Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
That it is genuinely doubtful whether the Constitution permits a judge (rather than a jury) to determine by a mere preponderance of the evidence (rather than beyond a reasonable doubt) a fact that increases the maximum penalty to which a criminal defendant is subject is clear enough from our prior cases resolving questions on the margins of this one. In In re Winship, supra, we invalidated a New York statute under which the burden of proof in a juvenile delinquency proceeding was reduced to proof by a preponderance of the evidence. We held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged," 397 U. S., at 364, and that the same protection extends to "a juvenile . . . charged with an act which would constitute a crime if committed by an adult," id., at 359.
Five years later, in Mullaney v. Wilbur, supra, we unanimously extended Winship's protections to determinations that went not to a defendant's guilt or innocence, but simply to the length of his sentence. We invalidated Maine's homicide law, under which all intentional murders were presumed to be committed with malice aforethought (and, as such, were punishable by life imprisonment), unless the defendant could rebut this presumption with proof that he acted in the heat of passion (in which case the conviction would be reduced to manslaughter and the maximum sentence to 20 years). We acknowledged that "under Maine law these facts of intent [were] not general elements of the crime of felonious homicide[, but] [i]nstead, [bore] only on the appropriate punishment category." 421 U. S., at 699. Nonetheless, we rejected this distinction between guilt and punishment. "[I]f Winship," we said, "were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute differ-
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