JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join, dissenting.
Last Term, in Jones v. United States, 526 U. S. 227 (1999), this Court found that our prior cases suggested the following principle: "[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., at 243, n. 6. At the time, JUSTICE KENNEDY rightly criticized the Court for its failure to ex plain the origins, contours, or consequences of its purported constitutional principle; for the inconsistency of that principle with our prior cases; and for the serious doubt that the holding cast on sentencing systems employed by the Federal Government and States alike. Id., at 254, 264-272 (dissenting opinion). Today, in what will surely be remembered as a watershed change in constitutional law, the Court imposes as a constitutional rule the principle it first identified in Jones.
I
Our Court has long recognized that not every fact that bears on a defendant's punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the "legislature's definition of the elements of the offense is usually dispositive." McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986); see also Almendarez-Torres v. United States, 523 U. S. 224, 228 (1998); Patterson v. New York, 432 U. S. 197, 210, 211, n. 12 (1977). Although we have recognized that "there are obviously constitutional limits beyond which the States may not go in this regard," id., at 210, and that "in certain limited circumstances Winship's reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged," McMillan, supra, at 86, we have proceeded with caution before deciding that a certain fact must be treated as an offense element despite the legislature's choice not to characterize it as such. We have therefore declined to establish any bright-line rule for making such judgments and have instead approached each case individually, sifting through the considerations most relevant to determining whether the legislature has acted properly within its broad power to define crimes and their punishments or instead has sought to evade the constitutional requirements associated with the characterization of a fact as an offense element. See, e. g., Monge v. California, 524 U. S. 721, 728-729 (1998); McMillan, supra, at 86. In one bold stroke the Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of Congress and state legislatures to define criminal offenses and the sentences that follow from convictions thereunder. The Court states: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Ante, at 490. In its opinion, the Court marshals virtually no authority to support its extraordinary rule. Indeed, it is remarkable that the Court cannot identify a single instance, in the over 200 years since the ratification of the Bill of Rights, that our Court has applied, as a constitutional requirement, the rule it announces today.
According to the Court, its constitutional rule "emerges from our history and case law." Ante, at 492. None of the history contained in the Court's opinion requires the rule it ultimately adopts. The history cited by the Court can be divided into two categories: first, evidence that judges at common law had virtually no discretion in sentencing, ante, at 478-480, and, second, statements from a 19th-century criminal procedure treatise that the government must charge in an indictment and prove at trial the elements of a statutory offense for the defendant to be sentenced to the punishment attached to that statutory offense, ante, at 480481. The relevance of the first category of evidence can be easily dismissed. Indeed, the Court does not even claim that the historical evidence of nondiscretionary sentencing at common law supports its "increase in the maximum penalty" rule. Rather, almost as quickly as it recites that historical practice, the Court rejects its relevance to the constitutional question presented here due to the conflicting American practice of judges exercising sentencing discretion and our decisions recognizing the legitimacy of that American practice. See ante, at 481-482 (citing Williams v. New York, 337 U. S. 241, 246 (1949)). Even if the Court were to claim that the common-law history on this point did bear on the instant case, one wonders why the historical practice of judges pronouncing judgments in cases between private parties is relevant at all to the question of criminal punishment presented here. See ante, at 479-480 (quoting 3 W. Blackstone, Commentaries on the Laws of England 396 (1768), which pertains to "remed[ies] prescribed by law for the redress of injuries").
Apparently, then, the historical practice on which the Court places so much reliance consists of only two quotations taken from an 1862 criminal procedure treatise. See ante, at 480-481 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 51, 188 (15th ed. 1862)). A closer examination of the two statements reveals that neither supports the Court's "increase in the maximum penalty" rule. Both of the excerpts pertain to circumstances in which a commonlaw felony had also been made a separate statutory offense carrying a greater penalty. Taken together, the statements from the Archbold treatise demonstrate nothing more than the unremarkable proposition that a defendant could receive the greater statutory punishment only if the indictment expressly charged and the prosecutor proved the facts that made up the statutory offense, as opposed to simply those facts that made up the common-law offense. See id., at 51 (indictment); id., at 188 (proof). In other words, for the defendant to receive the statutory punishment, the prosecutor had to charge in the indictment and prove at trial the elements of the statutory offense. To the extent there is any doubt about the precise meaning of the treatise excerpts, that doubt is dispelled by looking to the treatise sections from which the excerpts are drawn and the broader principle each section is meant to illustrate. See id., at 43 ("Every offence consists of certain acts done or omitted under certain circumstances; and in an indictment for the offence, it is not sufficient to charge the defendant generally with having committed it,… but all the facts and circumstances constituting the offence must be specially set forth"); id., at 180 ("Every offence consists of certain acts done or omitted, under certain circumstances, all of which must be stated in the indictment… and be proved as laid"). And, to the extent further clarification is needed, the authority cited by the Archbold treatise to support its stated proposition with respect to the requirements of an indictment demonstrates that the treatise excerpts mean only that the prosecutor must charge and then prove at trial the elements of the statutory offense. See 2 M. Hale, Pleas of the Crown *170 (hereinafter Hale) ("An indictment grounded upon an offense made by act of parliament must by express words bring the offense within the substantial description made in the act of parliament"). No Member of this Court questions the proposition that a State must charge in the indictment and prove at trial beyond a reasonable doubt the actual elements of the offense. This case, however, concerns the distinct question of when a fact that bears on a defendant's punishment, but which the legislature has not classified as an element of the charged offense, must nevertheless be treated as an offense element. The excerpts drawn from the Archbold treatise do not speak to this question at all. The history on which the Court's opinion relies provides no support for its "increase in the maximum penalty" rule.
In his concurring opinion, JUSTICE THOMAS cites additional historical evidence that, in his view, dictates an even broader rule than that set forth in the Court's opinion. The history cited by JUSTICE THOMAS does not require, as a matter of federal constitutional law, the application of the rule he advocates. To understand why, it is important to focus on the basis for JUSTICE THOMAS' argument. First, he claims that the Fifth and Sixth Amendments "codified" preexisting common law. Second, he contends that the relevant common law treated any fact that served to increase a defendant's punishment as an element of an offense. See ante, at 500-501. Even if JUSTICE THOMAS' first assertion were correct-a proposition this Court has not before embracedhe fails to gather the evidence necessary to support his second assertion. Indeed, for an opinion that purports to be founded upon the original understanding of the Fifth and Sixth Amendments, JUSTICE THOMAS' concurrence is notable for its failure to discuss any historical practice, or to cite any decisions, predating (or contemporary with) the ratification of the Bill of Rights. Rather, JUSTICE THOMAS divines the common-law understanding of the Fifth and Sixth Amendment rights by consulting decisions rendered by American courts well after the ratification of the Bill of Rights, ranging primarily from the 1840's to the 1890's. Whatever those decisions might reveal about the way American state courts resolved questions regarding the distinction between a crime and its punishment under general rules of criminal pleading or their own state constitutions, the decisions fail to demonstrate any settled understanding with respect to the definition of a crime under the relevant, pre-existing common law. Thus, there is a crucial disconnect between the historical evidence JUSTICE THOMAS cites and the proposition he seeks to establish with that evidence.
An examination of the decisions cited by JUSTICE THOMAS makes clear that they did not involve a simple application of a long-settled common-law rule that any fact that increases punishment must constitute an offense element. That would have been unlikely, for there does not appear to have been any such common-law rule. The most relevant common-law principles in this area were that an indictment must charge the elements of the relevant offense and must do so with certainty. See, e. g., 2 Hale *182 ("Touching the thing wherein or of which the offense is committed, there is required a certainty in an indictment"); id., at *183 ("The fact itself must be certainly set down in an indictment"); id., at *184 ("The offense itself must be alledged, and the manner of it"). Those principles, of course, say little about when a specific fact constitutes an element of the offense. JUSTICE THOMAS is correct to note that American courts in the 19th century came to confront this question in their cases, and often treated facts that served to increase punishment as elements of the relevant statutory offenses. To the extent JUSTICE THOMAS' broader rule can be drawn from those decisions, the rule was one of those courts' own invention, and not a previously existing rule that would have been "codified" by the ratification of the Fifth and Sixth Amendments. Few of the decisions cited by JUSTICE THOMAS indicate a reliance on pre-existing common-law principles. In fact, the converse rule that he identifies in the 19th-century American cases-that a fact that does not make a difference in punishment need not be charged in an indictment, see, e. g., Larned v. Commonwealth, 53 Mass. 240, 242-244 (1847)-was assuredly created by American courts, given that English courts of roughly the same period followed a contrary rule. See, e. g., Rex v. Marshall, 1 Moody C. C. 158,168 Eng. Rep. 1224 (1827). JUSTICE THOMAS' collection of state-court opinions is therefore of marginal assistance in determining the original understanding of the Fifth and Sixth Amendments. While the decisions JUSTICE THOMAS cites provide some authority for the rule he advocates, they certainly do not control our resolution of the federal constitutional question presented in the instant case and cannot, standing alone, justify overruling three decades' worth of decisions by this Court.
In contrast to JUSTICE THOMAS, the Court asserts that its rule is supported by "our cases in this area." Ante, at 490. That the Court begins its review of our precedent with a quotation from a dissenting opinion speaks volumes about the support that actually can be drawn from our cases for the "increase in the maximum penalty" rule announced today. See ante, at 484 (quoting Almendarez-Torres, 523 U. S., at 251 (SCALIA, J., dissenting)). The Court then cites our decision in Mullaney v. Wilbur, 421 U. S. 684 (1975), to demonstrate the "lesson" that due process and jury protec tions extend beyond those factual determinations that affect a defendant's guilt or innocence. Ante, at 484. The Court explains Mullaney as having held that the due process proof-beyond-a-reasonable-doubt requirement applies to those factual determinations that, under a State's criminal law, make a difference in the degree of punishment the defendant receives. Ante, at 484. The Court chooses to ignore, however, the decision we issued two years later, Patterson v. New York, 432 U. S. 197 (1977), which clearly rejected the Court's broad reading of Mullaney.
In Patterson, the jury found the defendant guilty of second-degree murder. Under New York law, the fact that a person intentionally killed another while under the influence of extreme emotional disturbance distinguished the reduced offense of first-degree manslaughter from the more serious offense of second-degree murder. Thus, the presence or absence of this one fact was the defining factor separating a greater from a lesser punishment. Under New York law, however, the State did not need to prove the absence of extreme emotional disturbance beyond a reasonable doubt. Rather, state law imposed the burden of proving the presence of extreme emotional disturbance on the defendant, and required that the fact be proved by a preponderance of the evidence. 432 U. S., at 198-200. We rejected Patterson's due process challenge to his conviction:"We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch." Id., at 210. Although we characterized the factual determination under New York law as one going to the mitigation of culpability, id., at 206, as opposed to the aggravation of the punishment, it is difficult to understand why the rule adopted by the Court in to day's case (or the broader rule advocated by JusTICE THOMAS) would not require the overruling of Patterson. Unless the Court is willing to defer to a legislature's formal definition of the elements of an offense, it is clear that the fact that Patterson did not act under the influence of extreme emotional disturbance, in substance, "increase[d] the penalty for [his] crime beyond the prescribed statutory maximum" for first-degree manslaughter. Ante, at 490. Nonetheless, we held that New York's requirement that the defendant, rather than the State, bear the burden of proof on this factual determination comported with the Fourteenth Amendment's Due Process Clause. Patterson, 432 U. S., at 205-211, 216; see also id., at 204-205 (reaffirming Leland v. Oregon, 343 U. S. 790 (1952), which upheld against due process challenge Oregon's requirement that the defendant, rather than the State, bear the burden on factual determination of defendant's insanity).
Patterson is important because it plainly refutes the Court's expansive reading of Mullaney. Indeed, the defendant in Patterson characterized Mullaney exactly as the Court has today and we rejected that interpretation:"Mullaney's holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt. In our view, the Mullaney holding should not be so broadly read." Patterson, supra, at 214-215 (emphasis added) (footnote omitted). We explained Mullaney instead as holding only "that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense." 432 U. S., at 215. Because nothing had been presumed against Patterson under New York law, we found no due process violation. Id., at 216. Ever since our decision in Patterson, we have consistently explained the holding in Mullaney in these limited terms and have rejected the broad interpretation the Court gives Mullaney today. See Jones, 526 U. S., at 241 ("We identified the use of a presumption to establish an essential ingredient of the offense as the curse of the Maine law [in Mullaney]"); Almendarez-Torres, 523 U. S., at 240 ("[Mullaney] suggests that Congress cannot permit judges to increase a sentence in light of recidivism, or any other factor, not set forth in an indictment and proved to a jury beyond a reasonable doubt. This Court's later case, Patterson v. New York,… however, makes absolutely clear that such a reading of Mullaney is wrong"); McMillan, 477 U. S., at 84 (same).
The case law from which the Court claims that its rule emerges consists of only one other decision-McMillan v. Pennsylvania. The Court's reliance on McMillan is also puzzling, given that our holding in that case points to the rejection of the Court's rule. There, we considered a Pennsylvania statute that subjected a defendant to a mandatory minimum sentence of five years' imprisonment if a judge found, by a preponderance of the evidence, that the defendant had visibly possessed a firearm during the commission of the offense for which he had been convicted. Id., at 81. The petitioners claimed that the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's jury trial guarantee (as incorporated by the Fourteenth Amendment) required the State to prove to the jury beyond a reasonable doubt that they had visibly possessed firearms. We rejected both constitutional claims. Id., at 84-91, 93.
The essential holding of McMillan conflicts with at least two of the several formulations the Court gives to the rule it announces today. First, the Court endorses the following principle: "'[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.''' Ante, at 490 (emphasis added) (quoting Jones, supra, at 252-253 (STEVENS, J., concurring)). Second, the Court endorses the rule as restated in JUSTICE SCALIA'S concurring opinion in Jones. See ante, at 490. There, JUSTICE SCALIA wrote: "[I]t is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which a criminal defendant is exposed." Jones, supra, at 253 (emphasis added). Thus, the Court appears to hold that any fact that increases or alters the range of penalties to which a defendant is exposed-which, by definition, must include increases or alterations to either the minimum or maximum penalties-must be proved to a jury beyond a reasonable doubt. In McMillan, however, we rejected such a rule to the extent it concerned those facts that increase or alter the minimum penalty to which a defendant is exposed. Accordingly, it is incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action is appropriate under normal principles of stare decisis.
The Court's opinion does neither. Instead, it attempts to lay claim to McMillan as support for its "increase in the maximum penalty" rule. According to the Court, McMillan acknowledged that permitting a judge to make findings that expose a defendant to greater or additional punishment "may raise serious constitutional concern." Ante, at 486. We said nothing of the sort in McMillan. To the contrary, we began our discussion of the petitioners' constitutional claims by emphasizing that we had already "rejected the claim that whenever a State links the 'severity of punishment' to 'the presence or absence of an identified fact' the State must prove that fact beyond a reasonable doubt." 477 U. S., at 84 (quoting Patterson, 432 U. S., at 214). We then reaffirmed the rule set forth in Patterson-"that in determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive." McMillan, 477 U. S., at 85. Although we acknowledged that there are constitutional limits to the State's power to define crimes and prescribe penalties, we found no need to establish those outer boundaries in McMillan because "several factors" persuaded us that the Pennsylvania statute did not exceed those limits, however those limits might be defined. Id., at 86. The Court's assertion that McMillan supports the application of its bright-line rule in this area is, therefore, unfounded.
The Court nevertheless claims to find support for its rule in our discussion of one factor in McMillan-namely, our statement that the petitioners' claim would have had "at least more superficial appeal" if the firearm possession finding had exposed them to greater or additional punishment. Id., at 88. To say that a claim may have had "more superficial appeal" is, of course, a far cry from saying that a claim would have been upheld. Moreover, we made that statement in the context of examining one of several factors that, in combination, ultimately gave "no doubt that Pennsylvania's [statute fell] on the permissible side of the constitutional line." Id., at 91. The confidence of that conclusion belies any argument that our ruling would have been different had the Pennsylvania statute instead increased the maximum penalty to which the petitioners were exposed. In short, it is clear that we did not articulate any bright-line rule that States must prove to a jury beyond a reasonable doubt any fact that exposes a defendant to a greater punishment. Such a rule would have been in substantial tension with both our earlier acknowledgment that Patterson rejected such a rule, see 477 U. S., at 84, and our recognition that a state legislature's definition of the elements is normally dispositive, see id., at 85. If any single rule can be derived from McMillan, it is not the Court's "increase in the maximum penalty" principle, but rather the following: When a State takes a fact that has always been considered by sentencing courts to bear on punishment, and dictates the precise weight that a court should give that fact in setting a defendant's sentence, the relevant fact need not be proved to a jury beyond a reasonable doubt as would an element of the offense. See id., at 89-90.
Apart from Mullaney and McMillan, the Court does not claim to find support for its rule in any other pre-Jones decision. Thus, the Court is in error when it says that its rule emerges from our case law. Nevertheless, even if one were willing to assume that Mullaney and McMillan lend some support for the Court's position, that feeble foundation is shattered by several of our precedents directly addressing the issue. The only one of those decisions that the Court addresses at any length is Almendarez-Torres. There, we squarely rejected the "increase in the maximum penalty" rule: "Petitioner also argues, in essence, that this Court should simply adopt a rule that any significant increase in a statutory maximum sentence would trigger a constitutional 'elements' requirement. We have explained why we believe the Constitution, as interpreted in McMillan and earlier cases, does not impose that requirement." 523 U. S., at 247. Whether Almendarez-Torres directly refuted the "increase in the maximum penalty" rule was extensively debated in Jones, and that debate need not be repeated here. See 526 U. S., at 248-249; id., at 268-270 (KENNEDY, J., dissenting). I continue to agree with JUSTICE KENNEDY that AlmendarezTorres constituted a clear repudiation of the rule the Court adopts today. See Jones, supra, at 268 (dis senting opinion). My understanding is bolstered by Monge v. California, a decision relegated to a footnote by the Court today. In Monge, in reasoning essential to our holding, we reiterated that "the Court has rejected an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence to which a defendant is exposed." 524 U. S., at 729 (citing AlmendarezTorres). At the very least, Monge demonstrates that AlmendarezTorres was not an "exceptional departure" from "historic practice." Ante, at 487.
Of all the decisions that refute the Court's "increase in the maximum penalty" rule, perhaps none is as important as Walton v. Arizona, 497 U. S. 639 (1990). There, a jury found Walton, the petitioner, guilty of first-degree murder. Under Arizona law, a trial court conducts a separate sentencing hearing to determine whether a defendant convicted of first-degree murder should receive the death penalty or life imprisonment. See id., at 643 (citing Ariz. Rev. Stat. Ann. § 13-703(B) (1989)). At that sentencing hearing, the judge, rather than the jury, must determine the existence or nonexistence of the statutory aggravating and mitigating factors. See Walton, 497 U. S., at 643 (quoting § 13-703(B)). The Arizona statute directs the judge to " 'impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in [the statute] and that there are no mitigating circumstances sufficiently substantial to call for leniency.''' Id., at 644 (quoting § 13-703(E)). Thus, under Arizona law, a defendant convicted of first-degree murder can be sentenced to death only if the judge finds the existence of a statutory aggravating factor.
Walton challenged the Arizona capital sentencing scheme, arguing that the Constitution requires that the jury, and not the judge, make the factual determination of the existence or nonexistence of the statutory aggravating factors. We rejected that contention: "'Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.'" Id., at 647 (quoting Clemons v. Mississippi, 494 U. S. 738, 745 (1990)). Relying in part on our decisions rejecting challenges to Florida's capital sentencing scheme, which also provided for sentencing by the trial judge, we added that" 'the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.'" Walton, supra, at 648 (quoting Hildwin v. Florida, 490 U. S. 638, 640-641 (1989) (per curiam)).
While the Court can cite no decision that would require its "increase in the maximum penalty" rule, Walton plainly rejects it. Under Arizona law, the fact that a statutory aggravating circumstance exists in the defendant's case "'increases the maximum penalty for [the] crime'" of first-degree murder to death. Ante, at 476 (quoting Jones, supra, at 243, n. 6). If the judge does not find the existence of a statutory aggravating circumstance, the maximum punishment authorized by the jury's guilty verdict is life imprisonment. Thus, using the terminology that the Court itself employs to describe the constitutional fault in the New Jersey sentencing scheme presented here, under Arizona law, the judge's finding that a statutory aggravating circumstance exists "exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone." Ante, at 483 (emphasis in original). Even JUSTICE THOMAS, whose vote is necessary to the Court's opinion today, agrees on this point. See ante, at 522 (concurring opinion). If a State can remove from the jury a factual determination that makes the difference between life and death, as Walton holds that it can, it is inconceivable why a State cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed. The distinction of Walton offered by the Court today is baffling, to say the least. The key to that distinction is the Court's claim that, in Arizona, the jury makes all of the findings necessary to expose the defendant to a death sentence. See ante, at 496-497 (quoting Almendarez-Torres, 523 U. S., at 257, n. 2 (SCALIA, J., dissenting)). As explained above, that claim is demonstrably untrue. A defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty. Indeed, at the time Walton was decided, the author of the Court's opinion today understood well the issue at stake. See Walton, 497 U. S., at 709 (STEVENS, J., dissenting) ("[U]nder Arizona law, as construed by Arizona's highest court, a first-degree murder is not punishable by a death sentence until at least one statutory aggravating circumstance has been proved"). In any event, the extent of our holding in Walton should have been perfectly obvious from the face of our decision. We upheld the Arizona scheme specifically on the ground that the Constitution does not require the jury to make the factual findings that serve as the" 'prerequisite to imposition of [a death] sentence,'" id., at 647 (quoting Clemons, supra, at 745), or "'the specific findings authorizing the imposition of the sentence of death,'" Walton, supra, at 648 (quoting Hildwin, supra, at 640-641). If the Court does not intend to overrule Walton, one would be hard pressed to tell from