558
Opinion of Kennedy, J.
guards were intended to apply. Patterson v. New York, supra, at 211, n. 12.
McMillan's answer stemmed from certain historical and doctrinal understandings about the role of the judge at sentencing. The mid-19th century produced a general shift in this country from criminal statutes "providing fixed-term sentences to those providing judges discretion within a permissible range." Apprendi, 530 U. S., at 481. Under these statutes, judges exercise their sentencing discretion through "an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come." United States v. Tucker, 404 U. S. 443, 446 (1972). The Court has recognized that this process is constitutional—and that the facts taken into consideration need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. See, e. g., United States v. Watts, 519 U. S. 148, 156 (1997) (per curiam); Nichols v. United States, 511 U. S. 738, 747 (1994); Williams v. New York, 337 U. S. 241, 246 (1949). As the Court reiterated in Jones: "It is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution." 526 U. S., at 248. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.
That proposition, coupled with another shift in prevailing sentencing practices, explains McMillan. In the latter part of the 20th century, many legislatures, dissatisfied with sentencing disparities among like offenders, implemented measures regulating judicial discretion. These systems maintained the statutory ranges and the judge's factfinding role but assigned a uniform weight to factors judges often relied upon when choosing a sentence. See, e. g., Payne v. Tennessee, 501 U. S. 808, 820 (1991). One example of reform, the
Page: Index Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: October 4, 2007