Cite as: 524 U. S. 721 (1998)
Scalia, J., dissenting
(1975).7 It is this same traditional understanding of fundamental fairness—dating back centuries to the common-law plea of autrefois acquit and buttressed by a special interest in finality—that undergirds the Double Jeopardy Clause.8
I respectfully dissent.
Justice Scalia, with whom Justice Souter and Justice Ginsburg join, dissenting.
I agree with the Court 's determination that Bullington v. Missouri, 451 U. S. 430 (1981), should not be extended, and its conclusion that the Double Jeopardy Clause does not apply to noncapital sentencing proceedings. I do not, however, agree with the Court's assumption that only a sentencing proceeding was at issue here.
Like many other guarantees in the Bill of Rights, the Double Jeopardy Clause makes sense only against the backdrop of traditional principles of Anglo-American criminal law. In that tradition, defendants are charged with "offence[s]." A criminal "offence" is composed of "elements," which are factual components that must be proved by the state beyond a reasonable doubt and submitted (if the defendant so desires) to a jury. Conviction of an "offence" renders the defendant eligible for a range of potential punishments, from which a sentencing authority ( judge or jury) then selects the most
early years as a Nation," id., at 361, justified our conclusion "that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged," id., at 364.
7 In Mullaney, we unanimously extended the protection of Winship to determinations that go not to a defendant's guilt or innocence, but simply to the length of his sentence. 421 U. S., at 697-698; see also AlmendarezTorres, 523 U. S., at 251-252 (Scalia, J., dissenting).
8 Justice Scalia accurately characterizes the potential consequences of today's decision as "sinister." Post, at 739. It is not, however, California that has taken "the first steps" down the road the Court follows today. It was the Court's decision in McMillan v. Pennsylvania, 477 U. S. 79 (1986).
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