Cite as: 526 U. S. 227 (1999)
Kennedy, J., dissenting
rights to indictment and notice as claimed by AlmendarezTorres." Ante, at 248-249. This is not a valid basis upon which to distinguish Almendarez-Torres. The petitioner in Almendarez-Torres claimed that "the Constitution requires Congress to treat recidivism as an element of the offense" and that, as a corollary, "[t]he Government must prove that 'element' to a jury." 523 U. S., at 239.
The Court has not suggested in its previous opinions, moreover, that there is a difference, in the context relevant here, between, on the one hand, a right to a jury determination, and, on the other, a right to notice by indictment and to a determination based upon proof by the prosecution beyond a reasonable doubt. The Court offers no reason why the concept of an element of a crime should mean one thing for one inquiry and something else for another. There would be little to guide us in formulating a standard to differentiate between elements of a crime for purposes of indictment, jury trial, and proof beyond a reasonable doubt. Inviting such confusion is a curious way to safeguard the important procedural rights of criminal defendants.
Second, the Court is eager to find controlling significance in the fact that the statute at issue in Almendarez-Torres made recidivism a sentencing factor, while the sentencing factor at issue here is serious bodily injury. This is not a difference of constitutional dimension, and AlmendarezTorres does not say otherwise. It is true that our statutory analysis was informed in substantial measure by the fact that recidivism is a common sentencing factor. Id., at 230. In our constitutional analysis we invoked the long history of using recidivism as a basis for increasing an offender's sentence to illustrate the novel and anomalous character of the petitioner's proposed constitutional rule—i. e., that under McMillan v. Pennsylvania any factor that increases the maximum penalty for a crime must be deemed an element of the offense. We proceeded to reject that rule. Almendarez-Torres v. United States, 523 U. S., at 247. The
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