*1 McMILLAN al. PENNSYLVANIA et Argued No. 85-215. March 1986 Decided June *2 Rehnquist, J., opinion Court, BurgeR, delivered J., White, Powell, JJ., O’Connor, joined. Marshall, J., C. dissenting opinion, Blackmun, JJ., joined, filed which Brennan and p. Stevens, J., opinion, post, dissenting post, p. 93. filed a 95. argued petitioners. Leonard N. Sosnov the cause for Packet, him With on briefs were John David W. Rudovsky, and Gerald A. Stein. Cooperstein argued respondent.

Steven J. cause McLaughlin him the were Barthold, With on brief Gaele Brumberg, Henson, Harriet R. Eric B. and William G. Chadwick, Jr. opinion of the Court. delivered Rehnquist

Justice constitutionality, granted We certiorari consider Due the Fourteenth under the Process Clause of Amendment guarantee jury and the trial Sixth Amendment, of Pennsylvania’s Mandatory Sentencing Minimum Act, 42 Pa. (the (1982) Act). §9712 Cons. Stat.

I anyone provides adopted in 1982. It The Act was subject felonies is to a man- of certain enumerated convicted years’ imprisonment datory if the minimum sentence of five sentencing judge by preponderance evidence, finds, during “visibly possessed person firearm” the com- that the sentencing hearing, judge of the offense. At the mission introduced at trial and to consider the evidence is directed any either the defendant evidence offered additional 9712(b).1 operates The Act to divest the Commonwealth. provides in full: Section — “(a) court of Mandatory Any person who is convicted sentence. *3 voluntary degree, manslaugh- of murder of the third this Commonwealth intercourse, robbery in 18 ter, rape, involuntary as defined deviate sexual (ii) (iii) 3701(a)(l)(i), (relating robbery), aggravated § assault or to Pa. C. S. assault) 2702(a)(1) aggravated § or (relating Pa. to as defined C. S. crimes, any attempt of to commit of these kidnapping, or who is convicted shall, visibly during the commission of the person possessed if a firearm the years offense, minimum sentence of at least five of total be sentenced to a any provision this title or other stat- notwithstanding other of confinement contrary. to the ute “(b) an ele- sentencing. —Provisions of this section shall Proof required the defendant shall not be the crime and notice thereof to ment of conviction, notice of the Commonwealth’s intention prior but reasonable to provided after conviction and before proceed this section shall be to under at sen- of this section shall be determined sentencing. applicability any presented at trial and shall evidence tencing. The court shall consider present any opportunity an to the Commonwealth and the defendant afford determine, by preponderance a of necessary evidence and shall additional evidence, applicable. if this section is the “(c) authority sentencing. shall be no Authority of court in —There any applicable to this section is any impose on an offender which court to (a) place for in subsection or to such offender provided than lesser sentence Nothing prevent suspend this section shall probation to sentence. on provided imposing greater a sentence than that sentencing from the court by Sentencing guidelines promulgated in this section. mandatory sentences supersede the Sentencing on shall not Commission in this section. provided “(d) apply to refuses Appeal by sentencing a court Commonwealth. —If right have the applicable, shall where the Commonwealth

this section of impose any of discretion sentence less than judge it does not a years underlying felony; five authorize in excess of that allowed for that sentence otherwise offense. petitioner of, Each was convicted other one among things, §of enumerated felonies. Petitioner who McMillan, 9712’s his victim the buttock after an a right argument shot over debt, was convicted a of assault. Peti- by jury aggravated and, tioner Peterson shot and killed her husband a following was trial, voluntary manslaughter. bench convicted Peti- tioner Dennison shot and wounded an seriously acquaintance a and was convicted assault after bench trial. aggravated store Petitioner Smalls robbed seafood follow- gunpoint; trial he In robbery. bench was convicted each case ing that at sentencing the Commonwealth notice it would gave under the Act. No 9712 proceed hearing held, seek was however, sentencing because each of the before judges whom found the Act each appeared unconstitutional; petitioners a lesser sentence than that imposed required by Act.2 appellate sentencing appellate review of action of court. The court sentencing sentence remand case to shall vacate the court for imposition a sentence in accordance this if it finds with section that the imposed was in violation of this section. sentence — “(e) As used in this section Definition firearm. ‘firearm’ means weapon (including gun) designed may readily or is starter will to or expel projectile explosive be converted to the action or the ex- *4 pansion gas therein.” 2 years aggravated McMillan to a term 3 to 10 for was sentenced as sault; possession crime, he was also convicted of of instruments of 18 Pa. (1982), he Stat. 2503 for which received a concurrent term Cons. of 27s years years. 1 6 manslaughter 5 Peterson received a sentence of on the possession charge, as as a concurrent term of 6 to 18 months for well crime. Dennison received concurrent instruments of sentences of ll’A aggravated possession 23 months and for assault instruments of crime. 8-year robbery was 4- to for Smalls sentenced to concurrent terms and he conspiracy; violating criminal was also convicted of the Uniform Fire seq., Act, et endangerment, §2705, §6101 arms reckless he and which years years respec 1 2 was sentenced to concurrent terms 2'Ato and to tively. suspended possession He received sentence for of instruments of crime. Supreme appealed to the

The Commonwealth all four cases appeals Pennsylvania. consolidated the Court of That court unanimously that the Act is consistent with and concluded Wright, process. 25, v. 508 Pa. 494 A. due Commonwealth (1985). argument principal was that visi- 2d 354 Petitioners’ possession an element of the crimes for ble of a firearm is proved they being and thus must be which were sentenced Winship, In re 397 U. a reasonable doubt under S. (1975). (1970), Mullaney Wilbur, U. S. 684 v. expressly provided observing legislature had After that the possession not be an element of the crime,” that visible “shall §9712(b), the reasonable-doubt standard “‘has al- and that ” ways dependent on how state defines the offense’ been quoting question, 494 A. at Pa., 34, 2d, 359, Patterson (1977), 197, New 432 U. n. 12 the court re- York, v. S. effectively jected the claim that the Act creates a new set of upgraded possession felonies of which visible is an “element.” play only Section which comes into after the defendant felony, provides neither has been convicted of an enumerated felony for an in the maximum sentence for such nor increase merely requires separate it a minimum sentence; authorizes years, sentence of five be more or less than the might imposed. minimum sentence that otherwise have been Mullaney, Winship, Patterson, And consistent with presumption as to essential fact and Act “creates no way relieve[s] places “in it no defendant”; no burden on the proving guilt.” Pa., of its burden 494 A. at 359. 2d, that even if Petitioners also contended visible process requires offense, due more than not an element of Supreme proof by preponderance of the evidence. The holding Pennsylvania rejected this claim as well, Court of process preponderance under standard satisfies due approach Addington S. 418 Texas, out in U. set deterring the ille- interest Commonwealth’s gal punishment use for those who of firearms and sure *5 is as as convicted guns compelling commit crimes with contervailing liberty interest, which has been defendant’s Moreover, verdict. substantially guilty diminished § 9712 risk of error in the context of a proceeding compara- straightforward is a tively slight possession simple, —visible balance, susceptible objective issue of On the court proof. concluded, and the it is reasonable for defendant Com- risk error. monwealth to share The court equally vacated sentences and remanded for petitioners’ sentencing to the Act. One concurred and filed a pursuant justice sepa- rate opinion. (1985), 474 U. S. 815 and now granted certiorari,

We affirm.

h—I I—I that Petitioners under the Due Process as argue Clause Winship Mullaney, if a State wants to interpreted visible of a firearm it must undertake the punish beyond burden fact reasonable doubt. We proving “the disagree. Winship held that Due Process Clause the accused against upon conviction protects except proof every necessary a reasonable doubt of fact to consti- beyond charged.” tute the with which he is 397 U. 364. S., crime Mullaney Wilbur, In we held the Due Process Clause beyond doubt “requires prove reasonable absence of the heat on provocation sudden passion when the issue in a homicide case.” properly presented in Patterson But S., at 704. the claim rejected U. we punishment” that whenever a State links the “severity absence of an identified fact” the “the or State must presence a reasonable doubt. S., fact U. prove (State need id., see also at 207 214; “prove beyond a rea- the existence or every fact, sonable doubt nonexistence of it is as an willing recognize exculpatory mitigat- degree circumstance culpability or ing affecting In severity punishment”). upheld we particular, a due New law on process challenge placing York’s against *6 proving charged murder the burden of defendants with of extreme emotional disturbance. affirmative defense determining in must be what facts Patterson stressed legislature’s proved beyond defi- a reasonable doubt the state usually dispositive: the elements of the offense is nition of prove requires “[T]he Due Process Clause beyond included in the a reasonable doubt all of the elements charged.” of which the defendant is definition of offense added). obviously (emphasis “there are at 210 While Id., go beyond in constitutional limits States applicability regard,” “[t]he of the reasonable- ibid., this always dependent on how a . . . has been doubt standard charged any given case,” defines the offense that State premise rests on a that bears n. 12. Patterson id., repeating here: saying preventing dealing goes

“It without than much more the business of the States with crime is Irvine Government, California, of the Federal v. it is (1954)(plurality opinion), and that we 347 U. S. lightly in- the Constitution so as to should not construe justice by upon the administration of the individual trude normally Among things, other it is ‘within the States. regulate procedures power under which of the State to including produc- the burden of out, its laws are carried ing persuasion,’ and its deci- evidence and the burden regard subject proscription under sion this is not principle ‘it offends some the Due Process Clause unless justice conscience of our so rooted the traditions and Speiser people Ran- fundamental.’ as to be ranked as (1958).” (cita- Id., at 201-202 357 U. S. dall, omitted). tions present Patter- case is controlled

We believe that the subject, pronouncement on rather our most recent this son, Supreme Pennsylvania by Mullaney. Court of than As Legislature expressly pro- has observed, the element of of a firearm is not an vided that visible mandatory sentencing the crimes enumerated statute, 9712(b), sentencing but instead is a factor that comes into play only guilty after the defendant has been found of one of those crimes a reasonable doubt. Indeed, the ele- permis- ments of the enumerated offenses, like the maximum penalties long sible offenses, those were established be- Mandatory Sentencing passed.3 fore the Minimum Act was *7 possession might While visible well have been included as an Pennsylvania element of the enumerated offenses, chose to redefine those in offenses order to so include it, and Patter-

son teaches that we should hesitate to conclude that due process pursuing bars the State from its chosen course defining prescribing penalties. area of crimes and recognized, As Patterson of course, there are constitu- power regard; tional limits the State’s in this in certain Winship’s require- limited circumstances reasonable-doubt applies formally ment to facts not identified as elements of charged. argue Pennsylvania the offense Petitioners gone beyond provision has those limits and that its formal that visible is not an element of the crime is there- fore of no effect. We do not think so. While we have never attempted precisely to define the constitutional limits noted process i. Patterson, e., the extent to which due forbids proof the reallocation or reduction of burdens of in criminal today, persuaded by cases, and do not do so we are several Pennsylvania’s Mandatory Sentencing factors that Minimum Act does not exceed those limits. plainly transgress

We note first that the Act does not expressly Responding limits set out Patterson. to the permit power concern that its rule would States unbridled redefine crimes to the detriment of criminal defendants, proposition Patterson Court advanced the unremarkable 3The elements of the enumerated offenses were established in essen tially present their form in 1972. See 1972 Pa. Laws No. amended, compiled, and codified the “Crimes Code.” The Mandatory Sentencing passed Minimum Act was in 1982.

87 the Due Process Clause States from precludes discarding of innocence: presumption

“ is not within the province ‘[I]t of a to declare legislature an individual or guilty of a crime.’ presumptively guilty Sugar Rfg. McFarland v. American Co., 241 U. S. The legislature ‘validly cannot command that of an finding indictment, mere of the iden- proof of the tity accused, should create a presumption Tot v. existence of all the facts essential guilt.’ States, United Patterson, (1943).” U. S. S.,U. at 210. Here, of course, the Act creates no presumptions of the sort Sugar Rfg. condemned in McFarland Co., v. American (1916) U. S. from (presumption price sugar refiner paid or Tot for sugar that refiner was party to a monopoly), States, United (1943) 319 U. S. 463 that con- (presumption victed felon who possessed a obtained weapon it interstate commerce). Nor does it relieve the its burden *8 § of 9712 proving guilt; only becomes applicable after a de- fendant has been convicted duly of the crime for which he is to punished. be Mullaney

The Court in observed, with to the main respect criminal statute in case, invalidated that once the State the elements which proved Maine it to required prove beyond a reasonable doubt the defendant faced “a in differential sen- from a nominal tencing ranging fine to a mandatory life sen- tence.” at 700. In S.,U. the present case the situation different. Of the offenses quite enumerated in the Act, as third-degree murder, robbery defined 18 Pa. Cons. 3701(a)(1) § (1982), Stat. and kidnaping, rape, de- involuntary viate sexual intercourse are first-degree felonies subjecting the defendant to a maximum of years’ .imprisonment. 1103(1). § Voluntary and manslaughter aggravated assault 2702(a)(1) §in as defined are felonies of the second degree 1103(2). § maximum sentence of 10 carrying years. Sec- tion 9712 neither alters the maximum crime penalty calling sepa- separate offense for a creates a committed nor sentencing solely penalty; operates limit the court’s rate it range already penalty selecting within discretion special finding possession of visible to it without the available “ups the ante” for the defendant of a firearm. Section by raising years only the minimum sentence which to five statutory plan.4 imposed The statute within the be permit impression having gives the visi- tailored to no been wags dog finding possession tail which to be a ble posses- Petitioners’ claim visible offense. substantive “really” Pennsylvania an element of statute sion under the being they punished Penn- for which are the offenses —that upgraded sylvania felo- has in effect defined a new set finding superficial appeal if a at least more nies—would have greater exposed or additional them of visible 2113(d) (providing separate punishment, and cf. 18 U. S. C. accomplished through greater punishment for bank robberies device”), dangerous weapon not. or but it does of a “use Specht this decision Petitioners contend that Court’s (1967), requires the invalidation Patterson, 386 U. S. challenged Again, here. we think statute simply previous petitioners one of our de- read too much into Specht, scheme at issue in con- the Colorado cisions. Under carrying maximum otherwise of a sexual offense viction penalty years exposed to an indefinite term a defendant sentencing judge including imprisonment if the life posed finding post-trial “a threat that the defendant made a public, bodily or is an habitual of- harm to members of the mentally finding 607. This could ill,” id., fender “hearing sense,” the normal notice made, without *9 sentence, mandatory incidentally minimum the Act By prescribing a sentencing setting discretion in court’s a maximum to restrict serves provides that a minimum sentence of confine Pennsylvania law sentence. imposed.” the maximum one-half of sentence not exceed ment “shall (1982). 9756(b) Thus, per § the shortest maximum term Cons. Stat. Pa. years. Act is 10 under the missible solely presentence psychiatric report. based on a Id., at 608. This Court held that the Colorado scheme failed to sat- isfy requirements process, of due and that the defendant right present had a to be with counsel, heard, to be to be con- against fronted with and to cross-examine the witnesses him, and to offer evidence of his own. suggest Winshvpalready

Petitioners that had been decided Specht, required at the time of the Court would have also proof post-trial findings that the burden of as to the be be- yond accept petitioners’ a reasonable doubt. But even if we hypothesis, we do not think it avails them here. The Court Specht following in observed that trial the Colorado defend- radically ant was confronted with “a different situation” from sentencing proceeding. simply the usual The same is not finding true under the statute. The of visible “ups of a firearm of course the ante” for a defend- challenged only ant, or it would not be but it here; does so way previously by raising that we have mentioned, imposed by minimum sentence that the trial court. Finally, specter by petitioners we note that the raised restructuring existing States crimes in order to “evade” Winship just appear commands of does not in this case.5 As noted above, 9712’senumerated felonies retain the same el they Mandatory Sentencing ements had before the Minimum passed. Pennsylvania Legislature Act was did not change any existing simply the definition offense. It took always by sentencing one factor that has been considered punishment instrumentality courts to bear on used —the committing felony precise weight a violent dictated the —and reject We anything the view that in the Due bars Process Clause making States from changes their criminal law that have the effect of making it prosecution easier for the to obtain “From the van convictions. point tage Constitution, change in law favorable to defendants is necessarily good, nor is an innovation favorable to the nec essarily bad.” Stephan, Defenses, Presumptions, Jeffries & and Burden Law, of Proof the Criminal Yale L. J. *10 90 instrumentality given if that factor firearm. against

Pennsylvania’s so not transformed decision do has sentencing hypo- its factor into “element” some will a thetical “offense.” by support process their due claim ob-

Petitioners seek serving many legislatures have made of a aggravated weapon an element of various offenses.6 But statutory fact have formulated different that the States punish merely our armed felons a reflection of schemes “[tjolerance spectrum system, demands for a federal which procedures dealing problem of en- with a common law state (1967). Spencer Texas, v. 385 U. 566 forcement,” 554, S. Pennsylvania’s adopted particular approach has That been Pennsylvania’s States does not render choice few other 432 U. at cf. Patterson, S., 211; See unconstitutional.7 Spaziano Florida, 468 464 447, v. U. S. Nor does on dissent, advanced the Patterson the historical test rely, materially petitioners apparently also advance surely “[f]or it is true that hundreds their cause. While years some offenses have been considered more serious and punishment made more if the commit- severe offense was weapon Brief 17, or while for Petitioners armed,” ted with a particular petitioners do factor 11, n. not contend that the possession of a firearm—has his- made relevant here—visible torically Anglo-American legal “in tradition” been treated requiring proof doubt, 432 Patterson, as reasonable dissenting). S., J., id., 229, at 226 See also U. (Powell, 6 rely argues petitioners the statutes on which The Commonwealth particular, issue In typically differ from here. most statutes firearms, deadly weapons just rather at all than and most are directed of offense than the unarmed crime. higher grade crime as a treat the armed Respondent 11. Brief for §2C:43-6c Jersey, Ann. 7At two see N. J. Stat. least States —New

(West Gantt, (1982), State v. 1982); Super. 186 452 A. 2d 477 N. J. 1984), Kansas, aff’d, (App. A. Super. 2d Div. see N. J. Mullins, (1981); P. State 21-4618 223 Kan. 2d Kan. Stat. Ann. (1978) statutory Pennsylvania’s. similar to schemes — have dissenting) (approving *11 n. 14 new under J., scheme (Powell, put robbery prove on armed defendant State burden gun inoperative in that was unloaded or order to receive sentence). lower

haveWe noted a number of differences between this case Winship, Mullaney, Specht, and and and we find these dif- controlling inability lay ferences here. down Our “bright may constitutionality line” test leave the of statutes Mullaney Specht Pennsyl- like in more those and than depend degree, vania statute to on differences of but the law degree produce in is full of which differences situations Pennsylvania’s no different results. We have Mandatory doubt that Sentencing permissible Minimum Act on the falls side the constitutional line. I—I

I—i HH Having may possession concluded that States treat “visible sentencing of a firearm” as a consideration rather than an particular petitioners’ element of a offense, we now turn to subsidiary process requires claim due nonetheless that possession proved by convincing visible at least clear and difficulty below, Like court little evidence. we have con- cluding preponderance in case the standard this satisfies extraordinary process. Indeed, due it would be if the Due plainly Process Clause as understood in Patterson sanctioned Pennsylvania’s explained the same scheme, while Clause clearly imposed some other line of less relevant cases more requirements. stringent only is, There all, after one Due Clause in the Fourteenth Process Amendment. Further- sentencing petitioners do not and could not that a more, claim rely particular passing never on a court fact sentence finding convincing that fact “clear without evidence.” Sentencing traditionally courts have heard evidence any prescribed proof at found facts without all. burden (1949). Pennsyl- See Williams New York, 337 U. S. particular prescribed vania has deemed a fact relevant and Pennsylva- proof. nothing particular We see burden of constitutionalizing burdens nia’s scheme would warrant sentencing.8 proof apparently Pennsylvania’s concede that scheme Petitioners only pass if muster it did not remove the would constitutional sentencing legislature e., i. if the had sim court’s discretion, pass ply the court to consider visible directed ing Brief for Petitioners 31-32. We have some sentence. difficulty why fathoming process the due calculus would change simply legislature provide has fit because seen sentencing guidance. Nor there courts with additional heightened proof to the claim that a burden of is re merit *12 possession “concerning quired a the because visible fact background crime committed” rather than or character of necessarily Sentencing Ibid. courts con the defendant. selecting appro the circumstances of an sider offense priate punishment, consistently approved sen and we have tencing schemes that mandate consideration facts related (1976), g., 428 242 crime, Florida, to the e. v. U. S. Proffitt suggesting proved facts must without those uniformly Appeals doubt. The Courts of re reasonable have jected process challenges preponderance due to the standard “dangerous special statute, under the federal offender” 18 8 Texas, (1979), Santosky Kramer, Addington 441 U. 418 v. v. S. (1982), respectively applied convincing the “clear and U. S. 745 which sought involuntary to evidence” standard where the State commitment parental rights, and involuntary institution termination of are not mental cases, Quite contrary. to unlike criminal sen the situation those only guilty beyond adjudged after a tencing place takes defendant has been applied has been Once reasonable-doubt standard reasonable doubt. conviction, “the been to criminal defendant has constitution obtain valid ally him.” deprived liberty to the extent that the State confine of his (1976). Fano, text, v. As noted Meachum U. S. sentenc always constitutionally imposed ing operated without burdens courts have embracing petitioners’ suggestion apply that we proof; the clear-and- sentencing, convincing significantly standard alter criminal for here would way distinguish possession finding to at here we no the visible issue see express sentencing judges typically implied findings host of other from a way passing make on sentence. provides if

U. S. C. enhanced sentence “dangerous” concludes that the court defendant both “special Davis, and a offender.” See States v. United F. (CA3) (collecting cases), denied, 2d cert. 464 U. S.

IV petitioners’ light foregoing, In of the final claim—that the right Act them their Sixth a trial denies Amendment jury again argue little discussion. Petitioners —merits jury concerning all must determine ultimate facts the of- Having Pennsylvania may fense committed. concluded that properly sentencing treat visible aas consider- only offense, ation and not an element of we need note right jury sentencing, that there is no Sixth Amendment specific findings even where the sentence turns on of fact. Spaziano Florida, 468 See U. 459. S., foregoing judgment Supreme reasons, For the Court is affirmed.

It sois ordered. with Marshall, Justice whom Justice Brennan Blackmun Justice join, dissenting. agree post,

I dissent, with much Justice Stevens’ *13 particular 96-98. a fact is element a criminal Whether of (1970), Winship, re that, offense under In 397 U. S. 358 must by proved prosecution beyond the a doubt is a reasonable question by that must be decided this Court and cannot be Winship “[I]f to the abdicated States. were limited to those by law, facts that constitute a crime as defined state a State many sought of could undermine the that interests decision to effecting protect any change substantive in its law.” without Mullaney 421 U. S. The Wilbur, defer- majority gives Pennsylvania Legisla- ence to the that ture’s that a firearm statement visible of by should be considered an defined element crime (1982) wholly inappropriate. 42 Pa. Stat. 9712 is thus Cons. rely in on formalistic not, however, I this case would mitigating aggravating facts. between distinction process,” post, functioning of the democratic “continued provide dissenting), might J., us with some (Stevens, guarantee of that States will not circumvent assurance Winship by criminalizing seemingly innocuous conduct placing af- on the defendant to establish an then the burden But this Court nonetheless must remain firmative defense. by placing ready guarantee State, to enforce that should the proving mitigating upon the burden of certain the defendant effectively lighten facts, the constitutional burden of the respect to with the elements of crime. See (1977)(allow- York, Patterson v. New U. S. 206-207 ing require prove to to extreme emotional State defendant noting preponderance of the evidence but that disturbance negative any defense “does not serve to facts this affirmative prove crime which is to in order to the State convict murder”). any put

I until next Term discussion of miti would off how analyzed gating Winship. under This issue facts should be Ohio, Martin v. will be aired when the Court considers granted, (1986), in which a 85-6461, cert. 475 U. S. No. requirement challenges defendant Ohio’s the accused proving by pre claim of bear the burden of a self-defense a ponderance enough agree now, For it is the evidence. provides spe “if a with Justice that a State Stevens give component prohibited cific transaction shall rise special special punishment, stigma and to both component necessary must be treated as ‘fact consti holding meaning In re the crime’ within our tute Winship,” post, just has at 103. attached consequences finding “visibly pos to a that a defendant such during aggravated firearm” the commission of sessed a Winship, prosecution should not be assault, and, under proving I that fact a reasonable doubt. relieved *14 dissent. Stevens,

Justice dissenting. 73-year-old a Dennison, man, Petitioner committed an aggravated youth upon neighborhood a assault whom he suspected stealing money from his After trial house. a at proved which the Commonwealth elements the offense aggravated beyond assault doubt, a reasonable the trial judge imposed imprisonment sentence of 1172to 23 Pennsylvania’s months. had Because he concluded that recently Mandatory Sentencing Act, enacted Minimum § (1982), Pa. Cons. Stat. 9712 was trial unconstitutional, the judge impose 5-year refused to minimum man- sentence by proves —by dated that Act whenever the Commonwealth preponderance “visibly of the evidence—that the defendant possessed during a firearm the commission of offense,” 9712(b). judge presiding trial, over Dennison’s as as well judges petitioners’ Superior in the other three and the trials Judges hearing appeals, Court all concluded visible “ possession of a firearm was an element of the offense. ‘Vis- ibly possessed inarguably language a firearm’ is which refers legislature prohibit.” to behavior which the intended to App. consequence, prohib- to Pet. for Cert. A35. As a by proof ited conduct had to be established a reason- Pennsylvania Supreme agreed able doubt. The Court possession Pennsylva- visible of a firearm is conduct that the Assembly prohibit, nia intended General Commonwealth (1985) Wright, (Larsen, 25, 42, 508 Pa. 494 A. 2d 354, 363 concurring); (concurring opin- J., id., 2d, at at A. joined majority opinion), recognized ion and it of such evidence conduct would mandate minimum sen- imprisonment tence more twice as than as severe judge imposed trial maximum the would have otherwise on petitioner Dennison, id., 1,n. 494 A. n. 1. 2d, held that But it nonetheless visible firearm was not element of the offense because the *15 9712(b) Assembly foresight had the declare in General to of this section shall not of the that “Provisions element crime.” ground

It is common that “the Due Process re- Clause prosecution prove beyond quires the a all reasonable doubt of the of the elements included the definition offense of charged.” the is Patterson v. New York, which defendant (1977). Today S. the holds state 432 U. Court legislatures may only not the define offense with which a authoritatively charged, criminal defendant but also prohib- e., determine that the conduct so described —i. activity subjects ited which the defendant to criminal sanc- tions—is not an element of the crime Process which Due requires proved by beyond to be Clause my legislature may In view, reasonable doubt. a state dispense requirement proof beyond with the a reasonable targets penal- for conduct that it doubt severe criminal Pennsylvania challenged ties. Because statute this Legislature conduct case describes ob- viously prohibit, lengthy intended to and because it mandates I incarceration for believe that the so same, conduct is an element described of the criminal offense which the beyond requirement applies. proof a reasonable doubt offense, a State defines a criminal Once Due Process component requires prove any prohibited to it Clause gives special stigma spe- transaction that rise to both and a beyond punishment cial a reasonable doubt. This much has Winship, evident at least In re been since U. S. “explicitly” case, In held the Court that “the protects against Due Process Clause the accused conviction except upon proof every doubt of reasonable fact necessary charged.” the crime with he to constitute reasoning to this at 364. In conclusion the Id., Court re- heritage of the rule that Justice Frankfurter char- viewed rightly in our law and acterized as “basic one of the boasts importance society,”1 the decision and—of critical a free undergird explained the rule: the reasons that before us— plays a vital role “The reasonable-doubt standard procedure. criminal It is the American scheme of reducing prime the risk of convictions instrument for *16 provides resting con- error. The standard on factual presumption for the of innocence—that crete substance elementary’ principle ‘en- and whose bedrock ‘axiomatic of the foundation of the administration forcement lies at [156 U. S. States, v. United our criminal law.’ Coffin [1895]. in York As the dissenters the New 432,] 453 agree, person Appeals ac- and we ‘a observed, Court of disadvantage, at a severe cused of a crime . . . would be amounting disadvantage fair- to a lack of fundamental a adjudged guilty imprisoned for if ness, he could be years strength suf- of the same evidence as would on the 247 N. E. 2d [196],205, in N. Y. 2d fice a civil case.’ [1969]. [253], 259 proof beyond requirement a doubt

“The of reasonable cogent procedure in our criminal has this vital role during prosecution has criminal The accused a reasons. importance, immense both because at stake interests of liberty upon may possibility con- his that he lose of the certainty he would be of the viction because Accordingly, society stigmatized the conviction. every good of individ- freedom name and that values crime for commission of a not condemn a man ual should guilt.” Id., about his reasonable doubt when there is 363-364. (1952) J., (Frankfurter, dissent 790, 803 Oregon, 343 U. S. 1 Leland v. establish “duty that the of the State

ing). opinion in he noted Later his crime, establishing and of up ing every equation which adds to fact of the the decisive beyond doubt jury a reasonable it to the satisfaction of a Id., liability.” at 805. culpability and civil between criminal difference purposive approach Winship to the In re thus took a constitu- proof: stigma- threatens to standard of when the State tional engaging prohibited an individual for tize or incarcerate only proves pro- do so if it the elements of the conduct, it beyond a transaction reasonable doubt.2 hibited “ applicability points ‘[t]he out, It is as the Court true, always . . has the reasonable-doubt standard . been de- charged pendent on offense how State defines the any given (quoting ante, See at 85 Patterson v. New case.”’ 12). n. A freedom re- York, S., U. State’s this gard, always however, has been understood to reflect the un- proposition power, subject that a has controversial State penalties limits, to variety attach criminal course constitutional objectionable so, when it transactions; a wide does need establish reasonable doubt only specified criminal constituent elements trans- Nothing predecessors of its action. Patterson au- ingredients thorizes a State decide for itself which the *17 prohibited prove must the transaction are “elements” that it beyond a at reasonable doubt trial. contrary supposition majority,

Indeed, Pat- to the the entirely keeping v. New York in terson with limit on power implied Winship. definitional Patterson was state charged second-degree murder, with a crime which in New two “‘intent to York included elements: cause death of ” “ person’ ‘causing] person death another of such or person.’” (quoting S., of a third 432 U. at N. Y. Penal 1975)). (McKinney aforethought [was] Law 125.25 “Malice S., not an crime.” 432 U. 198. element at Because liberty stigma “The combination of and loss of involved in a conditional imprisonment apart any that from or absolute sentence sets sanction Packer, imposes.” Supreme Court, Rea thing else the law Mens and the 107, requirement subjecting Ct. The that 1962 S. Rev. 150. conduct an stigma special special punishment proved beyond and a a individual to a constitutionality no reasonable doubt therefore casts doubt on the crimi proof. nal restitution ordered on a lesser standard of “causing person so,” the death of another with intent to do may id., 205, at was “an act which . . . the State constitution- ally punish,” criminalize and at at id., 209; accord, id., 208, proscribed punished and because New York fact upheld conduct, id., at the Court the State’s refusal to beyond every “prove fact, reasonable doubt existence willing recognize [was] it as an or nonexistence which affecting degree exculpatory mitigating or circumstance severity punishment,” culpability id., or the at 207 added) (emphasis case, the affirmative defense of —in explained The Court extreme emotional disturbance. every did not invalidate instance of “the Due Process Clause proving exculpatory burdening defendant with fact.” added). (emphasis recognize n. 9 “To at Id., all require prove mitigating circumstance does not State put each case which the fact is in issue.” its nonexistence added). (emphasis Id., at 209 Patterson thus clarified that requires proof the Due Process Clause a reasonable exposes of conduct a criminal doubt defendent greater stigma punishment, but does not con- likewise penalties if such re- strain state reductions of criminal —even prosecutor’s prove on a failure to ductions are conditioned proof supplied by preponderance of the evidence or on fact by the criminal defendant.3 Patterson Court also recognized other “constitutional limits be regard,” S., 210, citing go in this 432 U.

yond which the States States, (1943), invalidating Tot v. and other cases United 319 U. S. the basis of these cases that Patterson statutory presumptions. It was on Wilbur, Mullaney struck down in distinguished the Maine statute *18 (1975). prescribed imprisonment The Maine murder statute life U. S. aforethought,” with malice unlawfully being kills a human for “Whoever (1964) 17, added), trial Ann., (emphasis and the Tit. Me. Rev. Stat. “ aforethought an essential and judge charged jury ‘malice is had ” murder,’ S., (quoting at 686 indispensable of the crime of U. element n 40). 1974, Likewise, con 74-13, p. the Government App. in No. T.O. in Tot only receipt of fire proscribed ceded that the federal enactment States, S., See Tot v. United 319 U. at arms in interstate commerce. aggravating mitigating The distinction between and facts identify ability has criticized as formalistic. But its been genuine depends nothing threats on more than constitutional process. functioning ap the continued democratic To preciate aggravating mitigating the difference between and important although circumstances, it is to remember that by criminalizing reach the same destination either States allowing by prohibit or defense, conduct and an affirmative enhancing penalty, pro ing legislation conduct and lesser ceeding along paths very two if it these different even might theoretically Consider, achieve same result. for presence example, making any private public “in a statute or “felony by up years place” punishable imprisonment” five yet allowing “an affirmative defense the defendant prove, preponderance evidence, to a that he was robbing a Dutile, bank.” The Burden of Proof Crimi Tot, Mullaney, proposition 466. Patterson clarified that like stood for the “shifting persuasion respect burden of with to fact important proved presumed it must State deems so be either is im S., permissible (emphasis under the Due Process Clause.” 432 U. at 215 added). (1965). 136, Romano, v. Cf. United States 382 U. S. unlawful, Thus, although punished have killings Maine could all intentional Congress imprisonment, just pos life as punished with Tot could have violence, of a firearm one convicted of a crime of session neither case explanation, legislature although This not entirely did the do so. satisfac (Me. tory, Lafferty, 1973); id., v. 309 A. 2d 664-665 see State (Wernick, J., concurring), is Supreme 672-673 consistent with the Maine explanation appeal presumed Court’s on direct that state law malice. See 1971). (Me. Wilbur, 139, 145-146 2d State v. A. state court down imposed “no played presumption upon this because burden is defendant jury beyond until the State has convinced the first reasonable doubt that homicide,” guilty voluntary point defendant intentional at which longer guilt no the issue “is or innocence of felonious rather homicide but Id., degree Mullaney, of the homicide.” we held in “[t]he 146. As process safeguards due are not simply rendered unavailable because a may already have been stigmatize determination reached that would significant might impairment personal and that lead to a defendant lib S., Accord, Patterson, erty.” Specht 421 U. at 698. 386 U. S. 608-611

101 Mullaney-Patterson A nal Cases: Comment on the Doctrine, democratically 55 380, Notre Dame Law. No legislature elected would enact if law, such a and it did, broad-based coalition of bankers and bank customers would legislation repealed.4 soon see the Nor is there a serious danger that a State will soon define murder to the “mere physical contact between the defendant and the victim lead ing up death, to the victim’s but then set an affirmative de leaving prove fense it to the defendant to that he acted with culpable out mens rea” Patterson v. New York, 432 U. S., dissenting). legislator 224, n. 8 (Powell, J., No would be willing expose opprobrium pun himself to the severe and ishment meted out to murderers for an accidental stumble on subway. safely the For similar reasons, it can be assumed single that a State will not “define all assaults as a offense require disprove and then the defendant to the elements aggravation.” Mullaney Wilbur, 684, U. S. Risinger, Presumptions, Cf. Ashford & Assumptions, and Due Process (1969) Overview, in Criminal Cases: A Theoretical 79 Yale L. J. (“In statute, legislature the first germane has deemed three factors (a) (b) punishment: presence individual; presence of the the narcotics (c) house; the the knowledge. statute, defendant’s In the only second germane two punished: factors are deemed to whether an individual will be (a) (b) presence individual; presence of the the of narcotics the house. might approve passage statute, electorate of the of the first but not passage legislature of the second. The fact might pass that a the sec that, given ond statute does political temperament not mean state, legislature passed would in fact have If legislature it. nomi (as statute) nally recognizes knowledge germane as it did the first further, type germane as the proved by state, issue to be and then arranges process its so that knowledge most those who lack are still sent (as jail though passed), the second statute had been then those individ being punished uals are undergone political for a crime which has never guaranteed by representative Note, cheeks government”); The Constitu tionality York, Affirmative Defenses after Patterson v. New 78 Colum. (1978) (“[Ajlthough L. Rev. legislature might a state have decided mitigating exculpatory factor, to define offense without the or there is suppose so, given political no reason to it would have done climate of so”). state, could have done *20 inconceivability hypothesized very of The the n. sincerely legislation has offered to illus of which been —all legislative mitigation pun dangers permitting of the of trate derogation requirement proof of a of the ishment enough reason to feel secure that it will reasonable doubt—is majority the not a of electorate.5 command a inconceivable, however, all to fear that It is not at State might subject engaging of those individuals convicted anti- punishment aggravating to further for conduct social conduct proved beyond a As case not reasonable doubt. this demon- may strates, to enhance the deterrent effect of a State seek forbidding in the its law the use of firearms course of felonies by mandating imprisonment upon a minimum of sentence by against proof preponderance already a those convicted of Winship specified re In and Patterson crimes. But teach objectives that a State not advance the of its criminal expense factfinding laws of the accurate owed the to criminally nonpersuasion. accused who suffer risk of importance

It would demean reasonable-doubt it indeed, would demean the Constitution itself— standard — by nothing

if the of the standard be substance could avoided legislative prohibited more than a declaration that conduct is legislative A not “element” a crime. definition of an enough encompass offense named “assault” could be broad every upon person intentional infliction harm one an- surely legislature provide only not other, but could proved beyond that fact must be a reasonable doubt and then specify range punishments a of increased if the by preponderance could show a of the evidence that de- raped, “during fendant or killed victim robbed, his com- mission the offense.” (“constitutional (1980) Ely, Democracy ap See J. and Distrust 183 law

propriately representative government exists those situations where can”). id., trusted, cannot those where we know it See also 182-183.

Appropriate respect Winship requires for the In re rule of power there constitutional limits on the be some high offenses. State define the elements criminal required proof impor- standard because of immense avoiding tance of the individual interest both the lib- loss of erty stigma that and the results from criminal conviction. provides specific I that if follows, submit, It a State that a component prohibited give of a transaction shall rise both to special special stigma punishment, component and to necessary must be treated “fact constitute as a the crime” meaning holding Winship. re of our in In within *21 Pennsylvania’s Mandatory Sentencing Minimum Act re- legislative flects a determination defendant that a who “visi- bly possessed during aggra- a firearm” the commission an blameworthy vated assault is more than defendant did who judicial finding A not. that the defendant used a firearm aggravated places greater stigma assault on the defend- simple finding aggra- name ant’s than a that he committed an finding assault. not to be such overlooked, vated And with respect petitioner automatically pun- Dennison mandates a that is than ishment more twice as severe as the maximum punishment judge appropriate trial that the considered conduct. his points pun- Court true,

It is as the out, that enhanced range ag- is ishment within the that was authorized for gravated That fact assault. does not, however, minimize the significance finding of a visible of a firearm stigmatizing punitive attention focused on the whether consequences finding. Mullaney See v. Wilbur, that finding S., 697-698.6 The identifies conduct U. that the legislature specifically prohibit punish by intended and to petitioners It is likewise irrelevant had first been convicted system justice our predicate felonies. “Under of criminal even a thief unconstitutionally he has been complain convicted im entitled Jackson Virginia, prisoned burglar.” as a 443 U. S. 323-324 3, supra. n. See special my opinion signifi- sanction. In the constitutional special cance sanction cannot be avoided the cava- merely “ups lier observation it the ante” for the defend- culpable petitioner ante, ant. See 89. No matter how be, Dennison the difference between months and 5 IIV2 years justification principled of incarceration merits a more luck than the of the draw. respectfully

I dissent.