Clarence Thomas

“ Although there was a statute providing that "arson in the day time shall be punished for a less period than arson in the night time," the court concluded that it merely set "a rule for the exercise of [the sentencing [p520] judge's] discretion" by specifying a particular fact for the judge to consider along with the many others that would enter into his sentencing decision. Ibid. Cf. Jones v. State, 63 Ga. 141, 143 (1879) (whether burglary occurred in day or at night is a "constituent of the offense" because law fixes different ranges of punishment based on this fact) . ”

“ The felony consists both of the former convictions and of the particular larceny. . . . [T] he former convictions were a separate fact; which, taken in connection with the facts constituting the last offense, make a distinct and greater offense than that charged, exclusive of the prior convictions. ”

“ Second, and related, one of the chief errors of Almendarez-Torres—an error to which I succumbed—was to attempt to discern whether a particular fact is traditionally (or typically) a basis for a sentencing court to increase an offender's sentence. ”

“ State, 13 Ohio 401, 406, 408 (1844) (holding that value of goods intended to be stolen is not "an ingredient of the crime" of burglary with intent to steal, because punishment under statute did not depend on value; contrasting larceny, in which " [v] alue must be laid, and value proved, that the jury may find it, and the court, by that means, know whether it is grand or petit, and apply the grade of punishment the statute awards") ”

“ Pennsylvania, 477 U.S. 79 (1986) , which spawned a special sort of fact known as a sentencing enhancement. See ante, at 478, 485, 494. Such a fact increases a defendant's punishment but is not subject to the constitutional protections to which elements are subject. JUSTICE O'CONNOR's dissent, in agreement with McMillan and Almendarez-Torres v. United States, 523 U.S. 224 (1998) , takes the view that a legislature is free (within unspecified outer limits) to decree which facts are elements and which are sentencing enhancements. ”

“ Bishop that the nature and cause of the accusation are not stated where there is no mention of the full act or series of acts for which the punishment is to be inflicted" (internal quotation marks omitted) ) ; State v. Perley, 86 Me. 427, 431, 30 A. 74, 75 (1894) ("The doctrine of the court, says Mr. Bishop, is identical with that of reason, viz: that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted" (internal quotation marks omitted) ) ”

“ People, 53 N.Y. 511 (1873) . The statute in Wood provided for increased punishment if the defendant had previously been convicted of a felony then discharged from the conviction. The court, repeatedly referring to "the aggravated offence," id., at 513, 515, held that the facts of the prior conviction and of the discharge must be proved to the jury, for " [b] oth enter into and make a part of the offence . . . subjecting the prisoner to the increased punishment." Id., at 513; see ibid. (fact of prior conviction was an "essential ingredient" of the offense) . ”