acts charged against the prisoner, and they are interposed merely to check the judicial discretion in the exercise of the permitted mercy [in finding mitigating circumstances]. This is an entirely different thing from punishing one for what is not alleged against him." 1 Bishop, Criminal Procedure §85, at 54.
See also 1 J. Bishop, New Commentaries on the Criminal Law §§600-601, pp. 370-371, §948, p. 572 (8th ed. 1892) (similar). In other words, establishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things.9 Cf. 4 W. Blackstone, Commentaries on the Law of England 371-372 (1769) (noting judges' broad discretion in setting amount of fine and length of imprisonment for misdemeanors, but praising determinate punishment and "discretion ... regulated by law"); Perley, 86 Me., at 429, 432, 30 A., at 74, 75-76 (favorably discussing Bishop's rule on elements without mentioning, aside from quotation of statute in statement of facts, that defendant's conviction for robbery exposed him to imprisonment for life or any term of years). Thus, it is one thing to consider what the Constitution requires the prosecution to do in order to entitle itself to a particular kind, degree, or range of punishment of the accused, see Woodruff, 68 F., at 538, and quite another to consider what constitutional constraints apply either to the imposition of punishment within the limits of that entitlement or to a legislature's ability to set broad ranges of punishment. In answering the former constitutional question, I need not, and do not, address the latter.
Second, and related, one of the chief errors of 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. 523 U. S., at 243-244; see id., at 230, 241. 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, supra, at 235, is a concern for prejudicing the jury by informing it of the prior conviction. But this concern, of which earlier courts were well aware, does not make the traditional understanding of what an element is any less applicable to the fact of a prior conviction. See, e.g., Maguire, 47 Md., at 498; Sickles, 156 N. Y., at 547, 51 N. E., at 290.10
Third, I think it clear that the common-law rule would cover the McMillan situation of a mandatory minimum sentence (in that case, for visible possession of a firearm during the commission of certain crimes). No doubt a defendant could, under such a scheme, find himself sentenced to the same term to which he could have been sentenced absent the mandatory minimum. The range for his underlying crime could be 0 to 10 years, with the mandatory minimum of 5 years, and he could be sentenced to 7. (Of course, a similar scenario is possible with an increased maximum.) But it is equally true that his expected punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. The mandatory minimum "entitl[es] the government," Woodruff, 68 F., at 538, to more than it would otherwise be entitled (5 to 10 years, rather than 0 to 10 and the risk of a sentence below 5). Thus, the fact triggering the mandatory minimum is part of "the punishment sought to be inflicted," Bishop, Criminal Procedure, at 50; it undoubtedly "enters into the punishment" so as to aggravate it, id., §540, at 330, and is an "ac[t] to which the law affixes ... punishment," id., §80, at 51. Further, just as in Hobbs and Searcy, see supra, at 15-16, it is likely that the change in the range available to the judge affects his choice of sentence. Finally, in numerous cases, such as Lacy, Garcia, and Jones, see supra, at 6-7, 16, 17, the aggravating fact raised the whole range--both the top and bottom. Those courts, in holding that such a fact was an element, did not bother with any distinction between changes in the maximum and the minimum. What mattered was simply the overall increase in the punishment provided by law. And in several cases, such as Smith and Woodruff, see supra, at 4, 17, the very concept of maximums and minimums had no applicability, yet the same rule for elements applied. See also Harrington (discussed supra, at 20-21).
Finally, I need not in this case address the implications of the rule that I have stated for the Court's decision in Walton v. Arizona, 497 U. S. 639, 647-649 (1990). See ante, at 30-31. Walton did approve a scheme by which a judge, rather than a jury, determines an aggravating fact that makes a convict eligible for the death penalty, and thus eligible for a greater punishment. In this sense, that fact is an element. But that scheme exists in a unique context, for in the area of capital punishment, unlike any other area, we have imposed special constraints on a legislature's ability to determine what facts shall lead to what punishment--we have restricted the legislature's ability to define crimes. Under our recent capital-punishment jurisprudence, neither Arizona nor any other jurisdiction could provide--as, previously, it freely could and did--that a person shall be death eligible automatically upon conviction for certain crimes. We have interposed a barrier between a jury finding of a capital crime and a court's ability to impose capital punishment. Whether this distinction between capital crimes and all others, or some other distinction, is sufficient to put the former outside the rule that I have stated is a question for another day.11
For the foregoing reasons, as well as those given in the Court's opinion, I agree that the New Jersey procedure at issue is unconstitutional.
[June 26, 2000]
Last Term, in Jones v. United States, 526 U. S. 227 (1999), this Court found that our prior cases suggested the following principle: "[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., at 243, n. 6. At the time, Justice Kennedy rightly criticized the Court for its failure to explain the origins, contours, or consequences of its purported constitutional principle; for the inconsistency of that principle with our prior cases; and for the serious doubt that the holding cast on sentencing systems employed by the Federal Government and States alike. Id., at 254, 264-272 (dissenting opinion). Today, in what will surely be remembered as a watershed change in constitutional law, the Court imposes as a constitutional rule the principle it first identified in Jones.
Our Court has long recognized that not every fact that bears on a defendant's punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the "legislature's definition of the elements of the offense is usually dispositive." McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986); see also Almendarez-Torres v. United States, 523 U. S. 224, 228 (1998); Patterson v. New York, 432 U. S. 197, 210, 211, n. 12 (1977). Although we have recognized that "there are obviously constitutional limits beyond which the States may not go in this regard," id., at 210, and that "in certain limited circumstances Winship's reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged," McMillan, supra, at 86, we have proceeded with caution before deciding that a certain fact must be treated as an offense element despite the legislature's choice not to characterize it as such. We have therefore declined to establish any bright-line rule for making such judgments and have instead approached each case individually, sifting through the considerations most relevant to determining whether the legislature has acted properly within its broad power to define crimes and their punishments or instead has sought to evade the constitutional requirements associated with the characterization of a fact as an offense element. See, e.g., Monge v. California, 524 U. S. 721, 728-729 (1998); McMillan, supra, at 86.
In one bold stroke the Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of Congress and state legislatures to define criminal offenses and the sentences that follow from convictions thereunder. The Court states: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Ante, at 24. In its opinion, the Court marshals virtually no authority to support its extraordinary rule. Indeed, it is remarkable that the Court cannot identify a single instance, in the over 200 years since the ratification of the Bill of Rights, that our Court has applied, as a constitutional requirement, the rule it announces today.
According to the Court, its constitutional rule "emerges from our history and case law." Ante, at 26. None of the history contained in the Court's opinion requires the rule it ultimately adopts. The history cited by the Court can be divided into two categories: first, evidence that judges at common law had virtually no discretion in sentencing, ante, at 11-13, and, second, statements from a 19th-century criminal procedure treatise that the government must charge in an indictment and prove at trial the elements of a statutory offense for the defendant to be sentenced to the punishment attached to that statutory offense, ante, at 13-14. The relevance of the first category of evidence can be easily dismissed. Indeed, the Court does not even claim that the historical evidence of nondiscretionary sentencing at common law supports its "increase in the maximum penalty" rule. Rather, almost as quickly as it recites that historical practice, the Court rejects its relevance to the constitutional question presented here due to the conflicting American practice of judges exercising sentencing discretion and our decisions recognizing the legitimacy of that American practice. See ante, at 14-15 (citing Williams v. New York, 337 U. S. 241, 246 (1949)). Even if the Court were to claim that the common-law history on this point did bear on the instant case, one wonders why the historical practice of judges pronouncing judgments in cases between private parties is relevant at all to the question of criminal punishment presented here. See ante, at 12-13 (quoting 3 W. Blackstone, Commentaries on the Laws of England 396 (1768), which pertains to "remed[ies] prescribed by law for the redress of injuries").
Apparently, then, the historical practice on which the Court places so much reliance consists of only two quotations taken from an 1862 criminal procedure treatise. See ante, at 13-14 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 51, 188 (15th ed. 1862)). A closer examination of the two statements reveals that neither supports the Court's "increase in the maximum penalty" rule. Both of the excerpts pertain to circumstances in which a 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. See id., at 51 (indictment); id., at 188 (proof). In other words, for the defendant to receive the statutory punishment, the prosecutor had to charge in the indictment and prove at trial the elements of the statutory offense. To the extent there is any doubt about the precise meaning of the treatise excerpts, that doubt is dispelled by looking to the treatise sections from which the excerpts are drawn and the broader principle each section is meant to illustrate. See id., at 43 ("Every offence consists of certain acts done or omitted under certain circumstances; and in an indictment for the offence, it is not sufficient to charge the defendant generally with having committed it, ... but all the facts and circumstances constituting the offence must be specially set forth"); id., at 180 ("Every offence consists of certain acts done or omitted, under certain circumstances, all of which must be stated in the indictment ... and be proved as laid"). And, to the extent further clarification is needed, the authority cited by the Archbold treatise to support its stated proposition with respect to the requirements of an indictment demonstrates that the treatise excerpts mean only that the prosecutor must charge and then prove at trial the elements of the statutory offense. See 2 M. Hale, Pleas of the Crown *170 (hereinafter Hale) ("An indictment grounded upon an offense made by act of parliament must by express words bring the offense within the substantial description made in the act of parliament"). No Member of this Court questions the proposition that a State must charge in the indictment and prove at trial beyond a reasonable doubt the actual elements of the offense. This case, however, concerns the distinct question of when a fact that bears on a defendant's punishment, but which the legislature has not classified as an element of the charged offense, must nevertheless be treated as an offense element. The excerpts drawn from the Archbold treatise do not speak to this question at all. The history on which the Court's opinion relies provides no support for its "increase in the maximum penalty" rule.
In his concurring opinion, Justice Thomas cites additional historical evidence that, in his view, dictates an even broader rule than that set forth in the Court's opinion. The history cited by Justice Thomas does not require, as a matter of federal constitutional law, the application of the rule he advocates. To understand why, it is important to focus on the basis for Justice Thomas' argument. First, he claims that the Fifth and Sixth Amendments "codified" pre-existing common law. Second, he contends that the relevant common law treated any fact that served to increase a defendant's punishment as an element of an offense. See ante, at 2-4. Even if Justice Thomas' first assertion were correct--a proposition this Court has not before embraced--he fails to gather the evidence necessary to support his second assertion. Indeed, for an opinion that purports to be founded upon the original understanding of the Fifth and Sixth Amendments, Justice Thomas' concurrence is notable for its failure to discuss any historical practice, or to cite any decisions, predating (or contemporary with) the ratification of the Bill of Rights. Rather, Justice Thomas divines the common-law understanding of the Fifth and Sixth Amendment rights by consulting decisions rendered by American courts well after the ratification of the Bill of Rights, ranging primarily from the 1840's to the 1890's. Whatever those decisions might reveal about the way American state courts resolved questions regarding the distinction between a crime and its punishment under general rules of criminal pleading or their own state constitutions, the decisions fail to demonstrate any settled understanding with respect to the definition of a crime under the relevant, preexisting common law. Thus, there is a crucial disconnect between the historical evidence Justice Thomas cites and the proposition he seeks to establish with that evidence.
An examination of the decisions cited by Justice Thomas makes clear that they did not involve a simple application of a long-settled common-law rule that any fact that increases punishment must constitute an offense element. That would have been unlikely, for there does not appear to have been any such common-law rule. The most relevant common-law principles in this area were that an indictment must charge the elements of the relevant offense and must do so with certainty. See, e.g., 2 Hale *182 ("Touching the thing wherein or of which the offense is committed, there is required a certainty in an indictment"); id., at *183 ("The fact itself must be certainly set down in an indictment"); id., at *184 ("The offense itself must be alledged, and the manner of it"). Those principles, of course, say little about when a specific fact constitutes an element of the offense.
Justice Thomas is correct to note that American courts in the 19th century came to confront this question in their cases, and often treated facts that served to increase punishment as elements of the relevant statutory offenses. To the extent Justice Thomas' broader rule can be drawn from those decisions, the rule was one of those courts' own invention, and not a previously existing rule that would have been "codified" by the ratification of the Fifth and Sixth Amendments. Few of the decisions cited by Justice Thomas indicate a reliance on pre-existing common-law principles. In fact, the converse rule that he identifies in the 19th American cases--that a fact that does not make a difference in punishment need not be charged in an indictment, see, e.g., Larned v. Commonwealth, 53 Mass. 240, 242-244 (1847)--was assuredly created by American courts, given that English courts of roughly the same period followed a contrary rule. See, e.g., Rex v. Marshall, 1 Moody C. C. 158, 168 Eng. Rep. 1224 (1827). Justice Thomas' collection of state-court opinions is therefore of marginal assistance in determining the original understanding of the Fifth and Sixth Amendments. While the decisions Justice Thomas cites provide some authority for the rule he advocates, they certainly do not control our resolution of the federal constitutional question presented in the instant case and cannot, standing alone, justify overruling three decades' worth of decisions by this Court.
In contrast to Justice Thomas, the Court asserts that its rule is supported by "our cases in this area." Ante, at 23. That the Court begins its review of our precedent with a quotation from a dissenting opinion speaks volumes about the support that actually can be drawn from our cases for the "increase in the maximum penalty" rule announced today. See ante, at 17-18 (quoting Almendarez-Torres, 523 U. S., at 251 (Scalia, J., dissenting)). The Court then cites our decision in Mullaney v. Wilbur, 421 U. S. 684 (1975), to demonstrate the "lesson" that due process and jury protections extend beyond those factual determinations that affect a defendant's guilt or innocence. Ante, at 18. The Court explains Mullaney as having held that the due process proof-beyond-a-reasonable-doubt requirement applies to those factual determinations that, under a State's criminal law, make a difference in the degree of punishment the defendant receives. Ante, at 18. The Court chooses to ignore, however, the decision we issued two years later, Patterson v. New York, 432 U. S. 197 (1977), which clearly rejected the Court's broad reading of Mullaney.
In Patterson, the jury found the
defendant guilty of second-degree murder. Under New York law, the fact that a
person intentionally killed another while under the influence of extreme
emotional disturbance distinguished the reduced offense of first-degree
manslaughter from the more serious offense of second-degree murder. Thus, the
presence or absence of this one fact was the defining factor separating a
greater from a lesser punishment. Under New York law, however, the State did not
need to prove the absence of extreme emotional disturbance beyond a reasonable
doubt. Rather, state law imposed the burden of proving the presence of extreme
emotional disturbance on the defendant, and required that the fact be proved by
a preponderance of the evidence. 432
U. S., at 198-200. We rejected Patterson's due process challenge to his
conviction:
"We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defense