John Paul Stevens

“ The prosecutor did not invoke any presumption to buttress the evidence of racial bias and did not claim that Apprendi had the burden of disproving an improper motive. The question whether Apprendi had a constitutional right to have a jury find such bias on the basis of proof beyond a reasonable doubt is starkly presented. ”

“ The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. ”

“ Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: “ [I] t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. ”

“ If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened ”

“ While acknowledging “analytical tensions” in this Court’s post-Winship jurisprudence, the dissenters concluded that “there can be little doubt that the sentencing factor applied to this defendant–the purpose to intimidate a victim because of race–must fairly be regarded as an element of the crime requiring inclusion in the indictment and proof beyond a reasonable doubt.” ”

“ New Jersey’s defense of its hate crime enhancement statute has three primary components: (1) the required finding of biased purpose is not an “element” of a distinct hate crime offense, but rather the traditional “sentencing factor” of motive; (2) McMillan holds that the legislature can authorize a judge to find a traditional sentencing factor on the basis of a preponderance of the evidence ”

“ What the cited cases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed ... . The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge.” Almendarez-Torres, 523 U.S., at 257, n. ”

“ A second mens rea requirement hardly defeats the reality that the enhancement statute imposes of its own force an intent requirement necessary for the imposition of sentence. On the contrary, the fact that the language and structure of the “purpose to use” criminal offense is identical in relevant respects to the language and structure of the “purpose to intimidate” provision demonstrates to us that it is precisely a particular criminal mens rea that the hate crime enhancement statute seeks to target. ”

“ This is not to suggest that the term “sentencing factor” is devoid of meaning. The term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense. On the other hand, when the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. ”

“ New York, unlike Maine, had not made malice aforethought, or any described mens rea, part of its statutory definition of second-degree murder; one could tell from the face of the statute that if one intended to cause the death of another person and did cause that death, one could be subject to sentence for a second-degree offense. ”

“ The common law of punishment for misdemeanors–those “smaller faults, and omissions of less consequence,” 4 Blackstone 5–was, as we noted in Jones, 526 U.S., at 244, substantially more dependent upon judicial discretion. Subject to the limitations that the punishment not “touch life or limb,” that it be proportionate to the offense, and, by the 17th century, that it not be “cruel or unusual,” judges most commonly imposed discretionary “sentences” of fines or whippings upon misdemeanant offenders. ”

“ Among other reasons, structural democratic constraints exist to discourage legislatures from enacting penal statutes that expose every defendant convicted of, for example, weapons possession, to a maximum sentence exceeding that which is, in the legislature’s judgment, generally proportional to the crime. ”

“ Finally, as we made plain in Jones last Term, Almendarez-Torres v. United States, 523 U.S. 224 (1998) , represents at best an exceptional departure from the historic practice that we have described. In that case, we considered a federal grand jury indictment, which charged the petitioner with “having been ‘found in the United States ... after being deported,’ ” in violation of 8 U.S.C. § 1326 (a) –an offense carrying a maximum sentence of two years. ”

“ Far from being part of “reasoning essential” to the Court’s holding, post, at 13, that statement was in response to a dissent by Justice Scalia on an issue that the Court itself had, a few sentences earlier, insisted “was neither considered by the state courts nor discussed in petitioner’s brief before this Court.” ”