Apprendi v. New Jersey Slip Opinion

    (Slip Opinion) OCTOBER TERM. 1999 1

Syllabus

NOTE; Where it is feasible, a  syllabus (headnote) will be released, as is 
being done in connection with this case, a t the time the opinion is issued 
The syllabus constitutes no part of the opinion of the Court but has been 
prepared by the Reporter of Decisions for the convenience of the reader. 
See United States v. Detroit Timber St Lumber Co.. 200 U. S. 321. 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

APPRENDI v. NEW JERSEY

CERTIORARI TO THE SUPREME COURT OF NEW JERSEY

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 & 
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 aha. race. After Apprendi pleaded guilty, the prose­
cutor filed a motion to enhance the sentence. The court found by a 
preponderance of the evidence that the shooting was racially moti­
vated and sentenced Apprendi to a 12-year term on the firearms 
count. In upholding the sentence, the appeals court rejected Ap­
prendi s claim that the Due Process Clause requires that a bias find­
ing be proved to a jury beyond a reasonable doubt. The State Su­
preme Court affirmed.

Held: The Constitution requires that any fact that increases the pen­
alty 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 £ 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 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,



2 APPRENDI v. NEW JERSEY

Syllabus

and proved beyond a reasonable doubt. The Fourteenth Amendment 
commands the same answer when a state statute is involved. Pp. 7 -

(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 
Rg., 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 pre- 
“ ? * * * ■  legislature. See. e.g.. United States v. Tucker. 404

J U 3' 447‘ 7116 historic inseparability of verdict and judgment 
and the consistent limitation on judges’discretion highlight the nov­
elty 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
Ju r \  ■In fmding 11131 ^  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 im- 
pose 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 i» 
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 Jer­
sey provides for first-degree crimes on his finding, by a preponder­
ance of the evidence. that the defendants purpose was to intimidate 
his victim based on the victim £ particular characteristic. The Stated 
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 ex-



3Cite as: 530 U. S .___ (2000)

Syllabus

poses the defendant to a greater punishment than that authorized bv 
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*; liberty 
and for the heightened stigma associated with an offense the legisla 
ure has selected as worthy of greater punishment. That the State 

placed the enhancer within the criminal codes sentencing provisions 
does not mean that it is not an essential element of the offense. Pp.

159 N. J. 7, 731 A. 2d 485, reversed and remanded.

Stevens, J„ delivered the opinion of the 
Souter, Thomas, and Ginsburc, JJ„ joined, 
ring opinion. Thomas, J., filed a concurring 
J.. joined as to Parts I and II. O Connor, J.. 
in which Rehnquist, C. J., and Kennedy 
Breyer, J., filed a dissenting opinion, in 
joined.

Court, in which Scalia, 
Sc alia, J., filed a concur- 
opinion, in which Scaua, 
filed a dissenting opinion, 
and Breyer, JJ„ joined, 
which Rehnquist, C. J.,



1Cite as: 530 U. S .___ (2000)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in th*

s  s s s t s z t z r *
SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, Jr., PETITIONER v 
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEW JERSEY

[June 26. 2000]

JUSTICE S t e v e n s  delivered the opinion of th e Court.
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 States Supreme Court as a 
hate crime” law. provides for an “extended term” of im ­

prisonment if the trial judge finds, by a preponderance of 
the evidence, that “[tjhe defendant in committing the 
crime acted with a purpose to intimidate an individual or 
group of individuals because of race, color, gender, hand i- 
cap, 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 of-
§*2(2 43 i^(i^Prisonment ôr between 10 and 20 years.”

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



2 APPRENDI V. NEW JERSEY 

Opinion of the Court

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 Vin e- 
and 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 indict­
ment 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 wea p­
ons. 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 posses­
sion of an antipersonnel bomb, §2C:39-3a; the prosecutor 
dismissed the other 20 counts. Under state law, a second-

°/feuo? CaiTueS 3 penalty ranSe 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” sen­
tence on count 18 (which was based on the December 22 
shooting) on the ground that that offense was committed



Cite as: 530 U. S .___ (2000)

Opinion of the Court

3

with a biased purpose, as described in §2C:44-3(e). A p- 
prend1, 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 Apprendis 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 enhanc e- 
ment 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 
or 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 Apprendis “purpose” for the shooting on D e­
cember 22. Apprendi adduced evidence from a psycholo- 
gist 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- 

mericans, and denying that his statement to the police 
had been accurately described. The judge, however, found 
the police officers 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 
Apprendis actions were taken “with a purpose to intimi-



4 APPRENDI v. NEW JERSEY

Opinion of the Court

date" 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
™.Ce.ShS Cfla“se of *he United States Constitution requires 

that the finding of bias upon which his hate crime se n-
bKS6r mUSt 56 pr°Ved t0 a jury bey°nd 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

698 An2d 1265 (1997)‘ Rel^  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 
tad which wags the dog of the substantive offense." 304

477 U T 'a t m l'V H 98 *  “  1269 ‘l * * *  ^ / " a n .U. r -1 at 88)‘ Characterizing the required finding as
one of motive, the court described it as a traditional
sentencing factor, ” one not considered an “essential el e-

ment of any crime unless the legislature so provides. 304
,h j  ,hUPKr" 3t i58' 698 A' 2d' at I27a While recognizing mat 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 ex-



5Cite as: 530 U. S .___ (2000)

Opinion of the Court

plaining that while due process only requires the State to 
prove the “elements” of an offense beyond a reasonable

oubt, 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 kidna p- 
ping 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 statutes “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 “[ljabels,”the court 
concluded, would not yield an answer to Apprendis consti­
tutional question. Ibid.

While noting that we had just last year expressed seri­
ous 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 Almen- 
darez-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 sep a- 
rate penalty.” 159 N. J„ at 24, 731 A. 2d, at 494. Rather 
the Legislature simply took one factor that has always



6 APPRENDI v. NEW JERSEY

Opinion of the Court

been considered by sentencing courts to bear on punish-
^  WGight t0 be Siven that factor.” Ibid., 731 A. 2d, at 494-495. As had the appeals court the
^  the State statute was unlike that 

in McMillan inasmuch as it increased the maximum pen­
alty to which a defendant could be subject. But it was not 
clear that this difference alone would “change the const i- 
tutional 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.
ty 7 ^ u dlSSent reJected this conclusion, believing instead 
that the case turned on two critical characteristics: (1) “a 
defendant s mental state in committing the subject offense
, ' n™ liy involves a finding so integral to the 

charged offense that it must be characterized as an ele­
ment thereof”: and (2) “the significantly increased sen- 
tencmg 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 « 8  Tn the 
issents view, the facts increasing sentences in both 

Almendarez-Torres (recidivism) and Jones (serious bodily 
injury) were quite distinct from New Jerseys required 
finding of purpose here; the latter finding turns directly on 
the conduct of the defendant during the crime and defines 
a levd of culpability necessary to form the hate crime 
offense. While acknowledging “analytical tensions” in this 
, “rt.s P ost-Wmship jurisprudence, the dissenters con­

cluded that there can be little doubt that the sentencing



7Cite as: 530 U. S .___ (2000)

Opinion of the Court

factor applied to this defendant- the purpose to intim i- 
date a victim because of race- must fairly be regarded as 
an element of the crime requiring inclusion in the indie t- 
ment and proof beyond a reasonable doubt.” 159 N I at 
51, 731 A. 2d, at 512.

We granted certiorari, 528 U. S. 1018 (1999), and now 
reverse.

II
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; Apprendifc actual 
sentence was thus within the range authorized by statute 
ror the three offenses to which he pleaded guilty. Brief for 
Fespondent 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 le ­
gally significant because it increased- indeed, it do u- 

led- 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 sub-

'We have previously rejected a First Amendment challenge to an en- 
tanced sentence based on a jury finding that the defendant had inte n- 
tionaUy selected his victim because of the victim i> race. Wisconsin v.



8 APPRENDI v. NEW JERSEY

Opinion of the Court

stantive basis for New Jerseys enhancement is thus not at 
issue; the adequacy of New Jerseys 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 e n- 
hanced sentence, 159 N. J„ at 25, 731 A. 2d, at 495. In 
this very case, that issue was the subject of the full evi­
dentiary 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 States power to manipulate the prosecu­
tors burden of proof by, for example, relying on a pre­
sumption 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 presum d - 

tion 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 starklv Dr e-

Our answer to that question was foreshadowed by our

Mitchell, 508 U. S. 476, 480 (1993).



9Cite as: 530 U. S .___ (2000)

Opinion of the Court

opinion in Jones v. United States, 526 U. S. 227 (1999) 
construing a federal statute. We there noted that “under 
the Due Process Clause of the Fifth Amendment and the 
notice and jury trial guarantees of the Sixth Amendment 
any fact (other than prior conviction) that increases the 
maximum penalty for a crime must be charged in an 
indictment, submitted to a jury, and proven beyond a 
reasonable doubt.” Id., at 243, n. 6. The Fourteenth 

mendment commands the same answer in this case 
involving a state statute.

Ill
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 

otive for not doing them. If you persist in doing them, it 
has to inflict the pains in order that its threats may con­
tinue to be believed. ”2 New Jersey threatened Apprendi
™! ,b CZ tai" PamS if he unlawfu% 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 proce­
dural safeguards designed to protect Apprendi from un­
warranted 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

them^differently. Pr°Vide 3 P ™ * '^  baSiS f°r trea0"« 
At stake in this case are constitutional protections of 

surpassing importance: the proscription of any deprivation 
of liberty without “due process of law,” Arndt. 14, and the 
guarantee that “[i]n all criminal prosecutions, the accused 
shall enjoy the right to a speedy and public trial, by an

20. Holmes. The Common Law 40 (M. Howe ed. 1963).



10 APPRENDI V. NEW JERSEY

Opinion of the Court

impartial jury." Arndt. 6.3 Taken together, these rights 
indisputably entitle a criminal defendant to “a jury dete r- 
mination that [he] is guilty of every element of the crime 
with which he is charged, beyond a reasonable doubt ’’ 
Umted States v. Gaudin, 515 U. S. 506. 510 (1995); see 
also Sullivan v. Louisiana, 508 U. S. 275 278 (iqq?)-
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 necessaiy to con­
stitute 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 tyr­
anny on the part of rulers.” and “as the great bulwark of 
[our] civil and political liberties," 2 J. Story, Commentar­
ies 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 afte r- 
wards be confirmed by the unanimous suffrage of twelve of 
[the defendants] equals and neighbours . . . ." 4 W. Black- 
stone, Commentaries on the Laws of England 343 (1769) 
(hereinafter Blackstone) (emphasis added). See also

3 Apprendi has not here asserted a constitutional claim based on the 
ormss10" of any reference to sentence enhancement or racial bias in the
h*r T np r 6ntirely °n the fact that 1116 “due Process of law" that the Fourteenth Amendment requires the States to provide to

persons accused of crime encompasses the right to a trial by jury
Duncan v_ Louisiana. 391 U. S. 145 (1968). and the right to have every

3 9 7 u  S 358e ffgmT PT hed ! f y0na 3 reaSOnable doubt- In re Winsh7p.J97 U. S. 358 (1970). That Amendment has not. however, been con--
dictmenTofa”p de F lfth Amendment right to presentment or in ­
dictment of a Grand Jury that was implicated in our recent decision in 
Almendarez-Torres v. United States. 523 U. S. 224 (1998). We thus Hn 
not address the indictment question separately today



11Cite as: 530 U. S .___ (2000)

Opinion of the Court

Duncan v. Louisiana, 391 U. S. 145, 151-154 (1968). 
Equally well founded is the companion right to have th e

Ji 17  yerdict based on proof beyond a reasonable doubt. 
The demand for a higher degree of persuasion in criminal 

cases was recurrently expressed from ancient times 
lthough] 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. b.. at 361. We went on to explain that the reliance on 
the reasonable doubt” standard among common-law 
jurisdictions reflects] a profound judgment about the 
way in which law should be enforced and justice admini s-
tered. 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 sur­
rounding our Nation s founding. As a general rule, crim i- 
nal proceedings were submitted to a jury after being initi­
ated 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 ac­
cordingly . . . and that there may be no doubt as to the 
judgment which should be given, if the defendant be con-

_ 4 lAJfter trial and conviction are past." the defendant is submitted to 
judgment by the court. 4 Blackstone 368- the stage approximating in 
modern terms the imposition of sentence. °



12 APPRENDI v. NEW JERSEY

Opinion of the Court

J?cted ” J; Archbold, Pleading and Evidence in Criminal 
Cases 44 (15th ed. 1862) (emphasis added). The defen­
dants ability to predict with certainty the judgment from 
the face of the felony indictment flowed from the invar i-
qoq ^ * gee 0f Punishment With crime. See 4 Blackstone 
369 370 (after verdict, and barring a defect in the indie t- 
ment. pardon or benefit of clergy, ‘the court must pro­
nounce that judgment, which the law hath annexed to the 
crime (emphasis added)).

Thus with respect to the criminal law of felonious con­
duct the English trial judge of the later eighteenth cen- 
ury 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 
ju ge 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,e “[t]he judgment, though pronounced or

5 As we suggested in Jones v. United States, 526 U. S. 227 (19991 
juries devised extralegal ways of avoiding a guilty verdict at least of
a«dmw7h?hVeer„efff0rm °f the„°'renSe ? the^unfiant ea S c t ated with the offense seemed to them disproportionate to the serious-
ness of the conduct of the particular defendant. Id., at 245 (This power 
to thwart Parliament and Crown took the form not only of flat-out 
acquittals in the face of guilt but of what today we would call verdicts of 
gui ty to lesser included offenses, manifestations of what Blackstone 
de6SAcbrehd 35 ^10US P*?Ury 0n theJurors part. 4 Blackstone 238-239‘)
□ ] t  !he ?n "clPal dlssent would chide us for this single citation to 
Blackstone s third volume, rather than his fourth, post, at 3 (dissenting 
pinion), we suggest that Blackstone himself directs us to it for these 

1 3  ma, fee )hBlackf°"% 3«  ' The antiquity and exceUeni of t f f i  
i  - 5 e se“ lin8 of civil Property, has before been explained 

arge. See id., at 379 ( Upon these accounts the trial by jury ever



13Cite as: 530 U. S .___ (2000)

Opinion of the Court

awarded by the judges, is not their determination or sen­
tence, but the determination and sentence of the law. ” 3 
Blackstone 396 (emphasis deleted).7

This practice at common law held true when indict­
ments were issued pursuant to statute. Just as the cir­
cumstances of the crime and the intent of the defendant at 
the time of commission were often essential elements to be 
alleged m 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
^ ^ . ehnt/ ° r t.he ° f ence- in order ^  bring the defendant 
_ * h that hl§her degree of punishment, must expressly

has been, and I trust ever will be, looked upon as the glory of the 
nglish law. And. if it has so great an advantage over others^  reg u 

lating civil property, how much must that advantage be heightened 
when it is applied to criminal cases!’) 4 id . at 343 §( “And it will hdd 

uch stronger in criminal cases: since, in times of difficulty and da n-
furiaPT °re 1S t0, bt  aPPrehended from the violence and partiality of 
judges appointed by the crown, in suits between the king and the 

ubject than in disputes between one individual and another, to settle 
e metes and boundaries of private property’); 4 id., at 344 (“What 
as said of junes in general, and the trial thereby, in civil cases will

f r ^ hor  our present remarks, with regard to the trial of crimi­
nal suits, indictments, informations, and appeals’).
r common law of punishment for misdemeanors- those "smaller 
n n iin 'andi ° miss‘°"s of less consequence.” 4 Blackstone 5 -  was as we 
™ d \n Jones- 526 U. S„ at 244, substantially more dependent upon 
J’Vn, rh ! f1SCre.tl0K „Subject t0 the limitations that the punishment™t
17th r °F ' • that 11 be ProPortionate to the offense, and, by the 
17th rentury, that it not be “cruel or unusual, “judges most commonly 
imposed discretionary "sentences" of fines or whippings upon misde
S T ( T e d  fM or'A cr' Introdfuction t0 English Legal History
h o li  0)' tUaI sentences of imprisonment for such offenses
, hpT '  Wffe rare 3t common law until the late 18th century ibid for 
the idea of prison as a punishment would have seemed 1m absurd

I S T .8 0 0  in r  Crim,np <T0UrtS and “  Condon Law
1977). ' ,me m g d 155° - 1800- P- «  (J. Cockbum ed.



14 APPRENDI v. NEW JERSEY

Opinion of the Court

charge it to have been committed under those circum­
stances, and must state the circumstances with certainty 
and precision. [2 M. Hale, Pleas of the Crown *1701.” 
Archbold, Pleading and Evidence in Criminal Cases, at 51. 
11, then, upon an indictment under the statute, the pros e- 
cutor prove the felony to have been committed, but fail in 
proving it to have been committed under the circum­
stances 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 forjudges 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 Ameri­
can 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- 
smce the 19th-century shift in this country from statutes

f.To the e*te™ the principal dissent appears to take issue with our 
re lance on Archbold (among others) as an authoritative source on the
ArThZld hW °k the releJ ant P°st- at 3-4. we simply note that
Archbold has been cited by numerous opinions of this Court for that

ry purpose, his Criminal Pleading treatise being generally viewed as
Crn p Ual Ceference book for every criminal lawyer working in the
Simn," Hrt1Q8, Bl0graphlCal Dictionary of the Common Law 13 (A
Law ,n n  i  H :rSee f0^ 0l?SWOrth' The Literature of the Common
H a l^ e d s  ,9 53 ^ ° '  Eng'iSh U w  <A ^ h a r t  & H.



15Cite as: 530 U. S .___ (2000)

Opinion of the Court

providing fixed-term sentences to those providing judges 
discretion within a permissible range, Note. The Admissi- 
bihty°f Character Evidence in Determining Sentence, 9
U' 5 k * 5' ReV',I15 f1942)" has been regularly accompa­
nied by the qualification that that discretion was bound by
the range of sentencing options prescribed by the legisl a- 
ture. See, e.g., United States v. Tucker, 404 U. S. 443, 447 
(1972) (agreeing that “[tjhe 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 
° . ^ t h e j u d g e 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

/ - J S f  S,° 1 / •  Blsh°P- Criminal Law §§933-934(1) (9th ed. 1923)
i f W p US e8 n atl0nu0r?inarily flxes the Penalties for the common law 
offences equally with the statutory ones----- Under the common-law

“ h determines in each what within the limits of
the law shall be the punishment. -  the question being one of discre­
tion ) (emphasis added): id.. §948 (HJf the law has given the court a
fntnra %  t0 the punishment- il wil1 in pronouncing sentence 
into any evidence proper to influence a judicious magistrate to make it
h f, er °r hf ]hter' yet not t0 exceed the limits fixed for what of crime is
HrPd h r a T tl0n 3nd the Verdict' 0r this sort of evidence may be placed before the jury at the trial, if it has the power to assess the

nt‘ f" SUCu 3 C3Se the a8Sravatin8 matter must not be of
Ln7 hi Pt  ff?T the °ne charged in the indictment.- a rule not
mvolved n (f T  3 ddinque"t offence under an habitual criminal act is involved ) (footnotes omitted).

The principal dissent s discussion of Williams, post, at 24-26 fails to 
acknowledge the significance of the Courts caveaVthat judges dTscre 
1 n is constrained by the ‘limits fixed by law.” Nothing in Williams 
implies that a judge may impose a more severe sentence than the 
maximum authorized by the facts found by the jury. Indeed the 
commentators cited in the dissent recognize precisely this same limita­
tion. See post, at 23 (quoting K. Stith & J. Cabranes, Fear of Judging-



16 APPRENDI v. NEW JERSEY

Opinion of the Court

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 princ i-

hS— 8 GuideJines in the Federal Courts 9 (1998) (“From the
sen e n Z ° H  ^  federal Jud^  were entrusted with wide
sentencing discretion. ..  . permitting the sentencing judge to impose

(emphasis a d r iS !l°T entHanT ^  ^  “P f° ^  statut0^Y maximum" 
(Federal^ 2 *BufF C Lynch, Towards A Model Penal Code. Second 
federal?). 2 Buff. Cnm. L. Rev. 297, 320 (1998) (noting that judges in 
discretionary sentencing took account of facts relevant to a particular

convTcLn M ‘h<i *  “ ndu“  by **« S 5 5
10 In support of its novel view that this Court has ‘lone recoeni^pd" 

that not all facts affecting punishment need go to the jury. p o s A t  1-2 
the principal dissent cites three cases decided within tbe past quarter
“ 7 ; and f aCh °f 111656 15 P,3inly distin8uishable. Rather than offer 
any historical account of its own that would support the notion of a
sentencing factor” legally increasing punishment beyond the statutory

d e T Z ^ h  JUSTKE ™ OMAS concurrin8 opinion m t h i ^  S  clear that such an exercise would be futile- the dissent proceeds bv
mischaractermng our account. The evidence we describe that punish­
ment was, by law. tied to the offense (enabling the defendant to discern 
barring pardon or clergy, his punishment from the face of the ind7t- 
ment). and the evidence that American judges have exercised senten c-
toSdKrCretf0" Wlthm 3 l6gally prescribed ran8e (enabling the defendant o discern from the statute of indictment what maximum punishment
conclusion UTher t dat Stat“te could brin&>' Point *° a single, consistent conclusion^ The judges role in sentencing is constrained at its outer
units by the facts alleged in the indictment and found by the jury Put 

thT nthfaCtS 6nP°Se 3 defendant t0 a punishment g r e l A  than
sepL“t X l o S y PreSCrlbed by dennlti0n "elements' °f «



17Cite as: 530 U. S .___ (2000)

Opinion of the Court

pies 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 require­
ments 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 
“provide] concrete substance for the presumption of inno­
cence, 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 de­
fendant 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 peradven- 
ture that Winship s due process and associated jury pro­
tections extend, to some degree, “to determinations that 
[go] not to a defendants guilt or innocence, but simply to

As we stated in Jones. ‘One contributor to the ratification debates, 
u eX? ™ 6' commenting °n- the jury trial guarantee in Art III §2 

echoed Blackstone in warning of the need to guard with the most’ 
jealous circumspection against the introduction of new, and arbitrary 
methods of trial, which, under a variety of plausible pretenses, may in 
Ume. imperceptibly undermine this best preservative of LIBERTY ’ A
S i  nf RaT ĥ 7 iM T er' Na 3' June 6' 1788' quoted in The Complete Bill of Rights 477 (N. Cogan ed. 1997).” 526 U. S„ at 248.



APPRENDI v. NEW JERSEY

Opinion of the Court

the length of his sentence. ” Almendarez-Torres, 523 U. S
3f w M 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 defe n- 
dant who acted with an intent to kill possessed the “malice 
aforethought” necessary to constitute the State is murder 
offense (and therefore, was subject to that crime is associ­
ated punishment of life imprisonment). The statute 
placed the burden on the defendant of proving, in rebu t- 
ting 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 Win- 
ship protections because, upon conviction of either offense, 
the defendant would lose his liberty and face societal 
stigma just the same. Rejecting this argument, we ac­
knowledged 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 protec­
tions of Winship merely by “redefining] the elements that 
constitute different crimes, characterizing them as factors 
that bear solely on the extent of punishment ” 421 U S 
at 698.12 '

12c°ntrary to the principal dissent s suggestion. post, at 8-10, Patter-
this a ?/32 S‘ 197, 198 (1977)- Posed no direct challenge to

“  . P °f MulIaneY- In upholding a New York law allowing defe nd- 
ants to raise and prove extreme emotional distress as an affirmative 
defense to murder. Patterson made clear that the state law still re-



Cite as: 530 U. S .___ (2000)

Opinion of the Court

19

IV
It was in McMillan v. Pennsylvania, 477 U. S. 79 (1986), 

that this Court, for the first time, coined the term “sen­
tencing factor” to refer to a fact that was not found by a 
jury but that could affect the sentence imposed by the 
j"udge. That case involved a challenge to the State s Ma n- 
datoiy 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 Penn­
sylvania statute did not run afoul of our previous admon i- 
tions against relieving the State of its burden of proving 
guilt, or tailoring the mere form of a criminal statute 
solely to avoid Winship strictures. 477 U. S„ at 86-88 

We did not, however, there budge from the position that

quired the State to prove every element of that State*; offense of 
murder and its accompanying punishment. “No further facts are either

°r inJ'erred in order t0 constitute the crime. ” 432 U. S at 
205 206. New York, unlike Maine, had not made malice aforethought 
or any described mens rea, part of its statutory definition of second- 
degree murder: one could tell from the face of the statute that if one
nnpr^MK cau*e the death of mother person and did cause that death 
one could be subject to sentence for a second-degree offense. Id at 198 
Responding to the argument that our view could be seen ‘to'permit 
state legislatures to reallocate burdens of proof by labeling as affirm a-
s tT tu t^ r h e r  ' T 6 f lements of the crimes defined in their statutes the Court made clear in the very next breath that there were

th teT gtyd“ 7 “ af2?0.1 “mltS bey° nCl WhiCH ‘he Stat“  n0t 80 in



20 APPRENDI v. NEW JERSEY

Opinion of the Court

(1) constitutional limits exist to States ’ authority to define 
l™** f*CtS n̂ Ĉ sary 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 addi- 
tiona punishment.” id., at 88. may raise serious constitu­
tional 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 courts discretion in selecting a 
penalty within the range already available to it wit fl­
out the special finding of visible possession of a fir e- 
arm. . . . 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 of- 
tense. Petitioners ’claim that visible possession under 
the Pennsylvania statute is feally’an element of the 
offenses for which they are being punished- that 
Pennsylvania has in effect defined a new set of u p- 
graded 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 
lor bank robberies accomplished through Use of a 
dangerous weapon or device), but it does not.” Id., at

_ Finally- as we made plain in Jones last Term, Almen-

n ”  wiPH* dlSSent accuses us of today •'overruling McMillan."
We d° n°uC overrule McMillan. We limit its holding to cases

stan nn V® imPOSItion of a sentence more severethan the
statutory maximum for the offense established by the jury verdict- a
imitauon identified in the McMillan opinion itself. Conscious of the

McMiuln 3t 6gISlatiV! decisions maY have been made in reliance on 
McMillan, we reserve for another day the question whether stare 
decisis considerations preclude reconsideration of its narrower holding.



Cite as: 530 U. S .___ (2000) 21
Opinion of the Court

darez-Torres v. United States, 523 U. S. 224 (1998), repre­
sents at best an exceptional departure from the historic 
practice that we have described. In that case, we consid­
ered a federal grand jury indictment, which charged the 
petitioner with ‘having been found in the United States
s i r being dePorted' ”’ in violation of 8 U. S. C 
51326(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 reen­
tered this country, and that “the earlier deportation had 
aken 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- a c­
cordingly, Almendarez-Torres could be subject to a sen­
tence of up to 20 years. Almendarez-Torres objected 
contending that because the indictment ‘had not men­
tioned his earlier aggravated felony convictions, ” he could 
e sentenced to no more than two years in prison. Ibid. 
Rejecting Almendarez-Torres’ objection, we concluded 

hat 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 purs u- 
ant 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 co n- 
tested issue of fact was before the Court. Although our 
conclusion in that case was based in part on our applic a- 
tion of the criteria we had invoked in McMillan, the spe­
cific question decided concerned the sufficiency of the 
indictment. More important, as Jones made crystal clear,



22 APPRENDI v. NEW JERSEY

Opinion of the Court

526 U. S.. at 248-249, our conclusion in Almendarez- 
orres 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 se n- 
tencmg courts increasing an offenders sentence*); id., at 
244 (emphasizing ‘the fact that recidivism does not relate 
to the commission of the offense . . . ”)• Jones 526 IJ S at 
249-250. n. 10 (The majority and the fcsenters in ^  
mendarez-Torres disagreed over the legitimacy of the 
Courts dmsion 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 tact of prior conviction, and the reality that Almen- 
darez-Torres did not challenge the accuracy of that ‘fact” 
in his case, mitigated the due process and Sixth Amen d- 
ment concerns otherwise implicated in allowing a judge to 
determine a “fact” increasing punishment beyond the 
maximum of the statutory range.14

„ ,.The Prillcipal dissents contention that our decision in Monge v 
alifomia. 524 U. S. 721 (1998), "demonstrates that Almendarez-Torres 

was something other than a limited exception to the jury trial rule is 
both inaccurate and misleading. Post, at 14. Monge was another 
recidivism case in which the question presented and fhe bulk of the
senUtenSc in r lyTher e f ° ^  SC°Pe °f d- b le  jeopardy protections^  entencing. The dissent extracts from that decision the majority s
statement that "the Court has rejected an absolute rule that Z ̂n-
hancement constitutes an element of the offense any time that it
p T r t T w  Se" * nCe" 524 U. S„ at 729. Far from being
part of reasoning essential to the Courts holding, post, at 13 that

Was in ^ sponse t0 a dissent by Justice Scalia on an issue 
J . he C,°"n  ltself had, a few sentences earlier, insisted 'Was neither 

considered by the state courts nor discussed in petitioners brief before 
Court. I  524 y -  S" «  ™  Moreover. the L e  citation^ s u p p in g  

the Monge Court s proposition that ‘the Court has rejected ” sucha rulf 
was none other than Almendarez-Torres; as we ha've explained



23Cite as: 530 U. S. (2000)

Opinion of the Court

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

In sum, our reexamination of our cases in this area, and

case simply cannot bear that broad reading. Most telling of Monep<

Quezon fn°M the thiS C3Se is that the double jeopardyquesuon in Monge arose because the State had failed to satisfy its own
statutory burden of proving beyond a reasonable doubt that the defe n-
enhLrpH C°m™ tted ? Pri°r °ffense (and was therefore subject to an 
enhanced, recidivism-based sentence). 524 U. S„ at 725 (“According to
Cessment3 nfaW' a "Umber °f Procedural safeguards surround the a s- sessment of prior conviction allegations: Defendants may invoke the
right to a jury trial . . .  ; the prosecution must prove the Jlegat^n
Cour? rh ref T ble d°Ubt; and the rules °f Whence apply J 8 Court thus itself warned against a contrary double jeopardy Yule that
could create disincentives that would diminish these important proce­
dural protections. ” Id., at 734. ^  P

U SInaatd2d480?fin0 >he reaS°nS SCt f°rth in JUSTICEScALIAs dissent. 523 
of rh'p ? ’ 11 15 noteworthy that the Court s extensive discussion 
n L S  sentencing factor” virtually ignored the pedigree of the
Clifford8 rehqUtrement at >***■ rule was succinctly stSed by Justice
23?233 °P̂ i0n in Unit6d States V- Reese- 92 U- S- 214.: i 187,6): ,T]he indictment must contain an allegation of every 
fact which is legally essential to the punishment to be inflicted " As te  
explained in Speaking of that principle. Mr. Bishop says it p er^ d S  

e entire system of the adjudged law of criminal procedure as appears 
by all the cases: that, wherever we move in that department of oTr

ie a p T f m r it T h a 'T  ^  T taCt With it: 3nd th3t We 030 no moreBishon f  P ? a , fr°m the atmosphere which surrounds us. 1 
Bishop Cr. Pro.. 2d ed„ sect. 81: Archbold k Crim. Plead., 15th ed 54- 1

Am' Cr' Law’6th rev-ed- « ■  8“ v.



24 APPRENDI v. NEW JERSEY

Opinion of the Court

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 sub-
r i 6! 10 3 jUiy’. 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: “[lit is 
unconstitutional for a legislature to remove from the jury 
the assessment of facts that increase the prescribed range 
o 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
SCALIAni t  , f rEVENS’ J'): see aiso id- at 253 (opinion of

. Th pnnapal c l ie n t  would reject the Courts rule as a “meaning­
less formalism. because it can conceive of hypothetical statutes that 
would comply with the rule and achieve the same result as the New 
Jersey statute. Post, at 17-20. While a State could, hypothetically 
undertake to revise its entire criminal code in the manneMiie dissent
fo r^ S m o lT so ^  311 Statut01^ maximum sentences to.
snpr P 1 50 r ! rs and glvmg Jud8es guided discretion as to a few 
specially selected factors within that range- this possibility seems
to"dKr °nF °tfiier reaS°nS' structuraI democratic^onstrahits exist to discourage legislatures from enacting penal statutes that expose
every defendant convicted of. for example, weapons possession to a 
maximum sentence exceeding that which is. in the legislature s jud g- 
ment. generally proportional to the crime. This is as it should be JOuf 
rule ensures that a State is obliged To make its choices concem^g the 
substantive content of its criminal laws with full awareness of the cons e 
quence,unable to mask substantive policy choices” of exposing all who are

‘ c 228 229. n. 13 (Powell, J., dissenting). So exposed “Itlhe 
derate ’Ch/S d ° n P°tentially harsh legislative action is then more likely to

n J n S! events’ lf such an extensive revision of the States entire crimi- 
code were enacted for the purpose the dissent suggests, or if New 

Jersey simply reversed the burden of the hate crime finding (effectively 
assuming a crime was performed with a purpose to intimidate and then



Cite as: 530 U. S .___ (2000)

Opinion of the Court

25

V
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 re a- 
sonable 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)(l) (West 1999), based upon the 
judge s findmg, by a preponderance of the evidence, that 
the defendants “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

requiring a defendant to prove that it was not, post, at 20). we would be 
required to question whether the revision was constitutional under this

Wilbur. 421 u  432 U' S ’ at 210: M ullaney  v
the PrinciPal dissent ignores the distinction the Court has 

often recognized, see. e.g.. Martin v. Ohio. 480 U. S. 228 (1987) be

dosT ^ 3 19- 2nna88TrfarVatl0nf °f PU"lshment and facts ^  mitigation See p  • at 19 20. If facts found by a jury support a guilty verdict of
murder, the judge is authorized by that jury verdict to sentence the 
defendant to the maximum sentence provided by the murder statute. If 

defendant can escape the statutory maximum by showing for

v e S ' s m t u s  15 > r  Veteran’ then 3 judge that fi"ds the fact of veteran status is neither exposing the defendant to a deprivation of
n^?sy theeajudp th3t auth0rized by the ^ d ic t  according to statute, nor !s the Judge imposing upon the defendant a greater stigma than
that accompanying the jury verdict alone. See supra. at 16-17 Core 
concerns animating the jury and burden-of-proof requirements are thus 
absent from such a scheme. e mus



26 APPRENDI v. NEW JERSEY

Opinion of the Court

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 $ holding to encom­
pass Actors 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 pe r- 
suades 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 di s- 
agreement 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 skepti­
cism at the suggestion that the hate crime statutes “pur- 
pose 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 pos­
sessed. at the time he committed the subject act. a "pur­
pose 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 defendants mens rea.17 It makes no

rf>nrA- R, 8K h!  m°^  common definitions of mens rea is ■'criminal in- 
t. Black s Law Dictionary 1137 (rev. 4th ed. 1968). That dictionary

MnnrPriHm§ y defineS "purP°se" as synonymous with intent, id^lt 
00, and intent as. among other things, "a state of mind. " id  at 947 

B u t we need not venture beyond New Jerseys own criminal code for a 
definition of purpose that makes it central to the description of a 

offense. As the dissenting judge on the state appals court 
pointed out. according to the New Jersey Criminal Code, la] person acts 
purposely with respect to the nature of his conduct or a result thereof if it
a ^  “ nsciaus obJect t0 engage in conduct of that nature or to cause such 

esult. N J. Stat. Ann. §2C:2-2(b)(l) (West 1999). The hate crime 
statutes application to those who act 'With a purpose to intimidate 
because of certain status-based characteristics places it squarely within



27Cite as: 530 U. S .___ (2000)

Opinion of the Court

difference in identifying the nature of this finding that 
Apprendi was also required, in order to receive the sen ­
tence 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 sen­
tence. On the contrary, the fact that the language and 
structure of the “purpose to use “criminal offense is identi- 
cal 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 
defendants intent in committing a crime is perhaps as
close as one might hope to come to a core criminal offense 
element.”18

.thS^eason6ther *  W3S 3 defendant  ̂ "conscious object” to intimidate

18Whatever the effect of the State Supreme Courts comment that the 
law here targets •'motive.” 159 N. J. 7. 20. 731 A. 2d 485, 492 (1999)- 
and it is highly doubtful that one could characterize that comment as a
1 1 9  1? 0f ̂  state statute' see Wisconsin v. Mitchell. 508
U S- at 483_484 (declining to be bound by state court s characterization

n °Perati?  effec° '  even *  the court had not immediately 
ereafter called into direct question its "ability to view this finding as

merely a search for motive," 159 N. J„ at 21. 731 A. 2d. at 492- a State 
cannot through mere characterization change the nature of the conduct 
actuaily targeted_ It is as clear as day that this hate crime law defines a 
particular kind of prohibited intent, and a particular intent is more often 
man not the sme qua non of a violation of a criminal law.

When the principal dissent at long last confronts the actual statute at 
issue in this case in the final few pages of its opinion, it offers in r e- 
sponse to this interpretation only that our reading is contrary to 
settled precedent in Mitchell. Post, at 31. Setting aside the fact that 

Wisconsin s hate crime statute was. in text and substance, different 
from New jerseys. Mitchell did not even begin to consider whether the 
Wisconsin hate crime requirement was an offense “element” or not; it



28 APPRENDI v. NEW JERSEY

Opinion of the Court

The foregoing notwithstanding, however, the New Jer­
sey Supreme Court correctly recognized that it does not 
matter whether the required finding is characterized as 
one of intent or of motive, because “[ljabels 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 sen­
tencing factor- visible possession of a firearm - “might well 
have been included as an element of the enumerated o f- 
lenses ). 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 J

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

m 159tN‘ J" 3t 2°' 731 A' 2d> at 492' Indeed-the effect of New Jerseys sentencing “enhancement” here is 
unquestionably to turn a second-degree offense into a first- 
egree offense, under the States own criminal code. The

^ " “ ythe/u^the required f'ndin8 under the Wisc°ns,n statutt
meaning ‘ Th°» SUSgeSl that ‘I’6 term "sentencing factor" is devoid of 
£  ™u8' appropriately describes a circumstance, which may

" J r  aggravating or ^tigating in character, that support a
S  Hf f Ŝ ntence W1lhln the ranSe authorized by the jury s findkig that 
the defendant is guilty of a particular offense. On the other hand th e n  
the term sentence enhancement" is used to describe an increase
equivalem Statutory sentence. it is the functional
equivalent of an element of a greater offense than the one covered bv
. r .̂Ur̂ S f ui ^  ver£iict- Indeed, it fits squarely within the usual 

defmiuon of an "element" of the offense. See post, at 5 (Thomas j
concurring) (reviewing the relevant authorities). ’ ”



29Cite as: 530 U. S .___ (2000)

Opinion of the Court

law thus runs directly into our warning in Mullaney that 
Wmship is concerned as much with the category of substan­
tive offense as ‘With the degree of criminal culpability” 
assessed. 421 U. S., 698. This concern flows not only from 
the historical pedigree of the juiy 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 & 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 
States 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 se n- 
te"ce" 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 differen­
tial 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



30 APPRENDI v. NEW JERSEY

Opinion of the Court

provisions” of the criminal code “does not mean that the 
finding of a biased purpose to intimidate is not an esse n- 
tial element of the offense.” 159 N. J„ at 20. 731 A. 2d. at 
492. Indeed the fact that New Jersey, along with nume r-
mnH rhe^ Stat! S’ haS ^  made Precisely the same conduct the subject of an independent substantive of-
ense makes it clear that the mere presence of this “e n-

hancement” in a sentencing statute does not define its 
character.20

New Jerseys reliance on Almendarez-Torres is also un­
availing. 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 Jerseys biased purpose inquiry goes 
precisely to what happened in the “commission of the o f- 
tense. Moreover, there is a vast difference between ac­
cepting the validity of a prior judgment of conviction entered 
m 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 re­
jected the argument that the principles guiding our deci­
sion 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 fac-

20Including New Jersey. N. J. Stat. Ann. §2C:33-4 (West Supp. 2000)
0fT en iT ? h 0mmitS a ,Crime °f ^  fourth de8ree if committing an offense [of harassment] under this section, he acted with a purpose to
intimidate an individual or group of individuals because of rac?color 
religion gender, handicap, sexual orientation or ethnicity’) 26 States 
currently have laws making certain acts of racial or other bias free­
standing violations of the criminal law, see generally F. Lawrence 

urns ng Hate. Bias Crimes Under American Law 178-189 (1999) 
(listing current state hate crime laws). 9y



Cite as: 530 U. S .___ (2000)

Opinion of the Court

31

tors before imposing a sentence of death. Walton v. Ari­
zona, 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 ex­
pose him to the death penalty has an absolute ent i- 
tlement to jury trial on all the elements of the charge. ” 
Aimendarez-Torres, 523 U. S„ at 257, n. 2 (SCALIA, J„ 
dissenting) (emphasis deleted).

See also Jones, 526 U. S„ 
(THOMAS, J., concurring).21

at 250-251; post, at 25-26

* * *
The New Jersey procedure challenged in this case is an 

unacceptable departure from the jury tradition that is an

The PriI?cipal dissent, in addition, treats us to a lengthy disquis i- 
tion on the benefits of determinate sentencing schemes, and the effect
?n S !ySr de^ 10n °n the federal Sentencing Guidelines. Post, at 23- 
3U. I he Guidelines are, of course, not before the Court. We therefore
express no view on the subject beyond what this Court has already 
held. See e.g.. Edwards v. United States. 523 U. S. 511, 515 (1998) 
(opinion of Breyer, J„ for a unanimous court) (noting that JoJf course, 
petitioners statutory and constitutional claims would make a difference 
if it were possible to argue, say. that the sentences imposed exceeded 
the maximum that the statutes permit for a cocaine-only conspiracy, 

hat is because a maximum sentence set by statute trumps a higher

S M ^ u a ll S K u a  Cl,ldelin“  IUnl'ed Stat“  SemenC‘"g CUide'



32 APPRENDI v. NEW JERSEY

Opinion of the Court

indispensable part of our criminal justice system Ac­
cordingly, the judgment of the Supreme Court of New 
Jersey is reversed, and the case is remanded for further 
proceedings not inconsistent with this opinion.

It is so ordered.



Cite as: 530 U. S .___ (2000) 1
Scalia, J.. concurring

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, Jr., PETITIONER v 
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
NEW JERSEY
[June 26. 2000]

J u stic e  S calia , concurring.

I feel the need to say  a few words in response to JUSTICE 
BREYERs dissent. It sketches an adm irably fair and e f f i­
cient schem e of crim inal ju stice  designed for a society  th at 
is prepared to leave crim inal ju stice  to the S tate. (Judges 
it is som etim es necessary to remind ourselves, are part of

e tate- 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 iury- 
trial guarantee was one of the least controversial provi­
sions of the Bill of Rights. It has never been efficient; but 
it has always been free.

As for fairness, which JUSTICE B reyer  believes “filn 
modern tim es, ” post, at 1, the jury cannot provide: I th ink  
it not unfair to tell a prospective felon th at if he com m its  
his contem plated crime he is exposing h im self to a jail 
sentence of 30 y e a r s -  and that if, upon conviction, he gets  
anything less than that he m ay thank the m ercy of a 
tenderhearted judge (just as he m ay thank the m ercy of a 
tenderhearted parole com m ission if he is let out inord i- 
nately early, or the m ercy of a tenderhearted governor if 
his sentence is com m uted). Will there be disparities? Of 
course. But the crim inal w ill never get m ore  pu nishm ent 
than he bargained for w hen he did the crime, and h is guilt 
of the crim e (and hence the length of the sen tence to which



2 APPRENDI v. NEW JERSEY

Scalia, J., concurring

r i L t r T ed) WU1 be determined beyond reasonable doubt by the unanimous vote of 12 of his fellow cit izens.
In JUSTICE BREYERs bureaucratic realm of perfect 

equity, by contrast, the facts that determine the length of 
sentence to which the defendant is exposed will be deter­
mined to exist (on a more-Iikely-than-not basis) by a single
Rprvrp6 ° the It; is certaln|y arguable (Justice

>argnUeS 1C) that * *  Sacrif5ce of P"or protections is worth it. But it is not arguable that, just because one
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 guar­
antee throughout our history- the right to have a jury 
determine those facts that determine the maximum

S v e  laW alI°WS- Th6y P™ ide ™ coherent
JUSTICE B r e y e r  proceeds on the erroneous and all-too- 

common assumption that the Constitution means what we
a ' f u  °Ught t0 mean‘ l t  does not: 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 

e facts which must exist in order to subject the defen-
the jury3 ^  ^  preSCribed Punishment must be found by



Cite as: 530 U. S .___ (2000) 1
Thomas, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, Jr., PETITIONER v 
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
NEW JERSEY

(June 26. 2000]

J u st ic e  T h o m as , w ith  whom J u st ic e  S calia  joins as to 
Parts I and II, concurring.

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.

This case turns on the seemingly simple question of 
what constitutes a “crime.” Under the Federal Constitu­
tion, 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. ” Arndts 5 
and 6. See also Art. Ill, §2, cl. 3 (The Trial of all Crimes 
’ ' ' sb£* be by JurY )• the exception of the Grand

au SeASee Hunado 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



2 APPRENDI v. NEW JERSEY

Thomas, J., concurring

Winship, 397 U. S. 358, 364 (1970).
All of these constitutional protections turn on deter­

mining 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); 

Archbold, Pleading and Evidence in Criminal Cases *41 
100 (5th Am- ed- 1846) (hereinafter Archbold). 1 

Thus, it is critical to know which facts are elements, 
ihis question became more complicated following the 
Courts 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 
act increases a defendants punishment but is not subject 

to the constitutional protections to which elements are 
^USTICE O CONNORs dissent, in agreement with 

Almendarez-Torresv. United States. 523 
. ■ . 24 takes the view that a legislature is free

(within unspecified outer limits) to decree which facts are
e ements and which are sentencing enhancements. Post, 
at 2.

Justice O Connor mischaracterizes my argument. See post at 5-6
“ 8 °pini0n)- 0 f  course the Fifth and Sixth Amendments did 

not codify common law procedure wholesale. Rather, and as Storv 
notes, they codified a few particular common-law procedural rights As

“crfme ^  ^  °f th°S6 rightS turns on what constitutes a
common law 8 qUCSti0n’ k iS entirely proPer t0 look t0 the



Cite as: 530 U. S .___ (2000) 3

Thomas, J.. concurring

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 (us u- 
ally 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 what- 
ever constitutional right may be at issue in a case- here 
Winship and the right to trial by jury. A long line of e s ­
sentially 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. r

This authority establishes that a “crime ” includes every 
act that is by law a basis for imposing or increasing pu n- 

lshment (in contrast with a fact that mitigates punish- 
memT 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 wha t- 
ever 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 at­
tempted 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 
lact necessary for that entitlement is an element.



4 APPRENDI v. NEW JERSEY 

Thomas, J., concurring

II
A

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*; on, readily 
applied to these new laws the common-law understanding 
that a fact that is by law the basis for imposing or in ­
creasing 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 
a ege 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 
arceny whose punishment (triple damages) was based on 

the vaIue of the stolen goods. The prosecutor relied on this 
abolition of the traditional distinction to justify the i n-

J I i  is strange that Justice O Connor faults me for beginning my
thP f 1S T th Ca<fS primarily from the 1840 s, rather from the time of 

e founding. See pose, at 5-6 (dissenting opinion). As the Court 
explains, ante, at 11-13, and as she concedes £ost. at 3 (O Connor J 
dissenting), the very idea of a sentencing enhancement was foreign to’ 
the common law of the time of the founding. J ustice O Connor there-
fmin'dand understa"dably- does contend that any history from the 
founding supports her position. As far as I have been able to tell the 
argument that a fact that was by law the basis for imposing or in- 
creasing punishment might not be an element did not seriously arise
from that"? C3? S) Until the l840 's' ^  1 explain below,
r f ?  u ime °n~ f°r at least a centnry- essentially all authority 
rejected that argument, and much of it did so in reliance upon the 
common law. I find this evidence more than sufficient.



Cite as: 530 U. S .___ (2000) 5

Thomas, J., concurring

dictments omissions. The court, however, held that it 
could not sentence the defendant for the stolen goods

2̂406S-e-247Ue WaS n0t S6t °Ut in the indictment‘ I d -  at
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 sen­
tencing based on whether the value of the stolen property 
exceeded $100. The statute was structured similarly to

TS?acUtooVoat We addressed in ^ n es  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 
east from the perspective of our post-McMillan cases, that 

larceny was the crime whereas the value of the stolen prop­
erty 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 b e-

m i7m e^ rphrUn ttS StatKte Pr°vided; 'Every person wh0 sha11 “ m-the ofTence larceny, by stealing of the property of another anv 
money, goods or chattels [or other sort of propertyf if the proper^ 
stolen shall exceed the value of one hundred dollars, shall be puni£h£f 
by impmonment in the state prison, not more than five years, or by 
fme no exceeding six hundred dollars, and imprisonment in the county
Jf. ’ mofre than two 7ears; and if the property stolen shall not exceS  
the value of one hundred dollars, he shall be punished by imprisonment 
in the state prison or the county jail, not more than one year, or by fine
(1836reeding hundfed dollars ” Mass- Rev. Stat., ch. 126̂  §17



6 APPRENDI V. NEW JERSEY

Thomas, J., concurring

cause it is in conformity with long established prac­
tice, 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 
seventy, when accompanied with aggravating circum­
stances, then the statute has “creat[ed] two grades of 

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 punish­
ment, that fact was, for that reason, not an element

1U S ° mmonwealth v- McDonald, 59 Mass. 365 
(1850), which involved an indictment for attempted lar­
ceny 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 ex­
plaining that ”[a]s the punishment . . . does not depend on 
the amount stolen, there was no occasion for any allega­
tion as to value in this indictment.” 59 Mass., at 367. See 
Commonwealth v. Burke, 94 Mass. 182, 183 (1866) (ap­
plying same reasoning to completed larceny from the
person; finding no trial error where value was not proved 
t° jury). K

Similar reasoning was employed by the Wisconsin S u- 
preme Court in Lacyv. State, 15 Wis. *13 (1862), in inter­
preting a statute that was also similar to the statutes at 
issue in Jones and Castillo. The statute, in a single para- 
graph outlawed arson of a dwelling house at night. Arson 
that killed someone was punishable by life in prison; arson



Cite as: 530 U. S .___ (2000) 7

Thomas, J., concurring

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 dis­
tinct statutory offenses.” 15 Wis., at *15, and that the 
lawful presence of a person in the dwelling was an el e- 
ment of the middle offense. The court reasoned from the 
gradations of punishment: ‘That the legislature consi d- 
ered 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 dwel 1- 
ing, the court reversed the defendants 14-year sentence, 
but. relying on Lamed, supra, the court remanded to 
permit sentencing under the lowest grade of the crime 
(which was properly alleged in the indictment). 15 Wis.,

Numerous other state and federal courts in this period 
took the same approach to determining which facts are

7 he Wisconsin statute provided: ‘Every person who shall willfully 
and maliciously burn, in the night time, the dwelling house of another 
whereby the life of any person shall be destroyed, or shall in the night 
time willfully and maliciously set fire to any other building, owned by 
himself or another, by the burning whereof such dwelling house shall 
be burnt in the night time, whereby the life of any person shall be 
destroyed, shall suffer the same punishment as provided for the crime 
of murder in the second degree; but if the life of no person shall have 
been destroyed, he shall be punished by imprisonment in the state 
prison, not more than fourteen years nor less than seven years; and if
fh t‘i?ie °f comrnitting the offense there was no person lawfully in 
the dwelling house so burnt, he shall be punished by imprisonment in 
the state prison, not more than ten years nor less than three years " 
W,s. Rev. Stat ch. 165. §1 (1858). The punishment for second-degree 
murder was life in prison. Ch. 164, §2. s



8 APPRENDI v. NEW JERSEY

Thomas, J., concurring

See RitcheY v- State, 7 Blackf. 168, 
(citmg Commonwealth v. Smith, 1 Mass.

,, (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 ICC 
Ohio .849) (McLean. J.) ("A carrier of the m“ . 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 con­
tained an article of value, which aggravates the offense

T / , ! L ? i?h/e.r Penalty ’): Brightwell v. State, 41 Ga. 
482, 483 (1871) (When the law prescribes a different 
punishment for different phases of the same crime, there 
1S good rcajson 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 pur­
chasing 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 deter­
mining 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 

at fact must be charged in the indictment in order for 
the court to impose the increased punishment. Archbold



Cite as: 530 U. S .___ (2000) 9

Thomas, J., concurring

106, see id., at *50; ante, at 13-14. There was no ques­
tion 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 com­
mon-law crime simply because it increased the punish­
ment 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 
tact that is by law a basis for imposing or increasing pu n- 
lshment comes from early cases addressing recidivism 
statutes. As JUSTICE SCALIA has explained, there was a 
tradition of treating recidivism as an element See Al- 
mendarez-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 a g- 
gravated crime. ’ 6

The two leading antebellum cases on whether recidivism 
is an element were Plumbly v. Commonwealth, 43 Mass.
n t^ i1841)’ 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



10 APPRENDI v. NEW JERSEY

Thomas, J., concurring

prior conviction of a similar offence a part of the d e- 
scription and character of the offence intended to be 
punished; and therefore the fact of such prior convic­
tion must be charged, as well as proved. It is essen­
tial 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 Amendments 
Notice Clause. Ibid. See also Commonwealth v. Haynes 
107 Mass. 194. 198 (1871) (reversing sentence, upon con­
fession of error by attorney general, in case similar to 
Tuttle).

Numerous other cases treating the fact of a prior convic­
tion 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 

crime- KUbourn v. State, 9 Conn. 560, 563 
(1833 ( No person ought to be, or can be, subjected to a 
cumulatnve penalty, without being charged with a cumula­
tive offence’); Plumbly, supra, at 414 (conviction under 
readmsm 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 Phil­
lips, 28 Mass. 28, 33 (1831) (”[U]pon a third conviction, the 
court may sentence the convict to hard labor for life. The 
pumshment !S to be awarded upon that conviction, and for 
the offence of which he is then and there convicted’).



Cite as: 530 U. S .___ (2000) 11

Thomas, J., concurring

Even the exception to this practice of including the fact 
of a prior conviction in the indictment and dying it to the 
juiy 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 com­
plaint for violadon 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 protec­
tions that would attach were a “crime” at issue did not 
apply. Id., at 527; see Goellerv. State, 119 Md. 61 66-67 
85 A. 954, 956 (1912) (discussing Freeman). At the same 
dme, the court freely acknowledged that it had “no doubt” 
o the general rule, particularly as articulated in Mass a- 
chusetts that “it is necessary to allege the former convic­
tion 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 “ap­
parently” 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 con­
viction 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



12 APPRENDI v. NEW JERSEY

Thomas, J., concurring

;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

B
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 regard­
ing the indictment, and thus regarding the elements of a 
crime, to the following: ‘The indictment must allege wha t- 
ever 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 allega­
tion of every fact which is legally essential to the punis h- 
ment to be in f l ic t e d id., §540, at 330 (“[T]he indictment 
must . . . contain an averment of every particular thing 
which enters into the punishment’). Crimes, he ex­
plained, consist of those ‘‘acts to which the law affixes .

5 Some courts read State v. Smith, 8 Rich. 460 (S. C. App 1832) a 
South Carolina case, to hold that the indictment need not allege a prior
See T e" S ta r  * *  de/ f dant t0 an enhanced punishment.See, e.g State v. Burgett. 22 Ark. 323, 324 (1860) (so reading Smith
and quesHoning its correctness). The Smith courts holding was some­
what unclear because the court did not state whether the else involved 
a first or second offense- if a first, the court was undoubtedly correct in 
rejecting the defendants challenge to the indictment, because there is 
no need in an indictment to negate the existence of any prior offense 
See Burgett, supra, at 324 (reading indictment that was silent about 
prior offenses as only charging first offense and as sufficient for that 
purposef In addition, the Smith court did not acknowledge the possi­
bility of disputes over identity. Finally, the extent to which the court J 
J53' ehnt holdin|  was followed in practice in South Carolina is unclear 

d subsequent South Carolina decisions acknowledged that Smith was

?1 s'’ E l i s  ' n m 7 c  mle‘ ^  ParriS’ 89 S‘ C' 140’ 14». 
s  E 2d 350! 351-352 , , 9 5 ? r v' ’ 220 C' 433' 434- 436' 68



Cite as: 530 U. S .___ (2000) 13

Thomas. J., concurring

punishment.” id., §80, at 51. or. stated differently, a crime 
consists of the whole of ‘the wrong upon which the pu n- 
ishment 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 pro­
ceeds. 1 J. Bishop, New Criminal Procedure §84 d  4 9  
(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 provi­
sions 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
" f  T a?eKaP?,arunt t0 °Ur 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 Tn 

illustrate, he observed that there are
various statutes whereby, when . . . assault, is com­

mitted with a particular intent, or with a particular 
weapon, or the like, it is subjected to a particular co r- 
responding punishment, heavier than that for com­
mon 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 re­
quired 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 
tact of a prior conviction- he simply treated it just as any 
other aggravating fact: “[If] it is sought to make the sen- 
ence heavier by reason of its being [a second or third 

o ence], the fact thus relied on must be averred in the 
indictment; because the rules of criminal procedure re­
quire the indictment, in all cases, to contain an averment



14 APPRENDI v. NEW JERSEY

Thomas, J.. concurring

of every fact essential to the punishment sought to be
KnciCted' c 1 J' Bishop' Commentaries on Criminal Law §961, pp. 564-565 (5th ed. 1872).

The constitutional provisions provided further support 
m 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 all e- 
gation, 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 require­
ments 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, 
oee, 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); Larneyv. Cleveland, 34 
Ohio St. 599, 600 (1878) (rule and reason for rule “are well

b/  Mr' Bishop’); State v- Hayward, 83 Mo. 299, 307 
(1884) (extensively quoting §81 of Bishops “admirable

V‘ Sfare’ 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



Cite as: 530 U. S .___ (2000) 15

Thomas, J., concurring

identical with that of reason, viz: that the indictment must 
contain an allegation of every fact which is legally esse n- 
tial to the punishment to be inflicted” (internal quotation 
marks omitted)); see also United States v. Reese 92 U S 
214, 232-233 (.876) (Clifford. J„ concurring “ judjnentt 
(citing and paraphrasing 1 Bishop, Criminal Procedure
3olJ.

In the half century following publication of Bishop*, 
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, eveiy fact 
that was by law a basis for imposing or increasing pun­
ishment (including the fact of a prior conviction) was an 
element^ Each such fact had to be included in the accus a- 
tion oi the crime and proved to the jury.

Courts confronted statutes quite similar to the ones 
with which we have struggled since McMillan, and, ap- 
p ying 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 burglarv’ 
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



16 APPRENDI v. NEW JERSEY

Thomas, J., concurring

Tex at 355.6 See also Searcy v. State, 1 Tex. App. 440,
/i4oocw76  ̂ ŝimilar :̂ 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 con- 
victed of robbery, which was punishable by imprisonment

,°5 *"y t6rm °f years- The court’ relying on Bishop, 
Hope, McDonald, and other authority, rejected his argu­
ment that Maine s Notice Clause (which of course required 
a elements to be alleged) required the indictment to 
allege the value of the goods stolen, because the punis h- 
ment 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 robbeiy, or in any way 
makes the punishment of the offense dependent upon the

and t h i  nf n traditional approach to determining elements
and that of our recent cases is manifest when one considers how one 
might from the perspective of those cases, analyze the issue in Hobbs

Of B u X r v  and' h * * *  aM nssln* burglaiT was entitled simply •Uf Burglary and began with a section explicitly defining The offense
of burglary. After a series of sections defining terms, it then set out six
burelarv ^Th ^  Spedfying the Punishment for various kinds of 
burglary. The section regarding force was one of these. See 1 C

«“h ed  ,8765»St F , ^ WS °fTeXaS' Part "■ Tit * •  I  PP- 4^32-463 J * '" 1 V . 1 F»llo™ng an approach similar to that in Almendarez-
l ° ™  V **<*■ 523 U. S. 224 . 231-234. 242-246 (1998), anl
a d j l r Z o  KS' an“ ' at -  (S,ip °P" at 4"5K one would likely find
than an efemen'r ,ment “  ^  *̂ enhancement rather



Cite as: 530 U. S .___ (2000) 17

Thomas, J., concurring

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 a 1- 
leged 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”; in ­
dictment 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 punish­
ment by law. Many, though far from all, of these courts 
relied on Bishop. In 1878, Maryland s high court, in Ma­
guire v. State, 47 Md. 485. stated the rule and the reason 
tor 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 of­
fence 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 in ­
flicted. ” Maguire, supra, at 496 (citing English cases, 
Plumbly v. Commonwealth, 43 Mass. 413 (1841)



18 APPRENDI v. NEW JERSEY

Thomas, J., concurring 

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 
nal judge to determine the fact of a prior conviction. The 

court extensively quoted Bishop, who had. in the courts 
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 Lamey, 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 

supra, and Kilbourn v. State, 9 Conn. 560 (1833). 
34 Ohio St., at 600.) And in State v. Adams, 64 N. H. 440

(f1888)’ the COurt' re]ying on Bishop, explained’ 
that [t]he former conviction being a part of the descrip­
tion and character of the offense intended to be punished, 
because of the higher penalty imposed, it must be alleged.”

.. at 442, 13 A., at 786. The defendant had been 
charged with an offense aggravated by its repetitious

See 3lS0 Evans v' State• 150 Ind. 51, 653, 50 N. E. 820 (1898) (similar); Shiflett v. Com­
monwealth, 114 Va. 876, 877, 77 S. E. 606. 607 (1913) 
(similar). v '

Even without any reliance on Bishop, other courts ad- 
dressmg recidivism statutes employed the same reasoning 
as did he and the above cases- that a crime includes any 
tact to which punishment attaches. One of the leading 
cases was Wood v. People, 53 N. Y. 511 (1873). The stat­
ute 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



Cite as: 530 U. S .___ (2000) 19

Thomas, J., concurring

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] esta b- 
lished on the trial’); People v. Sickles, 156 N. Y. 541, 544- 
545, 51 N. E. 288, 289 (1898) (reaffirming Wood and John­
son 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 su b- 
jected him to an enhanced penalty’).

Contemporaneously with the New York Court of Ap­
peals 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 De- 
lany, 49 Cal. 394 (1874), which involved a statute making 
petit larceny (normally a misdemeanor) a felony if co m- 
mitted 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



20 APPRENDI V. NEW JERSEY

Thomas, J ., concurring

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 cons e- 
quence 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'). r

Meanwhile, Massachusetts reaffirmed its earlier deci­
sions, 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 im ­
prisonment up to a year for a third conviction, and specifi­
cally provided that a prior conviction need not be alleged 
in the complaint. The court found this law plainly inco n-

• ?iTj e C°Urt held that a 8eneral Plea of ‘guilty" to an indictment that 
Trtr c o L M o a 83110" °f “ P™ r convi« ‘°n -W iles to the fact of the



Cite as: 530 U. S .___ (2000) 21

Thomas, J., concurring

sistent with Tuttle and with the Stated 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 
c°r̂ ^ ons which are essential features of it.” 130 Mass.,

Without belaboring the point any further, I simply note 
that this traditional understanding- that a “crime" in 
eludes 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”: Find­
ing Elements” of Crimes in the Wake of McMillan v
n ooow Va/W'a’ 22 Se3ttle U‘ L Rev‘ 1057- 1069-1081 (1999) (surveying 20th century decisions of federal courts
prior to McMillan); see also People v. Ratner, 67 Cal A dd  
2d Supp. 902, 15 3  P. 2d 790. 7 9 1 -7 9 3  (1944). In fact, it is 
fair to say that McMillan began a revolution in the law 
regarding the definition of “crime.” Todays 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.

See also State v. Austin. 113 Mo. 538, 542, 21 S. W 31 32 (1893) 
£nor conviction is a '•material fac[t]” of the 'aggravated’ offenseT

an y  V' 10 Wyo- I67> 172-174, 67 P. 979, 980 (1902) (“m n
reason and by the great weight of authority, as the fact of a former 
conviction enters into the offense to the extent of aggravating it and
Drovecf n f pUn‘Shmem- 11 muSt -  thftaforZuon i d
S  hk! ,any other material fact, if it is sought to impose the greater 
p nalty  ̂ The statute makes the prior conviction a part of the descrip- 
uon and character of the offense intended to be punished - (citing Tutfie

505 ,1854))); SraKV • 129 ^  709. 
3, Idaho 504. V



22 APPRENDI v. NEW JERSEY

Thomas, J., concurring 

III
The consequence of the above discussion for our deci­

sions 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 ex- 
tremeiy 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

‘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 cov­
ered by the allegations of the indictment. . . . The ag­
gravating 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 
o the permitted mercy [in finding mitigating circu in­
stances], 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 
withm the bounds that the law has prescribed are two 
different things.* Cf. 4 W. Blackstone, Commentaries on

9 This is not to deny that there may be laws on the borderline of this



Cite as: 530 U. S .___ (2000) 23

Thomas, J., concurring

the Law of England 371-372 (1769) (noting judges ’ broad 
discretion in setting amount of fine and length of impri s- 
onment for misdemeanors, but praising determinate pun­
ishment and discretion . . . regulated by law’V Perlev 86 
Me at 429 432. 30 A., at 74. 75-76 (favorably discuSng  
Bishops rule on elements without mentioning, aside from 
quotation of statute in statement of facts, that defendants 
conviction for robbery exposed him to imprisonment for
lfH °r 5 iy^erm 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 con-

m W n rT l ^  Bdghtwel\ v- State- 41 Ga. 482 (1871). the court stated a
defendant harf1115 t0 BishoP*- then held that whether adefendant had committed arson in the day or at night need not be in
the indictment. The court explained that there was no provision that
arson m the night shall be punished for any different period” than

b6ing punishable by 2 to 7 years in prison). Id.,
time shah i  n® SCHefWaS ? St3tUte providing that “arson in the day time shall be punished for a less period than arson in the night time "
sentenr Con̂ luded ^ a t merely set a rule for the exercise of [the 
sentencing judge s] discretion by specifying a particular fact for the
Z *  t0 C°"flder along with the many others that would enter into his 

ntencing dm^on. Ibid. Cf. Jones v. State. 63 Ga. 141 143 (1879)
iffen ^ ”h 8 7  °CrCUrred in day °r at niSht is a "constituent of the
fa r t f  A n d fh f  ? ?  “  diffarent ranSes of punishment based on thisfact . And the statute attached no definite consequence to that par­
ticular fact. A sentencing judge presumably could have imposed a 
sentence of seven years less one second for daytime arson. Finally f t  is 
likdy tha the statute in Brightwell, given its language fa  less period’)
am n!StP CH6n?ent m 3 separate section- was read as se tt in g L t an 
affinrativc defense or mitigating circumstance. See Wright v. State

3 Ga. App. 436, 437-438, 148 S. E 2d 333, 335-336 (1966) (suggest-

StftufeattnU W° be 6rr0r t0 refUSe t0 Charge l3ter versi0" o f  this 
* 1 ns-* i UP°n requf st of defer>dant). See generally Archbold *52
ofa  defense) SCUSSing determining whether fact is an element



24 APPRENDI v. NEW JERSEY

Thomas, J., concurring

straints 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 Almen- 
darez-Torres- an error to which I succumbed- was to 
attempt to discern whether a particular fact is tradition- 
a ly (or typically) a basis for a sentencing court to increase

V  ST tenCe- 523 U' S- at 243- 244: see id., at 
“TU: 24. 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 sen­
tence. If a fact is by law the basis for imposing or i n- 
creasing 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 in ­
creases 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. In ­
deed 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- 

orres, 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.e. Ma-

^ 2 9 0 ^  ^  498’ Sicl<les’ 156 at 547- 51 N. E.,

been common Practice t0 address this concern by 
permitting the defendant to stipulate to the prior conviction, in which



Cite as: 530 U. S .___ (2000) 25

Thomas, J., concurring

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 
dunng the commission of certain crimes). No doubt a 
defendant could, under such a scheme, find himself se n- 
tenced 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 
mandatoiy 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 ex­
pected punishment has increased as a result of the na r- 
rowed 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
m^ deo°I7 minimum “entities] the government,” Wood­
ruff 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 manda­
tory minimum is part of “the punishment sought to be 
inflicted,” Bishop, Criminal Procedure, at 50; it undoubt­
edly 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

case the charge of the prior conviction is not read to the jury, or, if the 
defendant decides not to stipulate, to bifurcate the trial, with the jury
: X Cr i r ng pri0r conviction after *  has reached a guilty

d 70n(i e See' e-g: 1 J- Bishop, Criminal Law §964, at
canon)' p  , c } 5 aVOrably discussing English practice of bifu r-
5o95 M r"?e/V  ,Cra1' 4tH 58°' 587~588' 853 P' 2d 1093,|°96 (1993) (detailing California approach, since 1874, of permi t-
ing stipulation and, more recently, of also permitting bifurcation).



26 APPRENDI v. NEW JERSEY

Thomas, J., concurring

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 ma t- 
tered was simply the overall increase in the punishment 
provided by law. And in several cases, such as Smith and

oodruff, see supra, at 4, 17, the very concept of maxi- 
mums 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 Courts 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 legislatures 
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 automati­
cally upon conviction for certain crimes. We have inter­
posed a barrier between a jury finding of a capital crime

1  C°“rt * ability t0 imP°se 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



Cite as: 530 U. S .___ (2000) 21

Thomas, J., concurring

another day.11
* * *

For the foregoing reasons, as well as those given in the 
Courts opinion, I agree that the New Jersey procedure at 
issue is unconstitutional.

It is likewise unnecessary to consider whether (and, if so. how) the
rule regarding elements applies to the Sentencing Guidelines, given the
3filqnqsm 'tUR th3t they uhave under Mistretta v. United States! 488 U. S
thP r 9H9 : BUi U " T  56 th3t ^  Special status *  irrelevant, because the Guiddines have the force and effect of laws." Id., at 413 (Scalia, J



Cite as: 530 U. S .___ (2000) \

O Connor, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, Jr., PETITIONER v 
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEW JERSEY

(June 26. 2000]

J u st ic e  0  Co n n o r , w ith whom  Th e  Ch ie f  J u st ic e  
JUSTICE KENNEDY, and J u stic e  B reyer  join , d issenting.

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 
oi the Sixth Amendment, any fact (other than prior convic­
tion) 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 
tor its failure to explain the origins, contours, or conse­
quences 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. I d  at 254, 2 6 4 -2 7 2  (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.

I
Our Court has long recognized that not every fact that 

bears on a defendant s punishment need be charged in an 
indictment, submitted to a jury, and proved by the gov-



2 APPRENDI v. NEW JERSEY

O Connor, J .t dissenting

ernment beyond a reasonable doubt. Rather, we have held
that the ‘legislatures definition of the elements of the
offense is usually dispositive.” McMillan v. Pennsylvania,
477 ^  f • 79’ 85 (1986); see also Almendarez-Torres v
v Wl  J o * r ? c 523 U' S' 224‘ 228 (1998): P e r s o n  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 Win- 
ships reasonable-doubt requirement applies to facts not 
» ldentified as elements of the offense charged," 

cMillan, supra, at 86, we have proceeded with caution 
before deciding that a certain fact must be treated as an 
offense element despite the legislatures choice not to char­
acterize it as such. We have therefore declined to establish 
any right-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
Mongev. California, 524 U. S. 721, 728-729 (1998)- McMil­
lan, supra, at 86.

In one bold stroke the Court today casts aside our tradi­
tional cautious approach and instead embraces a universal 
and seemingly bright-line rule limiting the power of Co n- 
gress and state legislatures to define criminal offenses and 
t e sentences that follow from convictions thereunder. 
The Court states: ‘Other than the fact of a prior convic­
tion, 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



Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

over 200 years since the ratification of the Bill of Rights, 
that our Court has applied, as a constitutional require­
ment, 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 
histop/ 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 ele­
ments of a statutory offense for the defendant to be se n- 
tenced to the punishment attached to that statutory of­
fense, 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 nondiscr e- 
tionary 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 exercis­
ing 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, Commentar­
ies on the Laws of England 396 (1768), which pertains to 
remedies] 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 quota­
tions taken from an 1862 criminal procedure treatise. See



4 APPRENDI v. NEW JERSEY

O Connor. J ., dissenting

ante, at 13-14 (quoting J. Archbold. Pleading and Evi­
dence in Criminal Cases 51. 188 (15th ed. 1862)). A closer 
examination of the two statements reveals that neither 
supports the Courts “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 to­
gether. the statements from the Archbold treatise demon- 
strate nothing more than the unremarkable proposition 

at a defendant could receive the greater statutory pu n- 
lshment 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-iaw 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 statu­
tory 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 (“Eveiy offence con­
sists of certain acts done or omitted under certain circum­
stances; 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 propo­
sition with respect to the requirements of an indictment 

emonstrates that the treatise excerpts mean only that 
t e prosecutor must charge and then prove at trial the 
elements of the statutory offense. See 2 M. Hale, Pleas of



Cite as: 530 U. S .___ (2000) 5

O Connor, J., dissenting

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 re a- 
sonable doubt the actual elements of the offense. This 
case, however, concerns the distinct question of when a 
fact that bears on a defendants punishment, but which 
the legislature has not classified as an element of the 
charged offense, must nevertheless be treated as an of­
fense element. The excerpts drawn from the Archbold 
treatise do not speak to this question at all. The history 
on which the Courts opinion relies provides no support for 
its increase in the maximum penalty” rule.

In his concurring opinion, JUSTICE THOMAS cites addi­
tional historical evidence that, in his view, dictates an 
even broader rule than that set forth in the Courts opin­
ion. The history cited by JUSTICE THOMAS does not re­
quire, as a matter of federal constitutional law, the appl i- 
cation of the rule he advocates. To understand why, it is 
important to focus on the basis for JUSTICE THOMAS’ar­
gument. First, he claims that the Fifth and Sixth 
Amendments codified” pre-existing common law. Second, 
he contends that the relevant common law treated any 
act that served to increase a defendants punishment as 

an element of an offense. See a n te , at 2-4. Even if 
JUSTICE T h o m a s  first assertion were correct- a proposi­
tion 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 Amend­
ments, J u s t ic e  T h o m a s ’ concurrence is notable for its 
failure to discuss any historical practice, or to cite any 
decisions, predating (or contemporary with) the ratifica­
tion of the Bill of Rights. Rather, JUSTICE THOMAS divines



6 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

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

ranging Primarily from the 1840*. to the 1890 s 
Whatever those decisions might reveal about the way

merican state courts resolved questions regarding the 
distinction between a crime and its punishment under 
general rules of criminal pleading or their own state co n- 
stitutions, 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 
act 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 rel e- 
vant offense and must do so with certainty. See e.e 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.
• Ĵ St̂ euThomas ^ 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



Cite as: 530 U. S .___ (2000) 7

O Connor, J., dissenting

invention, and not a previously existing rule that would 
have been “codified ” by the ratification of the Fifth and 
bixth Amendments. Few of the decisions cited by JUSTICE 
T h o m a s  indicate a reliance on pre-existing common-law
™  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 i n-
24nm?4?'?SdA’neQf ^ Larned V' ComTnonwe*lth' 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., Rexv. Marshall

T ^ c y. 158> 168 Eng‘ ReP- 1224 (1827)‘ JUSTICE 
IHOMAS collection of state-court opinions is therefore of
marginal assistance in determining the original under­
standing of the Fifth and Sixth Amendments. While the 
decisions JUSTICE Thom as 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 J u stic e  Th o m as , the Court asserts that 
1S supported by “our cases in this area." Ante, at 

i hat 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 tor the increase in the maximum penalty" rule 
announced today. See ante, at 17-18  (quoting Almen- 

darez-T orres  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 
eterminations that affect a defendants guilt or inno- 

ccnce. Ante, at 18. The Court explains Mullaney as hav­
ing held that the due process proof-beyond-a-reasonable- 
doubt requirement applies to those factual determinations 
that, under a States criminal law, make a difference in



8 APPRENDI v. NEW JERSEY

O Connor, J ., dissenting

the degree of punishment the defendant receives. Ante, at 
18. The Court chooses to ignore, however, the decision we
i?7 Cn 0 7 7? Iat6r' Patterson v- Mew York, 432 U. S.
197 r I V  ; WhlCh dearly reJected the Courts 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 riot need to prove 
the absence of extreme emotional disturbance beyond a 
reasonable doubt. Rather, state law imposed the burden

PI ° T ?  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 Pattersons due process challenge to his 
conviction: 5

We thus decline to adopt as a constitutional im ­
perative, operative countrywide, that a State must 
disprove beyond a reasonable doubt every fact const i- 
tuting any and all affirmative defenses related to the 
culpability of an accused. Traditionally, due process 

as required that only the most basic procedural safe­
guards be observed; more subtle balancing of society s 
interests against those of the accused have been left to 
the legislative branch." Id., at 210.

Although we characterized the factual determination 
under New York law as one going to the mitigation of 
culpability, id., at 206, as opposed to the aggravation of 

e punishment, it is difficult to understand why the rule 
adopted by the Court in todays case (or the broader rule



Cite as: 530 U. S .___ (2000) 9

O Connor, J., dissenting

advocated by JUSTICE THOMAS) would not require the 
overruling of Patterson. Unless the Court is willing to 
defer to a legislature s formal definition of the elements of 
an offense, it is clear that the fact that Patterson did not 
act under the influence of extreme emotional disturbance 
in substance, “increase[d] the penalty for [his] crime be­
yond the prescribed statutory maximum ” for first-degree 
manslaughter. Ante, at 24. Nonetheless, we held that 
New Yorks requirement that the defendant, rather than 
the State, bear the burden of proof on this factual dete r- 
mmation comported with the Fourteenth Amendment £ 
Due Process Clause. Patterson, 432 U S at 205-211 
216; see also id., at 204-205 (reaffirming Leland v. Ore- 
gon, 343 U. S. 790 (1952), which upheld against due proc­
ess challenge Oregon s requirement that the defendant 
rather than the State, bear the burden on factual deter­
mination of defendants insanity).

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

“Mullaney s holding, it is argued, is that the State 
may not permit the blameworthiness of an act or the 
seventy of punishment authorized for its commission 
to depend on the presence or absence of an identified 
fact without assuming the burden of proving the pres­
ence or absence of that fact, as the case may be, be­
yond a reasonable doubt. In our view, the Mullaney 
holding should not be so broadly read. ” Patterson, su­
pra, at 214-215 (emphasis added) (footnote omitted).

We explained Mullaney instead as holding only ‘that a 
State must prove every ingredient of an offense beyond a 
reasonable doubt, and that it may not shift the burden of 
proof to the defendant by presuming that ingredient upon 
prool of the other elements of the offense. ” 432 U. S at



10 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

215. Because nothing had been presumed against Patter­
son under New York law. we found no due process viol a- 
tion. Id., at 216. Ever since our decision in Patterson we 
have consistently explained the holding in Mullaney in 
these limited terms and have rejected the broad interpre­
tation the Court gives Mullaney today. See Jones, 526
UVS, '\ atu 241 (‘We identified the use of a presumption to 
establish an essential ingredient of the offense as the
CTnSe ° L 'hTeT ^ aine law [in Mullaney]’)-, Almendarez- 
Torres, 523 U. S.. at 240 ("[Mullaney] suggests that Con­
gress cannot permit judges to increase a sentence in light 
of recidivism, or any other factor, not set forth in an in- 

lctment and proved to a jury beyond a reasonable doubt, 
his Court s later case. . . . Patterson v. New York, how­

ever. makes absolutely clear that such a reading of Mul­
laney is wrong’); McMillan, 477 U. S„ at 84 (same).

The case law from which the Court claims that its rule 
emerges consists of only one other decision- McMillan v. 
Pennsylvania. The Courts reliance on McMillan is also 
puzzling, given that our holding in that case points to the 
rejection of the Courts rule. There, we considered a Penn­
sylvania statute that subjected a defendant to a mand a- 
tory minimum sentence of five years ’ imprisonment if a

f8e/ ° Und’ by 3 PrePonderance of the evidence, that the 
defendant had visibly possessed a firearm during the 
commission of the offense for which he had been convicted. 
id., at 81. The petitioners claimed that the Fourteenth 
Amendments Due Process Clause and the Sixth Amend­
ments jury trial guarantee (as incorporated by the Four­
teenth Amendment) required the State to prove to the jurv 
beyond a reasonable doubt that they had visibly possessed
"  We reJected both constitutional claims. Id. at 
o4—91, 93.

The essential holding of McMillan conflicts with at least 
two o the several formulations the Court gives to the rule 
it announces today. First, the Court endorses the follow-



Cite as: 530 U. S .___ (2000) 11

O Connor. J., dissenting

mg Principle: “ TI]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 de­
fendant is exposed. It is equally clear that such facts must 
be established by proof beyond a reasonable doubt. ’ ”

24 (emPhasis added) (quoting Jones, 526 U. S. at 
252-253 (S t e v e n s , j .. concurring)). Second, the Court 
endorses the rule as restated in JUSTICE SCALIAs concur­
ring opinion in Jones. See ante, at 24. There, JUSTICE 
SCALIA wrote: “[I]t is unconstitutional to remove from the 
juiy the assessment of facts that alter the congressionallv 
prescribed range of penalties to which a criminal defen-

^ P°S1f V  J°neS’ 526 U S ~ at 253 (emphasis added). Thus, the Court appears to hold that any fact that
increases or alters the range of penalties to which a defen- 
ant is exposed- which, by definition, must include i n- 

creases or alterations to either the minimum or maximum
dnnh!tier  P? Ved t0 3 jury heyond a reasonabledoubt. In McMillan, however, we rejected such a rule to
the extent it concerned those facts that increase or alter 
the minimum penalty to which a defendant is exposed 
Accordingly, it is incumbent on the Court not only to 
adrmt that it is overruling McMillan, but also to explain 
why such a course of action is appropriate under normal 
principles of stare decisis.

The Courts opinion does neither. Instead, it attempts 
to lay claim to McMillan as support for its Increase in the 
maximum penalty" rule. According to the Court, McMil­
lan acknowledged that permitting a judge to make find­
ings that expose a defendant to greater or additional 
punishment "may raise serious constitutional concern.” 
Ante, at 20. We said nothing of the sort in McMillan. To 
the contrary, we began our discussion of the petitioners’ 
constitutional claims by emphasizing that we had already 
rejected the claim that whenever a State links the Sever­

ity of punishment ’to the presence or absence of an ident i-



APPRENDI v. NEW JERSEY

O Connor, J., dissenting

fied fact’the State must prove that fact beyond a reason­
able doubt. 477 U. S„ at 84 (quoting Patterson, 432 U. S., 
at 214). We then reaffirmed the rule set forth in Patter­
son- “that in determining what facts must be proved 
beyond a reasonable doubt the state legislature defin i- 
tion of the elements of the offense is usually dispositive." 
McMillan, 477 U. S., at 85. Although we acknowledged 
that there are constitutional limits to the State £ power to 
define crimes and prescribe penalties, we found no need to 
establish those outer boundaries in McMillan because 
several factors” persuaded us that the Pennsylvania 

statute did not exceed those limits, however those limits
defined‘ I d ' at 86- The Courts assertion that 

McMillan-supports the application of its bright-line rule in 
this area is, therefore, unfounded.

The Court nevertheless claims to find support for its 
rule in our discussion of one factor in McMillan- namely, 
our statement that the petitioners ’ claim would have had’ 
at least more superficial appeal” if the firearm possession 
inding had exposed them to greater or additional pun­

ishment. Id., at 88. To say that a claim may have had 
more superficial appeal” is, of course, a far cry from say­

ing that a claim would have been upheld. Moreover, we 
made that statement in the context of examining one of 
several factors that, in combination, ultimately gave “no 
doubt that Pennsylvania s [statute fell] on the permissible 
side of the constitutional line.” Id., at 91. The confidence 
of that conclusion belies any argument that our ruling 
would have been different had the Pennsylvania statute 
instead increased the maximum penalty to which the 
petitioners were exposed. In short, it is clear that we did 
not articulate any bright-line rule that States must prove 
to a jury beyond a reasonable doubt any fact that exposes 
a defendant to a greater punishment. Such a rule would 
have been in substantial tension with both our earlier 
acknowledgment that Patterson rejected such a rule, see



Cite as: 530 U. S .___ (2000) 13

O Connor, J., dissenting

477 U- S-: at 84, and our recognition that a state legisla­
tures definition of the elements is normally dispositive
I f ' * ;  a t .85' If any sin§le mle can be derived from 
McMillan, it is not the Courts “increase in the maximum 
penalty principle, but rather the following: When a State 
takes a fact that has always been considered by sentencing 
courts to bear on punishment, and dictates the precise 
weight that a court should give that fact in setting a de­
fendant s sentence, the relevant fact need not be proved to 
a jury beyond a reasonable doubt as would an element of 
the offense. See id., at 89-90.

Apart from Mullaney and McMillan, the Court does not 
claim to find support for its rule in any other pre- Jones 
decision. Thus, the Court is in error when it says that its 
rule emerges from our case law. Nevertheless, even if one 
were willing to assume that Mullaney and McMillan lend 
some support for the Courts position, that feeble founda­
tion is shattered by several of our precedents directly 
addressing the issue. The only one of those decisions that 
the Court addresses at any length is Almendarez-Torres.

here, we squarely rejected the “increase in the maximum 
pena ty rule. Petitioner also argues, in essence, that this 
Court should simply adopt a rule that any significant 
increase in a statutory maximum sentence would trigger a 
constitutional elements’requirement. We have explained 
w y we believe the Constitution, as interpreted in McMil- 
‘l1] a"d earIier cases, does not impose that requirement.” 

523 U. S at 247. Whether Almendarez-Torres directly 
reluted the increase in the maximum penalty” rule was 
extensively debated in Jones, and that debate need not be 
repeated here. See 526 U. S„ at 248-249; id , at 268-270 
(KENNEDY, J., dissenting). I continue to agree with JUSTICE 
Ke n n e d y  that Almendarez-Torres constituted a clear repu-
df„tl°n °fthe rule the Court adopts today. See Jones, supra, 
at 268 (dissenting opinion). My understanding is bolstered 
by Monge v. California, a decision relegated to a footnote by



14 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

the Court today. In Monge, in reasoning essential to our 
holding, we reiterated that ‘the Court has rejected an ab- 
solute rule that an enhancement constitutes an element of 
the offense any time that it increases the maximum sen­
tence to which a defendant is exposed.” 524 U. S., at 729 
(citing Almendarez- Torres). At the veiy least, Monge dem­
onstrates that Almendarez- Torres was not an “exceptional 
departure from ‘historic practice. ” Ante, at 21.

Of all the decisions that refute the Courts “increase in 
the maximum penalty” rule, perhaps none is as important 
as Walton v. Arizona, 497 U. S. 639 (1990). There, a jury 
found Walton, the petitioner, guilty of first-degree murder. 
Under Arizona law, a trial court conducts a separate 
sentencing hearing to determine whether a defendant 
convicted of first-degree murder should receive the death 
penalty or life imprisonment. See id., at 643 (citing Ariz 
Rev. Stat. Ann. §13-703(B) (1989)). At that sentencing 
hearing, the judge, rather than the jury, must determine 
the existence or nonexistence of the statutory aggravating 
and mitigating factors. See Walton, 497 U S at 643 
(quoting § 13-703 (B)). The Arizona statute directs the 

judge to impose a sentence of death if the court finds one 
or more of the aggravating circumstances enumerated in 
[the statute] and that there are no mitigating circum­
stances sufficiently substantial to call for leniency ’ ” Id 
at 644 (quoting §13-703(E)). Thus, under Arizona law. a’ 
defendant convicted of first-degree murder can be sen­
tenced to death only if the judge finds the existence of a 
statutory aggravating factor.

Walton challenged the Arizona capital sentencing 
scheme, arguing that the Constitution requires that the 
jury, and not the judge, make the factual determination of 
the existence or nonexistence of the statutory aggravating 
factors. We rejected that contention: " Any argument that 

requires that a jury impose the sentence 
of death or make the findings prerequisite to imposition of



Cite as: 530 U. S .___ (2000) 15

O Connor, J., dissenting

such a sentence has been soundly rejected by prior dec i- 
sions of this Court.'" Id . at 647 (quoting*CfaamTv. 
Mississippi, 494 U. S. 738, 745 (1990)). Relying in part on 
our decisions rejecting challenges to Florida s capital 
sentencing scheme, which also provided for sentencing by 
the trial judge, we added that “ the Sixth Amendment 
does not require that the specific findings authorizing the 
imposition of the sentence of death be made by the jury.' " 
Wa/ton supra, at 648 (quoting Hildwin v. Florida, 490 
U. S. 638, 640-641 (1989) (per curiam)).

While the Court can cite no decision that would require 
its increase in the maximum penalty" rule, Walton 
plainly rejects it. Under Arizona law, the fact that a 
statutory aggravating circumstance exists in the defen- 
° ant ,̂ ,Case increases the maximum penalty for [the] 
crime ’ ” of first-degree murder to death. Ante, at 9 (quot­
ing Jones, supra, at 243, n. 6). If the judge does not find 
the existence of a statutory aggravating circumstance, the 
maximum punishment authorized by the jury s guilty 
verdict is life imprisonment. Thus, using the terminology 

at the Court itself employs to describe the constitutional 
fault in the New Jersey sentencing scheme presented here, 
under Arizona law, the judge s finding that a statutory 
aggravating circumstance exists ‘‘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." Ante, at 16 (emphasis in original). 
Even J u s t ic e  T h o m a s , whose vote is necessary to the 
Courts opinion today, agrees on this point. See ante, at 
b̂. ii a State can remove from the jury a factual determ i- 

nation that makes the difference between life and death, 
as Walton holds that it can, it is inconceivable why a State 
cannot do the same with respect to a factual determina­
tion that results in only a 10-year increase in the maxi­
mum sentence to which a defendant is exposed.

The distinction of Walton offered by the Court today is



16 APPRENDI v. NEW JERSEY

O Connor. J.. dissenting

baffling, to say the least. The key to that distinction is the 
Courts claim that, in Arizona, the jury makes all of the 
findings necessary to expose the defendant to a death 
sentence See ante, at 31 (quoting Almendarez-Torres, 523 

k S" at. 257’ n' 2 (SCALIA, J., dissenting)). As explained 
above, that claim is demonstrably untrue. A defendant 
convicted of first-degree murder in Arizona cannot receive 
a death sentence unless a judge makes the factual dete r- 
mination that a statutory aggravating factor exists. With-
°at c',ntical finding. the maximum sentence to which 
the defendant is exposed is life imprisonment, and not the 

eath penalty. Indeed, at the time Walton was decided, 
the author of the Court s opinion today understood well 
the issue at stake. See Walton, 497 U S  at 709 
(STEVENS, J-. dissenting) (“[U]nder Arizona law', as con­
strued by Arizona s highest court, a first-degree murder is 
not punishable by a death sentence until at least one 
statutory aggravating circumstance has been proved’) In 
any event, the extent of our holding in Walton should have 
been perfect^ obvious from the face of our decision. We 
upheld the Arizona scheme specifically on the ground that 
he Constitution does not require the juiy to make the 

factua! findings that serve as the “ prerequisite to imposi­
tion of [a death] sentence, ’ ” id., at 647 (quoting Clemons 
supra, at 745), or “ the specific findings authorizing the 
imposition of the sentence of death, ’ ” Walton, supra at 
b48 (quoting Hildwin, supra, at 640-641). If the Court 
does not intend to overrule Walton, one would be hard 
pressed to tell from the opinion it issues today.

The distinction of Walton offered by JUSTICE THOMAS is

T H n !L df CUlt t0 ComPrehend- According to JUSTICE 
1HOMAS. because the Constitution requires state legisla­
tures to narrow sentencing discretion in the capital- 
punishment context, facts that expose a convicted defend­
ant to a capital sentence may be different from all other 
lacts that expose a defendant to a more severe sentence



Cite as: 530 U. S .___ (2000) 17

O Connor, J., dissenting

See ante, at 26 -2 7 . JUSTICE Thom as gives no specific 
reason for excepting capital defendants from the constitu­
tional protections he would extend to defendants gener­
ally, and none is readily apparent. If JUSTICE THOMAS 
means to say that the Eighth Amendment restriction on 
a state legislatures ability to define capital crimes should 
be compensated for by permitting States more leeway 
under the Fifth and Sixth Amendments in proving an 
aggravating fact necessary to a capital sentence, his rea- 
dence8 ^ With°Ut Precedent in our constitutional jurispru-

In sum, the Courts statement that its “increase in the 
maximum penalty “rule emerges from the history and case 
law that it cites is simply incorrect. To make such a claim, 
the Court finds it necessary to rely on irrelevant historical 
evidence, to ignore our controlling precedent {e.g., Patter­
son), and to offer unprincipled and inexplicable distinc­
tions between its decision and previous cases addressing
u/6!531!16 subJect ln the capital sentencing context (eg. 
Walton). The Court has failed to offer any meaning- 
ul justification for deviating from years of cases both 

suggesting and holding that application of the “increase 
in the maximum penalty” rule is not required by the 
Constitution. J

II
That the Court s rule is unsupported by the history and 

case law it cites is reason enough to reject such a substan­
tial departure from our settled jurisprudence. Signifi­
cantly, the Court also fails to explain adequately why the 
Due Process Clauses of the Fifth and Fourteenth Amend­
ments and the jury trial guarantee of the Sixth Amend­
ment require application of its rule. Upon closer examin a -  
tion, it is possible that the Courts “increase in the 
maximum penalty” rule rests on a meaningless formalism 
that accords, at best, marginal protection for the constitu-



18 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

tional rights that it seeks to effectuate.
Any discussion of either the constitutional necessity or 

the likely effect of the Courts rule must begin, of course 
with an understanding of what exactly that rule is. As 
was the case in Jones, however, that discussion is compli­
cated here by the Courts failure to clarify the contours of 
the constitutional principle underlying its decision. See 
Jones, 526 U. S„ at 267 (KENNEDY. J.. dissenting). In fact, 
there appear to be several plausible interpretations of the
constitutional principle on which the Courts decision 
rests.

For example, under one reading, the Court appears to 
hold that the Constitution requires that a fact be submi t- 
ted to a jury and proved beyond a reasonable doubt only if 
that fact, as a formal matter, extends the range of pun­
ishment beyond the prescribed statutory maximum. See, 
e.g., ante, at 24. A State could, however, remove from the 
jury (and subject to a standard of proof below ‘beyond a 
reasonable doubt’) the assessment of those facts that 
define narrower ranges of punishment, within the overall 
statutory range, to which the defendant may be sentenced.
See’ e g " ante’ at 28> n- 19- Thus- apparently New Jersey 
could cure its sentencing scheme, and achieve virtually the 
same results, by drafting its weapons possession statute in 
the following manner: First, New Jersey could prescribe 
in the weapons possession statute itself, a range of 5 to 20 
years imprisonment for one who commits that criminal 
offense. Second, New Jersey could provide that only those 
defendants convicted under the statute who are found 
by a judge, by a preponderance of the evidence, to have 
acted with a purpose to intimidate an individual on the 
basis of race may receive a sentence greater than 10 years ’ 
imprisonment.

The Court s proffered distinction of Walton v. Arizona 
suggests that it means to announce a rule of only this 
limited effect. The Court claims the Arizona capital se n-



Cite as: 530 U. S .___ (2000) 19

O Connor, J., dissenting

tenting scheme is consistent with the constitutional pri n- 
ciple underlying todays decision because Arizona s first- 
degree murder statute itself authorizes both life impris- 
onment and the death penalty. See Ariz. Rev. Stat. Ann. 
§13-1105(C) (1989). “ [OJnce a jury  has found the defen­
dant 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.’” Ante, at 

1 (emphasis in original) (quoting Almendarez-Torres, 523 
U. S., at 257, n. 2 (SCALIA, J„ dissenting)). Of course, as 
explained above, an Arizona sentencing judge can impose 
the maximum penalty of death only if the judge first 
makes a statutorily required finding that at least one 
aggravating factor exists in the defendants case. Thus, 
the Arizona first-degree murder statute authorizes a 
maximum penalty of death only in a formal sense. In real 
terms however, the Arizona sentencing scheme removes 
from the jury the assessment of a fact that determines 
whether the defendant can receive that maximum pun­
ishment. The only difference, then, between the Arizona 
scheme and the New Jersey scheme we consider here- 
apart from the magnitude of punishment at stake- is that 
New Jersey has not prescribed the 20-year maximum 
penalty in the same statute that it defines the crime to be 
punished. It is difficult to understand, and the Court does 
not explain, why the Constitution would require a state 
legisJature to follow such a meaningless and formalistic 
difference in drafting its criminal statutes.

Under another reading of the Courts decision, it may 
mean only that the Constitution requires that a fact be 
submitted to a jury and proved beyond a reasonable doubt 
‘ formal matter, increases the range of punishment
beyond that which could legally be imposed absent that 
tact See, e.g., ante, at 16. 24. A State could, however, 
remove from the jury (and subject to a standard of proof



20 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

below ‘beyond a reasonable doubt’) the assessment of 
those facts that, as a formal matter, decrease the ranee of 
punishment below that which could legally be imposed 
absent that fact. Thus, consistent with our decision in 
Patterson, New Jersey could cure its sentencing scheme, 
and achieve virtually the same results, by drafting its 
weapons possession statute in the following manner: First, 

ew Jersey could prescribe, in the weapons possession 
statute itself, a range of 5 to 20 years ’ imprisonment for 
one who commits that criminal offense. Second, New 
Jersey could provide that a defendant convicted under the 
statute whom a judge finds, by a preponderance of the 
evidence not to have acted with a purpose to intimidate 
an individual on the basis of race may receive a sentence 
no greater than 10 years imprisonment 

The rule that JUSTICE THOMAS advocates In his concur­
ring opinion embraces this precise distinction between a 
tact that increases punishment and a fact that decreases 
punishment. See ante, at 3 (“[A] fcrime ’includes every fact 
that is by law a basis for imposing or increasing punis h- 
ment (m contrast with a fact that mitigates punis h- 
ment) ). The historical evidence on which JUSTICE 
THOMAS relies, however, demonstrates both the difficulty 
and the pure formalism of making a constitutional ‘‘e le­
ments rule turn on such a difference. For example, the 
Wisconsin statute considered in Lacyv. State, 15 Wis. *13 
(1862), could plausibly qualify as either increasing or 
mitigating punishment on the basis of the same specified 
fact. There, Wisconsin provided that the willful and mal i- 
cious burning of a dwelling house in which “the life of no 
person shall have been destroyed’’was punishable by 7 to 

years in prison, but that the same burning at a time in 
which “there was no person lawfully in the dwelling 
house was punishable by only 3 to 10 years in prison 
Wis. Rev. Stat.. ch. 165. §1 (1858). Although the statute 
appeared to make the absence of persons from the affected



Cite as: 530 U. S .___ (2000) 21

O Connor, J., dissenting

dwelling house a fact that mitigated punishment, the 
Wisconsin Supreme Court found that the presence of a 
person in the affected house constituted an aggravating 
circumstance. Lacy, supra, at *15-* 16. As both this 
example and the above hypothetical redrafted New Jersey 
statute demonstrate, see supra, at 20, whether a fact is 
responsible for an increase or a decrease in punishment 
rests in the eye of the beholder. Again, it is difficult to 
understand, and neither the Court nor JUSTICE THOMAS 
explains, why the Constitution would require a state 
legislature to follow such a meaningless and formalistic 
difference in drafting its criminal statutes.

If either of the above readings is all that the Courts 
decision means, “the Courts principle amounts to nothing 
more than chastising [the New Jersey Legislature] for 
failing to use the approved phrasing in expressing its 
intent as to how [unlawful weapons possession] should be 
punished.” Jones, 526 U. S„ at 267 (Ke n n e d y , J„ dis­
senting) If New Jersey can, consistent with the Constitu­
tion, make precisely the same differences in punishment 
turn on precisely the same facts, and can remove the 
assessment of those facts from the jury and subject them 
o a standard of proof below ‘beyond a reasonable doubt ” 

it is impossible to say that the Fifth, Sixth, and Four­
teenth Amendments require the Courts rule. For the 
same reason, the “structural democratic constraints” that 
might discourage a legislature from enacting either of the 
above hypothetical statutes would be no more significant 
than those that would discourage the enactment of New 
Jersey s present sentence-enhancement statute. See ante 
at 24, n. 16 (majority opinion). In all three cases, the 
egislature is able to calibrate punishment perfectly, and 

subject to a maximum penalty only those defendants 
whose cases satisfy the sentence-enhancement criterion 
As JUSTICE KENNEDY explained in Jones, “[n]o constitu­
tional values are served by so formalistic an approach



22 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

while its constitutional costs in statutes struck down 
are real.” 526 U. S., at 267.

Given the pure formalism of the above readings of the 
Courts opinion, one suspects that the constitutional prin­
ciple underlying its decision is more far reaching The 
actual principle underlying the Courts decision may be 
f at any fact (other than prior conviction) that has the 
etlect, in real terms, of increasing the maximum punish­
ment beyond an otherwise applicable range must be su b- 
mitted to a jury and proved beyond a reasonable doubt. 
See. e.g., ante, at 28 (“[T]he relevant inquiry is one not of 
form but of effect- does the required finding expose the 
defendant to a greater punishment than that authorized 
y t e jurys guilty verdict?’). The principle thus would 

apply not only to schemes like New Jerseys, under which 
a tactual determination exposes the defendant to a se n- 
tence beyond the prescribed statutory maximum, but also 
to all determinate-sentencing schemes in which the length 
of a defendants sentence within the statutory range turns 
on specific factual determinations {e.g., the federal Sen­
tencing Guidelines). JUSTICE THOMAS essentially con­
cedes that the rule outlined in his concurring opinion 
would require the invalidation of the Sentencing Guid e- 
lines. See ante, at 27, n. 11.

I would reject any such principle. As explained above, it 
is inconsistent with our precedent and would require the
CCT L t0,overrule- at a minimum, decisions like Patterson 
and Walton. More importantly, given our approval of- 
and the significant history in this country of- 
discretionary sentencing by judges, it is difficult to 
understand how the Fifth. Sixth, and Fourteenth 
Amendments could possibly require the Courts or JUSTICE 
T h o m a s  rule. Finally, in light of the adoption of 
determinate-sentencing schemes by many States and the 
Federal Government, the consequences of the Courts and 
JUSTICE T h o m a s ’ rules in terms of sentencing schemes



Cite as: 530 U. S .___ (2000) 23

O Connor, J., dissenting

invalidated by today s decision will likely be severe.
As the Court acknowledges, we have never doubted that 

the Constitution permits Congress and the state legisla­
tures to define criminal offenses, to prescribe broad ranges 
of punishment for those offenses, and to give judges di s- 
cretion to decide where within those ranges a particular 
defendant s punishment should be set. See ante, at 14- 15 . 
That view accords with historical practice under the Con­
stitution. ‘From the beginning of the Republic, federal 
judges were entrusted with wide sentencing discretion.
1 he great majority of federal criminal statutes have stated 
only a maximum term of years and a maximum monetary 
tine, permitting the sentencing judge to impose any term 
of imprisonment and any fine up to the statutory maxi-

^', Stlth & J' Cabranes- pear of Judging: Sentenc- 
ing Guidelines in the Federal Courts 9 (1998) (footnote 
omitted). Under discretionary-sentencing schemes, a 
judge bases the defendant s sentence on any number of 
tacts neither presented at trial nor found by a jury beyond 
a reasonable doubt. As one commentator has explained:

During the age of broad judicial sentencing discretion, 
judges frequently made sentencing decisions on the b a- 
sis of facts that they determined for themselves, on less 
than proof beyond a reasonable doubt, without eliciting 
very much concern from civil libertarians___ The sen­
tence in any number of traditional discretionary situ a- 
tions depended quite directly on judicial findings of sp e- 
cific contested facts. . . . Whether because such facts 
were directly relevant to the judges retributionist as­
sessment of how serious the particular offense was 
(within the spectrum of conduct covered by the statute 
of conviction), or because they bore on a determination 
o how much rehabilitation the offenders character was 
likely to need, the sentence would be higher or lower, in 
some specific degree determined by the judge, based on



24 APPRENDI v. NEW JERSEY

O Connor, J ., dissenting

the judges factual conclusions.” Lynch, Towards A 
Model Penal Code, Second (Federal?), 2 Buffalo Crim 
L. Rev. 297, 320 (1998) (footnote omitted).

Accordingly, under the discretionary-sentencing schemes, 
a actual determination made by a judge on a standard of 
proof below ‘beyond a reasonable doubt” often made the 
difference between a lesser and a greater punishment.

or example, in Williams v. New York, a jury found the 
defendant guilty of first-degree murder and recommended 
life imprisonment. The judge, however, rejected the jury s 
recommendation and sentenced Williams to death on the 
basis of additional facts that he learned through a pre­
sentence investigation report and that had neither been 
charged in an indictment nor presented to the jury. 337 
U. S at 242-245. In rejecting Williams'due process 
c allenge to his death sentence, we explained that there 
was a long history of sentencing judges exercising Vide 
discretion in the sources and types of evidence used to 
assist [them] in determining the kind and extent of pu n- 
lshment to be imposed within limits fixed by law.” Id., at 
246. Specifically, we held that the Constitution does not 
restrict a judges sentencing decision to information that is 
charged in an indictment and subject to cross-examination 
in open court. ‘The due process clause should not be 
treated as a device for freezing the evidential procedure of 
sentencing in the mold of trial procedure.” Id at 251 

Under our precedent, then, a State may leave the de­
termination of a defendants sentence to a judges discre- 
tionary decision within a prescribed range of penalties 
When a judge, pursuant to that sentencing scheme, d e- 
cides to increase a defendants sentence on the basis of 
certain contested facts, those facts need not be proved to a
JÛ u 6yund 3 reasonable doubt- The judges findings, 
whether by proof beyond a reasonable doubt or less, suffice 
for purposes of the Constitution. Under the Courts deci-



Cite as: 530 U. S .___ (2000) 25

O Connor, J., dissenting

sion today, however, it appears that once a legislature 
constrains judges’ sentencing discretion by prescribing 
certain sentences that may only be imposed (or must be 
imposed) in connection with the same determinations of 
the same contested facts, the Constitution requires that 
the facts instead be proved to a jury beyond a reasonable 
doubt. I see no reason to treat the two schemes differ­
ently. See, e.g., McMillan, 477 U. S., at 92 (“We have 
some difficulty fathoming why the due process calculus 
would change simply because the legislature has seen fit 
to provide sentencing courts with additional guidance’). 
In this respect, I agree with the Solicitor General that "[a] 
sentence that is constitutionally permissible when selected 
by a court on the basis of whatever factors it deems appro­
priate does not become impermissible simply because the 
court is permitted to select that sentence only after mak­
ing a finding prescribed by the legislature. ” Brief for 
United States as Amicus Curiae 7. Although the Court 
acknowledges the legitimacy of discretionary sentencing 
y judges, see ante, at 14-15, it never provides a sound 

reason for treating judicial factfinding under determinate- 
sentencing schemes differently under the Constitution.

J u s t ic e  T h o m a s  ’ attempt to explain this distinction is 
similarly unsatisfying. His explanation consists primarily 
of a quotation, in turn, of a 19th-century treatise writer, 
who contended that the aggravation of punishment within 
a statutory range on the basis of facts found by a judge 

is an entirely different thing from punishing one for 
what is not alleged against him. ’ ” Ante, at 22 (quoting 1 
J. Bishop, Commentaries on Law of Criminal Procedure 
§85 p. 54 (rev. 2d ed. 1872)). As our decision in Williams 
v. New York demonstrates, however, that statement does 
not accurately describe the reality of discretionary sen­
tencing conducted by judges. A defendants actual pun­
ishment can be affected in a very real way by facts never 
alleged in an indictment, never presented to a jury, and



26 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

never proved beyond a reasonable doubt. In Williams’ 
case, facts presented for the first time to the judge for 
purposes of sentencing alone, made the difference between 
life imprisonment and a death sentence.

Consideration of the purposes underlying the Sixth 
Amendments jury trial guarantee further demonstrates 
why our acceptance of judge-made findings in the context 
oi discretionary sentencing suggests the approval of the 
same judge-made findings in the context of determinate 
sentencing as well. One important purpose of the Sixth 
Amendment s jury trial guarantee is to protect the crimi- 
nal defendant against potentially arbitrary judges. It 
effectuates this promise by preserving, as a constitutional 
matter, certain fundamental decisions for a jury of ones 
peers, as opposed to a judge. For example, the Court has 
recognized that the Sixth Amendments guarantee was 
motivated by the English experience of “competition . 
between judge and jury over the real significance of their 
respective roles,” Jones, 526 U. S„ at 245, and measures 
l at were taken] to diminish the juries ’power, ” ibid. We 
ave also explained that the jury trial guarantee was 

understood to provide “an inestimable safeguard against 
the corrupt or overzealous prosecutor and against the 
compliant, biased, or eccentric judge. If the defendant 
preferred the common-sense judgment of a jury to the 
more tutored but perhaps less sympathetic reaction of the 
single judge, he was to have it.” Duncan v. Louisiana, 391 
U. S. 145. 156 (1968). Blackstone explained that the right to 
trial by jury was critically important in criminal cases 
because of “the violence and partiality of judges appointed 
by the crown. . . .  who might then, as in France or Turkey, 
imprison, dispatch, or exile any man that was obnoxious to 
the government, by an instant declaration, that such is their 
wi and pleasure. 4 Blackstone, Commentaries, at 343 
Clearly, the concerns animating the Sixth Amendments 
jury trial guarantee, if they were to extend to the sentencing



Cite as: 530 U. S .___ (2000) 27

O Connor, J., dissenting

context at all, would apply with greater strength to a discre­
tionary-sentencing scheme than to determinate sentencing. 
In the former scheme, the potential for mischief by an arb i- 
trary judge is much greater, given that the judges decision 
of where to set the defendants sentence within the pre­
scribed statutory range is left almost entirely to discretion. 
In contrast, under a determinate-sentencing system, the 
discretion the judge wields within the statutory range is 
tightly constrained. Accordingly, our approval of discretion­
ary-sentencing schemes, in which a defendant is not entitled 
to have a jury make factual findings relevant to sentencing 
despite the effect those findings have on the severity of the 
defendants sentence, demonstrates that the defendant 
should have no right to demand that a jury make the 
equivalent factual determinations under a determinate- 
sentencing scheme.

The Court appears to hold today, however, that a defe n- 
dant is entitled to have a jury decide, by proof beyond a 
reasonable doubt, every fact relevant to the determination 
ol sentenee under a determinate-sentencing scheme. If 
this is an accurate description of the constitutional princ i- 
ple underlying the Courts opinion, its decision will have 
the effect of invalidating significant sentencing reform 
accomplished at the federal and state levels over the past 
three decades. JUSTICE Thomas’rule, as he essentially
concedes, see ante, at 27, n. 11, would have the same 
effect.

Prior to the most recent wave of sentencing reform the 
Federal Government and the States employed indetermi­
nate-sentencing schemes in which judges and executive 
branch officials (e.g., parole board officials) had substan­
tial discretion to determine the actual length of a defe n- 
dants sentence. See, e.g., U. S. Dept, of Justice. S. Shane- 
DuBow, A. Brown. & E. Olsen, Sentencing Reform in the 
United States: History, Content, and Effect 6-7 (Aug. 
1985) (hereinafter Shane-DuBow); Report of Twentieth



28 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

Century Fund Task Force on Criminal Sentencing, Fair 
and Certain Punishment 11-13 (1976) (hereinafter Task 
Force Report); A. Dershowitz, Criminal Sentencing in the 
United States: An Historical and Conceptual Overview, 
423 Annals Am. Acad. Pol. & Soc. Sci. 117 128-129 
(1976). Studies of indeterminate-sentencing schemes 
tound that similarly situated defendants often received 
widely disparate sentences. See, e.g., Shane-Dubow T 
Task Force Report 14. Although indeterminate sentencing 
was intended to soften the harsh and uniform sentences 
formerly imposed under mandatory-sentencing systems 
some studies revealed that indeterminate sentencing 
actually had the opposite effect. See, e.g., A. Campbell, 
Law of Sentencing 13 (1978) (‘Paradoxically the humani­
tarian impulse sparking the adoption of indeterminate 
sentencing systems in this country has resulted in an 
actua increase of the average criminals incarceration 
term); Task Force Report 13 (“[T]he data seem to indicate 
that in those jurisdictions where the sentencing structure
is more indeterminate, judicially imposed sentences tend 
to be longer ).

In response, Congress and the state legislatures shifted 
to determinate-sentencing schemes that aimed to limit 
judges sentencing discretion and, thereby, afford similarly 
situated offenders equivalent treatment. See, e.g.. Cal. 
Penal Code Ann. §1170 (West Supp. 2000). The most well 
known of these reforms was the federal Sentencing Re­
form Act of 1984, 18 U. S. C. §3551 et seq. In the Act, 
Congress created the United States Sentencing Commis­
sion, which in turn promulgated the Sentencing Guide­
lines that now govern sentencing by federal judges. See,
If"  U,ni êTd Stat6S Sentencing Commission, Guidelines 
Manual (Nov. 1998). Whether one believes the determ i- 
nate-sentencmg reforms have proved successful or not- 
ond the subject is one of extensive debate among 
commentators- the apparent effect of the Courts opinion



Cite as: 530 U. S .___ (2000) 29

O Connor, J., dissenting

today is to halt the current debate on sentencing reform in 
its tracks and to invalidate with the stroke of a pen three 
decades worth of nationwide reform, all in the name of a 
principle With a questionable constitutional pedigree. 
Indeed, it is ironic that the Court, in the name of constit u- 
tional rights meant to protect criminal defendants from 
the potentially arbitrary exercise of power by prosecutors 
and judges, appears to rest its decision on a principle that 
would render unconstitutional efforts by Congress and the 
state legislatures to place constraints on that very power 
in the sentencing context.

Finally, perhaps the most significant impact of the 
Court s decision will be a practical one- its unsettling 
effect on sentencing conducted under current federal and 
state determinate-sentencing schemes. As I have ex­
plained, the Court does not say whether these schemes are 
constitutional, but its reasoning strongly suggests that 
they are not. Thus, with respect to past sentences handed 
down by judges under determinate-sentencing schemes, 
the Courts decision threatens to unleash a flood of peti­
tions by convicted defendants seeking to invalidate their 
sentences in whole or in part on the authority of the 
Court s decision today. Statistics compiled by the United 
States Sentencing Commission reveal that almost a half- 
million cases have been sentenced under the Sentencing 
Guidelines since 1989. See Memorandum from U. S. 
Sentencing Commission to Supreme Court Library, dated
c T 6 .8,_2000 (total number of cases sentenced under 
federal Sentencing Guidelines since 1989) (available in 

lerk of Courts case file). Federal cases constitute only 
the tip of the iceberg. In 1998, for example, federal crim i- 
nal prosecutions represented only about 0.4% of the total 
number of criminal prosecutions in federal and state 
courts. See National Center for State Courts, A National 
Perspective: Court Statistics Project (federal and state 
court filings, 1998), http://www.ncsc.dni.us/divisions/

http://www.ncsc.dni.us/divisions/


30 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

research/csp/csp98-fscf.html (showing that, in 1998, 57,691
W6re fll6d in federal court compared to 14,623,330 in state courts). Because many States, like

New Jersey, have determinate-sentencing schemes, the 
number of individual sentences drawn into question by the 
Court s decision could be colossal.

The decision will likely have an even more damaging 
effect on sentencing conducted in the immediate future 
under current determinate-sentencing schemes. Because 
the Court fails to clarify the precise contours of the consti­
tutional principle underlying its decision, federal and state 
judges are left in a state of limbo. Should they continue to 
assume the constitutionality of the determinate- 
sentencing schemes under which they have operated for so 
long and proceed to sentence convicted defendants in 
accord with those governing statutes and guidelines? The 
Court provides no answer, yet its reasoning suggests that 
each new sentence will rest on shaky ground. The most 
unfortunate aspect of todays decision is that our prece­
dents did not foreordain this disruption in the world of 
sentencing. Rather, our cases traditionally took a cautious 
approach to questions like the one presented in this case.
I he Court throws that caution to the wind and, in the 
process, threatens to cast sentencing in the United States 
into what will likely prove to be a lengthy period of consi d- 
erable confusion.

Ill
Because I do not believe that the Courts “increase in the 

maximum penalty” rule is required by the Constitution I 
woukl evaluate New Jerseys sentence-enhancement stat­
ute, N. J. Stat. Ann. §2C:44-3 (West Supp. 2000), by ana­
lyzing the factors we have examined in past cases See 
e.g Almendarez-Torres, 523 U. S.. at 242-243; McMillan,

nL7 h;ff '^ atK 390' First' the New Jersey statute does Ot shift the burden of proof on an essential ingredient of



Cite as: 530 U. S .___ (2000) 31

O Connor. J., dissenting

the offense by presuming that ingredient upon proof of 
other elements of the offense. See. e.g., id., at 86-87- 
Patterson, 432 U. S„ at 215. Second, the magnitude of the 
New Jersey sentence enhancement, as applied in peti­
tioners case, is constitutionally permissible. Under New 
Jersey law, the weapons possession offense to which pet i- 
tioner pleaded guilty carries a sentence range of 5 to 10
l er TA% r S o f m ? 16111 N J- Stat’ Ann‘ §§2C:39-4(a), 2C:43-6(a)(2) (West 1995). The fact that petitioner in
committing that offense, acted with a purpose to intimi­
date because of race exposed him to a higher sentence 
range of 10 to 20 years ’ imprisonment. §2C:43-7(a)(3). 
The 10-year increase in the maximum penalty to which 
petitioner was exposed falls well within the range we have 
9°!inî Permissible. See Almendarez-Torres, supra, at 226, 
242-243 (approving 18-year enhancement). Third, the 
New Jersey statute gives no impression of having been 
enacted to evade the constitutional requirements that 
attach when a State makes a fact an element of the 
charged offense. For example. New Jersey did not take 
what had previously been an element of the weapons 
possession offense and transform it into a sentencing 
factor. See McMillan, 477 U. S„ at 89.

In sum, New Jersey “simply took one factor that has 
always been considered by sentencing courts to bear on 
punishment -  a defendants motive for committing the 
criminal offense- “and dictated the precise weight to be 
given that factor” when the motive is to intimidate a per­
son because of race. Id, at 89-90. The Court claims that 
a purpose to intimidate on account of race is a traditional 
mens rea element, and not a motive. See ante, at 26-27 
To make this claim, the Court finds it necessaiy once 
again to ignore our settled precedent. In Wisconsin v. 
Mitchell, 508 U. S. 476 (1993), we considered a statute 
similar to the one at issue here. The Wisconsin statute 
provided for an increase in a convicted defendants pun-



32 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

ishment if the defendant intentionally selected the victim 
o the crime because of that victim & race. Id., at 480 In a 
unanimous decision upholding the statute, we specifically 
characterized it as providing a sentence enhancement 
based on the motive” of the defendant. See id., at 485 
(distinguishing between punishment of defendant s 
criminal conduct” and penalty enhancement Tor conduct

3 discriminat0IT point of view” (emphasis 
added)); id., at 484-485 (“[UJnder the Wisconsin statute 
the same criminal conduct may be more heavily punished 
if the victim is selected because of his race . . . than if no 
such motive obtained” (emphasis added)). That same 
characterization applies in the case of the New Jersey 
statute. As we also explained in Mitchell, the motive for 
committing an offense has traditionally been an important 
factor in determining a defendants sentence. Id., at 485.

ew Jersey, therefore, has done no more than what we 
held permissible in McMillan; it has taken a traditional 
sentencing factor and dictated the precise weight judges 
should attach to that factor when the specific motive is to 
intimidate on the basis of race.

The New Jersey statute resembles the Pennsylvania 
statute we upheld in McMillan in every respect but one.

at difference- that the New Jersey statute increases 
the maximum punishment to which petitioner was ex- 
posed- does not persuade me that New Jersey “sought to 
evade the constitutional requirements associated with the 
c aracterization of a fact as an offense element. ” Supra 
at 2. There is no question that New Jersey could prescribe’ 
a range of 5 to 20 years ’ imprisonment as punishment for 
its weapons possession offense. Thus, as explained above 
the specific means by which the State chooses to control 
judges discretion within that permissible range is of no 
moment. Cf. Patterson, supra, at 207-208 (The Due 
Process Clause, as we see it, does not put New York to the 
choice of abandoning [the affirmative defense] or unde r-



Cite as: 530 U. S .___ (2000) 33

O Connor, J., dissenting

taking to disprove [its] existence in order to convict of a 
crime which otherwise is within its constitutional powers 
to sanction by substantial punishment’). The New Jersey 
statute also resembles in virtually every respect the fed­
eral statute we considered in Almendarez-Torres That 
the New Jersey statute provides an enhancement based on 
the defendants motive while the statute in Almendarez- 
Torres provided an enhancement based on the defendants 
commission of a prior felony is a difference without const i- 
tutional importance. Both factors are traditional bases for 
increasing an offenders sentence and, therefore, may 
serve as the grounds for a sentence enhancement.

On the basis of our prior precedent, then, I would hold 
that the New Jersey sentence-enhancement statute is 
constitutional, and affirm the judgment of the Supreme 
Court of New Jersey.



Cite as: 530 U. S .___ (2000) 1

Breyer, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, Jr., PETITIONER v 
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEW JERSEY

[June 26. 2000]

J u st ic e  B rey er . w ith whom  Ch ie f  J u st ic e  Re h n q u is t  
joins, dissenting.

The majority holds that the Constitution contains the 
following requirement: any fact [other than recidivism] 
that increases the penalty for a crime beyond the pre­
scribed statutory maximum must be submitted to a jury, 
and proved beyond a reasonable doubt.” Ante, at 24. This 
rule would seem to promote a procedural ideal- that of 
juries, not judges, determining the existence of those facts 
upon which increased punishment turns. But the real 
world of criminal justice cannot hope to meet any such 
ideal. It can function only with the help of procedural 
compromises, particularly in respect to sentencing. And 
those compromises, which are themselves necessary for 
the fair functioning of the criminal justice system, pre­
clude implementation of the procedural model that today s 
decision reflects. At the very least, the impractical nature 
of the requirement that the majority now recognizes sup­
ports the proposition that the Constitution was not in ­
tended to embody it.

I
In modern times the law has left it to the sentencing 

judge to find those facts which (within broad sentencing 
limits set by the legislature) determine the sentence of a



2 APPRENDI V. NEW JERSEY

Breyer, J., dissenting

convicted offender. The judge s factfinding role is not 
inevitable One could imagine, for example, a pure 
charge offense ' sentencing system in which the degree of 

punishment depended only upon the crime charged ( e.g. 
eight mandatory years for robbery, six for arson, three for 
assault). But such a system would ignore many harms 
and risks of harm that the offender caused or created and 
it would ignore many relevant offender characteristics. 
See Umted States Sentencing Commission, Sentencing 
Guidelines and Policy Statements, Part A, at 1.5 (1987) 
(hereinafter Sentencing Guidelines or Guidelines) (poin t- 
mg out that a “charge offense ” system by definition would 
ignore any fact “that did not constitute [a] statutory ele-
me" W °f i he offens[e] of which the defendant was con- 
victed ). Hence, that imaginary “charge offense" system 
would not be a fair system, for it would lack proportiona 1- 
«ty.i.e it would treat different offenders similarly despite
major differences in the manner in which each committed 
the same crime.

There are many such manner-related differences in 
respect to criminal behavior. Empirical data collected by 
he Sentencing Commission makes clear that, before the 

Guidelines, judges who exercised discretion within broad 
legislatively determined sentencing limits (say, a range of 
° to 20 years) would impose very different sentences upon 
offenders engaged in the same basic criminal conduct, 
depending, for example, upon the amount of drugs distri b- 
uted (in respect to drug crimes), the amount of money 
taken (in respect to robbery, theft, or fraud), the presence 
or use of a weapon, injury to a victim, the vulnerability of 
a victim the offender^ role in the offense, recidivism, and 
many other offense-related or offender-related factors. See 

mted States Sentencing Commission, Supplementary 
Report on the Initial Sentencing Guidelines and Policy 
Statements 35-39 (1987) (table listing data representing 
more than 20 such factors) (hereinafter Supplementary



Cite as: 530 U. S .___ (2000)

Breyer, J., dissenting

Report); see generally Department of Justice, W. Rhodes & 
C. Conly, Analysis of Federal Sentencing (May 1981). The 
majority does not deny that judges have exercised, and, 
constitutionally speaking, may exercise sentencing discre­
tion in this way.

Nonetheless, it is important for present purposes to 
understand why judges, rather than juries, traditionally 
have determined the presence or absence of such sentence- 
affecting facts in any given case. And it is important to 
realize that the reason is not a theoretical one, but a pra c- 
tical one. It does not reflect (JUSTICE SCALIAs opinion to 
the contrary notwithstanding) an ideal of procedural 
fairness, ” ante, at 1 (concurring opinion), but rather an 

administrative need for procedural compromise. There 
are, to put it simply, far too many potentially relevant 
sentencing factors to permit submission of all (or even
many) of them to a jury. As the Sentencing Guidelines 
state the matter,

[a] bank robber with (or without) a gun which the 
robber kept hidden (or brandished) might have 
frightened (or merely warned), injured seriously (or 
less seriously), tied up (or simply pushed) a guard, a 
teller or a customer, at night (or at noon), for a bad (or 
arguably less bad) motive, in an effort to obtain money 
for other crimes (or for other purposes), in the com­
pany of a few (or many) other robbers, for the first (or 
fourth) time that day, while sober (or under the infl u- 
ence of drugs or alcohol), and so forth.” Sentencing 
Guidelines, Part A, at 1.2.

The Guidelines note that “a sentencing system tailored to 
fit every conceivable wrinkle of each case can become 
unworkable and seriously compromise the certainty of 
punishment and its deterrent effect. ” Ibid. To ask a jury 
to consider all, or many, such matters would do the same.

At the same time, to require jury consideration of all



4 APPRENDI v. NEW JERSEY

Breyer, J., dissenting

such factors- say. during trial where the issue is guilt or 
innocence- could easily place the defendant in the aw k- 
ward (and conceivably unfair) position of having to denv 
he committed the crime yet offer proof about how he com­
mitted it. e.g, 1  did not sell drugs, but I sold no more than 
00 grams. And while special postverdict sentencing 

juries could cure this problem, they have seemed (but for 
capital cases) not worth their administrative costs. Hence 
before the Guidelines, federal sentencing judges typically 
would obtain relevant factual sentencing information from 
probation officers ’ presentence reports, while permitting a 
convicted offender to challenge the informations accuracy 
at a hearing before the judge without benefit of trial-type 
evidentiary rules. See Williams v. New York, 337 U. S. 241 
249-251 (1949) (describing the modem “practice of indi­
vidualizing punishments “under which judges often consider 
otherwise inadmissible information gleaned from probation 
reports); see also Kadish, Legal Norm And Discretion In

904, 9.05-917A(.d96S2)ntenCing ^  L' ^
It is also important to understand how a judge tradi­

tionally determined which factors should be taken into 
account for sentencing purposes. In principle, the number 
of potentially relevant behavioral characteristics is en d- 
ess. A judge might ask, for example, whether an unla w- 

fully possessed knife was “a switchblade, drawn or con­
cealed. opened or closed, large or small, used in connection 
with a car theft (where victim confrontation is rare) a 
burglary (where confrontation is unintended) or a robbery 
(where confrontation is intentional).” United States Sen­
tencing Commission, Preliminary Observations of the 
n^miTliSSi0n °n Commissioner Robinsons Dissent 3 n 3 
(May 1 1987). Again, the method reflects practical, rather 
than theoretical, considerations. Prior to the Sentencing 

uidelines, federal law left the individual sentencing 
judge free to determine which factors were relevant. That



Cite as: 530 U. S .___ (2000) 5

Breyer, J .t dissenting

freedom meant that each judge, in an effort to tailor pu n- 
ishment to the individual offense and offender, was guided 
primarily by experience, relevance, and a sense of propo r- 
tional fairness. Cf. Supplementary Report, at 16-17 (not­
ing that the goal of the Sentencing Guidelines was to 
create greater sentencing uniformity among judges, but in 
doing so the Guidelines themselves had to rely primarily 
upon empirical studies that showed which factors had 
proved important to federal judges in the past).

Finally, it is important to understand how a legislature 
decides which factual circumstances among all those 
potentially related to generally harmful behavior it should 
transform into elements of a statutorily defined crime 
(where they would become relevant to the guilt or inno­
cence of an accused), and which factual circumstances it 
should leave to the sentencing process (where, as sen ­
tencing factors, they would help to determine the sentence 
imposed upon one who has been found guilty). Again, 
theory does not provide an answer. Legislatures, in de­
fining crimes in terms of elements, have looked for gui d- 
ance to common-law tradition, to history, and to current 
social need. And, traditionally, the Court has left legisl a- 
tures considerable freedom to make the element determi­
nation. See Almendarez-Torres v. United States, 523 U. S. 
224, 228 (1998); McMillan v. Pennsylvania 477 U S 79 85 
(1986). ’ '

By placing todays constitutional question in a broader 
context, this brief survey may help to clarify the nature of 
todays decision. It also may explain why, in respect to 
sentencing systems, proportionality, uniformity, and 
admmistrability are all aspects of that basic “fairness” 
that the Constitution demands. And it suggests my basic 
problem with the Courts rule: A sentencing system in 
which judges have discretion to find sentencing-related 
factors is a workable system and one that has long been 
thought consistent with the Constitution; why, then,



6 APPRENDI v. NEW JERSEY

Breyer, J., dissenting

dlfferernty? C°nStitU£i0n treat sentencing statutes any

II
As JUSTICE Th o m a s  suggests, until fairly recent times 

many legislatures rarely focused upon sentencing factors. 
Rather, it appears they simply identified typical forms of 
antisocial conduct, defined basic “crimes,” and attached a 
broad sentencing range to each definition- leaving judges 
free to decide how to sentence within those ranges in light 
of such factors as they found relevant. Ante, at 12-15, 21 
concurring opinion). But the Constitution does not freeze 
mh-century sentencing practices into permanent law.

nd dissatisfaction with the traditional sentencing system 
(reflecting its tendency to treat similar cases differently) 
has led modern legislatures to write new laws that refer 
specifically to sentencing factors. See Supplementary 

eport, at 1 (explaining that “a growing recognition of the 
need to bring greater rationality and consistency to penal 
statutes and to sentences imposed under those statutes”

Guideline)rm Cff0rtS SUCh “  the Federa’ SemenCin«
Legislatures have tended to address the problem of too 

much judicial sentencing discretion in two ways. First 
egislatures sometimes have created sentencing commis­

sions armed with delegated authority to make more uni­
form judicial exercise of that discretion. Congress, for 
example, has created a federal Sentencing Commission 
giving it the power to create Guidelines that (within the 
sentencing range set by individual statutes) reflect the 
host of factors that might be used to determine the actual 
sentence imposed for each individual crime. See 28 
U. S. C. §994(a); see also United States Sentencing Com­
mission, Guidelines Manual (Nov. 1999). Federal judges 
must apply those Guidelines in typical cases (those that lie 
in the heartland ” of the crime as the statute defines it)



Cite as: 530 U. S .___ (2000) 7

Breyer, J., dissenting

while retaining freedom to depart in atypical cases Id 
ch. 1, pt. A, 4(b).

Second, legislatures sometimes have directly limited the 
use (by judges or by a commission) of particular factors in 
sentencing, either by specifying statutorily how a par­
ticular factor will affect the sentence imposed or by spec i- 
ying how a commission should use a particular factor 

when writing a guideline. Such a statute might state 
explicitly, for example, that a particular factor, say, use of 
a weapon, recidivism, injury to a victim, or bad motive, 
shall increase, or “may" increase, a particular sentence 

in a particular way. See, e.g.. McMillan, supra, at 83 
(Pennsylvanm statute expressly treated ‘Visible possession
°^a rire>arm aS 3 sentencing consideration that subjected 
a defendant to a mandatory 5-year term of imprisonment) 

The issue the Court decides today involves this second 
kind of legislation. The Court holds that a legislature 
cannot enact such legislation (where an increase in the 
maximum is involved) unless the factor at issue has been 
charged, tried to a jury, and found to exist beyond a re a- 
sonable doubt. My question in respect to this holding
is, simply, "why would the Constitution contain such a 
requirement’?

Ill
In light of the sentencing background described in Parts 

I and II, I do not see how the majority can find in the 
Constitution a requirement that “any fact" (other than 
recidivism) that increases the maximum penalty for a 
crime “must be submitted to a jury.” Ante, at 24. As 
J u s t ic e  O Co n n o r  demonstrates, this Court has previ­
ously failed to view the Constitution as embodying anv 
such principle, while sometimes finding to the contrary, 
bee Almendarez-Torres, supra, at 239-247; McMillan 
supra at 84-91. The majority raises no objection to tradi­
tional pre-Guidelines sentencing procedures under which



8 APPRENDI V. NEW JERSEY

Breyer, J., dissenting

judges, not juries, made the factual findings that would 
lead to an increase in an individual offenders sentence 
How does a legislative determination differ in any signifi­
cant way? For example, if a judge may on his or her own 
decide that victim injury or bad motive should increase a 
bank robbers sentence from 5 years to 10, why does it 
matter that a legislature instead enacts a statute that 
increases a bank robbers sentence from 5 years to 10 
based on this same judicial finding?

With the possible exception of the last line of JUSTICE 
bCALlA s concurring opinion, the majority also makes no 
constitutional objection to a legislative delegation to a 
commission of the authority to create guidelines that 
determine how a judge is to exercise sentencing discretion 
See also ante, at 27, n. 11 (THOMAS, J„ concurring) (re­
serving the question). But if the Constitution permits 
Guidelines, why does it not permit Congress similarly to 
guide the exercise of a judges sentencing discretion? That 
is, it the Constitution permits a delegatee (the commis- 
sion) to exercise sentencing-related rulemaking power
effo'JThlt eny tf!e dele«ator <the legislature) what is, in eirect, the same rulemaking power?

The majority appears to offer two responses. First it 
argues for a limiting principle that would prevent a legi s- 
lature with broad authority from transforming (jury. 
determined) facts that constitute elements of a crime into 
Oudge-determined) sentencing factors, thereby removing 
procedural protections that the Constitution would other­
wise require. See ante, at 19 ("constitutional limits" pre­
vent states from defin[ing] away facts necessary to consti- 
ute a criminal offense’). The majoritys cure, however, is 

not aimed at the disease.
The same “transformational” problem exists under 

traditional sentencing law, where legislation, silent as to 
sentencing factors, grants the judge virtually unchecked 
discretion to sentence within a broad range. Under such a



Cite as: 530 U. S .___ (2000) 9

Breyer, J., dissenting

system, judges or prosecutors can similarly “transform” 
crimes, punishing an offender convicted of one crime as if 
he had committed another. A prosecutor, for example, 
might charge an offender with five counts of embezzle­
ment (each subject to a 10-year maximum penalty), while 
asking the judge to impose maximum and consecutive 
sentences because the embezzler murdered his employer. 
And, as part of the traditional sentencing discretion that 
the majority concedes judges retain, the judge, not a jury, 
would determine the last-mentioned relevant fact, i.e., 
that the murder actually occurred.

This egregious example shows the problem s complexity 
The source of the problem lies not in a legislatures power 
to enact sentencing factors, but in the traditional legisl a- 
tive power to select elements defining a crime, the tradi­
tional legislative power to set broad sentencing ranges, 
and the traditional judicial power to choose a sentence 
within that range on the basis of relevant offender con­
duct. Conversely, the solution to the problem lies, not in 
prohibiting legislatures from enacting sentencing factors, 
but in sentencing rules that determine punishments on 
the basis of properly defined relevant conduct, with sens i- 
tivity to the need for procedural protections where sen­
tencing factors are determined by a judge (for example 
use of a “reasonable doubt” standard), and invocation of 
the Due Process Clause where the history of the crime at 
issue, together with the nature of the facts to be proved, 
reveals unusual and serious procedural unfairness. Cf. 
McMillan, 477 U. S., at 88 (upholding statute in part 
because it “gives no impression of having been tailored to 
permit the [sentencing factor] to be a tail which wags the 
dog of the substantive offense').

Second, the majority, in support of its constitutional 
rule, emphasizes the concept of a statutory “maximum. ” 
ihe Court points out that a sentencing judge (or a com­
mission) traditionally has determined, and now still d e-



10 APPRENDI v. NEW JERSEY

Breyer. J .t dissenting

termines, sentences within a legislated range capped bv a 
maximum (a range that the legislature itself sets). See 
ante, at 14-15. I concede the truth of the majority s 
statement, but I do not understand its relevance.

From a defendants perspective, the legislatures deci­
sion to cap the possible range of punishment at a statuto­
rily prescribed maximum” would affect the actual sen­
tence imposed no differently than a sentencing 
commissions (or a sentencing judges) similar determina­
tion. Indeed, as a practical matter, a legislated mandatory 
minimum is far more important to an actual defendant 

A judge and a commission, after all, are legally free to 
select any sentence below a statute s maximum, but they 
are not free to subvert a statutory minimum. And as 
JUSTICE THOMAS indicates, all the considerations of fair­
ness that might support submission to a jury of a factual 
matter that increases a statutory maximum, apply a 
fortiori to any matter that would increase a statutory 
minimum. See ante, at 25-26 (concurring opinion) To 
repeat, I do not understand why, when a legislature 
authorizes a judge to impose a higher penalty for bank 
robbery (based, say, on the courts finding that a victim 
was injured or the defendants motive was bad), a new 
crime is born; but where a legislature requires a judge to 
impose a higher penalty than he otherwise would (within 
a pre-existing statutory range) based on similar criteria it 
is not. Cf. Almendarez-Torres, 523 U. S., at 246.

IV
I certainly do not believe th at the present sen ten cin g  

system  is one of ‘perfect eq u ity ,” ante, at 2 (SCALIA J 
concurring), and I am w illing, consequently, to assu m e  
hat the m ajoritys rule would provide a degree of i n ­

creased procedural protection in respect to those p articu ­
lar sen tencing factors currently em bodied in s ta tu tes  I 
non etheless believe th at any such increased protection



Cite as: 530 U. S .___ (2000) 11

Breyer. J., dissenting

provides little practical help and comes at too high a price 
Bor one thing, by leaving mandatory minimum sentences 
untouched, the majority s rule simply encourages any 
legislature interested in asserting control over the sen­
tencing process to do so by creating those minimums.

hat result would mean significantly less procedural 
laimess, not more.

For another thing, this Court s case law, prior to Jones 
v. United States, 526 U. S. 227, 243, n. 6 (1999), led legi s- 
atures to believe that they were permitted to increase a 

statutory maximum sentence on the basis of a sentencing 
factor. See ante, at 7-17 (O CONNOR, J., dissenting); see 
also e.g., McMillan, supra, at 84-91 (indicating that a 
egislature could impose mandatory sentences on the basis 

of sentencing factors, thereby suggesting it could impose 
more flexible statutory maximums on same basis). And 
legislatures may well have relied upon that belief. See
e g” f 1 U‘ S‘ C- §841(b) (1994 ed. and Supp. Ill) (providing 
penalties for, among other things, possessing a “controlled 
substance” with intent to distribute it, which sentences 
vary dramatically depending upon the amount of the drug 
possessed, without requiring jury determination of the 
amount); N. J. Stat. Ann. §§2C:43-6, 2C:43-7. 2C:44-la-f 
2C:44-3 (West 1995 and Supp. 1999-2000) (setting sen ­
tencing ranges for crimes, while providing for lesser or 
greater punishments depending upon judicial findings 
regarding certain “aggravating" or “mitigating” factors); 
Cal. Penal Code Ann. §1170 (West Supp. 2000) (similar)- 
see also Cal. Court Rule 420(b) (1996) (providing that 
icjircumstances in aggravation and mitigation” are to be 

established by the sentencing judge based on ‘the case 
record, the probation officers report, [and] other reports 
and statements properly received’).

As JUSTICE O Conno r  points out, the m ajority s rule 
creates serious uncertainty about the constitu tionality  of 
such sta tu tes  and about the constitu tionality  of the co n-



12 APPRENDI V. NEW JERSEY

Breyer, J., dissenting

fmement of those punished under them. See ante, at 27- 
30 (dissenting opinion). The few amicus briefs that the

ourt received in this case do not discuss the impact of the 
Courts new rule on, for example, drug crime statutes or 
state criminal justice systems. This fact, I concede, may 
suggest that my concerns about disruption are overstated- 
yet it may also suggest that (despite Jones and given 
Almendarez-Torres) so absolute a constitutional prohibi­
tion is unexpected. Moreover, the rationale that underlies 
the Courts rule suggests a principle-jury determination 
of all sentencing-related facts- that, unless restricted 
hreatens the workability of every criminal justice sys­

tem (if applied to judges) or threatens efforts to make 
those systems more uniform, hence more fair (if applied to 
commissions).

Finally, the Courts new rule will likely impede legisla­
tive attempts to provide authoritative guidance as to how 
courts should respond to the presence of traditional sen ­
tencing factors. The factor at issue here- motive- is such 
a factor. Whether a robber takes money to finance other 
crimes or to feed a starving family can matter, and long 
has mattered when the length of a sentence is at issue 
The State of New Jersey has determined that one mo- 
tive racia! hatred- is particularly bad and ought to make 
a difference in respect to punishment for a crime That 
determination is reasonable. The procedures mandated
Thn ” m 7 ith traditional sentencing practice.
I hough additional procedural protections might well be

/I"  the reaS° nS JUSTICE O CONNOR d iscu sses  
and those I have discussed, I do not believe the C on stitu -
!°n recluires them where ordinary sentencing factors are 

at issue. Consequently, in my view, New Jerseys statute 
is constitutional. J LaLULe

I respectfully d issent.



(Slip Opinion) OCTOBER TERM. 1999 1

Syllabus

NOTE: Where it Is feasible, a syllabus (headnote) will be released, as Is 
being done in connection with this case, at the time the opinion is Issued.
The syllabus constitutes no part of the opinion of the Court but has been 
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co.. 200 U. S. 321. 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

APPRENDI v. NEW JERSEY 

CERTIORARI TO THE SUPREME COURT OF NEW JERSEY 

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 prose­
cutor filed a motion to enhance the sentence. The court found by a 
preponderance of the evidence that the shooting was racially moti­
vated and sentenced Apprendi to a 12-year term on the firearms 
count. In upholding the sentence, the appeals court rejected Ap­
prendi s claim that the Due Process Clause requires that a bias find­
ing be proved to a jury beyond a reasonable doubt. The State Su­
preme Court affirmed.

Held: The Constitution requires that any fact that increases the pen­
alty 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 fc Due Process Clause and the 
Sixth Amendments 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,



2 APPRENDI v. NEW JERSEY

Syllabus

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 pre­
scribed 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 nov­
elty 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 im­
pose 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 
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 Jer­
sey provides for first-degree crimes on his finding, by a preponder­
ance of the evidence, that the defendants purpose was to intimidate 
his victim based on the victim £ particular characteristic. The States 
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 ex-



Cite as: 530 U. S .___ (2000) 3

Syllabus

poses 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 >> liberty 
and for the heightened stigma associated with an offense the legisla­
ture 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 Pd 
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 concur­
ring 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.



1Cite as: 530 U. S .___ (2000)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States. Wash-
ineton D C 2fK*» „f -----formal errors, in order

t goes to press.

noury tne Keporter of Decisions. Supreme Court of the Uni 
ington. D. C. 20543. of any typographical or other forma 
that corrections may be made before the preUminary print j

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, Jr ., PETITIONER v.
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
NEW JERSEY

[June 26, 2000]

JUSTICE Stevens delivered the opinion of the Court.
A New Jersey statute classifies the possession of a 

firearm for an unlawful purpose as a “second-degree” 
offense. 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 S tates Supreme Court as a 
‘hate crime” law, provides for an “extended term ” of im ­
prisonment 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, hand i- 
cap, 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 o f­
fenses 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



2 APPRENDI v. NEW JERSEY

Opinion of the Court

reasonable doubt.

I
At 2:04 a.m. on December 22, 1994, petitioner Charles 

C. Apprendi, Jr., fired several .22-caliber bullets into the 
home of an African-American family that had recently 
moved into a previously all-white neighborhood in Vin e- 
land, 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 statem ent- 
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 indict­
ment 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 wea p- 
ons. 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 posse s- 
sion 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” sen ­
tence on count 18 (which was based on the December 22 
shooting) on the ground that that offense was committed



3Cite as: 530 U. S .___ (2000)

Opinion of the Court

with a biased purpose, as described in §2C:44-3(e). A p- 
prendi, 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 Apprendis 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 enhanc e- 
ment, 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 Apprendis “purpose" for the shooting on D e ­
cember 22. Apprendi adduced evidence from a psychol o- 
gist 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 officers 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 
Apprendis actions were taken "with a purpose to intimi-



4 APPRENDI v. NEW JERSEY

Opinion of the Court

date” 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 se n- 
tence was based must be proved to a jury beyond a re a- 
sonable 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 el e- 
m ent” 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 ex-



5Cite as: 530 U. S .___ (2000)

Opinion of the Court

plaining that while due process only requires the State to 
prove the “elem ents” 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 kidna p- 
ping 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 statutes “purpose to intim idate” 
as “motive" and thereby excluding the provision from any 
traditional conception of an “elem ent” of a crime. Even if 
one could characterize the language this w ay- 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 const i- 
tutional question. Ibid.

While noting that we had just last year expressed ser i­
ous 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 Almen- 
darez-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 sep a- 
rate penalty.” 159 N. J„ at 24, 731 A. 2d, at 494. Rather, 
“the Legislature simply took one factor that has always



6 APPRENDI v. NEW JERSEY

Opinion of the Court

been considered by sentencing courts to bear on punis h- 
ment and dictated the weight to be given that factor. ” 
Ib id ., 731 A. 2d. at 494-495. As had the appeals court, the 
majority recognized that the state statute was unlike that 
in M c M illa n  inasmuch as it increased the maximum pe n- 
alty to which a defendant could be subject. But it was not 
clear that this difference alone would “change the const i- 
tutional 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 
defendants mental state in committing the subject offense 
. . . necessarily involves a finding so integral to the 
charged offense that it must be characterized as an e le ­
ment thereof ; and (2) the significantly increased se n- 
tencing 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 
dissents view, the facts increasing sentences in both 
A lm e n d a re z -T o rre s  (recidivism) and J o n e s  (serious bodily 
injury) were quite distinct from New Jerseys 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 
Courts post-W in sh ip  jurisprudence, the dissenters con­
cluded that “there can be little doubt that the sentencing



7Cite as: 530 U. S .___ (2000)

Opinion of the Court

factor applied to this defendant- the purpose to intim i- 
date a victim because of race- must fairly be regarded as 
an element of the crime requiring inclusion in the indie t- 
ment 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.

II
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; Apprendis 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 1 e- 
gally significant because it increased- indeed, it do u- 
bled- 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 sub-

1 We have previously rejected a First Amendment challenge to an e n- 
hanced sentence based on a jury finding that the defendant had inte n- 
tionally selected his victim because of the victims race. Wisconsin v.



8 APPRENDI v. NEW JERSEY

Opinion of the Court

stantive basis for New Jersey s enhancement is thus not at 
issue; the adequacy of New Jerseys 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 e n ­
hanced sentence, 159 N. J., at 25, 731 A. 2d, at 495. In 
this very case, that issue was the subject of the full ev i­
dentiary 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 Jerseys 
statutory scheme, this case does not raise any question 
concerning the S tates power to manipulate the prosecu­
tors burden of proof by, for example, relying on a pre­
sumption rather than evidence to establish an element of 
an offense, cf. M u lla n e y  v. W ilbur, 421 U. S. 684 (1975); 
S a n d s tr o m  v. M o n ta n a , 442 U. S. 510 (1979), or by placing 
the affirmative defense label on “at least some elem ents” 
of traditional crimes, P a tte r so n  v. N e w  York, 432 U. S. 197, 
210 (1977). The prosecutor did not invoke any presum p­
tion 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 pr e- 
sented.

Our answer to that question was foreshadowed by our

Mitchell, 508 U. S. 476, 480 (1993).



9Cite as: 530 U. S .___ (2000)

Opinion of the Court

opinion in J o n e s  v. U n ite d  S ta te s , 526 U. S. 227 (1999), 
construing a federal statute. We there noted that “under 
the Due Process Clause of the Fifth Amendment and the 
notice and jury trial guarantees of the Sixth Amendment, 
any fact (other than prior conviction) that increases the 
maximum penalty for a crime must be charged in an 
indictment, submitted to a jury, and proven beyond a 
reasonable doubt. Id ., at 243, n. 6. The Fourteenth 
Amendment commands the same answer in this case 
involving a state statute.

Ill
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 con­
tinue 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 proce­
dural safeguards designed to protect Apprendi from u n ­
warranted 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,” Arndt. 14, and the 
guarantee that “[i]n all criminal prosecutions, the accused 
shall enjoy the right to a speedy and public trial, by an

zO. Holmes, The Common Law 40 (M. Howe ed. 1963).



10 APPRENDI v. NEW JERSEY

Opinion of the Court

impartial jury,” Amdt. 6.3 Taken together, these rights 
indisputably entitle a criminal defendant to “ajury deter­
mination 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 co n- 
stitute 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 ty r ­
anny on the part of rulers," and “as the great bulwark of 
[our] civil and political liberties,” 2 J. Story, Commentar­
ies 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 afte r- 
wards be confirmed by the unanimous suffrage of twelve of 
[the defendants] equals and neighbours . . . . ” 4 W. Black- 
stone, Commentaries on the Laws of England 343 (1769) 
(hereinafter Blackstone) (emphasis added). See also

3Apprendi has not here asserted a constitutional claim based on the 
omission of any reference to sentence enhancement or racial bias in the 
indictment. He relies entirely on the fact that the “due process of law" 
that the Fourteenth Amendment requires the States to provide to 
persons accused of crime encompasses the right to a trial by jury 
Duncan v. Louisiana. 391 U. S. 145 (1968). and the right to have every 
element of the offense proved beyond a reasonable doubt. In re Winship, 
397 U. S. 358 (1970). That Amendment has not, however, been con­
strued to include the Fifth Amendment right to “presentment or in ­
dictment of a Grand Jury that was implicated in our recent decision in 
Almendarez-Torres v. United States. 523 U. S. 224 (1998). We thus do 
not address the indictment question separately today.



11Cite as: 530 U. S .___ (2000)

Opinion of the Court

Duncan v. Louisiana, 391 U. S. 145, 151-154 (1968).
Equally well founded is the companion right to have th e 

jury verdict based on proof beyond a reasonable doubt. 
T he 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 “ reflectfs] a profound judgment about the 
way in which law should be enforced and justice admini s- 
tered. Id., at 361-362 (quoting Duncan, 391 U. S at 
155).

Any possible distinction between an “elem ent” 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 sur­
rounding our Nation s founding. As a general rule, crim i- 
nal proceedings were submitted to a jury after being in iti­
ated 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 a c ­
cordingly . . . and that there w a y  be no doubt as to the 
judgm ent which should be given, if the defendant be con-

__ 4 "lAJfter trial and conviction are past," the defendant is submitted to 
judgment by the court, 4 Blackstone 368— the stage approximating in 
modern terms the imposition of sentence.



12 APPRENDI v. NEW JERSEY

Opinion of the Court

victed. J. Archbold, Pleading and Evidence in Criminal 
Cases 44 (15th ed. 1862) (emphasis added). The defen­
dant s ability to predict with certainty the judgment from 
the face of the felony indictment flowed from the invari­
able linkage of punishment with crime. See 4 Blackstone 
369-370 (after verdict, and barring a defect in the indict­
ment, pardon or benefit of clergy, “the court m u s t  p r o ­
n ou n ce  th a t  ju d g m e n t ,  w h ich  th e la w  h a th  a n n e x e d  to the  
crim e"  (emphasis added)).

Thus, with respect to the criminal law of felonious co n- 
duct, the English trial judge of the later eighteenth ce n- 
tury 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

5As we suggested in Jones v. United States, 526 U. S. 227 (1999), 
juries devised extralegal ways of avoiding a guilty verdict, at least of 
the more severe form of the offense alleged, if the punishment assoc i- 
ated with the offense seemed to them disproportionate to the seriou s- 
ness of the conduct of the particular defendant. Id., at 245 ('This power 
to thwart Parliament and Crown took the form not only of flat-out 
acquittals in the face of guilt but of what today we would call verdicts of 
guilty to lesser included offenses, manifestations of what Blackstone 
described as pious perjury'on the jurors'part. 4 Blackstone 238-239').

6 As the principal dissent would chide us for this single citation to 
Blackstone s third volume, rather than his fourth, post, at 3 (dissenting 
opinion), we suggest that Blackstone himself directs us to it for these 
purposes. See 4 Blackstone 343 ( The antiquity and excellence of this 
[jury] trial, for the settling of civil property, has before been explained 
at large. " See id., at 379 ('Upon these accounts the trial by jury ever



13Cite as: 530 U. S .___ (2000)

Opinion of the Court

awarded by the judges, is not their determination or se n- 
tence, but the determination and sentence of the law. ” 3 
Blackstone 396 (emphasis deleted).7

This practice at common law held true when indict­
ments were issued pursuant to statute. Just as the cir­
cumstances 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

has been, and I trust ever will be, looked upon as the glory of the 
English law. And. if it has so great an advantage over others in reg u- 
lating civil property, how much must that advantage be heightened, 
when it is applied to criminal cases!’) 4 id . at 343 (“And it will hold 
much stronger in criminal cases; since, in times of difficulty and da n- 
ger, more is to be apprehended from the violence and partiality of 
judges appointed by the crown, in suits between the king and the 
subject, than in disputes between one individual and another, to settle 
the metes and boundaries of private property’); 4 id., at 344 ("What 
was said of juries in general, and the trial thereby, in civil cases, will 
greatly shorten our present remarks, with regard to the trial of crimi­
nal suits; indictments, informations, and appeals’).

7The common law of punishment for misdemeanors- those smaller 
faults, and omissions of less consequence, ” 4 Blackstone 5-  was, as we 
noted in Jones, 526 U. S., at 244, substantially more dependent upon 
judicial discretion. Subject to the limitations that the punishment not 
touch life or limb,” that it be proportionate to the offense, and, by the 
17th century, that it not be "cruel or unusual,”judges most commonly 
imposed discretionary sentences’’ of fines or whippings upon misde­
meanant offenders. J. Baker, Introduction to English Legal History 
584 (3d ed. 1990). Actual sentences of imprisonment for such offenses, 
however, were rare at common law until the late 18th century, ibid., for 
the idea of prison as a punishment would have seemed an absurd 

expense. Baker, Criminal Courts and Procedure at Common Law 
1550-1800, in Crime in England 1550-1800, p. 43 (J. Cockburn ed.



14 APPRENDI v. NEW JERSEY

Opinion of the Court

charge it to have been committed under those circum­
stances, 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 prose­
cutor prove the felony to have been committed, but fail in 
proving it to have been committed under the circum­
stances 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 forjudges 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 lim its in 
the individual case. See, e.g., Williams v. New York, 337 
U. S. 241, 246 (1949) (“[B]oth before and since the Am eri­
can 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 lim its 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

8T° the extent the principal dissent appears to take issue with our 
reliance on Archbold (among others) as an authoritative source on the 
common law of the relevant period, post, at 3- 4, we simply note that 
Archbold has been cited by numerous opinions of this Court for that 
very purpose, his Criminal Pleading treatise being generally viewed as 
an essential reference book for every criminal lawyer working in the 

Crown Court.'' Biographical Dictionary of the Common Law 13 (A. 
Simpson ed. 1984); see also Holdsworth, The Literature of the Common 
Law, in 13 A History of English Law 464-465 (A. Goodhart & H 
Hanburyeds. 1952).



15Cite as: 530 U. S .___ (2000)

Opinion of the Court

providing fixed-term sentences to those providing judges 
discretion within a permissible range, Note, The Admissi­
bility of Character Evidence in Determining Sentence, 9 
U. Chi. L. Rev. 715 (1942)- has been regularly accompa­
nied by the qualification that that discretion was bound by 
the range of sentencing options prescribed by the legisl a- 
ture. See, e.g., U n ite d  S ta te s  v. T ucker, 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, i f  w ith in  s ta tu to r y  l im it s ,  is generally not 
subject to review” (emphasis added)); W illia m s, 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 lim its[,] the type 
and extent of punishment after the issue of guilt "has been 
resolved).9

9See also 1 J. Bishop, Criminal Law §§933-934(1) (9th ed. 1923) 
('With us legislation ordinarily fixes the penalties for the common law 
offences equally with the statutory ones. . . .  Under the common-law 
procedure, the court determines in each case what within the limits of 
the law  shall be the punishment. -  the question being one of discre­
tion') (emphasis added): id., §948 (''|I]f the law has given the court a 
discretion as to the punishment, it will look in pronouncing sentence 
into any evidence proper to influence a judicious magistrate to make it 
heavier or lighter, yet not to exceed the limits fixed for what of crime is 
within the allegation and the verdict. Or this sort of evidence may be 
placed before the jury at the trial, if it has the power to assess the 
punishment. But in such a case the aggravating matter must not be of 
a crime separate from the one charged in the indictment,- a rule not 
applicable where a delinquent offence under an habitual criminal act is 
involved ) (footnotes omitted).

The principal dissent s discussion of Williams, post, at 24-26, fails to 
acknowledge the significance of the Courts caveat that judges' discr e- 
tion is constrained by the 'limits fixed by law.” Nothing in Williams 
implies that a judge may impose a more severe sentence than the 
maximum authorized by the facts found by the jury. Indeed, the 
commentators cited in the dissent recognize precisely this same limit a- 
tion. See post, at 23 (quoting K. Stith & J. Cabranes, Fear of Judging:



16 APPRENDI v. NEW JERSEY

Opinion of the Court

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 princ i-

Sentencing Guidelines in the Federal Courts 9 (1998) ('From the 
beginning of the Republic, federal judges were entrusted with wide 
sentencing discretion. . . , permitting the sentencing judge to impose 
any term of imprisonment and any fine up to the statutory maximum ” 
(emphasis added)); Lynch, Towards A Model Penal Code, Second 
(Federal?), 2 Buff. Crim. L. Rev. 297, 320 (1998) (noting that judges in 
discretionary sentencing took account of facts relevant to a particular 
ofTense "within the spectrum of conduct covered by the statute of 
conviction')).

10 In support of its novel view that this Court has 'long recognized" 
that not all facts affecting punishment need go to the jury, post, at 1-2 
the principal dissent cites three cases decided within the past quarter 
century; and each of these is plainly distinguishable. Rather than offer 
any historical account of its own that would support the notion of a 
“sentencing factor" legally increasing punishment beyond the statutory 
maximum- and J ustice Thomas'concurring opinion in this case makes 
clear that such an exercise would be futile- the dissent proceeds by 
mischaracterizing our account. The evidence we describe that punish­
ment was, by law, tied to the offense (enabling the defendant to discern, 
barring pardon or clergy, his punishment from the face of the indie t- 
ment), and the evidence that American judges have exercised sentenc­
ing discretion within a legally prescribed range (enabling the defendant 
to discern from the statute of indictment what maximum punishment 
conviction under that statute could bring), point to a single, consistent 
conclusion: The judge s role in sentencing is constrained at its outer 
limits by the facts alleged in the indictment and found by the jury. Put 
simply, facts that expose a defendant to a punishment greater than 
that otherwise legally prescribed were by definition “elements" of a 
separate legal offense.



17Cite as: 530 U. S .___ (2000)

Opinion of the Court

pies 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 require­
ments 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.” Ib id . We thus 
require this, among other, procedural protections in order to 
“provid[e] concrete substance for the presumption of inno­
cence, ” and to reduce the risk of imposing such deprivations 
erroneously. Ib id . 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 de­
fendant 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 W in sh ip , we have made clear beyond peradven- 
ture that W in sh ip s due process and associated jury pro­
tections extend, to some degree, “to determinations that 
[go] not to a defendants guilt or innocence, but simply to

11 As we stated in Jones, 'One contributor to the ratification debates, 
for example, commenting on the jury trial guarantee in Art. Ill, §2, 
echoed Blackstone in warning of the need to guard with the most 
jealous circumspection against the introduction of new, and arbitrary 
methods of trial, which, under a variety of plausible pretenses, may in 
time, imperceptibly undermine this best preservative of LIBERTY. ’ A 
[New Hampshire] Farmer. No. 3, June 6. 1788, quoted in The Complete 
Bill of Rights 477 (N. Cogan ed. 1997).” 526 U. S„ at 248.



18 APPRENDI v. NEW JERSEY

Opinion of the Court

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 defe n- 
dant who acted with an intent to kill possessed the “malice 
aforethought” necessary to constitute the S ta tes murder 
offense (and therefore, was subject to that crim es associ­
ated punishment of life imprisonment). The statute 
placed the burden on the defendant of proving, in rebu t- 
ting 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 Win- 
ship  protections because, upon conviction of either offense, 
the defendant would lose his liberty and face societal 
stigma just the same. Rejecting this argument, we ac­
knowledged 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 protec­
tions 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

12 Contrary to the principal dissent s suggestion, post, at 8-10 Patter­
son v. New York. 432 U. S. 197, 198 (1977), posed no direct challenge to 
this aspect of Mullaney. In upholding a New York law allowing defe nd- 
ants to raise and prove extreme emotional distress as an affirmative 
defense to murder, Patterson made clear that the state law still re-



Cite as: 530 U. S .___ (2000)

Opinion of the Court

19

IV
It was in M cM illa n  v. P e n n sy lv a n ia , 477 U. S. 79 (1986), 

that this Court, for the first time, coined the term “sen ­
tencing 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 Ma n- 
datory 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 W in sh ip  protections 
applied to bar such a system, we concluded that the Penn­
sylvania statute did not run afoul of our previous admon i- 
tions against relieving the State of its burden of proving 
guilt, or tailoring the mere form of a criminal statute 
solely to avoid W in sh ip  £ strictures. 477 U. S., at 86-88.

We did not, however, there budge from the position that

quired the State to prove every element of that Stated offense of 
murder and its accompanying punishment. ‘No further facts are either 
presumed or inferred in order to constitute the crime.” 432 U. S., at 
205—206. New York, unlike Maine, had not made malice aforethought, 
or any described mens rea, part of its statutory definition of second- 
degree murder: one could tell from the face of the statute that if one 
intended to cause the death of another person and did cause that death, 
one could be subject to sentence for a second-degree offense. Id., at 198. 
Responding to the argument that our view could be seen ‘to permit 
state legislatures to reallocate burdens of proof by labeling as affirm a- 
tive defenses at least some elements of the crimes now defined in their 
statutes, ” the Court made clear in the very next breath that there were 
obviously constitutional limits beyond which the States may not go in 

this regard." Id., at 210.



20 APPRENDI v. NEW JERSEY

Opinion of the Court

(1) constitutional limits exist to States ’ authority to define 
away facts necessary to constitute a criminal offense, id ., 

85—88, and (2) that a state scheme that keeps from the 
jury facts that “exposfe] [defendants] to greater or addi­
tional punishment, id ., at 88, may raise serious constitu­
tional 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 courts discretion in selecting a 
penalty within the range already available to it wit fl­
out the special finding of visible possession of a fir e- 
arm. . . . 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 o f- 
fense. Petitioners ’claim that visible possession under 
the Pennsylvania statute is feally ’ an element of the 
offenses for which they are being punished- that 
Pennsylvania has in effect defined a new set of u p- 
graded 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." I d  at 
87-88 .13

Finally, as we made plain in J o n e s  last Term, A lm en -

13The principal dissent accuses us of today “overruling McMillan." 
Post, at 11 We do not overrule McMillan. We limit its holding to cases 
that do not involve the imposition of a sentence more severe than the 
statutory maximum for the offense established by the jury s verdict- a 
limitation identified in the McMillan opinion itself. Conscious of the 
likelihood that legislative decisions may have been made in reliance on 
McMillan, we reserve for another day the question whether stare 
decisis considerations preclude reconsideration of its narrower holding.



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Opinion of the Court

d a r e z -T o r r e s v .  U n ite d  S ta te s , 523 U. S. 224 (1998), repre­
sents at best an exceptional departure from the historic 
practice that we have described. In that case, we consid­
ered 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 ree n- 
tered this country, and that "the earlier deportation had 
taken place pursuant to ’ three earlier tonvictions ’ for 
aggravated felonies.” Ib id . 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; a c- 
cordingly, Almendarez-Torres could be subject to a sen ­
tence of up to 20 years. Almendarez-Torres objected, 
contending that because the indictment ’had not m en­
tioned his earlier aggravated felony convictions,” he could 
be sentenced to no more than two years in prison. Ib id .

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 W in sh ip  in that case. Because Almendarez- 
Torres had a d m it te d  the three earlier convictions for 
aggravated felonies- all of which had been entered purs u- 
ant 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 co n- 
tested issue of fact was before the Court. Although our 
conclusion in that case was based in part on our applic a- 
tion of the criteria we had invoked in M cM illa n , the spe­
cific question decided concerned the sufficiency of the 
indictment. More important, as J o n e s  made crystal clear,



22 APPRENDI v. NEW JERSEY

Opinion of the Court

526 U. S., at 248-249, our conclusion in A lm e n d a re z -  
T o rres  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 s e n ­
tencing courts increasing an o ffen d ersen ten ce’); id ., at 
244 (emphasizing “the fact that recidivism does not relate 
to the commission of the offense . . . ”); J o n es, 526 U. S, at 
249-250, n. 10 (‘The majority and the dissenters in A l-  
m e n d a re z -T o rre s  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 Almen- 
darez-Torres did not challenge the accuracy of that Tact” 
in his case, mitigated the due process and Sixth Amend­
ment concerns otherwise implicated in allowing a judge to 
determine a “fact” increasing punishment beyond the 
maximum of the statutory range.14

l4The principal dissents contention that our decision in Monge v. 
California, 524 U. S. 721 (1998), “demonstrates that Almendarez-Torres 
was” something other than a limited exception to the jury trial rule is 
both inaccurate and misleading. Post, at 14. Monge was another 
recidivism case in which the question presented and the bulk of the 
Court s analysis related to the scope of double jeopardy protections in 
sentencing. The dissent extracts from that decision the majority s 
statement that “the Court has rejected an absolute rule that an en ­
hancement constitutes an element of the offense any time that it 
increases the maximum sentence.” 524 U. S„ at 729. Far from being 
part of "reasoning essential" to the Courts holding, post, at 13, that 
statement was in response to a dissent by Justice Scalia on an issue 
that the Court itself had, a few sentences earlier, insisted “was neither 
considered by the state courts nor discussed in petitioner s brief before 
this Court." 524 U. S., at 728. Moreover, the sole citation supporting 
the Monge Courts proposition that 'the Court has rejected"such a rule 
was none other than Almendarez-Torres; as we have explained, that



23Cite as: 530 U. S .___ (2000)

Opinion of the Court

Even though it is arguable that A lm en d a rez-T o rres  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 gen ­
eral rule we recalled at the outset. Given its unique facts, 
it surely does not warrant rejection of the otherwise u n i­
form course of decision during the entire history of our 
jurisprudence.

In sum, our reexamination of our cases in this area, and

case simply cannot bear that broad reading. Most telling of Monger 
distance from the issue at stake in this case is that the double jeopardy 
question in Monge arose because the State had failed to satisfy its own 
statutory burden of proving beyond a reasonable doubt that the defe n- 
dant had committed a prior offense (and was therefore subject to an 
enhanced, recidivism-based sentence). 524 U. S., at 725 ("According to 
California law, a number of procedural safeguards surround the a s- 
sessment of prior conviction allegations: Defendants may invoke the 
right to a jury trial . . .  : the prosecution must prove the allegation 
beyond a reasonable doubt: and the rules of evidence apply’). The 
Court thus itself warned against a contrary double jeopardy rule that 
could create disincentives that would diminish these important proc e- 
dural protections." Id., at 734.

15In addition to the reasons set forth in J ustice Scalias dissent, 523 
U. S„ at 248-260, it is noteworthy that the Court s extensive discussion 
of the term sentencing factor virtually ignored the pedigree of the 
pleading requirement at issue. The rule was succinctly stated by Justice 
Clifford in his separate opinion in United States v. Reese, 92 U. S. 214, 
232-233 (1876): "[Tlhe indictment must contain an allegation of every 
fact which is legally essential to the punishment to be inflicted." As he 
explained in [s] peaking of that principle, Mr. Bishop says it pervades 
the entire system of the adjudged law of criminal procedure, as appears 
by all the cases: that, wherever we move in that department of our 
jurisprudence, we come in contact with it: and that we can no more 
escape from it than from the atmosphere which surrounds us. 1 
Bishop, Cr. Pro., 2d ed„ sect. 81: Archbold 1> Crim. Plead., 15th ed„ 54; 1 
Stark Crim. Plead., 236: 1 Am. Cr. Law, 6th rev. ed., sect. 364; Steel v. 
Smith, 1 Barn. & Aid. 99."



24 APPRENDI v. NEW JERSEY

Opinion of the Court

of the history upon which they rely, confirms the opinion 
that we expressed in Jon es. Other than the fact of a prior 
conviction, any fact that increases the penalty for a crime 
beyond the prescribed statutory maximum must be sub­
mitted 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

16The principal dissent would reject the Courts rule as a "meaning­
less formalism, because it can conceive of hypothetical statutes that 
would comply with the rule and achieve the same result as the New 
Jersey statute. Post, at 17-20. While a State could, hypothetically, 
undertake to revise its entire criminal code in the manner the dissent 
suggests, post, at 18- extending all statutory maximum sentences to, 
for example. 50 years and giving judges guided discretion as to a few 
specially selected factors within that range- this possibility seems 
remote. Among other reasons, structural democratic constraints exist 
to discourage legislatures from enacting penal statutes that expose 
every defendant convicted of, for example, weapons possession, to a 
maximum sentence exceeding that which is, in the legislature s jud g- 
ment, generally proportional to the crime. This is as it should be. Our 
rule ensures that a State is obliged "to make its choices concerning the 
substantive content of its criminal laws with full awareness of the cons e- 
quence, unable to mask substantive policy choices "of exposing all who are 
convicted to the maximum sentence it provides. Patterson v. New York, 
432 U. S.. at 228-229, n. 13 (Powell, J., dissenting). So exposed, "[t]he 
political check on potentially harsh legislative action is then more likely to 
operate." Ibid.

In all events, if such an extensive revision of the State s entire crimi­
nal code were enacted for the purpose the dissent suggests, or if New 
Jersey simply reversed the burden of the hate crime finding (effectively 
assuming a crime was performed with a purpose to intimidate and then



25Cite as: 530 U. S .___ (2000)

Opinion of the Court 

V
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 re a- 
sonable 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)(l) (West 1999), based upon the 
judge s finding, by a preponderance of the evidence, that 
the defendants "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 Jerseys 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

requiring a defendant to prove that it was not, post, at 20), we would be 
required to question whether the revision was constitutional under this 
Courts prior decisions. See Patterson, 432 U. S„ at 210; Mullaney v 
Wilbur. 421 U. S. 684, 698-702.

Finally, the principal dissent ignores the distinction the Court has 
often recognized, see, e.g„ Martin v. Ohio, 480 U. S. 228 (1987), be­
tween facts in aggravation of punishment and facts in mitigation. See 
post, at 19-20. If facts found by a jury support a guilty verdict of 
murder, the judge is authorized by that jury verdict to sentence the 
defendant to the maximum sentence provided by the murder statute. If 
the defendant can escape the statutory maximum by showing, for 
example, that he is a war veteran, then a judge that finds the fact of 
veteran status is neither exposing the defendant to a deprivation of 
liberty greater than that authorized by the verdict according to statute, 
nor is the Judge imposing upon the defendant a greater stigma than 
that accompanying the jury verdict alone. See supra, at 16-17. Core 
concerns animating the jury and burden-of-proof requirements are thus 
absent from such a scheme.



26 APPRENDI v. NEW JERSEY

Opinion of the Court

factor” of motive; (2) M cM illa n  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) 
A lm en d a rez-T o rre s  extended M cM illan  £ holding to encom­
pass 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 pe r- 
suades us that the constitutional rule that emerges from our 
history and case law should incorporate an exception for this 
New Jersey statute.

New Jerseys first point is nothing more than a d is­
agreement 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 skepti­
cism at the suggestion that the hate crime statutes “pur­
pose 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 pos­
sessed, at the time he committed the subject act, a “pur­
pose to intimidate” on account of, in te r  a lia , race. By its 
very terms, this statute mandates an examination of the 
defendants state of mind- a concept known well to the 
criminal law as the defendants m e n s  r e a d 7 It makes no

17Among the most common definitions of mens rea is 'criminal in­
tent.” Blacks Law Dictionary 1137 (rev. 4th ed. 1968). That dictionary 
unsurprisingly defines “purpose" as synonymous with intent, id., at 
1400, and “intent” as, among other things, "a state of mind, “ id., at 947. 
But we need not venture beyond New Jerseys own criminal code for a 
definition of purpose that makes it central to the description of a 
criminal offense. As the dissenting judge on the state appeals court 
pointed out, according to the New Jersey Criminal Code, la] person acts 
purposely with respect to the nature of his conduct or a result thereof if it 
is his conscious object to engage in conduct of that nature or to cause such 
a result.” N. J. Stat. Ann. §2C:2-2(b)(l) (West 1999). The hate crime 
statutes application to those who act '\vith a purpose to intimidate 
because of certain status-based characteristics places it squarely within



27Cite as: 530 U. S .___ (2000)

Opinion of the Court

difference in identifying the nature of this finding that 
Apprendi was also required, in order to receive the se n- 
tence 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 m en s  rea  requirement hardly defeats the reality 
that the enhancement statute imposes of its own force an 
intent requirement necessary for the imposition of se n- 
tence. On the contrary, the fact that the language and 
structure of the "purpose to use "criminal offense is identi­
cal in relevant respects to the language and structure of 
the “purpose to intimidate” provision demonstrates to us 
that it is precisely a particular criminal m en s  rea  that the 
hate crime enhancement statute seeks to target. The 
defendants intent in committing a crime is perhaps as 
close as one might hope to come to a core criminal offense 
“element. ”18

the inquiry whether it was a defendant fc "conscious object” to intimidate 
for that reason.

18Whatever the effect of the State Supreme Courts comment that the 
law here targets "motive," 159 N. J. 7, 20. 731 A. 2d 485, 492 (1999)- 
and it is highly doubtful that one could characterize that comment as a 
'binding "interpretation of the state statute, see Wisconsin v. Mitchell, 508 
U. S., at 483-484 (declining to be bound by state court's characterization 
of state laws "operative effect'), even if the court had not immediately 
thereafter called into direct question its "ability to view this finding as 
merely a search for motive," 159 N. J„ at 21, 731 A. 2d, at 492- a State 
cannot through mere characterization change the nature of the conduct 
actually targeted. It is as clear as day that this hate crime law defines a 
particular kind of prohibited intent, and a particular intent is more often 
than not the sine qua non of a violation of a criminal law.

When the principal dissent at long last confronts the actual statute at 
issue in this case in the final few pages of its opinion, it offers in r e- 
sponse to this interpretation only that our reading is contrary to 
settled precedent in Mitchell. Post, at 31. Setting aside the fact that 

Wisconsin s hate crime statute was, in text and substance, different 
from New Jerseys, Mitchell did not even begin to consider whether the 
Wisconsin hate crime requirement was an offense “element" or not; it



28 APPRENDI v. NEW JERSEY

Opinion of the Court

The foregoing notwithstanding, however, the New Jer­
sey Supreme Court correctly recognized that it does not 
matter whether the required finding is characterized as 
one of intent or of motive, because “[ljabels 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 “elem ents” and “sentencing 
factors. M cM illan , 477 U. S., at 86 (noting that the sen­
tencing factor- visible possession of a firearm- “might well 
have been included as an element of the enumerated o f- 
fenses ). 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 States own criminal code. The

did not have to- the required finding under the Wisconsin statute was 
made by the jury.

19This is not to suggest that the term sentencing factor" is devoid of 
meaning. The term appropriately describes a circumstance, which may 
be either aggravating or mitigating in character, that supports a 
specific sentence within the range authorized by the jury s finding that 
the defendant is guilty of a particular offense. On the other hand, when 
the term “sentence enhancement" is used to describe an increase 
beyond the maximum authorized statutory sentence, it is the functional 
equivalent of an element of a greater offense than the one covered by 
the jurys guilty verdict. Indeed, it fits squarely within the usual 
definition of an “element" of the offense. See post, at 5 (Thomas, J. 
concurring) (reviewing the relevant authorities).



29Cite as: 530 U. S .___ (2000)

Opinion of the Court

law thus runs directly into our warning in M u lla n e y  that 
W in sh ip  is concerned as much with the category of substan­
tive 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 defendants 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 M cM illa n  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. M u lla n ey , 421 U. S„ at 700. But it can 
hardly be said that the potential doubling of one s se n- 
tence— 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 differen­
tial 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. ” M cM illa n  
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. ” Ib id . 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



30 APPRENDI v. NEW JERSEY

Opinion of the Court

provisions” of the criminal code “does not mean that the 
finding of a biased purpose to intimidate is not an esse n- 
tial element of the offense.” 159 N. J., at 20, 731 A. 2d, at 
492. Indeed, the fact that New Jersey, along with num er­
ous 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 “en ­
hancement” in a sentencing statute does not define its 
character.20

New Jerseys reliance on Almendarez-Torres is also un­
availing. 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 Jerseys biased purpose inquiry goes 
precisely to what happened in the “commission of the o f- 
fense.” Moreover, there is a vast difference between ac­
cepting 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 r e ­
jected the argument that the principles guiding our deci­
sion 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 fac-

u 20Including New Jersey. N. J. Stat. Ann. §2C:33-4 (West Supp. 2000) 
("A person commits a crime of the fourth degree if in committing an 
offense [of harassment] under this section, he acted with a purpose to 
intimidate an individual or group of individuals because of race, color, 
religion, gender, handicap, sexual orientation or ethnicity'), 26 States 
currently have laws making certain acts of racial or other bias free­
standing violations of the criminal law, see generally F. Lawrence, 
Punishing Hate: Bias Crimes Under American Law 178-189 (1999) 
(listing current state hate crime laws).



31Cite as: 530 U. S .___ (2000)

Opinion of the Court

tors before imposing a sentence of death. W alton  v. A r i­
zon a, 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 e x- 
pose him to the death penalty has an absolute e n t i­
tlement to jury trial on all the elements of the charge. ” 
A lm en d a re z-T o rre s , 523 U. S„ at 257, n. 2 (SCALIA, J„ 
dissenting) (emphasis deleted).

See also J o n es, 526 U. S„ at 250-251; p o s t, 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

21 The principal dissent, in addition, treats us to a lengthy disquis i- 
tion on the benefits of determinate sentencing schemes, and the effect 
of today s decision on the federal Sentencing Guidelines. Post, at 23- 
30. The Guidelines are, of course, not before the Court. We therefore 
express no view on the subject beyond what this Court has already 
held. See, e.g.. Edwards v. United States. 523 U. S. 511, 515 (1998) 
(opinion of B r e y e r , J., for a unanimous court) (noting that “[o]f course, 
petitioners 'statutory and constitutional claims would make a difference 
if it were possible to argue, say, that the sentences imposed exceeded 
the maximum that the statutes permit for a cocaine-only conspiracy. 
That is because a maximum sentence set by statute trumps a higher 
sentence set forth in the Guidelines. [United States Sentencing Guid e- 
lines Manual) §5G1.1.').



32 APPRENDI v. NEW JERSEY

Opinion of the Court

indispensable part of our criminal justice system. A c­
cordingly, the judgment of the Supreme Court of New 
Jersey is reversed, and the case is remanded for further 
proceedings not inconsistent with this opinion.

It is so ordered.



1Cite as: 530 U. S .___ (2000)

Scalia, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, Jr., PETITIONER v.
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
NEW JERSEY

[June 26, 2000]

J u st ic e  S calia , concurring.
I feel the need to say a few words in response to JUSTICE 

BREYER s dissent. It sketches an admirably fair and effi­
cient 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 S tate- 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 provi­
sions 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 tim es, "pos t ,  at 1, the jury cannot provide: I th ink  
it not unfair to tell a prospective felon th at if he com m its 
his contem plated crim e he is exposing h im self to a ja il 
sen tence of 30 years— and that if, upon conviction, he gets  
anything less than that he m ay thank the m ercy of a 
tenderhearted judge (just as he m ay thank the m ercy of a 
tenderhearted parole com m ission if he is let out in o rd i­
nately  early, or the m ercy of a tenderhearted governor if 
his sen tence is com m uted). Will there be disparities? Of 
course. But the crim inal will never get m o re  punishm ent 
than he bargained for when he did the crim e, and h is gu ilt 
of the crim e (and hence the length of the sen tence to which



2 APPRENDI v. NEW JERSEY

Scalia, J.t concurring

he is exposed) will be determined beyond a reasonable 
doubt by the unanimous vote of 12 of his fellow citizens.

In JUSTICE BREYERs bureaucratic realm of perfect 
equity, by contrast, the facts that determine the length of 
sentence to which the defendant is exposed will be dete r- 
mined 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 gua r- 
antee 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 defen­
dant to a legally prescribed punishment m ust be found by 
the jury.



Cite as: 530 U. S . (2000) i

Thomas, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, J r ., PETITIONER v  
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
NEW JERSEY

(June 26, 2000]

J u st ic e  Th o m a s , with whom J u st ic e  S calia  joins as to 
Parts I and II, concurring.

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 Constitu­
tion, “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.” Arndts. 5 
and 6. See also Art. Ill, §2, cl. 3 ('The Trial of all Crimes 
. . . shall be by Jury’). With the exception of the Grand 
Jury Clause, see H u rta d o  v. C aliforn ia , 110 U. S. 516, 538 
(1884), the Court has held that these protections apply in 
state prosecutions, H errin g  v. N e w  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



2 APPRENDI v. NEW JERSEY

Thomas, J., concurring

Winship, 397 U. S. 358, 364 (1970).
All of these constitutional protections turn on deter­

mining 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. 6 6 0 -6 6 2 , §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 
Courts 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 defendants punishment but is not subject 
to the constitutional protections to which elements are 
subject. JUSTICE O Co n n o r 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.

1 Justice O Connor mischaracterizes my argument. See post, at 5-6  
(dissenting opinion). Of course the Fifth and Sixth Amendments did 
not codify common law procedure wholesale. Rather, and as Story 
notes, they codified a few particular common-law procedural rights. As 
I have explained, the scope of those rights turns on what constitutes a 
crime. In answering that question, it is entirely proper to look to the 

common law.



3Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

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 (usu­
ally 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 w hat­
ever constitutional right may be at issue in a case- here, 
W in sh ip  and the right to trial by jury. A long line of e s- 
sentially 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 pu n- 
ishment (in contrast with a fact that mitigates punish­
ment). 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 w hat­
ever 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 a t­
tempted since M cM illa n , 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.



4 APPRENDI v. NEW JERSEY

Thomas, J .t concurring

II

A
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 in ­
creasing punishment is an elem ent.2

Massachusetts, which produced the leading cases in the 
antebellum years, applied this rule as early as 1804, in 
C o m m o n w e a lth  v. S m ith , 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 i n-

2 It is strange that Justice O Connor faults me for beginning my 
analysis with cases primarily from the 1840 s, rather from the time of 
the founding. See post, at 5-6 (dissenting opinion). As the Court 
explains, ante, at 11-13, and as she concedes, post, at 3 (O Connor, J., 
dissenting), the very idea of a sentencing enhancement was foreign to 
the common law of the time of the founding. J ustice O Connor there­
fore, and understandably, does not contend that any history from the 
founding supports her position. As far as I have been able to tell, the 
argument that a fact that was by law the basis for imposing or i n- 
creasing punishment might not be an element did not seriously arise 
(at least not in reported cases) until the 1840 s. As I explain below, 
from that time on- for at least a century- essentially all authority 
rejected that argument, and much of it did so in reliance upon the 
common law. I find this evidence more than sufficient.



5Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

dictments 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 sen ­
tencing 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 pro p- 
erty 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 b e-

3The Massachusetts statute provided: 'Every person who shall com­
mit the offence of larceny, by stealing of the property of another any 
money, goods or chattels [or other sort of property], if the property 
stolen shall exceed the value of one hundred dollars, shall be punished 
by imprisonment in the state prison, not more than five years, or by 
fine not exceeding six hundred dollars, and imprisonment in the county 
jail, not more than two years: and if the property stolen shall not exceed 
the value of one hundred dollars, he shall be punished by imprisonment 
in the state prison or the county jail, not more than one year, or by fine 
not exceeding three hundred dollars." Mass. Rev. Stat., ch. 126, §17



6 APPRENDI v. NEW JERSEY

Thomas, J., concurring

cause it is in conformity with long established prac­
tice, 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 circum­
stances,” then the statute has “creat[ed] two grades of 
crime.” Larned v. Commonwealth, 53 Mass. 240, 242 
(1847). See also id., at 241 (“[TJhere 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 punish­
ment, that fact was, for that reason, not an element. 
Thus, in Commonwealth v. McDonald, 59 Mass. 365 
(1850), which involved an indictment for attempted la r ­
ceny 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 ex ­
plaining that ”[a]s the punishm ent. . . does not depend on 
the amount stolen, there was no occasion for any alleg a- 
tion as to value in this indictment.” 59 Mass., at 367. See 
Commonwealth v. Burke, 94 Mass. 182, 183 (1866) (ap­
plying 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 S u- 
preme Court in Lacyv. State, 15 Wis. *13 (1862), in inter­
preting a statute that was also similar to the statutes at 
issue in Jones and Castillo. The statute, in a single para­
graph, outlawed arson of a dwelling house at night. Arson 
that killed someone was punishable by life in prison; arson



7Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

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 d is­
tinct statutory offenses," 15 Wis., at *15, and that the 
lawful presence of a person in the dwelling was an el e- 
ment of the middle offense. The court reasoned from the 
gradations of punishment: ‘That the legislature consi d- 
ered 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 dwel 1- 
ing, the court reversed the defendants 14-year sentence, 
but, relying on L a rn e d , su p ra , 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

4 The Wisconsin statute provided: 'Every person who shall willfully 
and maliciously burn, in the night time, the dwelling house of another, 
whereby the life of any person shall be destroyed, or shall in the night 
time willfully and maliciously set fire to any other building, owned by 
himself or another, by the burning whereof such dwelling house shall 
be burnt in the night time, whereby the life of any person shall be 
destroyed, shall suffer the same punishment as provided for the crime 
of murder in the second degree; but if the life of no person shall have 
been destroyed, he shall be punished by imprisonment in the state 
prison, not more than fourteen years nor less than seven years; and if 
at the time of committing the offense there was no person lawfully in 
the dwelling house so burnt, he shall be punished by imprisonment in 
the state prison, not more than ten years nor less than three years.” 
Wis. Rev. Stat., ch. 165, §1 (1858). The punishment for second-degree 
murder was life in prison. Ch. 164, §2.



8 APPRENDI v/. NEW JERSEY

Thomas, J., concurring

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 con­
tained 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 pu r- 
chasing 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 deter­
mining 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



9Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

*106; see id., at *50; ante, at 13—14. There was no ques­
tion 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 com ­
mon-law crime simply because it increased the punish­
ment 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 pu n- 
ishment comes from early cases addressing recidivism 
statutes. As J u s t ic e  S ca lia  has explained, there was a 
tradition of treating recidivism as an element. See Al- 
mendarez-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, a g ­
gravated 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



10 APPRENDI v. NEW JERSEY

Thomas, J., concurring

prior conviction of a similar offence a part of the d e- 
scription and character of the offence intended to be 
punished; and therefore the fact of such prior convic­
tion must be charged, as well as proved. It is essen ­
tial 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 Amendments 
Notice Clause. Ibid. See also Commonwealth v. Haynes, 
107 Mass. 194, 198 (1871) (reversing sentence, upon con ­
fession of error by attorney general, in case similar to 
Tuttle).

Numerous other cases treating the fact of a prior convic­
tion 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 cumul a- 
tive 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. Phil­
lips, 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’).



11Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

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 co m- 
plaint 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 protec­
tions that would attach were a “crime” at issue did not 
apply. Id., at 527; see Goellerv. 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 Mass a- 
chusetts, that it is necessary to allege the former convic­
tion, 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 “ap­
parently” 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 con­
viction 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



12 APPRENDI v. NEW JERSEY

Thomas, J., concurring

*695-*696; see also, e.g., G ra h a m  v. W est V irg in ia , 224 
U. S. 616, 620-621 (1912) (defendant had been convicted 
under three different names).5

B
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 regar d- 
ing the indictment, and thus regarding the elements of a 
crime, to the following: T he indictment must allege wha t- 
ever 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 allega­
tion of every fact which is legally essential to the punis h- 
ment 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 e x ­
plained, consist of those acts to which the law affixes

5Some courts read State v. Smith. 8 Rich. 460 (S. C. App. 1832), a 
South Carolina case, to hold that the indictment need not allege a prior 
conviction in order for the defendant to suffer an enhanced punishment 
See, e.g, State v. Burgett, 22 Ark. 323, 324 (1860) (so reading Smith 
and questioning its correctness). The Smith courts holding was some­
what unclear because the court did not state whether the case involved 
a first or second offense- if a first, the court was undoubtedly correct in 
rejecting the defendant s challenge to the indictment, because there is 
no need in an indictment to negate the existence of any prior offense. 
See Burgett. supra, at 324 (reading indictment that was silent about 
prior offenses as only charging first offense and as sufficient for that 
purpose). In addition, the Smith court did not acknowledge the possi­
bility of disputes over identity. Finally, the extent to which the courts 
apparent holding was followed in practice in South Carolina is unclear, 
and subsequent South Carolina decisions acknowledged that Smith was 
out of step with the general rule. See State v. Parris, 89 S. C. 140, 141, 
71 S. E. 808, 809 (1911); State v. Mitchell, 220 S. C. 433 434-436 68 
S. E. 2d 350, 351-352 (1951).



13Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

punishment,” id ., §80, at 51, or, stated differently, a crime 
consists of the whole of ‘the wrong upon which the pu n- 
ishment 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 pro­
ceeds.” 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 provi­
sions 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 com­
mitted with a particular intent, or with a particular 
weapon, or the like, it is subjected to a particular cor­
responding punishment, heavier than that for com ­
mon 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 re­
quired 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 sen ­
tence 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 r e ­
quire the indictment, in all cases, to contain an averment



14 APPRENDI v. NEW JERSEY

Thomas, J., concurring

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: T he idea of a jury trial, as it has always been 
known where the common law prevails, includes the all e- 
gation, 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 require­
ments 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., H o b b s  v. S ta te , 44 Tex. 353. 354 (1875) (favorably 
quoting 1 Bishop, Criminal Procedure §81); M a g u ire  v. 
S ta te , 47 Md. 485, 497 (1878) (approvingly citing different 
Bishop treatise for the same rule); L a r n e y v .  C leve la n d , 34 
Ohio St. 599, 600 (1878) (rule and reason for rule “are well 
stated by Mr. Bishop’); S ta te  v. H a y w a rd , 83 Mo. 299, 307 
(1884) (extensively quoting §81 of Bishops “admirable 
treatise’); R ig g s  v. S ta te , 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)); S ta te  v. P erley, 86 Me. 427, 431, 30 A. 74, 75 
(1894) (T he doctrine of the court, says Mr. Bishop, is



Cite as: 530 U. S .___ (2000) 15

Thomas, J .t concurring

identical with that of reason, viz: that the indictment must 
contain an allegation of every fact which is legally esse n- 
tial to the punishment to be inflicted” (internal quotation 
marks omitted)); see also U n ite d  S ta te s  v. R eese, 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 Bishops 

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 pu n- 
ishment (including the fact of a prior conviction) was an 
element. Each such fact had to be included in the accus a- 
tion of the crime and proved to the jury.

Courts confronted statutes quite similar to the ones 
with which we have struggled since M cM illa n , and, ap­
plying the traditional rule, they found it not at all difficult 
to determine whether a fact was an element. In H obbs, 
su p ra , 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



16 APPRENDI v. NEW JERSEY

Thomas, J., concurring

Tex., at 355.6 See also S e a r c y  v . S ta te , 1 Tex. App. 440, 
444 (1876) (similar); G a rc ia  v. S ta te , 19 Tex. App. 389, 393 
(1885) (not citing H obbs, 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 M c D o n a ld  (discussed su p ra , 
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 
P erley , su p ra , the defendant was indicted for and con­
victed of robbery, which was punishable by imprisonment 
for life or any term of years. The court, relying on Bishop, 
H ope, M cD o n a ld , and other authority, rejected his argu­
ment 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 punis h- 
ment did not turn on value: “[TJhere 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

The gulf between the traditional approach to determining elements 
and that of our recent cases is manifest when one considers how one 
might, from the perspective of those cases, analyze the issue in Hobbs. 
The chapter of the Texas code addressing burglary was entitled simply 
'Of Burglary" and began with a section explicitly defining "the offense 
of burglary." After a series of sections defining terms, it then set out six 
separate sections specifying the punishment for various kinds of 
burglary. The section regarding force was one of these. See 1 G. 
Paschal, Digest of Laws of Texas, Part II, Tit. 20, ch. 6, pp. 462-463 
(4th ed. 1875). Following an approach similar to that in Almendarez- 
Torres v. United States. 523 U. S. 224, 231-234, 242-246 (1998), and 
Castillo v. United States, ante, at _  (slip op., at 4-5), one would likely find 
a clear legislative intent to make force a sentencing enhancement rather 
than an element.



17Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

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 a l ­
leged or proved.” Id ., at 433, 30 A., at 76.

Reasoning similar to P e r le y  and the Texas cases is 
evident in other cases as well. See J o n e s  v. S ta te , 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”; in ­
dictment should “charge all that is requisite to render 
plain and certain every constituent of the offense’); U n ite d  
S ta te s  v. W oodruff, 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 punish­
ment by law. Many, though far from all, of these courts 
relied on Bishop. In 1878, Maryland s high court, in M a ­
g u ire  v. S ta te , 47 Md. 485, stated the rule and the reason 
for it in language indistinguishable from that of T u ttle  a 
quarter century before:

T he law would seem to be well settled, that if the 
party be proceeded against for a second or third o f­
fence 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 in ­
flicted. ’’ M a g u ire , su p ra , at 496 (citing English cases, 
P lu m b ly  v. C o m m o n w ea lth , 43 Mass. 413 (1841),



18 APPRENDI v. NEW JERSEY

Thomas, J., concurring 

Wharton, and Bishop).

In G o e lle r v . S ta te , 119 Md. 61, 85 A. 954 (1912), the same 
court reaffirmed M a g u ire  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 courts 
view, treated the subject “more fully, perhaps, than any 
other legal writer, ” and it cited, among other authorities, 
“a line of Massachusetts decisions” and R ig g s  (quoted 
su p ra , at 14). 119 Md., at 66, 85 A., at 955. In L a rn ey , 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 
P lu m b ly , su p ra , and K ilb o u rn  v. S ta te , 9 Conn. 560 (1833). 
34 Ohio St., at 600.) And in S ta te  v. A d a m s , 64 N. H. 440, 
13 A. 785 (1888), the court, relying on Bishop, explained 
that “[t]he former conviction being a part of the descrip­
tion 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.” Ib id . See also E v a n s  v. S ta te , 150 Ind. 
651, 653, 50 N. E. 820 (1898) (similar); S h if le t t  v. C o m ­
m o n w e a lth , 114 Va. 876, 877, 77 S. E. 606, 607 (1913) 
(similar).

Even without any reliance on Bishop, other courts a d ­
dressing 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 W ood  v. P eople, 53 N. Y. 511 (1873). The sta t­
ute in W ood  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



19Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

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.” I d ,  at 513; see ib id , (fact of prior 
conviction was an “essential ingredient” of the offense). 
See also J o h n so n  v. P eople, 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] esta b- 
lished on the trial’); P eop le  v. S ick les , 156 N. Y. 541, 544- 
545, 51 N. E. 288, 289 (1898) (reaffirming W ood  and J o h n ­
so n  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 su b- 
jected him to an enhanced penalty’).

Contemporaneously with the New York Court of Ap­
peals in W ood  and Joh n son , state high courts in California 
and Pennsylvania offered similar explanations for why the 
fact of a prior conviction is an element. In P eo p le  v. D e- 
la n y , 49 Cal. 394 (1874), which involved a statute making 
petit larceny (normally a misdemeanor) a felony if co m- 
mitted 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.” I d  at 
395.



20 APPRENDI v. NEW JERSEY

Thomas, J., concurring

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 P eo p le  v. C olem an , 145 Cal. 609, 610-611 79 P 
283, 284-285 (1904).

Similarly, in R a u ch  v. C o m m o n w e a lth , 78 Pa. 490 
(1876), the court applied its 1826 decision in S m ith  v. 
C o m m o n w e a lth , 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 cons e- 
quence 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. Ib id . 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 deci­
sions, striking down, in C o m m o n w e a lth  v. H a rr in g to n , 130 
Mass. 35 (1880), a liquor law that provided a small fine for 
a first or second conviction, provided a larger fine or i m- 
prisonment up to a year for a third conviction, and specifi­
cally provided that a prior conviction need not be alleged 
in the complaint. The court found this law plainly inco n-

7The court held that a general plea of ‘guilty” to an indictment that 
includes an allegation of a prior conviction applies to the fact of the 
prior conviction.



21Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

sistent with T u ttle  and with the Stated 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” in­
cludes 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 T ail of the Dog”: F ind­
ing ‘E lem ents” of Crimes in the Wake of M cM illa n  v. 
P e n n sy lv a n ia , 22 Seattle U. L. Rev. 1057, 1069-1081 
(1999) (surveying 20th century decisions of federal courts 
prior to M cM illan)-, see also P eo p le  v. R a tn er , 67 Cal. App. 
2d Supp. 902, 153 P. 2d 790, 791-793 (1944). In fact, it is 
fair to say that M cM illa n  began a revolution in the law 
regarding the definition of “crime.” Todays decision, far 
from being a sharp break with the past, marks nothing 
more than a return to the s ta tu s  q u o  a n te -  the status quo 
that reflected the original meaning of the Fifth and Sixth 
Amendments.

8See also State v. Austin. 113 Mo. 538, 542, 21 S. W. 31, 32 (1893) 
(prior conviction is a "material fac[t]" of the "aggravated offense')’ 
Bandy v. Hehn. 10 Wyo. 167, 172-174, 67 P. 979, 980 (1902) ("[I)n 
reason, and by the great weight of authority, as the fact of a former 
conviction enters into the offense to the extent of aggravating it and 
increasing the punishment, it must be alleged in the information and 
proved like any other material fact, if it is sought to impose the greater 
penalty. The statute makes the prior conviction a part of the descrip­
tion and character of the offense intended to be punished" (citing Tuttle 
v. Commonwealth. 68 Mass. 505 (1854))): State v. Smith. 129 Iowa 709 
711-712, 106 N. W. 187. 188-189 (1906) (similar); State v. Scheminisky. 
31 Idaho 504, 506-507, 174 P. 611, 611-612 (1918) (similar).



22 APPRENDI v. NEW JERSEY

Thomas, J., concurring 

III
The consequence of the above discussion for our deci­

sions in A lm e n d a re z -T o rre s  and M cM illa n  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 e x ­
tremely broad ranges). See an te , at 14-15; p o s t, at 23-25  
(O CONNOR, J„ dissenting). Bishop, immediately after 
setting out the traditional rule on elements, explained 
why:

T he 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 cov­
ered by the allegations of the indictment. . . . The ag­
gravating 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 circum­
stances], 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

9This is not to deny that there may be laws on the borderline of this



Cite as: 530 U. S .___ (2000) 23

Thomas, J., concurring

the Law of England 371—372 (1769) (noting judges ’ broad 
discretion in setting amount of fine and length of impri s- 
onment for misdemeanors, but praising determinate pu n- 
ishment and "discretion . . . regulated by law ’); P erley , 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 <; 
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 W oodruff, 68 F„ at 538, 
and quite another to consider what constitutional con-

distinction. In Brightwell v. State, 41 Ga. 482 (1871), the court stated a 
rule for elements equivalent to Bishops, then held that whether a 
defendant had committed arson in the day or at night need not be in 
the indictment. The court explained that there was "no provision that 
arson in the night shall be punished for any different period” than 
arson in the day (both being punishable by 2 to 7 years in prison). Id., 
at 483. Although there was a statute providing that "arson in the day 
time shall be punished for a less period than arson in the night time," 
the court concluded that it merely set “a rule for the exercise of (the 
sentencing judges] discretion" by specifying a particular fact for the 
judge to consider along with the many others that would enter into his 
sentencing decision. Ibid. Cf. Jones v. State, 63 Ga. 141, 143 (1879) 
(whether burglary occurred in day or at night is a "constituent of the 
offense ” because law fixes different ranges of punishment based on this 
fact). And the statute attached no definite consequence to that par­
ticular fact: A sentencing judge presumably could have imposed a 
sentence of seven years less one second for daytime arson. Finally, it is 
likely that the statute in Brightwell, given its language ("a less period’) 
and its placement in a separate section, was read as setting out an 
affirmative defense or mitigating circumstance. See Wright v. State 
H3 Ga. App. 436. 437-438, 148 S. E 2d 333, 335-336 (1966) (suggest­
ing that it would be error to refuse to charge later version of this 
statute to jury upon request of defendant). See generally Archbold *52,
* 105—* 106 (discussing rules for determining whether fact is an element 
or a defense).



24 APPRENDI v. NEW JERSEY

Thomas, J., concurring

straints apply either to the imposition of punishment 
within the limits of that entitlement or to a legislature k 
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 A lm en -  
d a r e z -T o r r e s -  an error to which I succumbed— was to 
attempt to discern whether a particular fact is tradition­
ally (or typically) a basis for a sentencing court to increase 
an offenders 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 sen ­
tence. If a fact is by law the basis for imposing or i n- 
creasing punishment— for establishing or increasing the 
prosecutions entitlem ent- 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 in ­
creases 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. I n- 
deed, 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 A lm e n d a re z -  
T orres, su p ra , 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., M a ­
g u ire , 47 Md„ at 498; S ick les , 156 N. Y. at 547 51 N E 
at 290.10 ’ ' "

10In addition, it has been common practice to address this concern by 
permitting the defendant to stipulate to the prior conviction, in which



25Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

Third, I think it clear that the common-law rule would 
cover the M cM illa n  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 se n- 
tenced 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 e x ­
pected punishment has increased as a result of the na r- 
rowed 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,” W ood­
ruff, 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 manda­
tory minimum is part of “the punishment sought to be 
inflicted,” Bishop, Criminal Procedure, at 50; it undoubt­
edly “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 H o b b s  
and S earcy, see su p ra , 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

case the charge of the prior conviction is not read to the jury, or, if the 
defendant decides not to stipulate, to bifurcate the trial, with the jury 
only considering the prior conviction after it has reached a guilty 
verdict on the core crime. See, e.g., 1 J. Bishop, Criminal Law §964, at 
566-567 (5th ed. 1872) (favorably discussing English practice of bifu r- 
cation); People v. Saunders. 5 Cal. 4th 580, 587-588, 853 P. 2d 1093, 
1095-1096 (1993) (detailing California approach, since 1874, of permi t- 
ting stipulation and, more recently, of also permitting bifurcation).



26 APPRENDI v. NEW JERSEY

Thomas, J., concurring

L acy, G arcia , and Jon es, see su p ra , 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 ma t- 
tered was simply the overall increase in the punishment 
provided by law. And in several cases, such as S m ith  and 
W oodruff, see su p ra , at 4, 17, the very concept of maxi- 
mums and minimums had no applicability, yet the same 
rule for elements applied. See also H a rr in g to n  (discussed 
su p ra , at 20-21).

Finally, I need not in this case address the implications 
of the rule that I have stated for the Courts decision in 
W alton  v. A rizo n a , 497 U. S. 639, 647-649 (1990). See 
a n te , at 30-31. W alton  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 
legislatures ability to determine what facts shall lead to 
what punishment- we have restricted the legislatures 
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 automat i- 
cally upon conviction for certain crimes. We have inter­
posed a barrier between a jury finding of a capital crime 
and a courts 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

Cite as: 530 U. S .___ (2000)

Thomas, J., concurring

27

*  *  *

For the foregoing reasons, as well as those given in the 
Courts opinion, I agree that the New Jersey procedure at 
issue is unconstitutional.

“ It is likewise unnecessary to consider whether (and, if so, how) the 
rule regarding elements applies to the Sentencing Guidelines, given the 
unique status that they have under Mistretta v. United States, 488 U. S. 
361 (1989). But it may be that this special status is irrelevant, because 
the Guidelines 'have the force and effect of laws." Id., at 413 (Scalia, J„ 
dissenting).



1Cite as: 530 U. S . (2000)

O Connor, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, JR„ PETITIONER v.
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
NEW JERSEY

[June 26, 2000]

J u st ic e  O Co n n o r , w ith  whom  Th e  Ch ie f  J u s t ic e , 
J u st ic e  Ke n n e d y , and J u st ic e  B reyer  join, d issenting.

Last Term, in J o n e s  v. U n ite d  S ta te s , 526 U. S. 227 
(1999), this Court found that our prior cases suggested the 
following principle: “[UJnder the Due Process Clause of the 
Fifth Amendment and the notice and jury trial guarantees 
of the Sixth Amendment, any fact (other than prior convic­
tion) 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 cons e- 
quences 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 Jon es.

I
Our Court has long recognized that not every fact that 

bears on a defendant s punishment need be charged in an 
indictment, submitted to a jury, and proved by the gov-



2 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

ernment beyond a reasonable doubt. Rather, we have held 
that the ‘legislatures definition of the elements of the 
offense is usually dispositive. M cM illa n  v. P en n sy lva n ia , 
477 U. S. 79, 85 (1986); see also A lm en d a rez-T o rre s  v. 
U n ite d  S ta tes , 523 U. S. 224, 228 (1998); P a tte rso n  v. N e w  
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 W in- 
sh ip 's  reasonable-doubt requirement applies to facts not 
formally identified as elements of the offense charged,” 
M cM illan , su pra , 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 cha r- 
acterize 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., 
M o n g e v . C aliforn ia , 524 U. S. 721, 728-729 (1998); M cM il­
lan , su p ra , at 86.

In one bold stroke the Court today casts aside our trad i- 
tional cautious approach and instead embraces a universal 
and seemingly bright-line rule limiting the power of Co n- 
gress 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 convic­
tion, 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." A n te , 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 s in g le  in s ta n c e , in the



3Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

over 200 years since the ratification of the Bill of Rights, 
that our Court has applied, as a constitutional require­
ment, the rule it announces today.

According to the Court, its constitutional rule “emerges 
from our history and case law.” A n te , at 26. None of the 
history contained in the Courts 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, 
an te , 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 el e- 
ments of a statutory offense for the defendant to be se n- 
tenced to the punishment attached to that statutory of­
fense, an te , 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 nondiscre- 
tionary 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 exercis­
ing sentencing discretion and our decisions recognizing the 
legitimacy of that American practice. See an te , at 14-15 
(citing W illia m s  v. N e w  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 an te, at 12—13 (quoting 3 W. Blackstone, Commentar­
ies 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 quota­
tions taken from an 1862 criminal procedure treatise. See



4 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

a n te , at 13-14 (quoting J. Archbold, Pleading and E v i­
dence in Criminal Cases 51, 188 (15th ed. 1862)). A closer 
examination of the two statements reveals that neither 
supports the Courts “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 to ­
gether, the statements from the Archbold treatise demon­
strate nothing more than the unremarkable proposition 
that a defendant could receive the greater statutory pun­
ishment 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 th e e le m en ts  of the statu­
tory 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 con­
sists of certain acts done or omitted under certain circum­
stances; 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 propo­
sition 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 th e  
e le m en ts  of the statutory offense. See 2 M. Hale, Pleas of



5Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

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 re a- 
sonable doubt the actual elements of the offense. This 
case, however, concerns the distinct question of when a 
fact that bears on a defendants punishment, but which 
the legislature has not classified as an element of the 
charged offense, must nevertheless be treated as an o f­
fense 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 addi­
tional historical evidence that, in his view, dictates an 
even broader rule than that set forth in the Court s opi n- 
ion. The history cited by JUSTICE THOMAS does not re­
quire, as a matter of federal constitutional law, the appl i- 
cation of the rule he advocates. To understand why, it is 
important to focus on the basis for JUSTICE THOMAS ’ ar­
gument. 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 defendants punishment as 
an element of an offense. See an te , at 2-4. Even if 
JUSTICE T h o m a s  ’ first assertion were correct- a proposi­
tion 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 Amen d- 
ments, JUSTICE THOMAS’ concurrence is notable for its 
failure to discuss any historical practice, or to cite any 
decisions, predating (or contemporary with) the ratifica­
tion of the Bill of Rights. Rather, JUSTICE THOMAS divines



6 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

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 k 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 co n- 
stitutions, 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 Thom as  cites and the proposition he seeks to 
establish with that evidence.

An examination of the decisions cited by JUSTICE 
T hom as  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 rele­
vant 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 (T he fact itself must be certainly 
set down in an indictment’); id ., at *184 (T he 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 th a t A m erican courts 
in the 19th century cam e to confront th is question  in their  
cases, and often treated facts that served to increase  
punishm ent as elem en ts of the relevant sta tu tory  offenses. 
To the exten t JUSTICE THOMAS’broader rule can be drawn  
from those decisions, th e rule w as one of th ose c o u r ts ’own



7Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

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 
T h o m a s  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 i n- 
dictment, see, e.g.. L a m e d  v. C o m m o n w ea lth , 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., R e x v . M a rsh a ll, 
1 Moody C. C. 158, 168 Eng. Rep. 1224 (1827). JUSTICE 
T h o m a s  ’ collection of state-court opinions is therefore of 
marginal assistance in determining the original unde r- 
standing 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 fe d e ra l c o n s titu tio n a l 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." A n te, 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 an te, at 17—18 (quoting A lm en -  
d a rez-T o rre s , 523 U. S., at 251 (SCALIA, J ., dissenting)). 
The Court then cites our decision in M u lla n e y  v. W ilbur, 
421 U. S. 684 (1975), to demonstrate the ’lesson” that due 
process and jury protections extend beyond those factual 
determinations that affect a defendants guilt or inno­
cence. A nte, at 18. The Court explains M u lla n e y  as hav­
ing 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



8 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

the degree of punishment the defendant receives. A n te , at 
18. The Court chooses to ignore, however, the decision we 
issued two years later, P a tte r so n  v. N e w  York, 432 U. S. 
197 (1977), which clearly rejected the Courts broad read­
ing of M u lla n ey .

In P a tte rso n , 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 Pattersons due process challenge to his 
conviction:

'We thus decline to adopt as a constitutional im ­
perative, operative countrywide, that a State must 
disprove beyond a reasonable doubt every fact const i- 
tuting any and all affirmative defenses related to the 
culpability of an accused. Traditionally, due process 
has required that only the most basic procedural saf e- 
guards be observed; more subtle balancing of society s 
interests against those of the accused have been left to 
the legislative branch." Id ., at 210.

Although we characterized the factual determination 
under New York law as one going to the mitigation of 
culpability, id ., at 206, as opposed to the aggravation of 
the punishment, it is difficult to understand why the rule 
adopted by the Court in todays case (or the broader rule



9Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

advocated by JUSTICE THOMAS) would not require the 
overruling of P a tterso n . Unless the Court is willing to 
defer to a legislature s formal definition of the elements of 
an offense, it is clear that the fact that Patterson did not 
act under the influence of extreme emotional disturbance, 
in substance, “increase[d] the penalty for [his] crime b e ­
yond the prescribed statutory maximum” for first-degree 
manslaughter. A n te, at 24. Nonetheless, we held that 
New Yorks requirement that the defendant, rather than 
the State, bear the burden of proof on this factual deter­
mination comported with the Fourteenth Amendment 
Due Process Clause. P a tte rso n . 432 U. S„ at 205-211, 
216; see also id ., at 204-205 (reaffirming L e la n d  v. O re ­
gon , 343 U. S. 790 (1952), which upheld against due proc­
ess challenge Oregon s requirement that the defendant, 
rather than the State, bear the burden on factual deter­
mination of defendants insanity).

P a tte rso n  is important because it plainly refutes the 
Courts expansive reading of M u lla n ey . Indeed, the defen­
dant in P a tte rso n  characterized M u lla n e y  exactly as the 
Court has today and we re je c te d  that interpretation:

"M ullaney  s holding, it is argued, is that the State 
may not permit the blameworthiness of an act o r  th e  
s e v e r i ty  o f  p u n is h m e n t a u th o r iz e d  fo r  i ts  c o m m iss io n  
to depend on the presence or absence of an identified 
fact without assuming the burden of proving the pre s- 
ence or absence of that fact, as the case may be, b e­
yond a reasonable doubt. In our view, the M u lla n e y  
holding should not be so broadly read.” P a tte rso n , s u ­
p ra , at 214-215 (emphasis added) (footnote omitted).

We explained M u lla n e y  instead as holding only “that a 
State must prove every ingredient of an offense beyond a 
reasonable doubt, and that it may not shift the burden of 
proof to the defendant by presuming that ingredient upon 
proof of the other elements of the offense.” 432 U. S., at



10 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

215. Because nothing had been presumed against P atter­
son under New York law, we found no due process viol a- 
tion. Id ., at 216. Ever since our decision in P a tte rso n , we 
have consistently explained the holding in M u lla n e y  in 
these limited terms and have rejected the broad interpre­
tation the Court gives M u lla n e y  today. See J o n es, 526 
U. S., at 241 ( We identified the use of a presumption to 
establish an essential ingredient of the offense as the 
curse of the Maine law [in M u lla n ey]'):  A lm e n d a re z -  
T orres, 523 U. S., at 240 (“[M u llan ey] suggests that Con­
gress cannot permit judges to increase a sentence in light 
of recidivism, or any other factor, not set forth in an in ­
dictment and proved to a jury beyond a reasonable doubt. 
This Courts later case, . . . P a tte rso n  v. N e w  York, how­
ever, makes absolutely clear that such a reading of M u l­
la n e y  is wrong’); M cM illa n , 477 U. S., at 84 (same).

The case law from which the Court claims that its rule 
emerges consists of only one other decision- M c M illa n  v. 
P e n n sy lv a n ia . The Courts reliance on M c M illa n  is also 
puzzling, given that our holding in that case points to the 
rejection of the Courts rule. There, we considered a Penn­
sylvania statute that subjected a defendant to a m anda­
tory minimum sentence of five years ’ imprisonment if a 
judge found, by a preponderance of the evidence, that the 
defendant had visibly possessed a firearm during the 
commission of the offense for which he had been convicted. 
Id ., at 81. The petitioners claimed that the Fourteenth 
Amendments Due Process Clause and the Sixth Amend­
m ents jury trial guarantee (as incorporated by the Four­
teenth Amendment) required the State to prove to the jury 
beyond a reasonable doubt that they had visibly possessed 
firearms. We rejected both constitutional claims. I d  at 
84-91, 93.

The essential holding of M cM illa n  conflicts with at least 
two of the several formulations the Court gives to the rule 
it announces today. First, the Court endorses the follow-



11Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

ing principle: “ [I]t is unconstitutional for a leg islature to 
rem ove from the ju ry  the a ssessm en t of facts th a t  in crea se  
th e p r e sc r ib e d  ra n g e  o f  p e n a ltie s  to which a crim inal d e ­
fendant is exposed. It is equally clear th at such facts m ust 
be established by proof beyond a reasonable doubt. ’ ” 
A n te , at 24 (em phasis added) (quoting J o n es, 526 U. S., at 
2 5 2 -2 5 3  (STEVENS, j ., concurring)). Second, the Court 
endorses the rule as restated in JUSTICE SCALIAs concur­
ring opinion in Jon es. See an te , at 24. There, JUSTICE 
SCALIA wrote: “[I]t is unconstitutional to rem ove from the  
ju ry  the a ssessm en t of facts th a t  a l te r  th e  c o n g re ss io n a lly  
p r e sc r ib e d  ra n g e  o f  p e n a ltie s  to which a crim inal d efen ­
dant is exp osed .” Jon es, 526 U. S„ at 253 (em phasis  
added). Thus, the Court appears to hold th at any fact th at  
increases or a lters th e ra n g e  of penalties to which a d e fen ­
dant is ex p o sed - which, by definition, m u st include i n- 
creases or a lterations to either the m inim um  or m axim um  
p en a lt ie s -  m ust be proved to a jury beyond a reasonable  
doubt. In M cM illa n , however, we rejected such a rule to 
the ex ten t it concerned those facts th a t increase or a lter  
the m inim um  penalty to which a defendant is exposed. 
Accordingly, it is incum bent on the Court not only to 
adm it that it is overruling M cM illa n , but also to explain  
w hy such a course of action is appropriate under normal 
principles of s ta r e  dec is is.

The Courts opinion does neither. Instead, it attempts 
to lay claim to M cM illa n  as support for its “increase in the 
maximum penalty" rule. According to the Court, M c M il­
la n  acknowledged that permitting a judge to make fin d- 
ings that expose a defendant to greater or additional 
punishment “may raise serious constitutional concern.” 
A n te , at 20. We said nothing of the sort in M cM illa n . To 
the contrary, we began our discussion of the petitioners’ 
constitutional claims by emphasizing that we had already 
“rejected the claim that whenever a State links the Sever­
ity of punishment ’to the presence or absence of an ident i-



12 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

fled fact'the State must prove that fact beyond a reason­
able doubt.” 477 U. S., at 84 (quoting P a tte rso n , 432 U. S., 
at 214). We then reaffirmed the rule set forth in P a t te r ­
s o n -  “that in determining what facts must be proved 
beyond a reasonable doubt the state legislature k defin i- 
tion of the elements of the offense is usually dispositive. ” 
M cM illa n , 477 U. S., at 85. Although we acknowledged 
that there are constitutional limits to the State s power to 
define crimes and prescribe penalties, we found no need to 
establish those outer boundaries in M c M illa n  because 
“several factors” persuaded us that the Pennsylvania 
statute did not exceed those limits, however those limits 
might be defined. Id ., at 86. The Courts assertion that 
M c M illa n  supports the application of its bright-line rule in 
this area is. therefore, unfounded.

The Court nevertheless claims to find support for its 
rule in our discussion of one factor in M c M illa n -  namely, 
our statement that the petitioners ’ claim would have had 
at least more superficial appeal if the firearm possession 

finding had exposed them to greater or additional pun­
ishment. Id ., at 88. To say that a claim may have had 
“more superficial appeal” is, of course, a far cry from say- 
ing that a claim would have been upheld. Moreover, we 
made that statement in the context of examining one of 
several factors that, in combination, ultimately gave "no 
doubt that Pennsylvania s [statute fell] on the permissible 
side of the constitutional line.” Id ., at 91. The confidence 
of that conclusion belies any argument that our ruling 
would have been different had the Pennsylvania statute 
instead increased the maximum penalty to which the 
petitioners were exposed. In short, it is clear that we did 
not articulate any bright-line rule that States must prove 
to a jury beyond a reasonable doubt any fact that exposes 
a defendant to a greater punishment. Such a rule would 
have been in substantial tension with both our earlier 
acknowledgment that P a tte r so n  rejected such a rule, see



13Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

477 U. S., at 84, and our recognition that a state legisla­
tures definition of the elements is normally dispositive, 
see id ., at 85. If any single rule can be derived from 
M cM illa n , it is not the Courts “increase in the maximum 
penalty” principle, but rather the following: When a State 
takes a fact that has always been considered by sentencing 
courts to bear on punishment, and dictates the precise 
weight that a court should give that fact in setting a d e- 
fendant s sentence, the relevant fact need not be proved to 
a jury beyond a reasonable doubt as would an element of 
the offense. See id ., at 89-90.

Apart from M u lla n e y  and M cM illa n , the Court does not 
claim to find support for its rule in any other pre- J o n e s  
decision. Thus, the Court is in error when it says that its 
rule emerges from our case law. Nevertheless, even if one 
were willing to assume that M u lla n e y  and M cM illa n  lend 
some support for the Courts position, that feeble founda­
tion is shattered by several of our precedents directly 
addressing the issue. The only one of those decisions that 
the Court addresses at any length is A lm en d a re z-T o rre s . 
There, we squarely rejected the “increase in the maximum 
penalty” rule: ‘Petitioner also argues, in essence, that this 
Court should simply adopt a rule that any significant 
increase in a statutory maximum sentence would trigger a 
constitutional elem ents‘requirement. We have explained 
why we believe the Constitution, as interpreted in M c M il­
la n  and earlier cases, does not impose that requirement.” 
523 U. S., at 247. Whether A lm en d a rez-T o rres  directly 
refuted the "increase in the maximum penalty” rule was 
extensively debated in Jones, and that debate need not be 
repeated here. See 526 U. S„ at 248-249; id ., at 268-270 
(KENNEDY, j ., dissenting). I continue to agree with JUSTICE 
K e n n e d y  that A lm en d a rez-T o rres  constituted a clear repu­
diation of the rule the Court adopts today. See Jones, su pra , 
at 268 (dissenting opinion). My understanding is bolstered 
by M o n g e v . C aliforn ia , a decision relegated to a footnote by



14 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

the Court today. In M onge, in reasoning essential to our 
holding, we reiterated that “the Court has rejected an ab­
solute rule that an enhancement constitutes an element of 
the offense any time that it increases the maximum sen ­
tence to which a defendant is exposed.” 524 U. S„ at 729 
(citing A lm en d a rez-  Torres). At the very least, M on ge  dem­
onstrates that A lm en d a rez-T o rre s  was not an “exceptional 
departure "from ‘historic practice." A nte, at 21.

Of all the decisions that refute the Courts “increase in 
the maximum penalty” rule, perhaps none is as important 
as W alton  v. A rizo n a , 497 U. S. 639 (1990). There, a jury 
found Walton, the petitioner, guilty of first-degree murder. 
Under Arizona law, a trial court conducts a separate 
sentencing hearing to determine whether a defendant 
convicted of first-degree murder should receive the death 
penalty or life imprisonment. See id ., at 643 (citing Ariz 
Rev. Stat. Ann. §13-703(B) (1989)). At that sentencing 
hearing, the judge, rather than the jury, must determine 
the existence or nonexistence of the statutory aggravating 
and mitigating factors. See W alton , 497 U. S„ at 643 
(quoting § 13-703 (B)). The Arizona statute directs the 

judge to “ impose a sentence of death if the court finds one 
or more of the aggravating circumstances enumerated in 
[the statute] and that there are no mitigating circum­
stances sufficiently substantial to call for leniency. ’ ” Id., 
at 644 (quoting §13-703(E)). Thus, under Arizona law, a 
defendant convicted of first-degree murder can be sen ­
tenced to death o n ly  i f  the judge finds the existence of a 
statutory aggravating factor.

Walton challenged the Arizona capital sentencing 
scheme, arguing that the Constitution requires that the 
jury, and not the judge, make the factual determination of 
the existence or nonexistence of the statutory aggravating 
factors. We rejected that contention: “ Any argument that 
the Constitution requires that a jury impose the sentence 
of death or make the findings prerequisite to imposition of



15Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

such a sentence has been soundly rejected by prior deci­
sions of this Court. ’ ” Id ., at 647 (quoting C lem o n s  v. 
M is s is s ip p i, 494 U. S. 738, 745 (1990)). Relying in part on 
our decisions rejecting challenges to Florida!; capital 
sentencing scheme, which also provided for sentencing by 
the trial judge, we added that “ the Sixth Amendment 
does not require that the specific findings authorizing the 
imposition of the sentence of death be made by the jury. ’ ” 
W alton , su p ra , at 648 (quoting H ild w in  v. F lo rid a , 490 
U. S. 638, 640—641 (1989) (per cu ria m )).

While the Court can cite no decision that would require 
its “increase in the maximum penalty” rule, W alton  
plainly rejects it. Under Arizona law, the fact that a 
statutory aggravating circumstance exists in the defen­
dants case “ increases the maximum penalty for [the] 
crime ’ ” of first-degree murder to death. A n te, at 9 (quot­
ing Jon es, su p ra , at 243, n. 6). If the judge does not find 
the existence of a statutory aggravating circumstance, the 
maximum punishment authorized by the jurys guilty 
verdict is life imprisonment. Thus, using the terminology 
that the Court itself employs to describe the constitutional 
fault in the New Jersey sentencing scheme presented here, 
under Arizona law, the judge s finding that a statutory 
aggravating circumstance exists “exposes the criminal 
defendant to a penalty exceed in g  the maximum he would 
receive if punished according to the facts reflected in the 
jury verdict alone.” A nte, at 16 (emphasis in original). 
Even JUSTICE T h o m a s , whose vote is necessary to the 
Courts opinion today, agrees on this point. See an te , at 
26. If a State can remove from the jury a factual determi­
nation that makes the difference between life and death, 
as W alton  holds that it can, it is inconceivable why a State 
cannot do the same with respect to a factual determina­
tion that results in only a 10-year increase in the m axi­
mum sentence to which a defendant is exposed.

The distinction of W alton  offered by the Court today is



16 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

baffling, to say the least. The key to that distinction is the 
Courts claim that, in Arizona, the jury makes all of the 
findings necessary to expose the defendant to a death 
sentence. See an te , at 31 (quoting A lm en d a re z -T o rre s , 523 
U. S., at 257, n. 2 (SCALIA, J., dissenting)). As explained 
above, that claim is demonstrably untrue. A defendant 
convicted of first-degree murder in Arizona cannot receive 
a death sentence unless a judge makes the factual dete r- 
mination that a statutory aggravating factor exists. W ith­
out that critical finding, the maximum sentence to which 
the defendant is exposed is life imprisonment, and not the 
death penalty. Indeed, at the time W alton  was decided, 
the author of the Courts opinion today understood well 
the issue at stake. See W alton , 497 U. S., at 709 
(STEVENS, J., dissenting) ("[U]nder Arizona law, as con­
strued by Arizona s highest court, a first-degree murder is 
not punishable by a death sentence until at least one 
statutory aggravating circumstance has been proved’). In 
any event, the extent of our holding in W alton  should have 
been perfectly obvious from the face of our decision. We 
upheld the Arizona scheme specifically on the ground that 
the Constitution does not require the jury to make the 
factual findings that serve as the “ prerequisite to imposi­
tion of [a death] sentence,' ” id ., at 647 (quoting C lem on s, 
su p ra , at 745), or the specific findings authorizing the 
imposition of the sentence of death,' ” W alton , su p ra , at 
648 (quoting H ild w in , su p ra , at 640-641). If the Court 
does not intend to overrule W alton , one would be hard 
pressed to tell from the opinion it issues today.

The distinction of W alton  offered by JUSTICE THOMAS is 
equally difficult to comprehend. According to JUSTICE 
THOMAS, because the Constitution requires state legisla­
tures to narrow sentencing discretion in the capital- 
punishment context, facts that expose a convicted defend­
ant to a capital sentence may be different from all other 
facts that expose a defendant to a more severe sentence.



17Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

See ante, at 26-27. JUSTICE THOMAS gives no specific 
reason for excepting capital defendants from the constit u- 
tional protections he would extend to defendants gene r- 
ally, and none is readily apparent. If JUSTICE THOMAS 
means to say that the Eighth Amendment s restriction on 
a state legislature s ability to define capital crimes should 
be compensated for by permitting States more leeway 
under the Fifth and Sixth Amendments in proving an 
aggravating fact necessary to a capital sentence, his re a- 
soning is without precedent in our constitutional jurispru­
dence.

In sum, the Courts statement that its “increase in the 
maximum penalty” rule emerges from the history and case 
law that it cites is simply incorrect. To make such a claim, 
the Court finds it necessary to rely on irrelevant historical 
evidence, to ignore our controlling precedent {e.g., Patter­
son), and to offer unprincipled and inexplicable d istinc­
tions between its decision and previous cases addressing 
the same subject in the capital sentencing context {e.g., 
Walton). The Court has failed to offer any meaning­
ful justification for deviating from years of cases both 
suggesting and holding that application of the “increase 
in the maximum penalty” rule is not required by the 
Constitution.

II
That the Court s rule is unsupported by the history and 

case law it cites is reason enough to reject such a substa n- 
tial departure from our settled jurisprudence. Signifi­
cantly, the Court also fails to explain adequately why the 
Due Process Clauses of the Fifth and Fourteenth Amend­
ments and the jury trial guarantee of the Sixth Amend­
ment require application of its rule. Upon closer examin a- 
tion, it is possible that the Court & "increase in the 
maximum penalty" rule rests on a meaningless formalism 
that accords, at best, marginal protection for the constitu-



18 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

tional rights that it seeks to effectuate.
Any discussion of either the constitutional necessity or 

the likely effect of the Courts rule must begin, of course, 
with an understanding of what exactly that rule is. As 
was the case in Jon es, however, that discussion is compli­
cated here by the Court s failure to clarify the contours of 
the constitutional principle underlying its decision. See 
J o n es , 526 U. S., at 267 (KENNEDY, J., dissenting). In fact, 
there appear to be several plausible interpretations of the 
constitutional principle on which the Courts decision 
rests.

For example, under one reading, the Court appears to 
hold that the Constitution requires that a fact be submi t- 
ted to a jury and proved beyond a reasonable doubt only if 
that fact, as a formal matter, extends the range of pu n- 
ishment b eyo n d  th e p r e sc r ib e d  s ta tu to r y  m a x im u m . See, 
e.g., an te , at 24. A State could, however, remove from the 

jury (and subject to a standard of proof below ‘beyond a 
reasonable doubt’) the assessment of those facts that 
define narrower ranges of punishment, w ith in  th e  o v e ra ll  
s ta tu to r y  ran ge , to which the defendant may be sentenced. 
See, e.g., an te , at 28, n. 19. Thus, apparently New Jersey 
could cure its sentencing scheme, and achieve virtually the 
same results, by drafting its weapons possession statute in 
the following manner: First, New Jersey could prescribe, 
in the weapons possession statute itself, a range of 5 to 20 
years ’ imprisonment for one who commits that criminal 
offense. Second, New Jersey could provide that only those 
defendants convicted under the statute who are found 
by a judge, by a preponderance of the evidence, to have 
acted with a purpose to intimidate an individual on the 
basis of race may receive a sentence greater than 10 years ’ 
imprisonment.

The Courts proffered distinction of W alton  v. A rizo n a  
suggests that it means to announce a rule of only this 
limited effect. The Court claims the Arizona capital sen-



19Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

tencing scheme is consistent with the constitutional pri n- 
ciple underlying todays decision because Arizonas first- 
degree murder statute itself authorizes both life im pris­
onment and the death penalty. See Ariz. Rev. Stat. Ann. 
§13-1105(C) (1989). “ [0]nce a j u r y  has found the defen­
dant g u i l ty  of a ll  th e e lem en ts  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. ’ ” A n te , at 
31 (emphasis in original) (quoting A lm en d a re z-T o rre s , 523 
U. S., at 257, n. 2 (SCALIA, J., dissenting)). Of course, as 
explained above, an Arizona sentencing judge can impose 
the maximum penalty of death only if the judge first 
makes a statutorily required finding that at least one 
aggravating factor exists in the defendants case. Thus, 
the Arizona first-degree murder statute authorizes a 
maximum penalty of death only in a formal sense. In real 
terms, however, the Arizona sentencing scheme removes 
from the jury the assessment of a fact that determines 
whether the defendant can receive that maximum pun­
ishment. The only difference, then, between the Arizona 
scheme and the New Jersey scheme we consider here- 
apart from the magnitude of punishment at stake- is that 
New Jersey has not prescribed the 20-year maximum 
penalty in the same statute that it defines the crime to be 
punished. It is difficult to understand, and the Court does 
not explain, why the Constitution would require a state 
legislature to follow such a meaningless and formalistic 
difference in drafting its criminal statutes.

Under another reading of the Courts decision, it may 
mean only that the Constitution requires that a fact be 
submitted to a jury and proved beyond a reasonable doubt 
if it, as a formal matter, in crea ses  the range of punishment 
b eyo n d  th a t  w h ich  co u ld  le g a lly  be im p o se d  a b se n t th a t  
fact. See, e.g., an te , at 16, 24. A State could, however, 
remove from the jury (and subject to a standard of proof



20 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

below ‘beyond a reasonable doubt’) the assessment of 
those facts that, as a formal matter, decrease the range of 
punishment below that which could legally be imposed 
absent that fact. Thus, consistent with our decision in 
Patterson. New Jersey could cure its sentencing scheme, 
and achieve virtually the same results, by drafting its 
weapons possession statute in the following manner: First, 
New Jersey could prescribe, in the weapons possession 
statute itself, a range of 5 to 20 years ’ imprisonment for 
one who commits that criminal offense. Second, New 
Jersey could provide that a defendant convicted under the 
statute whom a judge finds, by a preponderance of the 
evidence, not to have acted with a purpose to intimidate 
an individual on the basis of race may receive a sentence 
no greater than 10 years 'imprisonment.

The rule that JUSTICE THOMAS advocates in his concur­
ring opinion embraces this precise distinction between a 
fact that increases punishment and a fact that decreases 
punishment. See ante, at 3 (‘‘[A] crim e’includes every fact 
that is by law a basis for imposing or increasing punis h- 
ment (in contrast with a fact that mitigates punis h- 
ment) ). The historical evidence on which JUSTICE 
T h o m a s  relies, however, demonstrates both the difficulty 
and the pure formalism of making a constitutional “e le ­
ments rule turn on such a difference. For example, the 
Wisconsin statute considered in Lacyv. State, 15 Wis. *13 
(1862), could plausibly qualify as either increasing or 
mitigating punishment on the basis of the same specified 
fact. There, Wisconsin provided that the willful and mal i- 
cious burning of a dwelling house in which “the life of no 
person shall have been destroyed ” was punishable by 7 to 
14 years in prison, but that the same burning at a time in 
which “there was no person lawfully in the dwelling 
house” was punishable by only 3 to 10 years in prison 
Wis. Rev. Stat., ch. 165, §1 (1858). Although the statute 
appeared to make the absence of persons from the affected



Cite as: 530 U. S .___ (2000) 21

O Connor, J., dissenting

dwelling house a fact that mitigated punishment, the 
Wisconsin Supreme Court found that the p re se n c e  of a 
person in the affected house constituted an aggravating 
circumstance. L acy, su p ra , at *15—*16. As both this 
example and the above hypothetical redrafted New Jersey 
statute demonstrate, see su p ra , at 20, whether a fact is 
responsible for an increase or a decrease in punishment 
rests in the eye of the beholder. Again, it is difficult to 
understand, and neither the Court nor JUSTICE THOMAS 
explains, why the Constitution would require a state 
legislature to follow such a meaningless and formalistic 
difference in drafting its criminal statutes.

If either of the above readings is all that the C ourts  
decision means, “the Courts principle amounts to nothing 
more than chastising [the New Jersey Legislature] for 
failing to use the approved phrasing in expressing its 
intent as to how [unlawful weapons possession] should be 
punished.” Jon es, 526 U. S., at 267 (KENNEDY, J., dis­
senting). If New Jersey can. consistent with the Constitu­
tion, make precisely the same differences in punishment 
turn on precisely the same facts, and can remove the 
assessment of those facts from the jury and subject them 
to a standard of proof below ‘beyond a reasonable doubt, ” 
it is impossible to say that the Fifth, Sixth, and Four­
teenth Amendments require the Courts rule. For the 
same reason, the “structural democratic constraints” that 
might discourage a legislature from enacting either of the 
above hypothetical statutes would be no more significant 
than those that would discourage the enactment of New 
Jersey s present sentence-enhancement statute. See an te , 
at 24, n. 16 (majority opinion). In all three cases, the 
legislature is able to calibrate punishment perfectly, and 
subject to a maximum penalty only those defendants 
whose cases satisfy the sentence-enhancement criterion. 
As JUSTICE K e n n e d y  explained in J o n es, “[n]o constitu­
tional values are served by so formalistic an approach,



22 APPRENDI v. NEW JERSEY

0  Connor, J., dissenting

while its constitutional costs in statutes struck down 
are real.” 526 U. S., at 267.

Given the pure formalism of the above readings of the 
Courts opinion, one suspects that the constitutional prin­
ciple underlying its decision is more far reaching. The 
actual principle underlying the Courts decision may be 
that any fact (other than prior conviction) that has the 
effect, in  r e a l term s, of increasing the maximum punish­
ment beyond an otherwise applicable range must be su b- 
mitted to a jury and proved beyond a reasonable doubt. 
See, e.g., an te , at 28 (“[T]he 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?’). The principle thus would 
apply not only to schemes like New Jerseys, under which 
a factual determination exposes the defendant to a s e n ­
tence beyond the prescribed statutory maximum, but also 
to all determinate-sentencing schemes in which the length 
of a defendant s sentence within the statutory range turns 
on specific factual determinations (e.g ., the federal Sen­
tencing Guidelines). JUSTICE THOMAS essentially con­
cedes that the rule outlined in his concurring opinion 
would require the invalidation of the Sentencing Guid e- 
lines. See an te, at 27, n. 11.

I would reject any such principle. As explained above, it 
is inconsistent with our precedent and would require the 
Court to overrule, at a minimum, decisions like P a tte rso n  
and W alton. More importantly, given our approval of- 
and the significant history in this country of— 
discretionary sentencing by judges, it is difficult to 
understand how the Fifth, Sixth, and Fourteenth 
Amendments could possibly require the Courts or JUSTICE 
THOMAS rule. Finally, in light of the adoption of 
determinate-sentencing schemes by many States and the 
Federal Government, the consequences of the Courts and 
JUSTICE T h o m a s  ’ rules in terms of sentencing schemes



23Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

invalidated by todays decision will likely be severe.
As the Court acknowledges, we have never doubted that 

the Constitution permits Congress and the state legisla­
tures to define criminal offenses, to prescribe broad ranges 
of punishment for those offenses, and to give judges di s- 
cretion to decide where within those ranges a particular 
defendants punishment should be set. See an te , at 14-15. 
That view accords with historical practice under the Con­
stitution. ‘From the beginning of the Republic, federal 
judges were entrusted with wide sentencing discretion. 
The great majority of federal criminal statutes have stated 
only a maximum term of years and a maximum monetary 
fine, permitting the sentencing judge to impose any term 
of imprisonment and any fine up to the statutory m axi­
mum. K. Stith & J. Cabranes, Fear of Judging: Sentenc­
ing Guidelines in the Federal Courts 9 (1998) (footnote 
omitted). Under discretionary-sentencing schemes, a 
judge bases the defendant s sentence on any number of 
facts neither presented at trial nor found by a jury beyond 
a reasonable doubt. As one commentator has explained:

During the age of broad judicial sentencing discretion, 
judges frequently made sentencing decisions on the b a- 
sis of facts that they determined for themselves, on less 
than proof beyond a reasonable doubt, without eliciting 
very much concern from civil libertarians. . . . The sen­
tence in any number of traditional discretionary situ a- 
tions depended quite directly on judicial findings of sp e- 
cific contested facts. . . . Whether because such facts 
were directly relevant to the judges retributionist a s­
sessment of how serious the particular offense was 
(within the spectrum of conduct covered by the statute 
of conviction), or because they bore on a determination 
of how much rehabilitation the offenders character was 
likely to need, the sentence would be higher or lower, in 
some specific degree determined by the judge, based on



24 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

the judged factual conclusions.” Lynch, Towards A
Model Penal Code, Second (Federal?), 2 Buffalo Crim.
L. Rev. 297, 320 (1998) (footnote omitted).

Accordingly, under the discretionary-sentencing schemes, 
a factual determination made by a judge on a standard of 
proof below ‘beyond a reasonable doubt" often made the 
difference between a lesser and a greater punishment.

For example, in W illia m s  v. N e w  York, a jury found the 
defendant guilty of first-degree murder and recommended 
life imprisonment. The judge, however, rejected the jury £ 
recommendation and sentenced Williams to death on the 
basis of additional facts that he learned through a pre­
sentence investigation report and that had neither been 
charged in an indictment nor presented to the jury. 337 
U. S., at 242-245. In rejecting W illiams’ due process 
challenge to his death sentence, we explained that there 
was a long history of sentencing judges exercising "wide 
discretion in the sources and types of evidence used to 
assist [them] in determining the kind and extent of pu n- 
ishment to be imposed within limits fixed by law .” Id ., at 
246. Specifically, we held that the Constitution does not 
restrict a judges sentencing decision to information that is 
charged in an indictment and subject to cross-examination 
in open court. ‘The due process clause should not be 
treated as a device for freezing the evidential procedure of 
sentencing in the mold of trial procedure." Id ., at 251.

Under our precedent, then, a State may leave the d e­
termination of a defendants sentence to a judges discre­
tionary decision within a prescribed range of penalties. 
When a judge, pursuant to that sentencing scheme, d e- 
cides to increase a defendants sentence on the basis of 
certain contested facts, those facts need not be proved to a 
jury beyond a reasonable doubt. The judges findings, 
whether by proof beyond a reasonable doubt or less, suffice 
for purposes of the Constitution. Under the Courts deci-



25Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

sion today, however, it appears that once a legislature 
constrains judges' sentencing discretion by prescribing 
certain sentences that may only be imposed (or must be 
imposed) in connection with the same determinations of 
the same contested facts, the Constitution requires that 
the facts instead be proved to a jury beyond a reasonable 
doubt. I see no reason to treat the two schemes differ­
ently. See, e.g., M cM illa n , 477 U. S., at 92 (“We have 
some difficulty fathoming why the due process calculus 
would change simply because the legislature has seen fit 
to provide sentencing courts with additional guidance’). 
In this respect, I agree with the Solicitor General that “[a] 
sentence that is constitutionally permissible when selected 
by a court on the basis of whatever factors it deems appro­
priate does not become impermissible simply because the 
court is permitted to select that sentence only after m ak­
ing a finding prescribed by the legislature.” Brief for 
United States as A m icu s  C u ria e  7. Although the Court 
acknowledges the legitimacy of discretionary sentencing 
by judges, see an te , at 14-15, it never provides a sound 
reason for treating judicial factfinding under determinate- 
sentencing schemes differently under the Constitution.

J u s t ic e  T h o m a s  ’ attempt to explain this distinction is 
similarly unsatisfying. His explanation consists primarily 
of a quotation, in turn, of a 19th-century treatise writer, 
who contended that the aggravation of punishment within 
a statutory range on the basis of facts found by a judge 
“ is an entirely different thing from punishing one for 
what is not alleged against him. ’ ” A n te, at 22 (quoting 1 
J. Bishop, Commentaries on Law of Criminal Procedure 
§85, p. 54 (rev. 2d ed. 1872)). As our decision in W illia m s  
v. N e w  York  demonstrates, however, that statement does 
not accurately describe the reality of discretionary sen ­
tencing conducted by judges. A defendant s actual pu n- 
ishment can be affected in a very real way by facts never 
alleged in an indictment, never presented to a jury, and



26 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

never proved beyond a reasonable doubt. In W illiams’ 
case, facts presented for the first time to the judge, for 
purposes of sentencing alone, made the difference between 
life imprisonment and a death sentence.

Consideration of the purposes underlying the Sixth 
Amendment s jury trial guarantee further demonstrates 
why our acceptance of judge-made findings in the context 
of discretionary sentencing suggests the approval of the 
same judge-made findings in the context of determinate 
sentencing as well. One important purpose of the Sixth 
Amendments jury trial guarantee is to protect the crimi­
nal defendant against potentially arbitrary judges. It 
effectuates this promise by preserving, as a constitutional 
matter, certain fundamental decisions for a jury of one s 
peers, as opposed to a judge. For example, the Court has 
recognized that the Sixth Amendments guarantee was 
motivated by the English experience of “competition 
between judge and jury over the real significance of their 
respective roles,” Jones, 526 U. S„ at 245, and “measures 
[that were taken] to diminish the ju ries’power," ib id . We 
have also explained that the jury trial guarantee was 
understood to provide “an inestimable safeguard against 
the corrupt or overzealous prosecutor and against the 
compliant, biased, or eccentric judge. If the defendant 
preferred the common-sense judgment of a jury to the 
more tutored but perhaps less sympathetic reaction of the 
single judge, he was to have it .” D u n can  v. L o u isia n a , 391 
U. S. 145, 156 (1968). Blackstone explained that the right to 
trial by jury was critically important in criminal cases 
because of the violence and partiality of judges appointed 
by the crown, . . . who might then, as in France or Turkey, 
imprison, dispatch, or exile any man that was obnoxious to 
the government, by an instant declaration, that such is their 
will and pleasure.” 4 Blackstone, Commentaries, at 343. 
Clearly, the concerns animating the Sixth Amendments 
jury trial guarantee, if they were to extend to the sentencing



27Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

context at all, would apply with greater strength to a discre­
tionary-sentencing scheme than to determinate sentencing. 
In the former scheme, the potential for mischief by an arb i- 
trary judge is much greater, given that the judges decision 
of where to set the defendants sentence within the pre­
scribed statutory range is left almost entirely to discretion. 
In contrast, under a determinate-sentencing system, the 
discretion the judge wields within the statutory range is 
tightly constrained. Accordingly, our approval of discretio n- 
ary-sentencing schemes, in which a defendant is not entitled 
to have a jury make factual findings relevant to sentencing 
despite the effect those findings have on the severity of the 
defendants sentence, demonstrates that the defendant 
should have no right to demand that a jury make the 
equivalent factual determinations under a determinate- 
sentencing scheme.

The Court appears to hold today, however, that a defe n- 
dant is entitled to have a jury decide, by proof beyond a 
reasonable doubt, every fact relevant to the determination 
of sentence under a determinate-sentencing scheme. If 
this is an accurate description of the constitutional princ i- 
ple underlying the Courts opinion, its decision will have 
the effect of invalidating significant sentencing reform 
accomplished at the federal and state levels over the past 
three decades. JUSTICE THOMAS ’ rule, as he essentially 
concedes, see an te , at 27, n. 11, would have the same 
effect.

Prior to the most recent wave of sentencing reform, the 
Federal Government and the States employed indetermi­
nate-sentencing schemes in which judges and executive 
branch officials (e.g ., parole board officials) had substan­
tial discretion to determine the actual length of a defe n- 
dants sentence. See, e.g., U. S. Dept, of Justice, S. Shane- 
DuBow, A. Brown, & E. Olsen, Sentencing Reform in the 
United States: History, Content, and Effect 6 -7  (Aug. 
1985) (hereinafter Shane-DuBow); Report of Twentieth



28 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

Century Fund Task Force on Criminal Sentencing, Fair 
and Certain Punishment 11-13 (1976) (hereinafter Task 
Force Report); A. Dershowitz, Criminal Sentencing in the 
United States: An Historical and Conceptual Overview, 
423 Annals Am. Acad. Pol. & Soc. Sci. 117, 128-129 
(1976). Studies of indeterminate-sentencing schemes 
found that similarly situated defendants often received 
widely disparate sentences. See, e.g., Shane-Dubow 7; 
Task Force Report 14. Although indeterminate sentencing 
was intended to soften the harsh and uniform sentences 
formerly imposed under mandatory-sentencing systems, 
some studies revealed that indeterminate sentencing 
actually had the opposite effect. See, e.g., A. Campbell, 
Law of Sentencing 13 (1978) (‘Paradoxically the hum ani­
tarian impulse sparking the adoption of indeterminate 
sentencing systems in this country has resulted in an 
actual increase of the average criminals incarceration 
term ); Task Force Report 13 (“[T]he data seem to indicate 
that in those jurisdictions where the sentencing structure 
is more indeterminate, judicially imposed sentences tend 
to be longer’).

In response, Congress and the state legislatures shifted 
to determinate-sentencing schemes that aimed to limit 
judges ’sentencing discretion and, thereby, afford similarly 
situated offenders equivalent treatment. See, e.g., Cal. 
Penal Code Ann. §1170 (West Supp. 2000). The most well 
known of these reforms was the federal Sentencing R e­
form Act of 1984, 18 U. S. C. §3551 e t seq . In the Act, 
Congress created the United States Sentencing Commis­
sion, which in turn promulgated the Sentencing Guide­
lines that now govern sentencing by federal judges. See, 
e.g., United States Sentencing Commission, Guidelines 
Manual (Nov. 1998). Whether one believes the determ i­
nate-sentencing reforms have proved successful or not- 
and the subject is one of extensive debate among 
commentators- the apparent effect of the Courts opinion



29Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

today is to halt the current debate on sentencing reform in 
its tracks and to invalidate with the stroke of a pen three 
decades ’ worth of nationwide reform, all in the name of a 
principle with a questionable constitutional pedigree. 
Indeed, it is ironic that the Court, in the name of constitu­
tional rights meant to protect criminal defendants from 
the potentially arbitrary exercise of power by prosecutors 
and judges, appears to rest its decision on a principle that 
would render unconstitutional efforts by Congress and the 
state legislatures to place constraints on that very power 
in the sentencing context.

Finally, perhaps the most significant impact of the 
Courts decision will be a practical one- its unsettling 
effect on sentencing conducted under current federal and 
state determinate-sentencing schemes. As I have ex ­
plained, the Court does not say whether these schemes are 
constitutional, but its reasoning strongly suggests that 
they are not. Thus, with respect to past sentences handed 
down by judges under determinate-sentencing schemes, 
the Court s decision threatens to unleash a flood of pet i- 
tions by convicted defendants seeking to invalidate their 
sentences in whole or in part on the authority of the 
Court s decision today. Statistics compiled by the United 
States Sentencing Commission reveal that almost a half­
million cases have been sentenced under the Sentencing 
Guidelines since 1989. See Memorandum from U. S. 
Sentencing Commission to Supreme Court Library, dated 
June 8, 2000 (total number of cases sentenced under 
federal Sentencing Guidelines since 1989) (available in 
Clerk of Courts case file). Federal cases constitute only 
the tip of the iceberg. In 1998, for example, federal crim i- 
nal prosecutions represented only about 0.4% of the total 
number of criminal prosecutions in federal and state 
courts. See National Center for State Courts, A National 
Perspective. Court Statistics Project (federal and state 
court filings, 1998), http://www.ncsc.dni.us/divisions/

http://www.ncsc.dni.us/divisions/


30 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

research/csp/csp98-fscf.html (showing that, in 1998, 57,691 
criminal cases were filed in federal court compared to 
14,623,330 in state courts). Because many States, like 
New Jersey, have determinate-sentencing schemes, the 
number of individual sentences drawn into question by the 
Court s decision could be colossal.

The decision will likely have an even more damaging 
effect on sentencing conducted in the immediate future 
under current determinate-sentencing schemes. Because 
the Court fails to clarify the precise contours of the consti­
tutional principle underlying its decision, federal and state 
judges are left in a state of limbo. Should they continue to 
assume the constitutionality of the determinate- 
sentencing schemes under which they have operated for so 
long, and proceed to sentence convicted defendants in 
accord with those governing statutes and guidelines? The 
Court provides no answer, yet its reasoning suggests that 
each new sentence will rest on shaky ground. The most 
unfortunate aspect of todays decision is that our prece­
dents did not foreordain this disruption in the world of 
sentencing. Rather, our cases traditionally took a cautious 
approach to questions like the one presented in this case. 
The Court throws that caution to the wind and, in the 
process, threatens to cast sentencing in the United States 
into what will likely prove to be a lengthy period of consi d- 
erable confusion.

Ill
Because I do not believe that the Courts “increase in the 

maximum penalty” rule is required by the Constitution, I 
would evaluate New Jerseys sentence-enhancement s ta t­
ute, N. J. Stat. Ann. §2C:44-3 (West Supp. 2000), by an a­
lyzing the factors we have examined in past cases. See, 
e -E- A1 m e n d a re z-T o r  re s , 523 U. S„ at 242-243; McMillan, 
477 U. S., at 86-90. First, the New Jersey statute does 
not shift the burden of proof on an essential ingredient of



31Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

the offense by presuming that ingredient upon proof of 
other elements of the offense. See, e.g., id., at 86-87; 
Patterson, 432 U. S., at 215. Second, the magnitude of the 
New Jersey sentence enhancement, as applied in p eti­
tioners case, is constitutionally permissible. Under New 
Jersey law, the weapons possession offense to which pet i- 
tioner pleaded guilty carries a sentence range of 5 to 10 
years’ imprisonment. N. J. Stat. Ann. §§2C:39-4(a), 
2C:43-6(a)(2) (West 1995). The fact that petitioner, in 
committing that offense, acted with a purpose to intim i­
date because of race exposed him to a higher sentence 
range of 10 to 20 years ’ imprisonment. §2C:43-7(a)(3). 
The 10-year increase in the maximum penalty to which 
petitioner was exposed falls well within the range we have 
found permissible. See Almendarez-Torres, supra, at 226, 
242-243 (approving 18-year enhancement). Third, the 
New Jersey statute gives no impression of having been 
enacted to evade the constitutional requirements that 
attach when a State makes a fact an element of the 
charged offense. For example, New Jersey did not take 
what had previously been an element of the weapons 
possession offense and transform it into a sentencing 
factor. See McMillan, 477 U. S„ at 89.

In sum, New Jersey “simply took one factor that has 
always been considered by sentencing courts to bear on 
punishment”-  a defendants motive for committing the 
criminal offense— “and dictated the precise weight to be 
given that factor” when the motive is to intimidate a per­
son because of race. Id., at 89-90. The Court claims that 
a purpose to intimidate on account of race is a traditional 
mens rea  element, and not a motive. See ante, at 26-27. 
To make this claim, the Court finds it necessary once 
again to ignore our settled precedent. In Wisconsin v. 
Mitchell, 508 U. S. 476 (1993), we considered a statute 
similar to the one at issue here. The Wisconsin statute 
provided for an increase in a convicted defendant s pu n-



32 APPRENDI v. NEW JERSEY

O Connor, J., dissenting

ishment if the defendant intentionally selected the victim 
of the crime because of that victim k race. Id., at 480. In a 
unanimous decision upholding the statute, we specifically 
characterized it as providing a sentence enhancement 
based on the “motive" of the defendant. See id., at 485 
(distinguishing between punishment of defendants 
criminal conduct” and penalty enhancement “for conduct 

m otivated  by a discriminatory point of view ” (emphasis 
added)); id., at 484-485 (“[UJnder the Wisconsin statute 
the same criminal conduct may be more heavily punished 
if the victim is selected because of his race . . . than if no 
such motive obtained” (emphasis added)). That same 
characterization applies in the case of the New Jersey 
statute. As we also explained in Mitchell, the motive for 
committing an offense has traditionally been an important 
factor in determining a defendants sentence. Id., at 485. 
New Jersey, therefore, has done no more than what we 
held permissible in McMillan; it has taken a traditional 
sentencing factor and dictated the precise weight judges 
should attach to that factor when the specific motive is to 
intimidate on the basis of race.

The New Jersey statute resembles the Pennsylvania 
statute we upheld in McMillan in every respect but one. 
That difference— that the New Jersey statute increases 
the maximum punishment to which petitioner was e x ­
posed- does not persuade me that New Jersey “sought to 
evade the constitutional requirements associated with the 
characterization of a fact as an offense elem ent.” Supra, 
at 2. There is no question that New Jersey could prescribe 
a range of 5 to 20 years’imprisonment as punishment for 
its weapons possession offense. Thus, as explained above, 
the specific means by which the State chooses to control 
ju d ges' discretion within that permissible range is of no 
moment. Cf. Patterson, supra, at 207-208 (‘The Due 
Process Clause, as we see it, does not put New York to the 
choice of abandoning [the affirmative defense] or unde r-



33Cite as: 530 U. S .___ (2000)

O Connor, J., dissenting

taking to disprove [its] existence in order to convict of a 
crime which otherwise is within its constitutional powers 
to sanction by substantial punishment’). The New Jersey 
statute also resembles in virtually every respect the fe d- 
eral statute we considered in A lm en d a re z-T o rre s . That 
the New Jersey statute provides an enhancement based on 
the defendants motive while the statute in A lm e n d a re z -  
T orres  provided an enhancement based on the defendants 
commission of a prior felony is a difference without const i- 
tutional importance. Both factors are traditional bases for 
increasing an offender s sentence and, therefore, may 
serve as the grounds for a sentence enhancement.

On the basis of our prior precedent, then, I woul d hold 
that the New Jersey sentence-enhancement statute is 
constitutional, and affirm the judgment of the Supreme 
Court of New Jersey.



Cite as: 530 U. S . (2000) i

Breyer, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 99-478

CHARLES C. APPRENDI, JR., PETITIONER v.
NEW JERSEY

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
NEW JERSEY

[June 26, 2000]

J u s t ic e  B r e y e r , with whom Ch ie f  J u s t ic e  R e h n q u is t  
joins, dissenting.

The majority holds that the Constitution contains the 
following requirement: "any fact [other than recidivism] 
that increases the penalty for a crime beyond the pre­
scribed statutory maximum must be submitted to a jury, 
and proved beyond a reasonable doubt. ” A n te , at 24. This 
rule would seem to promote a procedural ideal- that of 
juries, not judges, determining the existence of those facts 
upon which increased punishment turns. But the real 
world of criminal justice cannot hope to meet any such 
ideal. It can function only with the help of procedural 
compromises, particularly in respect to sentencing. And 
those compromises, which are themselves necessary for 
the fair functioning of the criminal justice system, pre­
clude implementation of the procedural model that today is 
decision reflects. At the very least, the impractical nature 
of the requirement that the majority now recognizes su p ­
ports the proposition that the Constitution was not in ­
tended to embody it.

I
In modern times the law has left it to the sentencing 

judge to find those facts which (within broad sentencing 
limits set by the legislature) determine the sentence of a



2 APPRENDI v. NEW JERSEY

Breyer, J., dissenting

convicted offender. The judges factfinding role is not 
inevitable. One could imagine, for example, a pure 
“charge offense ” sentencing system in which the degree of 
punishment depended only upon the crime charged ( e .g ., 
eight mandatory years for robbery, six for arson, three for 
assault). But such a system would ignore many harms 
and risks of harm that the offender caused or created, and 
it would ignore many relevant offender characteristics. 
See United States Sentencing Commission, Sentencing 
Guidelines and Policy Statements, Part A, at 1.5 (1987) 
(hereinafter Sentencing Guidelines or Guidelines) (poin t- 
ing out that a “charge offense ” system by definition would 
ignore any fact “that did not constitute [a] statutory ele- 
men[t] of the offens[e] of which the defendant was con­
victed’). Hence, that imaginary “charge offense" system  
would not be a fair system, for it would lack proportiona 1- 
ity, be., it would treat different offenders similarly despite 
major differences in the manner in which each committed 
the same crime.

There are many such manner-related differences in 
respect to criminal behavior. Empirical data collected by 
the Sentencing Commission makes clear that, before the 
Guidelines, judges who exercised discretion within broad 
legislatively determined sentencing limits (say, a range of 
0 to 20 years) would impose very different sentences upon 
offenders engaged in the same basic criminal conduct, 
depending, for example, upon the amount of drugs distri b- 
uted (in respect to drug crimes), the amount of money 
taken (in respect to robbery, theft, or fraud), the presence 
or use of a weapon, injury to a victim, the vulnerability of 
a victim, the offenders role in the offense, recidivism, and 
many other offense-related or offender-related factors. See 
United States Sentencing Commission, Supplementary 
Report on the Initial Sentencing Guidelines and Policy 
Statements 35—39 (1987) (table listing data representing 
more than 20 such factors) (hereinafter Supplementary



3Cite as: 530 U. S .___ (2000)

Breyer, J., dissenting

Report); see generally Department of Justice, W. Rhodes & 
C. Conly, Analysis of Federal Sentencing (May 1981). The 
majority does not deny that judges have exercised, and, 
constitutionally speaking, m a y  exercise sentencing discre­
tion in this way.

Nonetheless, it is important for present purposes to 
understand why ju d g e s ,  rather than ju r ie s ,  traditionally 
have determined the presence or absence of such sentence- 
affecting facts in any given case. And it is important to 
realize that the reason is not a theoretical one, but a pra c- 
tical one. It does not reflect (JUSTICE SCALIAs opinion to 
the contrary notwithstanding) an ideal of procedural 
‘fairness,” an te , at 1 (concurring opinion), but rather an 

administrative need for procedural co m p ro m ise . There 
are, to put it simply, far too many potentially relevant 
sentencing factors to permit submission of all (or even 
many) of them to a jury. As the Sentencing Guidelines 
state the matter,

“[a] bank robber with (or without) a gun, which the 
robber kept hidden (or brandished), might have 
frightened (or merely warned), injured seriously (or 
less seriously), tied up (or simply pushed) a guard, a 
teller or a customer, at night (or at noon), for a bad (or 
arguably less bad) motive, in an effort to obtain money 
for other crimes (or for other purposes), in the com­
pany of a few (or many) other robbers, for the first (or 
fourth) time that day, while sober (or under the infl u- 
ence of drugs or alcohol), and so forth.” Sentencing 
Guidelines, Part A, at 1.2.

The Guidelines note that “a sentencing system tailored to 
fit every conceivable wrinkle of each case can become 
unworkable and seriously compromise the certainty of 
punishment and its deterrent effect.” Ib id . To ask a jury 
to consider all. or many, such matters would do the same.

At the same time, to require jury consideration of all



4 APPRENDI v. NEW JERSEY

Breyer, J., dissenting

such factors- say, during trial where the issue is guilt or 
innocence- could easily place the defendant in the aw k- 
ward (and conceivably unfair) position of having to deny 
he committed the crime yet offer proof about how he co m- 
mitted it, e.g., 1  did not sell drugs, but I sold no more than 
500 grams.” And while special postverdict sentencing 
juries could cure this problem, they have seemed (but for 
capital cases) not worth their administrative costs. Hence, 
before the Guidelines, federal sentencing judges typically 
would obtain relevant factual sentencing information from 
probation officers ’ presentence reports, while permitting a 
convicted offender to challenge the information s accuracy 
at a hearing before the judge without benefit of trial-type 
evidentiary rules. See W illia m s  v. N e w  York, 337 U. S. 241, 
249-251 (1949) (describing the modern “practice of indi­
vidualizing punishments’’under which judges often consider 
otherwise inadmissible information gleaned from probation 
reports), see also Kadish, Legal Norm And Discretion In 
The Police And Sentencing Processes, 75 Harv L Rev 
904, 915-917 (1962).

It is also important to understand how a judge tradi­
tionally determined which factors should be taken into 
account for sentencing purposes. In principle, the number 
of potentially relevant behavioral characteristics is en d ­
less. A judge might ask, for example, whether an unla w- 
fully possessed knife was “a switchblade, drawn or con­
cealed, opened or closed, large or small, used in connection 
with a car theft (where victim confrontation is rare), a 
burglary (where confrontation is unintended) or a robbery 
(where confrontation is intentional).” United States S en ­
tencing Commission, Preliminary Observations of the 
Commission on Commissioner Robinsons Dissent 3, n. 3 
(May 1, 1987). Again, the method reflects practical, rather 
than theoretical, considerations. Prior to the Sentencing 
Guidelines, federal law left the individual sentencing 
judge free to determine which factors were relevant. That



5Cite as: 530 U. S .___ (2000)

Breyer, J., dissenting

freedom meant that each judge, in an effort to tailor pu n- 
ishment to the individual offense and offender, was guided 
primarily by experience, relevance, and a sense of propo r- 
tional fairness. Cf. Supplementary Report, at 16-17 (not­
ing that the goal of the Sentencing Guidelines was to 
create greater sentencing uniformity among judges, but in 
doing so the Guidelines themselves had to rely primarily 
upon empirical studies that showed which factors had 
proved important to federal judges in the past).

Finally, it is important to understand how a legislature 
decides which factual circumstances among all those 
potentially related to generally harmful behavior it should 
transform into elements of a statutorily defined crime 
(where they would become relevant to the guilt or inno­
cence of an accused), and which factual circumstances it 
should leave to the sentencing process (where, as s e n ­
tencing factors, they would help to determine the sentence 
imposed upon one who has been found guilty). Again, 
theory does not provide an answer. Legislatures, in d e ­
fining crimes in terms of elements, have looked for gui d- 
ance to common-law tradition, to history, and to current 
social need. And, traditionally, the Court has left legisl a- 
tures considerable freedom to make the element determ i­
nation. See A lm en d a rez-T o rres  v. U n ited  S ta tes , 523 U. S. 
224, 228 (1998); M cM illa n  v. P en n sy lva n ia , 477 U S 79 85 
(1986).

By placing todays constitutional question in a broader 
context, this brief survey may help to clarify the nature of 
today s decision. It also may explain why, in respect to 
sentencing systems, proportionality, uniformity, and 
administrability are all aspects of that basic "fairness” 
that the Constitution demands. And it suggests my basic 
problem with the Court s rule: A sentencing system in 
which judges have discretion to find sentencing-related 
factors is a workable system and one that has long been 
thought consistent with the Constitution; why, then,



6 APPRENDI v. NEW JERSEY

Breyer, J., dissenting

would the Constitution treat sentencing s ta tu te s  any 
differently?

II
As JUSTICE Th o m a s  suggests, until fairly recent times 

many legislatures rarely focused upon sentencing factors. 
Rather, it appears they simply identified typical forms of 
antisocial conduct, defined basic “crimes, ” and attached a 
broad sentencing range to each definition- leaving judges 
free to decide how to sentence within those ranges in light 
of such factors as they found relevant. A n te , at 12-15, 21 
(concurring opinion). But the Constitution does not freeze 
19th-century sentencing practices into permanent law. 
And dissatisfaction with the traditional sentencing system  
(reflecting its tendency to treat similar cases differently) 
has led modern legislatures to write new laws that refer 
specifically to sentencing factors. See Supplementary 
Report, at 1 (explaining that “a growing recognition of the 
need to bring greater rationality and consistency to penal 
statutes and to sentences imposed under those statutes” 
led to reform efforts such as the Federal Sentencing 
Guidelines).

Legislatures have tended to address the problem of too 
much judicial sentencing discretion in two ways. First, 
legislatures sometimes have created sentencing commis­
sions armed with delegated authority to make more u n i­
form judicial exercise of that discretion. Congress, for 
example, has created a federal Sentencing Commission, 
giving it the power to create Guidelines that (within the 
sentencing range set by individual statutes) reflect the 
host of factors that might be used to determine the actual 
sentence imposed for each individual crime. See 28 
U. S. C. §994(a); see also United States Sentencing Com­
mission, Guidelines Manual (Nov. 1999). Federal judges 
must apply those Guidelines in typical cases (those that lie 
in the 'heartland” of the crime as the statute defines it)



Cite as: 530 U. S .___ (2000) 7

Breyer, J., dissenting

while retaining freedom to depart in atypical cases. Id ., 
ch. 1, pt. A, 4(b).

Second, legislatures sometimes have directly limited the 
use (by judges or by a commission) of particular factors in 
sentencing, either by specifying statutorily how a par­
ticular factor will affect the sentence imposed or by spec i- 
fying how a commission should use a particular factor 
when writing a guideline. Such a statute might state 
explicitly, for example, that a particular factor, say, use of 
a weapon, recidivism, injury to a victim, or bad motive, 
shall” increase, or “may” increase, a particular sentence 

in a particular way. See, e.g., M cM illa n , su p ra , at 83 
(Pennsylvania statute expressly treated ‘Visible possession 
of a firearm ” as a sentencing consideration that subjected 
a defendant to a mandatory 5-year term of imprisonment).

The issue the Court decides today involves this second 
kind of legislation. The Court holds that a legislature 
cannot enact such legislation (where an increase in the 
maximum is involved) unless the factor at issue has been 
charged, tried to a jury, and found to exist beyond a rea ­
sonable doubt. My question in respect to this holding 
is, simply, "w hy  would the Constitution contain such a 
requirement’?

Ill
In light of the sentencing background described in Parts 

I and II, I do not see how the majority can find in the 
Constitution a requirement that “any fact” (other than 
recidivism) that increases the maximum penalty for a 
crime “must be submitted to a jury. ” A n te , at 24. As 
JUSTICE O C o n n o r  demonstrates, this Court has previ­
ously failed to view the Constitution as embodying any 
such principle, while sometimes finding to the contrary. 
See A lm en d a rez-T o rre s , su p ra , at 239-247; M cM illa n , 
su p ra , at 84-91. The majority raises no objection to tradi­
tional pre-Guidelines sentencing procedures under which



8 APPRENDI v. NEW JERSEY

Breyer, J.t dissenting

judges, not juries, made the factual findings that would 
lead to an increase in an individual offenders sentence. 
How does a legislative determination differ in any signif i- 
cant way? For example, if a judge may on his or her own 
decide that victim injury or bad motive should increase a 
bank robbers sentence from 5 years to 10, why does it 
matter that a legislature instead enacts a statute that 
increases a bank robbers sentence from 5 years to 10 
based on this same judicial finding?

With the possible exception of the last line of JUSTICE 
SCALIAs concurring opinion, the majority also makes no 
constitutional objection to a legislative delegation to a 
commission of the authority to create guidelines that 
determine how a judge is to exercise sentencing discretion. 
See also an te , at 27, n. 11 (THOMAS, J., concurring) (re­
serving the question). But if the Constitution permits 
Guidelines, why does it not permit Congress similarly to 
guide the exercise of a judges sentencing discretion? That 
is, if the Constitution permits a delegatee (the commis­
sion) to exercise sentencing-related rulemaking power, 
how can it deny the delegator (the legislature) what is, in 
effect, the same rulemaking power?

The majority appears to offer two responses. First, it 
argues for a limiting principle that would prevent a legi s- 
lature with broad authority from transforming (jury- 
determined) facts that constitute elements of a crime into 
(judge-determined) sentencing factors, thereby removing 
procedural protections that the Constitution would other­
wise require. See an te , at 19 (“constitutional limits" pre­
vent states from “defin[ing] away facts necessary to consti­
tute a criminal offense’). The majority s cure, however, is 
not aimed at the disease.

The same “transformational" problem exists under 
traditional sentencing law, where legislation, silent as to 
sentencing factors, grants the judge virtually unchecked 
discretion to sentence within a broad range. Under such a



9Cite as: 530 U. S .___ (2000)

Breyer, J., dissenting

system, judges or prosecutors can similarly “transform" 
crimes, punishing an offender convicted of one crime as if 
he had committed another. A prosecutor, for example, 
might charge an offender with five counts of em bezzle­
ment (each subject to a 10-year maximum penalty), while 
asking the judge to impose maximum and consecutive 
sentences because the embezzler murdered his employer. 
And, as part of the traditional sentencing discretion that 
the majority concedes judges retain, the judge, not a jury, 
would determine the last-mentioned relevant fact, i.e., 
that the murder actually occurred.

This egregious example shows the problem s complexity. 
The source of the problem lies not in a legislature s power 
to enact sentencing factors, but in the traditional legisl a- 
tive power to select elements defining a crime, the tradi­
tional legislative power to set broad sentencing ranges, 
and the traditional judicial power to choose a sentence 
within that range on the basis of relevant offender con­
duct. Conversely, the solution to the problem lies, not in 
prohibiting legislatures from enacting sentencing factors, 
but in sentencing rules that determine punishments on 
the basis of properly defined relevant conduct, with sens i- 
tivity to the need for procedural protections where sen ­
tencing factors are determined by a judge (for example, 
use of a "reasonable doubt” standard), and invocation of 
the Due Process Clause where the history of the crime at 
issue, together with the nature of the facts to be proved, 
reveals unusual and serious procedural unfairness. Cf. 
M cM illa n , 477 U. S., at 88 (upholding statute in part 
because it "gives no impression of having been tailored to 
permit the [sentencing factor] to be a tail which wags the 
dog of the substantive offense’).

Second, the majority, in support of its constitutional 
rule, emphasizes the concept of a statutory “maximum." 
The Court points out that a sentencing judge (or a com ­
mission) traditionally has determined, and now still d e-



10 APPRENDI v. NEW JERSEY

Breyer, J., dissenting

termines, sentences w ith in  a legislated range capped by a 
maximum (a range that the legislature itself sets). See 
ante, at 14—15. I concede the truth of the majority s 
statement, but I do not understand its relevance.

From a defendants perspective, the legislatures deci­
sion to cap the possible range of punishment at a statut o- 
rily prescribed “maximum” would affect the actual sen ­
tence imposed no differently than a sentencing 
commissions (or a sentencing judge s) similar determina­
tion. Indeed, as a practical matter, a legislated mandatory 
“minimum" is far more important to an actual defendant. 
A judge and a commission, after all, are legally free to 
select any sentence below a statute s maximum, but they 
are not free to subvert a statutory minimum. And, as 
JUSTICE T hom as  indicates, all the considerations of fair­
ness that might support submission to a jury of a factual 
matter that increases a statutory maximum, apply a 
fo r tio r i  to any matter that would increase a statutory 
minimum. See an te , at 25-26 (concurring opinion). To 
repeat, I do not understand why, when a legislature 
a u th o r ize s  a judge to impose a higher penalty for bank 
robbery (based, say, on the courts finding that a victim 
was injured or the defendants motive was bad), a new 
crime is born; but where a legislature re q u ire s  a judge to 
impose a higher penalty than he otherwise would (within 
a pre-existing statutory range) based on similar criteria, it 
is not. Cf. A lm en d a re z-T o rre s , 523 U. S., at 246.

IV
I certain ly do not believe th at the present sen tencing  

system  is one of “perfect eq u ity ,” an te , at 2 (SCALIA, J., 
concurring), and I am  w illing, consequently, to assu m e  
th at the m ajority s  rule would provide a degree of i n ­
creased procedural protection in respect to those p articu ­
lar sen tencing  factors currently em bodied in sta tu tes . I 
n oneth eless believe th at any such increased protection



11Cite as: 530 U. S .___ (2000)

Breyer, J., dissenting

provides little practical help and comes at too high a price. 
For one thing, by leaving mandatory minimum sentences 
untouched, the majority s rule simply encourages any 
legislature interested in asserting control over the se n ­
tencing process to do so by creating those minimums. 
That result would mean significantly less procedural 
fairness, not more.

For another thing, this Court s case law, prior to J o n e s  
v. U n ite d  S ta te s , 526 U. S. 227, 243, n. 6 (1999), led legi s- 
latures to believe that they were permitted to increase a 
statutory maximum sentence on the basis of a sentencing 
factor. See an te , at 7-17 (O CONNOR, J ., dissenting); see 
also, e.g., M cM illa n , su p ra , at 84-91 (indicating that a 
legislature could impose mandatory sentences on the basis 
of sentencing factors, thereby suggesting it could impose 
more flexible statutory maximums on same basis). And 
legislatures may well have relied upon that belief. See, 
e.g., 21 U. S. C. §841(b) (1994 ed. and Supp. Ill) (providing 
penalties for, among other things, possessing a “controlled 
substance with intent to distribute it, which sentences 
vary dramatically depending upon the amount of the drug 
possessed, without requiring jury determination of the 
amount); N. J. Stat. Ann. §§2C:43-6, 2C:43-7, 2C :44-la-f, 
2C:44-3 (West 1995 and Supp. 1999-2000) (setting s e n ­
tencing ranges for crimes, while providing for lesser or 
greater punishments depending upon judicial findings 
regarding certain “aggravating” or “mitigating” factors); 
Cal. Penal Code Ann. §1170 (West Supp. 2000) (similar); 
see also Cal. Court Rule 420(b) (1996) (providing that 
“[cjircumstances in aggravation and mitigation” are to be 
established by the sentencing judge based on "the case 
record, the probation officer s report, [and] other reports 
and statements properly received’).

As J u st ic e  O Co n n o r  points out, the m ajority s  rule 
creates serious uncertainty about the constitu tionality  of 
such sta tu tes  and about the constitu tionality  of th e con-



12 APPRENDI v. NEW JERSEY

Breyer, J., dissenting

finement of those punished under them. See ante, at 27- 
30 (dissenting opinion). The few amicus briefs that the 
Court received in this case do not discuss the impact of the 
Courts new rule on, for example, drug crime statutes or 
state criminal justice systems. This fact, I concede, may 
suggest that my concerns about disruption are overstated; 
yet it may also suggest that (despite Jones and given 
Almendarez-Torres) so absolute a constitutional prohibi­
tion is unexpected. Moreover, the rationale that underlies 
the Court s rule suggests a principle- jury determination 
of all sentencing-related facts- that, unless restricted, 
threatens the workability of every criminal justice sys­
tem (if applied to judges) or threatens efforts to make 
those systems more uniform, hence more fair (if applied to 
commissions).

Finally, the Court k new rule will likely impede legisl a- 
tive attempts to provide authoritative guidance as to how 
courts should respond to the presence of traditional s e n ­
tencing factors. The factor at issue here— motive— is such 
a factor. Whether a robber takes money to finance other 
crimes or to feed a starving family can matter, and long 
has mattered, when the length of a sentence is at issue. 
The State of New Jersey has determined that one m o­
tive- racial hatred- is particularly bad and ought to make 
a difference in respect to punishment for a crime. That 
determination is reasonable. The procedures mandated 
are consistent with traditional sentencing practice. 
Though additional procedural protections might well be 
desirable, for the reasons JUSTICE O CONNOR discusses 
and those I have discussed, I do not believe the Constitu­
tion requires them where ordinary sentencing factors are 
at issue. Consequently, in my view, New Jerseys statute 
is constitutional.

I respectfully dissent.