Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
ing was that in the recidivism proceeding the defendant "was not held to answer for an offense," 224 U. S., at 624, since the recidivism charge " 'goes to the punishment only,' " ibid., quoting McDonald v. Massachusetts, 180 U. S. 311, 313 (1901).
But that basis for dispensing with the protections of jury trial and findings beyond a reasonable doubt was explicitly rejected in Mullaney, which accorded these protections to facts that were "not general elements of the crime of felonious homicide . . . [but bore] only on the appropriate punishment category," 421 U. S., at 699. Whatever else Mullaney stands for, it certainly stands for the proposition that what Graham used as the line of demarcation for double jeopardy and some due process purposes (the matter "goes only to the punishment") is not the line of demarcation for purposes of the right to jury trial and to proof beyond a reasonable doubt. So also does McMillan, which even while narrowing Mullaney made it very clear that the mere fact that a certain finding "goes only to the penalty" does not end the inquiry. The Court is certainly correct that the distinctive treatment of recidivism determinations for double jeopardy purposes takes some explaining; but it takes some explaining for the Court no less than for me. And the explanation assuredly is not (what the Court apparently suggests) that recidivism is never an element of the crime. It does much less violence to our jurisprudence, and to the traditional practice of requiring a jury finding of recidivism beyond a reasonable doubt, to explain Graham as a recidivism exception to the normal double jeopardy rule that conviction of a lesser included offense bars later trial for the greater crime. Our double jeopardy law, after all, is based upon traditional American and English practice, see United States v. Dixon, 509 U. S. 688, 704 (1993); United States v. Wilson, 420 U. S. 332, 339-344 (1975), and that practice has allowed recidivism to be charged and tried separately, see Spencer v. Texas, 385 U. S. 554, 566-567 (1967); Graham, supra, at 623,
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