Cite as: 526 U. S. 813 (1999)
Kennedy, J., dissenting
N. Epstein, California Criminal Law § 2942, p. 245 (2d ed., Supp. 1997) ("A unanimity instruction is not required when the crime charged involves a continuous course of conduct . . . such as failure to provide, child abuse, contributing to the delinquency of a minor, and driving under the influence"). States have also chosen to define as continuous some crimes that involve repeated conduct where the details of specific instances may be difficult to prove, as in cases of child molestation or promoting prostitution. See, e. g., People v. Adames, 54 Cal. App. 4th 198, 62 Cal. Rptr. 2d 631 (1997) (continuous sexual abuse of a child); People v. Reynolds, 294 Ill. App. 3d 58, 689 N. E. 2d 335 (1997) (criminal sexual assault and aggravated sexual abuse of a minor); State v. Molitor, 210 Wis. 2d 416, 565 N. W. 2d 248 (App. 1997) (repeated sexual intercourse with underage partner); State v. Doogan, 82 Wash. App. 185, 917 P. 2d 155 (1996) (advancing prostitution and profiting from prostitution). The CCE offense has some attributes of both of these categories: To the extent the CCE offense aims to punish acting as leader of a drug enterprise, it targets an ongoing violation. To the extent it relies on there being a series of violations, it may be susceptible to difficulties of proof which make it reasonable to base a conviction upon the existence of the series rather than the individual violations. As in this very case, the transactions may have been so numerous or taken place so long ago that they cannot be recalled individually.
Having failed to confront the acknowledged purpose of the statute, the Court invokes the principle of constitutional doubt. Just last Term we warned that overuse of the doctrine risks aggravating the friction between the branches of Government "by creating (through the power of precedent) statutes foreign to those Congress intended, simply through fear of a constitutional difficulty that, upon analysis, will evaporate." Almendarez-Torres v. United States, 523 U. S. 224, 238 (1998). As discussed in Part II, infra, the CCE statute in my view passes constitutional muster. Yet the
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