580
Thomas, J., dissenting
felony, see 530 U. S., at 478-479, and the absolute statutory limits of his punishment change, constituting an increased penalty. In either case the defendant must be afforded the procedural protections of notice, a jury trial, and a heightened standard of proof with respect to the facts warranting exposure to a greater penalty. See id., at 490; Jones, 526 U. S., at 253 (Scalia, J., concurring).
III
McMillan rested on the premise that the " 'applicability of the reasonable-doubt standard . . . has always been dependent on how a State defines the offense that is charged in any given case.' " 477 U. S., at 85 (quoting Patterson v. New York, 432 U. S. 197, 211, n. 12 (1977)). Thus, it cannot withstand the logic of Apprendi, at least with respect to facts for which the legislature has prescribed a new statutory sentencing range. McMillan broke from the "traditional understanding" of crime definition, a tradition that "continued well into the 20th century, at least until the middle of the century." Apprendi, supra, at 518 (Thomas, J., concurring). The Court in McMillan did not, therefore, acknowledge that the change in the prescribed sentence range upon the finding of particular facts changed the prescribed range of penalties in a constitutionally significant way. Rather, while recognizing applicable due process limits, it concluded that the mandatory minimum at issue did not increase the prescribed range of penalties but merely required the judge to impose a specific penalty "within the range already available to it." 477 U. S., at 87-88. As discussed, supra, at 577-579, this analysis is inherently flawed.
Jones called into question, and Apprendi firmly limited, a related precept underlying McMillan: namely, the State's authority to treat aggravated behavior as a factor increasing the sentence, rather than as an element of the crime. Although the plurality resurrects this principle, see ante, at 559-560, 565, it must do so in the face of the Court's contrary
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