Opinion of Kennedy, J.
That reasoning still controls. If the facts judges consider when exercising their discretion within the statutory range are not elements, they do not become as much merely because legislatures require the judge to impose a minimum sentence when those facts are found—a sentence the judge could have imposed absent the finding. It does not matter, for the purposes of the constitutional analysis, that in statutes like the Pennsylvania Act the "State provides" that a fact "shall give rise both to a special stigma and to a special punishment." Id., at 103 (Stevens, J., dissenting). Judges choosing a sentence within the range do the same, and "[j]udges, it is sometimes necessary to remind ourselves, are part of the State." Apprendi, supra, at 498 (Scalia, J., concurring). These facts, though stigmatizing and punitive, have been the traditional domain of judges; they have not been alleged in the indictment or proved beyond a reasonable doubt. There is no reason to believe that those who framed the Fifth and Sixth Amendments would have thought of them as the elements of the crime.
This conclusion might be questioned if there were extensive historical evidence showing that facts increasing the defendant's minimum sentence (but not affecting the maximum) have, as a matter of course, been treated as elements. The evidence on this score, however, is lacking. Statutes like the Pennsylvania Act, which alter the minimum sentence without changing the maximum, were for the most part the product of the 20th century, when legislatures first asserted control over the sentencing judge's discretion. Courts at the founding (whose views might be relevant, given the contemporaneous adoption of the Bill of Rights, see Apprendi, 530 U. S., at 478-484) and in the mid-19th century (whose views might be relevant, given that sentencing ranges first arose then, see id., at 501-518 (Thomas, J., concurring)) were not as a general matter required to decide whether a fact giving rise to a mandatory minimum sentence within the available range was to be alleged in the indictment andPage: Index Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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