Cite as: 530 U. S. 466 (2000)
O'Connor, J., dissenting
ital punishment, unlike any other area, we have imposed special constraints on a legislature's ability to determine what facts shall lead to what punishment—we have restricted the legislature's ability to define crimes. Under our recent capital-punishment jurisprudence, neither Arizona nor any other jurisdiction could provide—as, previously, it freely could and did—that a person shall be death eligible automatically upon conviction for certain crimes. We have interposed a barrier between a jury finding of a capital crime and a court's ability to impose capital punishment. Whether this distinction between capital crimes and all others, or some other distinction, is sufficient to put the former outside the rule that I have stated is a question for another day.11
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For the foregoing reasons, as well as those given in the Court's opinion, I agree that the New Jersey procedure at issue is unconstitutional.
Justice O'Connor, with whom The Chief Justice, Justice Kennedy, and Justice Breyer join, dissenting.
Last Term, in Jones v. United States, 526 U. S. 227 (1999), this Court found that our prior cases suggested the following principle: "[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., at 243, n. 6. At the time, Justice Kennedy rightly criticized the Court for its failure to ex-11 It is likewise unnecessary to consider whether (and, if so, how) the rule regarding elements applies to the Sentencing Guidelines, given the unique status that they have under Mistretta v. United States, 488 U. S. 361 (1989). But it may be that this special status is irrelevant, because the Guidelines "have the force and effect of laws." Id., at 413 (Scalia, J., dissenting).
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