Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
v. McDonald, 233 Mich. 98, 102, 105, 206 N. W. 516, 518, 519 (1925); State v. Smith, 129 Iowa 709, 710-715, 106 N. W. 187, 188-189 (1906) ("By the uniform current of authority, the fact of the prior convictions is to be taken as part of the offense instantly charged, at least to the extent of aggravating it and authorizing an increased punishment"); State v. Pennye, 102 Ariz. 207, 208-209, 427 P. 2d 525, 526-527 (1967); State v. Waterhouse, 209 Ore. 424, 428-433, 307 P. 2d 327, 329-331 (1957); Robbins v. State, 219 Ark. 376, 380-381, 242 S. W. 2d 640, 643 (1951); State v. Eichler, 248 Iowa 1267, 1270-1273, 83 N. W. 2d 576, 577-579 (1957).2
In the end, the Court cannot credibly argue that the question whether a fact which increases maximum permissible punishment must be found by a jury beyond a reasonable doubt is an easy one. That, perhaps, is why the Court stresses, and stresses repeatedly, the limited subject matter that § 1326(b) addresses—recidivism. It even tries, with utter lack of logic, to limit its rejection of the fair reading of McMillan to recidivism cases. "For the reasons just given," it says, "and in light of the particular sentencing factor at issue in this case—recidivism—we should take
2 It would not be, as the Court claims, "anomalous" to require jury trial for a factor increasing the maximum sentence, "in light of existing case law that permits a judge, rather than a jury, to determine the existence of factors that can make a defendant eligible for the death penalty . . . ." Ante, at 247, citing Walton v. Arizona, 497 U. S. 639 (1990); Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam); and Spaziano v. Florida, 468 U. S. 447 (1984). Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. 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—even where that decision is constrained by a statutory requirement that certain "aggravating factors" must exist. 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.
257
Page: Index Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 NextLast modified: October 4, 2007