Cite as: 524 U. S. 721 (1998)
Scalia, J., dissenting
gress and the people on [their] passage." Slaughter-House Cases, 16 Wall. 36, 96 (1873).1
Although California's system is not nearly that sinister, it takes the first steps down that road. The California Code is full of "sentencing enhancements" that look exactly like separate crimes, and that expose the defendant to additional maximum punishment. Cal. Penal Code § 12022.5 (1982) is typical: "[A]ny person who personally uses a firearm in the commission or attempted commission of a felony shall . . . be punished by an additional term of imprisonment in the state prison for three, four, or five years." Compare that provision with its federal counterpart, 18 U. S. C. § 924(c)(1), which provides that "[w]hoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years." Everyone agrees that 18 U. S. C. § 924(c)(1) describes a separate crime entitling those who are charged to the constitutional protections that accompany criminal convictions. Indeed, the undisputed fact that each of the elements of § 924(c)(1) must be
1 The Court suggests that "fundamental fairness" will sometimes call for treating a particular fact as a sentencing factor rather than an element, even if it increases the defendant's maximum sentencing exposure, because "[a] defendant might not, for example, wish to simultaneously profess his innocence of a drug offense and dispute the amount of drugs allegedly involved." Ante, at 729. Even if I agreed that putting a defendant to such a choice would be fundamentally unfair, I see no reason to assume that defendants would be eager to pursue such a strategy at the cost of forfeiting their traditional rights to jury trial and proof beyond a reasonable doubt. But in any event, there is no need to contemplate such Faustian bargains. If simultaneous consideration of two elements would be genuinely prejudicial to the defendant (as, for example, when one of the elements involves the defendant's prior criminal history), the trial can be bifurcated without sacrificing jury factfinding in the second phase. See Almendarez-Torres, 523 U. S. 224, 261, 269 (1998) (Scalia, J., dissenting).
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