518
Thomas, J., concurring
substantially described to the defendant, if the complaint fails to set forth the former convictions which are essential features of it." 130 Mass., at 36.8
Without belaboring the point any further, I simply note that this traditional understanding—that a "crime" includes every fact that is by law a basis for imposing or increasing punishment—continued well into the 20th century, at least until the middle of the century. See Knoll & Singer, Searching for the "Tail of the Dog": Finding "Elements" of Crimes in the Wake of McMillan v. Pennsylvania, 22 Seattle U. L. Rev. 1057, 1069-1081 (1999) (surveying 20th-century decisions of federal courts prior to McMillan); see also People v. Ratner, 67 Cal. App. 2d Supp. 902, 903-906, 153 P. 2d 790, 791-793 (1944). In fact, it is fair to say that McMillan began a revolution in the law regarding the definition of "crime." Today's decision, far from being a sharp break with the past, marks nothing more than a return to the status quo ante—the status quo that reflected the original meaning of the Fifth and Sixth Amendments.
III
The consequence of the above discussion for our decisions in Almendarez-Torres and McMillan should be plain enough, but a few points merit special mention.
8 See also State v. Austin, 113 Mo. 538, 542, 21 S. W. 31, 32 (1893) (prior conviction is a "material fac[t]" of the "aggravated offense"); Bandy v. Hehn, 10 Wyo. 167, 172-174, 67 P. 979, 980 (1902) ("[I]n reason, and by the great weight of authority, as the fact of a former conviction enters into the offense to the extent of aggravating it and increasing the punishment, it must be alleged in the information and proved like any other material fact, if it is sought to impose the greater penalty. The statute makes the prior conviction a part of the description and character of the offense intended to be punished" (citing Tuttle v. Commonwealth, 68 Mass. 505 (1854))); State v. Smith, 129 Iowa 709, 711-712, 106 N. W. 187, 188-189 (1906) (similar); State v. Scheminisky, 31 Idaho 504, 506-507, 174 P. 611, 611-612 (1918) (similar).
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