Lead Opinion
delivered the opinion of the Court.
This case turns on whether the federal carjacking statute, 18 U. S. C. §2119, as it was when petitioner was charged, defined three distinct offenses or a single erime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict. We think the better reading is of three distinct offenses, particularly in light of the rule that any interpretive uncertainty should be resolved to avoid serious questions about the statute’s constitutionality.
t — 1
In December 1992, petitioner, Nathaniel Jones, and two others, Oliver and McMillan, held up two men, Mutanna and Mardaie. While Jones and McMillan went through the victims’ pockets, Oliver stuck his gun in Mutanna’s left ear, and later struck him on the head. Oliver and McMillan made their getaway in the Cadillac Jones had driven to the scene, while Jones forced Mardaie into Mutanna’s Honda and drove off after them. After stopping to put Mardaie out, Jones
A grand Jones and his two accomplices on two counts: using or aiding and abetting the use of a firearm during and in relation to a crime of violence, in violation of 18 U. S. C. § 924(c), and carjacking or aiding and abetting carjacking, in violation of 18 U. S. C. § 2119, which then read as follows:
''Whoever, possessing a firearm as 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
"(1) be fined under or than 15 years, or both,
“(2) if serious bodily injury (as of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
“(3) if prisoned for any number of years up to life, or both.” 18 U. S. C. §2119 (1988 ed., Supp. V).1
The indictment made no reference to the statute’s numbered subsections and charged none of the facts mentioned in the latter two, and at the arraignment the Magistrate Judge told
a new turn, however, with the arrival of the presentence report, which recommended that petitioner be sentenced to 25 years for the carjacking because one of the victims had suffered serious bodily injury. The report noted that Mutanna had testified that Oliver’s gun caused profuse bleeding in Mutanna’s ear, and that a physician had concluded that Mutanna had suffered a perforated eardrum, with some numbness and permanent hearing loss. Id., at 15-16;
of Appeals did not read §2119(2) as setting out an element of an independent offense.
Much, turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt. See, e. g., Hamling v. United States,
Like the Court of Appeals, the Government stresses that the statute’s numbered subsections do not stand alone in defining offenses, most of whose elements on anyone’s reckoning are set out in the statute’s opening paragraph. This integrated structure is said to suggest that the statute establishes only a single offense. To the same point, the Government argues that the numbered subsections come after the word “shall,” which often divides offense-defining provisions from those that specify sentences. Brief for United Statеs 15-18. While these points are sound enough as far as they go, they are far short of dispositive even on their own terms, whereas they are weakened here by a number of countervailing structural considerations. First, as petitioner notes, Reply Brief for Petitioner 1-2, if the shorter subsection (2) of § 2119 does not stand alone, neither does the section’s more voluminous first paragraph. In isolation, it would merely describe some very obnoxious behavior, leaving any reader assuming that it must be a crime, but never being actually told that it is. Only the numbered subsidiary provisions complete the thought. Section 2119 is thus unlike most offense-defining provisions in the federal criminal
These clues derived from ing of wording, like those the dissent holds up to distinguish the carjacking act both from the robbеry statutes upon which it was modeled and state aggravated robbery statutes, see post, at 260-262, 263-264 (opinion of Kennedy, X), turn out to move us only so far in our effort to infer congressional intent. The text alone does not justify any confident inference. But statutory drafting occurs against a backdrop not merely of structural conventions of varying significance, but of traditional treatment of certain categories of important facts, like the degree of injury to victims of crime, in relation to particular crimes. If a given statute is unclear about treating such a fact as element or penalty aggravator, it makes sense to look at what other statutes have done, on the fair assumption that Congress is unlikely to intend any radical departures from past practice without making a point of saying so.
When рressed unable to explain why Congress might have chosen one treatment of serious bodily harm or violence in defining two of the three offenses it used as its models for § 2119 and a different treatment in writing the carjacking statute itself, see Tr. of Oral Arg. 41-44, and we are unable to imagine a convincing reason ourselves. We thus think it fair to say that, as in the earlier robbery statutes, so in the carjacking statute, Congress probably intended serious bodily injury to be an element defining an aggravated form of the crime.
causation of serious bodily injury or harm as an element defining a distinct offense of aggravated robbery. See, e. g., Ala. Code § 13A-8-41(a)(2) (1994) (robbery in the first degree defined in part by the causing of “serious physical injury”);
Despite these indications and the equivocal structural clues, the Government suggests that a 1996 amendment supports its reading of the carjacking statute as previously enacted. In the Carjacking Correction Act of 1996,110 Stat. 3020, Congress provided that the term “serious bodily injury” in subsection (2) should include sexual abuse and aggravated sexual abuse as defined in §§2241 and 2242. The Government points to several statements in the 1996 amendment’s legislative history in which subsection (2) is described as providing a “penalty enhancement,” see, e. g., H. R. Rep. No. 104-787, pp. 2, 3 (1996), as showing that subsection (2)
Nor do we Court of Appeals is any more helpful to the Government. See
Ill
While we think the fairest reading of §2119 treats the fact of serious bodily harm as an element, not a mere enhancement, we recognize the possibility of the other view. Any doubt that might be prompted by the arguments for that other reading should, however, be resolved against it under the rule, repeatedly affirmed, that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co.,
As the Government us would be open to constitutional doubt in light of a series of cases over the past quarter century, dealing with due process and the guarantee of trial by jury. The first of these, Mullaney v. Wilbur,
Two Terms later, in Patterson v. New York, supra, the Court ruled on a Winship challenge to a scheme defining murder as causing death with intent, subject to an affirmative defense of extreme emotional disturbance for which there was a reasonable explanation.
tions about the charging obligation and the requisite quantum of proof, were succeeded by McMillan v. Pennsylvania,
McMillan is notable not only for question of due process requirements for factfinding that raises a sentencing range, but also for disposing of a claim that the Pennsylvania law violated the Sixth Amendment right to jury trial as well. The petitioner’s basic argument was for a right to jury determination of all “ultimate facts concerning the offense committed,” id., at 93, and although the Court disposed of this by reference back to its due process discussion, that discussion had broached the potential constitutional significance of factfinding that raised the sentencing ceiling.
Process Clause of the Fourteenth Amendment and the jury guarantee of the Sixth: when a jury determination has not been waived, may judicial factfinding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime?
The terms of the carjacking statute illustrate very well what is at stake. If serious bodily injury were merely a sentencing factor under §2119(2) (increasing the authorized penalty by two thirds, to 25 years), then death would presumably be nothing more than a sentencing factor under subsection (3) (increasing the penalty range to life). If a potential penalty might rise from 15 years to life on a rionjury determination, the jury’s role would correspondingly shrink
tional doubt rule requires if the history bearing on the Framers' understanding of the Sixth Amendment principle demonstrated an accepted tolerance for exclusively judicial factfinding to peg penalty limits. But such is not the history. To be sure, the scholarship of which we are aware does not show that a question exactly like this one was ever raised and resolved in the period before the framing. On the other hand, several studies demonstrate that on a general level the tension between jury powers and powеrs exclusively judicial would likely have been very much to the fore in the Framers’ conception of the jury right.
The fact that we point to no exemplifying the distinction between elements and facts that elevate sentencing ranges is unsurprising, given the breadth of judicial discretion over fines and corporal punishment in less important, misdemeanor cases, see, e. g., J. Baker, Introduction to English Legal History 584 (3d ed. 1990); 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (hereinafter Blackstone); Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982), and the norm of fixed sentences in cases of felony, see Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700-1900, pp. 36-37 (A. Sehioppa ed.
Even in this system, however, competition developed between judge and jury over the real significance of their respective roles. The potential or inevitable severity of sentences was indirectly checked by juries’ assertions of a mitigating power when the circumstances of a prosecution pointed to political abuse of the criminal process or endowed a criminal conviction with particularly sanguinary consequences. This power to thwart Parliament and Crown took the form not only of fiat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses, manifestations of what Blaekstone described as “pious perjury” on the jurors’ part. 4 Blaekstone 238-239.
Countervailing measures to diminish the juries’ power were naturally forthcoming, with ensuing responses both in the mother country and in the Colonies that validate, though they do not answer, the question that the Government’s position here would raise. One such move on the Government’s side was a parliamentary practice of barring the right to jury trial when defining new, statutory offenses. See, e. g., Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 925-930 (1926); 4 Blackstone 277-279. This practice extended to violations of the Stamp Act and recurred in statutes regulating imperial trade, see C. Ubbelohde, Vice-Admiralty Courts and the American Revolution 16-21,74-80 (1960); Wroth, The Massachusetts Vice Admiralty Court, in
A second response to the juries’ power to occurred in attempts to confine jury determinations in libel eases to findings of fact, leaving it to the judges to apply the law and, thus, to limit the opportunities for juror nullification. Ultimately, of course, the attempt failed, the juries’ victory being embodied in Fox’s Libel Act in Britain, see generally T. Green, Verdict According to Conscience 318-355 (1985), and exemplified in John Peter Zenger’s acquittal in the Colonies, see, e. g., J. Rakove, Original Meanings 300-302 (1996). It is significant here not merely that the denouement of the restrictive efforts left the juries in control, but
In sum, there is reason to suppose that cumstances, however peculiar their details to our time and place, the relative diminution of the jury’s significance would merit Sixth Amendment concern. 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. The point is simply that diminishment of the jury’s significance by removing control over facts determining a statutory sentencing range would resonate with the claims of earlier controversies, to raise a genuine Sixth Amendment issue not yet settled.
Our position that issues are by no means by the boards calls for a word about several cases that followed McMillan. Almendarez-Torres v. United States,
Spaziano was followed a years ida,
dealt with an argument only slightly less expansive than the one in Spaziano, that every finding underlying a sentencing determination must be made by a jury. Although the Court’s rejection of that position cited Hildwin, it characterized the nature of capital sentencing by quoting from Poland v. Arizona,
In sum, the Government’s view would raise serious constitutional questions on which precedent is not dispositive. Any doubt on the issue of statutory construction is hence to be resolved in favor of avoiding those questions.
It is so ordered.
Notes
Congress amended the statute in 1994 and 1996. In the Violent Crime Control and Law Enforcement Act of 1994, it deleted the phrase in the first paragraph concerning firearm possession and replaced it with the phrase, "with the intent to cause death or serious bodily harm.” §60003(a)(14), 108 Stat. 1970. It also made death a possible punishment for offensеs committed under subsection (3). Ibid. In the Carjacking Correction Act of 1996, Congress specified that the term “serious bodily injury” in subsection (2) includes certain sexual assaults. §2, 110 Stat. 3020.
The Ninth Circuit vacated another portion of the District Court’s sentencing decision and remanded. United States v. Oliver,
See n. 4, infra.
Legislative history identifies three such models. See H. R. Rep. No. 102-851, pt. 1, p. 17 (1992) (“The definition of the offense tracks the language used in other federal robbery statutes (18 U. S. C. §§ 2111, 2113, 2118)”). One of them, 18 U. S. C. §2111 (robbery in areas of federal maritime or territorial jurisdiction), lacks aggravated forms of the offense altogether, and thus is not on point here.
The dissent, in passing, questions our view that § 2118(a) makes the causing of significant bodily injury an element of the offense defined by that section, see post, at 261-262, but it offers no reason to doubt our reading. Given that § 2118(a) establishes only one maximum punishment, and that it makes eligibility for such punishment contingent on the establishment of at least one of three facts, one of which is the causing of death or significant bodily injury, we think our reading is the only sensible one.
The dissent repeatedly chides us for failing to state precisely enough the principle animating our view that the carjacking statute, as construed by the Government, may violate the Constitution. See -post, at 254, 266, 277. The preceding paragraph in the text expresses that principle plainly enough, and we restate it here: under the Due Process Clause of the Fifth Amendment and the notice and jwy trial guarantees of the Sixth Amеndment, 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. Because our prior cases suggest rather than establish this principle, our concern about the Government’s reading of the statute rises only to the level of doubt, not certainty.
Contrary to the dissent’s suggestion, the constitutional proposition that drives our concern in no way “califs] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature.” Post, at 270 (internal quotation marks omitted). The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish to characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability. The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.
For English practice, see, e.g., Langbein, Shaping the Eighteenth-Century Criminal Trial, 50 U. Chi. L. Rev. 1, 22, 52-54 (1983); Green, The English Criminal Trial Jury, in The Trial Jury in England, France, Germany 1700-1900, pp. 41, 48-49 (A. Sehioppa ed. 1987). For Colonial American practice, see, e. g., J. Goebell & T. Naughton, Law Enforcement in Colonial New York 673-674 (1944); State v. Bennet, 3 Brevard 515 (S. C. 1815).
The principle that the jury were the judges of fact and the judges the deciders of law was stated as an established principle as early as 1628 by Coke. See 1 E. Coke, Institutes of the Laws of England 155b (1628) (“ad questionem faeti non respondent judices; ad questionem juris non respondent juratores”). See also Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany, supra, at 84, n. 60. Even the traditional, jury-restrictive view of libel law recognized the jury’s authority over matters of fact. See, e. g., King v. Francklin, 17 How. St. Tr. 626, 672 (K. B. 1731) (“These [publications and the words having the meaning ascribed to them] are the two matters of fact that come under your consideration; and of which you are proper judges. But then there is a third thing, to wit, Whether these defamatory expressions amount to a libel or not? This does not belong to the office of the jury, but to the office of the Court; because it is a matter of law, and not of fact; and of which the Court are the only proper judges”). Thus most participants in the struggle over jury autonomy in seditious libel cases viewed the debate as concerned with the extent of the jury’s law-finding power, not its unquestioned role as the determiner of factual issues. See T. Green, Verdict According to Conscience 318-319 (1985). Some influential jurists suggested that it might also be seen as a struggle over the jury’s right to find a particular fact, namely, the required criminal intent. See 10 W. Holdsworth, History of English Law 680-683 (1938).
Blackstone 354 (jurors could choose to stop at special verdicts if they wished).
The dissent insists that Almendarez-Torres “controls the question before us,” post, at 266, but in substantiating that assertion, it tellingly relies more heavily on the claims of the Almendarez-Torres dissenters than on the statements of the Almendarez-Torres majority. Neither source bears out the current dissent’s conclusion. If, as the dissenters in this case suggest, Almendarez-Torres did not turn on the particular “sentencing factor at issue” there,
In tones of alarm, the dissent suggests, see post, at 254,271, that our decision will unsettle the efforts of many States to bring greater consistency to their sentencing practices through provisions for determinate sentences and statutorily or administratively established guidelines governing sentencing decisions. The dissent’s concern is misplaced for several reasons. Most immediately, our decision today does not announce any new principle of constitutional law, but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century. But even
Concurrence Opinion
concurring.
Like Justice Scalia, see post, at 253,1 am convinced that it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range cf penalties to which a criminal defendant is exposed.
Dissenting Opinion
with whom The Chief Justice, Justice O’Connor, and Justice Breyer join, dissenting.
The question presented is whether the statute, prohibiting the taking of a motor vehicle from the person or presence of another by force and violence or by intimidation, contains in the first paragraph a complete definition of the offense, with all of the elements of the crime Congress intended to codify. 18 U. S. C. §2119. In my view, shared by every Court of Appeals to have addressed the issue, it does. The Court adopts a contrary, strained reading according to which the single statutory section prohibits three distinct offenses.
Had it involved simply a question tion, the majority opinion would not have been cause for much concern. Questions of statutory interpretation can be close but nonetheless routine. That should have been so in today’s ease. The Court, however, is unwilling to rest its opinion on textual analysis. Rather, to bolster its statutory interpretation, the Court raises the specter of “ 'grave and doubtful constitutional questions,’ ” ante, 'at 239, without an adequate explanation of the origins, contours, or consequences of its constitutional concerns. The Court’s reliance on the so-called constitutional doubt rule is inconsistent with usual principles of stare decisis and contradicts the approach followed just last Term in Almendarez-Torres v. United States,
hH
Criminal laws proscribe certain conduct and specify punishment for transgressions. A person commits a crime when his or her conduct violates the essential parts of the defined offense, which we refer to as its elements. As a general rule, each element of a charged crime must be set forth in an indictment, Hamling v. United States,
clauses (1M3) of §2119 set forth sentencing factors or define distinct criminal offenses, our task is to “look to the statute before us and ask what Congress intended.” Ibid. The statute is as follows:
“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
*256 “(1) be fined under this title or imprisoned not more than 15 years, or both,
“(2) if serious bodily injury (as of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
“(3) if death results, be fined prisoned for any number of years up to life, or both.” 18 U. S. C. §2119 (1988 ed., Supp. V).
As the Court is quite fair to acknowledge, the first reading or initial look of the statute suggests that clauses (l)-(3) are sentencing provisions. Ante, at 232. In my view, this conclusion survives further and meticulous examination.
elements typical of a robbery-type offense. For all ordinary purposes, this is a complete crime. If, for instance, there were only a single punishment, as provided in clause (1), I think there could be no complaint with jury instructions drawn from the first paragraph of §2119, without reference to the punishment set forth in clausе (1). The design of the statute yields the conclusion that the following numbered provisions do not convert each of the clauses into additional elements. These are punishment provisions directed to the sentencing judge alone. To be sure, the drafting could have been more clear, and my proffered interpretation would have been better implemented, if the word “shall” at the end of the first paragraph had been followed by a verb form (e. g., “be punished”) and a period. Even as written, though, the statute sets forth a complete crime in the first paragraph. It is difficult to see why Congress would double back and insert additional elements for the jury’s consideration in clauses (2) and (3). The more likely explanation is that Congress set forth the offense first and the punishment second, without intending to combine the two.
Unlike the Court, I am this commonsense reading is at odds with congressional intent. As to the substance of clauses (2) and (3), the harm
In addition, common patterns of statutory drafting. For example, in one established statutory model, Congress defines the elements of an offense in an initial paragraph ending with the phrase “shall be punished as provided in” a separate subsection. The subsection provides for graded sentencing ranges, predicated upon specific findings (such as serious bodily injury or death). See, e. g., 8 U. S. C. § 1324(a)(1). Section 2119 follows a similar logic. It is true that clauses (1)-(3) are not separated into a separate subsеction, thus giving rise to the textual problem we must resolve. Congress does not always separate sentencing factors into separate subsections, however. See, e. g., 18 U. S. C. § 1347 (1994 ed., Supp. Ill) (health-care fraud; enhanced penalties if the violation “results in serious bodily injury” or “results in death”). As with statutes like §1324, the structure of §2119 suggests a design which defines the offense first and the punishment afterward.
In addition, there is some significance in the use of the active voice in the main paragraph and the passive voice in clauses (2) and (3) of §2119. In the more common practice, criminal statutes use the active voice to define prohibited conduct. See, e. g., 18 U. S. C. § 1116 (1994 ed., Supp. III) (“[wjhoever kills or attempts to kill”); §2114 (“assaults,” “robs or attempts to rob,” “receives, possesses, conceals, or disposes”); Tex. Penal Code Ann. §§ 29.03(a)(1), (2) (1994) (aggravated robbery; “causes serious bodily injury,” or “uses or exhibits a deadly weapon”); cf. 18 U. S. C. § 248(b) (setting forth, as sentencing factors, “if bodily injury results,” and “if death results”); United States Sentencing
are not absolute rules. Congress uses active language in phrasing sentencing factors in some instances. See, e.g., 18 U. S. C. § 2262(b)(3) (1994 ed., Supp. Ill) (“if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense”). Nevertheless, the more customary drafting conventions support, rather than contradict, the interpretation that §2119 sets forth but one offense.
The Court offers specific arguments regarding these background considerations, each deserving of consideration and response.
First, as its principal argument, the Court cites the three federal robbery statutes on which (according to the legislative history) §2119 was modeled. As the Court acknowledges, however, one of those statutes, 18 U. S. C. §2111, does not refer to “serious bodily injury” or “death” “resulting]” at all. Because of the omission, the Court deems this statute irrelevant for our purposes. Yet the Committee Report cited by the Court states that “ ‘[t]he definition of the offense’” in §2119 “Tracks the language used in other federal robbery statutes’ ” including § 2111. Ante, at 235, n. 4 (quoting H. R. Rep. No. 102-851, pt. 1, p. 17 (1992)). The definition of the offense in § 2119 includes “tak[ing]” or “attempt-ting]” to take a motor vehicle, “from the person or presence of another,” “by force and violence or by intimidation.” This is altogether consistent with the definition of the offense in §2111, which provides in part that “[wjhoever... by force and violence, or by intimidation, takes or attempts to take from the person or presence of another” something of value “shall be imprisoned.” Of course §§2111 and 2119 each include at least one element the other does not (e. g., “within the special maritime and territorial jurisdiction of the United States” in the former, “transported, shipped, or received in interstate or foreign commerce” in the latter). Those ele
Passing over §2111, support its reading of §2119. I disagrеe. Section 2113, captioned “Bank robbery and incidental crimes,” consists of eight subsections. The last three are definitional and irrelevant to the question at hand. The first subsection, subsection (a), proscribes the crime of bank robbery in language that tracks the definition of the offense in §2119, i. e., “taking], or attempting] to take,” something of value “from the person or presence of another,” “by force and violence, or by intimidation.” Subsection (b) proceeds to define the offense of bank larceny and is cast in different terms — as is natural in light of the different conduct proscribed. Subsections (d) and (e) of §2113, the two subsections relied upon by the Court, provide as follows:
“(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.
“(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.”
With respect to §2118, the Court asserts without citation to authority that the phrase “another person . . . suffered significant bodily injury” in subsection (a)(3) is an element of the оffense. Ante, at 235-236. Even assuming the Court is correct on the point, however, the differences in structure between that provision and §2119 show them not to be com
In short, even indulging the eral robbery statutes do not support the conclusion that § 2119 contains three substantive offenses. Rather, all four statutes employ similar language to define the elements of a basic robbery-type offense. It is in this sense that §2119 is modeled on §§2111, 2113, and 2118.
The Court next on statute, 18 U. S. C. § 1365(a), as support for its reading of §2119. It is indeed true, as the Court suggests, that the structure and phrasing of § 1365(a) is similar to the carjacking statute. However, neither the Court nor, my research indicates, any Court of Appeals has held that § 1365(a) creates multiple offenses. The only case cited for the proposition that “the Courts of Appeals treat the statute ... as defining basic and aggravated offenses,” ante, at 234, establishes nothing of the kind. There, the Court of Appeals did no more than recite that the defendant had been charged and convicted on multiple counts of product tampering, under three subsections of § 1365(a). United States v. Meling,
The Court’s final justification on state practice. Of course, the Court cannot argue that States do not take factors like serious bodily injury into account at sentencing; as discussed above, they do. Instead, the Court says many States have created a distinct offense of aggravated robbery, requiring proof of serious bodily in
The persuasive force of the Court’s state-law citations is further undercut by the structural differences between those laws and §2119. Ten of the thirteen statutes cited by the Court follow the same pattern. One statutory section sets forth the elements of the basic robbery offense. Another section (captioned “Aggravated robbery” or “Robbery in the first degree”) incorporates the basic robbery offense (either by explicit cross-reference or by obvious implication), adds the bodily or physical injury element (in the active voice), and then provides that the aggravated crime is subject to a higher penalty set forth elsewhere (e. g., “a class A felony”). Two of the remaining three statutes, N. Y. Penal Law § 160.15 (McKinney 1988), and Ky. Rev. Stat. Ann. § 515.020 (Michie 1990), deviate from this pаttern in only minor respects while the third, N. H. Rev. Stat. Ann. §636:1 (1996), has a singular structure.
Had Congress wished to emulate this state practice in detail, one might have expected it to structure §2119 in a similar manner to the majority model. Cf. 18 U. S. C. §§2113(e), (d). It did not do so. This suggests to me either (i) that Congress chose a different structure than utilized by the States in order to show its intent to treat “serious bodily injury” as a sentencing factor, or (ii) that Congress simply did not concentrate on state practice in deciding whether “se
II
Although the Court, in my view, errs in its reading of §2119 as a simple matter of statutory construction, of far greater concern is its constitutional discussion. In order to inject the rule of constitutional doubt into the case, the Court treats the relevant line of authorities from Winship to Almendarez-Torres as if it had been the Court’s purpose to write them at odds with each other, not to produce a coherent body of case law interpreting the relevant constitutional provisions. This attempt to create instability is neither a propel’ use of the rule of constitutional doubt nor a persuasive reading of our precedents. We have settled more than the Court’s opinion says.
In re Winship,
Nonetheless, wake of Winship, Mullaney v. Wilbur,
In Patterson, the Court confronted a state rule placing on the defendant the burden of establishing extreme emotional disturbance as an affirmative defense to murder. As today’s majority opinion recognizes, Patterson stands for the proposition that the State has considerable leeway in determining which factors shall be included as elements of its crimes. We determined that New York was permitted to place the burden of proving the affirmative defense on defendants because “nothing was presumed or implied against” them. Id., at 216.
In McMillan v. Pennsylvania,
the Court chooses to rely on language from McMillan to create a doubt where there should be none. Ante, at 242, Yet any uncertainty on this score ought to have been put to rest by our decision last Term in Almendarez-Torres. To say otherwise, the majority must strive to limit Almendarez-Torres, just as it must struggle
As an initial matter, Almendarez-Torres the constitutional doubt methodology employed by the Court today is incorrect. It teaches that the constitutional doubt canon of construction is applicable only if the statute at issue is “genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a ‘fair’ one.”
Not only is the proper here, but there is less reason, in light of Almendarez-Torres itself, to question the constitutionality of the statute as construed by the Court of Appeals. The insubstantiality of the Court’s constitutional concern is indicated by its quite summary reference to the principle of constitutional law the statute might offend. The Court puts the argument this way: “[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.” Ante, at 243, n. 6. It suggests the carjacking statute violates this principle because absent a finding of serious bodily injury, a defendant may be sentenced to a maximum of 15 years’ imprisonment and, absent a finding of death, he may be sentenced to a maximum of 25 years’ imprisonment.
If the Court is to be taken at its word, Congress could comply with this principle by making only minor changes of phraseology that would leave the statutory scheme, for practical purposes, unchanged. Congress could leave the initial paragraph of §2119 intact, and provide that one who commits the conduct described there shall “be imprisoned for any number of years up to life.” It could then add that “if the sentencing judge determines that no death resulted, one convicted under this section shall be imprisoned not more than 25 years” and “if the sentencing judge determines that no serious bodily injury resulted, one convicted under this section shall be imprisoned not more than 15 years.” The practical result would be the same as the current version of §2119 (as construed by the Court of Appeals): The jury makes the requisite findings under the initial paragraph, and the court itself sentences the defendant within one of the prescribed ranges based on the judge’s own determination whether serious bodily injury or death resulted.
not tell us whether this version of the statute would pass constitutional muster. If so, the Court’s principle amounts to nothing more than chastising Congress for failing to use the approved phrasing in expressing its intent as to how carjackers should be punished. No constitutional values are served by so formalistic an approach, while its constitutional costs in statutes struck down or, as today, misconstrued, are real.
on other hand, a rephrased §2119 would still violate the Court’s underlying constitutional principle* the Court ought to explain how it would determine which sentencing schemes cross the constitutional line. For example, a statute that sets a maximum penalty and then provides detailed sentencing criteria to be applied by a sentencing judge (along
In any event, the founded. In Almendarez-Torres, we squarely rejected the petitioner’s argument that “any significant increase in a statutory maximum sentence would trigger a constitutional ‘elements’ requirement”; as we said, the Constitution “does not impose that requirement.”
The Court suggests Torres is distinguishable, neither of which is persuasive. First, the Court suggests that this ease is “concerned with the Sixth Amendment right to jury trial and not alone the
The Court has not suggested in its previous opinions, moreover, that there is a difference, in the context relevant here, between, on the one hand, a right to a jury determination, and, on the other, a right to notice by indictment and to a determination based upon proof by the prosecution beyond a reasonable doubt. The Court offers no reason why the concept of an element of a crime should mean one thing for one inquiry and something else for another. There would be little to guide us in formulating a standard to differentiate between elements of a crime for purposes of indictment, jury trial, and proof beyond a reasonable doubt. Inviting such confusion is a curious way to safeguard the important procedural rights of criminal defendants.
Second, the Court is eager to find controlling significance in the fact that the statute at issue in Almendarez-Torres made recidivism a sentencing factor, while the sentencing factor at issue here is serious bodily injury. This is not a difference of constitutional dimension, and Almendarez-Torres does not say otherwise. It is true that our statutory analysis was informed in substantial measure by the fact that recidivism is a common sentencing factor. Id., at 230. In our constitutional analysis we invoked the long history of using recidivism as a basis for increasing an offender’s sentence to illustrate the novel and anomalous character of the petitioner’s proposed constitutional rule — i. e., that under McMillan v. Pennsylvania any factor that increases the maximum penalty for a crime must be deemed an element of the offense. We proceeded to reject that rule. Almendarez-Torres v. United States,
The constitutional portion of jected the argument that constitutional concerns were raised by a “different ‘tradition’ — that of courts having treated recidivism as an element of the related сrime.” Id., at 246. We found this argument unconvincing because “any such tradition is not uniform.” Ibid. Of course, the same is true with respect to the sentencing factors at issue here. See supra, at 257-258. In sum, “there is no rational basis for making recidivism an exception.”
If the Court deems its new parture from stare decisis, it does not make the case. There is no .support for the view that Almendarez-Torres was based on a historical misunderstanding or misinterpretation. By the Court’s own submission, its historical discussion demonstrates no more than that “the tension between jury powers and powers exclusively judicial” would probably and generally have informed the Framers’ conception of the jury right. Ante, at 244. That must be correct, but it does not call into question the principle that “ ‘[t]he definition of the elements of a criminal offense is entrusted to the legislature.’ ” Staples v. United States,
The on the instant case if §2119 disclosed the intent to serve the real objective of punishing (without constitutional safeguards) those who caused serious bodily harm, rather than to prevent the underlying conduct of carjacking. See Almendarez-Torres v. United States, supra, at 243, 246. No
The rationale of the Court’s constitutional doubt holding makes it difficult to predict the full consequences of today’s holding, but it is likely that it will cause disruption and uncertainty in the sentencing systems of the States. Sentencing is one of the most difficult tasks in the enforcement of the criminal law. In seeking to bring more order and consistency to the process, some States have sought to move from a system of indeterminate sentencing or a grant of vast discretion to the trial judge to a regime in which there are more uniform penalties, prescribed by the legislature. See A. Campbell, Law of Sentencing §§ 1:3, 4:6-4:8 (2d ed. 1991). These States should not be confronted with an unexpected rule mandating that what were once factors bearing upon the sentence now must be treated as offense elements for determination by the jury. This is especially so when, as here, what is at issue is not the conduct of the defendant, but the consequences of a completed criminal act.
result of today’s decision is the needless doubt the Court’s analysis casts upon our cases involving capital sentencing. For example, while in Walton v. Arizona,
In distinguishing this line of precedent, Walton did not “squarely fac[e]” the key constitutional question “implicated by the Government’s position on the meaning of §2119(2).” Ante, at 251. The implication is clear. Reexamination of this area of our capital jurisprudence can be expected.
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The Court misreads §2119 and seeks to create constitutional doubt where there is none. In my view, Almendarez-Torres controls this ease. I would hold § 2119 as interpreted by the Court of Appeals constitutional, and I dissent from the opinion and judgment of the Court.
Concurrence Opinion
concurring.
In dissenting in Almendarez-Torres v. United States,