Cite as: 530 U. S. 466 (2000)
Breyer, J., dissenting
tried to a jury, and found to exist beyond a reasonable doubt. My question in respect to this holding is, simply, "why would the Constitution contain such a requirement"?
III
In light of the sentencing background described in Parts I and II, I do not see how the majority can find in the Constitution a requirement that "any fact" (other than recidivism) that increases the maximum penalty for a crime "must be submitted to a jury." Ante, at 490. As Justice O'Connor demonstrates, this Court has previously failed to view the Constitution as embodying any such principle, while sometimes finding to the contrary. See Almendarez-Torres, supra, at 239-247; McMillan, supra, at 84-91. The majority raises no objection to traditional pre-Guidelines sentencing procedures under which judges, not juries, made the factual findings that would lead to an increase in an individual offender's sentence. How does a legislative determination differ in any significant way? For example, if a judge may on his or her own decide that victim injury or bad motive should increase a bank robber's sentence from 5 years to 10, why does it matter that a legislature instead enacts a statute that increases a bank robber's sentence from 5 years to 10 based on this same judicial finding?
With the possible exception of the last line of Justice Scalia's concurring opinion, the majority also makes no constitutional objection to a legislative delegation to a commission of the authority to create guidelines that determine how a judge is to exercise sentencing discretion. See also ante, at 523, n. 11 (Thomas, J., concurring) (reserving the question). But if the Constitution permits Guidelines, why does it not permit Congress similarly to guide the exercise of a judge's sentencing discretion? That is, if the Constitution permits a delegatee (the commission) to exercise sentencing-related rulemaking power, how can it deny the
561
Page: Index Previous 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 NextLast modified: October 4, 2007