[ Ginsburg ]
[ Scalia ]
[ Kennedy ]
[ Breyer ]
[ OConnor ]
TIMOTHY STUART RING, PETITIONER v. ARIZONA
ON WRIT OF CERTIORARI TO THE SUPREME COURT
[June 24, 2002]
Justice Ginsburg delivered the opinion of the Court.
This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendants guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.
In Walton v. Arizona, 497 U.S. 639 (1990), this Court held that Arizonas sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as element[s] of the offense of capital murder. Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be expose[d] to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. Id., at 483. This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as sentencing factor[s]. Id., at 492.
Apprendis reasoning is irreconcilable with Waltons holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.
At the trial of petitioner Timothy Ring for murder, armed robbery, and related charges, the prosecutor presented evidence sufficient to permit the jury to find the facts here recounted. On November 28, 1994, a Wells Fargo armored van pulled up to the Dillards department store at Arrowhead Mall in Glendale, Arizona. Tr. 57, 6061 (Nov. 14, 1996). Courier Dave Moss left the van to pick up money inside the store. Id., at 61, 7374. When he returned, the van, and its driver, John Magoch, were gone. Id., at 6162.
Later that day, Maricopa County Sheriffs Deputies found the vanits doors locked and its engine runningin the parking lot of a church in Sun City, Arizona. Id., at 99100 (Nov. 13, 1996). Inside the vehicle they found Magoch, dead from a single gunshot to the head. Id., at 101. According to Wells Fargo records, more than $562,000 in cash and $271,000 in checks were missing from the van. Id., at 10 (Nov. 18, 1996).
Prompted by an informants tip, Glendale police sought to determine whether Ring and his friend James Greenham were involved in the robbery. The police investigation revealed that the two had made several expensive cash purchases in December 1994 and early 1995. E.g., id., at 153156 (Nov. 14, 1996); id., at 9094 (Nov. 21, 1996). Wiretaps were then placed on the telephones of Ring, Greenham, and a third suspect, William Ferguson. Id., at 1921 (Nov. 18, 1996).
In one recorded phone conversation, Ring told Ferguson that Ring might cu[t] off Greenham because [h]es too much of a risk: Greenham had indiscreetly flaunted a new truck in front of his ex-wife. States Exh. 49A, pp. 1112. Ring said he could cut off his associate because he held both [Greenhams] and mine. Id., at 11. The police engineered a local news broadcast about the robbery investigation; they included in the account several intentional inaccuracies. Tr. 35, 1314 (Nov. 19, 1996). On hearing the broadcast report, Ring left a message on Greenhams answering machine to remind me to talk to you tomorrow and tell you about what was on the news tonight. Very important, and also fairly good. States Exh. 55A, p. 2.
After a detective left a note on Greenhams door asking him to call, Tr. 115118 (Nov. 18, 1996), Ring told Ferguson that he was puzzled by the attention the police trained on Greenham. [H]is house is clean, Ring said; [m]ine, on the other hand, contains a very large bag. States Exh. 70A, p. 7.
On February 14, 1995, police furnished a staged reenactment of the robbery to the local news, and again included deliberate inaccuracies. Tr. 5 (Nov. 19, 1996). Ferguson told Ring that he laughed when he saw the broadcast, and Ring called it humorous. States Exh. 80A, p. 3. Ferguson said he was not real worried at all now; Ring, however, said he was slightly concern[ed] about the possibility that the police might eventually ask for hair samples. Id., at 34.
Two days later, the police executed a search warrant at Rings house, discovering a duffel bag in his garage containing more than $271,000 in cash. Tr. 107108, 111, 125 (Nov. 20, 1996). They also found a note with the number 575,995 on it, followed by the word splits and the letters F, Y, and T. Id., at 127130. The prosecution asserted that F was Ferguson, Y was Yoda (Greenhams nickname), and T was Timothy Ring. Id., at 42 (Dec. 5, 1996).
Testifying in his own defense, Ring said the money seized at his house was startup capital for a construction company he and Greenham were planning to form. Id., at 1011 (Dec. 3, 1996). Ring testified that he made his share of the money as a confidential informant for the Federal Bureau of Investigation and as a bail bondsman and gunsmith. Id., at 162, 166167, 180 (Dec. 2, 1996). But an FBI agent testified that Ring had been paid only $458, id., at 47 (Nov. 20, 1996), and other evidence showed that Ring had made no more than $8,800 as a bail bondsman, id., at 4851 (Nov. 21, 1996); id., at 21 (Nov. 25, 1996).
The trial judge instructed the jury on alternative charges of premeditated murder and felony murder. The jury deadlocked on premeditated murder, with 6 of 12 jurors voting to acquit, but convicted Ring of felony murder occurring in the course of armed robbery. See Ariz. Rev. Stat. Ann. §131105(A) and (B) (West 2001) (A person commits first degree murder if [a]cting either alone or with one or more other persons the person commits or attempts to commit [one of several enumerated felonies] and in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person. Homicide, as prescribed in [this provision] requires no specific mental state other than what is required for the commission of any of the enumerated felonies.).
As later summed up by the Arizona Supreme Court, the evidence admitted at trial failed to prove, beyond a reasonable doubt, that [Ring] was a major participant in the armed robbery or that he actually murdered Magoch. 200 Ariz. 267, 280, 25 P.3d 1139, 1152 (2001). Although clear evidence connected Ring to the robberys proceeds, nothing submitted at trial put him at the scene of the robbery. See ibid. Furthermore, [f]or all we know from the trial evidence, the Arizona court stated, [Ring] did not participate in, plan, or even expect the killing. This lack of evidence no doubt explains why the jury found [Ring] guilty of felony, but not premeditated, murder. Ibid.
Under Arizona law, Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made. The States first-degree murder statute prescribes that the offense is punishable by death or life imprisonment as provided by §13703. Ariz. Rev. Stat. Ann. §131105(C) (West 2001). The cross-referenced section, §13703, directs the judge who presided at trial to conduct a separate sentencing hearing to determine the existence or nonexistence of [certain enumerated] circumstances
for the purpose
of determining the sentence to be imposed. §13703(C) (West Supp. 2001). The statute further instructs: The hearing shall be conducted before the court alone. The court alone shall make all factual determinations required by this section or the constitution of the United States or this state. Ibid.
At the conclusion of the sentencing hearing, the judge is to determine the presence or absence of the enumerated aggravating circumstances1 and any mitigating circumstances.
Between Rings trial and sentencing hearing, Greenham pleaded guilty to second-degree murder and armed robbery. He stipulated to a 27½ year sentence and agreed to cooperate with the prosecution in the cases against Ring and Ferguson. Tr. 3537 (Oct. 9, 1997).
Called by the prosecution at Rings sentencing hearing, Greenham testified that he, Ring, and Ferguson had been planning the robbery for several weeks before it occurred. According to Greenham, Ring had I guess taken the role as leader because he laid out all the tactics. Id., at 39. On the day of the robbery, Greenham said, the three watched the armored van pull up to the mall. Id., at 45. When Magoch opened the door to smoke a cigarette, Ring shot him with a rifle equipped with a homemade silencer. Id., at 42, 4445. Greenham then pushed Magochs body aside and drove the van away. Id., at 45. At Rings direction, Greenham drove to the church parking lot, where he and Ring transferred the money to Rings truck. Id., at 46, 48. Later, Greenham recalled, as the three robbers were dividing up the money, Ring upbraided him and Ferguson for forgetting to congratulate [Ring] on [his] shot. Id.,
On cross-examination, Greenham acknowledged having previously told Rings counsel that Ring had nothing to do with the planning or execution of the robbery. Id., at 8587. Greenham explained that he had made that prior statement only because Ring had threatened his life. Id., at 87. Greenham also acknowledged that he was now testifying against Ring as pay back for the threats and for Rings interference in Greenhams relationship with Greenhams ex-wife. Id., at 9092.
On October 29, 1997, the trial judge entered his Special Verdict sentencing Ring to death. Because Ring was convicted of felony murder, not premeditated murder, the judge recognized that Ring was eligible for the death penalty only if he was Magochs actual killer or if he was a major participant in the armed robbery that led to the killing and exhibited a reckless disregard or indifference for human life. App. to Pet. for Cert. 46a47a; see Enmund v. Florida, 458 U.S. 782 (1982) (Eighth Amendment requires finding that felony-murder defendant killed or attempted to kill); Tison v. Arizona, 481 U.S. 137, 158 (1987) (qualifying Enmund, and holding that Eighth Amendment permits execution of felony-murder defendant, who did not kill or attempt to kill, but who was a major participa[nt] in the felony committed and who demonstrated reckless indifference to human life).
Citing Greenhams testimony at the sentencing hearing, the judge concluded that Ring is the one who shot and killed Mr. Magoch. App. to Pet. for Cert. 47a. The judge also found that Ring was a major participant in the robbery and that armed robbery is unquestionably a crime which carries with it a grave risk of death. Ibid.
The judge then turned to the determination of aggravating and mitigating circumstances. See §13703. He found two aggravating factors. First, the judge determined that Ring committed the offense in expectation of receiving something of pecuniary value, as described in §13703; [t]aking the cash from the armored car was the motive and reason for Mr. Magochs murder and not just the result. App. to Pet. for Cert. 49a. Second, the judge found that the offense was committed in an especially heinous, cruel or depraved manner. Ibid. In support of this finding, he cited Rings comment, as reported by Greenham at the sentencing hearing, expressing pride in his marksmanship. Id., at 49a50a. The judge found one nonstatutory mitigating factor: Rings minimal criminal record. Id., at 52a. In his judgment, that mitigating circumstance did not call for leniency; he therefore sentenced Ring to death. Id., at 53a.
On appeal, Ring argued that Arizonas capital sentencing scheme violates the Sixth and Fourteenth Amendments to the U.S. Constitution because it entrusts to a judge the finding of a fact raising the defendants maximum penalty. See Jones v. United States, 526 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000). The State, in response, noted that this Court had upheld Arizonas system in Walton v. Arizona, 497 U.S. 639 (1990), and had stated in Apprendi that Walton remained good law.
Reviewing the death sentence, the Arizona Supreme Court made two preliminary observations. Apprendi and Jones, the Arizona high court said, raise some question about the continued viability of Walton. 200 Ariz., at 278, 25 P.3d, at 1150. The court then examined the Apprendi majoritys interpretation of Arizona law and found it wanting. Apprendi, the Arizona court noted, described Arizonas sentencing system as one that
After reciting this Courts divergent constructions of Arizona law in Apprendi, the Arizona Supreme Court described how capital sentencing in fact works in the State. The Arizona high court concluded that the present case is precisely as described in Justice OConnors dissent [in Apprendi]Defendants death sentence required the judges factual findings. 200 Ariz., at 279, 25 P.3d, at 1151. Although it agreed with the Apprendi dissents reading of Arizona law, the Arizona court understood that it was bound by the Supremacy Clause to apply Walton, which this Court had not overruled. It therefore rejected Rings constitutional attack on the States capital murder judicial sentencing system. 200 Ariz., at 280, 25 P.3d, at 1152.
The court agreed with Ring that the evidence was insufficient to support the aggravating circumstance of depravity, id., at 281282, 25 P.3d, at 11531154, but it upheld the trial courts finding on the aggravating factor of pecuniary gain. The Arizona Supreme Court then reweighed that remaining factor against the sole mitigating circumstance (Rings lack of a serious criminal record), and affirmed the death sentence. Id., at 282284, 25 P.3d, at 11541156.
We granted Rings petition for a writ of certiorari, 534 U.S. 1103 (2002), to allay uncertainty in the lower courts caused by the manifest tension between Walton and the reasoning of Apprendi. See, e.g., United States v. Promise, 255 F.3d 150, 159160 (CA4 2001) (en banc) (calling the continued authority of Walton in light of Apprendi perplexing); Hoffman v. Arave, 236 F.3d 523, 542 (CA9 2001) (Apprendi may raise some doubt about Walton.); People v. Kaczmarek, 318 Ill. App. 3d 340, 351352, 741 N. E. 2d 1131, 1142 (2000) ([W]hile it appears Apprendi extends greater constitutional protections to noncapital, rather than capital, defendants, the Court has endorsed this precise principle, and we are in no position to secondguess that decision here.). We now reverse the judgment of the Arizona Supreme Court.
Based solely on the jurys verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. See 200 Ariz., at 279, 25 P.3d, at 1151 (citing Ariz. Rev. Stat. §13703). This was so because, in Arizona, a death sentence may not legally be imposed unless at least one aggravating factor is found to exist beyond a reasonable doubt. 200 Ariz., at 279, 25 P.3d, at 1151 (citing §13703). The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendments jury trial guarantee,3 made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.4
As earlier indicated, see supra, at 1, 89, this is not the first time we have considered the constitutionality of Arizonas capital sentencing system. In Walton v. Arizona, 497 U.S. 639 (1990), we upheld Arizonas scheme against a charge that it violated the Sixth Amendment. The Court had previously denied a Sixth Amendment challenge to Floridas capital sentencing system, in which the jury recommends a sentence but makes no explicit findings on aggravating circumstances; we so ruled, Walton noted, on the ground that the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury. Id., at 648 (quoting Hildwin v. Florida, 490 U.S. 638, 640641 (1989) (per curiam)). Walton found unavailing the attempts by the defendant-petitioner in that case to distinguish Floridas capital sentencing system from Arizonas. In neither State, according to Walton, were the aggravating factors elements of the offense; in both States, they ranked as sentencing considerations guiding the choice between life and death. 497 U.S., at 648 (internal quotation marks omitted).
Walton drew support from Cabana v. Bullock, 474 U.S. 376 (1986), in which the Court held there was no constitutional bar to an appellate courts finding that a defendant killed, attempted to kill, or intended to kill, as Enmund v. Florida, 458 U.S. 782 (1982), required for imposition of the death penalty in felony-murder cases. The Enmund finding could be made by a court, Walton maintained, because it entailed no
In dissent in Walton, Justice Stevens urged that the Sixth Amendment requires a jury determination of facts that must be established before the death penalty may be imposed. Id., at 709. Aggravators operate as statutory elements of capital murder under Arizona law, he reasoned, because in their absence, [the death] sentence is unavailable. Id., at 709, n. 1. If th[e] question had been posed in 1791, when the Sixth Amendment became law, Justice Stevens said, the answer would have been clear, for [b]y that time,
the English jurys role in determining critical facts in homicide cases was entrenched. As fact-finder, the jury had the power to determine not only whether the defendant was guilty of homicide but also the degree of the offense. Moreover, the jurys role in finding facts that would determine a homicide defendants eligibility for capital punishment was particularly well established. Throughout its history, the jury determined which homicide defendants would be subject to capital punishment by making factual determinations, many of which related to difficult assessments of the defendants state of mind. By the time the Bill of Rights was adopted, the jurys right to make these determinations was unquestioned. Id., at 710711 (quoting White, Fact-Finding and the Death Penalty: The Scope of a Capital Defendants Right to Jury Trial, 65 Notre Dame L. Rev. 1, 1011 (1989)).
Walton was revisited in Jones v. United States, 526 U.S. 227 (1999). In that case, we construed the federal carjacking statute, 18 U.S.C. § 2119 (1994 ed. and Supp. V), which, at the time of the criminal conduct at issue, provided that a person possessing a firearm who takes a motor vehicle from the person or presence of another by force and violence or by intimidation shall(1) be imprisoned not more than 15 years , (2) if serious bodily injury results, be imprisoned not more than 25 years , and (3) if death results, be imprisoned for any number of years up to life . The question presented in Jones was whether the statute defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict. 526 U.S., at 229.
The carjacking statute, we recognized, was susceptible of [both] constructions; we adopted the one that avoided grave and doubtful constitutional questions. Id., at 239 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)). Section 2119, we held, established three separate offenses. Therefore, the factscausation of serious bodily injury or deathnecessary to trigger the escalating maximum penalties fell within the jurys province to decide. See Jones, 526 U.S., at 251252. Responding to the dissenting opinion, the Jones Court restated succinctly the principle animating its view that the carjacking statute, if read to define a single crime, might violate the Constitution: [U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial 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.
Jones endeavored to distinguish certain capital sentencing decisions, including Walton. Advancing a careful reading of Waltons rationale, the Jones Court said: Walton characterized the finding of aggravating facts falling within the traditional scope of capital sentencing as a choice between a greater and a lesser penalty, not as a process of raising the ceiling of the sentencing range available. 526 U.S., at 251.
Dissenting in Jones, Justice Kennedy questioned the Courts account of Walton. The aggravating factors at issue in Walton, he suggested, were not merely circumstances for consideration by the trial judge in exercising sentencing discretion within a statutory range of penalties. Under the relevant Arizona statute, Justice Kennedy observed, Walton could not have been sentenced to death unless the trial judge found at least one of the enumerated aggravating factors. Absent such a finding, the maximum potential punishment provided by law was a term of imprisonment. 526 U.S., at 272 (cita-
tion omitted). Jones, Justice Kennedy concluded, cast doubtneedlessly in his viewon the vitality of Walton:
If it is constitutionally impermissible to allow a judges finding to increase the maximum punishment for carjacking by 10 years, it is not clear why a judges finding may increase the maximum punishment for murder from imprisonment to death. In fact, Walton would appear to have been a better candidate for the Courts new approach than is the instant case. 526 U.S., at 272.
One year after Jones, the Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The defendant-petitioner in that case was convicted of, inter alia, second-degree possession of a firearm, an offense carrying a maximum penalty of ten years under New Jersey law. See id., at 469470. On the prosecutors motion, the sentencing judge found by a preponderance of the evidence that Apprendis crime had been motivated by racial animus. That finding triggered application of New Jerseys hate crime enhancement, which doubled Apprendis maximum authorized sentence. The judge sentenced Apprendi to 12 years in prison, 2 years over the maximum that would have applied but for the enhancement.
We held that Apprendis sentence violated his right to a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Id., at 477 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). That right attached not only to Apprendis weapons offense but also to the hate crime aggravating circumstance. New Jersey, the Court observed, threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race. Apprendi, 530 U.S., at 476. Merely using the label sentence enhancement to describe the [second act] surely does not provide a principled basis for treating [the two acts] differently. Ibid.
The dispositive question, we said, is one not of form, but of effect. Id., at 494. If a State makes an increase in a defendants authorized punishment contingent on the finding of a fact, that factno matter how the State labels itmust be found by a jury beyond a reasonable doubt. See id., at 482483. A defendant may not be expose[d] to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. Id., at 483; see also id., at 499 (Scalia, J., concurring) ([A]ll the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.).
Walton could be reconciled with Apprendi, the Court finally asserted. The key distinction, according to the Apprendi Court, was that a conviction of first-degree murder in Arizona carried a maximum sentence of death. [O]nce a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed. 530 U.S., at 497 (emphasis deleted) (quoting Almendarez-Torres v. United States, 523 U.S. 224, 257, n. 2 (1998) (Scalia, J.,
The Apprendi dissenters called the Courts distinction of Walton baffling. 530 U.S., at 538 (opinion of OConnor, J.). The Court claimed that the jury makes all of the findings necessary to expose the defendant to a death sentence. Ibid. That, the dissent said, was demonstrably untrue, for a defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty. Ibid. Walton, the Apprendi dissenters insisted, if properly followed, would have required the Court to uphold Apprendis sentence. If a State can remove from the jury a factual determination that makes the difference between life and death, as Walton holds that it can, it is inconceivable why a State cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed. 530 U.S., at 537 (opinion of OConnor, J.).
The Arizona Supreme Court, as we earlier recounted, see supra, at 89, found the Apprendi majoritys portrayal of Arizonas capital sentencing law incorrect, and the description in Justice OConnors dissent precisely right: Defendants death sentence required the judges factual findings. 200 Ariz., at 279, 25 P.3d, at 1151. Recognizing that the Arizona courts construction of the States own law is authoritative, see Mullaney v. Wilbur, 421 U.S. 684, 691 (1975), we are persuaded that Walton, in relevant part, cannot survive the reasoning of Apprendi.
In an effort to reconcile its capital sentencing system with the Sixth Amendment as interpreted by Apprendi, Arizona first restates the Apprendi majoritys portrayal of Arizonas system: Ring was convicted of first-degree murder, for which Arizona law specifies death or life imprisonment as the only sentencing options, see Ariz. Rev. Stat. Ann. §131105(C) (West 2001); Ring was therefore sentenced within the range of punishment authorized by the jury verdict. See Brief for Respondent 919. This argument overlooks Apprendis instruction that the relevant inquiry is one not of form, but of effect. 530 U.S., at 494. In effect, the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jurys guilty verdict. Ibid.; see 200 Ariz., at 279, 25 P.3d, at 1151. The Arizona first-degree murder statute authorizes a maximum penalty
of death only in a formal sense, Apprendi, 530 U.S., at 541 (OConnor, J., dissenting), for it explicitly cross-references the statutory provision requiring the finding
of an aggravating circumstance before imposition of the death penalty. See §131105(C) (First degree murder is
a class 1 felony and is punishable by death or life imprisonment as provided by §13703. (emphasis added)). If Arizona prevailed on its opening argument, Apprendi would be reduced to a meaningless and formalistic rule of statutory drafting. See 530 U.S., at 541 (OConnor, J., dissenting).
Arizona also supports the distinction relied upon in Walton between elements of an offense and sentencing factors. See supra, at 1112; Tr. of Oral Arg. 2829. As to elevation of the maximum punishment, however, Apprendi renders the argument untenable;5 Apprendi repeatedly instructs in that context that the characterization of a fact or circumstance as an element or a sentencing factor is not determinative of the question who decides, judge or jury. See, e.g., 530 U.S., at 492 (noting New Jerseys contention that [t]he required finding of biased purpose is not an element of a distinct hate crime offense, but rather the traditional sentencing factor of motive, and calling this argument nothing more than a disagreement with the rule we apply today); id., at 494, n. 19 ([W]hen the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict.); id., at 495 ([M]erely because the state legislature placed its hate crime sentence enhancer within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not
an essential element of the offense. (internal quotation marks omitted)); see also id., at 501 (Thomas, J., concurring) ([I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact[,] the core crime and the aggravating fact together constitute an 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.).
Even if facts increasing punishment beyond the maximum authorized by a guilty verdict standing alone ordinarily must be found by a jury, Arizona further urges, aggravating circumstances necessary to trigger a death sentence may nonetheless be reserved for judicial determination. As Arizonas counsel maintained at oral argument, there is no doubt that [d]eath is different. Tr. of Oral Arg. 43. States have constructed elaborate sentencing procedures in death cases, Arizona emphasizes, because of constraints we have said the Eighth Amendment places on capital sentencing. Brief for Respondent 2125 (citing Furman v. Georgia, 408 U.S. 238 (1972) (per curiam)); see also Maynard v. Cartwright, 486 U.S. 356, 362 (1988) (Since Furman, our cases have insisted that the channeling and limiting of the sentencers discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.); Apprendi, 530 U.S., at 522523 (Thomas, J., concurring) ([I]n the area of capital punishment, unlike any other area, we have imposed special constraints on a legislatures ability to determine what facts shall lead to what punishmentwe have restricted the legislatures ability to define crimes.).
Apart from the Eighth Amendment provenance of aggravating factors, Arizona presents no specific reason for excepting capital defendants from the constitutional protections extend[ed] to defendants generally, and none is readily apparent. Id., at 539 (OConnor, J., dissenting). The notion that the Eighth Amendments restriction on a state legislatures ability to define capital crimes should be compensated for by permitting States more leeway under the Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence is without precedent in our constitutional jurisprudence. Ibid.
In various settings, we have interpreted the Constitution to require the addition of an element or elements to the definition of a criminal offense in order to narrow its scope. See, e.g., United States v. Lopez, 514 U.S. 549, 561562 (1995) (suggesting that addition to federal gun possession statute of express jurisdictional element requiring connection between weapon and interstate commerce would render statute constitutional under Commerce Clause); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (First Amendment prohibits States from proscrib[ing] advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action); Lambert v. California, 355 U.S. 225, 229 (1957) (Due Process Clause of Fourteenth Amendment requires actual knowledge of the duty to register or proof of the probability of such knowledge before ex-felon may be convicted of failing to register presence in municipality). If a legislature responded to one of these decisions by adding the element we held constitutionally required, surely the Sixth Amendment guarantee would apply to that element. We see no reason to differentiate capital crimes from all others in this
Arizona suggests that judicial authority over the finding of aggravating factors may be a better way to guarantee against the arbitrary imposition of the death penalty. Tr. of Oral Arg. 32. The Sixth Amendment jury trial right, however, does not turn on the relative rationality, fairness, or efficiency of potential factfinders. Entrusting to a judge the finding of facts necessary to support a death sentence might be
an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free. Apprendi, 530 U.S., at 498 (Scalia, J., concurring).
In any event, the superiority of judicial factfinding in capital cases is far from evident. Unlike Arizona, the great majority of States responded to this Courts Eighth Amendment decisions requiring the presence of aggravating circumstances in capital cases by entrusting those determinations to the jury.6
For the reasons stated, we hold that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647649. Because Arizonas enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, Apprendi, 530 U.S., at 494, n. 19, the Sixth Amendment requires that they be found by a jury.
* * *
The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.
If the defendant preferred the
common-sense judgment of a jury to the more tutored
but perhaps less sympathetic reaction of the single judge, he was to have it. Duncan v. Louisiana, 391 U.S. 145, 155156 (1968).
The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendants sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both. The judgment of the Arizona Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.7
It is so ordered.
1. The aggravating circumstances, enumerated in Ariz. Rev. Stat. Ann. §13703(G) (West Supp. 2001), are: 1. The defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable. 2. The defendant was previously convicted of a serious offense, whether prepatory or completed. 3. In the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense. 4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value. 5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value. 6. The defendant committed the offense in an especially heinous, cruel or depraved manner. 7. The defendant committed the offense while in the custody of or
on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail. 8. The defendant has been convicted of one or more other homicides, as defined in §131101, which were committed during the commission of the offense. 9. The defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under fifteen years of age or was seventy years of age or older. 10. The murdered person was an on duty peace officer who was killed in the course of performing his official duties and the defendant knew, or should have known, that the murdered person was a peace officer.
2. The statute enumerates certain mitigating circumstances, but the enumeration is not exclusive. The court shall consider as mitigating circumstances any factors proffered by the defendant or the state which are relevant in determining whether to impose a sentence less than death . §13703(H).
3. In all criminal prosecutions, the accused shall enjoy the right to a trial, by an impartial jury .
4. Rings claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence. He makes no Sixth Amendment claim with respect to mitigating circumstances. See Apprendi v. New Jersey, 530 U.S. 466, 490491, n. 16 (2000) (noting the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation (citation omitted)). Nor does he argue that the Sixth Amendment required the jury to make the ultimate determination whether to impose the death penalty. See Proffitt v. Florida, 428 U.S. 242, 252 (1976) (plurality opinion) ([I]t has never [been] suggested that jury sentencing is constitutionally required.). He does not question the Arizona Supreme Courts authority to reweigh the aggravating and mitigating circumstances after that court struck one aggravator. See Clemons v. Mississippi, 494 U.S. 738, 745 (1990). Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S., at 477, n. 3 (Fourteenth Amendment has not been construed to include the Fifth Amendment right to presentment or indictment of a Grand Jury ).
5. In Harris v. United States, ante, p. __, a majority of the Court concludes that the distinction between elements and sentencing factors continues to be meaningful as to facts increasing the minimum sentence. See ante, at 20 (plurality opinion) (The factual finding in Apprendi extended the power of the judge, allowing him or her to impose a punishment exceeding what was authorized by the jury. [A] finding [that triggers a mandatory minimum sentence] restrain[s] the judges power, limiting his or her choices within the authorized range. It is quite consistent to maintain that the former type of fact must be submitted to the jury while the latter need not be.); ante, at 1 (Breyer, J., concurring in part and concurring in judgment) ([T]he Sixth Amendment permits judges to apply sentencing factorswhether those factors lead to a sentence beyond the statutory maximum (as in
Apprendi) or the application of a mandatory minimum (as here).) .
6. Of the 38 States with capital punishment, 29 generally commit sentencing decisions to juries. See Ark. Code Ann. §54602 (1993); Cal. Penal Code Ann. §190.3 (West 1999); Conn. Gen. Stat. §53a46a (2001); Ga. Code Ann. §171031.1 (Supp. 1996); Ill. Comp. Stat. Ann., ch. 720, §5/91(d) (West 1993); Kan. Stat. Ann. §214624(b) (1995); Ky. Rev. Stat. Ann. §532.025(1)(b) (1993); La. Code Crim. Proc. Ann., Art. §905.1 (West 1997); Md. Ann. Code, Art. 27, §413(b) (1996); Miss. Code Ann. §9919101 (19732000); Mo. Rev. Stat. §§565.030, 565.032 (1999 and Supp. 2002); Nev. Rev. Stat. Ann. §175.552 (Michie 2001); N. H. Rev. Stat. Ann. §630:5 (II) (1996); N. J. Stat. Ann. §2C:113(c) (Supp. 2001); N. M. Stat. Ann. §3120A1 (2000); N. Y. Crim. Proc. Law §400.27 (McKinney Supp. 20012002); N. C. Gen. Stat. §15A2000 (1999); Ohio Rev. Code Ann. §2929.03 (West 1997); Okla. Stat., Tit. 21, §701.10(A) (Supp. 2001); Ore. Rev. Stat. Ann. §163.150 (1997); 42 Pa. Cons. Stat. §9711 (Supp. 2001); S. C. Code Ann. §16320(B) (1985); S. D. Codified Laws §23A27A2 (1998); Tenn. Code Ann. §3913204 (Supp. 2000); Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 2001); Utah Code Ann. §763207 (Supp. 2001); Va. Code Ann. §19.2264.3 (2000); Wash. Rev. Code §10.95.050 (1990); Wyo. Stat. Ann. §62102 (2001). Other than Arizona, only four States commit both capital sentencing factfinding and the ultimate sentencing decision entirely to judges. See Colo. Rev. Stat. §1611103 (2001) (three-judge panel); Idaho Code §192515 (Supp. 2001); Mont. Code Ann. §4618301 (1997); Neb. Rev. Stat. §292520 (1995). Four States have hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations. See Ala. Code §§13A546, 13A547 (1994); Del. Code Ann., Tit. 11, §4209 (1995); Fla. Stat. Ann. §921.141 (West 2001); Ind. Code Ann. §355029 (Supp. 2001).
7. We do not reach the States assertion that any error was harmless because a pecuniary gain finding was implicit in the jurys guilty verdict. See Neder v. United States, 527 U.S. 1, 25 (1999) (this Court ordinarily leaves it to lower courts to pass on the harmlessness of error in the first instance).