522
Thomas, J., concurring
could be 0 to 10 years, with the mandatory minimum of 5 years, and he could be sentenced to 7. (Of course, a similar scenario is possible with an increased maximum.) But it is equally true that his expected punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. The mandatory minimum "entitl[es] the government," Wood-ruff, supra, at 538, to more than it would otherwise be entitled (5 to 10 years, rather than 0 to 10 and the risk of a sentence below 5). Thus, the fact triggering the mandatory minimum is part of "the punishment sought to be inflicted," Bishop, Criminal Procedure 50; it undoubtedly "enters into the punishment" so as to aggravate it, id., § 540, at 330, and is an "ac[t] to which the law affixes . . . punishment," id., § 80, at 51. Further, just as in Hobbs and Searcy, see supra, at 512-513, it is likely that the change in the range available to the judge affects his choice of sentence. Finally, in numerous cases, such as Lacy, Garcia, and Jones, see supra, at 504-505, 514, the aggravating fact raised the whole range— both the top and bottom. Those courts, in holding that such a fact was an element, did not bother with any distinction between changes in the maximum and the minimum. What mattered was simply the overall increase in the punishment provided by law. And in several cases, such as Smith and Woodruff, see supra, at 502, 514, the very concept of maximums and minimums had no applicability, yet the same rule for elements applied. See also Harrington (discussed supra, at 517-518).
Finally, I need not in this case address the implications of the rule that I have stated for the Court's decision in Walton v. Arizona, 497 U. S. 639, 647-649 (1990). See ante, at 496. Walton did approve a scheme by which a judge, rather than a jury, determines an aggravating fact that makes a convict eligible for the death penalty, and thus eligible for a greater punishment. In this sense, that fact is an element. But that scheme exists in a unique context, for in the area of cap-
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