APPRENDI v. NEW JERSEY

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
466 OCTOBER TERM, 1999
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 prosecutor filed a motion
to enhance the sentence. The court found by a preponderance of the
evidence that the shooting was racially motivated and sentenced Ap-
prendi to a 12-year term on the firearms count. In upholding the sen-
tence, the appeals court rejected Apprendi’s claim that the Due Process
Clause requires that a bias finding be proved to a jury beyond a reason-
able doubt. The State Supreme Court affirmed.
Held: The Constitution requires that any fact that increases the penalty
for a crime beyond the prescribed statutory maximum, other than the
fact of a prior conviction, must be submitted to a jury and proved be-
yond a reasonable doubt. Pp. 474–497.
(a) The answer to the narrow constitutional question presented—
whether Apprendi’s sentence was permissible, given that it exceeds the
10-year maximum for the offense charged—was foreshadowed by the
holding in Jones v. United States, 526 U. S. 227, that, with regard to
federal law, the Fifth Amendment’s Due Process Clause and the Sixth
Amendment’s notice and jury trial guarantees require that any fact
other than prior conviction that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury, and proved
beyond a reasonable doubt. The Fourteenth Amendment commands
the same answer when a state statute is involved. Pp. 474–476.
(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

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
467 Cite as: 530 U. S. 466 (2000)
Syllabus
judges in this country have long exercised discretion in sentencing,
such discretion is bound by the range of sentencing options prescribed
by the legislature. See, e. g., United States v. Tucker, 404 U. S. 443,
447. The historic inseparability of verdict and judgment and the con-
sistent limitation on judges’ discretion highlight the novelty of a
scheme that removes the jury from the determination of a fact that
exposes the defendant to a penalty exceeding the maximum he could
receive if punished according to the facts reflected in the jury verdict
alone. Pp. 476–485.
(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) con-
stitutional limits exist to States’ authority to define away facts nec-
essary to constitute a criminal offense, 477 U. S., at 85–88, and (2) a state
scheme that keeps from the jury facts exposing defendants to greater or
additional punishment may raise serious constitutional concerns, id., at
88. Almendarez-Torres v. United States, 523 U. S. 224—in which the
Court upheld a federal law allowing a judge to impose an en-
hanced sentence based on prior convictions not alleged in the indict-
ment—represents at best an exceptional departure from the historic
practice. Pp. 485–490.
(d) In light of the constitutional rule expressed here, New Jersey’s
practice cannot stand. It allows a jury to convict a defendant of a
second-degree offense on its finding beyond a reasonable doubt and
then allows a judge to impose punishment identical to that New Jersey
provides for first-degree crimes on his finding, by a preponderance of
the evidence, that the defendant’s purpose was to intimidate his victim
based on the victim’s particular characteristic. The State’s argument
that the biased purpose finding is not an “element” of a distinct hate
crime offense but a “sentencing factor” of motive is nothing more than
a disagreement with the rule applied in this case. Beyond this, the
argument cannot succeed on its own terms. It does not matter how
the required finding is labeled, but whether it exposes the defendant to
a greater punishment than that authorized by the jury’s verdict, as
does the sentencing “enhancement” here. The degree of culpability the
legislature associates with factually distinct conduct has significant im-
plications both for a defendant’s liberty and for the heightened stigma
associated with an offense the legislature has selected as worthy of
greater punishment. That the State placed the enhancer within the
criminal code’s sentencing provisions does not mean that it is not an
essential element of the offense. Pp. 491–497.
159 N. J. 7, 731 A. 2d 485, reversed and remanded.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
468 APPRENDI v. NEW JERSEY
Opinion of the Court
Stevens, J., delivered the opinion of the Court, in which Scalia,
Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a con-
curring opinion, post, p. 498. Thomas, J., filed a concurring opinion, in
which Scalia, J., joined as to Parts I and II, post, p. 499. O’Connor, J.,
filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy and
Breyer, JJ., joined, post, p. 523. Breyer, J., filed a dissenting opinion,
in which Rehnquist, C. J., joined, post, p. 555.
Joseph D. O’Neill argued the cause for petitioner. With
him on the briefs were Charles I. Coant, Richard G. Singer,
and Jeffrey T. Green.
Lisa Sarnoff Gochman, Deputy Attorney General of New
Jersey, argued the cause for respondent. With her on the
brief was John J. Farmer, Jr., Attorney General.
Edward C. DuMont argued the cause for the United
States as amicus curiae urging affirmance. With him on
the brief were Solicitor General Waxman, Assistant Attor-
ney General Robinson, Deputy Solicitor General Dreeben,
and Nina Goodman.*
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 pun-
ishable by imprisonment for “between five years and 10
years.” § 2C:43–6(a)(2). A separate statute, described by
that State’s Supreme Court as a “hate crime” law, provides
for an “extended term” of imprisonment if the trial judge
finds, by a preponderance of the evidence, that “[t]he de-
*Briefs of amici curiae urging reversal were filed for the National As-
sociation of Criminal Defense Lawyers et al. by Steven B. Duke, Kyle
O’Dowd, Lisa B. Kemler, and Peter Goldberger; and for the Rutherford
Institute by John W. Whitehead and Steven H. Aden.
Briefs of amici curiae urging affirmance were filed for the Anti-
Defamation League by David M. Raim, Steven M. Freeman, and Michael
Lieberman; and for the Brudnick Center on Violence and Conflict et al.
by Brian H. Levin.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
469 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
fendant in committing the crime acted with a purpose to
intimidate an individual or group of individuals because
of race, color, gender, handicap, religion, sexual orientation
or ethnicity.” N. J. Stat. Ann. § 2C:44–3(e) (West Supp.
1999–2000). The extended term authorized by the hate
crime law for second-degree offenses is imprisonment for
“between 10 and 20 years.” § 2C:43–7(a)(3).
The question presented is whether the Due Process Clause
of the Fourteenth Amendment requires that a factual deter-
mination authorizing an increase in the maximum prison sen-
tence for an offense from 10 to 20 years be made by a jury
on the basis of proof beyond a reasonable doubt.
I
At 2:04 a.m. on December 22, 1994, petitioner Charles C.
Apprendi, Jr., fired several .22-caliber bullets into the home
of an African-American family that had recently moved into
a previously all-white neighborhood in Vineland, New Jersey.
Apprendi was promptly arrested and, at 3:05 a.m., admitted
that he was the shooter. After further questioning, at 6:04
a.m., he made a statement—which he later retracted—that
even though he did not know the occupants of the house per-
sonally, “because they are black in color he does not want
them in the neighborhood.” 159 N. J. 7, 10, 731 A. 2d 485,
486 (1999).
A New Jersey grand jury returned a 23-count indictment
charging Apprendi with four first-degree, eight second-
degree, six third-degree, and five fourth-degree offenses.
The charges alleged shootings on four different dates, as well
as the unlawful possession of various weapons. None of the
counts referred to the hate crime statute, and none alleged
that Apprendi acted with a racially biased purpose.
The parties entered into a plea agreement, pursuant to
which Apprendi pleaded guilty to two counts (3 and 18) of
second-degree possession of a firearm for an unlawful pur-

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
470 APPRENDI v. NEW JERSEY
Opinion of the Court
pose, N. J. Stat. Ann. § 2C:39–4a (West 1995), and one count
(22) of the third-degree offense of unlawful possession of an
antipersonnel bomb, § 2C:39–3a; the prosecutor dismissed the
other 20 counts. Under state law, a second-degree offense
carries a penalty range of 5 to 10 years, § 2C:43–6(a)(2); a
third-degree offense carries a penalty range of between 3
and 5 years, § 2C:43–6(a)(3). As part of the plea agreement,
however, the State reserved the right to request the court
to impose a higher “enhanced” sentence on count 18 (which
was based on the December 22 shooting) on the ground that
that offense was committed with a biased purpose, as de-
scribed in § 2C:44–3(e). Apprendi, correspondingly, re-
served the right to challenge the hate crime sentence en-
hancement on the ground that it violates the United States
Constitution.
At the plea hearing, the trial judge heard sufficient evi-
dence to establish Apprendi’s guilt on counts 3, 18, and 22;
the judge then confirmed that Apprendi understood the
maximum sentences that could be imposed on those counts.
Because the plea agreement provided that the sentence on
the sole third-degree offense (count 22) would run concur-
rently with the other sentences, the potential sentences on
the two second-degree counts were critical. If the judge
found no basis for the biased purpose enhancement, the
maximum consecutive sentences on those counts would
amount to 20 years in aggregate; if, however, the judge en-
hanced the sentence on count 18, the maximum on that count
alone would be 20 years and the maximum for the two counts
in aggregate would be 30 years, with a 15-year period of
parole ineligibility.
After the trial judge accepted the three guilty pleas, the
prosecutor filed a formal motion for an extended term. The
trial judge thereafter held an evidentiary hearing on the
issue of Apprendi’s “purpose” for the shooting on December
22. Apprendi adduced evidence from a psychologist and
from seven character witnesses who testified that he did not

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
471 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
have a reputation for racial bias. He also took the stand
himself, explaining that the incident was an unintended con-
sequence 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 de-
scribed. The judge, however, found the police officer’s testi-
mony credible, and concluded that the evidence supported a
finding “that the crime was motivated by racial bias.” App.
to Pet. for Cert. 143a. Having found “by a preponderance
of the evidence” that Apprendi’s actions were taken “with a
purpose to intimidate” as provided by the statute, id., at
138a, 139a, 144a, the trial judge held that the hate crime
enhancement applied. Rejecting Apprendi’s constitutional
challenge to the statute, the judge sentenced him to a 12-
year term of imprisonment on count 18, and to shorter con-
current sentences on the other two counts.
Apprendi appealed, arguing, inter alia, that the Due Proc-
ess Clause of the United States Constitution requires that
the finding of bias upon which his hate crime sentence was
based must be proved to a jury beyond a reasonable doubt,
In re Winship, 397 U. S. 358 (1970). Over dissent, the Ap-
pellate 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. Pennsylva-
nia, 477 U. S. 79 (1986), the appeals court found that the
state legislature decided to make the hate crime enhance-
ment a “sentencing factor,” rather than an element of an un-
derlying 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 substan-
tive offense.’ ” 304 N. J. Super., at 154, 698 A. 2d, at 1269
(quoting McMillan, 477 U. S., at 88). Characterizing the re-
quired finding as one of “motive,” the court described it as a
traditional “sentencing factor,” one not considered an “essen-

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
472 APPRENDI v. NEW JERSEY
Opinion of the Court
tial element” of any crime unless the legislature so provides.
304 N. J. Super., at 158, 698 A. 2d, at 1270. While recogniz-
ing that the hate crime law did expose defendants to
“ ‘greater and additional punishment,’ ” id., at 156, 698 A. 2d,
at 1269 (citing McMillan, 477 U. S., at 88), the court held
that that “one factor standing alone” was not sufficient to
render the statute unconstitutional, 304 N. J. Super., at 156,
698 A. 2d, at 1269.
A divided New Jersey Supreme Court affirmed. 159 N. J.
7, 731 A. 2d 485 (1999). The court began by explaining that
while due process only requires the State to prove the “ele-
ments” of an offense beyond a reasonable doubt, the mere
fact that a state legislature has placed a criminal component
“within the sentencing provisions” of the criminal code “does
not mean that the finding of a biased purpose to intimidate
is not an essential element of the offense.” Id., at 20, 731
A. 2d, at 492. “Were that the case,” the court continued,
“the Legislature could just as easily allow judges, not juries,
to determine if a kidnapping victim has been released un-
harmed.” Ibid. (citing state precedent requiring such a
finding to be submitted to a jury and proved beyond a rea-
sonable doubt). Neither could the constitutional question be
settled simply by defining the hate crime statute’s “purpose
to intimidate” as “motive” and thereby excluding the provi-
sion from any traditional conception of an “element” of a
crime. Even if one could characterize the language this
way—and the court doubted that such a characterization was
accurate—proof of motive did not ordinarily “increase the
penal consequences to an actor.” Ibid. Such “[l]abels,” the
court concluded, would not yield an answer to Apprendi’s
constitutional question. Ibid.
While noting that we had just last year expressed serious
doubt concerning the constitutionality of allowing penalty-
enhancing findings to be determined by a judge by a prepon-
derance of the evidence, Jones v. United States, 526 U. S.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
473 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
227 (1999), the court concluded that those doubts were not
essential to our holding. Turning then, as the appeals court
had, to McMillan, as well as to Almendarez-Torres v. United
States, 523 U. S. 224 (1998), the court undertook a multifactor
inquiry and then held that the hate crime provision was
valid. In the majority’s view, the statute did not allow im-
permissible burden shifting, and did not “create a separate
offense calling for a separate penalty.” 159 N. J., at 24, 731
A. 2d, at 494. Rather, “the Legislature simply took one fac-
tor that has always been considered by sentencing courts to
bear on punishment and dictated the weight to be given that
factor.” Ibid., 731 A. 2d, at 494–495. As had the appeals
court, the majority recognized that the state statute was un-
like that in McMillan inasmuch as it increased the maximum
penalty to which a defendant could be subject. But it was
not clear that this difference alone would “change the consti-
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 vin-
dicating 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] de-
fendant’s mental state in committing the subject offense . . .
necessarily involves a finding so integral to the charged of-
fense that it must be characterized as an element thereof ”;
and (2) “the significantly increased sentencing range trig-
gered 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.”

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
474 APPRENDI v. NEW JERSEY
Opinion of the Court
Id., at 30, 731 A. 2d, at 498. In the dissent’s view, the facts
increasing sentences in both Almendarez-Torres (recidivism)
and Jones (serious bodily injury) were quite distinct from
New Jersey’s required finding of purpose here; the latter
finding turns directly on the conduct of the defendant during
the crime and defines a level of culpability necessary to form
the hate crime offense. While acknowledging “analytical
tensions” in this Court’s post-Winship jurisprudence, the
dissenters concluded that “there can be little doubt that the
sentencing factor applied to this defendant—the purpose to
intimidate a victim because of race—must fairly be regarded
as an element of the crime requiring inclusion in the indict-
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 as-
pects of the case are not relevant to the narrow issue that
we must resolve. First, the State has argued that even
without the trial judge’s finding of racial bias, the judge
could have imposed consecutive sentences on counts 3 and 18
that would have produced the 12-year term of imprisonment
that Apprendi received; Apprendi’s actual sentence was thus
within the range authorized by statute for the three offenses
to which he pleaded guilty. Brief for Respondent 4. The
constitutional question, however, is whether the 12-year
sentence imposed on count 18 was permissible, given that
it was above the 10-year maximum for the offense charged
in that count. The finding is legally significant because it
increased—indeed, it doubled—the maximum range within
which the judge could exercise his discretion, converting
what otherwise was a maximum 10-year sentence on that
count into a minimum sentence. The sentences on counts 3
and 22 have no more relevance to our disposition than the
dismissal of the remaining 18 counts.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
475 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
Second, although the constitutionality of basing an en-
hanced sentence on racial bias was argued in the New Jersey
courts, that issue was not raised here.1 The substantive
basis for New Jersey’s enhancement is thus not at issue; the
adequacy of New Jersey’s procedure is. The strength of the
state interests that are served by the hate crime legislation
has no more bearing on this procedural question than the
strength of the interests served by other provisions of the
criminal code.
Third, we reject the suggestion by the State Supreme
Court that “there is rarely any doubt” concerning the exist-
ence of the biased purpose that will support an enhanced
sentence, 159 N. J., at 25, 731 A. 2d, at 495. In this very
case, that issue was the subject of the full evidentiary hear-
ing 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 iden-
tity of the factfinder.
Fourth, because there is no ambiguity in New Jersey’s
statutory scheme, this case does not raise any question con-
cerning the State’s power to manipulate the prosecutor’s
burden of proof by, for example, relying on a presumption
rather than evidence to establish an element of an offense,
cf. Mullaney v. Wilbur, 421 U. S. 684 (1975); Sandstrom v.
Montana, 442 U. S. 510 (1979), or by placing the affirmative
defense label on “at least some elements” of traditional
crimes, Patterson v. New York, 432 U. S. 197, 210 (1977).
The prosecutor did not invoke any presumption to buttress
the evidence of racial bias and did not claim that Apprendi
had the burden of disproving an improper motive. The
question whether Apprendi had a constitutional right to
1 We have previously rejected a First Amendment challenge to an
enhanced sentence based on a jury finding that the defendant had in-
tentionally selected his victim because of the victim’s race. Wisconsin
v. Mitchell, 508 U. S. 476, 480 (1993).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
476 APPRENDI v. NEW JERSEY
Opinion of the Court
have a jury find such bias on the basis of proof beyond a
reasonable doubt is starkly presented.
Our answer to that question was foreshadowed by our
opinion in Jones v. United States, 526 U. S. 227 (1999), con-
struing 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, sub-
mitted 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.
III
In his 1881 lecture on the criminal law, Oliver Wendell
Holmes, Jr., observed: “The law threatens certain pains if
you do certain things, intending thereby to give you a new
motive for not doing them. If you persist in doing them,
it has to inflict the pains in order that its threats may 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 pur-
pose to intimidate them because of their race. As a matter
of simple justice, it seems obvious that the procedural safe-
guards designed to protect Apprendi from unwarranted
pains should apply equally to the two acts that New Jersey
has singled out for punishment. Merely using the label
“sentence enhancement” to describe the latter surely does
not provide a principled basis for treating them differently.
At stake in this case are constitutional protections of
surpassing importance: the proscription of any deprivation
of liberty without “due process of law,” Amdt. 14, and the
guarantee that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an im-
2 O. Holmes, The Common Law 40 (M. Howe ed. 1963).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
477 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
partial jury,” Amdt. 6.3 Taken together, these rights in-
disputably entitle a criminal defendant to “a jury determi-
nation that [he] is guilty of every element of the crime with
which he is charged, beyond a reasonable doubt.” United
States v. Gaudin, 515 U. S. 506, 510 (1995); see also Sullivan
v. Louisiana, 508 U. S. 275, 278 (1993); Winship, 397 U. S., at
364 (“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he
is charged”).
As we have, unanimously, explained, Gaudin, 515 U. S.,
at 510–511, the historical foundation for our recognition of
these principles extends down centuries into the common
law. “[T]o guard against a spirit of oppression and tyranny
on the part of rulers,” and “as the great bulwark of [our]
civil and political liberties,” 2 J. Story, Commentaries on the
Constitution of the United States 540–541 (4th ed. 1873),
trial by jury has been understood to require that “the truth
of every accusation, whether preferred in the shape of
indictment, information, or appeal, should afterwards be
confirmed by the unanimous suffrage of twelve of [the de-
fendant’s] equals and neighbours . . . .” 4 W. Blackstone,
Commentaries on the Laws of England 343 (1769) (here-
inafter Blackstone) (emphasis added). See also Duncan v.
Louisiana, 391 U. S. 145, 151–154 (1968).
3 Apprendi 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. Loui-
siana, 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 construed to include the
Fifth Amendment right to “presentment or indictment 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 ques-
tion separately today.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
478 APPRENDI v. NEW JERSEY
Opinion of the Court
Equally well founded is the companion right to have the
jury verdict based on proof beyond a reasonable doubt.
“The ‘demand for a higher degree of persuasion in criminal
cases was recurrently expressed from ancient times, [though]
its crystallization into the formula “beyond a reasonable
doubt” seems to have occurred as late as 1798. It is now
accepted in common law jurisdictions as the measure of per-
suasion by which the prosecution must convince the trier of
all the essential elements of guilt.’ C. McCormick, Evidence
§ 321, pp. 681–682 (1954); see also 9 J. Wigmore, Evidence
§ 2497 (3d ed. 1940).” Winship, 397 U. S., at 361. We went
on to explain that the reliance on the “reasonable doubt”
standard among common-law jurisdictions “ ‘reflect[s] a pro-
found judgment about the way in which law should be en-
forced and justice administered.’ ” Id., at 361–362 (quoting
Duncan, 391 U. S., at 155).
Any possible distinction between an “element” of a felony
offense and a “sentencing factor” was unknown to the prac-
tice of criminal indictment, trial by jury, and judgment by
court 4 as it existed during the years surrounding our Na-
tion’s founding. As a general rule, criminal proceedings
were submitted to a jury after being initiated by an in-
dictment containing “all the facts and circumstances which
constitute the offence, . . . stated with such certainty and
precision, that the defendant . . . may be enabled to deter-
mine the species of offence they constitute, in order that he
may prepare his defence accordingly . . . and that there may
be no doubt as to the judgment which should be given, if the
defendant be convicted.” J. Archbold, Pleading and Evi-
dence in Criminal Cases 44 (15th ed. 1862) (emphasis added).
The defendant’s ability to predict with certainty the judg-
ment from the face of the felony indictment flowed from the
invariable linkage of punishment with crime. See 4 Black-
4 “[A]fter 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.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
479 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
stone 369–370 (after verdict, and barring a defect in the in-
dictment, 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 conduct,
“the English trial judge of the later eighteenth century had
very little explicit discretion in sentencing. The substantive
criminal law tended to be sanction-specific; it prescribed a
particular sentence for each offense. The judge was meant
simply to impose that sentence (unless he thought in the
circumstances that the sentence was so inappropriate that
he should invoke the pardon process to commute it).” Lang-
bein, 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 judg-
5 As 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 associated with the
offense seemed to them disproportionate to the seriousness of the conduct
of the particular defendant. Id., at 245 (“This power to thwart Parlia-
ment 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 in-
cluded 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 Black-
stone’s third volume, rather than his fourth, post, at 525–526 (opinion of
O’Connor, J.), 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 3 id., at 379 (“Upon these accounts the trial by jury ever 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 regulating civil prop-
erty, 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 danger, 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 individ-
ual and another, to settle the metes and boundaries of private property”);

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
480 APPRENDI v. NEW JERSEY
Opinion of the Court
ment, though pronounced or awarded by the judges, is not
their determination or sentence, but the determination and
sentence of the law.” 3 Blackstone 396 (emphasis deleted).7
This practice at common law held true when indictments
were issued pursuant to statute. Just as the circumstances
of the crime and the intent of the defendant at the time of
commission were often essential elements to be alleged in
the indictment, so too were the circumstances mandating a
particular punishment. “Where a statute annexes a higher
degree of punishment to a common-law felony, if committed
under particular circumstances, an indictment for the of-
fence, in order to bring the defendant within that higher de-
gree of punishment, must expressly charge it to have been
committed under those circumstances, and must state the
circumstances with certainty and precision. [2 M. Hale,
Pleas of the Crown *170].” Archbold, Pleading and Evi-
dence in Criminal Cases, at 51. If, then, “upon an indict-
ment under the statute, the prosecutor prove the felony to
have been committed, but fail in proving it to have been com-
mitted under the circumstances specified in the statute, the
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 criminal suits; indictments, informations, and appeals”).
7 The common law of punishment for misdemeanors—those “smaller
faults, and omissions of less consequence,” 4 id., at 5—was, as we noted in
Jones, 526 U. S., at 244, substantially more dependent upon judicial discre-
tion. 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 misdemeanants. J. Baker, Intro-
duction 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. Cock-
burn ed. 1977).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
481 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
defendant shall be convicted of the common-law felony only.”
Id., at 188.8
We should be clear that nothing in this history suggests
that it is impermissible for judges to exercise discretion—
taking into consideration various factors relating both to
offense and offender—in imposing a judgment within the
range prescribed by statute. We have often noted that
judges in this country have long exercised discretion of this
nature in imposing sentence within statutory limits in the
individual case. See, e. g., Williams v. New York, 337 U. S.
241, 246 (1949) (“[B]oth before and since the American colo-
nies 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 evi-
dence used to assist him in determining the kind and extent
of punishment to be imposed within limits fixed by law”
(emphasis added)). As in Williams, our periodic recognition
of judges’ broad discretion in sentencing—since the 19th-
century shift in this country from statutes providing fixed-
term sentences to those providing judges discretion within
a permissible range, Note, The Admissibility of Character
Evidence in Determining Sentence, 9 U. Chi. L. Rev. 715
(1942)—has been regularly accompanied by the qualification
that that discretion was bound by the range of sentencing
options prescribed by the legislature. See, e. g., United
States v. Tucker, 404 U. S. 443, 447 (1972) (agreeing that
“[t]he Government is also on solid ground in asserting that a
8 To the extent the principal dissent appears to take issue with our re-
liance on Archbold (among others) as an authoritative source on the com-
mon law of the relevant period, post, at 525, 526, 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 es-
sential 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. Hanbury eds. 1952).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
482 APPRENDI v. NEW JERSEY
Opinion of the Court
sentence imposed by a federal district judge, if within statu-
tory limits, is generally not subject to review” (emphasis
added)); Williams, 337 U. S., at 246, 247 (explaining that, in
contrast to the guilt stage of trial, the judge’s task in sen-
tencing is to determine, “within fixed statutory or constitu-
tional limits[,] the type and extent of punishment after the
issue of guilt” has been resolved).9
The historic link between verdict and judgment and the
consistent limitation on judges’ discretion to operate within
the limits of the legal penalties provided highlight the
novelty of a legislative scheme that removes the jury from
9 See 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 discretion” (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 545–546, 547, fails
to acknowledge the significance of the Court’s caveat that judges’ discre-
tion is constrained by the “limits fixed by law.” Nothing in Williams
implies that a judge may impose a more severe sentence than the maxi-
mum authorized by the facts found by the jury. Indeed, the commenta-
tors cited in the dissent recognize precisely this same limitation. See
post, at 544–545 (quoting K. Stith & J. Cabranes, Fear of Judging: Sentenc-
ing Guidelines in the Federal Courts 9 (1998) (“From the beginning of the
Republic, federal judges were entrusted with wide sentencing discre-
tion . . . , permitting the sentencing judge to impose any term of imprison-
ment and any fine up to the statutory maximum” (emphasis added));
Lynch, Towards A Model Penal Code, Second (Federal?), 2 Buffalo Crim.
L. Rev. 297, 320 (1998) (noting that judges in discretionary sentencing took
account of facts relevant to a particular offense “within the spectrum of
conduct covered by the statute of conviction”)).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
483 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
the determination of a fact that, if found, exposes the crimi-
nal 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 prin-
ciples 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 reason-
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 524, the
principal dissent cites three cases decided within the past quarter century;
and each of these is plainly distinguishable. Rather than offer any histori-
cal account of its own that would support the notion of a “sentencing fac-
tor” legally increasing punishment beyond the statutory maximum—and
Justice 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 punishment was, by law, tied to
the offense (enabling the defendant to discern, barring pardon or clergy,
his punishment from the face of the indictment), and the evidence that
American judges have exercised sentencing 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 sen-
tencing is constrained at its outer limits by the facts alleged in the in-
dictment 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.
11 As we stated in Jones: “One contributor to the ratification debates, for
example, commenting on the jury trial guarantee in Art. III, § 2, echoed
Blackstone in warning of the need ‘to guard with the most jealous circum-
spection 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.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
484 APPRENDI v. NEW JERSEY
Opinion of the Court
able doubt. As we made clear in Winship, the “reasonable
doubt” requirement “has [a] vital role in our criminal proce-
dure for cogent reasons.” 397 U. S., at 363. Prosecution
subjects the criminal defendant both to “the possibility that
he may lose his liberty upon conviction and . . . the certainty
that he would be stigmatized by the conviction.” Ibid. We
thus require this, among other, procedural protections in
order to “provid[e] concrete substance for the presumption
of innocence,” and to reduce the risk of imposing such depri-
vations erroneously. Ibid. If a defendant faces punishment
beyond that provided by statute when an offense is com-
mitted under certain circumstances but not others, it is obvi-
ous that both the loss of liberty and the stigma attaching to
the offense are heightened; it necessarily follows that the
defendant should not—at the moment the State is put to
proof of those circumstances—be deprived of protections
that have, until that point, unquestionably attached.
Since Winship, we have made clear beyond peradventure
that Winship’s due process and associated jury protections
extend, to some degree, “to determinations that [go] not to
a defendant’s guilt or innocence, but simply to the length
of his sentence.” Almendarez-Torres, 523 U. S., at 251
(Scalia, J., dissenting). This was a primary lesson of Mul-
laney v. Wilbur, 421 U. S. 684 (1975), in which we invalidated
a Maine statute that presumed that a defendant who acted
with an intent to kill possessed the “malice aforethought”
necessary to constitute the State’s murder offense (and
therefore, was subject to that crime’s associated punishment
of life imprisonment). The statute placed the burden on the
defendant of proving, in rebutting the statutory presump-
tion, 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 de-
fendant to prove heat-of-passion intent to overcome a pre-

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
485 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
sumption of murderous intent did not implicate Winship
protections because, upon conviction of either offense, the
defendant would lose his liberty and face societal stigma
just the same. Rejecting this argument, we acknowledged
that criminal law “is concerned not only with guilt or in-
nocence in the abstract, but also with the degree of crimi-
nal 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 pos-
sibility that a State could circumvent the protections of
Winship merely by “redefin[ing] the elements that constitute
different crimes, characterizing them as factors that bear
solely on the extent of punishment.” 421 U. S., at 698.12
IV
It was in McMillan v. Pennsylvania, 477 U. S. 79 (1986),
that this Court, for the first time, coined the term “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 Man-
12 Contrary to the principal dissent’s suggestion, post, at 530–532, Pat-
terson 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 defend-
ants to raise and prove extreme emotional distress as an affirmative de-
fense to murder, Patterson made clear that the state law still required the
State to prove every element of that State’s 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 affirmative 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 constitu-
tional limits beyond which the States may not go in this regard.” Id.,
at 210.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
486 APPRENDI v. NEW JERSEY
Opinion of the Court
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 pos-
sessed a firearm” in the course of committing one of the spec-
ified felonies. 477 U. S., at 81–82. Articulating for the first
time, and then applying, a multifactor set of criteria for de-
termining whether the Winship protections applied to bar
such a system, we concluded that the Pennsylvania statute
did not run afoul of our previous admonitions against re-
lieving the State of its burden of proving guilt, or tailoring
the mere form of a criminal statute solely to avoid Winship’s
strictures. 477 U. S., at 86–88.
We did not, however, there budge from the position that
(1) constitutional limits exist to States’ authority to define
away facts necessary to constitute a criminal offense, id., at
85–88, and (2) that a state scheme that keeps from the jury
facts that “expos[e] [defendants] to greater or additional pun-
ishment,” id., at 88, may raise serious constitutional concern.
As we explained:
“Section 9712 neither alters the maximum penalty for
the crime committed nor creates a separate offense
calling for a separate penalty; it operates solely to limit
the sentencing court’s discretion in selecting a penalty
within the range already available to it without the spe-
cial finding of visible possession of a firearm. . . . The
statute gives no impression of having been tailored to
permit the visible possession finding to be a tail which
wags the dog of the substantive offense. Petitioners’
claim that visible possession under the Pennsylvania
statute is ‘really’ an element of the offenses for which
they are being punished—that Pennsylvania has in ef-
fect defined a new set of upgraded felonies—would have
at least more superficial appeal if a finding of visible pos-
session exposed them to greater or additional punish-

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
487 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
ment, cf. 18 U. S. C. § 2113(d) (providing separate and
greater punishment for bank robberies accomplished
through ‘use of a dangerous weapon or device’), but it
does not.” Id., at 87–88.13
Finally, as we made plain in Jones last Term, Almendarez-
Torres v. United States, 523 U. S. 224 (1998), represents at
best an exceptional departure from the historic practice that
we have described. In that case, we considered a federal
grand jury indictment, which charged the petitioner with
“having been ‘found in the United States . . . after being
deported,’ ” in violation of 8 U. S. C. § 1326(a)—an offense
carrying a maximum sentence of two years. 523 U. S., at
227. Almendarez-Torres pleaded guilty to the indictment,
admitting at the plea hearing that he had been deported,
that he had unlawfully reentered this country, and that
“the earlier deportation had taken place ‘pursuant to’
three earlier ‘convictions’ for aggravated felonies.” Ibid.
The Government then filed a presentence report indicating
that Almendarez-Torres’ offense fell within the bounds of
§ 1326(b) because, as specified in that provision, his original
deportation had been subsequent to an aggravated felony
conviction; accordingly, Almendarez-Torres could be sub-
ject to a sentence of up to 20 years. Almendarez-Torres
objected, contending that because the indictment “had not
mentioned his earlier aggravated felony convictions,” he
could be sentenced to no more than two years in prison.
Ibid.
13 The principal dissent accuses us of today “overruling McMillan.”
Post, at 533. 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.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
488 APPRENDI v. NEW JERSEY
Opinion of the Court
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 stric-
tures of Winship in that case. Because Almendarez-Torres
had admitted the three earlier convictions for aggravated
felonies—all of which had been entered pursuant to proceed-
ings with substantial procedural safeguards of their own—
no question concerning the right to a jury trial or the stand-
ard of proof that would apply to a contested issue of fact was
before the Court. Although our conclusion in that case was
based in part on our application of the criteria we had in-
voked in McMillan, the specific question decided concerned
the sufficiency of the indictment. More important, as Jones
made crystal clear, 526 U. S., at 248–249, our conclusion in
Almendarez-Torres turned heavily upon the fact that the ad-
ditional 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 tra-
ditional, if not the most traditional, basis for a sentencing
court’s increasing an offender’s sentence”); id., at 244 (em-
phasizing “the fact that recidivism ‘does not relate to the
commission of the offense . . .’ ”); Jones, 526 U. S., at 249–250,
n. 10 (“The majority and the dissenters in Almendarez-
Torres disagreed over the legitimacy of the Court’s decision
to restrict its holding to recidivism, but both sides agreed
that the Court had done just that”). Both the certainty that
procedural safeguards attached to any “fact” of prior convic-
tion, and the reality that Almendarez-Torres did not chal-
lenge the accuracy of that “fact” in his case, mitigated the
due process and Sixth Amendment concerns otherwise impli-
cated in allowing a judge to determine a “fact” increasing
punishment beyond the maximum of the statutory range.14
14 The principal dissent’s contention that our decision in Monge v. Cali-
fornia, 524 U. S. 721 (1998), “demonstrates that Almendarez-Torres was”
something other than a limited exception to the jury trial rule is both

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
489 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
Even though it is arguable that Almendarez-Torres was
incorrectly decided,15 and that a logical application of our
reasoning today should apply if the recidivist issue were
inaccurate and misleading. Post, at 536. 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 enhancement 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
Court’s holding, post, at 536, 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 Court’s proposition that “the Court
has rejected” such a rule was none other than Almendarez-Torres; as we
have explained, that case simply cannot bear that broad reading. Most
telling of Monge’s 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 defendant 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 sur-
round the assessment of prior conviction allegations: Defendants may in-
voke the right to a jury trial . . . ; the prosecution must prove the allega-
tions 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 proce-
dural protections.” Id., at 734.
15 In addition to the reasons set forth in Justice Scalia’s 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): “[T]he 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

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
490 APPRENDI v. NEW JERSEY
Opinion of the Court
contested, Apprendi does not contest the decision’s validity
and we need not revisit it for purposes of our decision today
to treat the case as a narrow exception to the general rule
we recalled at the outset. Given its unique facts, it surely
does not warrant rejection of the otherwise uniform course
of decision during the entire history of our jurisprudence.
In sum, our reexamination of our cases in this area, and
of the history upon which they rely, confirms the opinion that
we expressed in Jones. Other than the fact of a prior con-
viction, any fact that increases the penalty for a crime be-
yond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt. With that
exception, we endorse the statement of the rule set forth in
the concurring opinions in that case: “[I]t is unconstitutional
for a legislature to remove from the jury the assessment of
facts that increase the prescribed range of penalties to which
a criminal defendant is exposed. It is equally clear that
such facts must be established by proof beyond a reasonable
doubt.” 526 U. S., at 252–253 (opinion of Stevens, J.); see
also id., at 253 (opinion of Scalia, J.). 16
the atmosphere which surrounds us. 1 Bishop, Cr. Pro., 2d ed., sect. 81;
Archbold’s Crim. Plead., 15th ed., 54; 1 Stark Crim. Plead., 236; 1 Am. Cr.
Law, 6th rev. ed., sect. 364; Steel v. Smith, 1 Barn. & Ald. 99.”
16 The principal dissent would reject the Court’s rule as a “meaningless
formalism,” because it can conceive of hypothetical statutes that would
comply with the rule and achieve the same result as the New Jersey stat-
ute. Post, at 539–542. While a State could, hypothetically, undertake to
revise its entire criminal code in the manner the dissent suggests, post, at
540—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 ex-
ample, weapons possession, to a maximum sentence exceeding that which
is, in the legislature’s judgment, 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 consequences, unable to mask substantive policy choices”

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
491 Cite as: 530 U. S. 466 (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 reason-
able doubt that he unlawfully possessed a prohibited weapon;
after a subsequent and separate proceeding, it then allows a
judge to impose punishment identical to that New Jersey
provides for crimes of the first degree, N. J. Stat. Ann.
§ 2C:43–6(a)(1) (West 1999), based upon the judge’s finding,
by a preponderance of the evidence, that the defendant’s
“purpose” for unlawfully possessing the weapon was “to in-
timidate” his victim on the basis of a particular characteristic
the victim possessed. In light of the constitutional rule ex-
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 criminal
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 requiring a
defendant to prove that it was not, post, at 542), we would be required to
question whether the revision was constitutional under this Court’s prior
decisions. See Patterson, 432 U. S., at 210; Mullaney v. Wilbur, 421 U. S.
684, 698–702 (1975).
Finally, the principal dissent ignores the distinction the Court has often
recognized, see, e. g., Martin v. Ohio, 480 U. S. 228 (1987), between facts
in aggravation of punishment and facts in mitigation. See post, at 541–
542. 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 maxi-
mum sentence provided by the murder statute. If the defendant can es-
cape 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 expos-
ing 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.
Core concerns animating the jury and burden-of-proof requirements are
thus absent from such a scheme.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
492 APPRENDI v. NEW JERSEY
Opinion of the Court
plained above, and all of the cases supporting it, this practice
cannot stand.
New Jersey’s defense of its hate crime enhancement stat-
ute has three primary components: (1) The required finding
of biased purpose is not an “element” of a distinct hate crime
offense, but rather the traditional “sentencing factor” of mo-
tive; (2) McMillan holds that the legislature can authorize a
judge to find a traditional sentencing factor on the basis of a
preponderance of the evidence; and (3) Almendarez-Torres
extended McMillan’s holding to encompass factors that au-
thorize a judge to impose a sentence beyond the maximum
provided by the substantive statute under which a defendant
is charged. None of these persuades us that the constitu-
tional 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 disagree-
ment with the rule we apply today. Beyond this, we do not
see how the argument can succeed on its own terms. The
state high court evinced substantial skepticism at the sug-
gestion that the hate crime statute’s “purpose to intimidate”
was simply an inquiry into “motive.” We share that skepti-
cism. The text of the statute requires the factfinder to de-
termine whether the defendant possessed, at the time he
committed the subject act, a “purpose to intimidate” on ac-
count of, inter alia, race. By its very terms, this statute
mandates an examination of the defendant’s state of mind—
a concept known well to the criminal law as the defendant’s
mens rea.17 It makes no difference in identifying the nature
17 Among the most common definitions of mens rea is “criminal intent.”
Black’s Law Dictionary 1137 (rev. 4th ed. 1968). That dictionary unsur-
prisingly 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 Jersey’s 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, “[a] person acts purposely with respect
to the nature of his conduct or a result thereof if it is his conscious object

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
493 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
of this finding that Apprendi was also required, in order to
receive the sentence he did for weapons possession, to have
possessed the weapon with a “purpose to use [the weapon]
unlawfully against the person or property of another,”
§ 2C:39–4(a). A second mens rea requirement hardly de-
feats the reality that the enhancement statute imposes of its
own force an intent requirement necessary for the imposi-
tion of sentence. On the contrary, the fact that the language
and structure of the “purpose to use” criminal offense is
identical in relevant respects to the language and struc-
ture of the “purpose to intimidate” provision demonstrates
to us that it is precisely a particular criminal mens rea that
the hate crime enhancement statute seeks to target. The
defendant’s intent in committing a crime is perhaps as
close as one might hope to come to a core criminal offense
“element.” 18
to engage in conduct of that nature or to cause such a result.” N. J. Stat.
Ann. § 2C:2–2(b)(1) (West 1999). The hate crime statute’s application to
those who act “with a purpose to intimidate because of ” certain status-
based characteristics places it squarely within the inquiry whether it was
a defendant’s “conscious object” to intimidate for that reason.
18 Whatever the effect of the State Supreme Court’s 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
law’s “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 response
to this interpretation only that our reading is contrary to “settled prece-
dent” in Mitchell. Post, at 553. Setting aside the fact that Wisconsin’s
hate crime statute was, in text and substance, different from New Jersey’s,
Mitchell did not even begin to consider whether the Wisconsin hate crime

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
494 APPRENDI v. NEW JERSEY
Opinion of the Court
The foregoing notwithstanding, however, the New Jersey
Supreme Court correctly recognized that it does not matter
whether the required finding is characterized as one of in-
tent or of motive, because “[l]abels do not afford an ac-
ceptable answer.” 159 N. J., at 20, 731 A. 2d, at 492. That
point applies as well to the constitutionally novel and elu-
sive distinction between “elements” and “sentencing fac-
tors.” McMillan, 477 U. S., at 86 (noting that the sentenc-
ing factor—visible possession of a firearm—“might well have
been included as an element of the enumerated offenses”).
Despite what appears to us the clear “elemental” nature of
the factor here, the relevant inquiry is one not of form,
but of effect—does the required finding expose the defendant
to a greater punishment than that authorized by the jury’s
guilty verdict? 19
As the New Jersey Supreme Court itself understood in
rejecting the argument that the required “motive” finding
was simply a “traditional” sentencing factor, proof of motive
did not ordinarily “increase the penal consequences to an
actor.” 159 N. J., at 20, 731 A. 2d, at 492. Indeed, the effect
of New Jersey’s sentencing “enhancement” here is unques-
tionably to turn a second-degree offense into a first-degree
offense, under the State’s own criminal code. The law thus
runs directly into our warning in Mullaney that Winship is
requirement was an offense “element” or not; it did not have to—the
required finding under the Wisconsin statute was made by the jury.
19 This 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 defend-
ant is guilty of a particular offense. On the other hand, when the term
“sentence enhancement” is used to describe an increase beyond the maxi-
mum 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. Indeed, it fits squarely within the usual definition of an “ele-
ment” of the offense. See post, at 501–502 (Thomas, J., concurring) (re-
viewing the relevant authorities).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
495 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
concerned as much with the category of substantive offense
as “with the degree of criminal culpability” assessed. 421
U. S., at 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 crimi-
nal culpability the legislature chooses to associate with par-
ticular, factually distinct conduct has significant implications
both for a defendant’s very liberty, and for the heightened
stigma associated with an offense the legislature has selected
as worthy of greater punishment.
The preceding discussion should make clear why the State’s
reliance on McMillan is likewise misplaced. The differential
in sentence between what Apprendi would have received
without the finding of biased purpose and what he could re-
ceive with it is not, it is true, as extreme as the difference
between a small fine and mandatory life imprisonment.
Mullaney, 421 U. S., at 700. But it can hardly be said that
the potential doubling of one’s sentence—from 10 years to
20—has no more than a nominal effect. Both in terms of
absolute years behind bars, and because of the more severe
stigma attached, the differential here is unquestionably of
constitutional significance. When a judge’s finding based
on a mere preponderance of the evidence authorizes an in-
crease in the maximum punishment, it is appropriately char-
acterized 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 of-
fense 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 provi-
sions” of the criminal code “does not mean that the finding
of a biased purpose to intimidate is not an essential element
of the offense.” 159 N. J., at 20, 731 A. 2d, at 492. Indeed,

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
496 APPRENDI v. NEW JERSEY
Opinion of the Court
the fact that New Jersey, along with numerous other States,
has also made precisely the same conduct the subject of an
independent substantive offense makes it clear that the mere
presence of this “enhancement” in a sentencing statute does
not define its character.20
New Jersey’s reliance on Almendarez-Torres is also 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 Jersey’s biased purpose inquiry goes pre-
cisely to what happened in the “commission of the offense.”
Moreover, there is a vast difference between accepting the
validity of a prior judgment of conviction entered in a pro-
ceeding 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 re-
quired fact under a lesser standard of proof.
Finally, this Court has previously considered and rejected
the argument that the principles guiding our decision today
render invalid state capital sentencing schemes requiring
judges, after a jury verdict holding a defendant guilty of a
capital crime, to find specific aggravating factors before im-
posing a sentence of death. Walton v. Arizona, 497 U. S.
639, 647–649 (1990); id., at 709–714 (Stevens, J., dissenting).
For reasons we have explained, the capital cases are not
controlling:
20 Including 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 of-
fense [of harassment] under this section, he acted with a purpose to intimi-
date 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 freestanding viola-
tions of the criminal law, see generally F. Lawrence, Punishing Hate: Bias
Crimes Under American Law 178–189 (1999) (listing current state hate
crime laws).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
497 Cite as: 530 U. S. 466 (2000)
Opinion of the Court
“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 max-
imum penalty the sentence of death, it may be left to
the judge to decide whether that maximum penalty,
rather than a lesser one, ought to be imposed . . . . The
person who is charged with actions that expose him to
the death penalty has an absolute entitlement to jury
trial on all the elements of the charge.” Almendarez-
Torres, 523 U. S., at 257, n. 2 (Scalia, J., dissenting) (em-
phasis deleted).
See also Jones, 526 U. S., at 250–251; post, at 520–522
(Thomas, J., concurring).21
* * *
The New Jersey procedure challenged in this case is an
unacceptable departure from the jury tradition that is an
indispensable part of our criminal justice system. Accord-
ingly, 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.
21 The principal dissent, in addition, treats us to a lengthy disquisition
on the benefits of determinate sentencing schemes, and the effect of to-
day’s decision on the federal Sentencing Guidelines. Post, at 544–552.
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
Breyer, J., for a unanimous court) (noting that “[o]f course, petitioners’
statutory and constitutional claims would make a difference if it were pos-
sible 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 Commission, Guidelines
Manual § 5G1.1 (Nov. 1994)]”).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
498 APPRENDI v. NEW JERSEY
Scalia, J., concurring
Justice Scalia, concurring.
I feel the need to say a few words in response to Justice
Breyer’s dissent. It sketches an admirably fair and 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 State—and an increasingly bureaucratic part of it, at
that.) The founders of the American Republic were not pre-
pared to leave it to the State, which is why the jury-trial
guarantee was one of the least controversial provisions of
the Bill of Rights. It has never been efficient; but it has
always been free.
As for fairness, which Justice Breyer believes “[i]n mod-
ern times,” post, at 555, the jury cannot provide: I think it
not unfair to tell a prospective felon that if he commits his
contemplated crime he is exposing himself to a jail sentence
of 30 years—and that if, upon conviction, he gets anything
less than that he may thank the mercy of a tenderhearted
judge ( just as he may thank the mercy of a tenderhearted
parole commission if he is let out inordinately early, or the
mercy of a tenderhearted governor if his sentence is com-
muted). Will there be disparities? Of course. But the
criminal will never get more punishment than he bargained
for when he did the crime, and his guilt of the crime (and
hence the length of the sentence to which he is exposed) will
be determined beyond a reasonable doubt by the unanimous
vote of 12 of his fellow citizens.
In Justice Breyer’s bureaucratic realm of perfect equity,
by contrast, the facts that determine the length of sentence
to which the defendant is exposed will be determined to
exist (on a more-likely-than-not basis) by a single employee
of the State. It is certainly arguable (Justice Breyer
argues it) that this sacrifice of prior protections is worth it.
But it is not arguable that, just because one thinks it is a
better system, it must be, or is even more likely to be, the
system envisioned by a Constitution that guarantees trial
by jury. What ultimately demolishes the case for the dis-

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
499 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
senters is that they are unable to say what the right to
trial by jury does guarantee if, as they assert, it does not
guarantee—what it has been assumed to guarantee through-
out our history—the right to have a jury determine those
facts that determine the maximum sentence the law allows.
They provide no coherent alternative.
Justice Breyer proceeds on the erroneous and all-too-
common assumption that the Constitution means what we
think it ought to mean. It does not; it means what it says.
And the guarantee that “[i]n all criminal prosecutions, the
accused shall enjoy the right to . . . trial, by an impartial
jury,” has no intelligible content unless it means that all the
facts which must exist in order to subject the defendant to
a legally prescribed punishment must be found by the jury.
Justice Thomas, with whom Justice Scalia joins as to
Parts I and II, concurring.
I join the opinion of the Court in full. I write separately
to explain my view that the Constitution requires a broader
rule than the Court adopts.
I
This case turns on the seemingly simple question of what
constitutes a “crime.” Under the Federal Constitution, “the
accused” has the right (1) “to be informed of the nature and
cause of the accusation” (that is, the basis on which he is
accused of a crime), (2) to be “held to answer for a capital,
or otherwise infamous crime” only on an indictment or pre-
sentment of a grand jury, and (3) to be tried by “an impartial
jury of the State and district wherein the crime shall have
been committed.” Amdts. 5 and 6. See also Art. III, § 2,
cl. 3 (“The Trial of all Crimes . . . shall be by Jury”). With
the exception of the Grand Jury Clause, see Hurtado v. Cali-
fornia, 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

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
500 APPRENDI v. NEW JERSEY
Thomas, J., concurring
beyond a reasonable doubt every fact necessary to constitute
the crime. In re Winship, 397 U. S. 358, 364 (1970).
All of these constitutional protections turn on determining
which facts constitute the “crime”—that is, which facts are
the “elements” or “ingredients” of a crime. In order for an
accusation of a crime (whether by indictment or some other
form) to be proper under the common law, and thus proper
under the codification of the common-law rights in the Fifth
and Sixth Amendments, it must allege all elements of that
crime; likewise, in order for a jury trial of a crime to be
proper, all elements of the crime must be proved to the jury
(and, under Winship, proved beyond a reasonable doubt).
See J. Story, Commentaries on the Constitution §§ 928–
929, pp. 660–662, § 934, p. 664 (1833); J. Archbold, Pleading
and Evidence in Criminal Cases *41, *99–*100 (hereinafter
Archbold).1
Thus, it is critical to know which facts are elements. This
question became more complicated following the Court’s
decision in McMillan v. Pennsylvania, 477 U. S. 79 (1986),
which spawned a special sort of fact known as a sentenc-
ing enhancement. See ante, at 478, 485, 494. Such a fact
increases a defendant’s punishment but is not subject to the
constitutional protections to which elements are subject.
Justice O’Connor’s dissent, in agreement with McMillan
and Almendarez-Torres v. United States, 523 U. S. 224
(1998), takes the view that a legislature is free (within un-
specified outer limits) to decree which facts are elements and
which are sentencing enhancements. Post, at 524.
Sentencing enhancements may be new creatures, but the
question that they create for courts is not. Courts have
1 Justice O’Connor mischaracterizes my argument. See post, at 527–
528 (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.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
501 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
long had to consider which facts are elements in order to
determine the sufficiency of an accusation (usually an indict-
ment). The answer that courts have provided regarding the
accusation tells us what an element is, and it is then a simple
matter to apply that answer to whatever constitutional right
may be at issue in a case—here, Winship and the right to
trial by jury. A long line of essentially uniform authority
addressing accusations, and stretching from the earliest re-
ported cases after the founding until well into the 20th cen-
tury, 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 pun-
ishment (in contrast with a fact that mitigates punishment).
Thus, if the legislature defines some core crime and then
provides for increasing the punishment of that crime upon
a finding of some aggravating fact—of whatever sort, in-
cluding 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 pun-
ishment of a crime based on some fact—such as a fine that
is proportional to the value of stolen goods—that fact is
also an element. No multifactor parsing of statutes, of the
sort that we have attempted since McMillan, is necessary.
One need only look to the kind, degree, or range of punish-
ment to which the prosecution is by law entitled for a given
set of facts. Each fact necessary for that entitlement is an
element.
II
A
Cases from the founding to roughly the end of the Civil
War establish the rule that I have described, applying it to

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
502 APPRENDI v. NEW JERSEY
Thomas, J., concurring
all sorts of facts, including recidivism. As legislatures var-
ied common-law crimes and created new crimes, American
courts, particularly from the 1840’s on, readily applied to
these new laws the common-law understanding that a fact
that is by law the basis for imposing or increasing punish-
ment is an element.2
Massachusetts, which produced the leading cases in the
antebellum years, applied this rule as early as 1804, in Com-
monwealth v. Smith, 1 Mass. *245, and foreshadowed the
fuller discussion that was to come. Smith was indicted for
and found guilty of larceny, but the indictment failed to
allege the value of all of the stolen goods. Massachusetts
had abolished the common-law distinction between grand
and simple larceny, replacing it with a single offense of
larceny whose punishment (triple damages) was based on
the value of the stolen goods. The prosecutor relied on this
abolition of the traditional distinction to justify the indict-
ment’s omissions. The court, however, held that it could not
sentence the defendant for the stolen goods whose value was
not set out in the indictment. Id., at *246–*247.
The understanding implicit in Smith was explained in
Hope v. Commonwealth, 50 Mass. 134 (1845). Hope was in-
dicted for and convicted of larceny. The larceny statute at
2 It is strange that Justice O’Connor faults me for beginning my analy-
sis with cases primarily from the 1840’s, rather from the time of the found-
ing. See post, at 527–528 (dissenting opinion). As the Court explains,
ante, at 478–480, and as she concedes, post, at 525 (O’Connor, J., dissent-
ing), the very idea of a sentencing enhancement was foreign to the com-
mon law of the time of the founding. Justice O’Connor therefore, and
understandably, does not contend that any history from the founding sup-
ports 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 increasing 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.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
503 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
issue retained the single-offense structure of the statute
addressed in Smith, and established two levels of sentencing
based on whether the value of the stolen property exceeded
$100. The statute was structured similarly to the statutes
that we addressed in Jones v. United States, 526 U. S. 227,
230 (1999), and, even more, Castillo v. United States, ante,
at 122, 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 of-
fence of larceny,” suggesting, at least from the perspective
of our post-McMillan cases, that larceny was the crime
whereas the value of the stolen property was merely a fact
for sentencing. But the matter was quite simple for the
Massachusetts high court. Value was an element because
punishment varied with value:
“Our statutes, it will be remembered, prescribe the pun-
ishment for larceny, with reference to the value of the
property stolen; and for this reason, as well as because
it is in conformity with long established practice, the
court are of opinion that the value of the property al-
leged to be stolen must be set forth in the indictment.”
50 Mass., at 137.
Two years after Hope, the court elaborated on this rule in a
case involving burglary, stating that if “certain acts are, by
force of the statutes, made punishable with greater severity,
when accompanied with aggravating circumstances,” then
3 The Massachusetts statute provided: “Every person who shall commit
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 imprison-
ment 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 (1836).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
504 APPRENDI v. NEW JERSEY
Thomas, J., concurring
the statute has “creat[ed] two grades of crime.” Larned v.
Commonwealth, 53 Mass. 240, 242 (1847). See also id., at
241 (“[T]here is a gradation of offences of the same species”
where the statute sets out “various degrees of punishment”).
Conversely, where a fact was not the basis for 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 larceny from the per-
son, the court saw no error in the failure of the indictment
to allege any value of the goods that the defendant had at-
tempted to steal. The defendant, in challenging the indict-
ment, apparently relied on Smith and Hope, and the court
rejected his challenge by explaining that “[a]s the punish-
ment . . . does not depend on the amount stolen, there was
no occasion for any allegation as to value in this indictment.”
59 Mass., at 367. See Commonwealth v. Burke, 94 Mass.
182, 183 (1866) (applying same reasoning to completed lar-
ceny from the person; finding no trial error where value was
not proved to jury).
Similar reasoning was employed by the Wisconsin Su-
preme Court in Lacy v. 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 paragraph,
outlawed arson of a dwelling house at night. Arson that
killed someone was punishable by life in prison; arson that
did not kill anyone was punishable by 7 to 14 years in prison;
arson of a house in which no person was lawfully dwelling
was punishable by 3 to 10 years.4 The court had no trouble
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 de-
gree; 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

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
505 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
concluding that the statute “creates three distinct statutory
offenses,” 15 Wis., at *15, and that the lawful presence of a
person in the dwelling was an element of the middle offense.
The court reasoned from the gradations of punishment:
“That the legislature considered the circumstance that a
person was lawfully in the dwelling house when fire was set
to it most material and important, and as greatly aggra-
vating 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. Be-
cause the indictment did not allege that anyone had been
present in the dwelling, the court reversed the defendant’s
14-year sentence, but, relying on Larned, supra, the court
remanded to permit sentencing under the lowest grade of
the crime (which was properly alleged in the indictment).
15 Wis., at *17.
Numerous other state and federal courts in this period
took the same approach to determining which facts are ele-
ments 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 car-
years nor less than seven years; and if at the time of committing the of-
fense 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.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
506 APPRENDI v. NEW JERSEY
Thomas, J., concurring
rier of the mail is subject to a higher penalty where he steals
a letter out of the mail, which contains an article of value.
And when this offense is committed, the indictment must
allege the letter contained an article of value, which aggra-
vates 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 rec-
ord 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 pur-
chasing corn from a slave, and one referred to purchasing
from slave who lacked a permit, absence of permit was not
an element, because both statutes had the same punishment).
Also demonstrating the common-law approach to 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 *106;
see id., at *50; ante, at 480–481. There was no question of
treating the statutory aggravating fact as merely a sen-
tencing enhancement—as a nonelement enhancing the sen-
tence of the common-law crime. The aggravating fact was
an element of a new, aggravated grade of the common-law
crime simply because it increased the punishment of the
common-law crime. And the common-law crime was, in re-
lation 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 punish-
ment comes from early cases addressing recidivism statutes.
As Justice Scalia has explained, there was a tradition of
treating recidivism as an element. See Almendarez-Torres,
523 U. S., at 256–257, 261 (dissenting opinion). That tradi-

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
507 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
tion 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 con-
stituting the core crime of which the defendant was charged,
of a new, aggravated crime.
The two leading antebellum cases on whether recidivism
is an element were Plumbly v. Commonwealth, 43 Mass. 413
(1841), and Tuttle v. Commonwealth, 68 Mass. 505 (1854).
In the latter, the court explained the reason for treating as
an element the fact of the prior conviction:
“When the statute imposes a higher penalty upon a sec-
ond and third conviction, respectively, it makes the prior
conviction of a similar offence a part of the description
and character of the offence intended to be punished;
and therefore the fact of such prior conviction must be
charged, as well as proved. It is essential to an indict-
ment, 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 Massa-
chusetts equivalent of the Sixth Amendment’s Notice Clause.
Ibid. See also Commonwealth v. Haynes, 107 Mass. 194,
198 (1871) (reversing sentence, upon confession of error by
attorney general, in case similar to Tuttle).
Numerous other cases treating the fact of a prior 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

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
508 APPRENDI v. NEW JERSEY
Thomas, J., concurring
the fact of the prior crime together create a new, aggravated
crime. Kilbourn v. State, 9 Conn. 560, 563 (1833) (“No per-
son ought to be, or can be, subjected to a cumulative penalty,
without being charged with a cumulative offence”); Plumbly,
supra, at 414 (conviction under recidivism statute is “one
conviction, upon one aggregate offence”); Hines v. State, 26
Ga. 614, 616 (1859) (reversing enhanced sentence imposed
by trial judge and explaining: “[T]he question, whether the
offence was a second one, or not, was a question for the
jury. . . . The allegation [of a prior offence] is certainly one
of the first importance to the accused, for if it is true, he
becomes subject to a greatly increased punishment”). See
also Commonwealth v. Phillips, 28 Mass. 28, 33 (1831)
(“[U]pon a third conviction, the court may sentence the con-
vict to hard labor for life. The punishment is to be awarded
upon that conviction, and for the offence of which he is then
and there convicted”).
Even the exception to this practice of including the fact of
a prior conviction in the indictment and trying it to the jury
helps to prove the rule that that fact is an element because
it increases the punishment by law. In State v. Freeman,
27 Vt. 523 (1855), the Vermont Supreme Court upheld a
statute providing that, in an indictment or complaint for
violation of a liquor law, it was not necessary to allege a
prior conviction of that law in order to secure an increased
sentence. But the court did not hold that the prior convic-
tion was not an element; instead, it held that the liquor law
created only minor offenses that did not qualify as crimes.
Thus, the state constitutional protections that would attach
were a “crime” at issue did not apply. Id., at 527; see Goel-
ler v. State, 119 Md. 61, 66–67, 85 A. 954, 956 (1912) (discuss-
ing Freeman). At the same time, the court freely acknowl-
edged that it had “no doubt” of the general rule, particularly
as articulated in Massachusetts, that “it is necessary to al-
lege the former conviction, in the indictment, when a higher

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
509 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
sentence is claimed on that account.” Freeman, supra, at
526. Unsurprisingly, then, a leading treatise explained
Freeman as only “apparently” contrary to the general rule
and as involving a “special statute.” 3 F. Wharton, Criminal
Law § 3417, p. 307, n. r (7th rev. ed. 1874) (hereinafter Whar-
ton). 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 convic-
tion 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 recidi-
vism was charged. See Archbold *695–*696; see also, e. g.,
Graham v. West Virginia, 224 U. S. 616, 620–621 (1912) (de-
fendant had been convicted under three different names).5
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 con-
viction 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 court’s holding was somewhat
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 reject-
ing the defendant’s challenge to the indictment, because there is no need
in an indictment to negate the existence of any prior offense. See Bur-
gett, supra, at 324 (reading indictment that was silent about prior offenses
as only charging first offense and as sufficient for that purpose). In addi-
tion, the Smith court did not acknowledge the possibility of disputes over
identity. Finally, the extent to which the court’s 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 gen-
eral 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).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
510 APPRENDI v. NEW JERSEY
Thomas, J., concurring
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 trea-
tise condensed the traditional understanding regarding the
indictment, and thus regarding the elements of a crime,
to the following: “[T]he indictment must allege whatever is
in law essential to the punishment sought to be inflicted.”
1 J. Bishop, Law of Criminal Procedure 50 (2d ed. 1872)
(hereinafter Bishop, Criminal Procedure). See id., § 81, at
51 (“[T]he indictment must contain an allegation of every
fact which is legally essential to the punishment to be in-
flicted”); id., § 540, at 330 (“[T]he indictment must . . . contain
an averment of every particular thing which enters into the
punishment”). Crimes, he explained, consist of those “acts
to which the law affixes . . . punishment,” id., § 80, at 51, or,
stated differently, a crime consists of the whole of “the
wrong upon which the punishment is based,” id., § 84, at 53.
In a later edition, Bishop similarly defined the elements of a
crime as “that wrongful aggregation out of which the punish-
ment proceeds.” 1 J. Bishop, New Criminal Procedure § 84,
p. 49 (4th ed. 1895).
Bishop grounded his definition in both a generalization
from well-established common-law practice, 1 Bishop, Crimi-
nal Procedure §§ 81–84, at 51–53, and in the provisions of
Federal and State Constitutions guaranteeing notice of an
accusation in all criminal cases, indictment by a grand jury
for serious crimes, and trial by jury. With regard to the
common law, he explained that his rule was “not made ap-
parent 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

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
511 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
weapon, or the like, it is subjected to a particular corre-
sponding punishment, heavier than that for common as-
sault, or differing from it, pointed out by the statute.
And the reader will notice that, in all cases where the
peculiar or aggravated punishment is to be inflicted, the
peculiar or aggravating matter is required to be set out
in the indictment.” Id., § 82, at 52.
He also found burglary statutes illustrative in the same way.
Id., § 83, at 52–53. Bishop made no exception for the fact
of a prior conviction—he simply treated it just as any other
aggravating fact: “[If] it is sought to make the sentence
heavier by reason of its being [a second or third offence], the
fact thus relied on must be averred in the indictment; be-
cause the rules of criminal procedure require the indictment,
in all cases, to contain an averment of every fact essential to
the punishment sought to be inflicted.” 1 J. Bishop, Com-
mentaries 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 accusa-
tion at common law and because of the common-law under-
standing that a proper jury trial required a proper accusa-
tion: “The idea of a jury trial, as it has always been known
where the common law prevails, includes the allegation, as
part of the machinery of the trial . . . . [A]n accusation
which lacks any particular fact which the law makes essen-
tial to the punishment is . . . no accusation within the require-
ments of the common law, and it is no accusation in reason.”
1 Bishop, Criminal Procedure § 87, at 55. See id., § 88, at
56 (notice and indictment requirements ensure that before
“persons held for crimes . . . shall be convicted, there
shall be an allegation made against them of every element
of crime which the law makes essential to the punishment
to be inflicted”).
Numerous high courts contemporaneously and explicitly
agreed that Bishop had accurately captured the common-law
understanding of what facts are elements of a crime. See,

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
512 APPRENDI v. NEW JERSEY
Thomas, J., concurring
e. g., Hobbs v. State, 44 Tex. 353, 354 (1875) (favorably quoting
1 Bishop, Criminal Procedure § 81); Maguire v. State, 47 Md.
485, 497 (1878) (approvingly citing different Bishop treatise
for the same rule); Larney v. Cleveland, 34 Ohio St. 599,
600 (1878) (rule and reason for rule “are well stated by
Mr. Bishop”); State v. Hayward, 83 Mo. 299, 307 (1884)
(extensively quoting § 81 of Bishop’s “admirable treatise”);
Riggs v. State, 104 Ind. 261, 262, 3 N. E. 886, 887 (1885)
(“We agree with Mr. Bishop that the nature and cause of
the accusation are not stated where there is no mention
of the full act or series of acts for which the punishment
is to be inflicted” (internal quotation marks omitted)); State
v. Perley, 86 Me. 427, 431, 30 A. 74, 75 (1894) (“The doctrine
of the court, says Mr. Bishop, is identical with that of reason,
viz: that the indictment must contain an allegation of every
fact which is legally essential to the punishment to be in-
flicted” (internal quotation marks omitted)); see also United
States v. Reese, 92 U. S. 214, 232–233 (1876) (Clifford, J.,
concurring in judgment) (citing and paraphrasing 1 Bishop,
Criminal Procedure § 81).
C
In the half century following publication of Bishop’s trea-
tise, numerous courts applied his statement of the common-
law understanding; most of them explicitly relied on his trea-
tise. Just as in the earlier period, every fact that was by
law a basis for imposing or increasing punishment (including
the fact of a prior conviction) was an element. Each such
fact had to be included in the accusation of the crime and
proved to the jury.
Courts confronted statutes quite similar to the ones with
which we have struggled since McMillan, and, applying the
traditional rule, they found it not at all difficult to determine
whether a fact was an element. In Hobbs, supra, the de-
fendant was indicted for a form of burglary punishable by
2 to 5 years in prison. A separate statutory section pro-
vided for an increased sentence, up to double the punishment

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
513 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
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 be-
cause 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 in-
dictment had charged, the court thought it “impossible to
say . . . that the erroneous charge of the court may not have
had some weight in leading the jury” to impose the sentence
that it did. 44 Tex., at 355.6 See also Searcy v. State, 1
Tex. App. 440, 444 (1876) (similar); Garcia v. State, 19 Tex.
App. 389, 393 (1885) (not citing Hobbs, but relying on Bishop
to reverse 10-year sentence for assault with a bowie knife or
dagger, where statute doubled range for assault from 2 to 7
to 4 to 14 years if the assault was committed with either
weapon but where indictment had not so alleged).
As in earlier cases, such as McDonald (discussed supra,
at 504), courts also used the converse of the Bishop rule
to explain when a fact was not an element of the crime. In
Perley, supra, the defendant was indicted for and convicted
of robbery, which was punishable by imprisonment for life
6 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 bur-
glary. 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 124–125, one would likely find a clear legislative intent to
make force a sentencing enhancement rather than an element.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
514 APPRENDI v. NEW JERSEY
Thomas, J., concurring
or any term of years. The court, relying on Bishop, Hope,
McDonald, and other authority, rejected his argument that
Maine’s Notice Clause (which of course required all elements
to be alleged) required the indictment to allege the value
of the goods stolen, because the punishment did not turn on
value: “[T]here is no provision of this statute which makes
the amount of property taken an essential element of the
offense; and there is no statute in this State which creates
degrees in robbery, or in any way makes the punishment of
the offense dependent upon the value of the property taken.”
86 Me., at 432, 30 A., at 75. The court further explained
that “where the value is not essential to the punishment it
need not be distinctly alleged or proved.” Id., at 433, 30 A.,
at 76.
Reasoning similar to Perley and the Texas cases is evident
in other cases as well. See Jones v. State, 63 Ga. 141, 143
(1879) (where punishment for burglary in the day is 3 to 5
years in prison and for burglary at night is 5 to 20, time of
burglary is a “constituent of the offense”; indictment should
“charge all that is requisite to render plain and certain every
constituent of the offense”); United States v. Woodruff, 68 F.
536, 538 (Kan. 1895) (where embezzlement statute “contem-
plates that there should be an ascertainment of the exact
sum for which a fine may be imposed” and jury did not deter-
mine amount, judge lacked authority to impose fine; “[o]n
such an issue the defendant is entitled to his constitutional
right of trial by jury”).
Courts also, again just as in the pre-Bishop period, applied
the same reasoning to the fact of a prior conviction as they
did to any other fact that aggravated the punishment by law.
Many, though far from all, of these courts relied on Bishop.
In 1878, Maryland’s high court, in Maguire v. State, 47 Md.
485, stated the rule and the reason for it in language indistin-
guishable from that of Tuttle a quarter century before:
“The law would seem to be well settled, that if the party
be proceeded against for a second or third offence under

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
515 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
the statute, and the sentence prescribed be different
from the first, or severer, by reason of its being such
second or third offence, the fact thus relied on must be
averred in the indictment; for the settled rule is, that
the indictment must contain an averment of every fact
essential to justify the punishment inflicted.” Maguire,
supra, at 496 (citing English cases, Plumbly v. Common-
wealth, 43 Mass. 413 (1841), Wharton, and Bishop).
In Goeller v. State, 119 Md. 61, 85 A. 954 (1912), the same
court reaffirmed Maguire and voided, as contrary to Mary-
land’s Notice Clause, a statute that permitted the trial judge
to determine the fact of a prior conviction. The court ex-
tensively quoted Bishop, who had, in the court’s view, treated
the subject “more fully, perhaps, than any other legal
writer,” and it cited, among other authorities, “a line of
Massachusetts decisions” and Riggs (quoted supra, at 512).
119 Md., at 66, 85 A., at 955. In Larney, 34 Ohio St., at
600–601, the Supreme Court of Ohio, in an opinion citing
only Bishop, reversed a conviction under a recidivism statute
where the indictment had not alleged any prior conviction.
(The defendant had also relied on Plumbly, supra, and
Kilbourn v. State, 9 Conn. 560 (1833). 34 Ohio St., at 600.)
And in State v. Adams, 64 N. H. 440, 13 A. 785 (1888), the
court, relying on Bishop, explained that “[t]he former con-
viction being a part of the description and character of the
offense intended to be punished, because of the higher pen-
alty imposed, it must be alleged.” Id., at 442, 13 A., at 786.
The defendant had been “charged with an offense aggravated
by its repetitious character.” Ibid. See also Evans v.
State, 150 Ind. 651, 653, 50 N. E. 820 (1898) (similar); Shiflett
v. Commonwealth, 114 Va. 876, 877, 77 S. E. 606, 607 (1913)
(similar).
Even without any reliance on Bishop, other courts ad-
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

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
516 APPRENDI v. NEW JERSEY
Thomas, J., concurring
Wood v. People, 53 N. Y. 511 (1873). The statute in Wood
provided for increased punishment if the defendant had pre-
viously been convicted of a felony then discharged from the
conviction. The court, repeatedly referring to “the aggra-
vated offence,” id., at 513, 515, held that the facts of the prior
conviction and of the discharge must be proved to the jury,
for “[b]oth enter into and make a part of the offence . . .
subjecting the prisoner to the increased punishment.” Id.,
at 513; see ibid. (fact of prior conviction was an “essential
ingredient” of the offense). See also Johnson v. People, 55
N. Y. 512, 514 (1874) (“A more severe penalty is denounced
by the statute for a second offence; and all the facts to bring
the case within the statute must be [alleged in the indict-
ment and] established on the trial”); People v. Sickles, 156
N. Y. 541, 544–545, 51 N. E. 288, 289 (1898) (reaffirming Wood
and Johnson and explaining that “the charge is not merely
that the prisoner has committed the offense specifically de-
scribed, but that, as a former convict, his second offense has
subjected him to an enhanced penalty”).
Contemporaneously with the New York Court of Appeals
in Wood and Johnson, state high courts in California and
Pennsylvania offered similar explanations for why the fact
of a prior conviction is an element. In People v. Delany,
49 Cal. 394 (1874), which involved a statute making petit
larceny (normally a misdemeanor) a felony if committed
following a prior conviction for petit larceny, the court left
no doubt that the fact of the prior conviction was an element
of an aggravated crime consisting of petit larceny committed
following a prior conviction for petit larceny:
“The particular circumstances of the offense are stated
[in the indictment], and consist of the prior convictions
and of the facts constituting the last larceny.
. . . . .
“[T]he former convictions are made to adhere to and
constitute a portion of the aggravated offense.” Id., at
395.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
517 Cite as: 530 U. S. 466 (2000)
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. Common-
wealth, 14 Serg. & Rawle 69, and reversed the trial court’s
imposition of an enhanced sentence “upon its own knowledge
of its records.” 78 Pa., at 494. The court explained that
“imprisonment in jail is not a lawful consequence of a mere
conviction for an unlawful sale of liquors. It is the lawful
consequence of a second sale only after a former conviction.
On every principle of personal security and the due adminis-
tration of justice, the fact which gives rightfulness to the
greater punishment should appear in the record.” Ibid.
See also id., at 495 (“But clearly the substantive offence,
which draws to itself the greater punishment, is the unlawful
sale after a former conviction. This, therefore, is the very
offence he is called upon to defend against”).
Meanwhile, Massachusetts reaffirmed its earlier decisions,
striking down, in Commonwealth v. Harrington, 130 Mass.
35 (1880), a liquor law that provided a small fine for a first
or second conviction, provided a larger fine or imprisonment
up to a year for a third conviction, and specifically provided
that a prior conviction need not be alleged in the complaint.
The court found this law plainly inconsistent with Tuttle and
with the State’s Notice Clause, explaining that “the offence
which is punishable with the higher penalty is not fully and
7 The 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.

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
518 APPRENDI v. NEW JERSEY
Thomas, J., concurring
substantially described to the defendant, if the complaint
fails to set forth the former convictions which are essential
features of it.” 130 Mass., at 36.8
Without belaboring the point any further, I simply note
that this traditional understanding—that a “crime” includes
every fact that is by law a basis for imposing or increasing
punishment—continued well into the 20th century, at least
until the middle of the century. See Knoll & Singer, Search-
ing for the “Tail of the Dog”: Finding “Elements” of Crimes
in the Wake of McMillan v. Pennsylvania, 22 Seattle U. L.
Rev. 1057, 1069–1081 (1999) (surveying 20th-century deci-
sions of federal courts prior to McMillan); see also People
v. Ratner, 67 Cal. App. 2d Supp. 902, 903–906, 153 P. 2d 790,
791–793 (1944). In fact, it is fair to say that McMillan
began a revolution in the law regarding the definition of
“crime.” Today’s decision, far from being a sharp break
with the past, marks nothing more than a return to the
status quo ante—the status quo that reflected the original
meaning of the Fifth and Sixth Amendments.
III
The consequence of the above discussion for our decisions
in Almendarez-Torres and McMillan should be plain enough,
but a few points merit special mention.
8 See 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 description 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).

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
519 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
First, it is irrelevant to the question of which facts are ele-
ments that legislatures have allowed sentencing judges dis-
cretion in determining punishment (often within extremely
broad ranges). See ante, at 481–482; post, at 544–545
(O’Connor, J., dissenting). Bishop, immediately after set-
ting out the traditional rule on elements, explained why:
“The reader should distinguish between the foregoing
doctrine, and the doctrine . . . that, within the limits
of any discretion as to the punishment which the law
may have allowed, the judge, when he pronounces sen-
tence, may suffer his discretion to be influenced by mat-
ter shown in aggravation or mitigation, not covered
by the allegations of the indictment. . . . The aggra-
vating circumstances spoken of cannot swell the penalty
above what the law has provided for the acts charged
against the prisoner, and they are interposed merely
to check the judicial discretion in the exercise of the
permitted mercy [in finding mitigating circumstances].
This is an entirely different thing from punishing one for
what is not alleged against him.” 1 Bishop, Criminal
Procedure § 85, at 54.
See also 1 J. Bishop, New Commentaries on the Criminal
Law §§ 600–601, pp. 370–371, § 948, p. 572 (8th ed. 1892) (sim-
ilar). 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
9 This is not to deny that there may be laws on the borderline of this
distinction. In Brightwell v. State, 41 Ga. 482 (1871), the court stated a
rule for elements equivalent to Bishop’s, then held that whether a de-
fendant 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

530US2 Unit: $U79 [11-08-01 06:47:37] PAGES PGT: OPIN
520 APPRENDI v. NEW JERSEY
Thomas, J., concurring
Cf. 4 W. Blackstone, Commentaries on the Law of England
371–372 (1769) (noting judges’ broad discretion in setting
amount of fine and length of imprisonment for misdemeanors,
but praising determinate punishment and “discretion . . .
regulated by law”); Perley, 86 Me., at 429, 432, 30 A., at 74,
75–76 (favorably discussing Bishop’s rule on elements with-
out mentioning, aside from quotation of statute in state-
ment of facts, that defendant’s conviction for robbery ex-
posed him to imprisonment for life or any term of years).
Thus, it is one thing to consider what the Constitution
requires the prosecution to do in order to entitle itself to
a particular kind, degree, or range of punishment of the
accused, see Woodruff, 68 F., at 538, and quite another to
consider what constitutional constraints apply either to the
imposition of punishment within the limits of that entitle-
ment or to a legislature’s ability to set broad ranges of pun-
ishment. In answering the former constitutional question,
I need not, and do not, address the latter.
Second, and related, one of the chief errors of Almendarez-
Torres—an error to which I succumbed—was to attempt to
discern whether a particular fact is traditionally (or typically)
a basis for a sentencing court to increase an offender’s sen-
tence. 523 U. S., at 243–244; see id., at 230, 241. For the
judge’s] 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 differ-
ent ranges of punishment based on this fact). And the statute attached
no definite consequence to that particular fact: A sentencing judge pre-
sumably 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, 113 Ga. App. 436, 437–438, 148 S. E. 2d 333, 335–336
(1966) (suggesting that it would be error to refuse to charge later version
of this statute to jury upon request of defendant). See generally Arch-
bold *52, *105–*106 (discussing rules for determining whether fact is an
element or a defense).

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
521 Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
reasons I have given, it should be clear that this approach
just defines away the real issue. What matters is the way
by which a fact enters into the sentence. If a fact is by law
the basis for imposing or increasing punishment—for estab-
lishing or increasing the prosecution’s entitlement—it is an
element. (To put the point differently, I am aware of no
historical basis for treating as a nonelement a fact that by
law sets or increases punishment.) When one considers the
question from this perspective, it is evident why the fact of
a prior conviction is an element under a recidivism statute.
Indeed, cases addressing such statutes provide some of the
best discussions of what constitutes an element of a crime.
One reason frequently offered for treating recidivism differ-
ently, a reason on which we relied in Almendarez-Torres,
supra, at 235, is a concern for prejudicing the jury by inform-
ing it of the prior conviction. But this concern, of which
earlier courts were well aware, does not make the traditional
understanding of what an element is any less applicable to
the fact of a prior conviction. See, e. g., Maguire, 47 Md., at
498; Sickles, 156 N. Y., at 547, 51 N. E., at 290.10
Third, I think it clear that the common-law rule would
cover the McMillan situation of a mandatory minimum sen-
tence (in that case, for visible possession of a firearm during
the commission of certain crimes). No doubt a defendant
could, under such a scheme, find himself sentenced to the
same term to which he could have been sentenced absent the
mandatory minimum. The range for his underlying crime
10 In addition, it has been common practice to address this concern by
permitting the defendant to stipulate to the prior conviction, in which case
the charge of the prior conviction is not read to the jury, or, if the defend-
ant decides not to stipulate, to bifurcate the trial, with the jury only con-
sidering the prior conviction after it has reached a guilty verdict on the
core crime. See, e. g., 1 J. Bishop, Criminal Law § 964, pp. 566–567 (5th
ed. 1872) (favorably discussing English practice of bifurcation); People v.
Saunders, 5 Cal. 4th 580, 587–588, 853 P. 2d 1093, 1095–1096 (1993) (detail-
ing California approach, since 1874, of permitting stipulation and, more
recently, of also permitting bifurcation).

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
522 APPRENDI v. NEW JERSEY
Thomas, J., concurring
could be 0 to 10 years, with the mandatory minimum of 5
years, and he could be sentenced to 7. (Of course, a similar
scenario is possible with an increased maximum.) But it is
equally true that his expected punishment has increased as
a result of the narrowed range and that the prosecution is
empowered, by invoking the mandatory minimum, to require
the judge to impose a higher punishment than he might wish.
The mandatory minimum “entitl[es] the government,” Wood-
ruff, supra, at 538, to more than it would otherwise be enti-
tled (5 to 10 years, rather than 0 to 10 and the risk of a
sentence below 5). Thus, the fact triggering the mandatory
minimum is part of “the punishment sought to be inflicted,”
Bishop, Criminal Procedure 50; it undoubtedly “enters into
the punishment” so as to aggravate it, id., § 540, at 330, and
is an “ac[t] to which the law affixes . . . punishment,” id., § 80,
at 51. Further, just as in Hobbs and Searcy, see supra, at
512–513, it is likely that the change in the range available to
the judge affects his choice of sentence. Finally, in numer-
ous cases, such as Lacy, Garcia, and Jones, see supra, at
504–505, 514, the aggravating fact raised the whole range—
both the top and bottom. Those courts, in holding that such
a fact was an element, did not bother with any distinction
between changes in the maximum and the minimum. What
mattered was simply the overall increase in the punishment
provided by law. And in several cases, such as Smith
and Woodruff, see supra, at 502, 514, the very concept of
maximums and minimums had no applicability, yet the same
rule for elements applied. See also Harrington (discussed
supra, at 517–518).
Finally, I need not in this case address the implications of
the rule that I have stated for the Court’s decision in Walton
v. Arizona, 497 U. S. 639, 647–649 (1990). See ante, at 496.
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 cap-

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
523 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
ital punishment, unlike any other area, we have imposed spe-
cial constraints on a legislature’s ability to determine what
facts shall lead to what punishment—we have restricted the
legislature’s ability to define crimes. Under our recent
capital-punishment jurisprudence, neither Arizona nor any
other jurisdiction could provide—as, previously, it freely
could and did—that a person shall be death eligible automati-
cally upon conviction for certain crimes. We have inter-
posed a barrier between a jury finding of a capital crime and
a court’s ability to impose capital punishment. Whether this
distinction between capital crimes and all others, or some
other distinction, is sufficient to put the former outside the
rule that I have stated is a question for another day.11
* * *
For the foregoing reasons, as well as those given in the
Court’s opinion, I agree that the New Jersey procedure at
issue is unconstitutional.
Justice O’Connor, with whom The Chief Justice, Jus-
tice Kennedy, and Justice Breyer join, dissenting.
Last Term, in Jones v. United States, 526 U. S. 227 (1999),
this Court found that our prior cases suggested the follow-
ing principle: “[U]nder the Due Process Clause of the Fifth
Amendment and the notice and jury trial guarantees of the
Sixth Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and proven beyond a
reasonable doubt.” Id., at 243, n. 6. At the time, Justice
Kennedy rightly criticized the Court for its failure to ex-
11 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).

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
524 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
plain the origins, contours, or consequences of its purported
constitutional principle; for the inconsistency of that princi-
ple 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 (dis-
senting opinion). Today, in what will surely be remembered
as a watershed change in constitutional law, the Court im-
poses 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 govern-
ment beyond a reasonable doubt. Rather, we have held that
the “legislature’s definition of the elements of the offense is
usually dispositive.” McMillan v. Pennsylvania, 477 U. S.
79, 85 (1986); see also Almendarez-Torres v. United States,
523 U. S. 224, 228 (1998); Patterson v. New York, 432 U. S.
197, 210, 211, n. 12 (1977). Although we have recognized
that “there are obviously constitutional limits beyond which
the States may not go in this regard,” id., at 210, and that
“in certain limited circumstances Winship’s reasonable-
doubt requirement applies to facts not formally identified as
elements of the offense charged,” McMillan, supra, at 86,
we have proceeded with caution before deciding that a cer-
tain fact must be treated as an offense element despite the
legislature’s choice not to characterize it as such. We have
therefore declined to establish any bright-line rule for mak-
ing 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 punish-
ments or instead has sought to evade the constitutional re-
quirements associated with the characterization of a fact
as an offense element. See, e. g., Monge v. California, 524
U. S. 721, 728–729 (1998); McMillan, supra, at 86.

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
525 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
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 Con-
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 conviction, any
fact 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 490. In its
opinion, the Court marshals virtually no authority to support
its extraordinary rule. Indeed, it is remarkable that the
Court cannot identify a single instance, in the over 200 years
since the ratification of the Bill of Rights, that our Court
has applied, as a constitutional requirement, the rule it an-
nounces today.
According to the Court, its constitutional rule “emerges
from our history and case law.” Ante, at 492. None of the
history contained in the Court’s opinion requires the rule it
ultimately adopts. The history cited by the Court can be
divided into two categories: first, evidence that judges at
common law had virtually no discretion in sentencing, ante,
at 478–480, and, second, statements from a 19th-century
criminal procedure treatise that the government must
charge in an indictment and prove at trial the elements of a
statutory offense for the defendant to be sentenced to the
punishment attached to that statutory offense, ante, at 480–
481. The relevance of the first category of evidence can be
easily dismissed. Indeed, the Court does not even claim
that the historical evidence of nondiscretionary sentencing
at common law supports its “increase in the maximum
penalty” rule. Rather, almost as quickly as it recites that
historical practice, the Court rejects its relevance to the con-
stitutional question presented here due to the conflicting
American practice of judges exercising sentencing discretion
and our decisions recognizing the legitimacy of that Ameri-
can practice. See ante, at 481–482 (citing Williams v. New
York, 337 U. S. 241, 246 (1949)). Even if the Court were to

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
526 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
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 par-
ties is relevant at all to the question of criminal punishment
presented here. See ante, at 479–480 (quoting 3 W. Black-
stone, Commentaries on the Laws of England 396 (1768),
which pertains to “remed[ies] prescribed by law for the re-
dress of injuries”).
Apparently, then, the historical practice on which the
Court places so much reliance consists of only two quotations
taken from an 1862 criminal procedure treatise. See ante,
at 480–481 (quoting J. Archbold, Pleading and Evidence in
Criminal Cases 51, 188 (15th ed. 1862)). A closer examina-
tion of the two statements reveals that neither supports the
Court’s “increase in the maximum penalty” rule. Both of
the excerpts pertain to circumstances in which a common-
law felony had also been made a separate statutory offense
carrying a greater penalty. Taken together, the statements
from the Archbold treatise demonstrate nothing more than
the unremarkable proposition that a defendant could receive
the greater statutory punishment only if the indictment ex-
pressly 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 de-
fendant to receive the statutory punishment, the prosecutor
had to charge in the indictment and prove at trial the ele-
ments of the statutory offense. To the extent there is any
doubt about the precise meaning of the treatise excerpts,
that doubt is dispelled by looking to the treatise sections
from which the excerpts are drawn and the broader principle
each section is meant to illustrate. See id., at 43 (“Every
offence consists of certain acts done or omitted under certain
circumstances; and in an indictment for the offence, it is not
sufficient to charge the defendant generally with having com-
mitted it, . . . but all the facts and circumstances constituting

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
527 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
the offence must be specially set forth”); id., at 180 (“Every
offence consists of certain acts done or omitted, under
certain circumstances, all of which must be stated in the
indictment . . . and be proved as laid”). And, to the extent
further clarification is needed, the authority cited by the
Archbold treatise to support its stated proposition with re-
spect to the requirements of an indictment demonstrates
that the treatise excerpts mean only that the prosecutor
must charge and then prove at trial the elements of the stat-
utory offense. See 2 M. Hale, Pleas of the Crown *170
(hereinafter Hale) (“An indictment grounded upon an offense
made by act of parliament must by express words bring the
offense within the substantial description made in the act of
parliament”). No Member of this Court questions the prop-
osition that a State must charge in the indictment and prove
at trial beyond a reasonable doubt the actual elements of the
offense. This case, however, concerns the distinct question
of when a fact that bears on a defendant’s punishment, but
which the legislature has not classified as an element of the
charged offense, must nevertheless be treated as an offense
element. The excerpts drawn from the Archbold treatise do
not speak to this question at all. The history on which the
Court’s opinion relies provides no support for its “increase
in the maximum penalty” rule.
In his concurring opinion, Justice Thomas cites addi-
tional historical evidence that, in his view, dictates an even
broader rule than that set forth in the Court’s opinion. The
history cited by Justice Thomas does not require, as a mat-
ter of federal constitutional law, the application of the rule
he advocates. To understand why, it is important to focus
on the basis for Justice Thomas’ argument. First, he
claims that the Fifth and Sixth Amendments “codified” pre-
existing common law. Second, he contends that the relevant
common law treated any fact that served to increase a de-
fendant’s punishment as an element of an offense. See ante,
at 500–501. Even if Justice Thomas’ first assertion were

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
528 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
correct—a proposition this Court has not before embraced—
he fails to gather the evidence necessary to support his sec-
ond assertion. Indeed, for an opinion that purports to be
founded upon the original understanding of the Fifth and
Sixth Amendments, Justice Thomas’ concurrence is notable
for its failure to discuss any historical practice, or to cite any
decisions, predating (or contemporary with) the ratification
of the Bill of Rights. Rather, Justice Thomas divines the
common-law understanding of the Fifth and Sixth Amend-
ment rights by consulting decisions rendered by American
courts well after the ratification of the Bill of Rights, ranging
primarily from the 1840’s to the 1890’s. Whatever those de-
cisions might reveal about the way American state courts
resolved questions regarding the distinction between a crime
and its punishment under general rules of criminal pleading
or their own state constitutions, the decisions fail to demon-
strate any settled understanding with respect to the defini-
tion of a crime under the relevant, pre-existing common law.
Thus, there is a crucial disconnect between the historical evi-
dence Justice Thomas cites and the proposition he seeks to
establish with that evidence.
An examination of the decisions cited by Justice Thomas
makes clear that they did not involve a simple application of
a long-settled common-law rule that any fact that increases
punishment must constitute an offense element. That would
have been unlikely, for there does not appear to have been
any such common-law rule. The most relevant common-law
principles in this area were that an indictment must charge
the elements of the relevant offense and must do so with
certainty. See, e. g., 2 Hale *182 (“Touching the thing
wherein or of which the offense is committed, there is re-
quired 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.

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
529 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
Justice Thomas is correct to note that American courts
in the 19th century came to confront this question in their
cases, and often treated facts that served to increase punish-
ment 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 inven-
tion, and not a previously existing rule that would have been
“codified” by the ratification of the Fifth and Sixth Amend-
ments. Few of the decisions cited by Justice Thomas indi-
cate a reliance on pre-existing common-law principles. In
fact, the converse rule that he identifies in the 19th-century
American cases—that a fact that does not make a differ-
ence in punishment need not be charged in an indictment,
see, e. g., Larned v. Commonwealth, 53 Mass. 240, 242–244
(1847)—was assuredly created by American courts, given
that English courts of roughly the same period followed a
contrary rule. See, e. g., Rex v. Marshall, 1 Moody C. C.
158, 168 Eng. Rep. 1224 (1827). Justice Thomas’ collection
of state-court opinions is therefore of marginal assistance in
determining the original understanding of the Fifth and
Sixth Amendments. While the decisions Justice Thomas
cites provide some authority for the rule he advocates, they
certainly do not control our resolution of the federal consti-
tutional question presented in the instant case and cannot,
standing alone, justify overruling three decades’ worth of
decisions by this Court.
In contrast to Justice Thomas, the Court asserts that its
rule is supported by “our cases in this area.” Ante, at 490.
That the Court begins its review of our precedent with a
quotation from a dissenting opinion speaks volumes about
the support that actually can be drawn from our cases for
the “increase in the maximum penalty” rule announced
today. See ante, at 484 (quoting Almendarez-Torres, 523
U. S., at 251 (Scalia, J., dissenting)). The Court then cites
our decision in Mullaney v. Wilbur, 421 U. S. 684 (1975), to
demonstrate the “lesson” that due process and jury protec-

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
530 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
tions extend beyond those factual determinations that affect
a defendant’s guilt or innocence. Ante, at 484. The Court
explains Mullaney as having held that the due process
proof-beyond-a-reasonable-doubt requirement applies to
those factual determinations that, under a State’s criminal
law, make a difference in the degree of punishment the de-
fendant receives. Ante, at 484. The Court chooses to ig-
nore, however, the decision we issued two years later, Pat-
terson v. New York, 432 U. S. 197 (1977), which clearly
rejected the Court’s broad reading of Mullaney.
In Patterson, the jury found the defendant guilty of
second-degree murder. Under New York law, the fact that
a person intentionally killed another while under the influ-
ence of extreme emotional disturbance distinguished the re-
duced offense of first-degree manslaughter from the more
serious offense of second-degree murder. Thus, the pres-
ence or absence of this one fact was the defining factor sepa-
rating a greater from a lesser punishment. Under New
York law, however, the State did not need to prove the ab-
sence 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 Patter-
son’s due process challenge to his conviction:
“We thus decline to adopt as a constitutional impera-
tive, operative countrywide, that a State must disprove
beyond a reasonable doubt every fact constituting any
and all affirmative defenses related to the culpability of
an accused. Traditionally, due process has required
that only the most basic procedural safeguards be ob-
served; more subtle balancing of society’s interests
against those of the accused have been left to the legisla-
tive branch.” Id., at 210.

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
531 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
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 today’s case (or the broader rule advocated by Jus-
tice Thomas) would not require the overruling of Patter-
son. 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 beyond the prescribed statutory
maximum” for first-degree manslaughter. Ante, at 490.
Nonetheless, we held that New York’s requirement that the
defendant, rather than the State, bear the burden of proof
on this factual determination comported with the Fourteenth
Amendment’s Due Process Clause. Patterson, 432 U. S., at
205–211, 216; see also id., at 204–205 (reaffirming Leland v.
Oregon, 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 determina-
tion of defendant’s insanity).
Patterson is important because it plainly refutes the
Court’s expansive reading of Mullaney. Indeed, the defend-
ant in Patterson characterized Mullaney exactly as the
Court has today and we rejected that interpretation:
“Mullaney’s holding, it is argued, is that the State
may not permit the blameworthiness of an act or the
severity of punishment authorized for its commission
to depend on the presence or absence of an identified
fact without assuming the burden of proving the pres-
ence or absence of that fact, as the case may be, beyond
a reasonable doubt. In our view, the Mullaney holding
should not be so broadly read.” Patterson, supra, at
214–215 (emphasis added) (footnote omitted).

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
532 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
We explained Mullaney instead as holding only “that a State
must prove every ingredient of an offense beyond a reason-
able 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 215. Be-
cause nothing had been presumed against Patterson under
New York law, we found no due process violation. Id., at
216. Ever since our decision in Patterson, we have consist-
ently explained the holding in Mullaney in these limited
terms and have rejected the broad interpretation the Court
gives Mullaney today. See Jones, 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
Mullaney]”); Almendarez-Torres, 523 U. S., at 240 (“[Mulla-
ney] suggests that Congress cannot permit judges to in-
crease a sentence in light of recidivism, or any other factor,
not set forth in an indictment and proved to a jury beyond a
reasonable doubt. This Court’s later case, Patterson v. New
York, . . . however, makes absolutely clear that such a read-
ing of Mullaney 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 Court’s reliance on McMillan is also
puzzling, given that our holding in that case points to the
rejection of the Court’s rule. There, we considered a Penn-
sylvania statute that subjected a defendant to a mandatory
minimum sentence of five years’ imprisonment if a judge
found, by a preponderance of the evidence, that the defend-
ant 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 Amendment’s
Due Process Clause and the Sixth Amendment’s jury trial
guarantee (as incorporated by the Fourteenth Amendment)
required the State to prove to the jury beyond a reasonable

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
533 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
doubt that they had visibly possessed firearms. We re-
jected both constitutional claims. Id., at 84–91, 93.
The essential holding of McMillan conflicts with at least
two of the several formulations the Court gives to the rule
it announces today. First, the Court endorses the following
principle: “ ‘[I]t is unconstitutional for a legislature to re-
move 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 estab-
lished by proof beyond a reasonable doubt.’ ” Ante, at 490
(emphasis added) (quoting Jones, supra, at 252–253 (Ste-
vens, J., concurring)). Second, the Court endorses the rule
as restated in Justice Scalia’s concurring opinion in Jones.
See ante, at 490. There, Justice Scalia wrote: “[I]t is un-
constitutional to remove from the jury the assessment of
facts that alter the congressionally prescribed range of pen-
alties to which a criminal defendant is exposed.” Jones,
supra, at 253 (emphasis added). Thus, the Court appears to
hold that any fact that increases or alters the range of penal-
ties to which a defendant is exposed—which, by definition,
must include increases or alterations to either the minimum
or maximum penalties—must be proved to a jury beyond a
reasonable doubt. 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 admit
that it is overruling McMillan, but also to explain why such
a course of action is appropriate under normal principles of
stare decisis.
The Court’s 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, McMillan
acknowledged that permitting a judge to make findings that
expose a defendant to greater or additional punishment “may
raise serious constitutional concern.” Ante, at 486. We
said nothing of the sort in McMillan. To the contrary, we

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
534 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
began our discussion of the petitioners’ constitutional claims
by emphasizing that we had already “rejected the claim that
whenever a State links the ‘severity of punishment’ to ‘the
presence or absence of an identified fact’ the State must
prove that fact beyond a reasonable doubt.” 477 U. S., at 84
(quoting Patterson, 432 U. S., at 214). We then reaffirmed
the rule set forth in Patterson—“that in determining what
facts must be proved beyond a reasonable doubt the state
legislature’s definition of the elements of the offense is usu-
ally dispositive.” McMillan, 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 McMil-
lan because “several factors” persuaded us that the Pennsyl-
vania statute did not exceed those limits, however those lim-
its might be defined. Id., at 86. The Court’s 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 find-
ing had exposed them to greater or additional punishment.
Id., at 88. To say that a claim may have had “more superfi-
cial appeal” is, of course, a far cry from saying that a claim
would have been upheld. Moreover, we made that state-
ment in the context of examining one of several factors that,
in combination, ultimately gave “no doubt that Pennsylva-
nia’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.

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
535 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
Such a rule would have been in substantial tension with both
our earlier acknowledgment that Patterson rejected such a
rule, see 477 U. S., at 84, and our recognition that a state
legislature’s definition of the elements is normally disposi-
tive, see id., at 85. If any single rule can be derived from
McMillan, it is not the Court’s “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 defend-
ant’s sentence, the relevant fact need not be proved to a jury
beyond a reasonable doubt as would an element of the of-
fense. 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 deci-
sion. 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 Court’s position, that feeble foundation 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. 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
‘elements’ requirement. We have explained why we believe
the Constitution, as interpreted in McMillan and earlier
cases, does not impose that requirement.” 523 U. S., at 247.
Whether Almendarez-Torres 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., dissent-
ing). I continue to agree with Justice Kennedy that
Almendarez-Torres constituted a clear repudiation of the
rule the Court adopts today. See Jones, supra, at 268 (dis-

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
536 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
senting opinion). My understanding is bolstered by Monge
v. California, a decision relegated to a footnote by the Court
today. In Monge, in reasoning essential to our holding, we
reiterated that “the Court has rejected an absolute rule that
an enhancement constitutes an element of the offense any
time that it increases the maximum sentence to which a de-
fendant is exposed.” 524 U. S., at 729 (citing Almendarez-
Torres). At the very least, Monge demonstrates that
Almendarez-Torres was not an “exceptional departure” from
“historic practice.” Ante, at 487.
Of all the decisions that refute the Court’s “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 non-
existence of the statutory aggravating and mitigating fac-
tors. 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 circumstances 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 sentenced 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 the Constitu-
tion requires that a jury impose the sentence of death or

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
537 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
make the findings prerequisite to imposition of such a sen-
tence has been soundly rejected by prior decisions of this
Court.’ ” Id., at 647 (quoting Clemons v. Mississippi, 494
U. S. 738, 745 (1990)). Relying in part on our decisions re-
jecting 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.’ ” Walton, supra, at 648 (quot-
ing 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 ag-
gravating circumstance exists in the defendant’s case “ ‘in-
creases the maximum penalty for [the] crime’ ” of first-degree
murder to death. Ante, at 476 (quoting Jones, supra, at 243,
n. 6). If the judge does not find the existence of a statutory
aggravating circumstance, the maximum punishment author-
ized by the jury’s guilty verdict is life imprisonment. Thus,
using the terminology that the Court itself employs to de-
scribe the constitutional fault in the New Jersey sentencing
scheme presented here, under Arizona law, the judge’s find-
ing that a statutory aggravating circumstance exists “ex-
poses the criminal defendant to a penalty exceeding the max-
imum he would receive if punished according to the facts
reflected in the jury verdict alone.” Ante, at 483 (emphasis
in original). Even Justice Thomas, whose vote is neces-
sary to the Court’s opinion today, agrees on this point. See
ante, at 522 (concurring opinion). If a State can remove
from the jury a factual determination that makes the differ-
ence 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
exposed.

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
538 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
The distinction of Walton offered by the Court today is
baffling, to say the least. The key to that distinction is the
Court’s claim that, in Arizona, the jury makes all of the find-
ings necessary to expose the defendant to a death sentence.
See ante, at 496–497 (quoting Almendarez-Torres, 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 sen-
tence unless a judge makes the factual determination that
a statutory aggravating factor exists. Without that critical
finding, the maximum sentence to which the defendant is ex-
posed is life imprisonment, and not the death penalty. In-
deed, 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 construed by Arizona’s highest
court, a first-degree murder is not punishable by a death sen-
tence until at least one statutory aggravating circumstance
has been proved”). In any event, the extent of our holding
in Walton 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 imposition of [a death] sentence,’ ” id., at 647 (quoting
Clemons, supra, at 745), or “ ‘the specific findings authoriz-
ing the imposition of the sentence of death,’ ” Walton, supra,
at 648 (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 equally difficult to comprehend. According to Justice
Thomas, because the Constitution requires state legislatures
to narrow sentencing discretion in the capital punishment
context, facts that expose a convicted defendant to a capital
sentence may be different from all other facts that expose a
defendant to a more severe sentence. See ante, at 522–523.

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
539 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
Justice Thomas gives no specific reason for excepting capi-
tal defendants from the constitutional protections he would
extend to defendants generally, and none is readily apparent.
If Justice Thomas means to say that the Eighth Amend-
ment’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 sen-
tence, his reasoning is without precedent in our constitu-
tional jurisprudence.
In sum, the Court’s 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 distinctions
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 meaningful 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 substantial
departure from our settled jurisprudence. Significantly, the
Court also fails to explain adequately why the Due Process
Clauses of the Fifth and Fourteenth Amendments and the
jury trial guarantee of the Sixth Amendment require appli-
cation of its rule. Upon closer examination, it is possible
that the Court’s “increase in the maximum penalty” rule
rests on a meaningless formalism that accords, at best, mar-
ginal protection for the constitutional rights that it seeks
to effectuate.

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
540 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
Any discussion of either the constitutional necessity or the
likely effect of the Court’s rule must begin, of course, with
an understanding of what exactly that rule is. As was the
case in Jones, however, that discussion is complicated here
by the Court’s failure to clarify the contours of the constitu-
tional 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 Court’s decision rests.
For example, under one reading, the Court appears to hold
that the Constitution requires that a fact be submitted to a
jury and proved beyond a reasonable doubt only if that fact,
as a formal matter, extends the range of punishment beyond
the prescribed statutory maximum. See, e. g., ante, at 490.
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 494, 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 sentencing
scheme is consistent with the constitutional principle under-
lying today’s decision because Arizona’s first-degree mur-
der statute itself authorizes both life imprisonment and

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
541 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
the death penalty. See Ariz. Rev. Stat. Ann. § 13–1105(C)
(1989). “ ‘[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.’ ” Ante, at 497 (emphasis in origi-
nal) (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 de-
fendant’s case. Thus, the Arizona first-degree murder stat-
ute 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 maxi-
mum punishment. 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 leg-
islature to follow such a meaningless and formalistic differ-
ence in drafting its criminal statutes.
Under another reading of the Court’s decision, it may
mean only that the Constitution requires that a fact be sub-
mitted to a jury and proved beyond a reasonable doubt if it,
as a formal matter, increases the range of punishment be-
yond that which could legally be imposed absent that fact.
See, e. g., ante, at 482–483, 490. 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, as a formal matter, decrease the range of punish-
ment below that which could legally be imposed absent that
fact. Thus, consistent with our decision in Patterson, New

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
542 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
Jersey could cure its sentencing scheme, and achieve virtu-
ally the same results, by drafting its weapons possession
statute in the following manner: First, New Jersey could pre-
scribe, 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 prepon-
derance 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 concurring
opinion embraces this precise distinction between a fact that
increases punishment and a fact that decreases punishment.
See ante, at 501 (“[A] ‘crime’ includes every fact that is by
law a basis for imposing or increasing punishment (in con-
trast with a fact that mitigates punishment)”). The histori-
cal evidence on which Justice Thomas relies, however, dem-
onstrates both the difficulty and the pure formalism of
making a constitutional “elements” rule turn on such a dif-
ference. For example, the Wisconsin statute considered in
Lacy v. 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 malicious burning of a dwelling house in which
“the life of no person shall have been destroyed” was punish-
able 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 ap-
peared to make the absence of persons from the affected
dwelling house a fact that mitigated punishment, the Wiscon-
sin 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 demon-
strate, see supra, at 540, whether a fact is responsible for an

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
543 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
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 Constitu-
tion would require a state legislature to follow such a mean-
ingless and formalistic difference in drafting its criminal
statutes.
If either of the above readings is all that the Court’s deci-
sion means, “the Court’s principle amounts to nothing more
than chastising [the New Jersey Legislature] for failing to
use the approved phrasing in expressing its intent as to how
[unlawful weapons possession] should be punished.” Jones,
526 U. S., at 267 (Kennedy, J., dissenting). If New Jersey
can, consistent with the Constitution, 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 Fourteenth Amendments require the Court’s 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 Jer-
sey’s present sentence-enhancement statute. See ante, at
490–491, n. 16 (majority opinion). In all three cases, the leg-
islature 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 constitutional values are
served by so formalistic an approach, 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
Court’s opinion, one suspects that the constitutional principle
underlying its decision is more far reaching. The actual
principle underlying the Court’s decision may be that any
fact (other than prior conviction) that has the effect, in real
terms, of increasing the maximum punishment beyond an

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
544 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
otherwise applicable range must be submitted to a jury and
proved beyond a reasonable doubt. See, e. g., ante, at 494
(“[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 ver-
dict?”). The principle thus would apply not only to schemes
like New Jersey’s, under which a factual determination ex-
poses the defendant to a sentence beyond the prescribed
statutory maximum, but also to all determinate-sentencing
schemes in which the length of a defendant’s sentence within
the statutory range turns on specific factual determinations
(e. g., the federal Sentencing Guidelines). Justice Thomas
essentially concedes that the rule outlined in his concurring
opinion would require the invalidation of the Sentencing
Guidelines. See ante, at 523, 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 Patterson
and Walton. More importantly, given our approval of—and
the significant history in this country of—discretionary sen-
tencing by judges, it is difficult to understand how the Fifth,
Sixth, and Fourteenth Amendments could possibly require
the Court’s 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
Court’s and Justice Thomas’ rules in terms of sentencing
schemes 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 legislatures
to define criminal offenses, to prescribe broad ranges of pun-
ishment for those offenses, and to give judges discretion to
decide where within those ranges a particular defendant’s
punishment should be set. See ante, at 481–482. That
view accords with historical practice under the Constitution.
“From the beginning of the Republic, federal judges were
entrusted with wide sentencing discretion. The great

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
545 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
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 maximum.”
K. Stith & J. Cabranes, Fear of Judging: Sentencing Guide-
lines 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 pre-
sented 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
basis of facts that they determined for themselves, on
less than proof beyond a reasonable doubt, without elic-
iting very much concern from civil libertarians. . . . The
sentence in any number of traditional discretionary situ-
ations depended quite directly on judicial findings of spe-
cific contested facts. . . . Whether because such facts
were directly relevant to the judge’s 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
of how much rehabilitation the offender’s character was
likely to need, the sentence would be higher or lower, in
some specific degree determined by the judge, based on
the judge’s 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 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

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
546 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
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 chal-
lenge 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 punishment to be im-
posed within limits fixed by law.” Id., at 246. Specifically,
we held that the Constitution does not restrict a judge’s sen-
tencing decision to information that is charged in an indict-
ment and subject to cross-examination in open court. “The
due process clause should not be treated as a device for freez-
ing the evidential procedure of sentencing in the mold of trial
procedure.” Id., at 251.
Under our precedent, then, a State may leave the determi-
nation of a defendant’s sentence to a judge’s discretionary
decision within a prescribed range of penalties. When a
judge, pursuant to that sentencing scheme, decides to in-
crease a defendant’s sentence on the basis of certain con-
tested facts, those facts need not be proved to a jury beyond
a reasonable doubt. The judge’s findings, whether by proof
beyond a reasonable doubt or less, suffice for purposes of the
Constitution. Under the Court’s decision 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
differently. 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] sen-

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
547 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
tence that is constitutionally permissible when selected by a
court on the basis of whatever factors it deems appropriate
does not become impermissible simply because the court is
permitted to select that sentence only after making a finding
prescribed by the legislature.” Brief for United States as
Amicus Curiae 7. Although the Court acknowledges the
legitimacy of discretionary sentencing by judges, see ante,
at 481–482, it never provides a sound reason for treating
judicial factfinding under determinate-sentencing schemes
differently under the Constitution.
Justice Thomas’ 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 stat-
utory 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 519 (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 sentencing conducted by
judges. A defendant’s actual punishment can be affected in
a very real way by facts never alleged in an indictment,
never presented to a jury, and never proved beyond a reason-
able 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
Amendment’s jury trial guarantee further demonstrates why
our acceptance of judge-made findings in the context of dis-
cretionary sentencing suggests the approval of the same
judge-made findings in the context of determinate sentenc-
ing as well. One important purpose of the Sixth Amend-
ment’s jury trial guarantee is to protect the criminal defend-
ant against potentially arbitrary judges. It effectuates this
promise by preserving, as a constitutional matter, certain

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
548 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
fundamental decisions for a jury of one’s peers, as opposed
to a judge. For example, the Court has recognized that the
Sixth Amendment’s 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
juries’ power,” ibid. 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 de-
fendant 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 ap-
pointed by the crown, . . . who might then, as in France or
Turkey, imprison, dispatch, or exile any man that was obnox-
ious 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 Amend-
ment’s jury trial guarantee, if they were to extend to the
sentencing context at all, would apply with greater strength
to a discretionary-sentencing scheme than to determinate
sentencing. In the former scheme, the potential for mis-
chief by an arbitrary judge is much greater, given that the
judge’s decision of where to set the defendant’s sentence
within the prescribed 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
discretionary-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 defendant’s sentence, demonstrates that the
defendant should have no right to demand that a jury make

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
549 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
the equivalent factual determinations under a determinate-
sentencing scheme.
The Court appears to hold today, however, that a defend-
ant is entitled to have a jury decide, by proof beyond a rea-
sonable doubt, every fact relevant to the determination of
sentence under a determinate-sentencing scheme. If this is
an accurate description of the constitutional principle under-
lying the Court’s 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 523, n. 11, would have the same effect.
Prior to the most recent wave of sentencing reform,
the Federal Government and the States employed
indeterminate-sentencing schemes in which judges and
executive branch officials (e. g., parole board officials) had
substantial discretion to determine the actual length of a
defendant’s 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 Cen-
tury Fund Task Force on Criminal Sentencing, Fair and Cer-
tain Punishment 11–13 (1976) (hereinafter Task Force Re-
port); 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 situ-
ated 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 indetermi-
nate sentencing actually had the opposite effect. See, e. g.,
A. Campbell, Law of Sentencing 13 (1978) (“Paradoxically
the humanitarian impulse sparking the adoption of indeter-
minate sentencing systems in this country has resulted in

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
550 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
an actual increase of the average criminal’s 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 Reform Act of
1984, 18 U. S. C. § 3551 et seq. In the Act, Congress created
the United States Sentencing Commission, which in turn
promulgated the Sentencing Guidelines that now govern sen-
tencing by federal judges. See, e. g., United States Sentenc-
ing Commission, Guidelines Manual (Nov. 1998). Whether
one believes the determinate-sentencing reforms have
proved successful or not—and the subject is one of extensive
debate among commentators—the apparent effect of the
Court’s opinion today is to halt the current debate on sen-
tencing 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
constitutional rights meant to protect criminal defendants
from the potentially arbitrary exercise of power by prosecu-
tors 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 explained, the
Court does not say whether these schemes are constitutional,

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
551 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
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 threat-
ens to unleash a flood of petitions by convicted defendants
seeking to invalidate their sentences in whole or in part on
the authority of the Court’s decision today. Statistics com-
piled 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 Li-
brary, dated June 8, 2000 (total number of cases sentenced
under federal Sentencing Guidelines since 1989) (available
in Clerk of Court’s case file). Federal cases constitute only
the tip of the iceberg. In 1998, for example, federal crimi-
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 Per-
spective: Court Statistics Project (federal and state court
filings, 1998), http://www.ncsc.dni.us/divisions/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) (available in Clerk of Court’s case file). 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 cur-
rent determinate-sentencing schemes. Because the Court
fails to clarify the precise contours of the constitutional prin-
ciple 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 govern-
ing statutes and guidelines? The Court provides no answer,

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
552 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
yet its reasoning suggests that each new sentence will rest
on shaky ground. The most unfortunate aspect of today’s
decision is that our precedents did not foreordain this disrup-
tion in the world of sentencing. Rather, our cases tradition-
ally took a cautious approach to questions like the one pre-
sented 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 considerable confusion.
III
Because I do not believe that the Court’s “increase in the
maximum penalty” rule is required by the Constitution,
I would evaluate New Jersey’s sentence-enhancement stat-
ute, N. J. Stat. Ann. § 2C:44–3 (West Supp. 2000), by analyz-
ing the factors we have examined in past cases. See, e. g.,
Almendarez-Torres, 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 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 petitioner’s case, is constitution-
ally permissible. Under New Jersey law, the weapons pos-
session offense to which petitioner 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 intimidate because of race exposed him to a higher sen-
tence 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

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
553 Cite as: 530 U. S. 466 (2000)
O’Connor, J., dissenting
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 trans-
form it into a sentencing factor. See McMillan, 477 U. S.,
at 89.
In sum, New Jersey “simply took one factor that has al-
ways been considered by sentencing courts to bear on pun-
ishment”—a defendant’s motive for committing the criminal
offense—“and dictated the precise weight to be given that
factor” when the motive is to intimidate a person because
of race. Id., at 89–90. The Court claims that a purpose to
intimidate on account of race is a traditional mens rea ele-
ment, and not a motive. See ante, at 492–493. 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 punishment if the defendant intention-
ally selected the victim of the crime because of that victim’s
race. Id., at 480. In a unanimous decision upholding the
statute, we specifically characterized it as providing a sen-
tence enhancement based on the “motive” of the defendant.
See id., at 485 (distinguishing between punishment of defend-
ant’s “criminal conduct” and penalty enhancement “for con-
duct motivated by a discriminatory point of view” (emphasis
added)); id., at 484–485 (“[U]nder 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 character-
ization 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 deter-
mining a defendant’s sentence. Id., at 485. New Jersey,
therefore, has done no more than what we held permissible

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
554 APPRENDI v. NEW JERSEY
O’Connor, J., dissenting
in McMillan; it has taken a traditional sentencing factor and
dictated the precise weight judges should attach to that fac-
tor when the specific motive is to intimidate on the basis
of race.
The New Jersey statute resembles the Pennsylvania stat-
ute we upheld in McMillan in every respect but one. That
difference—that the New Jersey statute increases the maxi-
mum punishment to which petitioner was exposed—does not
persuade me that New Jersey “sought to evade the constitu-
tional requirements associated with the characterization of
a fact as an offense element.” Supra, at 524. There is no
question that New Jersey could prescribe a range of 5 to 20
years’ imprisonment as punishment for its weapons posses-
sion 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. Patter-
son, 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 undertaking to disprove [its] exist-
ence in order to convict of a crime which otherwise is within
its constitutional powers to sanction by substantial pun-
ishment”). The New Jersey statute also resembles in virtu-
ally every respect the federal statute we considered in
Almendarez-Torres. That the New Jersey statute provides
an enhancement based on the defendant’s motive while the
statute in Almendarez-Torres provided an enhancement
based on the defendant’s commission of a prior felony is a
difference without constitutional 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 would hold
that the New Jersey sentence-enhancement statute is consti-
tutional, and affirm the judgment of the Supreme Court of
New Jersey.

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
555 Cite as: 530 U. S. 466 (2000)
Breyer, J., dissenting
Justice Breyer, with whom The Chief Justice joins,
dissenting.
The majority holds that the Constitution contains the fol-
lowing requirement: “[A]ny fact [other than recidivism] that
increases the penalty for a crime beyond the prescribed stat-
utory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Ante, at 490. 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, preclude 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 supports the proposition that the Constitution
was not intended 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
convicted offender. The judge’s factfinding role is not inevi-
table. One could imagine, for example, a pure “charge of-
fense” 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 Sen-
tencing Commission, Sentencing Guidelines and Policy State-
ments, Part A, at 1.5 (1987) (hereinafter Sentencing Guide-
lines or Guidelines) (pointing out that a “charge offense”

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
556 APPRENDI v. NEW JERSEY
Breyer, J., dissenting
system by definition would ignore any fact “that did not con-
stitute [a] statutory elemen[t] of the offens[e] of which the
defendant was convicted”). Hence, that imaginary “charge
offense” system would not be a fair system, for it would lack
proportionality, i. e., it would treat different offenders simi-
larly despite major differences in the manner in which each
committed the same crime.
There are many such manner-related differences in re-
spect to criminal behavior. Empirical data collected by the
Sentencing Commission make clear that, before the Guide-
lines, judges who exercised discretion within broad legisla-
tively 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 distributed (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’s
role in the offense, recidivism, and many other offense-
related or offender-related factors. See United States Sen-
tencing Commission, Supplementary Report on the Initial
Sentencing Guidelines and Policy Statements 35–39 (1987)
(hereinafter Supplementary Report) (table listing data rep-
resenting more than 20 such factors); see generally Depart-
ment 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 discretion in this way.
Nonetheless, it is important for present purposes to under-
stand why judges, rather than juries, traditionally have de-
termined 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 practical one. It
does not reflect (Justice Scalia’s opinion to the contrary
notwithstanding) an ideal of procedural “fairness,” ante, at
498 (concurring opinion), but rather an administrative need

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
557 Cite as: 530 U. S. 466 (2000)
Breyer, J., dissenting
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 rob-
ber 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 cus-
tomer, 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 company of a few
(or many) other robbers, for the first (or fourth) time
that day, while sober (or under the influence 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 un-
workable and seriously compromise the certainty of pun-
ishment 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
such factors—say, during trial where the issue is guilt or
innocence—could easily place the defendant in the awkward
(and conceivably unfair) position of having to deny he com-
mitted the crime yet offer proof about how he committed
it, e. g., “I 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 proba-
tion officers’ presentence reports, while permitting a con-
victed offender to challenge the information’s accuracy at a
hearing before the judge without benefit of trial-type evi-
dentiary rules. See Williams v. New York, 337 U. S. 241,

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
558 APPRENDI v. NEW JERSEY
Breyer, J., dissenting
249–251 (1949) (describing the modern “practice of individ-
ualizing 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 ac-
count for sentencing purposes. In principle, the number
of potentially relevant behavioral characteristics is endless.
A judge might ask, for example, whether an unlawfully pos-
sessed knife was “a switchblade, drawn or concealed, opened
or closed, large or small, used in connection with a car theft
(where victim confrontation is rare), a burglary (where con-
frontation is unintended) or a robbery (where confrontation
is intentional).” United States Sentencing Commission,
Preliminary Observations of the Commission on Commis-
sioner Robinson’s Dissent 3, n. 3 (May 1, 1987). Again, the
method reflects practical, rather than theoretical, considera-
tions. Prior to the Sentencing Guidelines, federal law left
the individual sentencing judge free to determine which fac-
tors were relevant. That freedom meant that each judge, in
an effort to tailor punishment to the individual offense and
offender, was guided primarily by experience, relevance, and
a sense of proportional fairness. Cf. Supplementary Report
16–17 (noting 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 poten-
tially related to generally harmful behavior it should trans-
form into elements of a statutorily defined crime (where
they would become relevant to the guilt or innocence of an
accused), and which factual circumstances it should leave to

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
559 Cite as: 530 U. S. 466 (2000)
Breyer, J., dissenting
the sentencing process (where, as sentencing 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 defining crimes in terms of ele-
ments, have looked for guidance to common-law tradition, to
history, and to current social need. And, traditionally, the
Court has left legislatures considerable freedom to make the
element determination. See Almendarez-Torres v. United
States, 523 U. S. 224, 228 (1998); McMillan v. Pennsylvania,
477 U. S. 79, 85 (1986).
By placing today’s 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 admin-
istrability 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 work-
able system and one that has long been thought consistent
with the Constitution; why, then, would the Constitution
treat sentencing statutes any differently?
II
As Justice Thomas 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 510–512, 518
(concurring opinion). But the Constitution does not freeze
19th-century sentencing practices into permanent law. And
dissatisfaction with the traditional sentencing system (re-
flecting its tendency to treat similar cases differently) has
led modern legislatures to write new laws that refer specifi-
cally to sentencing factors. See Supplementary Report 1

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
560 APPRENDI v. NEW JERSEY
Breyer, J., dissenting
(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 uni-
form judicial exercise of that discretion. Congress, for ex-
ample, 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 Commission, 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) 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 particular
factor will affect the sentence imposed or by specifying
how a commission should use a particular factor when writ-
ing a guideline. Such a statute might state explicitly, for
example, that a particular factor, say, use of a weapon, re-
cidivism, 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 (Pennsylvania statute ex-
pressly treated “visible possession of a firearm” as a sen-
tencing consideration that subjected a defendant to a manda-
tory 5-year term of imprisonment).
The issue the Court decides today involves this second
kind of legislation. The Court holds that a legislature can-
not enact such legislation (where an increase in the maxi-
mum is involved) unless the factor at issue has been charged,

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
561 Cite as: 530 U. S. 466 (2000)
Breyer, J., dissenting
tried to a jury, and found to exist beyond a reasonable doubt.
My question in respect to this holding is, simply, “why would
the Constitution contain such a requirement”?
III
In light of the sentencing background described in Parts
I and II, I do not see how the majority can find in the Con-
stitution a requirement that “any fact” (other than recidi-
vism) that increases the maximum penalty for a crime “must
be submitted to a jury.” Ante, at 490. As Justice O’Con-
nor demonstrates, this Court has previously failed to view
the Constitution as embodying any such principle, while
sometimes finding to the contrary. See Almendarez-Torres,
supra, at 239–247; McMillan, supra, at 84–91. The major-
ity raises no objection to traditional pre-Guidelines sen-
tencing procedures under which judges, not juries, made
the factual findings that would lead to an increase in an in-
dividual offender’s sentence. How does a legislative deter-
mination differ in any significant way? For example, if a
judge may on his or her own decide that victim injury or bad
motive should increase a bank robber’s sentence from 5 years
to 10, why does it matter that a legislature instead enacts a
statute that increases a bank robber’s sentence from 5 years
to 10 based on this same judicial finding?
With the possible exception of the last line of Justice
Scalia’s concurring opinion, the majority also makes no
constitutional objection to a legislative delegation to a com-
mission of the authority to create guidelines that determine
how a judge is to exercise sentencing discretion. See also
ante, at 523, n. 11 (Thomas, J., concurring) (reserving the
question). But if the Constitution permits Guidelines, why
does it not permit Congress similarly to guide the exercise
of a judge’s sentencing discretion? That is, if the Consti-
tution permits a delegatee (the commission) to exercise
sentencing-related rulemaking power, how can it deny the

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
562 APPRENDI v. NEW JERSEY
Breyer, J., dissenting
delegator (the legislature) what is, in effect, the same rule-
making power?
The majority appears to offer two responses. First, it ar-
gues for a limiting principle that would prevent a legislature
with broad authority from transforming ( jury-determined)
facts that constitute elements of a crime into ( judge-
determined) sentencing factors, thereby removing proce-
dural protections that the Constitution would otherwise re-
quire. See ante, at 486 (“[C]onstitutional limits” prevent
States from “defin[ing] away facts necessary to constitute a
criminal offense”). The majority’s cure, however, is not
aimed at the disease.
The same “transformational” problem exists under tradi-
tional sentencing law, where legislation, silent as to sentenc-
ing factors, grants the judge virtually unchecked discretion
to sentence within a broad range. Under such a system,
judges or prosecutors can similarly “transform” crimes, pun-
ishing an offender convicted of one crime as if he had com-
mitted another. A prosecutor, for example, might charge an
offender with five counts of embezzlement (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 sen-
tencing 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 legislative
power to select elements defining a crime, the traditional
legislative power to set broad sentencing ranges, and the tra-
ditional judicial power to choose a sentence within that range
on the basis of relevant offender conduct. 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

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
563 Cite as: 530 U. S. 466 (2000)
Breyer, J., dissenting
relevant conduct, with sensitivity to the need for procedural
protections where sentencing 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 unfair-
ness. 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.” The
Court points out that a sentencing judge (or a commission)
traditionally has determined, and now still determines, sen-
tences within a legislated range capped by a maximum (a
range that the legislature itself sets). See ante, at 481–482.
I concede the truth of the majority’s statement, but I do not
understand its relevance.
From a defendant’s perspective, the legislature’s decision
to cap the possible range of punishment at a statutorily pre-
scribed “maximum” would affect the actual sentence imposed
no differently than a sentencing commission’s (or a sentenc-
ing judge’s) similar determination. Indeed, as a practical
matter, a legislated mandatory “minimum” is far more im-
portant to an actual defendant. A judge and a commission,
after all, are legally free to select any sentence below a stat-
ute’s maximum, but they are not free to subvert a statutory
minimum. And, as Justice Thomas indicates, all the con-
siderations of fairness 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 statu-
tory minimum. See ante, at 521–522 (concurring opinion).
To repeat, I do not understand why, when a legislature au-
thorizes a judge to impose a higher penalty for bank robbery
(based, say, on the court’s finding that a victim was injured
or the defendant’s motive was bad), a new crime is born; but

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
564 APPRENDI v. NEW JERSEY
Breyer, J., dissenting
where a legislature requires a judge to impose a higher pen-
alty 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 that the present sentencing
system is one of “perfect equity,” ante, at 498 (Scalia, J.,
concurring), and I am willing, consequently, to assume that
the majority’s rule would provide a degree of increased pro-
cedural protection in respect to those particular sentencing
factors currently embodied in statutes. I nonetheless be-
lieve that any such increased protection provides little prac-
tical help and comes at too high a price. For one thing, by
leaving mandatory minimum sentences untouched, the ma-
jority’s rule simply encourages any legislature interested
in asserting control over the sentencing process to do so
by creating those minimums. That result would mean sig-
nificantly less procedural fairness, 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 legis-
latures to believe that they were permitted to increase a
statutory maximum sentence on the basis of a sentencing
factor. See ante, at 529–539 (O’Connor, J., dissenting); see
also, e. g., McMillan, supra, at 84–91 (indicating that a leg-
islature could impose mandatory sentences on the basis of
sentencing factors, thereby suggesting it could impose more
flexible statutory maximums on same basis). And legis-
latures may well have relied upon that belief. See, e. g., 21
U. S. C. § 841(b) (1994 ed. and Supp. III) (providing penalties
for, among other things, possessing a “controlled substance”
with intent to distribute it, which sentences vary dramati-
cally 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:44–1a–f, 2C:44–3 (West
1995 and Supp. 1999–2000) (setting sentencing ranges for
crimes, while providing for lesser or greater punishments

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
565 Cite as: 530 U. S. 466 (2000)
Breyer, J., dissenting
depending upon judicial findings regarding certain “aggra-
vating” or “mitigating” factors); Cal. Penal Code Ann. § 1170
(West Supp. 2000) (similar); see also Cal. Court Rule 420(b)
(1996) (providing that “[c]ircumstances 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 Justice O’Connor points out, the majority’s rule
creates serious uncertainty about the constitutionality of
such statutes and about the constitutionality of the con-
finement of those punished under them. See ante, at 549–
552 (dissenting opinion). The few amicus briefs that the
Court received in this case do not discuss the impact of
the Court’s 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 over-
stated; yet it may also suggest that (despite Jones and given
Almendarez-Torres) so absolute a constitutional prohibition
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 system (if applied
to judges) or threatens efforts to make those systems more
uniform, hence more fair (if applied to commissions).
Finally, the Court’s new rule will likely impede legislative
attempts to provide authoritative guidance as to how courts
should respond to the presence of traditional sentencing
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 mat-
tered, when the length of a sentence is at issue. The State
of New Jersey has determined that one motive—racial ha-
tred—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 proce-

530US2 Unit: $U79 [11-08-01 06:47:38] PAGES PGT: OPIN
566 APPRENDI v. NEW JERSEY
Breyer, J., dissenting
dural protections might well be desirable, for the reasons
Justice O’Connor discusses and those I have discussed,
I do not believe the Constitution requires them where ordi-
nary sentencing factors are at issue. Consequently, in my
view, New Jersey’s statute is constitutional.
I respectfully dissent.