272
Kennedy, J., dissenting
ing factors at issue as sentencing enhancements and not as elements of the offense, the same is true of serious bodily injury under the reading of § 2119 the Court rejects as constitutionally suspect. The question is why, given that characterization, the statutory scheme in Walton was constitutionally permissible. Under the relevant Arizona statute, Walton could not have been sentenced to death unless the trial judge found at least one of the enumerated aggravating factors. See Ariz. Rev. Stat. Ann. § 13-703 (1989). Absent such a finding, the maximum potential punishment provided by law was a term of imprisonment. If it is constitutionally impermissible to allow a judge's finding to increase the maximum punishment for carjacking by 10 years, it is not clear why a judge's finding may increase the maximum punishment for murder from imprisonment to death. In fact, Walton would appear to have been a better candidate for the Court's new approach than is the instant case. In Walton, the question was the aggravated character of the defendant's conduct, not, as here, a result that followed after the criminal conduct had been completed.
In distinguishing this line of precedent, the Court suggests Walton did not "squarely fac[e]" the key constitutional question "implicated by the Government's position on the meaning of § 2119(2)." Ante, at 251. The implication is clear. Reexamination of this area of our capital jurisprudence can be expected.
* * *
The Court misreads § 2119 and seeks to create constitutional doubt where there is none. In my view, AlmendarezTorres controls this case. I would hold § 2119 as interpreted by the Court of Appeals constitutional, and I dissent from the opinion and judgment of the Court.
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