256
Scalia, J., dissenting
since the fact at issue increases the permissible sentence tenfold. And the only significant part of the fifth "factor"— that the statute in McMillan " 'dictated the precise weight to be given [the statutory] factor,' " ante, at 243, quoting McMillan, supra, at 89-90—is likewise a point of difference and not of similarity.
But this parsing of various factors is really beside the point. No one can read our pre-McMillan cases, and especially Mullaney (whose limits were adverted to in Patterson but never precisely described), without entertaining a serious doubt as to whether the statute as interpreted by the Court in the present case is constitutional. And no one can read McMillan, our latest opinion on the point, without perceiving that the determinative element in our validation of the Pennsylvania statute was the fact that it merely limited the sentencing judge's discretion within the range of penalty already available, rather than substantially increasing the available sentence. And even more than that: No one can read McMillan without learning that the Court was open to the argument that the Constitution requires a fact which does increase the available sentence to be treated as an element of the crime (such an argument, it said, would have "at least . . . superficial appeal," 477 U. S., at 88). If all that were not enough, there must be added the fact that many State Supreme Courts have concluded that a prior conviction which increases maximum punishment must be treated as an element of the offense under either their State Constitutions, see, e. g., State v. McClay, 146 Me. 104, 112, 78 A. 2d 347, 352 (1951); Tuttle v. Commonwealth, 68 Mass. 505, 506 (1854) (prior conviction increasing maximum sentence must be set forth in indictment); State v. Furth, 5 Wash. 2d 1, 11-19, 104 P. 2d 925, 930-933 (1940); State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 98-99, 101 So. 228, 229 (1924); Roberson v. State, 362 P. 2d 1115, 1118-1119 (Okla. Crim. App. 1961), or as a matter of common law, see, e. g., People ex rel. Cosgriff v. Craig, 195 N. Y. 190, 194-195, 88 N. E. 38, 39 (1909); People
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