Cite as: 526 U. S. 813 (1999)
Kennedy, J., dissenting
particular predicate offenses made up the continuing series before an enhanced punishment may be imposed.
II
In my view, there is no due process problem with interpreting the continuing series requirement as a single element of the crime. The plurality opinion in Schad spoke of "the impracticability of trying to derive any single test for the level of definitional and verdict specificity permitted by the Constitution." 501 U. S., at 637. Rather, our inquiry is guided by "due process with its demands for fundamental fairness and for the rationality that is an essential component of that fairness." Ibid. (citation omitted). Our analysis of fundamental fairness and rationality, by necessity, is contextual, taking into account both the purposes of the legislature and the practicalities of the criminal justice system. In the CCE context, the continuing series element advances the goals of the statute in a way that is neither unfair nor irrational: It is a direct and overt prohibition upon drug lords whose very persistence and success makes them a particular evil.
The CCE statute does not in any way implicate the suggestion in Schad that an irrational single crime consisting of, for instance, either robbery or failure to file a tax return would offend due process. See id., at 633, 650. Although the continuing series may consist of different drug crimes, the mere proof of a series does not suffice to convict. The Government must also prove action in concert with five or more persons, a leadership role for the defendant with respect to those persons, and substantial income or resources derived from the continuing series. The presence of these additional elements distinguishes the CCE statute from a simple recidivism statute, notwithstanding the Court's attempt to draw an analogy between the two. See ante, at 822.
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