Cite as: 530 U. S. 466 (2000)
O'Connor, J., dissenting
enacted to evade the constitutional requirements that attach when a State makes a fact an element of the charged offense. For example, New Jersey did not take what had previously been an element of the weapons possession offense and transform it into a sentencing factor. See McMillan, 477 U. S., at 89.
In sum, New Jersey "simply took one factor that has always been considered by sentencing courts to bear on punishment"—a defendant's motive for committing the criminal offense—"and dictated the precise weight to be given that factor" when the motive is to intimidate a person because of race. Id., at 89-90. The Court claims that a purpose to intimidate on account of race is a traditional mens rea element, and not a motive. See ante, at 492-493. To make this claim, the Court finds it necessary once again to ignore our settled precedent. In Wisconsin v. Mitchell, 508 U. S. 476 (1993), we considered a statute similar to the one at issue here. The Wisconsin statute provided for an increase in a convicted defendant's punishment if the defendant intentionally selected the victim of the crime because of that victim's race. Id., at 480. In a unanimous decision upholding the statute, we specifically characterized it as providing a sentence enhancement based on the "motive" of the defendant. See id., at 485 (distinguishing between punishment of defend-ant's "criminal conduct" and penalty enhancement "for conduct motivated by a discriminatory point of view" (emphasis added)); id., at 484-485 ("[U]nder the Wisconsin statute the same criminal conduct may be more heavily punished if the victim is selected because of his race . . . than if no such motive obtained" (emphasis added)). That same characterization applies in the case of the New Jersey statute. As we also explained in Mitchell, the motive for committing an offense has traditionally been an important factor in determining a defendant's sentence. Id., at 485. New Jersey, therefore, has done no more than what we held permissible
553
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