740
Scalia, J., dissenting
submitted to a jury and found beyond a reasonable doubt, combined with the fact that many courts were mistaken as to what those elements consisted of, has created considerable juridical chaos in recent years. See, e. g., Bailey v. United States, 516 U. S. 137 (1995); Bousley v. United States, 523 U. S. 614 (1998). Perhaps Congress should have taken a lesson from the California Legislature, which (if my worst fears about today's holding are justified) may have stumbled upon the El Dorado sought by many in vain since the beginning of the Republic: a means of dispensing with inconvenient constitutional "rights." For now, California has used this gimmick only to eviscerate the Double Jeopardy Clause; it still provides a right to notice, jury trial, and proof beyond a reasonable doubt on "enhancement" allegations as a matter of state law. But if the Court is right today, those protections could be withdrawn tomorrow.
Earlier this Term, in Almendarez-Torres v. United States, 523 U. S. 224 (1998), I discussed our precedents bearing on this issue and concluded that it was a grave and doubtful question whether the Constitution permits a fact that increases the maximum sentence to which a defendant is exposed to be treated as a sentencing enhancement rather than an element of a criminal offense. See id., at 260 (dissenting opinion). I stopped short of answering that question, because I thought the doctrine of constitutional doubt required us to interpret the federal statute at issue as setting forth an element rather than an enhancement, thereby avoiding the problem. Ibid. Since the present case involves a state statute already authoritatively construed as an enhancement by the California Supreme Court, I must now answer the constitutional question. Petitioner Monge was convicted of the crime of using a minor to sell marijuana, which carries a maximum possible sentence of seven years in prison under California law. See California Health & Safety Code Ann. § 11361(a) (West 1991). He was later sentenced to eleven years in prison, however, on the basis of
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