HARRIS v. UNITED STATES
No. 00-10666
Supreme Court of the United States
Argued March 25, 2002-Decided June 24, 2002
536 U.S. 545
William C. Ingram, by appointment of the Court, 534 U. S. 1160, argued the cause for petitioner. With him on the briefs were Louis C. Allen III, Elizabeth A. Flagg, and Jeffrey T. Green.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Matthew D. Roberts, and Nina Goodman.*
*Briefs of amici curiae urging reversal were filed for the Cato Institute et al. by Stephen P. Halbrook; and for Families Against Mandatory Minimums Foundation by Peter Goldberger and Mary Price.
Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by David Samson, Attorney General of New Jersey, and Lisa Sarnoff Gochman, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa
JUSTICE KENNEDY announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, in which THE CHIEF JUSTICE, JUSTICE O‘CONNOR, and JUSTICE SCALIA join.
Once more we consider the distinction the law has drawn between the elements of a crime and factors that influence a criminal sentence. Legislatures define crimes in terms of the facts that are their essential elements, and constitutional guarantees attach to these facts. In federal prosecutions, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” alleging all the elements of the crime.
Yet not all facts affecting the defendant‘s punishment are elements. After the accused is convicted, the judge may impose a sentence within a range provided by statute, basing it on various facts relating to the defendant and the manner in which the offense was committed. Though these facts may have a substantial impact on the sentence, they are not elements, and are thus not subject to the Constitution‘s indictment, jury, and proof requirements. Some statutes also direct judges to give specific weight to certain facts when choosing the sentence. The statutes do not require these
The Constitution permits legislatures to make the distinction between elements and sentencing factors, but it imposes some limitations as well. For if it did not, legislatures could evade the indictment, jury, and proof requirements by labeling almost every relevant fact a sentencing factor. The Court described one limitation in this respect two Terms ago in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,” whether the statute calls it an element or a sentencing factor, “must be submitted to a jury, and proved beyond a reasonable doubt.” Fourteen years before, in McMillan v. Pennsylvania, 477 U. S. 79 (1986), the Court had declined to adopt a more restrictive constitutional rule. McMillan sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm.
The principal question before us is whether McMillan stands after Apprendi.
I
Petitioner William Joseph Harris sold illegal narcotics out of his pawnshop with an unconcealed semiautomatic pistol at his side. He was later arrested for violating federal drug and firearms laws, including
“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-
(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”
The Government proceeded on the assumption that
Following his conviction, the presentence report recommended that petitioner be given the 7-year minimum because he had brandished the gun. Petitioner objected, citing this Court‘s decision in Jones v. United States, 526 U. S. 227 (1999), and arguing that, as a matter of statutory interpretation, brandishing is an element of a separate offense, an offense for which he had not been indicted or tried. At the sentencing hearing the District Court overruled the objection, found by a preponderance of the evidence that petitioner had brandished the gun, and sentenced him to seven years in prison.
In the Court of Appeals for the Fourth Circuit petitioner again pressed his statutory argument. He added that if brandishing is a sentencing factor as a statutory matter, the statute is unconstitutional in light of Apprendi-even though, as petitioner acknowledged, the judge‘s finding did not alter the maximum penalty to which he was exposed. Rejecting these arguments, the Court of Appeals affirmed. 243 F. 3d 806 (2001). Like every other Court of Appeals to have addressed the question, it held that the statute makes
We granted certiorari, 534 U. S. 1064 (2001), and now affirm.
II
We must first answer a threshold question of statutory construction: Did Congress make brandishing an element or a sentencing factor in
So we begin our analysis by asking what
When a statute has this sort of structure, we can presume that its principal paragraph defines a single crime and its subsections identify sentencing factors. But even if a statute “has a look to it suggesting that the numbered subsections are only sentencing provisions,” id., at 232, the text might provide compelling evidence to the contrary. This was illustrated by the Court‘s decision in Jones, in which the federal carjacking statute, which had a similar structure, was interpreted as setting out the elements of multiple offenses.
The critical textual clues in this case, however, reinforce the single-offense interpretation implied by the statute‘s structure. Tradition and past congressional practice, for example, were perhaps the most important guideposts in Jones. The fact at issue there-serious bodily injury-is an element in numerous federal statutes, including two on which the carjacking statute was modeled; and the Jones Court doubted that Congress would have made this fact a sentencing factor in one isolated instance. Id., at 235-237; see also Castillo, supra, at 126-127; Almendarez-Torres v. United States, 523 U. S. 224, 230 (1998). In contrast, there is no similar federal tradition of treating brandishing and discharging as offense elements. In Castillo v. United States, supra, the Court singled out brandishing as a paradigmatic sentencing factor: “Traditional sentencing factors often involve... special features of the manner in which a basic crime was carried out (e. g., that the defendant... brandished a gun).” Id., at 126. Under the Sentencing Guidelines, moreover, brandishing and discharging affect the sentences for numerous federal crimes. See, e. g., United States Sentencing Commission, Guidelines Manual
We might have had reason to question that inference if brandishing or discharging altered the defendant‘s punishment in a manner not usually associated with sentencing factors. Jones is again instructive. There the Court accorded great significance to the “steeply higher penalties” authorized by the carjacking statute‘s three subsections, which enhanced the defendant‘s maximum sentence from 15 years, to 25 years, to life-enhancements the Court doubted Congress would have made contingent upon judicial factfinding. 526 U. S., at 233; see also Castillo, supra, at 131; Almendarez-Torres, supra, at 235-236. The provisions before us now, however, have an effect on the defendant‘s sentence that is more consistent with traditional understandings about how sentencing factors operate; the required findings constrain, rather than extend, the sentencing judge‘s discretion. Section 924(c)(1)(A) does not authorize the judge to impose “steeply higher penalties“-or higher penalties at all-once the facts in question are found. Since the subsections alter only the minimum, the judge may impose a sentence well in excess of seven years, whether or not the defendant brandished the firearm. The incremental changes in the minimum-from 5 years, to 7, to 10-are precisely what one would expect to see in provisions meant to identify matters for the sentencing judge‘s consideration.
Nothing about the text or history of the statute rebuts the presumption drawn from its structure. Against the single-
The avoidance canon played a role in Jones, for the subsections of the carjacking statute enhanced the maximum sentence, and a single-offense interpretation would have implicated constitutional questions later addressed-and resolved in the defendant‘s favor-by Apprendi. See Jones, supra, at 243, n. 6 (“[A]ny 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“). Yet the canon has no role to play here. It applies only when there are serious concerns about the statute‘s constitutionality, Reno v. Flores, 507 U. S. 292, 314, n. 9 (1993), and petitioner‘s proposed rule-that the Constitution requires any fact increasing the statutory minimum sentence to be accorded the safeguards assigned to elements-was rejected 16 years ago in McMillan. Petitioner acknowledges as much but argues that recent developments cast doubt on McMillan‘s viability. To avoid deciding whether McMillan must be overruled, he says, we should construe the problem out of the statute.
Petitioner‘s suggestion that we use the canon to avoid overruling one of our own precedents is novel and, given that McMillan was in place when
As the avoidance canon poses no obstacle and the interpretive circumstances point in a common direction, we conclude that, as a matter of statutory interpretation,
III
Confident that the statute does just what McMillan said it could, we consider petitioner‘s argument that
The special justification petitioner offers is our decision in Apprendi, which, he says, cannot be reconciled with McMillan. Cf. Ring v. Arizona, post, at 609 (overruling Walton v. Arizona, 497 U. S. 639 (1990), because ”Walton and Apprendi are irreconcilable“). We do not find the argument convincing. As we shall explain, McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases. Apprendi said that any fact extending the defendant‘s sentence beyond the maximum authorized by the jury‘s verdict would have been considered an element of an aggravated crime-and thus the domain of the jury-by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury‘s verdict has authorized the judge to impose the minimum with or without the finding. As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the Constitution.
Though defining criminal conduct is a task generally “left to the legislative branch,” Patterson v. New York, 432 U. S. 197, 210 (1977), Congress may not manipulate the definition of a crime in a way that relieves the Government of its constitutional obligations to charge each element in the indictment, submit each element to the jury, and prove each element beyond a reasonable doubt, Jones, 526 U. S., at 240-241; Mullaney v. Wilbur, 421 U. S. 684, 699 (1975). McMillan and Apprendi asked whether certain types of facts, though labeled sentencing factors by the legislature, were nevertheless “traditional elements” to which these constitutional safe-
McMillan‘s answer stemmed from certain historical and doctrinal understandings about the role of the judge at sentencing. The mid-19th century produced a general shift in this country from criminal statutes “providing fixed-term sentences to those providing judges discretion within a permissible range.” Apprendi, 530 U. S., at 481. Under these statutes, judges exercise their sentencing discretion through “an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.” United States v. Tucker, 404 U. S. 443, 446 (1972). The Court has recognized that this process is constitutional and that the facts taken into consideration need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. See, e. g., United States v. Watts, 519 U. S. 148, 156 (1997) (per curiam); Nichols v. United States, 511 U. S. 738, 747 (1994); Williams v. New York, 337 U. S. 241, 246 (1949). As the Court reiterated in Jones: “It is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution.” 526 U. S., at 248. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.
That proposition, coupled with another shift in prevailing sentencing practices, explains McMillan. In the latter part of the 20th century, many legislatures, dissatisfied with sentencing disparities among like offenders, implemented measures regulating judicial discretion. These systems maintained the statutory ranges and the judge‘s factfinding role but assigned a uniform weight to factors judges often relied upon when choosing a sentence. See, e. g., Payne v. Tennessee, 501 U. S. 808, 820 (1991). One example of reform, the
In sustaining the statute the McMillan Court placed considerable reliance on the similarity between the sentencing factor at issue and the facts judges contemplate when exercising their discretion within the statutory range. Given that the latter are not elements of the crime, the Court explained, neither was the former:
“Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court‘s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 ‘ups the ante’ for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan.... Petitioners’ claim that visible possession under the Pennsylvania statute is ‘really’ an element of the offenses for which they are being punished... would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment,... but it does not.” 477 U. S., at 87-88 (footnote omitted).
In response to the argument that the Act evaded the Constitution‘s procedural guarantees, the Court noted that the statute “simply took one factor that has always been considered by sentencing courts to bear on punishment... and dictated the precise weight to be given that factor.” Id., at 89-90.
That reasoning still controls. If the facts judges consider when exercising their discretion within the statutory range are not elements, they do not become as much merely because legislatures require the judge to impose a minimum sentence when those facts are found-a sentence the judge could have imposed absent the finding. It does not matter, for the purposes of the constitutional analysis, that in statutes like the Pennsylvania Act the “State provides” that a fact “shall give rise both to a special stigma and to a special punishment.” Id., at 103 (STEVENS, J., dissenting). Judges choosing a sentence within the range do the same, and “[j]udges, it is sometimes necessary to remind ourselves, are part of the State.” Apprendi, supra, at 498 (SCALIA, J., concurring). These facts, though stigmatizing and punitive, have been the traditional domain of judges; they have not been alleged in the indictment or proved beyond a reasonable doubt. There is no reason to believe that those who framed the Fifth and Sixth Amendments would have thought of them as the elements of the crime.
This conclusion might be questioned if there were extensive historical evidence showing that facts increasing the defendant‘s minimum sentence (but not affecting the maximum) have, as a matter of course, been treated as elements. The evidence on this score, however, is lacking. Statutes like the Pennsylvania Act, which alter the minimum sentence without changing the maximum, were for the most part the product of the 20th century, when legislatures first asserted control over the sentencing judge‘s discretion. Courts at the founding (whose views might be relevant, given the contemporaneous adoption of the Bill of Rights, see Apprendi, 530 U. S., at 478-484) and in the mid-19th century (whose views might be relevant, given that sentencing ranges first arose then, see id., at 501-518 (THOMAS, J., concurring)) were not as a general matter required to decide whether a fact giving rise to a mandatory minimum sentence within the available range was to be alleged in the indictment and
McMillan was on firm historical ground, then, when it held that a legislature may specify the condition for a mandatory minimum without making the condition an element of the crime. The fact of visible firearm possession was more like the facts considered by judges when selecting a sentence within the statutory range-facts that, as the authorities from the 19th century confirm, have never been charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt:
“[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment. Where the law permits the heaviest punishment, on a scale laid down, to be inflicted, and has merely committed to the judge the authority to interpose his mercy and inflict a punishment of a lighter grade, no rights of the accused are violated though in the indictment there is no mention of mitigating circumstances. The aggravating circumstances spoken of cannot swell the penalty
above what the law has provided for the acts charged against the prisoner, and they are interposed merely to check the judicial discretion in the exercise of the permitted mercy. This is an entirely different thing from punishing one for what is not alleged against him.” Bishop, Criminal Procedure § 85, at 54.
Since sentencing ranges came into use, defendants have not been able to predict from the face of the indictment precisely what their sentence will be; the charged facts have simply made them aware of the “heaviest punishment” they face if convicted. Ibid. Judges, in turn, have always considered uncharged “aggravating circumstances” that, while increasing the defendant‘s punishment, have not “swell[ed] the penalty above what the law has provided for the acts charged.” Ibid. Because facts supporting a mandatory minimum fit squarely within that description, the legislature‘s choice to entrust them to the judge does not implicate the “competition... between judge and jury over... their respective roles,” Jones, 526 U. S., at 245, that is the central concern of the Fifth and Sixth Amendments.
At issue in Apprendi, by contrast, was a sentencing factor that did “swell the penalty above what the law has provided,” Bishop, supra, § 85, at 54, and thus functioned more like a “traditional elemen[t].” Patterson v. New York, 432 U. S., at 211, n. 12. The defendant had been convicted of illegal possession of a firearm, an offense for which New Jersey law prescribed a maximum of 10 years in prison. See
The Court held that the enhancement was unconstitutional. “[O]ur cases in this area, and... the history upon which they rely,” the Court observed, confirmed the constitu-
Apprendi‘s conclusions do not undermine McMillan‘s. There was no comparable historical practice of submitting facts increasing the mandatory minimum to the jury, so the Apprendi rule did not extend to those facts. Indeed, the Court made clear that its holding did not affect McMillan at all:
“We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury‘s verdict-a limitation identified in the McMillan opinion itself.” 530 U. S., at 487, n. 13.
The sentencing factor in McMillan did not increase “the penalty for a crime beyond the prescribed statutory maximum,” 530 U. S., at 490; nor did it, as the concurring opinions in Jones put it, “alter the congressionally prescribed range of penalties to which a criminal defendant is exposed,” 526 U. S., at 253 (SCALIA, J., concurring). As the Apprendi Court observed, the McMillan finding merely required the
As its holding and the history on which it was based would suggest, the Apprendi Court‘s understanding of the Constitution is consistent with the holding in McMillan. Facts extending the sentence beyond the statutory maximum had traditionally been charged in the indictment and submitted to the jury, Apprendi said, because the function of the indictment and jury had been to authorize the State to impose punishment:
“The evidence... that punishment was, by law, tied to the offense... and the evidence that American judges have exercised sentencing discretion within a legally prescribed range... point to a single, consistent conclusion: The judge‘s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” 530 U. S., at 483, n. 10.
The grand and petit juries thus form a ““strong and two-fold barrier... between the liberties of the people and the prerogative of the [government].“” Duncan v. Louisiana, 391 U. S., at 151 (quoting W. Blackstone, Commentaries on the Laws of England 349 (T. Cooley ed. 1899)). Absent authorization from the trial jury-in the form of a finding, by proof beyond a reasonable doubt, of the facts warranting the extended sentence under the New Jersey statute-the State had no power to sentence the defendant to more than
Yet once the jury finds all those facts, Apprendi says that the defendant has been convicted of the crime; the
Petitioner argues, however, that the concerns underlying Apprendi apply with equal or more force to facts increasing the defendant‘s minimum sentence. Those factual findings, he contends, often have a greater impact on the defendant
In light of the foregoing, it is not surprising that the decisions for the Court in both Apprendi and Jones insisted that they were consistent with McMillan—and that a distinction could be drawn between facts increasing the defendant‘s minimum sentence and facts extending the sentence beyond the statutory maximum. See, e. g., Apprendi, supra, at 494, n. 19 (“The term [sentencing factor] appropriately describes a circumstance, which may be either aggravating or mitigat-
Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury‘s verdict, however, the political system may channel judicial discretion—and rely upon judicial expertise—by requiring defendants to serve minimum terms after judges make certain factual findings. It is critical not to abandon that understanding at this late date. Legislatures and their constituents have relied upon McMillan to exercise control over sentencing through dozens of statutes like the one the Court approved in that case. Congress and the States have conditioned mandatory minimum sentences upon judicial findings that, as here, a firearm was possessed,
IV
Reaffirming McMillan and employing the approach outlined in that case, we conclude that the federal provision at issue,
The Court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory minimums, it is often said, fail to account for the unique circumstances of offenders who warrant a lesser penalty. See, e. g., Brief for Families Against Mandatory Minimums Foundation as Amicus Curiae 25, n. 16; cf. Almendarez-Torres, supra, at 245 (citing United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System 26-34 (Aug. 1991)). These criticisms may be sound, but they would persist whether the judge or the jury found the facts giving rise to the minimum. We hold only that the
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE O‘CONNOR, concurring.
Petitioner bases his statutory argument that brandishing must be interpreted as an offense element on Jones v. United States, 526 U.S. 227 (1999). He bases his constitutional argument that regardless of how the statute is interpreted, brandishing must be charged in the indictment and found by the jury beyond a reasonable doubt on Apprendi v. New Jersey, 530 U.S. 466 (2000). As I dissented in Jones and Apprendi and still believe both were wrongly decided, I find it easy to reject petitioner‘s arguments. Even assuming the validity of Jones and Apprendi, however, I agree that petitioner‘s arguments that brandishing must be charged in the indictment and found by the jury beyond a reasonable doubt are unavailing. I therefore join JUSTICE KENNEDY‘s opinion in its entirety.
JUSTICE BREYER, concurring in part and concurring in the judgment.
I cannot easily distinguish Apprendi v. New Jersey, 530 U.S. 466 (2000), from this case in terms of logic. For that reason, I cannot agree with the plurality‘s opinion insofar as it finds such a distinction. At the same time, I continue to believe that the
In saying this, I do not mean to suggest my approval of mandatory minimum sentences as a matter of policy. During the past two decades, as mandatory minimum sentencing statutes have proliferated in number and importance, judges, legislators, lawyers, and commentators have criticized those statutes, arguing that they negatively affect the fair administration of the criminal law, a matter of concern to judges and to legislators alike. See, e. g., Remarks of Chief Justice William H. Rehnquist, Nat. Symposium on Drugs and Violence in America 9-11 (June 18, 1993); Kennedy, Hearings before a Subcommittee of the House Committee on Appropriations, 103d Cong., 2d Sess., 29 (Mar. 9, 1994) (mandatory minimums are “imprudent, unwise and often an unjust mechanism for sentencing“); Breyer, Federal Sentencing Guidelines Revisited, 14 Crim. Justice 28 (Spring 1999); Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185, 192-196 (1993); Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev. 199 (1993); Raeder, Rethinking Sentencing and Correctional Policy for Nonviolent Drug Offenders, 14 Crim. Justice 1, 53 (Summer 1999) (noting that the American Bar Association has opposed mandatory minimum sentences since 1974).
Mandatory minimum statutes are fundamentally inconsistent with Congress’ simultaneous effort to create a fair, honest, and rational sentencing system through the use of Sentencing Guidelines. Unlike Guideline sentences, statutory mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special circumstances that call for leniency. See Melendez v. United States, 518 U.S. 120, 132-133 (1996) (BREYER, J., concurring in part and dissenting in part); cf. Koon v. United States, 518 U.S. 81, 95-96 (1996). They rarely reflect an ef-
Applying Apprendi in this case would not, however, lead Congress to abolish, or to modify, mandatory minimum sentencing statutes. Rather, it would simply require the prosecutor to charge, and the jury to find beyond a reasonable doubt, the existence of the “factor,” say, the amount of unlawful drugs, that triggers the mandatory minimum. In many cases, a defendant, claiming innocence and arguing, say, mistaken identity, will find it impossible simultaneously to argue to the jury that the prosecutor has overstated the drug amount. How, the jury might ask, could this “innocent” defendant know anything about that matter? The upshot is that in many such cases defendant and prosecutor will enter into a stipulation before trial as to drug amounts to be used at sentencing (if the jury finds the defendant guilty). To that extent, application of Apprendi would take from the judge the power to make a factual determination, while giving that power not to juries, but to prosecutors. And such consequences, when viewed through the prism of an open, fair sentencing system, are seriously adverse.
The legal consequences of extending Apprendi to the mandatory minimum sentencing context are also seriously adverse. Doing so would diminish further Congress’ otherwise broad constitutional authority to define crimes through the specification of elements, to shape criminal sentences through the specification of sentencing factors, and to limit judicial discretion in applying those factors in particular cases. I have discussed these matters fully in my Apprendi dissent. See 530 U.S., at 555. For the reasons set forth there, and in other opinions, see Jones v. United States, 526 U.S. 227, 254 (1999) (KENNEDY, J., dissenting); Almendarez-Torres v. United States, 523 U.S. 224 (1998), I would not apply Apprendi in this case.
I consequently join Parts I, II, and IV of the Court‘s opinion and concur in its judgment.
JUSTICE THOMAS, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.
The range of punishment to which petitioner William J. Harris was exposed turned on the fact that he brandished a firearm, a fact that was neither charged in his indictment nor proved at trial beyond a reasonable doubt. The United States Court of Appeals for the Fourth Circuit nonetheless held, in reliance on McMillan v. Pennsylvania, 477 U.S. 79 (1986), that the fact that Harris brandished a firearm was a mere sentencing factor to which no constitutional protections attach. 243 F.3d 806, 808-812 (2001).
McMillan, however, conflicts with the Court‘s later decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), as the dissenting opinion in Apprendi recognized. See id., at 533 (O‘CONNOR, J., dissenting). The Court‘s holding today therefore rests on either a misunderstanding or a rejection of the very principles that animated Apprendi just two years ago. Given that considerations of stare decisis are at their nadir in cases involving procedural rules implicating fundamental constitutional protections afforded criminal defend-
I
Harris was indicted for distributing marijuana in violation of
Relying on McMillan, the Court of Appeals affirmed the sentence and held as a matter of statutory interpretation that brandishing is a sentencing factor, not an element of the
II
The Court construes
A
The
This question cannot be answered by reference to statutory construction alone solely because the sentence does not exceed the statutory maximum. As I discussed at great length in Apprendi, the original understanding of what facts are elements of a crime was expansive:
“[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—of whatever sort, including the fact of a prior conviction—the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact . . . that fact is also an element. No multifactor parsing of statutes, of the sort that we have attempted since McMillan, is necessary. One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact for that entitlement is an element.” 530 U.S., at 501 (concurring opinion).
The fact that a defendant brandished a firearm indisputably alters the prescribed range of penalties to which he is exposed under
I agree with the Court that a legislature is free to decree, within constitutional limits, which facts are elements that constitute a crime. See ante, at 550. But when the legislature provides that a particular fact shall give rise “‘both to a special stigma and to a special punishment,‘” ante, at 560 (plurality opinion) (quoting McMillan, 477 U.S., at 103 (STEVENS, J., dissenting)), the constitutional consequences are clear. As the Court acknowledged in Apprendi, society has long recognized a necessary link between punishment and crime, 530 U.S., at 478 (“The defendant‘s ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime“). This link makes a great deal of sense: Why, after all, would anyone care if they were convicted of murder, as opposed to manslaughter, but for the increased penalties for the former offense, which in turn reflect the greater moral opprobrium society attaches to the act? We made clear in Apprendi that if a statute “‘annexes a higher degree of punishment‘” based on certain circumstances, exposing a defendant to that higher degree of punishment requires that those circumstances be charged in the indictment and proved beyond a reasonable doubt. Id. , at 480 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 51 (15th ed. 1862)).
This constitutional limitation neither interferes with the legislature‘s ability to define statutory ranges of punishment nor calls into question judicial discretion to impose “judgment within the range prescribed by statute.” Apprendi, 530 U.S., at 481. But it does protect the criminal defendant‘s constitutional right to know, ex ante, those circumstances that will determine the applicable range of punishment and to have those circumstances proved beyond a reasonable doubt:
“If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not—at the moment the State is put to proof of those circumstances—be deprived of protections that have, until that point, unquestionably attached.” Id., at 484.
B
The Court truncates this protection and holds that “facts, sometimes referred to as sentencing factors,” do not need to be “alleged in the indictment, submitted to the jury, or established beyond a reasonable doubt,” ante, at 550, so long as they do not increase the penalty for the crime beyond the statutory maximum: This is so even if the fact alters the statutorily mandated sentencing range, by increasing the mandatory minimum sentence. But to say that is in effect to claim that the imposition of a 7-year, rather than a 5-year, mandatory minimum does not change the constitutionally relevant sentence range because, regardless, either sentence falls between five years and the statutory maximum of life, the longest sentence range available under the statute. This analysis is flawed precisely because the statute provides incremental sentencing ranges, in which the mandatory minimum sentence varies upward if a defendant “brandished” or “discharged” a weapon. As a matter of common sense, an
Actual sentencing practices appear to bolster this conclusion. The suggestion that a 7-year sentence could be imposed even without a finding that a defendant brandished a firearm ignores the fact that the sentence imposed when a defendant is found only to have “carried” a firearm “in relation to” a drug trafficking offense appears to be, almost uniformly, if not invariably, five years. Similarly, those found to have brandished a firearm typically, if not always, are sentenced only to 7 years in prison while those found to have discharged a firearm are sentenced only to 10 years. Cf. United States Sentencing Commission, 2001 Datafile, USSCFY01, Table 1 (illustrating that almost all persons sentenced for violations of
The incremental increase between five and seven years in prison may not seem so great in the abstract (of course it must seem quite different to a defendant actually being incarcerated). However, the constitutional analysis adopted by the plurality would hold equally true if the mandatory
It is true that Apprendi concerned a fact that increased the penalty for a crime beyond the prescribed statutory maximum, but the principles upon which it relied apply with equal force to those facts that expose the defendant to a higher mandatory minimum: When a fact exposes a defendant to greater punishment than what is otherwise legally prescribed, that fact is “by definition [an] ‘elemen[t]’ of a separate legal offense.” 530 U.S., at 483, n. 10. Whether one raises the floor or raises the ceiling it is impossible to dispute that the defendant is exposed to greater punishment than is otherwise prescribed.
This is no less true because mandatory minimum sentences are a 20th-century phenomena. As the Government acknowledged at oral argument, this fact means only that historical practice is not directly dispositive of the question whether facts triggering mandatory minimums must be treated like elements. Tr. of Oral Arg. 47. The Court has not previously suggested that constitutional protection ends where legislative innovation or ingenuity begins. Looking to the principles that animated the decision in Apprendi and the bases for the historical practice upon which Apprendi rested (rather than to the historical pedigree of mandatory minimums), there are no logical grounds for treating facts triggering mandatory minimums any differently than facts that increase the statutory maximum. In either case the defendant cannot predict the judgment from the face of the
III
McMillan rested on the premise that the “‘applicability of the reasonable-doubt standard . . . has always been dependent on how a State defines the offense that is charged in any given case.‘” 477 U.S., at 85 (quoting Patterson v. New York, 432 U.S. 197, 211, n. 12 (1977)). Thus, it cannot withstand the logic of Apprendi, at least with respect to facts for which the legislature has prescribed a new statutory sentencing range. McMillan broke from the “traditional understanding” of crime definition, a tradition that “continued well into the 20th century, at least until the middle of the century.” Apprendi, supra, at 518 (THOMAS, J., concurring). The Court in McMillan did not, therefore, acknowledge that the change in the prescribed sentence range upon the finding of particular facts changed the prescribed range of penalties in a constitutionally significant way. Rather, while recognizing applicable due process limits, it concluded that the mandatory minimum at issue did not increase the prescribed range of penalties but merely required the judge to impose a specific penalty “within the range already available to it.” 477 U.S., at 87-88. As discussed, supra, at 577-579, this analysis is inherently flawed.
Jones called into question, and Apprendi firmly limited, a related precept underlying McMillan: namely, the State‘s authority to treat aggravated behavior as a factor increasing the sentence, rather than as an element of the crime. Although the plurality resurrects this principle, see ante, at 559-560, 565, it must do so in the face of the Court‘s contrary
Nor should stare decisis dictate the outcome in this case; the stare decisis effect of McMillan is considerably weakened for a variety of reasons. As an initial matter, where the Court has wrongly decided a constitutional question, the force of stare decisis is at its weakest. See Ring v. Arizona, post, at 608; Agostini v. Felton, 521 U.S. 203, 235 (1997). And while the relationship between punishment and constitutional protections attached to the elements of a crime traces its roots back to the common law, McMillan was decided only 16 years ago.5 No Court of Appeals, let alone this Court, has held that Apprendi has retroactive effect. The United States concedes, with respect to prospective application, that it can charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury. Tr. of Oral Arg. 42. Consequently, one is hard pressed to give credence to the plurality‘s suggestion that “[i]t is critical not to abandon” McMillan “at this late date.” Ante, at 567. Rather, it is imperative that the Court maintain absolute fidelity to the protections of the individual af-
Finally, before today, no one seriously believed that the Court‘s earlier decision in McMillan could coexist with the logical implications of the Court‘s later decisions in Apprendi and Jones. In both cases, the dissent said as much:
“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.” Apprendi, 530 U.S., at 533 (O‘CONNOR, J., dissenting).
Further supporting the essential incompatibility of Apprendi and McMillan, JUSTICE BREYER concurs in the judgment but not the entire opinion of the Court, recognizing that he “cannot easily distinguish Apprendi . . . from this case in terms of logic. For that reason, I cannot agree with the plurality‘s opinion insofar as it finds such a distinction.” Ante, at 569 (opinion concurring in part and concurring in judgment). This leaves only a minority of the Court embracing the distinction between McMillan and Apprendi that forms the basis of today‘s holding, and at least one Member explicitly continues to reject both Apprendi and Jones. Ante, at 569 (O‘CONNOR, J., concurring).
* * *
“Conscious of the likelihood that legislative decisions may have been made in reliance on McMillan,” in Apprendi, “we reserve[d] for another day the question whether stare decisis considerations preclude reconsideration of its narrower holding.” 530 U.S., at 487, n. 13. But that day has come, and adherence to stare decisis in this case would require infidelity to our constitutional values. Because, like most Members of this Court, I cannot logically distinguish the issue here from the principles underlying the Court‘s decision in Apprendi, I respectfully dissent.