538
O'Connor, J., dissenting
The distinction of Walton offered by the Court today is baffling, to say the least. The key to that distinction is the Court's claim that, in Arizona, the jury makes all of the findings necessary to expose the defendant to a death sentence. See ante, at 496-497 (quoting Almendarez-Torres, 523 U. S., at 257, n. 2 (Scalia, J., dissenting)). As explained above, that claim is demonstrably untrue. A defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty. Indeed, at the time Walton was decided, the author of the Court's opinion today understood well the issue at stake. See Walton, 497 U. S., at 709 (Stevens, J., dissenting) ("[U]nder Arizona law, as construed by Arizona's highest court, a first-degree murder is not punishable by a death sentence until at least one statutory aggravating circumstance has been proved"). In any event, the extent of our holding in Walton should have been perfectly obvious from the face of our decision. We upheld the Arizona scheme specifically on the ground that the Constitution does not require the jury to make the factual findings that serve as the " 'prerequisite to imposition of [a death] sentence,' " id., at 647 (quoting Clemons, supra, at 745), or " 'the specific findings authorizing the imposition of the sentence of death,' " Walton, supra, at 648 (quoting Hildwin, supra, at 640-641). If the Court does not intend to overrule Walton, one would be hard pressed to tell from the opinion it issues today.
The distinction of Walton offered by Justice Thomas is equally difficult to comprehend. According to Justice Thomas, because the Constitution requires state legislatures to narrow sentencing discretion in the capital punishment context, facts that expose a convicted defendant to a capital sentence may be different from all other facts that expose a defendant to a more severe sentence. See ante, at 522-523.
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