554
O'Connor, J., dissenting
in McMillan; it has taken a traditional sentencing factor and dictated the precise weight judges should attach to that factor when the specific motive is to intimidate on the basis of race.
The New Jersey statute resembles the Pennsylvania statute we upheld in McMillan in every respect but one. That difference—that the New Jersey statute increases the maximum punishment to which petitioner was exposed—does not persuade me that New Jersey "sought to evade the constitutional requirements associated with the characterization of a fact as an offense element." Supra, at 524. There is no question that New Jersey could prescribe a range of 5 to 20 years' imprisonment as punishment for its weapons possession offense. Thus, as explained above, the specific means by which the State chooses to control judges' discretion within that permissible range is of no moment. Cf. Patterson, supra, at 207-208 ("The Due Process Clause, as we see it, does not put New York to the choice of abandoning [the affirmative defense] or undertaking to disprove [its] existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment"). The New Jersey statute also resembles in virtually every respect the federal statute we considered in Almendarez-Torres. That the New Jersey statute provides an enhancement based on the defendant's motive while the statute in Almendarez-Torres provided an enhancement based on the defendant's commission of a prior felony is a difference without constitutional importance. Both factors are traditional bases for increasing an offender's sentence and, therefore, may serve as the grounds for a sentence enhancement.
On the basis of our prior precedent, then, I would hold that the New Jersey sentence-enhancement statute is constitutional, and affirm the judgment of the Supreme Court of New Jersey.
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