Cite as: 526 U. S. 227 (1999)
Kennedy, J., dissenting
it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense." Patterson v. New York, 432 U. S. 197, 215 (1977).
In Patterson, the Court confronted a state rule placing on the defendant the burden of establishing extreme emotional disturbance as an affirmative defense to murder. As today's majority opinion recognizes, Patterson stands for the proposition that the State has considerable leeway in determining which factors shall be included as elements of its crimes. We determined that New York was permitted to place the burden of proving the affirmative defense on defendants because "nothing was presumed or implied against" them. Id., at 216.
In McMillan v. Pennsylvania, 477 U. S. 79 (1986), we upheld a state law requiring imposition of a mandatory minimum sentence upon the trial judge's determination that the defendant had visibly possessed a firearm during the commission of an enumerated offense. Today's majority errs, in my respectful view, by suggesting McMillan is somewhat inconsistent with Patterson. McMillan's holding follows easily from Patterson. McMillan confirmed the State's authority to treat aggravated behavior as a factor increasing the sentence, rather than as an element of the crime. The opinion made clear that we had already "rejected the claim that whenever a State links the 'severity of punishment' to 'the presence or absence of an identified fact' the State must prove that fact beyond a reasonable doubt." 477 U. S., at 84 (quoting Patterson v. New York, supra, at 214).
In today's decision, the Court chooses to rely on language from McMillan to create a doubt where there should be none. Ante, at 242. Yet any uncertainty on this score ought to have been put to rest by our decision last Term in Almendarez-Torres. To say otherwise, the majority must strive to limit Almendarez-Torres, just as it must struggle
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