Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
cussion in McMillan of how the Pennsylvania statute simply limited a sentencing judge's discretion. We said that, whereas in Mullaney the State had imposed " 'a differential in sentencing ranging from a nominal fine to a mandatory life sentence' " (the Court's "second" factor), Pennsylvania's law "neither alter[ed] the maximum penalty for the crime committed [the Court's 'third' factor] nor create[d] a separate offense calling for a separate penalty [the Court's 'fourth' factor]; it operate[d] solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm [the Court's 'third' factor]. . . . The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense [part of the Court's 'fifth' factor]." 477 U. S., at 87-88.
The Court's recruitment of "factors" is, as I have said, selective. Omitted, for example, is McMillan's statement that "petitioners do not contend that the particular factor made relevant [by the statute] . . . has historically been treated 'in the Anglo-American legal tradition' as requiring proof beyond a reasonable doubt." Id., at 90, quoting Patterson, 432 U. S., at 226. Petitioner does make such an assertion in the present case—correctly, as I shall discuss. But even with its selective harvesting, the Court is incorrect in its assertion that "most" of the "factors" it recites, ante, at 243 (and in its implication that all except the third of them) exist in the present case as well. The second of them contrasted the consequence of the fact assumed in Mullaney (extension of the permissible sentence from as little as a nominal fine to as much as a mandatory life sentence) with the consequence of the fact at issue in McMillan (no extension of the permissible sentence at all, but merely a "limit[ation of] the sentencing court's discretion in selecting a penalty within the range already available," 477 U. S., at 88). The present case resembles Mullaney rather than McMillan in this regard,
255
Page: Index Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: October 4, 2007