Cite as: 526 U. S. 227 (1999)
Kennedy, J., dissenting
jury or harm. This is unremarkable. The laws reflect nothing more than common intuition that a forcible theft, all else being equal, is more blameworthy when it results in serious bodily injury or death. I have no doubt Congress was responding to this same intuition when it added clauses (2) and (3) to § 2119. Recognizing the common policy concern, however, gives scant guidance on the question before us: whether Congress meant to give effect to the policy by making serious bodily injury and death elements of distinct offenses or by making them sentencing factors. I agree with the Court that these state statutes are not direct authority for the issue presented here. Ante, at 237.
The persuasive force of the Court's state-law citations is further undercut by the structural differences between those laws and § 2119. Ten of the thirteen statutes cited by the Court follow the same pattern. One statutory section sets forth the elements of the basic robbery offense. Another section (captioned "Aggravated robbery" or "Robbery in the first degree") incorporates the basic robbery offense (either by explicit cross-reference or by obvious implication), adds the bodily or physical injury element (in the active voice), and then provides that the aggravated crime is subject to a higher penalty set forth elsewhere (e. g., "a class A felony"). Two of the remaining three statutes, N. Y. Penal Law § 160.15 (McKinney 1988), and Ky. Rev. Stat. Ann. § 515.020 (Michie 1990), deviate from this pattern in only minor respects while the third, N. H. Rev. Stat. Ann. § 636:1 (1996), has a singular structure.
Had Congress wished to emulate this state practice in detail, one might have expected it to structure § 2119 in a similar manner to the majority model. Cf. 18 U. S. C. §§ 2113(e), (d). It did not do so. This suggests to me either (i) that Congress chose a different structure than utilized by the States in order to show its intent to treat "serious bodily injury" as a sentencing factor, or (ii) that Congress simply did not concentrate on state practice in deciding whether "se-
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