542
O'Connor, J., dissenting
Jersey could cure its sentencing scheme, and achieve virtually the same results, by drafting its weapons possession statute in the following manner: First, New Jersey could prescribe, in the weapons possession statute itself, a range of 5 to 20 years' imprisonment for one who commits that criminal offense. Second, New Jersey could provide that a defendant convicted under the statute whom a judge finds, by a preponderance of the evidence, not to have acted with a purpose to intimidate an individual on the basis of race may receive a sentence no greater than 10 years' imprisonment.
The rule that Justice Thomas advocates in his concurring opinion embraces this precise distinction between a fact that increases punishment and a fact that decreases punishment. See ante, at 501 ("[A] 'crime' includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment)"). The historical evidence on which Justice Thomas relies, however, demonstrates both the difficulty and the pure formalism of making a constitutional "elements" rule turn on such a difference. For example, the Wisconsin statute considered in Lacy v. State, 15 Wis. *13 (1862), could plausibly qualify as either increasing or mitigating punishment on the basis of the same specified fact. There, Wisconsin provided that the willful and malicious burning of a dwelling house in which "the life of no person shall have been destroyed" was punishable by 7 to 14 years in prison, but that the same burning at a time in which "there was no person lawfully in the dwelling house" was punishable by only 3 to 10 years in prison. Wis. Rev. Stat., ch. 165, § 1 (1858). Although the statute appeared to make the absence of persons from the affected dwelling house a fact that mitigated punishment, the Wisconsin Supreme Court found that the presence of a person in the affected house constituted an aggravating circumstance. Lacy, supra, at *15-*16. As both this example and the above hypothetical redrafted New Jersey statute demonstrate, see supra, at 540, whether a fact is responsible for an
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