Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
judge (whether or not bound by the Federal Sentencing Guidelines) is likely to sentence nearer the maximum permitted for the offense if the defendant is a repeat offender. But the same can be said of many, perhaps most, factors that are used to define aggravated offenses. For example, judges will "typically" sentence nearer the maximum that a statute allows if the crime of conviction is committed with a firearm, or in the course of another felony; but that in no way suggests that armed robbery and felony murder are sentencing enhancements rather than separate crimes.
The relevant question for present purposes is not whether prior felony conviction is "typically" used as a sentencing factor, but rather whether, in statutes that provide higher maximum sentences for crimes committed by convicted felons, prior conviction is "typically" treated as a mere sentence enhancement or rather as an element of a separate offense. The answer to that question is the latter. That was the rule at common law, and was the near-uniform practice among the States at the time of the most recent study I am aware of. See Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332, 333-334 (1965); Note, The Pleading and Proof of Prior Convictions in Habitual Criminal Prosecutions, 33 N. Y. U. L. Rev. 210, 215-216 (1958). At common law, the fact of prior convictions had to be charged in the same indictment charging the underlying crime, and submitted to the jury for determination along with that crime. See, e. g., Spencer v. Texas, supra, at 566; Massey v. United States, 281 F. 293, 297 (CA8 1922); Singer v. United States, 278 F. 415, 420 (CA3 1922); People v. Sickles, 156 N. Y. 541, 545, 51 N. E. 288, 289 (1898). While several States later altered this procedure by providing a separate proceeding for the determination of prior convictions, at least as late as 1965 all but eight retained the defendant's right to a jury determination on this issue. See Note, 40 N. Y. U. L. Rev., at 333-334, 347. I am at a loss to explain the Court's assertion that it has "found no statute that clearly makes recidivism an offense
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