Blakely v. Washington

296

OCTOBER TERM, 2003

Syllabus Syllabus

CERTIORARI TO THE COURT OF APPEALS OF WASHINGTON

No. 02-1632. Argued March 23, 2004-Decided June 24, 2004 No. 02-1632. Argued March 23, 2004—Decided June 24, 2004

Petitioner pleaded guilty to kidnaping his estranged wife. The facts ad- Petitioner pleaded guilty to kidnaping his estranged wife. The facts ad- mitted in his plea, standing alone, supported a maximum sentence of 53 mitted in his plea, standing alone, supported a maximum sentence of 53 months, but the judge imposed a 90-month sentence after finding that months, but the judge imposed a 90-month sentence after finding that petitioner had acted with deliberate cruelty, a statutorily enumerated petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range. The Washington Court ground for departing from the standard range. The Washington Court of Appeals affirmed, rejecting petitioner's argument that the sentencing of Appeals affirmed, rejecting petitioner's argument that the sentencing procedure deprived him of his federal constitutional right to have a jury procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his determine beyond a reasonable doubt all facts legally essential to his sentence.

sentence.

Held: Because the facts supporting petitioner's exceptional sentence were Held: Because the facts supporting petitioner's exceptional sentence were neither admitted by petitioner nor found by a jury, the sentence violated neither admitted by petitioner nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury. Pp. 301-314. his Sixth Amendment right to trial by jury. Pp. 301-314.

(a) This case requires the Court to apply the rule of Apprendi v. New (a) This case requires the Court to apply the rule of Apprendi v. New Jersey, 530 U. S. 466, 490, that, "[olther than the fact of a prior convic- Jersey, 530 U. S. 466, 490, that, "[otther than the fact of a prior convic- tion, any fact that increases the penalty for a crime beyond the pre- tion, any fact that increases the penalty for a crime beyond the pre- scribed statutory maximum must be submitted to a jury, and proved scribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The relevant statutory maximum for Ap- beyond a reasonable doubt." The relevant statutory maximum for Ap- prendi purposes is the maximum a judge may impose based solely on prendi purposes is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. the facts reflected in the jury verdict or admitted by the defendant.

Here, the judge could not have imposed the 90-month sentence based Here, the judge could not have imposed the 90-month sentence based solely on the facts admitted in the guilty plea, because Washington law solely on the facts admitted in the guilty plea, because Washington law requires an exceptional sentence to be based on factors other than those requires an exceptional sentence to be based on factors other than those used in computing the standard-range sentence. Petitioner's sentence used in computing the standard-range sentence. Petitioner's sentence is not analogous to those upheld in McMillan v. Pennsylvania, 477 U. S. is not analogous to those upheld in McMillan v. Pennsylvania, 477 U. S.

79, and Williams v. New York, 337 U. S. 241, which were not greater 79, and Williams v. New York, 337 U. S. 241, which were not greater than what state law authorized based on the verdict alone. Regardless than what state law authorized based on the verdict alone. Regardless of whether the judge's authority to impose the enhanced sentence de- of whether the judge's authority to impose the enhanced sentence de- pends on a judge's finding a specified fact, one of several specified facts, pends on a judge's finding a specified fact, one of several specified facts, or any aggravating fact, it remains the case that the jury's verdict alone or any aggravating fact, it remains the case that the jury's verdict alone does not authorize the sentence. Pp. 301-305. does not authorize the sentence. Pp. 301-305.

(b) This Court's commitment to Apprendi in this context reflects not (b) This Court's commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelli- just respect for longstanding precedent, but the need to give intelli- gible content to the fundamental constitutional right of jury trial. gible content to the fundamental constitutional right of jury trial.

Pp. 305-308.

(c) This case is not about the constitutionality of determinate sentenc- (c) This case is not about the constitutionality of determinate sentenc- ing, but only about how it can be implemented in a way that respects ing, but only about how it can be implemented in a way that respects

Cite as: 542 U. S. 296 (2004) Cite as: 542 U. S. 296 (2004)

297

Syllabus Syllabus

the Sixth Amendment. The Framers' paradigm for criminal justice is the Sixth Amendment. The Framers' paradigm for criminal justice is the common-law ideal of limited state power accomplished by strict divi- the common-law ideal of limited state power accomplished by strict divi- sion of authority between judge and jury. That can be preserved with- sion of authority between judge and jury. That can be preserved with- out abandoning determinate sentencing and at no sacrifice of fairness to out abandoning determinate sentencing and at no sacrifice of fairness to the defendant. Pp. 308-313. the defendant. Pp. 308-313.

111 Wash. App. 851, 47 P. 3d 149, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOU- SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOU- TER, THOMAS, and GINSBURG, JJ., joined. O'CONNOR, J., filed a dissenting TER, THOMAS, and GINSBURG, JJ, joined. O'CONNOR, J, filed a dissenting opinion, in which BREYER, J., joined, and in which REHNQUIST, C. J., and opinion, in which BREYER, J, joined, and in which REHNQUIST, C. J, and KENNEDY, J., joined except as to Part IV-B, post, p. 314. KENNEDY, J., KENNEDY, J., joined except as to Part IV—B, post, p. 314. KENNEDY, J., filed a dissenting opinion, in which BREYER, J., joined, post, p. 326. filed a dissenting opinion, in which BREYER, J., joined, post, p. 326.

BREYER, J., filed a dissenting opinion, in which O'CONNOR, J., joined, BREYER, J, filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 328. post, p. 328.

Jeffrey L. Fisher argued the cause and filed briefs for Jeffrey L. Fisher argued the cause and filed briefs for

petitioner. petitioner.

John D. Knodell III argued the cause and filed a brief for John D. Knodell III argued the cause and filed a brief for

respondent. respondent.

Deputy Solicitor General Dreeben argued the cause for Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging affirmance. the United States as amicus curiae urging affirmance.

With him on the brief were Solicitor General Olson, As- With him on the brief were Solicitor General Olson, As- sistant Attorney General Wray, Matthew D. Roberts, and sistant Attorney General Wray, Matthew D. Roberts, and Nina Goodman.* Nina Goodman.*

*Briefs of amici curiae urging reversal were filed for the American *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by James E. Lobsenz, Aaron H. Caplan, and Civil Liberties Union et al. by James E. Lobsenx, Aaron H. Caplan, and Steven R. Shapiro; for the Kansas Appellate Defender Office by Randall Steven R. Shapiro; for the Kansas Appellate Defender Office by Randall

L. Hodgkinson; and for the National Association of Criminal Defense

Lawyers et al. by David M. Porter and Sheryl Gordon McCloud.

Briefs of amici curiae urging affirmance were filed for the State of Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Kevin C. Newsom, Solicitor General, Michael B. Billingsley, Deputy Solic- Kevin C. Newsom, Solicitor General, Michael B. Billingsley, Deputy Solic- itor General, and Nathan A Forrester, and by the Attorneys General for itor General, and Nathan A. Forrester, and by the Attorneys General for their respective States as follows: M. Jane Brady of Delaware, Charles J their respective States as follows: M. Jane Brady of Delaware, Charles J.

Crist, Jr., of Florida, Mark J Bennett of Hawaii, Lisa Madigan of Illinois, Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Jon Bruning of Nebraska, Hardy Myers of Oregon, Greg Abbott of Texas, Jon Bruning of Nebraska, Hardy Myers of Oregon, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Jerry W Kilgore of Virginia; and for the Mark L. Shurtleff of Utah, and Jerry W. Kilgore of Virginia; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

Criminal Justice Legal Foundation by Kent S. Scheidegger.

298 BLAKELY v. WASHINGTON BLAKELY v. WASHINGTON

Opinion of the Court Opinion of the Court JUSTICE SCALIA delivered the opinion of the Court.

JUSTICE SCALIA delivered the opinion of the Court.

Petitioner Ralph Howard Blakely, Jr., pleaded guilty to the Petitioner Ralph Howard Blakely, Jr., pleaded guilty to the kidnaping of his estranged wife. The facts admitted in his kidnaping of his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 plea, standing alone, supported a maximum sentence of 53 months. Pursuant to state law, the court imposed an "ex- months. Pursuant to state law, the court imposed an "ex- ceptional" sentence of 90 months after making a judicial de- ceptional" sentence of 90 months after making a judicial de- termination that he had acted with "deliberate cruelty." termination that he had acted with "deliberate cruelty."

App. 40, 49. We consider whether this violated petitioner's App. 40, 49. We consider whether this violated petitioner's Sixth Amendment right to trial by jury.

Sixth Amendment right to trial by jury.

I

Petitioner married his wife Yolanda in 1973. He was evi- Petitioner married his wife Yolanda in 1973. He was evi- dently a difficult man to live with, having been diagnosed at dently a difficult man to live with, having been diagnosed at various times with psychological and personality disorders various times with psychological and personality disorders including paranoid schizophrenia. His wife ultimately filed including paranoid schizophrenia. His wife ultimately filed for divorce.

In 1998, he abducted her from their orchard for divorce. In 1998, he abducted her from their orchard home in Grant County, Washington, binding her with duct home in Grant County, Washington, binding her with duct tape and forcing her at knifepoint into a wooden box in the tape and forcing her at knifepoint into a wooden box in the bed of his pickup truck.

In the process, he implored her to bed of his pickup truck. In the process, he implored her to dismiss the divorce suit and related trust proceedings. dismiss the divorce suit and related trust proceedings.

When the couple's 13-year-old son Ralphy returned home When the couple's 13-year-old son Ralphy returned home from school, petitioner ordered him to follow in another car, from school, petitioner ordered him to follow in another car, threatening to harm Yolanda with a shotgun if he did not do threatening to harm Yolanda with a shotgun if he did not do so. Ralphy escaped and sought help when they stopped at so. Ralphy escaped and sought help when they stopped at a gas station, but petitioner continued on with Yolanda to a a gas station, but petitioner continued on with Yolanda to a friend's house in Montana. He was finally arrested after the friend's house in Montana. He was finally arrested after the friend called the police. friend called the police.

The State charged petitioner with first-degree kidnaping, The State charged petitioner with first-degree kidnaping, Wash. Rev. Code Ann. § 9A.40.020(1) (2000).1 Upon reach- Wash. Rev. Code Ann. § 9A.40.020(1) (2000).' Upon reach- ing a plea agreement, however, it reduced the charge to ing a plea agreement, however, it reduced the charge to second-degree kidnaping involving domestic violence and use second-degree kidnaping involving domestic violence and use

' Parts of Washington's criminal code have been recodified and amended. ' Parts of Washington's criminal code have been recodified and amended.

We cite throughout the provisions in effect at the time of sentencing.

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299

Opinion of the Court Opinion of the Court of a firearm, see §§ 9A.40.030(1), 10.99.020(3)(p), 9.94A.125. 2 of a firearm, see §§ 9A.40.030(1), 10.99.020(3)(p), 9.94A.125.2 Petitioner entered a guilty plea admitting the elements of Petitioner entered a guilty plea admitting the elements of second-degree kidnaping and the domestic-violence and second-degree kidnaping and the domestic-violence and firearm allegations, but no other relevant facts. firearm allegations, but no other relevant facts.

The case then proceeded to sentencing.

In Washington, The case then proceeded to sentencing. In Washington, second-degree kidnaping is a class B felony. § 9A.40.030(3). second-degree kidnaping is a class B felony. §9A.40.030(3).

State law provides that "[n]o person convicted of a [class B] State law provides that "[n]o person convicted of a [class B] felony shall be punished by confinement... exceeding... a felony shall be punished by confinement ... exceeding ... a term of ten years." § 9A.20.021(1)(b). Other provisions of term of ten years." § 9A.20.021(1)(b). Other provisions of state law, however, further limit the range of sentences a state law, however, further limit the range of sentences a judge may impose. Washington's Sentencing Reform Act judge may impose. Washington's Sentencing Reform Act specifies, for petitioner's offense of second-degree kidnap- specifies, for petitioner's offense of second-degree kidnap- ing with a firearm, a "standard range" of 49 to 53 months. ing with a firearm, a "standard range" of 49 to 53 months.

See § 9.94A.320 (seriousness level V for second-degree kid- See §9.94A.320 (seriousness level V for second-degree kid- naping); App. 27 (offender score 2 based on § 9.94A.360); naping); App. 27 (offender score 2 based on § 9.94A.360); § 9.94A.310(1), box 2-V (standard range of 13-17 months); § 9.94A.310(1), box 2—V (standard range of 13-17 months); § 9.94A.310(3)(b) (36-month firearm enhancement).3 A judge § 9.94A.310(3)(b) (36-month firearm enhancement) s A judge may impose a sentence above the standard range if he finds may impose a sentence above the standard range if he finds "substantial and compelling reasons justifying an exceptional "substantial and compelling reasons justifying an exceptional sentence." § 9.94A.120(2). The Act lists aggravating fac- sentence." § 9.94A.120(2). The Act lists aggravating fac- tors that justify such a departure, which it recites to be illus- tors that justify such a departure, which it recites to be illus- trative rather than exhaustive. § 9.94A.390. Nevertheless, trative rather than exhaustive. § 9.94A.390. Nevertheless, "[a] reason offered to justify an exceptional sentence can be "[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than considered only if it takes into account factors other than those which are used in computing the standard range sen- those which are used in computing the standard range sen- tence for the offense." State v. Gore, 143 Wash. 2d 288, 315- tence for the offense." State v. Gore, 143 Wash. 2d 288, 315- 316, 21 P. 3d 262, 277 (2001). When a judge imposes an ex- 316, 21 P. 3d 262, 277 (2001). When a judge imposes an ex- ceptional sentence, he must set forth findings of fact and ceptional sentence, he must set forth findings of fact and conclusions of law supporting it. § 9.94A.120(3). A review- conclusions of law supporting it. § 9.94A.120(3). A review-

2 Petitioner further agreed to an additional charge of second-degree as- 2 Petitioner further agreed to an additional charge of second-degree as- sault involving domestic violence, Wash. Rev. Code Ann. §§ 9A.36.021(1)(c), sault involving domestic violence, Wash. Rev. Code Ann. §§ 9A.36.021(1)(c), 10.99.020(3)(b) (2000). The 14-month sentence on that count ran concur- 10.99.020(3)(b) (2000). The 14-month sentence on that count ran concur- rently and is not relevant here. rently and is not relevant here.

'The domestic-violence stipulation subjected petitioner to such meas- 'The domestic-violence stipulation subjected petitioner to such meas- ures as a "no-contact" order, see § 10.99.040, but did not increase the stand- ures as a "no-contact" order, see § 10.99.040, but did not increase the stand- ard range of his sentence. ard range of his sentence.

300 BLAKELY v. WASHINGTON BLAKELY v. WASHINGTON

Opinion of the Court Opinion of the Court

ing court will reverse the sentence if it finds that "under ing court will reverse the sentence if it finds that "under a clearly erroneous standard there is insufficient evidence a clearly erroneous standard there is insufficient evidence in the record to support the reasons for imposing an ex- in the record to support the reasons for imposing an ex- Id., at 315, 21 P. 3d, at 277 (citing ceptional sentence." ceptional sentence." Id., at 315, 21 P. 3d, at 277 (citing

§ 9.94A.210(4)).

Pursuant to the plea agreement, the State recommended Pursuant to the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months. a sentence within the standard range of 49 to 53 months.

After hearing Yolanda's description of the kidnaping, how- After hearing Yolanda's description of the kidnaping, how- ever, the judge rejected the State's recommendation and ever, the judge rejected the State's recommendation and imposed an exceptional sentence of 90 months-37 months imposed an exceptional sentence of 90 months-37 months beyond the standard maximum. He justified the sentence beyond the standard maximum. He justified the sentence on the ground that petitioner had acted with "deliberate on the ground that petitioner had acted with "deliberate cruelty," a statutorily enumerated ground for departure in cruelty," a statutorily enumerated ground for departure in domestic-violence cases. § 9.94A.390(2)(h)(iii). 4 domestic-violence cases. § 9.94A.39O(2)(h)(iii).4

Faced with an unexpected increase of more than three Faced with an unexpected increase of more than three years in his sentence, petitioner objected. The judge ac- years in his sentence, petitioner objected. The judge ac- cordingly conducted a 3-day bench hearing featuring testi- cordingly conducted a 3-day bench hearing featuring testi- mony from petitioner, Yolanda, Ralphy, a police officer, and mony from petitioner, Yolanda, Ralphy, a police officer, and medical experts. After the hearing, he issued 32 findings of medical experts. After the hearing, he issued 32 findings of

fact, concluding:

"The defendant's motivation to commit kidnapping "The defendant's motivation to commit kidnapping was complex, contributed to by his mental condition and was complex, contributed to by his mental condition and personality disorders, the pressures of the divorce litiga- personality disorders, the pressures of the divorce litiga- tion, the impending trust litigation trial and anger over tion, the impending trust litigation trial and anger over his troubled interpersonal relationships with his spouse his troubled interpersonal relationships with his spouse and children. While he misguidedly intended to force- and children. While he misguidedly intended to force- fully reunite his family, his attempt to do so was subser- fully reunite his family, his attempt to do so was subser- vient to his desire to terminate lawsuits and modify title vient to his desire to terminate lawsuits and modify title ownerships to his benefit.

ownerships to his benefit.

'The judge found other aggravating factors, but the Court of Appeals ° The judge found other aggravating factors, but the Court of Appeals questioned their validity under state law and their independent sufficiency questioned their validity under state law and their independent sufficiency to support the extent of the departure. See 111 Wash. App. 851, 868-870, to support the extent of the departure. See 111 Wash. App. 851, 868-870, and n. 3, 47 P. 3d 149, 158-159, and n. 3 (2002).

It affirmed the sentence and n. 3, 47 R 3d 149, 158-159, and n. 3 (2002). It affirmed the sentence solely on the finding of domestic violence with deliberate cruelty. Ibid. solely on the finding of domestic violence with deliberate cruelty. Ibid.

We therefore focus only on that factor.

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."The defendant's methods were more homogeneous "The defendant's methods were more homogeneous than his motive. He used stealth and surprise, and took than his motive. He used stealth and surprise, and took advantage of the victim's isolation. He immediately advantage of the victim's isolation. He immediately employed physical violence, restrained the victim with employed physical violence, restrained the victim with tape, and threatened her with injury and death to her- tape, and threatened her with injury and death to her- self and others. He immediately coerced the victim into self and others. He immediately coerced the victim into providing information by the threatening application of providing information by the threatening application of a knife. He violated a subsisting restraining order." a knife. He violated a subsisting restraining order."

App. 48-49.

The judge adhered to his initial determination of deliberate The judge adhered to his initial determination of deliberate cruelty. cruelty.

Petitioner appealed, arguing that this sentencing proce- Petitioner appealed, arguing that this sentencing proce- dure deprived him of his federal constitutional right to have dure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally a jury determine beyond a reasonable doubt all facts legally essential to his sentence. The State Court of Appeals af- essential to his sentence. The State Court of Appeals af- firmed, 111 Wash. App. 851, 870-871, 47 P. 3d 149, 159 (2002), firmed, 111 Wash. App. 851, 870-871, 47 P. 3d 149, 159 (2002), relying on the Washington Supreme Court's rejection of a relying on the Washington Supreme Court's rejection of a similar challenge in Gore, supra, at 311-315, 21 P. 3d, at 275- similar challenge in Gore, supra, at 311-315, 21 P. 3d, at 275-

277. The Washington Supreme Court denied discretionary

review. 148 Wash. 2d 1010, 62 P. 3d 889 (2003). We granted review. 148 Wash. 2d 1010, 62 P. 3d 889 (2003). We granted certiorari. 540 U. S. 965 (2003). certiorari. 540 U. S. 965 (2003).

II

This case requires us to apply the rule we expressed in This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): "Other Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): "Other than the fact of a prior conviction, any fact that increases than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory max- the penalty for a crime beyond the prescribed statutory max- imum must be submitted to a jury, and proved beyond a rea- imum must be submitted to a jury, and proved beyond a rea- sonable doubt." This rule reflects two longstanding tenets sonable doubt." This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the "truth of of common-law criminal jurisprudence: that the "truth of every accusation" against a defendant "should afterwards be every accusation" against a defendant "should afterwards be confirmed by the unanimous suffrage of twelve of his equals confirmed by the unanimous suffrage of twelve of his equals and neighbours," 4 W. Blackstone, Commentaries on the and neighbours," 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that "an accusation which Laws of England 343 (1769), and that "an accusation which lacks any particular fact which the law makes essential to lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements the punishment is ... no accusation within the requirements

302 BLAKELY v. WASHINGTON BLAKELY v. WASHINGTON

Opinion of the Court Opinion of the Court

of the common law, and it is no accusation in reason," 1 J. of the common law, and it is no accusation in reason," 1 J.

Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872)., These Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872).5 These principles have been acknowledged by courts and treatises principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing; we compiled since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U. S., at 476- the relevant authorities in Apprendi, see 530 U. S., at 476- 483, 489-490, n. 15; id., at 501-518 (THOMAS, J., concurring), 483, 489-490, n. 15; id., at 501-518 (THOMAS, J., concurring), and need not repeat them here.6 and need not repeat them here.6

5JUSTICE BREYER cites JUSTICE O'CONNOR'S Apprendi dissent for the 5JUSTICE BREYER cites JUSTICE O'CONNOR's Apprendi dissent for the point that this Bishop quotation means only that indictments must charge point that this Bishop quotation means only that indictments must charge facts that trigger statutory aggravation of a common-law offense. Post, facts that trigger statutory aggravation of a common-law offense. Post, at 340-341 (dissenting opinion). Of course, as he notes, JUSTICE O'CON- at 340-341 (dissenting opinion). Of course, as he notes, JUSTICE O'CON- NOR was referring to an entirely different quotation, from Archbold's trea- NOR was referring to an entirely different quotation, from Archbold's trea- tise. See 530 U. S., at 526 (citing J. Archbold, Pleading and Evidence in tise. See 530 U. S., at 526 (citing J. Archbold, Pleading and Evidence in JUSTICE BREYER claims the two Criminal Cases 51, 188 (15th ed. 1862)).

Criminal Cases 51, 188 (15th ed. 1862)). JUSTICE BREYER claims the two are "similar," post, at 341, but they are as similar as chalk and cheese. are "similar," post, at 341, but they are as similar as chalk and cheese.

Bishop was not "addressing" the "problem" of statutes that aggravate Bishop was not "addressing" the "problem" of statutes that aggravate common-law offenses. Ibid. Rather, the entire chapter of his treatise common-law offenses. Ibid. Rather, the entire chapter of his treatise is devoted to the point that "every fact which is legally essential to the is devoted to the point that "every fact which is legally essential to the punishment," 1 Criminal Procedure §81, at 51, must be charged in the punishment," 1 Criminal Procedure §81, at 51, must be charged in the indictment and proved to a jury, id., ch. 6, at 50-56. As one "example" of indictment and proved to a jury, id., ch. 6, at 50-56. As one "example" of this principle (appearing several pages before the language we quote in this principle (appearing several pages before the language we quote in Id., § 82, text above), he notes a statute aggravating common-law assault.

text above), he notes a statute aggravating common-law assault. Id., § 82, at 51-52. But nowhere is there the slightest indication that his general at 51-52. But nowhere is there the slightest indication that his general principle was limited to that example. Even JUSTICE BREYER's academic principle was limited to that example. Even JUSTICE BREYER's academic supporters do not make that claim. See Bibas, Judicial Fact-Finding and supporters do not make that claim. See Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097, Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J 1097, 1131-1132 (2001) (conceding that Bishop's treatise supports Apprendi, 1131-1132 (2001) (conceding that Bishop's treatise supports Apprendi, while criticizing its "natural-law theorizing"). while criticizing its "natural-law theorizing").

6 As to JUSTICE O'CONNOR'S criticism of the quantity of historical sup- 6 As to JUSTICE O'CONNOR's criticism of the quantity of historical sup- port for the Apprendi rule, post, at 323 (dissenting opinion): It bears re- port for the Apprendi rule, post, at 323 (dissenting opinion): It bears re- peating that the issue between us is not whether the Constitution limits peating that the issue between us is not whether the Constitution limits States' authority to reclassify elements as sentencing factors (we all agree States' authority to reclassify elements as sentencing factors (we all agree that it does); it is only which line, ours or hers, the Constitution draws. that it does); it is only which line, ours or hers, the Constitution draws.

Criticism of the quantity of evidence favoring our alternative would have Criticism of the quantity of evidence favoring our alternative would have some force if it were accompanied by any evidence favoring hers. JUS- some force if it were accompanied by any evidence favoring hers. JUS- TICE O'CONNOR does not even provide a coherent alternative meaning for TICE O'CONNOR does not even provide a coherent alternative meaning for the jury-trial guarantee, unless one considers "whatever the legislature the jury-trial guarantee, unless one considers "whatever the legislature chooses to leave to the jury, so long as it does not go too far" coherent. chooses to leave to the jury, so long as it does not go too far" coherent.

See infra, at 305-308.

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Apprendi involved a New Jersey hate-crime statute that Apprendi involved a New Jersey hate-crime statute that authorized a 20-year sentence, despite the usual 10-year authorized a 20-year sentence, despite the usual 10-year maximum, if thq judge found the crime to have been com- maximum, if thq judge found the crime to have been com- mitted "'with a purpose to intimidate ... because of race, mitted "`with a purpose to intimidate ... because of race, color, gender, handicap, religion, sexual orientation or ethnic- color, gender, handicap, religion, sexual orientation or ethnic- ity.'

Id., at 468-469 (quoting N. J. Stat. Ann. § 2C:44-3(e) ity."" Id., at 468-469 (quoting N. J. Stat. Ann. W:44-3(e) (West Supp. 1999-2000)).

In Ring v. Arizona, 536 U. S. 584, (West Supp. 1999-2000)). In Ring v. Arizona, 536 U. S. 584, 592-593, and n. 1 (2002), we applied Apprendi to an Arizona 592-593, and n. 1 (2002), we applied Apprendi to an Arizona law that authorized the death penalty if the judge found 1 of law that authorized the death penalty if the judge found 1 of 10 aggravating factors.

In each case, we concluded that the 10 aggravating factors. In each case, we concluded that the defendant's constitutional rights had been violated because defendant's constitutional rights had been violated because the judge had imposed a sentence greater than the maximum the judge had imposed a sentence greater than the maximum he could have imposed under state law without the chal- he could have imposed under state law without the chal- lenged factual finding. Apprendi, supra, at 491-497; Ring, lenged factual finding. Apprendi, supra, at 491-497; Ring, supra, at 603-609. supra, at 603-609.

In this case, petitioner was sentenced to more than three In this case, petitioner was sentenced to more than three years above the 53-month statutory maximum of the stand- years above the 53-month statutory maximum of the stand- ard range because he had acted with "deliberate cruelty." ard range because he had acted with "deliberate cruelty."

The facts supporting that finding were neither admitted by The facts supporting that finding were neither admitted by petitioner nor found by a jury. The State nevertheless con- petitioner nor found by a jury. The State nevertheless con- tends that there was no Apprendi violation because the rele- tends that there was no Apprendi violation because the rele- vant "statutory maximum" is not 53 months, but the 10-year vant "statutory maximum" is not 53 months, but the 10-year maximum for class B felonies in § 9A.20.021(1)(b).

It ob- maximum for class B felonies in § 9A.20.021(1)(b). It ob- serves that no exceptional sentence may exceed that limit. serves that no exceptional sentence may 'exceed that limit.

See § 9.94A.420. Our precedents make clear, however, that See § 9.94A.420. Our precedents make clear, however, that the "statutory maximum" for Apprendi purposes is the maxi- the "statutory maximum" for Apprendi purposes is the maxi- mum sentence a judge may impose solely on the basis of the mum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defend- facts reflected in the jury verdict or admitted by the defend- ant. See Ring, supra, at 602 (" 'the maximum he would re- ant. See Ring, supra, at 602 ("'the maximum he would re- ceive if punished according to the facts reflected in the jury ceive if punished according to the facts reflected in the jury verdict alone"' (quoting Apprendi, supra, at 483)); Harris v. verdict alone"' (quoting Apprendi, supra, at 483)); Harris v.

United States, 536 U. S. 545, 563 (2002) (plurality opinion) United States, 536 U. S. 545, 563 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488 (facts admitted by the (same); cf. Apprendi, supra, at 488 (facts admitted by the defendant).

In other words, the relevant "statutory maxi- defendant). In other words, the relevant "statutory maxi- mum" is not the maximum sentence a judge may impose mum" is not the maximum sentence a judge may impose

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after finding additional facts, but the maximum he may im- after finding additional facts, but the maximum he may im- pose without any additional findings. When a judge inflicts pose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essen- jury has not found all the facts "which the iaw makes essen- tial to the punishment," Bishop, supra, § 87, at 55, and the tial to the punishment," Bishop, supra, § 87, at 55, and the judge exceeds his proper authority. judge exceeds his proper authority.

The judge in this case could not have imposed the excep- The judge in this case could not have imposed the excep- tional 90-month sentence solely on the basis of the facts tional 90-month sentence solely on the basis of the facts admitted in the guilty plea. Those facts alone were in- admitted in the guilty plea. Those facts alone were in- sufficient because, as the Washington Supreme Court has sufficient because, as the Washington Supreme Court has explained, "[a] reason offered to justify an exceptional sen- explained, "[a] reason offered to justify an exceptional sen- tence can be considered only if it takes into account factors tence can be considered only if it takes into account factors other than those which are used in computing the standard other than those which are used in computing the standard range sentence for the offense," Gore, 143 Wash. 2d, at 315- range sentence for the offense," Gore, 143 Wash. 2d, at 315- 316, 21 P. 3d, at 277, which in this case included the elements 316, 21 P. 3d, at 277, which in this case included the elements of second-degree kidnaping and the use of a firearm, see of second-degree kidnaping and the use of a firearm, see §§ 9.94A.320, 9.94A.310(3)(b). 7 Had the judge imposed the §§ 9.94A.320, 9.94A.310(3)(b) .7 Had the judge imposed the 90-month sentence solely on the basis of the plea, he would 90-month sentence solely on the basis of the plea, he would have been reversed. See § 9.94A.210(4). The "maximum have been reversed. See § 9.94A.210(4). The "maximum sentence" is no more 10 years here than it was 20 years in sentence" is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have im- Apprendi (because that is what the judge could have im- posed upon finding a hate crime) or death in Ring (because posed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an that is what the judge could have imposed upon finding an aggravator).

aggravator).

The State defends the sentence by drawing an analogy The State defends the sentence by drawing an analogy to those we upheld in McMillan v. Pennsylvania, 477 U. S. to those we upheld in McMillan v Pennsylvania, 477 U. S. 79 (1986), and Williams v. New York, 337 U. S. 241 (1949).

79 (1986), and Williams v New York, 337 U. S. 241 (1949).

Neither case is on point. McMillan involved a sentencing Neither case is on point. McMillan involved a sentencing scheme that imposed a statutory minimum if a judge found scheme that imposed a statutory minimum if a judge found a particular fact. 477 U. S., at 81. We specifically noted a particular fact. 477 U. S., at 81. We specifically noted that the statute "does not authorize a sentence in excess that the statute "does not authorize a sentence in excess Id., of that otherwise allowed for [the underlying] offense." of that otherwise allowed for [the underlying] offense." Id.,

7 The State does not contend that the domestic-violence stipulation alone The State does not contend that the domestic-violence stipulation alone supports the departure. That the statute lists domestic violence as supports the departure. That the statute lists domestic violence as grounds for departure only when combined with some other aggravating grounds for departure only when combined with some other aggravating factor suggests it could not. See §§ 9.94A.390(2)(h)(i)-(iii). factor suggests it could not. See §§9.94A.390(2)(h)(i)—(iii).

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at 82; cf. Harris, supra, at 567. Williams involved an at 82; cf. Harris, supra, at 567. Williams involved an indeterminate-sentencing regime that allowed a judge (but indeterminate-sentencing regime that allowed a judge (but did not compel him) to rely on facts outside the trial record did not compel him) to rely on facts outside the trial record in determining whether to sentence a defendant to death. in determining whether to sentence a defendant to death.

337 U. S., at 242-243, and n. 2. The judge could have "sen- 337 U. S., at 242-243, and n. 2. The judge could have "sen- tenced [the defendant] to death giving no reason at all."

Id., tenced [the defendant] to death giving no reason at all." Id., at 252. Thus, neither case involved a sentence greater than at 252. Thus, neither case involved a sentence greater than what state law authorized on the basis of the verdict alone. what state law authorized on the basis of the verdict alone.

Finally, the State tries to distinguish Apprendi and Ring Finally, the State tries to distinguish Apprendi and Ring by pointing out that the enumerated grounds for departure by pointing out that the enumerated grounds for departure in its regime are illustrative rather than exhaustive. This in its regime are illustrative rather than exhaustive. This distinction is immaterial. Whether the judge's authority to distinction is immaterial. Whether the judge's authority to impose an enhanced sentence depends on finding a specified impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case Ring), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence. that the jury's verdict alone does not authorize the sentence.

The judge acquires that authority only upon finding some The judge acquires that authority only upon finding some additional fact.8 additional fact.$

Because the State's sentencing procedure did not comply Because the State's sentencing procedure did not comply with the Sixth Amendment, petitioner's sentence is invalid.9 with the Sixth Amendment, petitioner's sentence is invalid.'

III

Our commitment to Apprendi in this context reflects not Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That tight is intelligible content to the right of jury trial. That right is

8 Nor does it matter that the judge must, after finding aggravating facts, 8 Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. make a judgment that they present a compelling ground for departure.

He cannot make that judgment without finding some facts to support it He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially deter- beyond the bare elements of the offense. Whether the judicially deter- mined facts require a sentence enhancement or merely allow it, the ver- mined facts require a sentence enhancement or merely allow it, the ver- dict alone does not authorize the sentence. dict alone does not authorize the sentence.

'The United States, as amicus curiae, urges us to affirm.

It notes s The United States, as amicus curiae, urges us to affirm. It notes differences between Washington's sentencing regime and the Federal Sen- differences between Washington's sentencing regime and the Federal Sen- tencing Guidelines but questions whether those differences are constitu- tencing Guidelines but questions whether those differences are constitu- tionally significant. See Brief for United States as Amicus Curiae 25-30. tionally significant. See Brief for United States as Amicus Curiae 25-30.

The Federal Guidelines are not before us, and we express no opinion on The Federal Guidelines are not before us, and we express no opinion on them. them.

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no mere procedural formality, but a fundamental reservation no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their con- executive branches, jury trial is meant to ensure their con- trol in the judiciary. See Letter XV by the Federal Farmer trol in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981) (describing the jury as "secur- 315, 320 (H. Storing ed. 1981) (describing the jury as "secur- [ing] to the people at large, their just and rightful controul [ing] to the people at large, their just and rightful controul in the judicial department"); John Adams, Diary Entry (Feb.

in the judicial department"); John Adams, Diary Entry (Feb.

12, 1771), reprinted in 2 Works of John Adams 252, 253 (C.

Adams ed. 1850) ("[T]he common people, should have as com- Adams ed. 1850) ("[T]he common people, should have as com- plete a control... in every judgment of a court of judicature" plete a control ... in every judgment of a court of judicature" as in the legislature); Letter from Thomas Jefferson to the as in the legislature); Letter from Thomas Jefferson to the Abb6 Arnoux (July 19, 1789), reprinted in 15 Papers of Abb6 Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) ("Were I called Thomas Jefferson 282, 283 (J. Boyd ed. 1958) ("Were I called upon to decide whether the people had best be omitted in upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative"); Jones v. United better to leave them out of the Legislative"); Jones v. United States, 526 U. S. 227, 244-248 (1999). Apprendi carries out States, 526 U. S. 227, 244-248 (1999). Apprendi carries out this design by ensuring that the judge's authority to sen- this design by ensuring that the judge's authority to sen- tence derives wholly from the jury's verdict. Without that tence derives wholly from the jury's verdict. Without that restriction, the jury would not exercise the control that the restriction, the jury would not exercise the control that the Framers intended.

Framers intended.

Those who would reject Apprendi are resigned to one of Those who would reject Apprendi are resigned to one of two alternatives. The first is that the jury need only find two alternatives. The first is that the jury need only find whatever facts the legislature chooses to label elements of whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors-no the crime, and that those it labels sentencing factors—no matter how much they may increase the punishment-may matter how much they may increase the punishment—may be found by the judge. This would mean, for example, that be found by the judge. This would mean, for example, that a judge could sentence a man for committing murder even if a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the fire- the jury convicted him only of illegally possessing the fire- arm used to commit it-or of making an illegal lane change arm used to commit it—or of making an illegal lane change while fleeing the death scene. Not even Apprendi's critics while fleeing the death scene. Not even Apprendi's critics would advocate this absurd result. Cf. 530 U. S., at 552-553 would advocate this absurd result. Cf. 530 U. S., at 552-553 (O'CONNOR, J., dissenting). The jury could not function as (0'CONNOx, J, dissenting). The jury could not function as circuitbreaker in the State's machinery of justice if it were circuitbreaker in the State's machinery of justice if it were

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relegated to making a determination that the defendant at relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actu- judicial inquisition into the facts of the crime the State actu- ally seeks to punish.10 ally seeks to punish. 10

The second alternative is that legislatures may establish The second alternative is that legislatures may establish legally essential sentencing factors within limits-limits legally essential sentencing factors within limits—limits crossed when, perhaps, the sentencing factor is a "tail which crossed when, perhaps, the 'sentencing factor is a "tail which wags the dog of the substantive offense." McMillan, 477 wags the dog of the substantive offense." McMillan, 477

U. S., at 88. What this means in operation is that the law

must not go too far-it must not exceed the judicial estima- must not go too far—it must not exceed the judicial estima- tion of the proper role of the judge. tion of the proper role of the judge.

The subjectivity of this standard is obvious. Petitioner The subjectivity of this standard is obvious. Petitioner argued below that second-degree kidnaping with deliberate argued below that second-degree kidnaping with deliberate cruelty was essentially the same as first-degree kidnaping, cruelty was essentially the same as first-degree kidnaping, the very charge he had avoided by pleading to a lesser of- the very charge he had avoided by pleading to a lesser of- fense. The court conceded this might be so but held it irrel- fense. The court conceded this might be so but held it irrel- evant. See 111 Wash. App., at 869, 47 P. 3d, at 158.11 Peti- evant. See 111 Wash. App., at 869, 47 P. 3d, at 158. 11 Peti- tioner's 90-month sentence exceeded the 53-month standard tioner's 90-month sentence exceeded the 53-month standard maximum by almost 70%; the Washington Supreme Court in maximum by almost 70%; the Washington Supreme Court in other cases has upheld exceptional sentences 15 times the other cases has upheld exceptional sentences 15 times the standard maximum. See State v. Oxborrow, 106 Wash. 2d standard maximum. See State v. Oxborrow, 106 Wash. 2d 525, 528, 533, 723 P. 2d 1123, 1125, 1128 (1986) (en banc) (15- 525, 528, 533, 723 P. 2d 1123, 1125, 1128 (1986) (en bane) (15- year exceptional sentence; 1-year standard maximum sen- year exceptional sentence; 1-year standard maximum sen-

10JUSTICE O'CONNOR believes that a "built-in political check" will pre- 10 JUSTICE O'CONNOR believes that a "built-in political check" will pre- vent lawmakers from manipulating offense elements in this fashion. Post, vent lawmakers from manipulating offense elements in this fashion. Post, at 322. But the many immediate practical advantages of judicial factfind- at 322. But the many immediate practical advantages of judicial factfind- ing, see post, at 318-320, suggest that political forces would, if anything, ing, see post, at 318-320, suggest that political forces would, if anything, pull in the opposite direction.

In any case, the Framers' decision to en- pull in the opposite direction. In any case, the Framers' decision to en- trench the jury-trial right in the Constitution shows that they did not trench the jury-trial right in the Constitution shows that they did not trust government to make political decisions in this area. trust government to make political decisions in this area.

"Another example of conversion from separate crime to sentence en- "Another example of conversion from separate crime to sentence en- hancement that JUSTICE O'CONNOR evidently does not consider going "too hancement that JUSTICE O'CONNOR evidently does not consider going "too far" is the obstruction-of-justice enhancement, see post, at 319. Why per- far" is the obstruction-of-justice enhancement, see post, at 319. Why per- jury during trial should be grounds for a judicial sentence enhancement jury during trial should be grounds for a judicial sentence enhancement on the underlying offense, rather than an entirely separate offense to be on the underlying offense, rather than an entirely separate offense to be found by a jury beyond a reasonable doubt (as it has been for centuries, see found by a jury beyond a reasonable doubt (as it has been for centuries, see 4 W. Blackstone, Commentaries on the Laws of England 136-138 (1769)), is 4 W. Blackstone, Commentaries on the Laws of England 136-138 (1769)), is unclear.

unclear.

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tence); State v. Branch, 129 Wash. 2d 635, 650, 919 P. 2d 1228, tence); State v. Branch, 129 Wash. 2d 635, 650, 919 P. 2d 1228, 1235 (1996) (en banc) (4-year exceptional sentence; 3-month 1235 (1996) (en banc) (4-year exceptional sentence; 3-month standard maximum sentence). Did the court go too far in standard maximum sentence). Did the court go too far in any of these cases? There is no answer that legal analysis any of these cases? There is no answer that legal analysis can provide. With too far as the yardstick, it is always pos- can provide. With too far as the yardstick, it is always pos- sible to disagree with such judgments and never to refute sible to disagree with such judgments and never to refute them. them.

Whether the Sixth Amendment incorporates this manipu- Whether the Sixth Amendment incorporates this manipu- lable standard rather than Apprendi's bright-line rule de- lable standard rather than Apprendi's bright-line rule de- pends on the plausibility of the claim that the Framers would pends on the plausibility of the claim that the Framers would have left definition of the scope of jury power up to judges' have left definition of the scope of jury power up to judges' intuitive sense of how far is too far. We think that claim intuitive sense of how far is too far. We think that claim not plausible at all, because the very reason the Framers put not plausible at all, because the very reason the Framers put a jury-trial guarantee in the Constitution is that they were a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the unwilling to trust government to mark out the role of the jury.

jury.

IV

By reversing the judgment below, we are not, as the State By reversing the judgment below, we are not, as the State would have it, "find[ing] determinate sentencing schemes un- would have it, "find[ing] determinate sentencing schemes un- constitutional." Brief for Respondent 34. This case is not constitutional." Brief for Respondent 34. This case is not about whether determinate sentencing is constitutional, only about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects about how it can be implemented in a way that respects the Sixth Amendment. Several policies prompted Washing- the Sixth Amendment. Several policies prompted Washing- ton's adoption of determinate sentencing, including propor- ton's adoption of determinate sentencing, including propor- tionality to the gravity of the offense and parity among tionality to the gravity of the offense and parity among defendants. See Wash. Rev. Code Ann. § 9.94A.010 (2000).

defendants. See Wash. Rev. Code Ann. §9.94A.010 (2000).

Nothing we have said impugns those salutary objectives.

JUSTICE O'CONNOR argues that, because determinate- JUSTICE O'CONNOR argues that, because determinate- sentencing schemes involving judicial factfinding entail less sentencing schemes involving judicial factfinding entail less judicial. discretion than indeterminate schemes, the constitu- judicial. discretion than indeterminate schemes, the constitu- tionality of the latter implies the constitutionality of the tionality of the latter implies the constitutionality of the former. Post, at 314-323. This argument is flawed on a former. Post, at 314-323. This argument is flawed on a number of levels. First, the Sixth Amendment by its terms number of levels. First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury.

claimed judicial power infringes on the province of the jury.

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It increases judi- Indeterminate sentencing does not do so.

Indeterminate sentencing does not do so. It increases judi- cial discretion, to be sure, but not at the expense of the jury's cial discretion, to be sure, but not at the expense of the jury's traditional function of finding the facts essential to lawful traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to do not pertain to whether the defendant has a legal right to a lesser sentence-and that makes all the difference insofar a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury as judicial impingement upon the traditional role of the jury In a system that says the judge may punish is concerned.

is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risk- burglary with 10 to 40 years, every burglar knows he is risk- In a system that punishes burglary with ing 40 years in jail. ing 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no the burglar who enters a home unarmed is entitled to no more than a 10-year sentence-and by reason of the Sixth more than a 10-year sentence—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be Amendment the facts bearing upon that entitlement must be found by a jury. found by a jury.

But even assuming that restraint of judicial power unre- But even assuming that restraint of judicial power unre- lated to the jury's role is a Sixth Amendment objective, it is lated to the jury's role is a Sixth Amendment objective, it is far from clear that Apprendi disserves that goal. Determi- far from clear that Apprendi disserves that goal. Determi- nate judicial-factfinding schemes entail less judicial power nate judicial-factfinding schemes entail less judicial power than indeterminate schemes, but more judicial power than than indeterminate schemes, but more judicial power than determinate jury-factfinding schemes. Whether Apprendi determinate jury-factfinding schemes. Whether Apprendi increases judicial power overall depends on what States with increases judicial power overall depends on what States with determinate judicial-factfinding schemes would do, given the determinate judicial-factfinding schemes would do, given the choice between the two alternatives.

JUSTICE O'CONNOR

choice between the two alternatives. JUSTICE O'CONNOR simply assumes that the net effect will favor judges, but she simply assumes that the net effect will favor judges, but she has no empirical basis for that prediction.

Indeed, what evi- has no empirical basis for that prediction. Indeed, what evi- dence we have points exactly the other way: When the Kan- dence we have points exactly the other way: When the Kan- sas Supreme Court found Apprendi infirmities in that State's sas Supreme Court found Apprendi infirmities in that State's determinate-sentencing regime in State v. Gould, 271 Kan. determinate-sentencing regime in State v. Gould, 271 Kan.

394, 404-414, 23 P. 3d 801, 809-814 (2001), the legislature 394, 404-414, 23 R 3d 801, 809-814 (2001), the legislature responded not by reestablishing indeterminate sentencing responded not by reestablishing indeterminate sentencing but by applying Apprendi's requirements to its current re- but by applying Apprendi's requirements to its current re- gime. See Act of May 29, 2002, ch. 170, 2002 Kan. Sess. gime. See Act of May 29, 2002, ch. 170, 2002 Kan. Sess.

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Laws pp. 1018-1023 (codified at Kan. Stat. Ann. § 21-4718 Laws pp. 1018-1023 (codified at Kan. Stat. Ann. § 21-4718 (2003 Cum. Supp.)); Brief for Kansas Appellate Defender Of- (2003 Cum. Supp.)); Brief for Kansas Appellate Defender Of- fice as Amicus Curiae 3-7. The result was less, not more, fice as Amicus Curiae 3-7. The result was less, not more, judicial power. judicial power.

JUSTICE BREYER argues that Apprendi works to the det- JUSTICE BR,EYER argues that Apprendi works to the det- riment of criminal defendants who plead guilty by depriving riment of criminal defendants who plead guilty by depriving them of the opportunity to argue sentencing factors to a them of the opportunity to argue sentencing factors to a judge. Post, at 331. But nothing prevents a defendant judge. Post, at 331. But nothing prevents a defendant from waiving his Apprendi rights. When a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence en- pleads guilty, the State is free to seek judicial sentence en- hancements so long as the defendant either stipulates to the hancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. See Ap- relevant facts or consents to judicial factfinding. See Ap- prendi, 530 U. S., at 488; Duncan v. Louisiana, 391 U. S. 145, prendi, 530 U. S., at 488; Duncan v. Louisiana, 391 U. S. 145, If appropriate waivers are procured, States may 158 (1968).

158 (1968). If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to continue to offer judicial factfinding as a matter of course to all defendants who plead guilty. Even a defendant who all defendants who plead guilty. Even a defendant who stands trial may consent to judicial factfinding as to sentence stands trial may consent to judicial factfinding as to sentence enhancements, which may well be in his interest if relevant enhancements, which may well be in his interest if relevant evidence would prejudice him at trial. We do not under- evidence would prejudice him at trial. We do not under- stand how Apprendi can possibly work to the detriment of stand how Apprendi can possibly work to the detriment of those who are free, if they think its costs outweigh its bene- those who are free, if they think its costs outweigh its bene- fits, to render it inapplicable. 12 fits, to render it inapplicable. 12

12JUSTICE BREYER responds that States are not required to give de- 12 JUSTICE BREYER, responds that States are not required to give de- fendants the option of waiving jury trial on some elements but not others. fendants the option of waiving jury trial on some elements but not others.

Post, at 335-336. True enough. But why would the States that he as- Post, at 335-336. True enough. But why would the States that he as- serts we are coercing into hardheartedness-that is, States that want serts we are coercing into hardheartedness—that is, States that want judge-pronounced determinate sentencing to be the norm but we won't let judge-pronounced determinate sentencing to be the norm but we won't let them-want to prevent a defendant from choosing that regime? JUSTICE them—want to prevent a defendant from choosing that regime? JUSTICE BREYER claims this alternative may prove "too expensive and unwieldy BREYER claims this alternative may prove "too expensive and unwieldy for States to provide," post, at 336, but there is no obvious reason why for States to provide," post, at 336, but there is no obvious reason why forcing defendants to choose between contesting all elements of his hy- forcing defendants to choose between contesting all elements of his hy- pothetical 17-element robbery crime and contesting none of them is less pothetical 17-element robbery crime and contesting none of them is less expensive than also giving them the third option of pleading guilty to expensive than also giving them the third option of pleading guilty to some elements and submitting the rest to judicial factfinding.

JUSTICE

some elements and submitting the rest to judicial factfinding. JUSTICE BREYER's argument rests entirely on a speculative prediction about the BREYER's argument rests entirely on a speculative prediction about the number of defendants likely to choose the first (rather than the second) number of defendants likely to choose the first (rather than the second) option if denied the third. option if denied the third.

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Nor do we see any merit to JUSTICE BREYER'S contention Nor do we see any merit to JUSTICE BREYER'S contention that Apprendi is unfair to criminal defendants because, if that Apprendi is unfair to criminal defendants because, if States respond by enacting "17-element robbery crime[s]," States respond by enacting "17-element robbery crime[s]," prosecutors will have more elements with which to bargain. prosecutors will have more elements with which to bargain.

Post, at 331, 335-336 (citing Bibas, Judicial Fact-Finding and Post, at 331, 335-336 (citing Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale Sentence Enhancements in a World of Guilty Pleas, 110 Yale

L. J. 1097 (2001)). Bargaining already exists with regard to

sentencing factors because defendants can either stipulate or sentencing factors because defendants can either stipulate or contest the facts that make them applicable.

If there is any contest the facts that make them applicable. If there is any difference between bargaining over sentencing factors and difference between bargaining over sentencing factors and bargaining over elements, the latter probably favors the de- bargaining over elements, the latter probably favors the de- fendant. Every new element that a prosecutor can threaten fendant. Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond to contest at trial and make the prosecutor prove beyond a reasonable doubt. Moreover, given the sprawling scope a reasonable doubt. Moreover, given the sprawling scope of most criminal codes, and the power to affect sentences of most criminal codes, and the power to affect sentences by making (even nonbinding) sentencing recommendations, by making (even nonbinding) sentencing recommendations, there is already no shortage of in terrorem tools at prosecu- there is already no shortage of in terrorem tools at prosecu- tors' disposal. See King & Klein, Apprendi and Plea Bar- tors' disposal. See King & Klein, Apprendi and Plea Bar- gaining, 54 Stan. L. Rev. 295, 296 (2001) ("Every prosecuto- gaining, 54 Stan. L. Rev. 295, 296 (2001) ("Every prosecuto- rial bargaining chip mentioned by Professor Bibas existed rial bargaining chip mentioned by Professor Bibas existed pre-Apprendi exactly as it does post-Apprendi").

pre-Apprendi exactly as it does post-Apprendi").

Any evaluation of Apprendi's "fairness" to criminal de- Any evaluation of Apprendi's "fairness" to criminal de- fendants must compare it with the regime it replaced, in fendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life impris- balloon from as little as five years to as much as life impris- onment, see 21 U. S. C. §§841(b)(1)(A), (D), 13 based not on onment, see 21 U.S. C. H841(b)(1)(A), (D), 13 based not on "8 To be sure, JUSTICE BREYER and the other dissenters would forbid '1 To be sure, JUSTICE BR.EYER and the other dissenters would forbid those increases of sentence that violate the constitutional principle that those increases of sentence that violate the constitutional principle that tail shall not wag dog. The source of this principle is entirely unclear.

tail shall not wag dog. The source of this principle is entirely unclear.

Its precise effect, if precise effect it has, is presumably to require that the Its precise effect, if precise effect it has, is presumably to require that the ratio of sentencing-factor add-on to basic criminal sentence be no greater ratio of sentencing-factor add-on to basic criminal sentence be no greater than the ratio of caudal vertebrae to body in the breed of canine with the than the ratio of caudal vertebrae to body in the breed of canine with the longest tail. Or perhaps no greater than the average such ratio for all longest tail. Or perhaps no greater than the average such ratio for all breeds. Or perhaps the median. Regrettably, Apprendi has prevented breeds. Or perhaps the median. Regrettably, Apprendi has prevented full development of this line of jurisprudence. full development of this line of jurisprudence.

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Opinion of the Court Opinion of the Court

facts proved to his peers beyond a reasonable doubt, but on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a proba- facts extracted after trial from a report compiled by a proba- tion officer who the judge thinks more likely got it right than tion officer who the judge thinks more likely got it right than got it wrong. We can conceive of no measure of fairness got it wrong. We can conceive of no measure of fairness that would find more fault in the utterly speculative bargain- that would find more fault in the utterly speculative bargain- ing effects JUSTICE BREYER identifies than in the regime he ing effects JUSTICE BREYER identifies than in the regime he champions. Suffice it to say that, if such a measure exists, champions. Suffice it to say that, if such a measure exists, it is not the one the Framers left us with. it is not the one the Framers left us with.

The implausibility of JUSTICE BREYER's contention that The implausibility of JUSTICE BREYER's contention that Apprendi is unfair to criminal defendants is exposed by the Apprendi is unfair to criminal defendants is exposed by the lineup of amici in this case.

It is hard to believe that the lineup of amici in this case. It is hard to believe that the National Association of Criminal Defense Lawyers was National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side.

JUSTICE

somehow duped into arguing for the wrong side. JUSTICE BREYER's only authority asking that defendants be pro- BREYER's only authority asking that defendants be pro- tected from Apprendi is an article written not by a criminal tected from Apprendi is an article written not by a criminal defense lawyer but by a law professor and former prosecutor. defense lawyer but by a law professor and former prosecutor.

See post, at 331 (citing Bibas, supra); Association of Ameri- See post, at 331 (citing Bibas, supra); Association of Ameri- can Law Schools Directory of Law Teachers 2003-2004, can Law Schools Directory of Law Teachers 2003-2004,

p. 319.

JUSTICE BREYER also claims that Apprendi will attenuate JUSTICE BREYER also claims that Apprendi will attenuate the connection between "real criminal conduct and real pun- the connection between "real criminal conduct and real pun- ishment" by encouraging plea bargaining and by restricting ishment" by encouraging plea bargaining and by restricting alternatives to adversarial factfinding. Post, at 334, 338- alternatives to adversarial factfinding. Post, at 334, 338-

339. The short answer to the former point (even assuming

the questionable premise that Apprendi does encourage plea the questionable premise that Apprendi does encourage plea bargaining, but see supra, at 310, n. 12) is that the Sixth bargaining, but see supra, at 310, n. 12) is that the Sixth Amendment was not written for the benefit of those who Amendment was not written for the benefit of those who choose to forgo its protection.

It guarantees the right to choose to forgo its protection. It guarantees the right to jury trial. It does not guarantee that a particular number jury trial. It does not guarantee that a particular number of jury trials will actually take place. That more defendants of jury trials will actually take place. That more defendants elect to waive that right (because, for example, government elect to waive that right (because, for example, government at the moment is not particularly oppressive) does not prove at the moment is not particularly oppressive) does not prove that a constitutional provision guaranteeing availability of that a constitutional provision guaranteeing availability of that option is disserved. that option is disserved.

JUSTICE BREYER's more general argument-that Ap- JUSTICE BREYER's more general argument—that Ap- prendi undermines alternatives to adversarial factfinding- prendi undermines alternatives to adversarial factfinding—

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is not so much a criticism of Apprendi as an assault on jury is not so much a criticism of Apprendi as an assault on jury trial generally. His esteem for "nonadversarial" truth- trial generally. His esteem for "nonadversarial" truth- seeking processes, post, at 339, supports just as well an argu- seeking processes, post, at 339, supports just as well an argu- ment against either. Our Constitution and the common-law ment against either. Our Constitution and the common-law traditions it entrenches, however, do not admit the conten- traditions it entrenches, however, do not admit the conten- tion that facts are better discovered by judicial inquisition tion that facts are better discovered by judicial inquisition than by adversarial testing before a jury. See 3 Blackstone, than by adversarial testing before a jury. See 3 Blackstone, Commentaries, at 373-374, 379-381.

JUSTICE BREYER may Commentaries, at 373-374,379-381. JUSTICE BREYER may be convinced of the equity of the regime he favors, but his be convinced of the equity of the regime he favors, but his views are not the ones we are bound to uphold. views are not the ones we are bound to uphold.

Ultimately, our decision cannot turn on whether or to what Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of crim- degree trial by jury impairs the efficiency or fairness of crim- inal justice. One can certainly argue that both these values inal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particu- hands of professionals; many nations of the world, particu- larly those following civil-law traditions, take just that larly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the course. There is not one shred of doubt, however, about the Framers' paradigm for criminal justice: not the civil-law Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of au- of limited state power accomplished by strict division of au- thority between judge and jury. As Apprendi held, every thority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.

to a jury all facts legally essential to the punishment.

Under the dissenters' alternative, he has no such right.

That should be the end of the matter.

* * *

Petitioner was sentenced to prison for more than three Petitioner was sentenced to prison for more than three years beyond what the law allowed for the crime to which years beyond what the law allowed for the crime to which he confessed, on the basis of a disputed finding that he had he confessed, on the basis of a disputed finding that he had acted with "deliberate cruelty." The Framers would not acted with "deliberate cruelty." The Framers would not have thought it too much to demand that, before depriving have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation suffer the modest inconvenience of submitting its accusation to "the unanimous suffrage of twelve of his equals and neigh- to "the unanimous suffrage of twelve of his equals and neigh-

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bours," 4 Blackstone, supra, at 343, rather than a lone em- bours," 4 Blackstone, supra, at 343, rather than a lone em- ployee of the State. ployee of the State.

The judgment of the Washington Court of Appeals is re- The judgment of the Washington Court of Appeals is re- versed, and the case is remanded for further proceedings not versed, and the case is remanded for further proceedings not inconsistent with this opinion. inconsistent with this opinion.

It is so ordered.

JUSTICE O'CONNOR, with whom JUSTICE BREYER joins, JUSTICE O'CONNOR, with whom JUSTICE BREŸER joins, and with whom THE CHIEF JUSTICE and JUSTICE KENNEDY and with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join as to all but Part IV-B, dissenting. join as to all but Part IV—B, dissenting.

The legacy of today's opinion, whether intended or not, The legacy of today's opinion, whether intended or not, will be the consolidation of sentencing power in the State will be the consolidation of sentencing power in the State and Federal Judiciaries. The Court says to Congress and and Federal Judiciaries. The Court says to Congress and state legislatures: If you want to constrain the sentencing state legislatures: If you want to constrain the sentencing discretion of judges and bring some uniformity to sentencing, discretion of judges and bring some uniformity to sentencing, it will cost you-dearly. Congress and States, faced with it will cost you—dearly. Congress and States, faced with the burdens imposed by the extension of Apprendi v. New the burdens imposed by the extension of Apprendi v. New Jersey, 530 U. S. 466 (2000), to the present context, will Jersey, 530 U. S. 466 (2000), to the present context, will either trim or eliminate altogether their sentencing guide- either trim or eliminate altogether their sentencing guide- lines schemes and, with them, 20 years of sentencing reform.

lines schemes and, with them, 20 years of sentencing reform.

It is thus of little moment that the majority does not ex- It is thus of little moment that the majority does not ex- pressly declare guidelines schemes unconstitutional, ante, at pressly declare guidelines schemes unconstitutional, ante, at 308; for, as residents of "Apprendi-land" are fond of saying, 308; for, as residents of "Apprendi-land" are fond of saying, "the relevant inquiry is one not of form, but of effect." Ap- "the relevant inquiry is one not of form, but of effect." Ap- prendi, supra, at 494; Ring v. Arizona, 536 U. S. 584, 613 prendi, supra, at 494; Ring v Arizona, 536 U. S. 584, 613 (2002) (SCALIA, J., concurring). The "effect" of today's deci- (2002) (SCALIA, J , concurring). The "effect" of today's deci- sion will be greater judicial discretion and less uniformity in sion will be greater judicial discretion and less uniformity in sentencing. Because I find it implausible that the Framers sentencing. Because I find it implausible that the Framers would have considered such a result to be required by the would have considered such a result to be required by the Due Process Clause or the Sixth Amendment, and because Due Process Clause or the Sixth Amendment, and because the practical consequences of today's decision may be disas- the practical consequences of today's decision may be disas- trous, I respectfully dissent.

trous, I respectfully dissent.

I

One need look no further than the history leading up to One need look no further than the history leading up to and following the enactment of Washington's guidelines and following the enactment of Washington's guidelines

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scheme to appreciate the damage that today's decision will scheme to appreciate the damage that today's decision will cause. Prior to 1981, Washington, like most other States cause. Prior to 1981, Washington, like most other States and the Federal Government, employed an indeterminate and the Federal Government, employed an indeterminate sentencing scheme. Washington's criminal code separated sentencing scheme. Washington's criminal code separated all felonies into three broad categories: "class A," carrying all felonies into three broad categories: "class A," carrying a sentence of 20 years to life; "class B," carrying a sentence a sentence of 20 years to life; "class B," carrying a sentence of 0 to 10 years; and "class C," carrying a sentence of 0 to of 0 to 10 years; and "class C," carrying a sentence of 0 to 5 years. Wash. Rev. Code Ann. §9A.20.020 (2000); see 5 years. Wash. Rev. Code Ann. §9A.20.020 (2000); see also Sentencing Reform Act of 1981, 1981 Wash. Laws also Sentencing Reform Act of 1981, 1981 Wash. Laws ch. 137, p. 534. Sentencing judges, in conjunction with pa- ch. 137, p. 534. Sentencing judges, in conjunction with pa- role boards, had virtually unfettered discretion to sentence role boards, had virtually unfettered discretion to sentence defendants to prison terms falling anywhere within the stat- defendants to prison terms falling anywhere within the stat- utory range, including probation-i. e., no jail sentence at all.

utory range, including probation—i. e., no jail sentence at all.- Wash. Rev. Code Ann. §§9.95.010-9.95.011; Boerner & Lieb, Wash. Rev. Code Ann. §§9.95.010-9.95.011; Boerner & Lieb, Sentencing Reform in the Other Washington, 28 Crime and Sentencing Reform in the Other Washington, 28 Crime and Justice 71, 73 (M. Tonry ed. 2001) (hereinafter Boerner & Justice 71, 73 (M. Tonry ed. 2001) (hereinafter Boerner & Lieb) ("Judges were authorized to choose between prison and Lieb) ("Judges were authorized to choose between prison and probation with few exceptions, subject only to review for probation with few exceptions, subject only to review for abuse of discretion"). See also D. Boerner, Sentencing in abuse of discretion"). See also D. Boerner, Sentencing in Washington § 2.4, pp. 2-27 to 2-28 (1985).

Washington § 2.4, pp. 2-27 to 2-28 (1985).

This system of unguided discretion inevitably resulted in This system of unguided discretion inevitably resulted in severe disparities in sentences received and served by de- severe disparities in sentences received and served by de- fendants committing the same offense and having similar fendants committing the same offense and having similar criminal histories. Boerner & Lieb 126-127; cf. S. Rep. criminal histories. Boerner & Lieb 126-127; cf. S. Rep.

No. .98-225, p. 38 (1983) (Senate Report on precursor to fed- No. .98-225, p. 38 (1983) (Senate Report on precursor to fed- eral Sentencing Reform Act of 1984) ("[E]very day Federal eral Sentencing Reform Act. of 1984) ("[E]very day Federal judges mete out an unjustifiably wide range of sentences to judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, offenders with similar histories, convicted of similar crimes, committed under similar circumstances ....

These dispari- committed under similar circumstances.... These dispari- ties, whether they occur at the time of the initial sentencing ties, whether they occur at the time of the initial sentencing or at the parole stage, can be traced directly to the unfet- or at the parole stage, can be traced directly to the unfet- tered discretion the law confers on those judges and parole tered discretion the law confers on those judges and parole authorities responsible for imposing and implementing the authorities responsible for imposing and implementing the Indeed, rather than reflect legally relevant cri- sentence"). sentence"). Indeed, rather than reflect legally relevant cri- teria, these disparities too often were correlated with consti- teria, these disparities too often were correlated with consti- tutionally suspect variables such as race. Boerner & Lieb tutionally suspect variables such as race. Boerner & Lieb

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126-128. See also Breyer, The Federal Sentencing Guide- 126-128. See also Breyer, The Federal Sentencing Guide- lines and the Key Compromises Upon Which They Rest, 17 lines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 5 (1988) (elimination of racial disparity one Hofstra L. Rev. 1, 5 (1988) (elimination of racial disparity one reason behind Congress' creation of the Federal Sentencing reason behind Congress' creation of the Federal Sentencing Commission).

Commission).

To counteract these trends, the state legislature passed To counteract these trends, the state legislature passed the Sentencing Reform Act of 1981. The Act had the the Sentencing Reform Act of 1981. The Act had the laudable purposes of "mak[ing] the criminal justice system laudable purposes of "mak[ing] the criminal justice system accountable to the public," and "[e]nsur[ing] that the punish- accountable to the public," and "[e]nsur[ing] that the punish- ment for a criminal offense is proportionate to the serious- ment for a criminal offense is proportionate to the serious- ness of the offense . . . [and] commensurate with the pun- ness of the offense ... [and] commensurate with the pun- ishment imposed on others committing similar offenses." ishment imposed on others committing similar offenses."

Wash. Rev. Code Ann. § 9.94A.010 (2000). The Act neither Wash. Rev. Code Ann. §9.64A.010 (2000). The Act neither increased any of the statutory sentencing ranges for the increased any of the statutory sentencing ranges for the three types of felonies (though it did eliminate the statutory three types of felonies (though it did eliminate the statutory mandatory minimum for class A felonies), nor reclassified mandatory minimum for class A felonies), nor reclassified any substantive offenses. 1981 Wash. Laws ch. 137, p. 534. any substantive offenses. 1981 Wash. Laws ch. 137, p. 534.

It merely placed meaningful constraints on discretion to sen- It merely placed meaningful constraints on discretion to sen- tence offenders within the statutory ranges, and eliminated tence offenders within the statutory ranges, and eliminated parole. There is thus no evidence that the legislature was parole. There is thus no evidence that the legislature was attempting to manipulate the statutory elements of criminal attempting to manipulate the statutory elements of criminal offenses or to circumvent the procedural protections of the offenses or to circumvent the procedural protections of the Bill of Rights. Rather, lawmakers were trying to bring Bill of Rights. Rather, lawmakers were trying to bring some much-needed uniformity, transparency, and account- some much-needed uniformity, transparency, and account- ability to an otherwise "'labyrinthine' sentencing and correc- ability to an otherwise "'labyrinthine' sentencing and correc- tions system that 'lack[ed] any principle except unguided dis- tions system that `lack[ed] any principle except unguided dis- cretion."' Boerner & Lieb 73 (quoting F. Zimring, Making cretion."' Boerner & Lieb 73 (quoting F. Zimring, Making the Punishment Fit the Crime: A Consumers' Guide to Sen- the Punishment Fit the Crime: A Consumers' Guide to Sen- tencing Reform, Occasional Paper No. 12, p. 6 (1977)).

tencing Reform, Occasional Paper No. 12, p. 6 (1977)).

II

Far from disregarding principles of due process and the Far from disregarding principles of due process and the jury trial right, as the majority today suggests, Washington's jury trial right, as the majority today suggests, Washington's reform has served them. Before passage of the Act, a de- reform has served them. Before passage of the Act, a de- fendant charged with second degree kidnaping, like peti- fendant charged with second degree kidnaping, like peti- tioner, had no idea whether he would receive a 10-year sen- tioner, had no idea whether he would receive a 10-year sen-

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O'CONNOR, J., dissenting O'CONxoR, J., dissenting

tence or probation. The ultimate sentencing determination tense or probation. The ultimate sentencing determination could turn as much on the idiosyncracies of a particular judge could turn as much on the idiosyncracies of a particular judge as on the specifics of the defendant's crime or background. as on the specifics of the defendant's crime or background. A defendant did not know what facts, if any, about his offense A defendant did not know what facts, if any, about his offense or his history would be considered relevant by the sentenc- or his history would be considered relevant by the sentenc- ing judge or by the parole board. After passage of the Act, ing judge or by the parole board. After passage of the Act, a defendant charged with second degree kidnaping knows a defendant charged with second degree kidnaping knows what his presumptive sentence will be; he has a good idea of what his presumptive sentence will be; he has a good idea of the types of factors that a sentencing judge can and will con- the types of factors that a sentencing judge can and will con- sider when deciding whether to sentence him outside that sider when deciding whether to sentence him outside that range; he is guaranteed meaningful appellate review to pro- range; he is guaranteed meaningful appellate review to pro- tect against an arbitrary sentence. Boerner & Lieb 93 ("By tect against an arbitrary sentence. Boerner & Lieb 93 ("By consulting one sheet, practitioners could identify the applica- consulting one sheet, practitioners could identify the applica- ble scoring rules for criminal history, the sentencing range, ble scoring rules for criminal history, the sentencing range, and the available sentencing options for each case"). Crimi- and the available sentencing options for each case"). Crimi- nal defendants still face the same statutory maximum sen- nal defendants still face the same statutory maximum sen- tences, but they now at least know, much more than before, tences, but they now at least know, much more than before, the real consequences of their actions.

the real consequences of their actions.

Washington's move to a system of guided discretion has Washington's move to a system of guided discretion has served equal protection principles as well. Over the past 20 served equal protection principles as well. Over the past 20 years, there has been a substantial reduction in racial dispar- years, there has been a substantial reduction in racial dispar- ity in sentencing across the State.

Id., at 126 (Racial dispar- ity in sentencing across the State. Id., at 126 (Racial dispar- ities that do exist "are accounted for by differences in legally ities that do exist "are accounted for by differences in legally relevant variables-the offense of conviction and prior relevant variables—the offense of conviction and prior criminal record"); id., at 127 ("[J]udicial authority to impose criminal record"); id., at 127 ("[J]udicial authority to impose exceptional sentences under the court's departure authority exceptional sentences under the court's departure authority shows little evidence of disparity correlated with race"). shows little evidence of disparity correlated with race").

The reduction is directly traceable to the constraining ef- The reduction is directly traceable to the constraining ef- fects of the guidelines-namely, their "presumptive range[s]" fects of the guidelines—namely, their "presumptive range[s]" and limits on the imposition of "exceptional sentences" out- and limits on the imposition of "exceptional sentences" out- side of those ranges.

Id., at 128. For instance, sentencing side of those ranges. Id., at 128. For instance, sentencing judges still retain unreviewable discretion in first-time judges still retain unreviewable discretion in first-time offender cases and in certain sex offender cases to impose offender cases and in certain sex offender cases to impose alternative sentences that are far more lenient than those alternative sentences that are far more lenient than those contemplated by the guidelines. To the extent that unjus- contemplated by the guidelines. To the extent that unjus- tifiable racial disparities have persisted in Washington, it tifiable racial disparities have persisted in Washington, it

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has been in the imposition of such alternative sentences: has been in the imposition of such alternative sentences: "The lesson is powerful: racial disparity is correlated with "The lesson is powerful: racial disparity is correlated with Ibid.; see also unstructured and unreviewed discretion." unstructured and unreviewed discretion." Ibid.; see also Washington State Minority and Justice Commission, Washington State Minority and Justice Commission,

R. Crutchfield, J. Weis, R. Engen, & R. Gainey, Racial/Ethnic

Disparities and Exceptional Sentences in Washington State, Disparities and Exceptional Sentences in Washington State, Final Report 51-53 (Sept. 1993) ("[E]xceptional sentences Final Report 51-53 (Sept. 1993) ("[E]xceptional sentences are not a major source of racial disparities in sentencing"). are not a major source of racial disparities in sentencing").

The majority does not, because it cannot, disagree that de- The majority does not, because it cannot, disagree that de- terminate sentencing schemes, like Washington's, serve im- terminate sentencing schemes, like Washington's, serve im- portant constitutional values. Ante, at 308. Thus, the ma- portant constitutional values. Ante, at 308. Thus, the ma- jority says: "This case is not about whether determinate jority says: "This case is not about whether determinate sentencing is constitutional, only about how it can be imple- sentencing is constitutional, only about how it can be imple- mented in a way that respects the Sixth Amendment." mented in a way that respects the Sixth Amendment."

Ibid. But extension of Apprendi to the present context will Ibid. But extension of Apprendi to the present context will impose significant costs on a legislature's determination that impose significant costs on a legislature's determination that a particular fact, not historically an element, warrants a a particular fact, not historically an element, warrants a higher sentence. While not a constitutional prohibition on higher sentence. While not a constitutional prohibition on guidelines schemes, the majority's decision today exacts a guidelines schemes, the majority's decision today exacts a substantial constitutional tax. substantial constitutional tax.

The costs are substantial and real. Under the majority's The costs are substantial and real. Under the majority's approach, any fact that increases the upper bound on a approach, any fact that increases the upper bound. on a judge's sentencing discretion is an element of the offense. judge's sentencing discretion is an element. of the offense.

Thus, facts that historically have been taken into account by Thus, facts that historically have been taken into account by sentencing judges to assess a sentence within a broad sentencing judges to assess a sentence within a broad range-such as drug quantity, role in the offense, risk of range—such as drug quantity, role in the offense, risk of bodily harm-all must now be charged in an indictment and bodily harm—all must now be charged in an indictment and submitted to a jury, In re Winship, 397 U. S. 358 (1970), sim- submitted to a jury, In re Winship, 397 U. S. 358 (1970), sim- ply because it is the legislature, rather than the judge, that ply because it is the legislature, rather than the judge, that constrains the extent to which such facts may be used to constrains the extent to which such facts may be used to impose a sentence within a pre-existing statutory range. impose a sentence within a pre-existing statutory range.

While that. alone is enough to threaten the continued use While that. alone is enough to threaten the continued use of sentencing guidelines schemes, there are additional costs. of sentencing guidelines schemes, there are additional costs.

For example, a legislature might rightly think that some fac- For example, a legislature might rightly think that some fac- tors bearing on sentencing, such as prior bad acts or criminal tors bearing on sentencing, such as prior bad acts or criminal history, should not be considered in a jury's determination of history, should not be considered in a jury's determination of

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a defendant's guilt-such "character evidence" has tradition- a defendant's guilt—such "character evidence" has tradition- ally been off. limits during the guilt phase of criminal pro- ally been off. limits during the guilt phase of criminal pro- ceedings because of its tendency to inflame the passions of ceedings because of its tendency to inflame the passions of the jury. See, e. g., Fed. Rule Evid. 404; 1 E. Imwinkelried, the jury. See, e. g., Fed. Rule Evid. 404; 1 E. Imwinkelried,

P. Giannelli, F. Gilligan, & F. Lederer, Courtroom Criminal

Evidence 285 (3d ed. 1998).

If a legislature desires uniform Evidence 285 (3d ed. 1998). If a legislature desires uniform consideration of such factors at sentencing, but does not want consideration of such factors at sentencing, but does not want them to impact a jury's initial determination of guilt, the them to impact a jury's initial determination of guilt, the State may have to bear the additional expense of a separate, State may have to bear the additional expense of a separate, full-blown jury trial during the penalty phase proceeding. full-blown jury trial during the penalty phase proceeding.

Some facts that bear on sentencing either will not be dis- Some facts that bear on sentencing either will not be dis- covered, or are not discoverable, prior to trial. For in- covered, or are not discoverable, prior to trial. For in- stance, a legislature might desire that defendants who act in stance, a legislature might desire that defendants who act in an obstructive manner during trial or post-trial proceedings an obstructive manner during trial or post-trial proceedings receive a greater sentence than defendants who do not. receive a greater sentence than defendants who do not.

See, e. g., United States Sentencing Commission, Guidelines See, e. g., United States Sentencing Commission, Guidelines Manual §3C1.1 (Nov. 2003) (hereinafter USSG) (2-point in- Manual §3C1.1 (Nov. 2003) (hereinafter USSG) (2-point in- crease in offense level for obstruction of justice).

In such crease in offense level for obstruction of justice). In such cases, the violation arises too late for the State to provide cases, the violation arises too late for the State to provide notice to the defendant or to argue the facts to the jury. A notice to the defendant or to argue the facts to the jury. A State wanting to make such facts relevant at sentencing State wanting to make such facts relevant at sentencing must now either vest sufficient discretion in the judge to must now either vest sufficient discretion in the judge to account for them or bring a separate criminal prosecution account for them or bring a separate criminal prosecution for obstruction of justice or perjury. And, the latter option for obstruction of justice or perjury. And, the latter option is available only to the extent that a defendant's obstructive is available only to the extent that a defendant's obstructive behavior is so severe as to constitute an already-existing sep- behavior is so severe as to constitute an already-existing sep- arate offense, unless the legislature is willing to undertake arate offense, unless the legislature is willing to undertake the unlikely expense of criminalizing relatively minor ob- the unlikely expense of criminalizing relatively minor ob- structive behavior.

structive behavior.

Likewise, not all facts that historically have been relevant Likewise, not all facts that historically have been relevant to sentencing always will be known prior to trial. For in- to sentencing always will be known prior to trial. For in- stance, trial or sentencing proceedings of a drug distribution stance, trial or sentencing proceedings of a drug distribution defendant might reveal that he sold primarily to children. defendant might reveal that he sold primarily to children.

Under the majority's approach, a State wishing such a reve- Under the majority's approach, a State wishing such a reve- lation to result in a higher sentence within a pre-existing lation to result in a higher sentence within a pre-existing statutory range either must vest judges with sufficient dis- statutory range either must vest judges with sufficient dis-

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cretion to account for it (and trust that they exercise that cretion to account for it (and trust that they exercise that discretion) or bring a separate criminal prosecution.

In- discretion) or bring a separate criminal prosecution. In- deed, the latter choice might not be available-a separate deed, the latter choice might not be available—a separate prosecution, if it is for an aggravated offense, likely would prosecution, if it is for an aggravated offense, likely would be barred altogether by the Double Jeopardy Clause. be barred altogether by the Double Jeopardy Clause.

Blockburger v. United States, 284 U. S. 299 (1932) (govern- Blockburger v. United States, 284 U. S. 299 (1932) (govern- ment cannot prosecute for separate offenses unless each of- ment cannot prosecute for separate offenses unless each of- fense has- at least one element that the other does not). fense has- at least one element that the other does not).

The majority may be correct that States and the Federal The majority may be correct that States and the Federal Government will be willing to bear some of these costs.

Government will be willing to bear some of these costs.

Ante, at 309-310. But simple economics dictate that they Ante, at 309-310. But simple economics dictate that they will not, and cannot, bear them all. To the extent that they will not, and cannot, bear them all. To the extent that they do not, there will be an inevitable increase in judicial discre- do not, there will be an inevitable increase in judicial discre- tion with all of its attendant failings.' tion with all of its attendant failings.'

III

Washington's Sentencing Reform Act did not alter the Washington's Sentencing Reform Act did not alter the statutory maximum sentence to which petitioner was ex- statutory maximum sentence to which petitioner was ex- posed. See Wash. Rev. Code Ann. § 9A.40.030 (2003) (second posed. See Wash. Rev. Code Ann. § 9A.40.030 (2003) (second

'The paucity of empirical evidence regarding the impact of extending 'The paucity of empirical evidence regarding the impact of extending Apprendi v. New Jersey, 530 U. S. 466 (2000), to guidelines schemes should Apprendi v. New Jersey, 530 U. S. 466 (2000), to guidelines schemes should come as no surprise to the majority. Ante, at 309. Prior to today, only come as no surprise to the majority. Ante, at 309. Prior to today, only one court had ever applied Apprendi to invalidate application of a guide- one court had ever applied Apprendi to invalidate application of a guide- lines scheme. Compare State v. Gould, 271 Kan. 394, 23 P. 3d 801 (2001), lines scheme. Compare State v. Gould, 271 Kan. 394, 23 P. 3d 801 (2001), with, e. g., United States v. Goodine, 326 F. 3d 26 (CA1 2003); United States with, e. g., United States v. Goodin, 326 F. 3d 26 (CA12003); United States

v. Luciano, 311 F. 3d 146 (CA2 2002); United States v. DeSumma, 272

F. 3d 176 (CA3 2001); United States v. Kinter, 235 F. 3d 192 (CA4 2000);

United States v. Randle, 304 F. 3d 373 (CA5 2002); United States v. Helton, United States v. Randle, 304 F. 3d 373 (CA5 2002); United States v. Helton, 349 F. 3d 295 (CA6 2003); United States v. Johnson, 335 F. 3d 589 (CA7 349 F. 3d 295 (CA6 2003); United States v. Johnson, 335 F. 3d 589 (CA7 2003) (per curiam); United States v. Piggie, 316 F. 3d 789 (CA8 2003); 2003) (per curiam); United States v. Piggie, 316 F. 3d 789 (CA8 2003); United States v. Toliver, 351 F. 3d 423 (CA9 2003); United States v.

United States v. Toliver, 351 F. 3d 423 (CA9 2003); United States v.

Mendez-Zamora, 296 F. 3d 1013 (CA10 2002); United States v. Sanchez, Mendez-Zamora, 296 F. 3d 1013 (CA10 2002); United States v. Sanchez, 269 F. 3d 1250 (CAll 2001); United States v. Fields, 251 F. 3d 1041 (CADC 269 F. 3d 1250 (CÁ112001); United States v. Fields, 251 F. 3d 1041 (CADC 2001); State v. Dilts, 336 Ore. 158, 82 P. 3d 593 (2003); State v. Gore, 143 2001); State v. Dilts, 336 Ore. 158, 82 P. 3d 593 (2003); State v. Gore, 143 Wash. 2d 288, 21 P. 3d 262 (2001); State v. Lucas, 353 N. C. 568, 548 S. E.

Wash. 2d 288, 21 P. 3d 262 (2001); State v. Lucas, 353 N. C. 568, 548 S. E.

2d 712 (2001); State v. Dean, No. C4-02-1225, 2003 WL 21321425 (Ct. App.

2d 712 (2001); State v. Dean, No. C4-02-1225,2003 WL 21321425 (Ct. App.

Minn., June 10, 2003) (unpublished opinion). Thus, there is no map of the Minn., June 10, 2003) (unpublished opinion). Thus, there is no map of the uncharted territory blazed by today's unprecedented holding. uncharted territory blazed by today's unprecedented holding.

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degree kidnaping class B felony since 1975); see also State v. degree kidnaping class B felony since 1975); see also State v.

Pawling, 23 Wash. App. 226, 228-229, 597 P. 2d 1367, 1369 Pawling, 23 Wash. App. 226, 228-229, 597 P. 2d 1367, 1369 (1979) (citing second degree kidnaping provision as existed (1979) (citing second degree kidnaping provision as existed in 1977). Petitioner was informed in the charging docu- in 1977). Petitioner was informed in the charging docu- ment, his plea agreement, and during his plea hearing that ment, his plea agreement, and during his plea hearing that he faced a potential statutory maximum of 10 years in prison. he faced a potential statutory maximum of 10 years in prison.

App. 63, 66, 76. As discussed above, the guidelines served App. 63, 66, 76. As discussed above, the guidelines served due process by providing notice to petitioner of the conse- due process by providing notice to petitioner of the conse- quences of his acts; they vindicated his jury trial right by quences of his acts; they vindicated his jury trial right by informing him of the stakes of risking trial; they served informing him of the stakes of risking trial; they served equal protection by ensuring petitioner that invidious char- equal protection by ensuring petitioner that invidious char- acteristics such as race would not impact his sentence. acteristics such as race would not impact his sentence.

Given these observations, it is difficult for me to discern Given these observations, it is difficult for me to discern what principle besides doctrinaire formalism actually moti- what principle besides doctrinaire formalism actually moti- vates today's decision. The majority chides the Apprendi vates today's decision. The majority chides the Apprendi dissenters for preferring a nuanced interpretation of the Due dissenters for preferring a nuanced interpretation of the Due Process Clause and Sixth Amendment jury trial guarantee Process Clause and Sixth Amendment jury trial guarantee that would generally defer to legislative labels while ac- that would generally defer to legislative labels while ac- knowledging the existence of constitutional constraints- knowledging the existence of constitutional constraints— what the majority calls "the law must not go too far" ap- what the majority calls "the law must not go too far" ap- proach. Ante, at 307 (emphasis deleted).

If indeed the proach. Ante, at 307 (emphasis deleted). If indeed the choice is between adopting a balanced case-by-case approach choice is between adopting a balanced case-by-case approach that takes into consideration the values underlying the Bill that takes into consideration the values underlying the Bill of Rights, as well as the history of a particular sentencing of Rights, as well as the history of a particular sentencing reform law, and adopting a rigid rule that destroys every- reform law, and adopting a rigid rule that destroys every- thing in its path, I will choose the former. See Apprendi, thing in its path, I will choose the former. See Apprendi, 530 U. S., at 552-554 (O'CONNOR, J., dissenting) ("Because I 530 U. S., at 552-554 (0'CONNOR, J, dissenting) ("Because I do not believe that the Court's 'increase in the maximum do not believe that the Court's `increase in the maximum penalty' rule is required by the Constitution, I would evalu- penalty' rule is required by the Constitution, I would evalu- ate New Jersey's sentence-enhancement statute by analyz- ate New Jersey's sentence-enhancement statute by analyz- ing the factors we have examined in past cases" (citation ing the factors we have examined in past cases" (citation omitted)).

omitted)).

But even were one to accept formalism as a principle But even were one to accept formalism as a principle worth vindicating for its own sake, it would not explain Ap- worth vindicating for its own sake, it would not explain Ap- prendi's, or today's, result. A rule of deferring to legisla- prendi's, or today's, result. A rule of deferring to legisla- It would be more tive labels has no less formal pedigree. tive labels has no less formal pedigree. It would be more

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consistent with our decisions leading up to Apprendi, see consistent with our decisions leading up to Apprendi, see Almendarez-Torres v. United States, 523 U. S. 224 (1998) Almendarez-Torres v. United States, 523 U. S. 224 (1998) (fact of prior conviction not an element of aggravated recidi- (fact of prior conviction not an element of aggravated recidi- vist offense); United States v. Watts, 519 U. S. 148 (1997) (per vist offense); United States v. Watts, 519 U. S. 148 (1997) (per curiam) (acquittal of offense no bar to consideration of un- curiam) (acquittal of offense no bar to consideration of un- derlying conduct for purposes of guidelines enhancement); derlying conduct for purposes of guidelines enhancement); Witte v. United States, 515 U. S. 389 (1995) (no double jeop- Witte v. United States, 515 U. S. 389 (1995) (no double jeop- ardy bar against consideration of uncharged conduct in impo- ardy bar against consideration of uncharged conduct in impo- sition of guidelines enhancement); Walton v. Arizona, 497 sition of guidelines enhancement); Walton v. Arizona, 497

U. S. 639 (1990) (aggravating factors need not be found by a

jury in capital case); Mistretta v. United States, 488 U. S. 361 jury in capital case); Mistretta v. United States, 488 U. S. 361 (1989) (Federal Sentencing Guidelines do not violate separa- (1989) (Federal Sentencing Guidelines do not violate separa- tion of powers); McMillan v. Pennsylvania, 477 U. S. 79 tion of powers); McMillan v. Pennsylvania, 477 U. S. 79 (1986) (facts increasing mandatory minimum sentence are (1986) (facts increasing mandatory minimum sentence are not necessarily elements); and it would vest primary author- not necessarily elements); and it would vest primary author- ity for defining crimes in the political branches, where it ity for defining crimes in the political branches, where it belongs. Apprendi, supra, at 523-554 (O'CONNOR, J., dis- belongs. Apprendi, supra, at 523-554 (0'CONNOR, J., dis- senting).

It also would be easier to administer than the senting). It also would be easier to administer than the majority's rule, inasmuch as courts would not be forced to majority's rule, inasmuch as courts would not be forced to look behind statutes and regulations to determine whether look behind statutes and regulations to determine whether a particular fact does or does not increase the penalty to a particular fact does or does not increase the penalty to which a defendant was exposed. which a defendant was exposed.

The majority is correct that rigid adherence to such an The majority is correct that rigid adherence to such an approach could conceivably produce absurd results, ante, at approach could conceivably produce absurd results, ante, at 306; but, as today's decision demonstrates, rigid adherence 306; but, as today's decision demonstrates, rigid adherence to the majority's approach does and will continue to produce to the majority's approach does and will continue to produce results that disserve the very principles the majority pur- results that disserve the very principles the majority pur- ports to vindicate. The pre-Apprendi rule of deference to ports to vindicate. The pre-Apprendi rule of deference to the legislature retains a built-in political check to prevent the legislature retains a built-in political check to prevent lawmakers from shifting the prosecution for crimes to the lawmakers from shifting the prosecution for crimes to the penalty phase proceedings of lesser included and easier-to- penalty phase proceedings of lesser included and easier-to- prove offenses--e. g., the majority's hypothesized prosecu- prove offenses—e. g., the majority's hypothesized prosecu- tion of murder in the guise of a traffic offense sentencing tion of murder in the guise of a traffic offense sentencing proceeding. Ante, at 306. There is no similar check, how- proceeding. Ante, at 306. There is no similar check, how- ever, on application of the majority's "any fact that in- ever, on application of the majority's "any fact that in- creases the upper bound of judicial discretion" by courts.

creases the upper bound of judicial discretion" by courts.

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O'CONNOR, J., dissenting O'CoNNOR, J, dissenting

The majority claims the mantle of history and original in- The majority claims the mantle of history and original in- tent. But as I have explained elsewhere, a handful of state tent. But as I have explained elsewhere, a handful of state decisions in the mid-19th century and a criminal procedure decisions in the mid-19th century and a criminal procedure treatise have little if any persuasive value as evidence of treatise have little if any persuasive value as evidence of what the Framers of the Federal Constitution intended in what the Framers of the Federal Constitution intended in the late 18th century. See Apprendi, 530 U. S., at 525-528 the late 18th century. See Apprendi, 530 U. S., at 525-528 (O'CONNOR, J., dissenting). Because broad judicial sentenc- (O'CONNOR, J., dissenting). Because broad judicial sentenc- ing discretion was foreign to the Framers, id., at 478-479 ing discretion was foreign to the Framers, id., at 478-479 (citing J. Archbold, Pleading and Evidence in Criminal Cases (citing J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862)), they were never faced with the constitu- 44 (15th ed. 1862)), they were never faced with the constitu- tional choice between submitting every fact that increases a tional choice between submitting every fact that increases a sentence to the jury or vesting the sentencing judge with sentence to the jury or vesting the sentencing judge with broad discretionary authority to account for differences in broad discretionary authority to account for differences in offenses and offenders.

offenses and offenders.

IV

A

The consequences of today's decision will be as far reach- The consequences of today's decision will be as far reach= ing as they are disturbing. Washington's sentencing system ing as they are disturbing. Washington's sentencing system is by no means unique. Numerous other States have is by no means unique. Numerous other States have enacted guidelines systems, as has the Federal Government. enacted guidelines systems, as has the Federal Government.

See, e. g., Alaska Stat. § 12.55.155 (2002); Ark. Code Ann.

See, e. g., Alaska Stat. § 12.55.155 (2002); Ark. Code Ann. § 16-90-804 (2003 Supp.); Fla. Stat. § 921.0016 (2003); Kan. § 16-90-804 (2003 Supp.); Fla. Stat. § 921.0016 (2003); Kan.

Stat. Ann. § 21-4701 et seq. (2003); Mich. Comp. Laws Ann.

Stat. Ann. §21-4701 et seq. (2003); Mich. Comp. Laws Ann. § 769.34 (West Supp. 2004); Minn. Stat. § 244.10 (2002); N. C. § 769.34 (West Supp. 2004); Minn. Stat. § 244.10 (2002); N. C.

Gen. Stat. § 15A-1340.16 (Lexis 2003); Ore. Admin. Rule Gen. Stat. § 15A-1340.16 (Lexis 2003); Ore. Admin. Rule § 213-008-0001 (2003); 204 Pa. Code § 303 et seq. (2004), re- § 213-008-0001 (2003); 204 Pa. Code § 303 et seq. (2004), re- produced following 42 Pa. Cons. Stat. Ann. § 9721 (Purdon produced following 42 Pa. Cons. Stat. Ann. § 9721 (Purdon Supp. 2004); 18 U. S. C. § 3553; 28 U. S. C. § 991 et seq. To- Supp. 2004); 18 U. S. C. § 3553; 28 U. S. C. § 991 et seq. To- day's decision casts constitutional doubt over them all and, in day's decision casts constitutional doubt over them all and, in so doing, threatens an untold number of criminal judgments. so doing, threatens an untold number of criminal judgments.

Every sentence imposed under such guidelines in cases cur- Every sentence imposed under such guidelines in cases cur- rently pending on direct appeal is in jeopardy. And, despite rently pending on direct appeal is in jeopardy. And, despite the fact that we hold in Schriro v. Summerlin, post, p. 348, the fact that we hold in Schriro v Summerlin, post, p. 348, that Ring (and a fortiori Apprendi) does not apply retroac- that Ring (and a fortiori Apprendi) does not apply retroac- tively on habeas review, all criminal sentences imposed tively on habeas review, all criminal sentences imposed

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O'CONNOR, J., dissenting O'CONNOR, J, dissenting

under the federal and state guidelines since Apprendi was under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack. decided in 2000 arguably remain open to collateral attack.

See Teague v. Lane, 489 U. S. 288, 301 (1989) (plurality opin- See Teague v. Lane, 489 U. S. 288, 301 (1989) (plurality opin- ion) ("[A] case announces a new rule if the result was not ion) (" [A] - case announces a new rule if the result was not dictated by precedent existing at the time the defendant's dictated by precedent existing at the time the defendant's conviction became final"). 2 conviction became final"). 2

The practical consequences for trial courts, starting today, The practical consequences for trial courts, starting today, will be equally unsettling: How are courts to mete out guide- will be equally unsettling: How are courts to mete out guide- lines sentences? Do courts apply the guidelines as to miti- lines sentences? Do courts apply the guidelines as to miti- gating factors, but not as to aggravating factors? Do they gating factors, but not as to aggravating factors? Do they jettison the guidelines altogether? The Court ignores the jettison the guidelines altogether? The Court ignores the havoc it is about to wreak on trial courts across the country. havoc it is about to wreak on trial courts across the country.

B

It is no answer to say that today's opinion impacts only It is no answer to say that today's opinion impacts only Washington's scheme and not others, such as, for example, Washington's scheme and not others, such as, for example, the Federal Sentencing Guidelines. See ante, at 305, n. 9 the Federal Sentencing Guidelines. See ante, at 305, n. 9 ("The Federal Guidelines are not before us, and we express ("The Federal Guidelines are not before us, and we express no opinion on them"); cf. Apprendi, supra, at 496-497 (claim- no opinion on them"); cf. Apprendi, supra, at 496-497 (claim- ing not to overrule Walton, supra, soon thereafter overruled ing not to overrule Walton, supra, soon thereafter overruled in Ring); Apprendi, supra, at 497, n. 21 (reserving question in Ring); Apprendi, supra, at 497, n. 21 (reserving question of Federal Sentencing Guidelines). The fact that the Fed- of Federal Sentencing Guidelines). The fact that the Fed- eral Sentencing Guidelines are promulgated by an adminis- eral Sentencing Guidelines are promulgated by an adminis- trative agency nominally located in the Judicial Branch is trative agency nominally located in the Judicial Branch is irrelevant to the majority's reasoning. The Guidelines have irrelevant to the majority's reasoning. The Guidelines have the force of law, see Stinson v. United States, 508 U. S.

the force of law, see Stinson v. United States, 508 U. S. 36 (1993); and Congress has unfettered control to reject or 36 (1993); and Congress has unfettered control to reject or

2The numbers available from the federal system alone are staggering.

2 The numbers available from the federal system alone are staggering.

On March 31, 2004, there were 8,320 federal criminal appeals pending in On March 31, 2004, there were 8,320 federal criminal appeals pending in which the defendant's sentence was at issue. Memorandum from Steven which the defendant's sentence was at issue. Memorandum from Steven Schlesinger, Administrative Office of the United States Courts, to Su- Schlesinger, Administrative Office of the United States Courts, to Su- preme Court Library (June 1, 2004) (available in Clerk of Court's case file). preme Court Library (June 1, 2004) (available in Clerk of Court's case file).

Between June 27, 2000, when Apprendi was decided, and March 31, 2004, Between June 27, 2000, when Apprendi was decided, and March 31, 2004, there have been 272,191 defendants sentenced in federal court. Memo- there have been 272,191 defendants sentenced in federal court. Memo- randum, supra. Given that nearly all federal sentences are governed by randum, supra. Given that nearly all federal sentences are governed by the Federal Sentencing Guidelines, the vast majority of these cases are the Federal Sentencing Guidelines, the vast majority of these cases are Guidelines cases.

Guidelines cases.

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O'CONNOR, J., dissenting O'CONNOx, J, dissenting

accept any particular guideline, Mistretta, 488 U.S., at accept any particular guideline, Mistretta, 488 U.S., at 393-394.

393-394.

The structure of the Federal Guidelines likewise does not, The structure of the Federal Guidelines likewise does not, as the Government halfheartedly suggests, provide any as the Government halfheartedly suggests, provide any grounds for distinction. Brief for United States as Amicus grounds for distinction. Brief for United States as Amicus Curiae 27-29. Washington's scheme is almost identical to Curiae 27-29. Washington's scheme is almost identical to the upward departure regime established by 18 U. S. C. the upward departure regime established by 18 U. S. C. § 3553(b) and implemented in USSG § 5K2.0.

If anything, § 3553(b) and implemented in USSG § 5K2.0. If anything, the structural differences that do exist make the Federal the structural differences that do exist make the Federal Guidelines more vulnerable to attack. The provision struck Guidelines more vulnerable to attack. The provision struck down here provides for an increase in the upper bound of the down here provides for an increase in the upper bound of the presumptive sentencing range if the sentencing court finds, presumptive sentencing range if the sentencing court finds, "considering the purpose of [the Act], that there are substan- "considering the purpose of [the Act], that there are substan- tial and compelling reasons justifying an exceptional sen- tial and compelling reasons justifying an exceptional sen- tence." Wash. Rev. Code Ann. § 9.94A.120 (2000). The Act tence." Wash. Rev.' Code Ann. §9.94A.120 (2000). The Act elsewhere provides a nonexhaustive list of aggravating fac- elsewhere provides a nonexhaustive list of aggravating fac- tors that satisfy the definition. § 9.94A.390. The Court tors that satisfy the definition. § 9.94A.390. The Court flatly rejects respondent's argument that such soft con- flatly rejects respondent's argument that such soft con- straints, which still allow Washington judges to exercise a straints, which still allow Washington judges to exercise a substantial amount of discretion, survive Apprendi. Ante, substantial amount of discretion, survive Apprendi. Ante, at 305. This suggests that the hard constraints found at 305. This suggests that the hard constraints found throughout chapters 2 and 3 of the Federal Sentencing throughout chapters 2 and 3 of the Federal Sentencing Guidelines, which require an increase in the sentencing Guidelines, which require an increase in the sentencing range upon specified factual findings, will meet the same fate.

range upon specified factual findings, will meet the same fate.

See, e. g., USSG § 2K2.1 (increases in offense level for fire- See, e. g., USSG § 2K2.1 (increases in offense level for fire- arms offenses based on number of firearms involved, arms offenses based on number of firearms involved, whether possession was in connection with another offense, whether possession was in connection with another offense, whether the firearm was stolen); § 2B1.1 (increase in offense whether the firearm was stolen); §2B1.1 (increase in offense level for financial crimes based on amount of money involved, level for financial crimes based on amount of money involved, number of victims, possession of weapon); § 3C1.1 (general number of victims, possession of weapon); §3C1.1 (general increase in offense level for obstruction of justice). increase in offense level for obstruction of justice).

Indeed, the "extraordinary sentence" provision struck Indeed, the "extraordinary sentence" provision struck down today is as inoffensive to the holding of Apprendi as a down today is as inoffensive to the holding of Apprendi as a regime of guided discretion could possibly be. The list of regime of guided discretion could possibly be. The list of facts that justify an increase in the range is nonexhaustive. facts that justify an increase in the range is nonexhaustive.

The State's "real facts" doctrine precludes reliance by sen- The State's "real facts" doctrine precludes reliance by sen-

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KENNEDY, J., dissenting KENNEDY, J., dissenting

tencing courts upon facts that would constitute the elements tencing courts upon facts that would constitute the elements of a different or aggravated offense. See Wash. Rev. Code of a different or aggravated offense. See Wash. Rev. Code Ann. § 9.94A.370(2) (2000) (codifying "real facts" doctrine).

Ann. § 9.94A.370(2) (2000) (codifying "real facts" doctrine).

If the Washington scheme does not comport with the Consti- If the Washington scheme does not comport with the Consti- tution, it is hard to imagine a guidelines scheme that would. tution, it is hard to imagine a guidelines scheme that would.

What I have feared most has now come to pass: Over What I have feared most has now come to pass: Over 20 years of sentencing reform are all but lost, and tens of 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are. in jeopardy. Ap- thousands of criminal judgments are. in jeopardy. Ap- prendi, 530 U. S., at 549-559 (O'CONNOR, J., dissenting); prendi, 530 U. S., at 549-559 (O'CONNOR, J., dissenting); Ring, 536 U. S., at 619-621 (O'CONNOR, J., dissenting).

I

Ring, 536 U. S., at 619-621 (O'CONNOR, J., dissenting). I respectfully dissent. respectfully dissent.

JUSTICE KENNEDY, with whom JUSTICE BREYER joins, JUSTICE KENNEDY, with whom JUSTICE BREYER joins,

dissenting. dissenting.

The majority opinion does considerable damage to our The majority opinion does considerable damage to our laws and to the administration of the criminal justice system laws and to the administration of the criminal justice system for all the reasons well stated in JUSTICE O'CONNOR's dis- for all the reasons well stated in JUSTICE O'CONNOR's dis- sent, plus one more: The Court, in my respectful submission, sent, plus one more: The Court, in my respectful submission, disregards the fundamental principle under our constitu- disregards the fundamental principle under our constitu- tional system that different branches of government "con- tional system that different branches of government "con- verse with each other on matters of vital common interest." verse with each other on matters of vital common interest."

Mistretta v. United States, 488 U. S. 361, 408 (1989). As Mistretta v. United States, 488 U. S. 361, 408 (1989). As the Court in Mistretta explained, the Constitution estab- the Court in Mistretta explained, the Constitution estab- lishes a system of government that presupposes, not just lishes a system of government that presupposes, not just "'autonomy"' and "'separateness,"' but also "'interdepend- "'autonomy"' and "'separateness,"' but also " `interdepend- ence'" and "'reciprocity."' Id., at 381 (quoting Youngstown ence"' and "`reciprocity."' Id., at 381 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jack- Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jack- son, J., concurring)). Constant, constructive discourse be- son, J., concurring)). Constant, constructive discourse be- tween our courts and our legislatures is an integral and tween our courts and our legislatures is an integral and admirable part of the constitutional design. Case-by-case admirable part of the constitutional design. Case-by-case judicial determinations often yield intelligible patterns that judicial determinations often yield intelligible patterns that can be refined by legislatures and codified into statutes or can be refined by legislatures and codified into statutes or rules as general standards. As these legislative enactments rules as general standards. As these legislative enactments are followed by incremental judicial interpretation, the legis- are followed by incremental judicial interpretation, the legis-

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KENNEDY, J., dissenting KENNEDY, J, dissenting

latures may respond again, and the cycle repeats. This re- latures may respond again, and the cycle repeats. This re- curring dialogue, an essential source for the elaboration and curring dialogue, an essential source for the elaboration and the evolution of the law, is basic constitutional theory in the evolution of the law, is basic constitutional theory in action. action.

Sentencing guidelines are a prime example of this collabo- Sentencing guidelines are a prime example of this collabo- rative process. Dissatisfied with the wide disparity in sen- rative process. Dissatisfied with the wide disparity in sen- tencing, participants in the criminal justice system, including tencing, participants in the criminal justice system, including In response, legisla- judges, pressed for legislative reforms. judges, pressed for legislative reforms. In response, legisla- tors drew from these participants' shared experiences and tors drew from these participants' shared experiences and enacted measures to correct the problems, which, as JUSTICE enacted measures to correct the problems, which, as JUSTICE O'CONNOR explains, could sometimes rise to the level of a O'CONNOR explains, could sometimes rise to the level of a constitutional injury. As Mistretta recognized, this inter- constitutional injury. As Mistretta recognized, this inter- change among different actors in the constitutional scheme change among different actors in the constitutional scheme is consistent with the Constitution's structural protections.

is consistent with the Constitution's structural protections.

To be sure, this case concerns the work of a state legis- To be sure, this case concerns the work of a state legis- If anything, however, this lature, and not of Congress. lature, and not of Congress. If anything, however, this distinction counsels even greater judicial caution. Unlike distinction counsels even greater judicial caution. Unlike Mistretta, the case here implicates not just the collective Mistretta, the case here implicates not just the collective wisdom of legislators on the other side of the continuing dia- wisdom of legislators on the other side of the continuing dia- logue over fair sentencing, but also the interest of the States logue over fair sentencing, but also the interest of the States to serve as laboratories for innovation and experiment. See to serve as laboratories for innovation and experiment. See New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) New State Ice Co. v Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). With no apparent sense of irony (Brandeis, J., dissenting). With no apparent sense of irony that the effect of today's decision is the destruction of a sen- that the effect of today's decision is the destruction of a sen- tencing scheme devised by democratically elected legislators, tencing scheme devised by democratically elected legislators, the majority shuts down alternative, nonjudicial, sources of the majority shuts down alternative, nonjudicial, sources of ideas and experience.

It does so under a faintly disguised ideas and experience. It does so under a faintly disguised distrust of judges and their purported usurpation of the distrust of judges and their purported usurpation of the It tells not only trial jury's function in criminal trials. jury's function in criminal trials. It tells not only trial judges who have spent years studying the problem but also judges who have spent years studying the problem but also legislators who have devoted valuable time and resources legislators who have devoted valuable time and resources "calling upon the accumulated wisdom and experience of the "calling upon the accumulated wisdom and experience of the Judicial Branch . . . on a matter uniquely within the ken Judicial Branch ... on a matter uniquely within the ken of judges," Mistretta, supra, at 412, that their efforts and of judges," Mistretta, supra, at 412, that their efforts and judgments were all for naught. Numerous States that have judgments were all for naught. Numerous States that have enacted sentencing guidelines similar to the one in Washing- enacted sentencing guidelines similar to the one in Washing-

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ton State are now commanded to scrap everything and ton State are now commanded to scrap everything and start over. start over.

If the Constitution required this result, the majority's de- If the Constitution required this result, the majority's de- cision, while unfortunate, would at least be understandable cision, while unfortunate, would at least be understandable and defensible. As JUSTICE O'CONNOR's dissent demon- and defensible. As JUSTICE O'CONNOR's dissent demon- strates, however, this is simply not the case. For that rea- strates, however, this is simply not the case. For that rea- son, and because the Constitution does not prohibit the son, and because the Constitution does not prohibit the dynamic and fruitful dialogue between the judicial and legis- dynamic and fruitful dialogue between the judicial and legis- lative branches of government that has marked sentencing lative branches of government that has marked sentencing reform on both the state and the federal levels for more than reform on both the state and the federal levels for more than 20 years, I dissent.

20 years, I dissent.

JUSTICE BREYER, with whom JUSTICE O'CONNOR joins, JUSTICE BREYER, with whom JUSTICE O'CONNOR joins,

dissenting. dissenting.

The Court makes clear that it means what it said in Ap- The Court makes clear that it means what it said in Ap- prendi v. New Jersey, 530 U. S. 466 (2000).

In its view, the prendi v. New Jersey, 530 U. S. 466 (2000). In its view, the Sixth Amendment says that "'any fact that increases the Sixth Amendment says that "`any fact that increases the penalty for a crime beyond the prescribed statutory maxi- penalty for a crime beyond the prescribed statutory maxi- mum must be submitted to a jury."' Ante, at 301 (quoting mum must be submitted to a jury."' Ante, at 301 (quoting Apprendi, supra, at 490). "'[P]rescribed statutory maxi- Apprendi, supra, at 490). " `[Plrescribed statutory maxi- mum"' means the penalty that the relevant statute author- mum"' means the penalty that the relevant statute author- izes "solely on the basis of the facts reflected in the jury izes "solely on the basis of the facts reflected in the jury verdict." Ante, at 301, 303 (emphasis deleted). Thus, a verdict." Ante, at 301, 303 (emphasis deleted). Thus, a jury must find, not only the facts that make up the crime of jury must find, not only the facts that make up the crime of which the offender is charged, but also all (punishment- which the offender is charged, but also all (punishment- increasing) facts about the way in which the offender carried increasing) facts about the way in which the offender carried out that crime.

out that crime.

It is not difficult to understand the impulse that produced It is not difficult to understand the impulse that produced this holding.

Imagine a classic example-a statute (or man- this holding. Imagine a classic example—a statute (or man- datory sentencing guideline) that provides a 10-year sen- datory sentencing guideline) that provides a 10-year sen- tence for ordinary bank robbery, but a 15-year sentence for tence for ordinary bank robbery, but a 15-year sentence for bank robbery committed with a gun. One might ask why it bank robbery committed with a gun. One might ask why it should matter for jury trial purposes whether the statute (or should matter for jury trial purposes whether the statute (or guideline) labels the gun's presence (a) a sentencing fact guideline) labels the gun's presence (a) a sentencing fact about the way in which the offender carried out the lesser about the way in which the offender carried out the lesser crime of ordinary bank robbery, or (b) a factual element of crime of ordinary bank robbery, or (b) a factual element of

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the greater crime of bank robbery with a gun?

If the Sixth the greater crime of bank robbery with a gun? If the Sixth Amendment requires a jury finding about the gun in the lat- Amendment requires a jury finding about the gun in the lat- ter circumstance, why should it not also require a jury to ter circumstance, why should it not also require a jury to find the same fact in the former circumstance? The two sets find the same fact in the former circumstance? The two sets of circumstances are functionally identical.

In both in- of circumstances are functionally identical. In both in- stances, identical punishment follows from identical factual stances, identical punishment follows from identical factual findings (related to, e. g., a bank, a taking, a thing-of-value, findings (related to, e. g., a bank, a taking, a thing-of-value, force or threat of force, and a gun). The only difference be- force or threat of force, and a gun). The only difference be- tween the two circumstances concerns a legislative (or Sen- tween the two circumstances concerns a legislative (or Sen- tencing Commission) decision about which label ("sentencing tencing Commission) decision about which label ("sentencing fact" or "element of a greater crime") to affix to one of the 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 facts, namely, the presence of the gun, that will lead to the greater sentence. Given the identity of circumstances apart greater sentence. Given the identity of circumstances apart from the label, the jury's traditional factfinding role, and the from the label, the jury's traditional factfinding role, and the law's insistence upon treating like cases alike, why should law's insistence upon treating like cases alike, why should the legislature's labeling choice make an important Sixth the legislature's labeling choice make an important Sixth Amendment difference?

Amendment difference?

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

legislatures have relied in designing punishment systems.

The Justices who have dissented from Apprendi have writ- The Justices who have dissented from Apprendi have writ- ten about many of these matters in other opinions. See 530 ten about many of these matters in other opinions. See 530

U. S., at 523-554 (O'CoNNoR, J., dissenting); id., at 555-566

U. S., at 523-554 (0'CONNOR, J, dissenting); id., at 555-566

(BREYER, J., dissenting); Harris v. United States, 536 U. S.

(BREYER, J, dissenting); Harris v. United States, 536 U. S. 545, 549-550, 556-569 (2002) (KENNEDY, J.); id., at 569-572 545, 549-550, 556-569 (2002) (KENNEDY, J.); id., at 569-572

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(BREYER, J., concurring in part and concurring in judgment); (BREYER, J., concurring in part and concurring in judgment); Jones v. United States, 526 U. S. 227, 254, 264-272 (1999) Jones v. United States, 526 U. S. 227, 254, 264-272 (1999) (KENNEDY, J., dissenting); Monge v. California, 524 U. S.

(KENNEDY, J., dissenting); Monge v. California, 524 U. S.

721, 728-729 (1998) (O'CONNOR, J.); McMillan v. Pennsylva- 721, 728-729 (1998) (0'CONNOR, J.); McMillan V. Pennsylva- nia, 477 U. S. 79, 86-91 (1986) (REHNQUIST, C. J.). At the nia, 477 U. S. 79, 86-91 (1986) (REHNQUIST, C. J.). - At the risk of some repetition, I shall set forth several of the most risk of some repetition, I shall set forth several of the most important considerations here. They lead me to conclude important considerations here. They lead me to conclude that I must again dissent. that I must again dissent.

I

The majority ignores the adverse consequences inherent The majority ignores the adverse consequences inherent in its conclusion. As a result of the majority's rule, sentenc- in its conclusion. As a result of the majority's rule, sentenc- ing must now take one of three forms, each of which risks ing must now take one of three forms, each of which risks either impracticality, unfairness, or harm to the jury trial either impracticality, unfairness, or harm to the jury trial right the majority purports to strengthen. This circum- right the majority purports to strengthen. This circum- stance shows that the majority's Sixth Amendment interpre- stance shows that the majority's Sixth Amendment interpre- tation cannot be right. tation cannot be right.

A

A first option for legislators is to create a simple, pure A first option for legislators is to create a simple, pure or nearly pure "charge offense" or "determinate" sentencing or nearly pure "charge offense" or "determinate" sentencing system. See Breyer, The Federal Sentencing Guidelines system. See Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hof- and the Key Compromises upon Which They Rest, 17 Hof- In such a system, an indictment stra L. Rev. 1, 8-9 (1988). stra L. Rev. 1, 8-9 (1988). In such a system, an indictment would charge a few facts which, taken together, constitute a would charge a few facts which, taken together, constitute a crime, such as robbery. Robbery would carry a single sen- crime, such as robbery. Robbery would carry a single sen- tence, say, five years' imprisonment. And every person con- tence, say, five years' imprisonment. And every person con- victed of robbery would receive that sentence-just as, cen- victed of robbery would receive that sentence just as, cen- turies ago, everyone convicted of almost any serious crime turies ago, everyone convicted of almost any serious crime was sentenced to death. See, e. g., Lillquist, The Puzzling was sentenced to death. See, e. g., Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 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 identi- First, simple determinate sentencing systems impose identi- cal punishments on people who committed their crimes in cal punishments on people who committed their crimes in very different ways. When dramatically different conduct very different ways. When dramatically different conduct

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BREYER, J., dissenting BREYER, J., dissenting

ends up being punished the same way, an injustice has taken ends up being punished the same way, an injustice has taken place. Simple determinate sentencing has the virtue of place. Simple determinate sentencing has the virtue of treating like cases alike, but it simultaneously fails to treat treating like cases alike, but it simultaneously fails to treat different cases differently. Some commentators have lev- different cases differently. Some commentators have lev- eled this charge at sentencing guidelines systems them- eled this charge at sentencing guidelines systems them- selves. See, e. g., Schulhofer, Assessing the Federal Sen- selves. See, e. g., Schulhofer, Assessing the Federal Sen- tencing Process: The Problem Is Uniformity, Not Disparity, tencing Process: The Problem Is Uniformity, Not Disparity, 29 Am. Crim. L. Rev. 833, 847 (1992) (arguing that the "most 29 Am. Crim. L. Rev. 833, 847 (1992) (arguing that the "most important problem under the Guidelines system is not too important problem under the Guidelines system is not too much disparity, but rather excessive uniformity" and arguing much disparity, but rather excessive uniformity" and arguing for adjustments, including elimination of mandatory mini- for adjustments, including elimination of mandatory mini- mums, to make the Guidelines system more responsive to mums, to make the Guidelines system more responsive to relevant differences). The charge is doubly applicable to relevant differences). The charge is doubly applicable to simple "pure charge" systems that permit no departures simple "pure charge" systems that permit no departures from the prescribed sentences, even in extraordinary cases.

from the prescribed sentences, even in extraordinary cases.

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

plea; and transferring power to prosecutors).

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B

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

a prisoner.

When such systems were in vogue, they were criticized, When such systems were in vogue, they were criticized, and rightly so, for producing unfair disparities, including and rightly so, for producing unfair disparities, including race-based disparities, in the punishment of similarly situ- race-based disparities, in the punishment of similarly situ- ated defendants. See, e. g., ante, at 315-316 (O'CONNOR, J., ated defendants. See, e. g., ante, at 315-316 (O'CONNOR, J., dissenting) (citing sources). The length of time a person dissenting) (citing sources). The length of time 'a person spent in prison appeared to depend on "what the judge ate spent in prison appeared to depend on "what the judge ate for breakfast" on the day of sentencing, on which judge for breakfast" on the day of sentencing, on which judge you got, or on other factors that should not have made you got, or on other factors that should not have made a difference to the length of the sentence. See Breyer, a difference to the length of the sentence. See Breyer, supra, at 4-5 (citing congressional and expert studies indi- supra, at 4-5 (citing congressional and expert studies indi- cating that, before the United States Sentencing Commission cating that, before the United States Sentencing Commission Guidelines were promulgated, punishments for identical Guidelines were promulgated, punishments for identical crimes in the Second Circuit ranged from 3 to 20 years' im- crimes in the Second Circuit ranged from 3 to 20 years' im- prisonment and that sentences varied depending upon re- prisonment and that sentences varied depending upon re- gion, gender of the defendant, and race of the defendant).

gion, gender of the defendant, and race of the defendant).

And under such a system, the judge could vary the sentence And under such a system, the judge could vary the sentence greatly based upon his findings about how the defendant had greatly based upon his findings about how the defendant had committed the crime-findings that might not have been committed the crime—findings that might not have been

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BREYER, J., dissenting BREYER, J., dissenting

made by a "preponderance of the evidence," much less "be- made by a "preponderance of the evidence," much less "be- yond a reasonable doubt." See McMillan, 477 U. S., at 91 yond a reasonable doubt." See McMillan, 477 U. S., at 91 ("Sentencing courts have traditionally heard evidence and ("Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all" found facts without any prescribed burden of proof at all" (citing Williams v. New York, 337 U. S. 241 (1949))). (citing Williams v. New York, 337 U. S. 241 (1949))).

Returning to such a system would diminish the "'reason' Returning to such a system would diminish the "'reason"' the majority claims it is trying to uphold. Ante, at 302 the majority claims it is trying to uphold. Ante, at 302 (quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. (quoting 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed.

1872)).

It also would do little to "ensur[e] [the] control" of 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 what the majority calls "the peopl[e,]" i. e., the jury, "in the judiciary," ante, at 306, since "the peopl[e]" would only de- judiciary," ante, at 306, since "the peopl[e]" would only de- cide the defendant's guilt, a finding with no effect on the cide the defendant's guilt, a finding with no effect on the duration of the sentence. While "the judge's authority to duration of the sentence. While "the judge's authority to sentence" would formally derive from the jury's verdict, the sentence" would formally derive from the jury's verdict, the jury would exercise little or no control over the sentence jury would exercise little or no control over the sentence itself. Ibid. It is difficult to see how such an outcome pro- itself. Ibid. It is difficult to see how such an outcome pro- tects the structural safeguards the majority claims to be tects the structural 'safeguards the majority claims to be defending.

defending.

C

A third option is that which the Court seems to believe A third option is that which the Court seems to believe legislators will in fact take. That is the option of retaining legislators will in fact take. That is the option of retaining structured schemes that attempt to punish similar conduct structured schemes that attempt to punish similar conduct similarly and different conduct differently, but modifying similarly and different conduct differently, but modifying them to conform to Apprendi's dictates. Judges would be them to conform to Apprendi's dictates. Judges would be able to depart downward from presumptive sentences upon able to depart downward from presumptive sentences upon finding that mitigating factors were present, but would not finding that mitigating factors were present, but would not be able to depart upward unless the prosecutor charged the be able to depart upward unless the prosecutor charged the aggravating fact to a jury and proved it beyond a reasonable aggravating fact to a jury and proved it beyond a reasonable doubt. The majority argues, based on the single example of doubt. The majority argues, based on the single example of Kansas, that most legislatures will enact amendments along Kansas, that most legislatures will enact amendments along these lines in the face of the oncoming Apprendi train. See these lines in the face of the oncoming Apprendi train. See ante, at 309-310 (citing State v. Gould, 271 Kan. 394, 404-414, ante, at 309-310 (citing State v. Gould, 271 Kan. 394, 404-414, 23 P. 3d 801, 809-814 (2001); Act of May 29, 2002, ch. 170, 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.

2002 Kan. Sess. Laws pp. 1018-1023 (codified at Kan. Stat.

Ann. § 21-4718 (2003 Cum. Supp.)); Brief for Kansas Appel- Ann. §21-4718 (2003 Cum. Supp.)); Brief for Kansas Appel- late Defender Office as Amicus Curiae 3-7). It is therefore late Defender Office as Amicus Curiae 3-7). It is therefore

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worth exploring how this option could work in practice, as worth exploring how this option could work in practice, as well as the assumptions on which it depends. well as the assumptions on which it depends.

1 1

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

This possibility is, of course, merely a highly calibrated This possibility is, of course, merely a highly calibrated form of the "pure charge" system discussed in Part I-A, form of the "pure charge" system discussed in Part I—A, supra. And it suffers from some of the same defects. The supra. And it suffers from some of the same defects. The prosecutor, through control of the precise charge, controls prosecutor, through control of the precise charge, controls the punishment, thereby marching the sentencing system di- the punishment, thereby marching the sentencing system di-

rectly away from, not toward, one important guideline goal:

rough uniformity of punishment for those who engage in rough uniformity of punishment for those who engage in roughly the same real criminal conduct. The artificial (and roughly the same real criminal conduct. The artificial (and consequently unfair) nature of the resulting sentence is ag- consequently unfair) nature of the resulting sentence is ag- gravated by the fact that prosecutors must charge all rele- gravated by the fact that prosecutors must charge all rele- vant facts about the way the crime was committed before vant facts about the way the crime was committed before a presentence investigation examines the criminal conduct, a presentence investigation examines the criminal conduct, perhaps before the trial itself, i. e., before many of the facts perhaps before the trial itself, i. e., before many of the facts relevant to punishment are known. relevant to punishment are known.

This "complex charge offense" system also prejudices de- This "complex charge offense" system also prejudices de- fendants who seek trial, for it can put them in the untenable fendants who seek trial, for it can put them in the untenable

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335

BREYER, J., dissenting BREYER, J, dissenting

position of contesting material aggravating facts in the guilt position of contesting material aggravating facts in the guilt phases of their trials. Consider a defendant who is charged, phases of their trials. Consider a defendant who is charged, not with mere possession of cocaine, but with the specific not with mere possession of cocaine, but with the specific offense of possession of more than 500 grams of cocaine. Or offense of possession of more than 500 grams of cocaine. Or consider a defendant charged, not with murder, but with the consider a defendant charged, not with murder, but with the new crime of murder using a machete. Or consider a de- new crime of murder using a machete. Or consider a de- fendant who the prosecution wants to claim was a "supervi- fendant who the prosecution wants to claim was a "supervi- sor," rather than an ordinary gang member. How can a sor," rather than an ordinary gang member. How can a Constitution that guarantees due process put these defend- Constitution that guarantees due process put these defend- ants, as a matter of course, in the position of arguing, "I did ants, 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 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 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 machete," or "I did not engage in gang activity, and certainly not as a supervisor" to a single jury? See Apprendi, 530 not as a supervisor" to a single jury? See Apprendi, 530

U. S., at 557-558 (BREYER, J., dissenting); Monge, 524 U. S.,

U. S., at 557-558 (BREYER, J, dissenting); Monge, 524 U. S.,

at 729. The system can tolerate this kind of problem up at 729. The system can tolerate this kind of problem up to a point (consider the defendant who wants to argue in- to a point (consider the defendant who wants to argue in- nocence, and, in the alternative, second-degree, not first- nocence, and, in the alternative, second-degree, not first- degree, murder). But a rereading of the many distinctions degree, murder). But a rereading of the many distinctions made in a typical robbery guideline, see supra, at 334, sug- made in a typical robbery guideline, see supra, at 334, sug- gests that an effort to incorporate any real set of guidelines gests that an effort to incorporate any real set of guidelines in a complex statute would reach well beyond that point. in a complex statute would reach well beyond that point.

The majority announces that there really is no problem The majority announces that there really is no problem here because "States may continue to offer judicial factfind- here because "States may continue to offer judicial factfind- ing as a matter of course to all defendants who plead guilty" ing as a matter of course to all defendants who plead guilty" and defendants may "stipulat[e] to the relevant facts or con- and defendants may "stipulat[e] to the relevant facts or con- sen[t] to judicial factfinding." Ante, at 310. The problem, sen[t] to judicial factfinding." Ante, at 310. The problem, of course, concerns defendants who do not want to plead of course, concerns defendants who do not want to plead guilty to those elements that, until recently, were commonly guilty to those elements that, until recently, were commonly thought of as sentencing factors. As to those defendants, thought of as sentencing factors. As to those defendants, the fairness problem arises because States may very well the fairness problem arises because States may very well decide that they will not permit defendants to carve subsets decide that they will not permit defendants to carve subsets of facts out of the new, Apprendi-required 17-element rob- of facts out of the new, Apprendi-required 17-element rob- bery crime, seeking a judicial determination as to some of bery crime, seeking a judicial determination as to some of those facts and a jury determination as to others.

Instead, those facts and a jury determination as to others. Instead, States may simply require defendants to plead guilty to all States may simply require defendants to plead guilty to all

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17 elements or proceed with a (likely prejudicial) trial on all 17 elements or proceed with a (likely prejudicial) trial on all 17 elements.

17 elements.

The majority does not deny that States may make this The majority does not deny that States may make this choice; it simply fails to understand why any State would choice; it simply fails to understand why any State would want to exercise it. Ante, at 310, n. 12. The answer is, as want to exercise it. Ante, at 310, n. 12. The answer is, as I shall explain in a moment, that the alternative may prove I shall explain in a moment, that the alternative may prove too expensive and unwieldy for States to provide. States too expensive and unwieldy for States to provide. States that offer defendants the option of judicial factfinding as to that offer defendants the option of judicial factfinding as to some facts (i. e., sentencing facts), say, because of fairness some facts (i. e., sentencing facts), say, because of fairness concerns, will also have to offer the defendant a second sen- concerns, will also have to offer the defendant a second sen- I therefore turn to tencing jury-just as Kansas has done.

tencing jury just as Kansas has done. I therefore turn to that alternative. that alternative.

2 2

The second way to make sentencing guidelines Apprendi- The second way to make sentencing guidelines Apprendi- compliant would be to require at least two juries for each compliant would be to require at least two juries for each defendant whenever aggravating facts are present: one jury defendant whenever aggravating facts are present: one jury to determine guilt of the crime charged, and an additional to determine guilt of the crime charged, and an additional jury to try the disputed facts that, if found, would aggravate jury to try the disputed facts that, if found, would aggravate the sentence. Our experience with bifurcated trials in the the sentence. Our experience with bifurcated trials in the capital punishment context suggests that requiring them for capital punishment context suggests that requiring them for run-of-the-mill sentences would be costly, both in money and run-of-the-mill sentences would be costly, both in money and in judicial time and resources. Cf. Kozinski & Gallagher, in judicial time and resources. Cf. Kozinski & Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res.

Death: The Ultimate Run-On Sentence, 46 Case W. Res.

L. Rev. 1, 13-15, and n. 64 (1995) (estimating the costs of each

L. Rev. 1,13-15, and n. 64 (1995) (estimating the costs of each

capital case at around $1 million more than each noncapital capital case at around $1 million more than each noncapital case); Tabak, How Empirical Studies Can Affect Positively case); Tabak, How Empirical Studies Can Affect Positively the Politics of the Death Penalty, 83 Cornell L. Rev. 1431, the Politics of the Death Penalty, 83 Cornell L. Rev. 1431, 1439-1440 (1998) (attributing the greater cost of death pen- 1439-1440 (1998) (attributing the greater cost of death pen- In the context alty cases in part to bifurcated proceedings). alty cases in part to bifurcated proceedings). In the context of noncapital crimes, the potential need for a second indict- of noncapital crimes, the potential need for a second indict- ment alleging aggravating facts, the likely need for formal ment alleging aggravating facts, the likely need for formal evidentiary rules to prevent prejudice, and the increased dif- evidentiary rules to prevent prejudice, and the increased dif- ficulty of obtaining relevant sentencing information, all will ficulty of obtaining relevant sentencing information, all will mean greater complexity, added cost, and further delay. See mean greater complexity, added cost, and further delay. See Part V, infra. Indeed, cost and delay could lead legislatures Part V, infra. Indeed, cost and delay could lead legislatures

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to revert to the complex charge offense system described in to revert to the complex charge offense system described in Part I-C-l, supra.

Part I—C-1, supra.

The majority refers to an amicus curiae brief filed by the The majority refers to an amicus curiae brief filed by the Kansas Appellate Defender Office, which suggests that a Kansas Appellate Defender Office, which suggests that a two-jury system has proved workable in Kansas. Ante, at two jury system has proved workable in Kansas. Ante, at 309-310. And that may be so. But in all likelihood, any 309-310. And that may be so. But in all likelihood, any such workability reflects an uncomfortable fact, a fact at such workability reflects an uncomfortable fact, a fact at which the majority hints, ante, at 310, but whose constitu- which the majority hints, ante, at 310, but whose constitu- tional implications it does not seem to grasp. The uncom- tional implications it does not seem to grasp. The uncom- fortable fact that could make the system seem workable- fortable fact that could make the system seem workable— even desirable in the minds of some, including defense even desirable in the minds of some, including defense attorneys-is called "plea bargaining." See Bibas, 110 Yale attorneys—is called "plea bargaining." See Bibas, 110 Yale

L. J., at 1150, and n. 330 (reporting that in 1996, fewer than

L. J , at 1150, and n. 330 (reporting that in 1996, fewer than

4% of adjudicated state felony defendants have jury trials, 4% of adjudicated state felony defendants have jury trials, 5% have bench trials, and 91% plead guilty). See also ante, 5% have bench trials, and 91% plead guilty). See also ante, at 310 (making clear that plea bargaining applies). The at 310 (making clear that plea bargaining applies). The Court can announce that the Constitution requires at least Court can announce that the Constitution requires at least two jury trials for each criminal defendant--one for guilt, two jury trials for each criminal defendant--one for guilt, another for sentencing-but only because it knows full well another for sentencing—but only because it knows full well that more than 90% of defendants will not go to trial even that more than 90% of defendants will not go to trial even once, much less insist on two or more trials. once, much less insist on two or more trials.

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

when most defendants do not go to trial").

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At the least, the greater expense attached to trials and At the least, the greater expense attached to trials and their greater complexity, taken together in the context of an their greater complexity, taken together in the context of an overworked criminal justice system, will likely mean, other overworked criminal justice system, will likely mean, other things being equal, fewer trials and a greater reliance upon things being equal, fewer trials and a greater reliance upon plea bargaining-a system in which punishment is set not by plea bargaining—a system in which punishment is set not by judges or juries but by advocates acting under bargaining judges or juries but by advocates acting under bargaining constraints. At the same time, the greater power of the constraints. At the same time, the greater power of the prosecutor to control the punishment through the charge prosecutor to control the punishment through the charge would likely weaken the relation between real conduct and would likely weaken the relation between real conduct and real punishment as well. See, e. g., Schulhofer, 29 Am. Crim.

real punishment as well. See, e. g., Schulhofer, 29 Am. Crim.

L. Rev., at 845 (estimating that evasion of the proper sen-

tence under the Federal Guidelines may now occur in 20%-- tence under the Federal Guidelines may now occur in 20%- 35% of all guilty plea cases). Even if the Court's holding 35% of all guilty plea cases). Even if the Court's holding does not further embed plea-bargaining practices (as I fear does not further embed plea-bargaining practices (as I fear it will), its success depends upon the existence of present it will), its success depends upon the existence of present practice. I do not understand how the Sixth Amendment practice. I do not understand how the Sixth Amendment could require a sentencing system that will work in practice could require a sentencing system that will work in practice only if no more than a handful of defendants exercise their only if no more than a handful of defendants exercise their right to a jury trial. right to a jury trial.

The majority's only response is to state that "bargaining The majority's only response is to state that "bargaining over elements . . . probably favors the defendant," ante, over elements . .. probably favors the defendant," ante, at 311, adding that many criminal defense lawyers favor its at 311, adding that many criminal defense lawyers favor its position, ante, at 312. But the basic problem is not one of position, ante, at 312. But the basic problem is not one of "fairness" to defendants or, for that matter, "fairness" to "fairness" to defendants or, for that matter, "fairness" to prosecutors. Rather, it concerns the greater fairness of a prosecutors. Rather, it concerns the greater fairness of a sentencing system that a more uniform correspondence be- sentencing system that a more uniform correspondence be- tween real criminal conduct and real punishment helps to tween real criminal conduct and real punishment helps to create. At a minimum, a two-jury system, by preventing a create. At a minimum, a two jury system, by preventing a judge from taking account of an aggravating fact without judge from taking account of an aggravating fact without the prosecutor's acquiescence, would undercut, if not nullify, the prosecutor's acquiescence, would undercut, if not nullify, legislative efforts to ensure through guidelines that punish- legislative efforts to ensure through guidelines that punish- ments reflect a convicted offender's real criminal conduct, ments reflect a convicted offender's real criminal conduct, rather than that portion of the offender's conduct that a rather than that portion of the offender's conduct that a prosecutor decides to charge and prove.

prosecutor decides to charge and prove.

Efforts to tie real punishment to real conduct are not new.

They are embodied in well-established preguidelines sen- They are embodied in well-established preguidelines sen-

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tencing practices-practices under which a judge, looking at tencing practices—practices under which a judge, looking at a presentence report, would seek to tailor the sentence in a presentence report, would seek to tailor the sentence in significant part to fit the criminal conduct in which the of- significant part to fit the criminal conduct in which the of- fender actually engaged. For more than a century, ques- fender actually engaged. For more than a century, ques- tions of punishment (not those of guilt or innocence) have tions of punishment (not those of guilt or innocence) have reflected determinations made, not only by juries, but also reflected determinations made, not only by juries, but also by judges, probation officers, and executive parole boards. by judges, probation officers, and executive parole boards.

Such truthseeking determinations have rested upon both Such truthseeking determinations have rested upon both adversarial and nonadversarial processes. The Court's adversarial and nonadversarial processes. The Court's holding undermines efforts to reform these processes, for it holding undermines efforts to reform these processes, for it means that legislatures cannot both permit judges to base means that legislatures cannot both permit judges to base sentencing upon real conduct and seek, through guidelines, sentencing upon real conduct and seek, through guidelines, to make the results more uniform. to make the results more uniform.

In these and other ways, the two-jury system would work In these and other ways, the two jury system would work a radical change in pre-existing criminal law. It is not sur- a radical change in pre-existing criminal law. It is not sur- prising that this Court has never previously suggested that prising that this Court has never previously suggested that the Constitution-outside the unique context of the death the Constitution—outside the unique context of the death penalty-might require bifurcated jury-based sentencing. penalty—might require bifurcated jury-based sentencing.

And it is the impediment the Court's holding poses to legisla- And it is the impediment the Court's holding poses to legisla- tive efforts to achieve that greater systematic fairness that tive efforts to achieve that greater systematic fairness that casts doubt on its constitutional validity. casts doubt on its constitutional validity.

D

Is there a fourth option? Perhaps. Congress and state Is there a fourth option? Perhaps. Congress and state legislatures might, for example, rewrite their criminal codes, legislatures might, for example, rewrite their criminal codes, attaching astronomically high sentences to each crime, fol- attaching astronomically high sentences to each crime, fol- lowed by long lists of mitigating facts, which, for the most lowed by long lists of mitigating facts, which, for the most part, would consist of the absence of aggravating facts. Ap- part, would consist of the absence of aggravating facts. Ap- prendi, 530 U. S., at 541-542 (O'CONNOR, J., dissenting) (ex- prendi, 530 U. S., at 541-542 (0'CONNOR, J., dissenting) (ex- plaining how legislatures can evade the majority's rule by plaining how legislatures can evade the majority's rule by making yet another labeling choice). But political impedi- making yet another labeling choice). But political impedi- ments to legislative action make such rewrites difficult to ments to legislative action make such rewrites difficult to achieve; and it is difficult to see why the Sixth Amendment achieve; and it is difficult to see why the Sixth Amendment would require legislatures to undertake them.

would require legislatures to undertake them.

It may also prove possible to find combinations of, or varia- It may also prove possible to find combinations of, or varia- tions upon, my first three options. But I am unaware of any tions upon, my first three options. But I am unaware of any

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variation that does not involve (a) the shift of power to the variation that does not involve (a) the shift of power to the prosecutor (weakening the connection between real conduct prosecutor (weakening the connection between real conduct and real punishment) inherent in any charge offense system, and real punishment) inherent in any charge offense system, (b) the lack of uniformity inherent in any system of pure (b) the lack of uniformity inherent in any system of pure judicial discretion, or (c) the complexity, expense, and in- judicial discretion, or (c) the complexity, expense, and in- creased reliance on plea bargains involved in a "two-jury" creased reliance on plea bargains involved in a "two jury" system. The simple fact is that the design of any fair sen- system. The simple fact is that the design of any fair sen- tencing system must involve efforts to make practical com- tencing system must involve efforts to make practical com- promises among competing goals. The majority's reading of promises among competing goals. The majority's reading of the Sixth Amendment makes the effort to find those compro- the Sixth Amendment makes the effort to find those compro- mises-already difficult-virtually impossible.

mises—already difficult—virtually impossible.

II

The majority rests its conclusion in significant part upon a The majority rests its conclusion in significant part upon a claimed historical (and therefore constitutional) imperative. claimed historical (and therefore constitutional) imperative.

According to the majority, the rule it applies in this case is According to the majority, the rule it applies in this case is rooted in "longstanding tenets of common-law criminal juris- rooted in "longstanding tenets of common-law criminal juris- prudence," ante, at 301: that every accusation against a de- prudence," ante, at 301: that every accusation against a de- fendant must be proved to a jury and that "'an accusation fendant must be proved to a jury and that "'an accusation which lacks any particular fact which the law makes essen- which lacks any particular fact which the law makes essen- tial to the punishment is... no accusation within the require- tial to the punishment is ... no accusation within the require- ments of the common law, and it is no accusation in reason,' ments of the common law, and it is no accusation in reason,"' ante, at 301-302 (quoting Bishop, Criminal Procedure § 87, at ante, at 301-302 (quoting Bishop, Criminal Procedure § 87, at 55). The historical sources upon which the majority relies, 55). The historical sources upon which the majority relies, however, do not compel the result it reaches. See ante, at however, do not compel the result it reaches. See ante, at 323 (O'CONNOR, .J., dissenting); Apprendi, 530 U. S., at 525- 323 (0'CONNOR,. J, dissenting); Apprendi, 530 U. S., at 525- 528 (O'CONNOR, J., dissenting). The quotation from Bishop, 528 (0'CONNOR, J., dissenting). The quotation from Bishop, to which the majority attributes great weight, stands for to which the majority attributes great weight, stands for nothing more than the "unremarkable proposition" that nothing more than the "unremarkable proposition" that where a legislature passes a statute setting forth heavier where a legislature passes a statute setting forth heavier penalties than were available for committing a common-law penalties than were available for committing a common-law offense and specifying those facts that triggered the statu- offense and specifying those facts that triggered the statu- tory penalty, "a defendant could receive the greater statu- tory penalty, "a defendant could receive the greater statu- tory punishment only if the indictment expressly charged tory punishment only if the indictment expressly charged and the prosecutor proved the facts that made up the statu- and the prosecutor proved the facts that made up the statu- tory offense, as opposed to simply those facts that made up tory offense, as opposed to simply those facts that made up

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the common-law offense."

Id., at 526 (O'CONNOR, J., dissent- the common-law offense." Id., at 526 (0'CONNOR, J., dissent- ing) (characterizing a similar statement of the law in J. Arch- ing) (characterizing a similar statement of the law in J. Arch- bold, Pleading and Evidence in Criminal Cases 51, 188 (15th bold, Pleading and Evidence in Criminal Cases 51, 188 (15th ed. 1862)). ed. 1862)).

This is obvious when one considers the problem that This is obvious when one considers the problem that Bishop was addressing. He provides as an example "stat- Bishop was addressing. He provides as an example "stat- utes whereby, when [a common-law crime] is committed with utes whereby, when [a common-law crime] is committed with a particular intent, or with a particular weapon, or the like, a particular intent, or with a particular weapon, or the like, it is subjected to a particular corresponding punishment, it is subjected to a particular corresponding punishment, heavier than that for" the simple common-law offense heavier than that for" the simple common-law offense (though, of course, his concerns were not "limited to that (though, of course, his concerns were not "limited to that example," ante, at 302, n. 5).

Bishop, supra, § 82, at 51-52 example," ante, at 302, n. 5). Bishop, supra, §82, at 51-52 (discussing the example of common assault and enhanced- (discussing the example of common assault and enhanced- assault statutes, e. g., "assaults committed with the intent to assault statutes, e. g., "assaults committed with the intent to rob"). That indictments historically had to charge all of the rob").

That indictments historically had to charge all of the statutorily labeled elements of the offense is a proposition statutorily labeled elements of the offense is a proposition on which all can agree. See Apprendi, supra, at 526-527 on which all can agree. See Apprendi, supra, at 526-527 (O'CONNOR, J., dissenting). See also J.

Archbold, Pleading (0'CONNOR, J., dissenting). See also J. Archbold, Pleading and Evidence in Criminal Cases 44 (11th ed. 1849) ("[E]very and Evidence in Criminal Cases 44 (11th ed.

1849) ("[E]very fact or circumstance which is a necessary ingredient in the fact or circumstance which is a necessary ingredient in the offence must be set forth in the indictment" so that "there offence must be set forth in the indictment" so that "there may be no doubt as to the judgment which should be given, may be no doubt as to the judgment which should be given, if the defendant be convicted"); 1 T. Starkie, Criminal Plead- if the defendant be convicted"); 11 Starkie, Criminal Plead- ing 68 (2d ed. 1822) (the indictment must state "the criminal ing 68 (2d ed. 1822) (the indictment must state "the criminal nature and degree of the offence, which are conclusions of nature and degree of the offence, which are conclusions of law from the facts; and also the particular facts and circum- law from the facts; and also the particular facts and circum- stances which render the defendant guilty of that offence").

stances which render the defendant guilty of that offence").

Neither Bishop nor any other historical treatise writer, Neither Bishop nor any other historical treatise writer, however, disputes the proposition that judges historically however, disputes the proposition that judges historically had discretion to vary the sentence, within the range pro- had discretion to vary the sentence, within the range pro- vided by the statute, based on facts not proved at the trial. vided by the statute, based on facts not proved at the trial.

See Bishop, supra, § 85, at 54 ("[W]ithin the limits of any See Bishop, supra, § 85, at 54 ("[W]ithin the limits of any discretion as to the punishment which the law may have al- discretion as to the punishment which the law may have al- lowed, the judge, when he pronounces sentence, may suffer lowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggrava- his discretion to be influenced by matter shown in aggrava- tion or mitigation, not covered by the allegations of the in- tion or mitigation, not covered by the allegations of the in-

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dictment"); K. Stith & J. Cabranes, Fear of Judging: Sentenc- dictment"); K. Stith & J. Cabranes, Fear of Judging: Sentenc- ing Guidelines in the Federal Courts 9 (1998). The modern ing Guidelines in the Federal Courts 9 (1998). The modern history of preguidelines sentencing likewise indicates that history of preguidelines sentencing likewise indicates that judges had broad discretion to set sentences within a statu- judges had broad discretion to set sentences within a statu- tory range based on uncharged conduct. Usually, the judge tory range based on uncharged conduct. Usually, the judge based his or her sentencing decision on facts gleaned from a based his or her sentencing decision on facts gleaned from a presentence report, which the defendant could dispute at a presentence report, which the defendant could dispute at a sentencing hearing.

In the federal system, for example, sentencing hearing. In the federal system, for example, Federal Rule of Criminal Procedure 32 provided that proba- Federal Rule of Criminal Procedure 32 provided that proba- tion officers, who are employees of the Judicial Branch, pre- tion officers, who are employees of the Judicial Branch, pre- pared a presentence report for the judge, a copy of which pared a presentence report for the judge, a copy of which was generally given to the prosecution and defense before was generally given to the prosecution and defense before the sentencing hearing. See Stith & Cabranes, supra, at the sentencing hearing. See Stith & Cabranes, supra, at 79-80, 221, n. 5. See also ante, at 315 (O'CONNOR, J., dis- 79-80, 221, n. 5. See also ante, at 315 (0'CONNOR, J., dis- senting) (describing the State of Washington's former inde- senting) (describing the State of Washington's former inde- terminate sentencing law).

terminate sentencing law).

In this case, the statute provides that kidnaping may be In this case, the statute provides that kidnaping may be punished by up to 10 years' imprisonment. Wash. Rev. Code punished by up to 10 years' imprisonment. Wash. Rev. Code Ann. §§ 9A.40.030(3), 9A.20.021(1)(b) (2000). Modern struc- Ann. §§ 9A.40.030(3), '9A.20.021(1)(b) (2000). Modern struc- tured sentencing schemes like Washington's do not change tured sentencing schemes like Washington's do not change the statutorily fixed maximum penalty, nor do they purport the statutorily fixed maximum penalty, nor do they purport to establish new elements for the crime.

Instead, they un- to establish new elements for the crime. Instead, they un- dertake to structure the previously unfettered discretion of dertake to structure the previously unfettered discretion of the sentencing judge, channeling and limiting his or her dis- the sentencing judge, channeling and limiting his' or her dis- cretion even within the statutory range.

(Thus, contrary to cretion even within the statutory range. (Thus, contrary to the majority's arguments, ante, at 308-309, kidnapers in the the majority's arguments, ante, at 308-309, kidnapers in the State of Washington know that they risk up to 10 years' im- State of Washington know that they risk up to 10 years' im- prisonment, but they also have the benefit of additional infor- prisonment, but they also have the benefit of additional infor- mation about how long-within the 10-year maximum-their mation about how long—within the 10-year maximum—their sentences are likely to be, based on how the kidnaping was sentences are likely to be, based on how the kidnaping was committed.) committed.)

Historical treatises do not speak to such a practice because Historical treatises do not speak to such a practice because it was not done in the 19th century. Cf. Jones, 526 U. S., at 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 244 ("[T]he scholarship of which we are aware does not show that a question exactly like this one was ever raised and that a question exactly like this one was ever raised and resolved in the period before the framing"). This makes resolved in the period before the framing"). This makes

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sense when one considers that, prior to the 19th century, the sense when one considers that, prior to the 19th century, the prescribed penalty for felonies was often death, which the prescribed penalty for felonies was often death, which the judge had limited, and sometimes no, power to vary. See judge had limited, and sometimes no, power to vary. See Lillquist, 82 N. C. L. Rev., at 628-630. The 19th century Lillquist, 82 N. C. L. Rev., at 628-630. The 19th century saw a movement to a rehabilitative mode of punishment in saw a movement to a rehabilitative mode of punishment in which prison terms became a norm, shifting power to the which prison terms became a norm, shifting power to the judge to impose a longer or shorter term within the statu- judge to impose a longer or shorter term within the statu- tory maximum. See ibid. The ability of legislatures to tory maximum. See ibid. The ability of legislatures to guide the judge's discretion by designating presumptive guide the judge's discretion by designating presumptive ranges, while allowing the judge to impose a more or less ranges, while allowing the judge to impose a more or less severe penalty in unusual cases, was therefore never consid- severe penalty in unusual cases, was therefore never consid- ered. To argue otherwise, the majority must ignore the sig- ered. To argue otherwise, the majority must ignore the sig- nificant differences between modern structured sentencing nificant differences between modern structured sentencing schemes and the history on which it relies to strike them schemes and the history on which it relies to strike them down. And while the majority insists that the historical down. And while the majority insists that the historical sources, particularly Bishop, should not be "limited" to the sources, particularly Bishop, should not be "limited" to the context in which they were written, ante, at 302, n. 5, it has context in which they were written, ante, at 302, n. 5, it has never explained why the Court must transplant those dis- never explained why the Court must transplant those dis- cussions to the very different context of sentencing schemes cussions to the very different context of sentencing schemes designed to structure judges' discretion within a statutory designed to structure judges' discretion within a statutory sentencing range.

sentencing range.

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

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tencing hearings before judges-hearings the majority's rule tencing hearings before judges—hearings the majority's rule will eliminate for many. will eliminate for many.

Is there a risk of unfairness involved in permitting Con- Is there a risk of unfairness involved in permitting Con- gress to make this labeling decision? Of course. As we gress to make this labeling decision? Of course. As we have recognized, the "tail" of the sentencing fact might have recognized, the "tail" of the sentencing fact might "wa[g] the dog of the substantive offense." McMillan, "wa[g] the dog of the substantive offense." McMillan, supra, at 88. Congress might permit a judge to sentence an supra, at 88. Congress might permit a judge to sentence an individual for murder though convicted only of making an individual for murder though convicted only of making an illegal lane change. See ante, at 306 (majority opinion). illegal lane change. See ante, at 306 (majority opinion).

But that is the kind of problem that the Due Process Clause But that is the kind of problem that the Due Process Clause is well suited to cure. McMillan foresaw the possibility is well suited to cure. McMillan foresaw the possibility that judges would have to use their own judgment in dealing that judges would have to use their own judgment in dealing with such a problem; but that is what judges are there for. with such a problem; but that is what judges are there for.

And, as Part I, supra, makes clear, the alternatives are And, as Part I, supra, makes clear, the alternatives are worse-not only practically, but, although the majority re- worse—not only practically, but, although the majority re- fuses to admit it, constitutionally as well. fuses to admit it, constitutionally as well.

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

III

The majority also overlooks important institutional consid- The majority also overlooks important institutional consid- erations. Congress and the States relied upon what they erations. Congress and the States relied upon what they believed was their constitutional power to decide, within believed was their constitutional power to decide, within broad limits, whether to make a particular fact (a) a sentenc- broad limits, whether to make a particular fact (a) a sentenc- ing factor or (b) an element in a greater crime. They relied ing factor or (b) an element in a greater crime. They relied upon McMillan as guaranteeing the constitutional validity upon McMillan as guaranteeing the constitutional validity of that proposition. They created sentencing reform, an ef- of that proposition. They created sentencing reform, an ef- fort to change the criminal justice system so that it reflects fort to change the criminal justice system so that it reflects systematically not simply upon guilt or innocence but also systematically not simply upon guilt or innocence but also upon what should be done about this now-guilty offender.

upon what should be done about this now-guilty offender.

Those efforts have spanned a generation. They have led to Those efforts have spanned a generation. They have led to state sentencing guidelines and the Federal Sentencing state sentencing guidelines and the Federal Sentencing Guidelines system. E. g., ante, at 314-318 (O'CONNOR, J., Guidelines system. E. g., ante, at 314-318 (0'CONNOR, J., dissenting) (describing sentencing reform in the State of dissenting) (describing sentencing reform in the State of Washington). These systems are imperfect and they yield Washington). These systems are imperfect and they yield far from perfect results, but I cannot believe the Constitu- far from perfect results, but I cannot believe the Constitu-

Cite as: 542 U. S. 296 (2004) Cite as: 542 U. S. 296 (2004)

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tion forbids the state legislatures and Congress to adopt such tion forbids the state legislatures and Congress to adopt such systems and to try to improve them over time. Nor can I systems and to try to improve them over time. Nor can I believe that the Constitution hamstrings legislatures in the believe that the Constitution hamstrings legislatures in the way that JUSTICE O'CONNOR and I have discussed. way that JUSTICE O'CONNOIt and I have discussed.

IV

Now, let us return to the question I posed at the outset.

Why does the Sixth Amendment permit a jury trial right (in Why does the Sixth Amendment permit a jury trial right (in respect to a particular fact) to depend upon a legislative la- respect to a particular fact) to depend upon a legislative la- beling decision, namely, the legislative decision to label the beling decision, namely, the legislative decision to label the fact a sentencing fact, instead of an element of the crime? fact a sentencing fact, instead of an element of the crime?

The answer is that the fairness and effectiveness of a sen- The answer is that the fairness and effectiveness of a sen- tencing system, and the related fairness and effectiveness of tencing system, and the related fairness and effectiveness of the criminal justice system itself, depend upon the legisla- the criminal justice system itself, depend upon the legisla- ture's possessing the constitutional authority (within due ture's possessing the constitutional authority (within due process limits) to make that labeling decision. To restrict process limits) to make that labeling decision. To restrict radically the legislature's power in this respect, as the major- radically the legislature's power in this respect, as the major- ity interprets the Sixth Amendment to do, prevents the leg- ity interprets the Sixth Amendment to do, prevents the leg- islature from seeking sentencing systems that are consistent islature from seeking sentencing systems that are consistent with, and indeed may help to advance, the Constitution's with, and indeed may help to advance, the Constitution's greater fairness goals.

greater fairness goals.

To say this is not simply to express concerns about fairness To say this is not simply to express concerns about fairness to defendants.

It is also to express concerns about the seri- to defendants. It is also to express concerns about the seri- ous practical (or impractical) changes that the Court's deci- ous practical (or impractical) changes that the Court's deci- sion seems likely to impose upon the criminal process; about sion seems likely to impose upon the criminal process; about the tendency of the Court's decision to embed further plea the tendency of the Court's decision to embed further plea bargaining processes that lack transparency and too often bargaining processes that lack transparency and too often mean nonuniform, sometimes arbitrary, sentencing practices; Tnean nonuniform, sometimes arbitrary, sentencing practices; about the obstacles the Court's decision poses to legislative about the obstacles the Court's decision poses to legislative efforts to bring about greater uniformity between real crimi- efforts to bring about greater uniformity between real crimi- nal conduct and real punishment; and ultimately about the nal conduct and real punishment; and ultimately about the limitations that the Court imposes upon legislatures' ability limitations that the Court imposes upon legislatures' ability to make democratic legislative decisions. Whatever the to make democratic legislative decisions. Whatever the faults of guidelines systems-and there are many-they are faults of guidelines systems—and there are many—they are more likely to find their cure in legislation emerging from more likely to find their cure in legislation emerging from the experience of, and discussion among, all elements of the the experience of, and discussion among, all elements of the

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BREYER, J., dissenting BREYER, J., dissenting

criminal justice community, than in a virtually unchangeable criminal justice community, than in a virtually unchangeable constitutional decision of this Court. constitutional decision of this Court.

V

Taken together these three sets of considerations, concern- Taken together these three sets of considerations, concern- ing consequences, concerning history, concerning institu- ing consequences, concerning history, concerning institu- tional reliance, leave me where I was in Apprendi, i. e., con- tional reliance, leave me where I was in Apprendi, i. e., con- vinced that the Court is wrong. Until now, I would have vinced that the Court is wrong. Until now, I would have thought the Court might have limited Apprendi so that its thought the Court might have limited Apprendi so that its underlying principle would not undo sentencing reform ef- underlying principle would not undo sentencing reform ef- forts. Today's case dispels that illusion. At a minimum, forts. Today's case dispels that illusion. At a minimum, the case sets aside numerous state efforts in that direction. the case sets aside numerous state efforts in that direction.

Perhaps the Court will distinguish the Federal Sentencing Perhaps the Court will distinguish the Federal Sentencing Guidelines, but I am uncertain how. As a result of today's Guidelines, but I am uncertain how. As a result of today's decision, federal prosecutors, like state prosecutors, must de- decision, federal prosecutors, like state prosecutors, must de- cide what to do next, how to handle tomorrow's case. cide what to do next, how to handle tomorrow's case.

Consider some of the matters that federal prosecutors Consider some of the matters that federal prosecutors must know about, or guess about, when they prosecute their must know about, or guess about, when they prosecute their next case: (1) Does today's decision apply in full force to the next case: (1) Does today's decision apply in full force to the Federal Sentencing Guidelines?

(2) If so, must the initial

Federal Sentencing Guidelines? (2) If so, must the initial indictment contain all sentencing factors, charged as "ele- indictment contain all sentencing factors, charged as "ele- ments" of the crime?

(3) What, then, are the evidentiary

ments" of the crime? (3) What, then, are the evidentiary rules? Can the prosecution continue to use, say, presen- rules? Can the prosecution continue to use, say, presen- tence reports, with their conclusions reflecting layers of tence reports, with their conclusions reflecting layers of hearsay? Cf. Crawford v. Washington, 541 U. S. 36, 63, 68 hearsay? Cf. Crawford v. Washington, 541 U. S. 36, 63, 68 (2004) (clarifying the Sixth Amendment's requirement of con- (2004) (clarifying the Sixth Amendment's requirement of con- frontation with respect to testimonial hearsay). Are the nu- frontation with respect to testimonial hearsay). Are the nu- merous cases of this Court holding that a sentencing judge merous cases of this Court holding that a sentencing judge may consider virtually any reliable information still good law may consider virtually any reliable information still good law when juries, not judges, are required to determine the mat- when juries, not judges, are required to determine the mat- ter? See, e. g., United States v. Watts, 519 U. S. 148, 153-157 ter? See, e. g., United States v. Watts, 519 U. 5.148,153-157 (1997) (per curiam) (evidence of conduct of which the defend- (1997) (per curiam) (evidence of conduct of which the defend- ant has been acquitted may be considered at sentencing).

ant has been acquitted may be considered at sentencing).

Cf. Witte v. United States, 515 U. S. 389, 399-401 (1995) (evi- Cf. Witte v. United States, 515 U. S. 389, 399-401 (1995) (evi- dence of uncharged criminal conduct used in determining dence of uncharged criminal conduct used in determining sentence).

(4) How are juries to deal with highly complex

sentence). (4) How are juries to deal with highly complex Cite as: 542 U. S. 296 (2004) Cite as: 542 U. S. 296 (2004)

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BREYER, J., dissenting BREYER, J., dissenting

or open-ended Sentencing Guidelines obviously written for or open-ended Sentencing Guidelines obviously written for application by an experienced trial judge? See, e. g., USSG application by an experienced trial judge? See, e. g., USSG §3B1.1 (requiring a greater sentence when the defendant §3B1.1 (requiring a greater sentence when the defendant was a leader of a criminal activity that involved four or more was a leader of a criminal activity that involved four or more participants or was "otherwise extensive" (emphasis added)); participants or was "otherwise extensive" (emphasis added)); §§ 3D1.1-3D1.2 (highly complex "multiple count" rules); §§3D1.1-3D1.2 (highly complex "multiple count" rules); § 1B1.3 (relevant conduct rules). § 1B1.3 (relevant conduct rules).

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

that is not the Court's view.

For the reasons given, I dissent.