576
Thomas, J., dissenting
years to life in prison. But with a finding that a defendant brandished a firearm, the penalty range becomes harsher, seven years to life imprisonment. § 924(c)(1)(A)(ii). And if the court finds that a defendant discharged a firearm, the range becomes even more severe, 10 years to life. § 924(c)(1)(A)(iii). Thus, it is ultimately beside the point whether as a matter of statutory interpretation brandishing is a sentencing factor, because as a constitutional matter brandishing must be deemed an element of an aggravated offense. See Apprendi, supra, at 483, n. 10 ("[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense").
I agree with the Court that a legislature is free to decree, within constitutional limits, which facts are elements that constitute a crime. See ante, at 550. But when the legislature provides that a particular fact shall give rise " 'both to a special stigma and to a special punishment,' " ante, at 560 (plurality opinion) (quoting McMillan, 477 U. S., at 103 (Stevens, J., dissenting)), the constitutional consequences are clear. As the Court acknowledged in Apprendi, society has long recognized a necessary link between punishment and crime, 530 U. S., at 478 ("The defendant's ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime"). This link makes a great deal of sense: Why, after all, would anyone care if they were convicted of murder, as opposed to manslaughter, but for the increased penalties for the former offense, which in turn reflect the greater moral opprobrium society attaches to the act? We made clear in Apprendi that if a statute " 'annexes a higher degree of punishment' " based on certain circumstances, exposing a defendant to that higher degree of punishment requires that those circumstances be charged in the indictment and proved beyond a reasonable doubt. Id., at 480 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 51 (15th ed. 1862)).
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