242
Opinion of the Court
lacked the discretion to omit "traditional" elements from the definition of crimes and instead to require the accused to disprove such elements.
These cases about allocation of burden, with their implications about the charging obligation and the requisite quantum of proof, were succeeded by McMillan v. Pennsylvania, 477 U. S. 79 (1986), in which the Winship issue rose from a provision that a judge's finding (by a preponderance) of visible possession of a firearm would require a mandatory minimum sentence for certain felonies, but a minimum that fell within the sentencing ranges otherwise prescribed. Although the Court rejected the petitioner's claim insofar as it would have required a finding beyond a reasonable doubt of any fact upon which a mandatory minimum sentence depended (and rejected certain subsidiary arguments as well), it did observe that the result might have been different if proof of visible possession had exposed a defendant to a sentence beyond the maximum that the statute otherwise set without reference to that fact. 477 U. S., at 88.
McMillan is notable not only for acknowledging the question of due process requirements for factfinding that raises a sentencing range, but also for disposing of a claim that the Pennsylvania law violated the Sixth Amendment right to jury trial as well. The petitioner's basic argument was for a right to jury determination of all "ultimate facts concerning the offense committed," id., at 93, and although the Court disposed of this by reference back to its due process discussion, that discussion had broached the potential constitutional significance of factfinding that raised the sentencing ceiling.
McMillan, then, recognizes a question under both the Due Process Clause of the Fourteenth Amendment and the jury guarantee of the Sixth: when a jury determination has not been waived, may judicial factfinding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime?
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