BLAKELY V. WASHINGTON (02-1632) 542 U.S. 296 (2004)
111 Wash. App. 851, 47 P.3d 149, reversed and remanded.
[ Scalia ]
[ O’Connor ]
[ Kennedy ]
[ Breyer ]
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Breyer, J., dissenting


No. 02—1632



[June 24, 2004]

Justice Breyer, with whom Justice O’Connor joins, dissenting.

The Court makes clear that it means what it said in Apprendi v. New Jersey, 530 U.S. 466 (2000). In its view, the Sixth Amendment says that “ ’any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.’ Ante, at 5 (quoting Apprendi, supra, at 490). “ ‘[P]rescribed statutory maximum’ ” means the penalty that the relevant statute authorizes “solely on the basis of the facts reflected in the jury verdict.” Ante, at 7 (emphasis deleted). Thus, a jury must find, not only the facts that make up the crime of which the offender is charged, but also all (punishment-increasing) facts about the way in which the offender carried out that crime.

It is not difficult to understand the impulse that produced this holding. Imagine a classic example–a statute (or mandatory sentencing guideline) that provides a 10-year sentence for ordinary bank robbery, but a 15-year sentence for bank robbery committed with a gun. One might ask why it should matter for jury trial purposes whether the statute (or guideline) labels the gun’s presence (a) a sentencing fact about the way in which the offender carried out the lesser crime of ordinary bank robbery, or (b) a factual element of the greater crime of bank robbery with a gun? If the Sixth Amendment requires a jury finding about the gun in the latter circumstance, why should it not also require a jury to find the same fact in the former circumstance? The two sets of circumstances are functionally identical. In both instances, identical punishment follows from identical factual findings (related to, e.g., a bank, a taking, a thing-of-value, force or threat of force, and a gun). The only difference between the two circumstances concerns a legislative (or Sentencing Commission) decision about which label (“sentencing fact” or “element of a greater crime”) to affix to one of the facts, namely, the presence of the gun, that will lead to the greater sentence. Given the identity of circumstances apart from the label, the jury’s traditional factfinding role, and the law’s insistence upon treating like cases alike, why should the legislature’s labeling choice make an important Sixth Amendment difference?

The Court in Apprendi, and now here, concludes that it should not make a difference. The Sixth Amendment’s jury trial guarantee applies similarly to both. I agree with the majority’s analysis, but not with its conclusion. That is to say, I agree that, classically speaking, the difference between a traditional sentencing factor and an element of a greater offense often comes down to a legislative choice about which label to affix. But I cannot jump from there to the conclusion that the Sixth Amendment always requires identical treatment of the two scenarios. That jump is fraught with consequences that threaten the fairness of our traditional criminal justice system; it distorts historical sentencing or criminal trial practices; and it upsets settled law on which legislatures have relied in designing punishment systems.

The Justices who have dissented from Apprendi have written about many of these matters in other opinions. See 530 U.S., at 523—554 (O’Connor, J., dissenting); id., at 555—566 (Breyer, J., dissenting); Harris v. United States, 536 U.S. 545, 549—550, 556—569 (2002) (Kennedy, J.); id., at 569—572 (Breyer, J., concurring in part and concurring in judgment); Jones v. United States, 526 U.S. 227, 254, 264—272 (1999) (Kennedy, J., dissenting); Monge v. California, 524 U.S. 721, 728—729 (1998) (O’Connor, J.); McMillan v. Pennsylvania, 477 U.S. 79, 86—91 (1986) (Rehnquist, C. J.). At the risk of some repetition, I shall set forth several of the most important considerations here. They lead me to conclude that I must again dissent.


The majority ignores the adverse consequences inherent in its conclusion. As a result of the majority’s rule, sentencing must now take one of three forms, each of which risks either impracticality, unfairness, or harm to the jury trial right the majority purports to strengthen. This circumstance shows that the majority’s Sixth Amendment interpretation cannot be right.


A first option for legislators is to create a simple, pure or nearly pure “charge offense” or “determinate” sentencing system. See Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L. Rev. 1, 8—9 (1988). In such a system, an indictment would charge a few facts which, taken together, constitute a crime, such as robbery. Robbery would carry a single sentence, say, five years’ imprisonment. And every person convicted of robbery would receive that sentence–just as, centuries ago, everyone convicted of almost any serious crime was sentenced to death. See, e.g., Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N. C. L. Rev. 621, 630 (2004).

Such a system assures uniformity, but at intolerable costs. First, simple determinate sentencing systems impose identical punishments on people who committed their crimes in very different ways. When dramatically different conduct ends up being punished the same way, an injustice has taken place. Simple determinate sentencing has the virtue of treating like cases alike, but it simultaneously fails to treat different cases differently. Some commentators have leveled this charge at sentencing guideline systems themselves. See, e.g., Schulhofer, Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity, 29 Am. Crim. L. Rev. 833, 847 (1992) (arguing that the “most important problem under the [Federal] Guidelines system is not too much disparity, but rather excessive uniformity” and arguing for adjustments, including elimination of mandatory minimums, to make the Guidelines system more responsive to relevant differences). The charge is doubly applicable to simple “pure charge” systems that permit no departures from the prescribed sentences, even in extraordinary cases.

Second, in a world of statutorily fixed mandatory sentences for many crimes, determinate sentencing gives tremendous power to prosecutors to manipulate sentences through their choice of charges. Prosecutors can simply charge, or threaten to charge, defendants with crimes bearing higher mandatory sentences. Defendants, knowing that they will not have a chance to argue for a lower sentence in front of a judge, may plead to charges that they might otherwise contest. Considering that most criminal cases do not go to trial and resolution by plea bargaining is the norm, the rule of Apprendi, to the extent it results in a return to determinate sentencing, threatens serious unfairness. See Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097, 1100—1101 (2001) (explaining that the rule of Apprendi hurts defendants by depriving them of sentencing hearings, “the only hearings they were likely to have”; forcing defendants to surrender sentencing issues like drug quantity when they agree to the plea; and transferring power to prosecutors).


A second option for legislators is to return to a system of indeterminate sentencing, such as California had before the recent sentencing reform movement. See Payne v. Tennessee, 501 U.S. 808, 820 (1991) (“With the increasing importance of probation, as opposed to imprisonment, as a part of the penological process, some States such as California developed the ‘indeterminate sentence,’ where the time of incarceration was left almost entirely to the penological authorities rather than to the courts”); Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry, 45 Boston College L. Rev. 255, 267 (2004) (“In the late 1970s, California switched from an indeterminate criminal sentencing scheme to determinate sentencing” (footnote omitted)). Under indeterminate systems, the length of the sentence is entirely or almost entirely within the discretion of the judge or of the parole board, which typically has broad power to decide when to release a prisoner.

When such systems were in vogue, they were criticized, and rightly so, for producing unfair disparities, including race-based disparities, in the punishment of similarly situated defendants. See, e.g., ante, at 2—3 (O’Connor, J., dissenting) (citing sources). The length of time a person spent in prison appeared to depend on “what the judge ate for breakfast” on the day of sentencing, on which judge you got, or on other factors that should not have made a difference to the length of the sentence. See Breyer, supra, at 4—5 (citing congressional and expert studies indicating that, before the United States Sentencing Com-mission Guidelines were promulgated, punishments for identical crimes in the Second Circuit ranged from 3 to 20 years’ imprisonment and that sentences varied depending upon region, gender of the defendant, and race of the defendant). And under such a system, the judge could vary the sentence greatly based upon his findings about how the defendant had committed the crime–findings that might not have been made by a “preponderance of the evidence,” much less “beyond a reasonable doubt.” See McMillan, 477 U.S., at 91 (“Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all” (citing Williams v. New York, 337 U.S. 241 (1949))).

Returning to such a system would diminish the “ ‘reason’ ” the majority claims it is trying to uphold. Ante, at 5 (quoting 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872)). It also would do little to “ensur[e] [the] control” of what the majority calls “the peopl[e,]” i.e., the jury, “in the judiciary,” ante, at 9, since “the peopl[e]” would only decide the defendant’s guilt, a finding with no effect on the duration of the sentence. While “the judge’s authority to sentence” would formally derive from the jury’s verdict, the jury would exercise little or no control over the sentence itself. Ante, at 10. It is difficult to see how such an outcome protects the structural safeguards the majority claims to be defending.


A third option is that which the Court seems to believe legislators will in fact take. That is the option of retaining structured schemes that attempt to punish similar conduct similarly and different conduct differently, but modifying them to conform to Apprendi’s dictates. Judges would be able to depart downward from presumptive sentences upon finding that mitigating factors were present, but would not be able to depart upward unless the prosecutor charged the aggravating fact to a jury and proved it beyond a reasonable doubt. The majority argues, based on the single example of Kansas, that most legislatures will enact amendments along these lines in the face of the oncoming Apprendi train. See ante, at 13—14 (citing State v. Gould, 271 Kan. 394, 404—414, 23 P.3d 801, 809—814 (2001); Act of May 29, 2002, ch. 170, 2002 Kan. Sess. Laws pp. 1018—1023 (codified at Kan. Stat. Ann. §21—4718 (2003 Cum. Supp.)); Brief for Kansas Appellate Defender Office as Amicus Curiae 3—7). It is therefore worth exploring how this option could work in practice, as well as the assumptions on which it depends.


This option can be implemented in one of two ways. The first way would be for legislatures to subdivide each crime into a list of complex crimes, each of which would be defined to include commonly found sentencing factors such as drug quantity, type of victim, presence of violence, degree of injury, use of gun, and so on. A legislature, for example, might enact a robbery statute, modeled on robbery sentencing guidelines, that increases punishment depending upon (1) the nature of the institution robbed, (2) the (a) presence of, (b) brandishing of, (c) other use of, a firearm, (3) making of a death threat, (4) presence of (a) ordinary, (b) serious, (c) permanent or life threatening, bodily injury, (5) abduction, (6) physical restraint, (7) taking of a firearm, (8) taking of drugs, (9) value of property loss, etc. Cf. United States Sentencing Commission, Guidelines Manual §2B3.1 (Nov. 2003) (hereinafter USSG).

This possibility is, of course, merely a highly calibrated form of the “pure charge” system discussed in Part I—A, supra. And it suffers from some of the same defects. The prosecutor, through control of the precise charge, controls the punishment, thereby marching the sentencing system directly away from, not toward, one important guideline goal: rough uniformity of punishment for those who engage in roughly the same real criminal conduct. The artificial (and consequently unfair) nature of the resulting sentence is aggravated by the fact that prosecutors must charge all relevant facts about the way the crime was committed before a presentence investigation examines the criminal conduct, perhaps before the trial itself, i.e., before many of the facts relevant to punishment are known.

This “complex charge offense” system also prejudices defendants who seek trial, for it can put them in the untenable position of contesting material aggravating facts in the guilt phases of their trials. Consider a defendant who is charged, not with mere possession of cocaine, but with the specific offense of possession of more than 500 grams of cocaine. Or consider a defendant charged, not with murder, but with the new crime of murder using a machete. Or consider a defendant whom the prosecution wants to claim was a “supervisor,” rather than an ordinary gang member. How can a Constitution that guarantees due process put these defendants, as a matter of course, in the position of arguing, “I did not sell drugs, and if I did, I did not sell more than 500 grams” or, “I did not kill him, and if I did, I did not use a machete,” or “I did not engage in gang activity, and certainly not as a supervisor” to a single jury? See Apprendi, 530 U.S., at 557—558 (Breyer, J., dissenting); Monge, 524 U.S., at 729. The system can tolerate this kind of problem up to a point (consider the defendant who wants to argue innocence, and, in the alternative, second-degree, not first-degree, murder). But a rereading of the many distinctions made in a typical robbery guideline, see supra, at 7, suggests that an effort to incorporate any real set of guidelines in a complex statute would reach well beyond that point.

The majority announces that there really is no problem here because “States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty” and defendants may “stipulat[e] to the relevant facts or consen[t] to judicial factfinding.” Ante, at 14. The problem, of course, concerns defendants who do not want to plead guilty to those elements that, until recently, were commonly thought of as sentencing factors. As to those defendants, the fairness problem arises because States may very well decide that they will not permit defendants to carve subsets of facts out of the new, Apprendi-required 17-element robbery crime, seeking a judicial determination as to some of those facts and a jury determination as to others. Instead, States may simply require defendants to plead guilty to all 17 elements or proceed with a (likely prejudicial) trial on all 17 elements.

The majority does not deny that States may make this choice; it simply fails to understand why any State would want to exercise it. Ante, at 14, n. 12. The answer is, as I shall explain in a moment, that the alternative may prove too expensive and unwieldy for States to provide. States that offer defendants the option of judicial factfinding as to some facts (i.e., sentencing facts), say, because of fairness concerns, will also have to offer the defendant a second sentencing jury–just as Kansas has done. I therefore turn to that alternative.


The second way to make sentencing guidelines Apprendi-compliant would be to require at least two juries for each defendant whenever aggravating facts are present: one jury to determine guilt of the crime charged, and an additional jury to try the disputed facts that, if found, would aggravate the sentence. Our experience with bifurcated trials in the capital punishment context suggests that requiring them for run-of-the-mill sentences would be costly, both in money and in judicial time and resources. Cf. Kozinski & Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L. Rev. 1, 13—15, and n. 64 (1995) (estimating the costs of each capital case at around $1 million more than each noncapital case); Tabak, How Empirical Studies Can Affect Positively the Politics of the Death Penalty, 83 Cornell L. Rev. 1431, 1439—1440 (1998) (attributing the greater cost of death penalty cases in part to bifurcated proceedings). In the context of noncapital crimes, the potential need for a second indictment alleging aggravating facts, the likely need for formal evidentiary rules to prevent prejudice, and the increased difficulty of obtaining relevant sentencing information, all will mean greater complexity, added cost, and further delay. See Part V, infra. Indeed, cost and delay could lead legislatures to revert to the complex charge offense system described in Part I—C—1, supra.

The majority refers to an amicus curiae brief filed by the Kansas Appellate Defender Office, which suggests that a two-jury system has proved workable in Kansas. Ante, at 13—14. And that may be so. But in all likelihood, any such workability reflects an uncomfortable fact, a fact at which the majority hints, ante, at 14, but whose constitutional implications it does not seem to grasp. The uncomfortable fact that could make the system seem workable–even desirable in the minds of some, including defense attorneys–is called “plea bargaining.” See Bibas, 110 Yale L. J., at 1150, and n. 330 (reporting that in 1996, fewer than 4% of adjudicated state felony defendants have jury trials, 5% have bench trials, and 91% plead guilty). See also ante, at 14 (making clear that plea bargaining applies). The Court can announce that the Constitution requires at least two jury trials for each criminal defendant–one for guilt, another for sentencing–but only because it knows full well that more than 90% of defendants will not go to trial even once, much less insist on two or more trials.

What will be the consequences of the Court’s holding for the 90% of defendants who do not go to trial? The truthful answer is that we do not know. Some defendants may receive bargaining advantages if the increased cost of the “double jury trial” guarantee makes prosecutors more willing to cede certain sentencing issues to the defense. Other defendants may be hurt if a “single-jury-decides-all” approach makes them more reluctant to risk a trial–
perhaps because they want to argue that they did not know what was in the cocaine bag, that it was a small amount regardless, that they were unaware a confederate had a gun, etc. See Bibas, 110 Yale L. J., at 1100 (“Because for many defendants going to trial is not a desirable option, they are left without any real hearings at all”); id., at 1151 (“The trial right does little good when most defendants do not go to trial”).

At the least, the greater expense attached to trials and their greater complexity, taken together in the context of an overworked criminal justice system, will likely mean, other things being equal, fewer trials and a greater reliance upon plea bargaining–a system in which punishment is set not by judges or juries but by advocates acting under bargaining constraints. At the same time, the greater power of the prosecutor to control the punishment through the charge would likely weaken the relation between real conduct and real punishment as well. See, e.g., Schulhofer, 29 Am. Crim. L. Rev., at 845 (estimating that evasion of the proper sentence under the Federal Guidelines may now occur in 20%—35% of all guilty plea cases). Even if the Court’s holding does not further embed plea-bargaining practices (as I fear it will), its success depends upon the existence of present practice. I do not understand how the Sixth Amendment could require a sentencing system that will work in practice only if no more than a handful of defendants exercise their right to a jury trial.

The majority’s only response is to state that “bargaining over elements . . . probably favors the defendant,” ante, at 15, adding that many criminal defense lawyers favor its position, ante, at 16. But the basic problem is not one of “fairness” to defendants or, for that matter, “fairness” to prosecutors. Rather, it concerns the greater fairness of a sentencing system that a more uniform correspondence between real criminal conduct and real punishment helps to create. At a minimum, a two-jury system, by preventing a judge from taking account of an aggravating fact without the prosecutor’s acquiescence, would undercut, if not nullify, legislative efforts to ensure through guidelines that punishments reflect a convicted offender’s real criminal conduct, rather than that portion of the offender’s conduct that a prosecutor decides to charge and prove.

Efforts to tie real punishment to real conduct are not new. They are embodied in well-established pre-guidelines sentencing practices–practices under which a judge, looking at a presentence report, would seek to tailor the sentence in significant part to fit the criminal conduct in which the offender actually engaged. For more than a century, questions of punishment (not those of guilt or innocence) have reflected determinations made, not only by juries, but also by judges, probation officers, and executive parole boards. Such truth-seeking determinations have rested upon both adversarial and non-adversarial processes. The Court’s holding undermines efforts to reform these processes, for it means that legislatures cannot both permit judges to base sentencing upon real conduct and seek, through guidelines, to make the results more uniform.

In these and other ways, the two-jury system would work a radical change in pre-existing criminal law. It is not surprising that this Court has never previously suggested that the Constitution–outside the unique context of the death penalty–might require bifurcated jury-based sentencing. And it is the impediment the Court’s holding poses to legislative efforts to achieve that greater systematic fairness that casts doubt on its constitutional validity.


Is there a fourth option? Perhaps. Congress and state legislatures might, for example, rewrite their criminal codes, attaching astronomically high sentences to each crime, followed by long lists of mitigating facts, which, for the most part, would consist of the absence of aggravating facts. Apprendi, 530 U.S., at 541—542 (O’Connor, J., dissenting) (explaining how legislatures can evade the majority’s rule by making yet another labeling choice). But political impediments to legislative action make such rewrites difficult to achieve; and it is difficult to see why the Sixth Amendment would require legislatures to undertake them.

It may also prove possible to find combinations of, or variations upon, my first three options. But I am unaware of any variation that does not involve (a) the shift of power to the prosecutor (weakening the connection between real conduct and real punishment) inherent in any charge offense system, (b) the lack of uniformity inherent in any system of pure judicial discretion, or (c) the complexity, expense, and increased reliance on plea bargains involved in a “two-jury” system. The simple fact is that the design of any fair sentencing system must involve efforts to make practical compromises among competing goals. The majority’s reading of the Sixth Amendment makes the effort to find those compromises–already difficult–virtually impossible.


The majority rests its conclusion in significant part upon a claimed historical (and therefore constitutional) imperative. According to the majority, the rule it applies in this case is rooted in “longstanding tenets of common-law criminal jurisprudence,” ante, at 5: that every accusation against a defendant must be proved to a jury and that “ ‘an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason,’ ibid. (quoting Bishop, Criminal Procedure §87, at 55). The historical sources upon which the majority relies, however, do not compel the result it reaches. See ante, at 10 (O’Connor, J., dissenting); Apprendi, 530 U.S., at 525—528 (O’Connor, J., dissenting). The quotation from Bishop, to which the majority attributes great weight, stands for nothing more than the “unremarkable proposition” that where a legislature passes a statute setting forth heavier penalties than were available for committing a common-law offense and specifying those facts that triggered the statutory penalty, “a defendant could receive the greater statutory punishment only if the indictment expressly charged and the prosecutor proved the facts that made up the statutory offense, as opposed to simply those facts that made up the common-law offense.” Id., at 526 (O’Connor, J., dissenting) (characterizing a similar statement of the law in J. Archbold, Pleading and Evidence in Criminal Cases 51, 188 (15th ed. 1862)).

This is obvious when one considers the problem that Bishop was addressing. He provides as an example “statutes whereby, when [a common-law crime] is committed with a particular intent, or with a particular weapon, or the like, it is subjected to a particular corresponding punishment, heavier than that for” the simple common-law offense (though, of course, his concerns were not “limited to that example,” ante, at 5—6, n. 5). Bishop, supra, §82, at 51—52 (discussing the example of common assault and enhanced-assault statutes, e.g., “assaults committed with the intent to rob”). That indictments historically had to charge all of the statutorily labeled elements of the offense is a proposition on which all can agree. See Apprendi, supra, at 526—527 (O’Connor, J., dissenting). See also J. Archbold, Pleading and Evidence in Criminal Cases 44 (11th ed. 1849) (“[E]very fact or circumstance which is a necessary ingredient in the offence must be set forth in the indictment” so that “there may be no doubt as to the judgment which should be given, if the defendant be convicted”); 1 T. Starkie, Criminal Pleading 68 (2d ed. 1822) (the indictment must state “the criminal nature and degree of the offence, which are conclusions of law from the facts; and also the particular facts and circumstances which render the defendant guilty of that offence”).

Neither Bishop nor any other historical treatise writer, however, disputes the proposition that judges historically had discretion to vary the sentence, within the range provided by the statute, based on facts not proved at the trial. See Bishop, supra, §85, at 54 (“[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment”); K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998). The modern history of pre-guidelines sentencing likewise indicates that judges had broad discretion to set sentences within a statutory range based on uncharged conduct. Usually, the judge based his or her sentencing decision on facts gleaned from a presentence report, which the defendant could dispute at a sentencing hearing. In the federal system, for example, Federal Rule of Criminal Procedure 32 provided that probation officers, who are employees of the Judicial Branch, prepared a presentence report for the judge, a copy of which was generally given to the prosecution and defense before the sentencing hearing. See Stith & Cabranes, supra, at 79—80, 221, note 5. See also ante, at 2 (O’Connor, J., dissenting) (describing the State of Washington’s former indeterminate sentencing law).

In this case, the statute provides that kidnaping may be punished by up to 10 years’ imprisonment. Wash. Rev. Code Ann. §§9A.40.030(3), 9A.20.021(1)(b) (2000). Modern structured sentencing schemes like Washington’s do not change the statutorily fixed maximum penalty, nor do they purport to establish new elements for the crime. Instead, they undertake to structure the previously unfettered discretion of the sentencing judge, channeling and limiting his or her discretion even within the statutory range. (Thus, contrary to the majority’s arguments, ante, at 12—13, kidnapers in the State of Washington know that they risk up to 10 years’ imprisonment, but they also have the benefit of additional information about how long–within the 10-year maximum–their sentences are likely to be, based on how the kidnaping was committed.)

Historical treatises do not speak to such a practice because it was not done in the 19th century. Cf. Jones, 526 U.S., at 244 (“[T]he scholarship of which we are aware does not show that a question exactly like this one was ever raised and resolved in the period before the framing”). This makes sense when one considers that, prior to the 19th century, the prescribed penalty for felonies was often death, which the judge had limited, and sometimes no, power to vary. See Lillquist, 82 N. C. L. Rev., at 628—630. The 19th century saw a movement to a rehabilitative mode of punishment in which prison terms became a norm, shifting power to the judge to impose a longer or shorter term within the statutory maximum. See ibid. The ability of legislatures to guide the judge’s discretion by designating presumptive ranges, while allowing the judge to impose a more or less severe penalty in unusual cases, was therefore never considered. To argue otherwise, the majority must ignore the significant differences between modern structured sentencing schemes and the history on which it relies to strike them down. And while the majority insists that the historical sources, particularly Bishop, should not be “limited” to the context in which they were written, ante, at 5—6, n. 5, it has never explained why the Court must transplant those discussions to the very different context of sentencing schemes designed to structure judges’ discretion within a statutory sentencing range.

Given history’s silence on the question of laws that structure a judge’s discretion within the range provided by the legislatively labeled maximum term, it is not surprising that our modern, pre-Apprendi cases made clear that legislatures could, within broad limits, distinguish between “sentencing facts” and “elements of crimes.” See McMillan, 477 U.S., at 85—88. By their choice of label, legislatures could indicate whether a judge or a jury must make the relevant factual determination. History does not preclude legislatures from making this decision. And, as I argued in Part I, supra, allowing legislatures to structure sentencing in this way has the dual effect of enhancing and giving meaning to the Sixth Amendment’s jury trial right as to core crimes, while affording additional due process to defendants in the form of sentencing hearings before judges–hearings the majority’s rule will eliminate for many.

Is there a risk of unfairness involved in permitting Congress to make this labeling decision? Of course. As we have recognized, the “tail” of the sentencing fact might “wa[g] the dog of the substantive offense.” McMillan, supra, at 88. Congress might permit a judge to sentence an individual for murder though convicted only of making an illegal lane change. See ante, at 10 (majority opinion). But that is the kind of problem that the Due Process Clause is well suited to cure. McMillan foresaw the possibility that judges would have to use their own judgment in dealing with such a problem; but that is what judges are there for. And, as Part I, supra, makes clear, the alternatives are worse–not only practically, but, although the majority refuses to admit it, constitutionally as well.

Historic practice, then, does not compel the result the majority reaches. And constitutional concerns counsel the opposite.


The majority also overlooks important institutional considerations. Congress and the States relied upon what they believed was their constitutional power to decide, within broad limits, whether to make a particular fact (a) a sentencing factor or (b) an element in a greater crime. They relied upon McMillan as guaranteeing the constitutional validity of that proposition. They created sentencing reform, an effort to change the criminal justice system so that it reflects systematically not simply upon guilt or innocence but also upon what should be done about this now-guilty offender. Those efforts have spanned a generation. They have led to state sentencing guidelines and the Federal Sentencing Guideline system. E.g., ante, at 2—4 (O’Connor, J., dissenting) (describing sentencing reform in the State of Washington). These systems are imperfect and they yield far from perfect results, but I cannot believe the Constitution forbids the state legislatures and Congress to adopt such systems and to try to improve them over time. Nor can I believe that the Constitution hamstrings legislatures in the way that Justice O’Connor and I have discussed.


Now, let us return to the question I posed at the outset. Why does the Sixth Amendment permit a jury trial right (in respect to a particular fact) to depend upon a legislative labeling decision, namely, the legislative decision to label the fact a sentencing fact, instead of an element of the crime? The answer is that the fairness and effectiveness of a sentencing system, and the related fairness and effectiveness of the criminal justice system itself, depends upon the legislature’s possessing the constitutional authority (within due process limits) to make that labeling decision. To restrict radically the legislature’s power in this respect, as the majority interprets the Sixth Amendment to do, prevents the legislature from seeking sentencing systems that are consistent with, and indeed may help to advance, the Constitution’s greater fairness goals.

To say this is not simply to express concerns about fairness to defendants. It is also to express concerns about the serious practical (or impractical) changes that the Court’s decision seems likely to impose upon the criminal process; about the tendency of the Court’s decision to embed further plea bargaining processes that lack transparency and too often mean nonuniform, sometimes arbitrary, sentencing practices; about the obstacles the Court’s decision poses to legislative efforts to bring about greater uniformity between real criminal conduct and real punishment; and ultimately about the limitations that the Court imposes upon legislatures’ ability to make democratic legislative decisions. Whatever the faults of guidelines systems–and there are many–they are more likely to find their cure in legislation emerging from the experience of, and discussion among, all elements of the criminal justice community, than in a virtually unchangeable constitutional decision of this Court.


Taken together these three sets of considerations,
concerning consequences, concerning history, concern-
ing institutional reliance, leave me where I was in Apprendi, i.e., convinced that the Court is wrong. Until now, I would have thought the Court might have limited Apprendi so that its underlying principle would not undo sentencing reform efforts. Today’s case dispels that illusion. At a minimum, the case sets aside numerous state efforts in that direction. Perhaps the Court will distinguish the Federal Sentencing Guidelines, but I am uncertain how. As a result of today’s decision, federal prosecutors, like state prosecutors, must decide what to do next, how to handle tomorrow’s case.

Consider some of the matters that federal prosecutors must know about, or guess about, when they prosecute their next case: (1) Does today’s decision apply in full force to the Federal Sentencing Guidelines? (2) If so, must the initial indictment contain all sentencing factors, charged as “elements” of the crime? (3) What, then, are the evidentiary rules? Can the prosecution continue to use, say presentence reports, with their conclusions reflecting layers of hearsay? Cf. Crawford v. Washington, 541 U.S. __, __, __—__ (2004) (slip op., at 27, 32—33) (clarifying the Sixth Amendment’s requirement of confrontation with respect to testimonial hearsay). Are the numerous cases of this Court holding that a sentencing judge may consider virtually any reliable information still good law when juries, not judges, are required to determine the matter? See, e.g., United States v. Watts, 519 U.S. 148, 153—157 (1997) (per curiam) (evidence of conduct of which the defendant has been acquitted may be considered at sentencing). Cf. Witte v. United States, 515 U.S. 389, 399—401 (1995) (evidence of uncharged criminal conduct used in determining sentence). (4) How are juries to deal with highly complex or open-ended Sentencing Guidelines obviously written for application by an experienced trial judge? See, e.g., USSG §3B1.1 (requiring a greater sentence when the defendant was a leader of a criminal activity that involved four or more participants or was “otherwise extensive” (emphasis added)); §§3D1.1—3D1.2 (highly complex “multiple count” rules); §1B1.3 (relevant conduct rules).

Ordinarily, this Court simply waits for cases to arise in which it can answer such questions. But this case affects tens of thousands of criminal prosecutions, including federal prosecutions. Federal prosecutors will proceed with those prosecutions subject to the risk that all defendants in those cases will have to be sentenced, perhaps tried, anew. Given this consequence and the need for certainty, I would not proceed further piecemeal; rather, I would call for further argument on the ramifications of the concerns I have raised. But that is not the Court’s view.

For the reasons given, I dissent.