502
Thomas, J., concurring
all sorts of facts, including recidivism. As legislatures varied common-law crimes and created new crimes, American courts, particularly from the 1840's on, readily applied to these new laws the common-law understanding that a fact that is by law the basis for imposing or increasing punishment is an element.2
Massachusetts, which produced the leading cases in the antebellum years, applied this rule as early as 1804, in Commonwealth v. Smith, 1 Mass. *245, and foreshadowed the fuller discussion that was to come. Smith was indicted for and found guilty of larceny, but the indictment failed to allege the value of all of the stolen goods. Massachusetts had abolished the common-law distinction between grand and simple larceny, replacing it with a single offense of larceny whose punishment (triple damages) was based on the value of the stolen goods. The prosecutor relied on this abolition of the traditional distinction to justify the indict-ment's omissions. The court, however, held that it could not sentence the defendant for the stolen goods whose value was not set out in the indictment. Id., at *246-*247.
The understanding implicit in Smith was explained in Hope v. Commonwealth, 50 Mass. 134 (1845). Hope was indicted for and convicted of larceny. The larceny statute at
2 It is strange that Justice O'Connor faults me for beginning my analysis with cases primarily from the 1840's, rather from the time of the founding. See post, at 527-528 (dissenting opinion). As the Court explains, ante, at 478-480, and as she concedes, post, at 525 (O'Connor, J., dissenting), the very idea of a sentencing enhancement was foreign to the common law of the time of the founding. Justice O'Connor therefore, and understandably, does not contend that any history from the founding supports her position. As far as I have been able to tell, the argument that a fact that was by law the basis for imposing or increasing punishment might not be an element did not seriously arise (at least not in reported cases) until the 1840's. As I explain below, from that time on—for at least a century—essentially all authority rejected that argument, and much of it did so in reliance upon the common law. I find this evidence more than sufficient.
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