500
Thomas, J., concurring
beyond a reasonable doubt every fact necessary to constitute the crime. In re Winship, 397 U. S. 358, 364 (1970).
All of these constitutional protections turn on determining which facts constitute the "crime"—that is, which facts are the "elements" or "ingredients" of a crime. In order for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime; likewise, in order for a jury trial of a crime to be proper, all elements of the crime must be proved to the jury (and, under Winship, proved beyond a reasonable doubt). See J. Story, Commentaries on the Constitution §§ 928- 929, pp. 660-662, § 934, p. 664 (1833); J. Archbold, Pleading and Evidence in Criminal Cases *41, *99-*100 (hereinafter Archbold).1
Thus, it is critical to know which facts are elements. This question became more complicated following the Court's decision in McMillan v. Pennsylvania, 477 U. S. 79 (1986), which spawned a special sort of fact known as a sentencing enhancement. See ante, at 478, 485, 494. Such a fact increases a defendant's punishment but is not subject to the constitutional protections to which elements are subject. Justice O'Connor's dissent, in agreement with McMillan and Almendarez-Torres v. United States, 523 U. S. 224 (1998), takes the view that a legislature is free (within unspecified outer limits) to decree which facts are elements and which are sentencing enhancements. Post, at 524.
Sentencing enhancements may be new creatures, but the question that they create for courts is not. Courts have
1 Justice O'Connor mischaracterizes my argument. See post, at 527- 528 (dissenting opinion). Of course the Fifth and Sixth Amendments did not codify common-law procedure wholesale. Rather, and as Story notes, they codified a few particular common-law procedural rights. As I have explained, the scope of those rights turns on what constitutes a "crime." In answering that question, it is entirely proper to look to the common law.
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