RING v. ARIZONA

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584 OCTOBER TERM, 2001
Syllabus
RING v. ARIZONA
certiorari to the supreme court of arizona
No. 01–488. Argued April 22, 2002—Decided June 24, 2002
At petitioner Ring’s Arizona trial for murder and related offenses, the
jury deadlocked on premeditated murder, but found Ring guilty of fel-
ony murder occurring in the course of armed robbery. Under Arizona
law, Ring could not be sentenced to death, the statutory maximum pen-
alty for first-degree murder, unless further findings were made by a
judge conducting a separate sentencing hearing. The judge at that
stage must determine the existence or nonexistence of statutorily enu-
merated “aggravating circumstances” and any “mitigating circum-
stances.” The death sentence may be imposed only if the judge finds
at least one aggravating circumstance and no mitigating circumstances
sufficiently substantial to call for leniency. Following such a hearing,
Ring’s trial judge sentenced him to death. Because the jury had con-
victed Ring of felony murder, not premeditated murder, Ring would be
eligible for the death penalty only if he was, inter alia, the victim’s
actual killer. See Enmund v. Florida, 458 U. S. 782. Citing accom-
plice testimony at the sentencing hearing, the judge found that Ring
was the killer. The judge then found two aggravating factors, one of
them, that the offense was committed for pecuniary gain, as well as one
mitigating factor, Ring’s minimal criminal record, and ruled that the
latter did not call for leniency.
On appeal, Ring argued that Arizona’s capital sentencing scheme vio-
lates the Sixth Amendment’s jury trial guarantee by entrusting to a
judge the finding of a fact raising the defendant’s maximum penalty.
See Jones v. United States, 526 U. S. 227; Apprendi v. New Jersey, 530
U. S. 466. The State responded that this Court had upheld Arizona’s
system in Walton v. Arizona, 497 U. S. 639, 649, and had stated in Ap-
prendi that Walton remained good law. The Arizona Supreme Court
observed that Apprendi and Jones cast doubt on Walton’s continued
viability and found that the Apprendi majority’s interpretation of Ari-
zona law, 530 U. S., at 496–497, was wanting. Justice O’Connor’s Ap-
prendi dissent, id., at 538, the Arizona court noted, correctly described
how capital sentencing works in that State: A defendant cannot receive
a death sentence unless the judge makes the factual determination that
a statutory aggravating factor exists. Nevertheless, recognizing that
it was bound by the Supremacy Clause to apply Walton, a decision this
Court had not overruled, the Arizona court rejected Ring’s constitu-

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tional attack. It then upheld the trial court’s finding on the pecuniary
gain aggravating factor, reweighed that factor against Ring’s lack of a
serious criminal record, and affirmed the death sentence.
Held: Walton and Apprendi are irreconcilable; this Court’s Sixth Amend-
ment jurisprudence cannot be home to both. Accordingly, Walton is
overruled to the extent that it allows a sentencing judge, sitting without
a jury, to find an aggravating circumstance necessary for imposition of
the death penalty. See 497 U. S., at 647–649. Because Arizona’s enu-
merated aggravating factors operate as “the functional equivalent of an
element of a greater offense,” Apprendi, 530 U. S., at 494, n. 19, the
Sixth Amendment requires that they be found by a jury. Pp. 597–609.
(a) In upholding Arizona’s capital sentencing scheme against a charge
that it violated the Sixth Amendment, the Walton Court ruled that
aggravating factors were not “elements of the offense”; they were “sen-
tencing considerations” guiding the choice between life and death. 497
U. S., at 648. Walton drew support from Cabana v. Bullock, 474 U. S.
376, in which the Court held there was no constitutional bar to an appel-
late court’s finding that a defendant killed, attempted to kill, or intended
to kill, as Enmund, supra, required for imposition of the death penalty
in felony-murder cases. If the Constitution does not require that the
Enmund finding be proved as an element of the capital murder offense
or that a jury make that finding, Walton stated, it could not be con-
cluded that a State must denominate aggravating circumstances “ele-
ments” of the offense or commit to a jury only, and not to a judge,
determination of the existence of such circumstances. 497 U. S., at 649.
Subsequently, the Court suggested in Jones that any fact (other than
prior conviction) that increases the maximum penalty for a crime must
be submitted to a jury, 526 U. S., at 243, n. 6, and distinguished Walton
as having characterized the finding of aggravating facts in the context
of capital sentencing as a choice between a greater and a lesser penalty,
not as a process of raising the sentencing range’s ceiling, 526 U. S., at
251. Pp. 597–601.
(b) In Apprendi, the sentencing judge’s finding that racial animus mo-
tivated the petitioner’s weapons offense triggered application of a state
“hate crime enhancement” that doubled the maximum authorized sen-
tence. This Court held that the sentence enhancement violated Ap-
prendi’s right to a jury determination whether he was guilty of every
element of the crime with which he was charged, beyond a reasonable
doubt. 530 U. S., at 477. That right attached not only to Apprendi’s
weapons offense but also to the “hate crime” aggravating circumstance.
Id., at 476. The dispositive question, the Court said, is one not of form,
but of effect. Id., at 494. If a State makes an increase in a defendant’s

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586 RING v. ARIZONA
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authorized punishment contingent on the finding of a fact, that fact—no
matter how the State labels it—must be found by a jury beyond a rea-
sonable doubt. See id., at 482–483. A defendant may not be exposed
to a penalty exceeding the maximum he would receive if punished ac-
cording to the facts reflected in the jury verdict alone. Id., at 483.
Walton could be reconciled with Apprendi, the Court asserted: The key
distinction was that an Arizona first-degree murder conviction carried
a maximum sentence of death; once a jury has found the defendant
guilty of all the elements of an offense which carries death as its maxi-
mum penalty, it may be left to the judge to decide whether that maxi-
mum penalty, rather than a lesser one, ought to be imposed. 530 U. S.,
at 497. In dissent in Apprendi, Justice O’Connor described as “de-
monstrably untrue” the majority’s assertion that the jury makes all the
findings necessary to expose the defendant to a death sentence. Such
a defendant, she emphasized, cannot receive a death sentence unless a
judge makes the critical factual determination that a statutory aggra-
vating factor exists. Id., at 538. Walton, Justice O’Connor’s dissent
insisted, if followed, would have required the Court to uphold Ap-
prendi’s sentence. 530 U. S., at 537. Pp. 601–603.
(c) Given the Arizona Supreme Court’s finding that the Apprendi dis-
sent’s portrayal of Arizona’s capital sentencing law was precisely right,
and recognizing that the Arizona court’s construction of the State’s own
law is authoritative, see Mullaney v. Wilbur, 421 U. S. 684, 691, this
Court is persuaded that Walton, in relevant part, cannot survive Ap-
prendi’s reasoning. In an effort to reconcile its capital sentencing sys-
tem with the Sixth Amendment as interpreted by Apprendi, Arizona
first restates the Apprendi majority’s ruling that, because Arizona law
specifies death or life imprisonment as the only sentencing options for
the first-degree murder of which Ring was convicted, he was sentenced
within the range of punishment authorized by the jury verdict. This
argument overlooks Apprendi’s instruction that the relevant inquiry is
one of effect, not form. 530 U. S., at 494. In effect, the required find-
ing of an aggravated circumstance exposed Ring to a greater punish-
ment than that authorized by the guilty verdict. Ibid. The Arizona
first-degree murder statute authorizes a maximum penalty of death only
in a formal sense, id., at 541 (O’Connor, J., dissenting), for it explicitly
cross-references the statutory provision requiring the finding of an ag-
gravating circumstance before imposition of the death penalty. If Ari-
zona prevailed on its opening argument, Apprendi would be reduced to
a “meaningless and formalistic” rule of statutory drafting. See ibid.
Arizona’s argument based on the Walton distinction between an of-
fense’s elements and sentencing factors is rendered untenable by Ap-

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prendi’s repeated instruction that the characterization of a fact or cir-
cumstance as an element or a sentencing factor is not determinative of
the question “who decides,” judge or jury. See, e. g., 530 U. S., at 492.
Arizona further urges that aggravating circumstances necessary to trig-
ger a death sentence may nonetheless be reserved for judicial determi-
nation because death is different: States have constructed elaborate sen-
tencing procedures in death cases because of constraints this Court has
said the Eighth Amendment places on capital sentencing, see, e. g., id.,
at 522–523 (Thomas, J., concurring). Apart from the Eighth Amend-
ment provenance of aggravating factors, however, Arizona presents no
specific reason for excepting capital defendants from the constitutional
protections extended to defendants generally, and none is readily appar-
ent. Id., at 539 (O’Connor, J., dissenting). In various settings, the
Court has interpreted the Constitution to require the addition of an
element or elements to the definition of a crime in order to narrow its
scope. See, e. g., United States v. Lopez, 514 U. S. 549, 561–562. If a
legislature responded to such a decision by adding the element the
Court held constitutionally required, surely the Sixth Amendment guar-
antee would apply to that element. There is no reason to differentiate
capital crimes from all others in this regard. Arizona’s suggestion that
judicial authority over the finding of aggravating factors may be a bet-
ter way to guarantee against the arbitrary imposition of the death pen-
alty is unpersuasive. The Sixth Amendment jury trial right does not
turn on the relative rationality, fairness, or efficiency of potential fact-
finders. Apprendi, 530 U. S., at 498 (Scalia, J., concurring). In any
event, the superiority of judicial factfinding in capital cases is far from
evident, given that the great majority of States responded to this
Court’s Eighth Amendment decisions requiring the presence of aggra-
vating circumstances in capital cases by entrusting those determina-
tions to the jury. Although stare decisis is of fundamental importance
to the rule of law, this Court has overruled prior decisions where, as
here, the necessity and propriety of doing so has been established. Pat-
terson v. McLean Credit Union, 491 U. S. 164, 172. Pp. 603–609.
200 Ariz. 267, 25 P. 3d 1139, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Stevens,
Scalia, Kennedy, Souter, and Thomas, JJ., joined. Scalia, J., filed a
concurring opinion, in which Thomas, J., joined, post, p. 610. Kennedy,
J., filed a concurring opinion, post, p. 613. Breyer, J., filed an opinion
concurring in the judgment, post, p. 613. O’Connor, J., filed a dissenting
opinion, in which Rehnquist, C. J., joined, post, p. 619.

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588 RING v. ARIZONA
Opinion of the Court
Andrew D. Hurwitz argued the cause for petitioner. With
him on the briefs were John A. Stookey and Daniel L.
Kaplan.
Janet Napolitano, Attorney General of Arizona, argued
the cause for respondent. With her on the brief were Pat-
rick Irvine, Solicitor General, Kent E. Cattani, and Robert
L. Ellman and Kathleen P. Sweeney, Assistant Attorneys
General.*
Justice Ginsburg delivered the opinion of the Court.
This case concerns the Sixth Amendment right to a jury
trial in capital prosecutions. In Arizona, following a jury
adjudication of a defendant’s guilt of first-degree murder, the
trial judge, sitting alone, determines the presence or absence
of the aggravating factors required by Arizona law for impo-
sition of the death penalty.
In Walton v. Arizona, 497 U. S. 639 (1990), this Court held
that Arizona’s sentencing scheme was compatible with the
Sixth Amendment because the additional facts found by the
judge qualified as sentencing considerations, not as “ele-
ment[s] of the offense of capital murder.” Id., at 649. Ten
years later, however, we decided Apprendi v. New Jersey,
530 U. S. 466 (2000), which held that the Sixth Amendment
does not permit a defendant to be “expose[d] . . . to a penalty
*Briefs of amici curiae urging affirmance were filed for the State of
Alabama et al. by Bill Pryor, Attorney General of Alabama, Nathan A.
Forrester, Solicitor General, and A. Vernon Barnett IV and Michael B.
Billingsley, Deputy Solicitors General, joined by the Attorneys General
for their respective States as follows: Ken Salazar of Colorado, M. Jane
Brady of Delaware, Robert A. Butterworth of Florida, Alan G. Lance of
Idaho, Steve Carter of Indiana, Mike Moore of Mississippi, Mike McGrath
of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada,
D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina,
Mark L. Shurtleff of Utah, and Jerry W. Kilgore of Virginia; for Arizona
Voice for Crime Victims, Inc., et al. by Steve Twist and Douglas E. Beloof;
and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

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exceeding the maximum he would receive if punished accord-
ing to the facts reflected in the jury verdict alone.” Id., at
483. This prescription governs, Apprendi determined, even
if the State characterizes the additional findings made by the
judge as “sentencing factor[s].” Id., at 492.
Apprendi’s reasoning is irreconcilable with Walton’s hold-
ing in this regard, and today we overrule Walton in relevant
part. Capital defendants, no less than noncapital defend-
ants, we conclude, are entitled to a jury determination of any
fact on which the legislature conditions an increase in their
maximum punishment.
I
At the trial of petitioner Timothy Ring for murder, armed
robbery, and related charges, the prosecutor presented evi-
dence sufficient to permit the jury to find the facts here re-
counted. On November 28, 1994, a Wells Fargo armored
van pulled up to the Dillard’s department store at Arrow-
head Mall in Glendale, Arizona. Tr. 57, 60–61 (Nov. 14,
1996). Courier Dave Moss left the van to pick up money
inside the store. Id., at 61, 73–74. When he returned, the
van, and its driver, John Magoch, were gone. Id., at 61–62.
Later that day, Maricopa County Sheriff ’s Deputies found
the van—its doors locked and its engine running—in the
parking lot of a church in Sun City, Arizona. Id., at 99–100
(Nov. 13, 1996). Inside the vehicle they found Magoch, dead
from a single gunshot to the head. Id., at 101. According
to Wells Fargo records, more than $562,000 in cash and
$271,000 in checks were missing from the van. Id., at 10
(Nov. 18, 1996).
Prompted by an informant’s tip, Glendale police sought to
determine whether Ring and his friend James Greenham
were involved in the robbery. The police investigation re-
vealed that the two had made several expensive cash pur-
chases in December 1994 and early 1995. E. g., id., at 153–
156 (Nov. 14, 1996); id., at 90–94 (Nov. 21, 1996). Wiretaps

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were then placed on the telephones of Ring, Greenham, and
a third suspect, William Ferguson. Id., at 19–21 (Nov. 18,
1996).
In one recorded phone conversation, Ring told Ferguson
that Ring might “cu[t] off ” Greenham because “[h]e’s too
much of a risk”: Greenham had indiscreetly flaunted a new
truck in front of his ex-wife. State’s Exh. 49A, pp. 11–12.
Ring said he could cut off his associate because he held “both
[Greenham’s] and mine.” Id., at 11. The police engineered
a local news broadcast about the robbery investigation; they
included in the account several intentional inaccuracies.
Tr. 3–5, 13–14 (Nov. 19, 1996). On hearing the broadcast
report, Ring left a message on Greenham’s answering ma-
chine to “remind me to talk to you tomorrow and tell you
about what was on the news tonight. Very important, and
also fairly good.” State’s Exh. 55A, p. 2.
After a detective left a note on Greenham’s door asking
him to call, Tr. 115–118 (Nov. 18, 1996), Ring told Ferguson
that he was puzzled by the attention the police trained on
Greenham. “[H]is house is clean,” Ring said; “[m]ine, on the
other hand, contains a very large bag.” State’s Exh. 70A,
p. 7.
On February 14, 1995, police furnished a staged reenact-
ment of the robbery to the local news, and again included
deliberate inaccuracies. Tr. 5 (Nov. 19, 1996). Ferguson
told Ring that he “laughed” when he saw the broadcast, and
Ring called it “humorous.” State’s Exh. 80A, p. 3. Fergu-
son said he was “not real worried at all now”; Ring, however,
said he was “slightly concern[ed]” about the possibility that
the police might eventually ask for hair samples. Id., at
3–4.
Two days later, the police executed a search warrant at
Ring’s house, discovering a duffel bag in his garage contain-
ing more than $271,000 in cash. Tr. 107–108, 111, 125 (Nov.
20, 1996). They also found a note with the number “575,
995” on it, followed by the word “splits” and the letters “F,”
“Y,” and “T.” Id., at 127–130. The prosecution asserted

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that “F” was Ferguson, “Y” was “Yoda” (Greenham’s nick-
name), and “T” was Timothy Ring. Id., at 42 (Dec. 5, 1996).
Testifying in his own defense, Ring said the money seized
at his house was startup capital for a construction company
he and Greenham were planning to form. Id., at 10–11 (Dec.
3, 1996). Ring testified that he made his share of the money
as a confidential informant for the Federal Bureau of Investi-
gation and as a bail bondsman and gunsmith. Id., at 162,
166–167, 180 (Dec. 2, 1996). But an FBI agent testified that
Ring had been paid only $458, id., at 47 (Nov. 20, 1996), and
other evidence showed that Ring had made no more than
$8,800 as a bail bondsman, id., at 48–51 (Nov. 21, 1996); id.,
at 21 (Nov. 25, 1996).
The trial judge instructed the jury on alternative charges
of premeditated murder and felony murder. The jury dead-
locked on premeditated murder, with 6 of 12 jurors voting to
acquit, but convicted Ring of felony murder occurring in the
course of armed robbery. See Ariz. Rev. Stat. Ann. §§ 13–
1105(A) and (B) (West 2001) (“A person commits first degree
murder if . . . [a]cting either alone or with one or more other
persons the person commits or attempts to commit . . . [one
of several enumerated felonies] . . . and in the course of and
in furtherance of the offense or immediate flight from the
offense, the person or another person causes the death of any
person. . . . Homicide, as prescribed in [this provision] re-
quires no specific mental state other than what is required
for the commission of any of the enumerated felonies.”).
As later summed up by the Arizona Supreme Court, “the
evidence admitted at trial failed to prove, beyond a reason-
able doubt, that [Ring] was a major participant in the armed
robbery or that he actually murdered Magoch.” 200 Ariz.
267, 280, 25 P. 3d 1139, 1152 (2001). Although clear evidence
connected Ring to the robbery’s proceeds, nothing submitted
at trial put him at the scene of the robbery. See ibid. Fur-
thermore, “[f]or all we know from the trial evidence,” the
Arizona court stated, “[Ring] did not participate in, plan, or
even expect the killing. This lack of evidence no doubt ex-

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plains why the jury found [Ring] guilty of felony, but not
premeditated, murder.” Ibid.
Under Arizona law, Ring could not be sentenced to death,
the statutory maximum penalty for first-degree murder, un-
less further findings were made. The State’s first-degree
murder statute prescribes that the offense “is punishable by
death or life imprisonment as provided by § 13–703.” Ariz.
Rev. Stat. Ann. § 13–1105(C) (West 2001). The cross-
referenced section, § 13–703, directs the judge who presided
at trial to “conduct a separate sentencing hearing to deter-
mine the existence or nonexistence of [certain enumerated]
circumstances . . . for the purpose of determining the sen-
tence to be imposed.” § 13–703(C) (West Supp. 2001). The
statute further instructs: “The hearing shall be conducted
before the court alone. The court alone shall make all fac-
tual determinations required by this section or the constitu-
tion of the United States or this state.” Ibid.
At the conclusion of the sentencing hearing, the judge is
to determine the presence or absence of the enumerated
“aggravating circumstances” 1 and any “mitigating circum-
1 The aggravating circumstances, enumerated in Ariz. Rev. Stat. Ann.
§ 13–703(G) (West Supp. 2001), are:
“1. The defendant has been convicted of another offense in the United
States for which under Arizona law a sentence of life imprisonment or
death was imposable.
“2. The defendant was previously convicted of a serious offense,
whether preparatory or completed.
“3. In the commission of the offense the defendant knowingly created a
grave risk of death to another person or persons in addition to the person
murdered during the commission of the offense.
“4. The defendant procured the commission of the offense by payment,
or promise of payment, of anything of pecuniary value.
“5. The defendant committed the offense as consideration for the re-
ceipt, or in expectation of the receipt, of anything of pecuniary value.
“6. The defendant committed the offense in an especially heinous, cruel
or depraved manner.
“7. The defendant committed the offense while in the custody of or on
authorized or unauthorized release from the state department of correc-
tions, a law enforcement agency or a county or city jail.

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stances.” 2 The State’s law authorizes the judge to sentence
the defendant to death only if there is at least one aggravat-
ing circumstance and “there are no mitigating circumstances
sufficiently substantial to call for leniency.” § 13–703(F).
Between Ring’s trial and sentencing hearing, Greenham
pleaded guilty to second-degree murder and armed robbery.
He stipulated to a 271 ⁄ 2-year sentence and agreed to cooper-
ate with the prosecution in the cases against Ring and Fer-
guson. Tr. 35–37 (Oct. 9, 1997).
Called by the prosecution at Ring’s sentencing hearing,
Greenham testified that he, Ring, and Ferguson had been
planning the robbery for several weeks before it occurred.
According to Greenham, Ring “had I guess taken the role as
leader because he laid out all the tactics.” Id., at 39. On
the day of the robbery, Greenham said, the three watched the
armored van pull up to the mall. Id., at 45. When Magoch
opened the door to smoke a cigarette, Ring shot him with a
rifle equipped with a homemade silencer. Id., at 42, 44–45.
Greenham then pushed Magoch’s body aside and drove the
van away. Id., at 45. At Ring’s direction, Greenham drove
to the church parking lot, where he and Ring transferred
the money to Ring’s truck. Id., at 46, 48. Later, Greenham
recalled, as the three robbers were dividing up the money,
“8. The defendant has been convicted of one or more other homicides,
as defined in § 13–1101, which were committed during the commission of
the offense.
“9. The defendant was an adult at the time the offense was committed
or was tried as an adult and the murdered person was under fifteen years
of age or was seventy years of age or older.
“10. The murdered person was an on duty peace officer who was killed
in the course of performing his official duties and the defendant knew, or
should have known, that the murdered person was a peace officer.”
2 The statute enumerates certain mitigating circumstances, but the
enumeration is not exclusive. “The court shall consider as mitigating cir-
cumstances any factors proffered by the defendant or the state which
are relevant in determining whether to impose a sentence less than
death . . . .” § 13–703(H).

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Ring upbraided him and Ferguson for “forgetting to congrat-
ulate [Ring] on [his] shot.” Id., at 60.
On cross-examination, Greenham acknowledged having
previously told Ring’s counsel that Ring had nothing to do
with the planning or execution of the robbery. Id., at 85–87.
Greenham explained that he had made that prior statement
only because Ring had threatened his life. Id., at 87.
Greenham also acknowledged that he was now testifying
against Ring as “pay back” for the threats and for Ring’s
interference in Greenham’s relationship with Greenham’s
ex-wife. Id., at 90–92.
On October 29, 1997, the trial judge entered his “Special
Verdict” sentencing Ring to death. Because Ring was con-
victed of felony murder, not premeditated murder, the judge
recognized that Ring was eligible for the death penalty only
if he was Magoch’s actual killer or if he was “a major partici-
pant in the armed robbery that led to the killing and exhib-
ited a reckless disregard or indifference for human life.”
App. to Pet. for Cert. 46a–47a; see Enmund v. Florida, 458
U. S. 782 (1982) (Eighth Amendment requires finding that
felony-murder defendant killed or attempted to kill); Tison
v. Arizona, 481 U. S. 137, 158 (1987) (qualifying Enmund,
and holding that Eighth Amendment permits execution of
felony-murder defendant, who did not kill or attempt to kill,
but who was a “major participa[nt] in the felony committed”
and who demonstrated “reckless indifference to human life”).
Citing Greenham’s testimony at the sentencing hearing,
the judge concluded that Ring “is the one who shot and killed
Mr. Magoch.” App. to Pet. for Cert. 47a. The judge also
found that Ring was a major participant in the robbery and
that armed robbery “is unquestionably a crime which carries
with it a grave risk of death.” Ibid.
The judge then turned to the determination of aggravating
and mitigating circumstances. See § 13–703. He found two
aggravating factors. First, the judge determined that Ring
committed the offense in expectation of receiving something

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of “pecuniary value,” as described in § 13–703; “[t]aking
the cash from the armored car was the motive and reason
for Mr. Magoch’s murder and not just the result.” App. to
Pet. for Cert. 49a. Second, the judge found that the offense
was committed “in an especially heinous, cruel or depraved
manner.” Ibid. In support of this finding, he cited Ring’s
comment, as reported by Greenham at the sentencing hear-
ing, expressing pride in his marksmanship. Id., at 49a–50a.
The judge found one nonstatutory mitigating factor: Ring’s
“minimal” criminal record. Id., at 52a. In his judgment,
that mitigating circumstance did not “call for leniency”; he
therefore sentenced Ring to death. Id., at 53a.
On appeal, Ring argued that Arizona’s capital sentencing
scheme violates the Sixth and Fourteenth Amendments to
the U. S. Constitution because it entrusts to a judge the find-
ing of a fact raising the defendant’s maximum penalty. See
Jones v. United States, 526 U. S. 227 (1999); Apprendi v. New
Jersey, 530 U. S. 466 (2000). The State, in response, noted
that this Court had upheld Arizona’s system in Walton v.
Arizona, 497 U. S. 639 (1990), and had stated in Apprendi
that Walton remained good law.
Reviewing the death sentence, the Arizona Supreme
Court made two preliminary observations. Apprendi and
Jones, the Arizona high court said, “raise some question
about the continued viability of Walton.” 200 Ariz., at 278,
25 P. 3d, at 1150. The court then examined the Apprendi
majority’s interpretation of Arizona law and found it want-
ing. Apprendi, the Arizona court noted, described Arizo-
na’s sentencing system as one that “ ‘requir[es] judges, after
a jury verdict holding a defendant guilty of a capital crime,
to find specific aggravating factors before imposing a sen-
tence of death,’ and not as a system that ‘permits a judge to
determine the existence of a factor which makes a crime a
capital offense.’ ” 200 Ariz., at 279, 25 P. 3d, at 1151 (quoting
Apprendi, 530 U. S., at 496–497). Justice O’Connor’s Ap-
prendi dissent, the Arizona court noted, squarely rejected

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the Apprendi majority’s characterization of the Arizona sen-
tencing scheme: “A defendant convicted of first-degree mur-
der in Arizona cannot receive a death sentence unless a
judge makes the factual determination that a statutory ag-
gravating factor exists. Without that critical finding, the
maximum sentence to which the defendant is exposed is life
imprisonment, and not the death penalty.” 200 Ariz., at 279,
25 P. 3d, at 1151 (quoting Apprendi, 530 U. S., at 538).
After reciting this Court’s divergent constructions of Ari-
zona law in Apprendi, the Arizona Supreme Court described
how capital sentencing in fact works in the State. The Ari-
zona high court concluded that “the present case is precisely
as described in Justice O’Connor’s dissent [in Apprendi]—
Defendant’s death sentence required the judge’s factual find-
ings.” 200 Ariz., at 279, 25 P. 3d, at 1151. Although it
agreed with the Apprendi dissent’s reading of Arizona law,
the Arizona court understood that it was bound by the Su-
premacy Clause to apply Walton, which this Court had not
overruled. It therefore rejected Ring’s constitutional at-
tack on the State’s capital murder judicial sentencing system.
200 Ariz., at 280, 25 P. 3d, at 1152.
The court agreed with Ring that the evidence was insuffi-
cient to support the aggravating circumstance of depravity,
id., at 281–282, 25 P. 3d, at 1153–1154, but it upheld the trial
court’s finding on the aggravating factor of pecuniary gain.
The Arizona Supreme Court then reweighed that remaining
factor against the sole mitigating circumstance (Ring’s lack
of a serious criminal record), and affirmed the death sen-
tence. Id., at 282–284, 25 P. 3d, at 1154–1156.
We granted Ring’s petition for a writ of certiorari, 534
U. S. 1103 (2002), to allay uncertainty in the lower courts
caused by the manifest tension between Walton and the rea-
soning of Apprendi. See, e. g., United States v. Promise, 255
F. 3d 150, 159–160 (CA4 2001) (en banc) (calling the continued
authority of Walton in light of Apprendi “perplexing”); Hoff-
man v. Arave, 236 F. 3d 523, 542 (CA9 2001) (“Apprendi may

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raise some doubt about Walton.”); People v. Kaczmarek, 318
Ill. App. 3d 340, 351–352, 741 N. E. 2d 1131, 1142 (2000)
(“[W]hile it appears Apprendi extends greater constitutional
protections to noncapital, rather than capital, defendants, the
Court has endorsed this precise principle, and we are in no
position to secondguess that decision here.”). We now re-
verse the judgment of the Arizona Supreme Court.
II
Based solely on the jury’s verdict finding Ring guilty of
first-degree felony murder, the maximum punishment he
could have received was life imprisonment. See 200 Ariz.,
at 279, 25 P. 3d, at 1151 (citing Ariz. Rev. Stat. § 13–703).
This was so because, in Arizona, a “death sentence may not
legally be imposed . . . unless at least one aggravating factor
is found to exist beyond a reasonable doubt.” 200 Ariz., at
279, 25 P. 3d, at 1151 (citing § 13–703). The question pre-
sented is whether that aggravating factor may be found by
the judge, as Arizona law specifies, or whether the Sixth
Amendment’s jury trial guarantee, 3 made applicable to the
States by the Fourteenth Amendment, requires that the ag-
gravating factor determination be entrusted to the jury. 4
3 “In all criminal prosecutions, the accused shall enjoy the right to a . . .
trial, by an impartial jury . . . .”
4 Ring’s claim is tightly delineated: He contends only that the Sixth
Amendment required jury findings on the aggravating circumstances as-
serted against him. No aggravating circumstance related to past convic-
tions in his case; Ring therefore does not challenge Almendarez-Torres v.
United States, 523 U. S. 224 (1998), which held that the fact of prior convic-
tion may be found by the judge even if it increases the statutory maximum
sentence. He makes no Sixth Amendment claim with respect to mitigat-
ing circumstances. See Apprendi v. New Jersey, 530 U. S. 466, 490–491,
n. 16 (2000) (noting “the distinction the Court has often recognized be-
tween facts in aggravation of punishment and facts in mitigation” (citation
omitted)). Nor does he argue that the Sixth Amendment required the
jury to make the ultimate determination whether to impose the death
penalty. See Proffitt v. Florida, 428 U. S. 242, 252 (1976) (plurality opin-
ion) (“[I]t has never [been] suggested that jury sentencing is constitution-

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As earlier indicated, see supra, at 588, 595–596, this is not
the first time we have considered the constitutionality of Ari-
zona’s capital sentencing system. In Walton v. Arizona, 497
U. S. 639 (1990), we upheld Arizona’s scheme against a
charge that it violated the Sixth Amendment. The Court
had previously denied a Sixth Amendment challenge to Flor-
ida’s capital sentencing system, in which the jury recom-
mends a sentence but makes no explicit findings on aggravat-
ing circumstances; we so ruled, Walton noted, on the ground
that “the Sixth Amendment does not require that the specific
findings authorizing the imposition of the sentence of death
be made by the jury.” Id., at 648 (quoting Hildwin v. Flor-
ida, 490 U. S. 638, 640–641 (1989) (per curiam)). Walton
found unavailing the attempts by the defendant-petitioner in
that case to distinguish Florida’s capital sentencing system
from Arizona’s. In neither State, according to Walton, were
the aggravating factors “elements of the offense”; in both
States, they ranked as “sentencing considerations” guiding
the choice between life and death. 497 U. S., at 648 (internal
quotation marks omitted).
Walton drew support from Cabana v. Bullock, 474 U. S.
376 (1986), in which the Court held there was no constitu-
tional bar to an appellate court’s finding that a defendant
killed, attempted to kill, or intended to kill, as Enmund v.
Florida, 458 U. S. 782 (1982), required for imposition of the
death penalty in felony-murder cases. The Enmund finding
could be made by a court, Walton maintained, because it
entailed no “ ‘element of the crime of capital murder’ ”; it
“only place[d] ‘a substantive limitation on sentencing.’ ” 497
ally required.”). He does not question the Arizona Supreme Court’s au-
thority to reweigh the aggravating and mitigating circumstances after
that court struck one aggravator. See Clemons v. Mississippi, 494 U. S.
738, 745 (1990). Finally, Ring does not contend that his indictment was
constitutionally defective. See Apprendi, 530 U. S., at 477, n. 3 (Four-
teenth Amendment “has not . . . been construed to include the Fifth
Amendment right to ‘presentment or indictment of a Grand Jury’ ”).

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U. S., at 649 (quoting Cabana, 474 U. S., at 385–386). “If the
Constitution does not require that the Enmund finding be
proved as an element of the offense of capital murder, and
does not require a jury to make that finding,” Walton stated,
“we cannot conclude that a State is required to denominate
aggravating circumstances ‘elements’ of the offense or per-
mit only a jury to determine the existence of such circum-
stances.” 497 U. S., at 649.
In dissent in Walton, Justice Stevens urged that the
Sixth Amendment requires “a jury determination of facts
that must be established before the death penalty may be
imposed.” Id., at 709. Aggravators “operate as statutory
‘elements’ of capital murder under Arizona law,” he rea-
soned, “because in their absence, [the death] sentence is un-
available.” Id., at 709, n. 1. “If th[e] question had been
posed in 1791, when the Sixth Amendment became law,” Jus-
tice Stevens said, “the answer would have been clear,” for
“[b]y that time,
“the English jury’s role in determining critical facts in
homicide cases was entrenched. As fact-finder, the jury
had the power to determine not only whether the de-
fendant was guilty of homicide but also the degree of
the offense. Moreover, the jury’s role in finding facts
that would determine a homicide defendant’s eligibility
for capital punishment was particularly well estab-
lished. Throughout its history, the jury determined
which homicide defendants would be subject to capital
punishment by making factual determinations, many of
which related to difficult assessments of the defendant’s
state of mind. By the time the Bill of Rights was
adopted, the jury’s right to make these determinations
was unquestioned.” Id., at 710–711 (quoting White,
Fact-Finding and the Death Penalty: The Scope of a
Capital Defendant’s Right to Jury Trial, 65 Notre Dame
L. Rev. 1, 10–11 (1989)).

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600 RING v. ARIZONA
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Walton was revisited in Jones v. United States, 526 U. S.
227 (1999). In that case, we construed the federal carjack-
ing statute, 18 U. S. C. § 2119 (1994 ed. and Supp. V), which,
at the time of the criminal conduct at issue, provided that a
person possessing a firearm who “takes a motor vehicle . . .
from the person or presence of another by force and violence
or by intimidation . . . shall—(1) be . . . imprisoned not more
than 15 years . . . , (2) if serious bodily injury . . . results,
be . . . imprisoned not more than 25 years . . . , and (3) if
death results, be . . . imprisoned for any number of years up
to life . . . .” The question presented in Jones was whether
the statute “defined three distinct offenses or a single crime
with a choice of three maximum penalties, two of them de-
pendent on sentencing factors exempt from the requirements
of charge and jury verdict.” 526 U. S., at 229.
The carjacking statute, we recognized, was “susceptible
of [both] constructions”; we adopted the one that avoided
“grave and doubtful constitutional questions.” Id., at 239
(quoting United States ex rel. Attorney General v. Dela-
ware & Hudson Co., 213 U. S. 366, 408 (1909)). Section 2119,
we held, established three separate offenses. Therefore, the
facts—causation of serious bodily injury or death—necessary
to trigger the escalating maximum penalties fell within the
jury’s province to decide. See Jones, 526 U. S., at 251–252.
Responding to the dissenting opinion, the Jones Court re-
stated succinctly the principle animating its view that the
carjacking statute, if read to define a single crime, might
violate the Constitution: “[U]nder the Due Process Clause of
the Fifth Amendment and the notice and jury trial guaran-
tees of the Sixth Amendment, any fact (other than prior con-
viction) 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.
Jones endeavored to distinguish certain capital sentencing
decisions, including Walton. Advancing a “careful reading
of Walton’s rationale,” the Jones Court said: Walton “charac-

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terized the finding of aggravating facts falling within the
traditional scope of capital sentencing as a choice between a
greater and a lesser penalty, not as a process of raising the
ceiling of the sentencing range available.” 526 U. S., at 251.
Dissenting in Jones, Justice Kennedy questioned the
Court’s account of Walton. The aggravating factors at issue
in Walton, he suggested, were not merely circumstances for
consideration by the trial judge in exercising sentencing dis-
cretion within a statutory range of penalties. “Under the
relevant Arizona statute,” Justice Kennedy observed,
“Walton could not have been sentenced to death unless the
trial judge found at least one of the enumerated aggravating
factors. Absent such a finding, the maximum potential pun-
ishment provided by law was a term of imprisonment.” 526
U. S., at 272 (citation omitted). Jones, Justice Kennedy
concluded, cast doubt—needlessly in his view—on the vital-
ity of Walton:
“If it is constitutionally impermissible to allow a judge’s
finding to increase the maximum punishment for car-
jacking by 10 years, it is not clear why a judge’s finding
may increase the maximum punishment for murder from
imprisonment to death. In fact, Walton would appear
to have been a better candidate for the Court’s new ap-
proach than is the instant case.” 526 U. S., at 272.
One year after Jones, the Court decided Apprendi v. New
Jersey, 530 U. S. 466 (2000). The defendant-petitioner in
that case was convicted of, inter alia, second-degree posses-
sion of a firearm, an offense carrying a maximum penalty of
ten years under New Jersey law. See id., at 469–470. On
the prosecutor’s motion, the sentencing judge found by a pre-
ponderance of the evidence that Apprendi’s crime had been
motivated by racial animus. That finding triggered applica-
tion of New Jersey’s “hate crime enhancement,” which dou-
bled Apprendi’s maximum authorized sentence. The judge
sentenced Apprendi to 12 years in prison, 2 years over the
maximum that would have applied but for the enhancement.

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We held that Apprendi’s sentence violated his right to
“a jury determination that [he] is guilty of every element of
the crime with which he is charged, beyond a reasonable
doubt.” Id., at 477 (quoting United States v. Gaudin, 515
U. S. 506, 510 (1995)). That right attached not only to Ap-
prendi’s weapons offense but also to the “hate crime” aggra-
vating circumstance. New Jersey, the Court observed,
“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.” Apprendi, 530 U. S., at 476. “Merely using the
label ‘sentence enhancement’ to describe the [second act]
surely does not provide a principled basis for treating [the
two acts] differently.” Ibid.
The dispositive question, we said, “is one not of form, but
of effect.” Id., at 494. If a State makes an increase in a
defendant’s authorized punishment contingent on the finding
of a fact, that fact—no matter how the State labels it—must
be found by a jury beyond a reasonable doubt. See id., at
482–483. A defendant may not be “expose[d] . . . to a pen-
alty exceeding the maximum he would receive if punished
according to the facts reflected in the jury verdict alone.”
Id., at 483; see also id., at 499 (Scalia, J., concurring) (“[A]ll
the facts which must exist in order to subject the defendant
to a legally prescribed punishment must be found by the
jury.”).
Walton could be reconciled with Apprendi, the Court fi-
nally asserted. The key distinction, according to the Ap-
prendi Court, was that a conviction of first-degree murder
in Arizona carried a maximum sentence of death. “[O]nce 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.” 530 U. S., at 497 (emphasis deleted) (quoting

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Almendarez-Torres v. United States, 523 U. S. 224, 257, n. 2
(1998) (Scalia, J., dissenting)).
The Apprendi dissenters called the Court’s distinction of
Walton “baffling.” 530 U. S., at 538 (opinion of O’Connor,
J.). The Court claimed that “the jury makes all of the find-
ings necessary to expose the defendant to a death sentence.”
Ibid. That, the dissent said, was “demonstrably untrue,” for
a “defendant convicted of first-degree murder in Arizona
cannot receive a death sentence unless a judge makes the
factual determination that a statutory aggravating factor ex-
ists. Without that critical finding, the maximum sentence to
which the defendant is exposed is life imprisonment, and not
the death penalty.” Ibid. Walton, the Apprendi dissenters
insisted, if properly followed, would have required the Court
to uphold Apprendi’s sentence. “If a State can remove from
the jury a factual determination 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 determination that results in only a 10-year in-
crease in the maximum sentence to which a defendant is ex-
posed.” 530 U. S., at 537 (opinion of O’Connor, J.).
The Arizona Supreme Court, as we earlier recounted, see
supra, at 595–596, found the Apprendi majority’s portrayal
of Arizona’s capital sentencing law incorrect, and the de-
scription in Justice O’Connor’s dissent precisely right:
“Defendant’s death sentence required the judge’s factual
findings.” 200 Ariz., at 279, 25 P. 3d, at 1151. Recognizing
that the Arizona court’s construction of the State’s own law
is authoritative, see Mullaney v. Wilbur, 421 U. S. 684, 691
(1975), we are persuaded that Walton, in relevant part, can-
not survive the reasoning of Apprendi.
In an effort to reconcile its capital sentencing system with
the Sixth Amendment as interpreted by Apprendi, Arizona
first restates the Apprendi majority’s portrayal of Arizona’s
system: Ring was convicted of first-degree murder, for which
Arizona law specifies “death or life imprisonment” as the

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only sentencing options, see Ariz. Rev. Stat. Ann. § 13–
1105(C) (West 2001); Ring was therefore sentenced within
the range of punishment authorized by the jury verdict.
See Brief for Respondent 9–19. This argument overlooks
Apprendi’s instruction that “the relevant inquiry is one not
of form, but of effect.” 530 U. S., at 494. In effect, “the
required finding [of an aggravated circumstance] expose[d]
[Ring] to a greater punishment than that authorized by the
jury’s guilty verdict.” Ibid.; see 200 Ariz., at 279, 25 P. 3d,
at 1151. The Arizona first-degree murder statute “author-
izes a maximum penalty of death only in a formal sense,”
Apprendi, 530 U. S., at 541 (O’Connor, J., dissenting), for it
explicitly cross-references the statutory provision requiring
the finding of an aggravating circumstance before imposi-
tion of the death penalty. See § 13–1105(C) (“First degree
murder is a class 1 felony and is punishable by death or life
imprisonment as provided by § 13–703.” (emphasis added)).
If Arizona prevailed on its opening argument, Apprendi
would be reduced to a “meaningless and formalistic” rule of
statutory drafting. See 530 U. S., at 541 (O’Connor, J.,
dissenting).
Arizona also supports the distinction relied upon in Wal-
ton between elements of an offense and sentencing factors.
See supra, at 598–599; Tr. of Oral Arg. 28–29. As to ele-
vation of the maximum punishment, however, Apprendi
renders the argument untenable; 5 Apprendi repeatedly in-
5 In Harris v. United States, ante, p. 545, a majority of the Court con-
cludes that the distinction between elements and sentencing factors con-
tinues to be meaningful as to facts increasing the minimum sentence. See
ante, at 567 (plurality opinion) (“The factual finding in Apprendi extended
the power of the judge, allowing him or her to impose a punishment ex-
ceeding what was authorized by the jury. [A] finding [that triggers a
mandatory minimum sentence] restrain[s] the judge’s power, limiting his
or her choices within the authorized range. It is quite consistent to main-
tain that the former type of fact must be submitted to the jury while the
latter need not be.”); ante, at 569 (Breyer, J., concurring in part and

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structs in that context that the characterization of a fact or
circumstance as an “element” or a “sentencing factor” is not
determinative of the question “who decides,” judge or jury.
See, e. g., 530 U. S., at 492 (noting New Jersey’s contention
that “[t]he required finding of biased purpose is not an ‘ele-
ment’ of a distinct hate crime offense, but rather the tradi-
tional ‘sentencing factor’ of motive,” and calling this argu-
ment “nothing more than a disagreement with the rule we
apply today”); id., at 494, n. 19 (“[W]hen 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 jury’s guilty verdict.”); id., at 495 (“[M]erely
because the state legislature placed its hate crime sentence
enhancer within the sentencing provisions of the criminal
code does not mean that the finding of a biased purpose to
intimidate is not an essential element of the offense.” (inter-
nal quotation marks omitted)); see also id., at 501 (Thomas,
J., concurring) (“[I]f the legislature defines some core crime
and then provides for increasing the punishment of that
crime upon a finding of some aggravating fact[,] . . . the core
crime and the aggravating fact together constitute an aggra-
vated crime, just as much as grand larceny is an aggravated
form of petit larceny. The aggravating fact is an element of
the aggravated crime.”).
Even if facts increasing punishment beyond the maximum
authorized by a guilty verdict standing alone ordinarily must
be found by a jury, Arizona further urges, aggravating cir-
cumstances necessary to trigger a death sentence may none-
theless be reserved for judicial determination. As Arizona’s
counsel maintained at oral argument, there is no doubt that
concurring in judgment) (“[T]he Sixth Amendment permits judges to
apply sentencing factors—whether those factors lead to a sentence beyond
the statutory maximum (as in Apprendi) or the application of a mandatory
minimum (as here).”).

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“[d]eath is different.” Tr. of Oral Arg. 43. States have con-
structed elaborate sentencing procedures in death cases, Ari-
zona emphasizes, because of constraints we have said the
Eighth Amendment places on capital sentencing. Brief for
Respondent 21–25 (citing Furman v. Georgia, 408 U. S. 238
(1972) (per curiam)); see also Maynard v. Cartwright, 486
U. S. 356, 362 (1988) (“Since Furman, our cases have insisted
that the channeling and limiting of the sentencer’s discretion
in imposing the death penalty is a fundamental constitutional
requirement for sufficiently minimizing the risk of wholly ar-
bitrary and capricious action.”); Apprendi, 530 U. S., at 522–
523 (Thomas, J., concurring) (“[I]n the area of capital punish-
ment, 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 legis-
lature’s ability to define crimes.”).
Apart from the Eighth Amendment provenance of ag-
gravating factors, Arizona presents “no specific reason for
excepting capital defendants from the constitutional pro-
tections . . . extend[ed] to defendants generally, and none is
readily apparent.” Id., at 539 (O’Connor, J., dissenting).
The notion “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 . . . is without precedent
in our constitutional jurisprudence.” Ibid.
In various settings, we have interpreted the Constitution
to require the addition of an element or elements to the
definition of a criminal offense in order to narrow its scope.
See, e. g., United States v. Lopez, 514 U. S. 549, 561–562
(1995) (suggesting that addition to federal gun possession
statute of “express jurisdictional element” requiring connec-
tion between weapon and interstate commerce would render
statute constitutional under Commerce Clause); Branden-

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burg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (First
Amendment prohibits States from “proscrib[ing] advocacy of
the use of force or of law violation except where such advo-
cacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action”); Lam-
bert v. California, 355 U. S. 225, 229 (1957) (Due Process
Clause of Fourteenth Amendment requires “actual knowl-
edge of the duty to register or proof of the probability of
such knowledge” before ex-felon may be convicted of failing
to register presence in municipality). If a legislature re-
sponded to one of these decisions by adding the element we
held constitutionally required, surely the Sixth Amendment
guarantee would apply to that element. We see no reason
to differentiate capital crimes from all others in this regard.
Arizona suggests that judicial authority over the finding
of aggravating factors “may . . . be a better way to guarantee
against the arbitrary imposition of the death penalty.”
Tr. of Oral Arg. 32. The Sixth Amendment jury trial right,
however, does not turn on the relative rationality, fairness,
or efficiency of potential factfinders. Entrusting to a judge
the finding of facts necessary to support a death sentence
might be
“an admirably fair and efficient scheme of criminal jus-
tice designed for a society that is prepared to leave crim-
inal justice to the State. . . . The founders of the Ameri-
can Republic were not prepared to leave it to the State,
which is why the jury-trial guarantee was one of the
least controversial provisions of the Bill of Rights. It
has never been efficient; but it has always been free.”
Apprendi, 530 U. S., at 498 (Scalia, J., concurring).
In any event, the superiority of judicial factfinding in capital
cases is far from evident. Unlike Arizona, the great major-
ity of States responded to this Court’s Eighth Amendment
decisions requiring the presence of aggravating circum-

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stances in capital cases by entrusting those determinations
to the jury. 6
Although “ ‘the doctrine of stare decisis is of fundamental
importance to the rule of law[,]’ . . . [o]ur precedents are not
sacrosanct.” Patterson v. McLean Credit Union, 491 U. S.
164, 172 (1989) (quoting Welch v. Texas Dept. of Highways
and Public Transp., 483 U. S. 468, 494 (1987)). “[W]e have
overruled prior decisions where the necessity and propriety
of doing so has been established.” 491 U. S., at 172. We
are satisfied that this is such a case.
6 Of the 38 States with capital punishment, 29 generally commit sentenc-
ing decisions to juries. See Ark. Code Ann. § 5–4–602 (1993); Cal. Penal
Code Ann. § 190.3 (West 1999); Conn. Gen. Stat. § 53a–46a (2001); Ga. Code
Ann. § 17–10–31.1 (Supp. 1996); Ill. Comp. Stat. Ann., ch. 720, § 5/9–1(d)
(West 1993); Kan. Stat. Ann. § 21–4624(b) (1995); Ky. Rev. Stat. Ann.
§ 532.025(1)(b) (1993); La. Code Crim. Proc. Ann., Art. § 905.1 (West 1997);
Md. Ann. Code, Art. 27, § 413(b) (1996); Miss. Code Ann. § 99–19–101
(1973–2000); Mo. Rev. Stat. §§ 565.030, 565.032 (1999 and Supp. 2002); Nev.
Rev. Stat. Ann. § 175.552 (Michie 2001); N. H. Rev. Stat. Ann. § 630:5(II)
(1996); N. J. Stat. Ann. § 2C:11–3(c) (Supp. 2001); N. M. Stat. Ann. § 31–
20A–1 (2000); N. Y. Crim. Proc. Law § 400.27 (McKinney Supp. 2001–2002);
N. C. Gen. Stat. § 15A–2000 (1999); Ohio Rev. Code Ann. § 2929.03 (West
1997); Okla. Stat., Tit. 21, § 701.10(A) (Supp. 2001); Ore. Rev. Stat. Ann.
§ 163.150 (1997); 42 Pa. Cons. Stat. § 9711 (Supp. 2001); S. C. Code Ann.
§ 16–3–20(B) (1985); S. D. Codified Laws § 23A–27A–2 (1998); Tenn. Code
Ann. § 39–13–204 (Supp. 2000); Tex. Code Crim. Proc. Ann., Art. 37.071
(Vernon Supp. 2001); Utah Code Ann. § 76–3–207 (Supp. 2001); Va. Code
Ann. § 19.2–264.3 (2000); Wash. Rev. Code § 10.95.050 (1990); Wyo. Stat.
Ann. § 6–2–102 (2001).
Other than Arizona, only four States commit both capital sentencing
factfinding and the ultimate sentencing decision entirely to judges. See
Colo. Rev. Stat. § 16–11–103 (2001) (three-judge panel); Idaho Code § 19–
2515 (Supp. 2001); Mont. Code Ann. § 46–18–301 (1997); Neb. Rev. Stat.
§ 29–2520 (1995).
Four States have hybrid systems, in which the jury renders an advisory
verdict but the judge makes the ultimate sentencing determinations. See
Ala. Code §§ 13A–5–46, 13A–5–47 (1994); Del. Code Ann., Tit. 11, § 4209
(1995); Fla. Stat. Ann. § 921.141 (West 2001); Ind. Code Ann. § 35–50–2–9
(Supp. 2001).

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609 Cite as: 536 U. S. 584 (2002)
Opinion of the Court
For the reasons stated, we hold that Walton and Apprendi
are irreconcilable; our Sixth Amendment jurisprudence can-
not be home to both. Accordingly, we overrule Walton to
the extent that it allows a sentencing judge, sitting without
a jury, to find an aggravating circumstance necessary for im-
position of the death penalty. See 497 U. S., at 647–649.
Because Arizona’s enumerated aggravating factors operate
as “the functional equivalent of an element of a greater of-
fense,” Apprendi, 530 U. S., at 494, n. 19, the Sixth Amend-
ment requires that they be found by a jury.
* * *
“The guarantees of jury trial in the Federal and State
Constitutions reflect a profound judgment about the
way in which law should be enforced and justice
administered. . . . 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, 155–156 (1968).
The right to trial by jury guaranteed by the Sixth Amend-
ment would be senselessly diminished if it encompassed the
factfinding necessary to increase a defendant’s sentence by
two years, but not the factfinding necessary to put him to
death. We hold that the Sixth Amendment applies to both.
The judgment of the Arizona Supreme Court is therefore
reversed, and the case is remanded for further proceedings
not inconsistent with this opinion. 7
It is so ordered.
7 We do not reach the State’s assertion that any error was harmless
because a pecuniary gain finding was implicit in the jury’s guilty verdict.
See Neder v. United States, 527 U. S. 1, 25 (1999) (this Court ordinarily
leaves it to lower courts to pass on the harmlessness of error in the first
instance).

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610 RING v. ARIZONA
Scalia, J., concurring
Justice Scalia, with whom Justice Thomas joins,
concurring.
The question whether Walton v. Arizona, 497 U. S. 639
(1990), survives our decision in Apprendi v. New Jersey, 530
U. S. 466 (2000), confronts me with a difficult choice. What
compelled Arizona (and many other States) to specify partic-
ular “aggravating factors” that must be found before the
death penalty can be imposed, see 1973 Ariz. Sess. Laws
ch. 138, § 5 (originally codified as Ariz. Rev. Stat. § 13–454),
was the line of this Court’s cases beginning with Furman v.
Georgia, 408 U. S. 238 (1972) (per curiam). See Walton, 497
U. S., at 659–660 (Scalia, J., concurring in part and concur-
ring in judgment). In my view, that line of decisions had no
proper foundation in the Constitution. Id., at 670 (“ ‘[T]he
prohibition of the Eighth Amendment relates to the charac-
ter of the punishment, and not to the process by which it is
imposed’ ” (quoting Gardner v. Florida, 430 U. S. 349, 371
(1977) (Rehnquist, J., dissenting))). I am therefore reluc-
tant to magnify the burdens that our Furman jurisprudence
imposes on the States. Better for the Court to have in-
vented an evidentiary requirement that a judge can find by
a preponderance of the evidence, than to invent one that a
unanimous jury must find beyond a reasonable doubt.
On the other hand, as I wrote i n my dissent i n
Almendarez-Torres v. United States, 523 U. S. 224, 248
(1998), and as I reaffirmed by joining the opinion for the
Court in Apprendi, I believe that the fundamental meaning
of the jury-trial guarantee of the Sixth Amendment is that
all facts essential to imposition of the level of punishment
that the defendant receives—whether the statute calls them
elements of the offense, sentencing factors, or Mary Jane—
must be found by the jury beyond a reasonable doubt.
The quandary is apparent: Should I continue to apply the
last-stated principle when I know that the only reason the
fact is essential is that this Court has mistakenly said that
the Constitution requires state law to impose such “aggra-

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611 Cite as: 536 U. S. 584 (2002)
Scalia, J., concurring
vating factors”? In Walton, to tell the truth, the Sixth
Amendment claim was not put with the clarity it obtained in
Almendarez-Torres and Apprendi. There what the appel-
lant argued had to be found by the jury was not all facts
essential to imposition of the death penalty, but rather
“every finding of fact underlying the sentencing decision,”
including not only the aggravating factors without which the
penalty could not be imposed, but also the mitigating factors
that might induce a sentencer to give a lesser punishment.
497 U. S., at 647 (emphasis added). But even if the point
had been put with greater clarity in Walton, I think I still
would have approved the Arizona scheme—I would have
favored the States’ freedom to develop their own capital
sentencing procedures (already erroneously abridged by
Furman) over the logic of the Apprendi principle.
Since Walton, I have acquired new wisdom that consists
of two realizations—or, to put it more critically, have dis-
carded old ignorance that consisted of the failure to realize
two things: First, that it is impossible to identify with cer-
tainty those aggravating factors whose adoption has been
wrongfully coerced by Furman, as opposed to those that the
State would have adopted in any event. Some States, for
example, already had aggravating-factor requirements for
capital murder (e. g., murder of a peace officer, see 1965 N. Y.
Laws p. 1022 (originally codified at N. Y. Penal Law § 1045))
when Furman was decided. When such a State has added
aggravating factors, are the new ones the Apprendi-exempt
product of Furman, and the old ones not? And even as to
those States that did not previously have aggravating-factor
requirements, who is to say that their adoption of a new one
today—or, for that matter, even their retention of old ones
adopted immediately post-Furman—is still the product of
that case, and not of a changed social belief that murder sim-
pliciter does not deserve death?
Second, and more important, my observing over the past
12 years the accelerating propensity of both state and federal

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612 RING v. ARIZONA
Scalia, J., concurring
legislatures to adopt “sentencing factors” determined by
judges that increase punishment beyond what is authorized
by the jury’s verdict, and my witnessing the belief of a near
majority of my colleagues that this novel practice is perfectly
OK, see Apprendi, supra, at 523 (O’Connor, J., dissenting),
cause me to believe that our people’s traditional belief in the
right of trial by jury is in perilous decline. That decline is
bound to be confirmed, and indeed accelerated, by the re-
peated spectacle of a man’s going to his death because
a judge found that an aggravating factor existed. We can-
not preserve our veneration for the protection of the jury in
criminal cases if we render ourselves callous to the need for
that protection by regularly imposing the death penalty
without it.
Accordingly, whether or not the States have been errone-
ously coerced into the adoption of “aggravating factors,”
wherever those factors exist they must be subject to the
usual requirements of the common law, and to the require-
ment enshrined in our Constitution, in criminal cases: they
must be found by the jury beyond a reasonable doubt.
I add one further point, lest the holding of today’s decision
be confused by the separate concurrence. Justice Breyer,
who refuses to accept Apprendi, see 530 U. S., at 555 (dis-
senting opinion); see also Harris v. United States, ante, at
569 (Breyer, J., concurring in part and concurring in judg-
ment), nonetheless concurs in today’s judgment because he
“believe[s] that jury sentencing in capital cases is mandated
by the Eighth Amendment.” Post, at 614 (opinion concur-
ring in judgment). While I am, as always, pleased to travel
in Justice Breyer’s company, the unfortunate fact is that
today’s judgment has nothing to do with jury sentencing.
What today’s decision says is that the jury must find the
existence of the fact that an aggravating factor existed.
Those States that leave the ultimate life-or-death decision to
the judge may continue to do so—by requiring a prior jury
finding of aggravating factor in the sentencing phase or,

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Breyer, J., concurring in judgment
more simply, by placing the aggravating-factor determina-
tion (where it logically belongs anyway) in the guilt phase.
There is really no way in which Justice Breyer can travel
with the happy band that reaches today’s result unless he
says yes to Apprendi. Concisely put, Justice Breyer is
on the wrong flight; he should either get off before the doors
close, or buy a ticket to Apprendi-land.
Justice Kennedy, concurring.
Though it is still my view that Apprendi v. New Jersey,
530 U. S. 466 (2000), was wrongly decided, Apprendi is now
the law, and its holding must be implemented in a principled
way. As the Court suggests, no principled reading of Ap-
prendi would allow Walton v. Arizona, 497 U. S. 639 (1990),
to stand. It is beyond question that during the penalty
phase of a first-degree murder prosecution in Arizona, the
finding of an aggravating circumstance exposes “the defend-
ant to a greater punishment than that authorized by the
jury’s guilty verdict.” Apprendi, supra, at 494. When a
finding has this effect, Apprendi makes clear, it cannot be
reserved for the judge.
This is not to say Apprendi should be extended without
caution, for the States’ settled expectations deserve our re-
spect. A sound understanding of the Sixth Amendment will
allow States to respond to the needs and realities of criminal
justice administration, and Apprendi can be read as leaving
in place many reforms designed to reduce unfairness in sen-
tencing. I agree with the Court, however, that Apprendi
and Walton cannot stand together as the law.
With these observations I join the opinion of the Court.
Justice Breyer, concurring in the judgment.
I
Given my views in Apprendi v. New Jersey, 530 U. S. 466,
555 (2000) (dissenting opinion), and Harris v. United States,

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614 RING v. ARIZONA
Breyer, J., concurring in judgment
ante, at 569 (opinion concurring in part and concurring in
judgment), I cannot join the Court’s opinion. I concur in the
judgment, however, because I believe that jury sentencing
in capital cases is mandated by the Eighth Amendment.
II
This Court has held that the Eighth Amendment requires
States to apply special procedural safeguards when they
seek the death penalty. Gregg v. Georgia, 428 U. S. 153
(1976). Otherwise, the constitutional prohibition against
“cruel and unusual punishments” would forbid its use. Fur-
man v. Georgia, 408 U. S. 238 (1972) (per curiam). Justice
Stevens has written that those safeguards include a re-
quirement that a jury impose any sentence of death. Har-
ris v. Alabama, 513 U. S. 504, 515–526 (1995) (dissenting
opinion); Spaziano v. Florida, 468 U. S. 447, 467–490 (1984)
(Stevens, J., joined by Brennan and Marshall, JJ., concur-
ring in part and dissenting in part). Although I joined the
majority in Harris v. Alabama, I have come to agree with
the dissenting view, and with the related views of others
upon which it in part relies, see Gregg, supra, at 190 ( joint
opinion of Stewart, Powell, and Stevens, JJ.). Cf. Henslee
v. Union Planters Nat. Bank & Trust Co., 335 U. S. 595, 600
(1949) (Frankfurter, J., dissenting) (“Wisdom too often never
comes, and so one ought not to reject it merely because it
comes late”). I therefore conclude that the Eighth Amend-
ment requires that a jury, not a judge, make the decision to
sentence a defendant to death.
I am convinced by the reasons that Justice Stevens has
given. These include (1) his belief that retribution provides
the main justification for capital punishment, and (2) his as-
sessment of the jury’s comparative advantage in determin-
ing, in a particular case, whether capital punishment will
serve that end.
As to the first, I note the continued difficulty of justifying
capital punishment in terms of its ability to deter crime, to

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615 Cite as: 536 U. S. 584 (2002)
Breyer, J., concurring in judgment
incapacitate offenders, or to rehabilitate criminals. Studies
of deterrence are, at most, inconclusive. See, e. g., Sorensen,
Wrinkle, Brewer, & Marquart, Capital Punishment and De-
terrence: Examining the Effect of Executions on Murder in
Texas, 45 Crime & Delinquency 481 (1999) (no evidence of a
deterrent effect); Bonner & Fessenden, Absence of Execu-
tions: A special report, States With No Death Penalty Share
Lower Homicide Rates, N. Y. Times, Sept. 22, 2000, p. A1
(during last 20 years, homicide rate in death penalty States
has been 48% to 101% higher than in non-death-penalty
States); see also Radelet & Akers, Deterrence and the Death
Penalty: The Views of the Experts, 87 J. Crim. L. & C. 1, 8
(1996) (over 80% of criminologists believe existing research
fails to support deterrence justification).
As to incapacitation, few offenders sentenced to life with-
out parole (as an alternative to death) commit further crimes.
See, e. g., Sorensen & Pilgrim, An Actuarial Risk Assessment
of Violence Posed by Capital Murder Defendants, 90 J. Crim.
L. & C. 1251, 1256 (2000) (studies find average repeat murder
rate of .002% among murderers whose death sentences were
commuted); Marquart & Sorensen, A National Study of the
Furman-Commuted Inmates: Assessing the Threat to Soci-
ety from Capital Offenders, 23 Loyola (LA) L. Rev. 5, 26
(1989) (98% did not kill again either in prison or in free soci-
ety). But see Roberts v. Louisiana, 428 U. S. 325, 354 (1976)
(White, J., dissenting) (“[D]eath finally forecloses the possi-
bility that a prisoner will commit further crimes, whereas
life imprisonment does not”). And rehabilitation, obviously,
is beside the point.
In respect to retribution, jurors possess an important com-
parative advantage over judges. In principle, they are more
attuned to “the community’s moral sensibility,” Spaziano,
468 U. S., at 481 (Stevens, J., concurring in part and dissent-
ing in part), because they “reflect more accurately the com-
position and experiences of the community as a whole,” id.,
at 486. Hence they are more likely to “express the con-

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616 RING v. ARIZONA
Breyer, J., concurring in judgment
science of the community on the ultimate question of life or
death,” Witherspoon v. Illinois, 391 U. S. 510, 519 (1968), and
better able to determine in the particular case the need for
retribution, namely, “an expression of the community’s belief
that certain crimes are themselves so grievous an affront to
humanity that the only adequate response may be the pen-
alty of death.” Gregg, supra, at 184 ( joint opinion of Stew-
art, Powell, and Stevens, JJ.).
Nor is the fact that some judges are democratically elected
likely to change the jury’s comparative advantage in this re-
spect. Even in jurisdictions where judges are selected di-
rectly by the people, the jury remains uniquely capable of
determining whether, given the community’s views, capital
punishment is appropriate in the particular case at hand.
See Harris, 513 U. S., at 518–519 (Stevens, J., dissenting);
see also J. Liebman et al., A Broken System, Part II: Why
There Is So Much Error in Capital Cases, and What Can Be
Done About It 405–406 (Feb. 11, 2002) (hereinafter A Broken
System) (finding that judges who override jury verdicts for
life are especially likely to commit serious errors); cf.
Epstein & King, The Rules of Inference, 69 U. Chi. L. Rev.
1 (2002) (noting dangers in much scholarly research but gen-
erally approving of Liebman).
The importance of trying to translate a community’s sense
of capital punishment’s appropriateness in a particular case
is underscored by the continued division of opinion as to
whether capital punishment is in all circumstances, as cur-
rently administered, “cruel and unusual.” Those who make
this claim point, among other things, to the fact that death
is not reversible, and to death sentences imposed upon those
whose convictions proved unreliable. See, e. g., Weinstein,
The Nation’s Death Penalty Foes Mark a Milestone Crime:
Arizona convict freed on DNA tests is said to be the 100th
known condemned U. S. prisoner to be exonerated since exe-
cutions resumed, Los Angeles Times, Apr. 10, 2002, p. A16;
G. Ryan, Governor of Illinois, Report of Governor’s Commis-

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617 Cite as: 536 U. S. 584 (2002)
Breyer, J., concurring in judgment
sion on Capital Punishment 7–10 (Apr. 15, 2002) (imposing
moratorium on Illinois executions because, post-Furman, 13
people have been exonerated and 12 executed); see generally
Bedau & Radelet, Miscarriages of Justice in Potentially Capi-
tal Cases, 40 Stan. L. Rev. 21, 27 (1987).
They point to the potentially arbitrary application of the
death penalty, adding that the race of the victim and socio-
economic factors seem to matter. See, e. g., U. S. General
Accounting Office, Report to Senate and House Committees
on the Judiciary: Death Penalty Sentencing 5 (Feb. 1990)
(synthesis of 28 studies shows “pattern of evidence indicating
racial disparities in the charging, sentencing, and imposition
of the death penalty”); Baldus, Woodworth, Zuckerman,
Weiner, & Broffitt, Racial Discrimination and the Death Pen-
alty in the Post-Furman Era: An Empirical and Legal Over-
view, With Recent Findings from Philadelphia, 83 Cornell
L. Rev. 1638, 1661 (1998) (evidence of race-of-victim dispari-
ties in 90% of States studied and of race-of-defendant dispari-
ties in 55%); McCleskey v. Kemp, 481 U. S. 279, 320–345
(1987) (Brennan, J., dissenting); see also, e. g., D. Baldus,
G. Woodworth, G. Young, & A. Christ, The Disposition of
Nebraska Capital and Non-Capital Homicide Cases (1973–
1999): A Legal and Empirical Analysis 95–100 (Oct. 10, 2001)
(death sentences almost five times more likely when victim
is of a high socio-economic status).
They argue that the delays that increasingly accompany
sentences of death make those sentences unconstitutional
because of “the suffering inherent in a prolonged wait for
execution.” Knight v. Florida, 528 U. S. 990, 994 (1999)
(Breyer, J., dissenting from denial of certiorari) (arguing
that the Court should consider the question); see, e. g.,
Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., respect-
ing denial of certiorari); Bureau of Justice Statistics, Capital
Punishment 2000, pp. 12, 14 (rev. 2002) (average delay is 12
years, with 52 people waiting more than 20 years and some
more than 25).

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Breyer, J., concurring in judgment
They point to the inadequacy of representation in capital
cases, a fact that aggravates the other failings. See, e. g.,
Bright, Counsel for the Poor: The Death Sentence Not for
the Worst Crime but for the Worst Lawyer, 103 Yale L. J.
1835 (1994) (describing many studies discussing deficient cap-
ital representation).
And they note that other nations have increasingly aban-
doned capital punishment. See, e. g., San Martin, U. S.
Taken to Task Over Death Penalty, Miami Herald, May 31,
2001, p. 1 (United States is only Western industrialized Na-
tion that authorizes the death penalty); Amnesty Interna-
tional Website Against the Death Penalty, Facts and Figures
on the Death Penalty (2002), http://www.web.amnesty.org/
rmp/dplibrary.nsf (since Gregg, 111 countries have either
abandoned the penalty altogether, reserved it only for excep-
tional crimes like wartime crimes, or not carried out execu-
tions for at least the past 10 years); DeYoung, Group Criti-
cizes U. S. on Detainee Policy; Amnesty Warns of Human
Rights Fallout, Washington Post, May 28, 2002, p. A4 (the
United States rates fourth in number of executions, after
China, Iran, and Saudi Arabia).
Many communities may have accepted some or all of these
claims, for they do not impose capital sentences. See A Bro-
ken System, App. B, Table 11A (more than two-thirds of
American counties have never imposed the death penalty
since Gregg (2,064 out of 3,066), and only 3% of the Nation’s
counties account for 50% of the Nation’s death sentences (92
out of 3,066)). Leaving questions of arbitrariness aside, this
diversity argues strongly for procedures that will help as-
sure that, in a particular case, the community indeed believes
application of the death penalty is appropriate, not “cruel,”
“unusual,” or otherwise unwarranted.
For these reasons, the danger of unwarranted imposition
of the penalty cannot be avoided unless “the decision to im-
pose the death penalty is made by a jury rather than by
a single governmental official.” Spaziano, 468 U. S., at 469

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O’Connor, J., dissenting
(Stevens, J., concurring in part and dissenting in part); see
Solem v. Helm, 463 U. S. 277, 284 (1983) (Eighth Amendment
prohibits excessive or disproportionate punishment). And I
conclude that the Eighth Amendment requires individual
jurors to make, and to take responsibility for, a decision
to sentence a person to death.
Justice O’Connor, with whom The Chief Justice
joins, dissenting.
I understand why the Court holds that the reasoning of
Apprendi v. New Jersey, 530 U. S. 466 (2000), is irreconcilable
with Walton v. Arizona, 497 U. S. 639 (1990). Yet in choos-
ing which to overrule, I would choose Apprendi, not Walton.
I continue to believe, for the reasons I articulated in my
dissent in Apprendi, that the decision in Apprendi was a
serious mistake. As I argued in that dissent, Apprendi’s
rule that any fact that increases the maximum penalty must
be treated as an element of the crime is not required by the
Constitution, by history, or by our prior cases. See 530
U. S., at 524–552. Indeed, the rule directly contradicts sev-
eral of our prior cases. See id., at 531–539 (explaining that
the rule conflicts with Patterson v. New York, 432 U. S. 197
(1977), Almendarez-Torres v. United States, 523 U. S. 224
(1998), and Walton, supra). And it ignores the “significant
history in this country of . . . discretionary sentencing by
judges.” 530 U. S., at 544 (O’Connor, J., dissenting). The
Court has failed, both in Apprendi and in the decision an-
nounced today, to “offer any meaningful justification for devi-
ating from years of cases both suggesting and holding that
application of the ‘increase in the maximum penalty’ rule is
not required by the Constitution.” Id., at 539.
Not only was the decision in Apprendi unjustified in my
view, but it has also had a severely destabilizing effect on
our criminal justice system. I predicted in my dissent that
the decision would “unleash a flood of petitions by convicted
defendants seeking to invalidate their sentences in whole or

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620 RING v. ARIZONA
O’Connor, J., dissenting
in part on the authority of [Apprendi].” Id., at 551. As
of May 31, 2002, less than two years after Apprendi was
announced, the United States Courts of Appeals had decided
approximately 1,802 criminal appeals in which defendants
challenged their sentences, and in some cases even their con-
victions, under Apprendi.1 These federal appeals are likely
only the tip of the iceberg, as federal criminal prosecutions
represent a tiny fraction of the total number of criminal
prosecutions nationwide. See ibid. (O’Connor, J., dissent-
ing) (“In 1998 . . . federal criminal prosecutions represented
only about 0.4% of the total number of criminal prosecutions
in federal and state courts”). The number of second or suc-
cessive habeas corpus petitions filed in the federal courts
also increased by 77% in 2001, a phenomenon the Administra-
tive Office of the United States Courts attributes to prison-
ers bringing Apprendi claims. Administrative Office of the
U. S. Courts, 2001 Judicial Business 17. This Court has
been similarly overwhelmed by the aftershocks of Apprendi.
A survey of the petitions for certiorari we received in the
past year indicates that 18% raised Apprendi-related
claims. 2 It is simply beyond dispute that Apprendi threw
countless criminal sentences into doubt and thereby caused
an enormous increase in the workload of an already overbur-
dened judiciary.
The decision today is only going to add to these already
serious effects. The Court effectively declares five States’
capital sentencing schemes unconstitutional. See ante, at
608, n. 6 (identifying Colorado, Idaho, Montana, and Ne-
braska as having sentencing schemes like Arizona’s). There
are 168 prisoners on death row in these States, Criminal Jus-
tice Project of the NAACP Legal Defense and Educational
Fund, Inc., Death Row U. S. A. (Spring 2002), each of whom
1 This data was obtained from a Westlaw search conducted May 31, 2002,
in the United States Courts of Appeals database using the following
search terms: “ ‘Apprendi v. New Jersey’ & Title[‘U.S.’ or ‘United States’].”
2 Specific counts are on file with the Clerk of the Court.

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O’Connor, J., dissenting
is now likely to challenge his or her death sentence.
I believe many of these challenges will ultimately be un-
successful, either because the prisoners will be unable to sat-
isfy the standards of harmless error or plain error review,
or because, having completed their direct appeals, they
will be barred from taking advantage of today’s holding on
federal collateral review. See 28 U. S. C. §§ 2244(b)(2)(A),
2254(d)(1); Teague v. Lane, 489 U. S. 288 (1989). Nonethe-
less, the need to evaluate these claims will greatly burden
the courts in these five States. In addition, I fear that the
prisoners on death row in Alabama, Delaware, Florida, and
Indiana, which the Court identifies as having hybrid sentenc-
ing schemes in which the jury renders an advisory verdict
but the judge makes the ultimate sentencing determination,
see ante, at 608, n. 6, may also seize on today’s decision to
challenge their sentences. There are 629 prisoners on death
row in these States. Criminal Justice Project, supra.
By expanding on Apprendi, the Court today exacerbates
the harm done in that case. Consistent with my dissent,
I would overrule Apprendi rather than Walton.