520
Thomas, J., concurring
Cf. 4 W. Blackstone, Commentaries on the Law of England 371-372 (1769) (noting judges' broad discretion in setting amount of fine and length of imprisonment for misdemeanors, but praising determinate punishment and "discretion . . . regulated by law"); Perley, 86 Me., at 429, 432, 30 A., at 74, 75-76 (favorably discussing Bishop's rule on elements without mentioning, aside from quotation of statute in statement of facts, that defendant's conviction for robbery exposed him to imprisonment for life or any term of years). Thus, it is one thing to consider what the Constitution requires the prosecution to do in order to entitle itself to a particular kind, degree, or range of punishment of the accused, see Woodruff, 68 F., at 538, and quite another to consider what constitutional constraints apply either to the imposition of punishment within the limits of that entitlement or to a legislature's ability to set broad ranges of punishment. In answering the former constitutional question, I need not, and do not, address the latter.
Second, and related, one of the chief errors of AlmendarezTorres—an error to which I succumbed—was to attempt to discern whether a particular fact is traditionally (or typically) a basis for a sentencing court to increase an offender's sentence. 523 U. S., at 243-244; see id., at 230, 241. For the
judge's] discretion" by specifying a particular fact for the judge to consider along with the many others that would enter into his sentencing decision. Ibid. Cf. Jones v. State, 63 Ga. 141, 143 (1879) (whether burglary occurred in day or at night is a "constituent of the offense" because law fixes different ranges of punishment based on this fact). And the statute attached no definite consequence to that particular fact: A sentencing judge presumably could have imposed a sentence of seven years less one second for daytime arson. Finally, it is likely that the statute in Brightwell, given its language ("a less period") and its placement in a separate section, was read as setting out an affirmative defense or mitigating circumstance. See Wright v. State, 113 Ga. App. 436, 437-438, 148 S. E. 2d 333, 335-336 (1966) (suggesting that it would be error to refuse to charge later version of this statute to jury upon request of defendant). See generally Arch-bold *52, *105-*106 (discussing rules for determining whether fact is an element or a defense).
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