Cite as: 536 U. S. 545 (2002)
Thomas, J., dissenting
conclusion in Apprendi, which adopts the position taken by the dissent in McMillan: "[I]f a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a 'fact necessary to constitute the crime' within the meaning of our holding in In re Winship." 477 U. S., at 103 (Stevens, J., dissenting). See Apprendi, supra, at 483-484.
Nor should stare decisis dictate the outcome in this case; the stare decisis effect of McMillan is considerably weakened for a variety of reasons. As an initial matter, where the Court has wrongly decided a constitutional question, the force of stare decisis is at its weakest. See Ring v. Arizona, post, at 608; Agostini v. Felton, 521 U. S. 203, 235 (1997). And while the relationship between punishment and the constitutional protections attached to the elements of a crime traces its roots back to the common law, McMillan was decided only 16 years ago.5 No Court of Appeals, let alone this Court, has held that Apprendi has retroactive effect. The United States concedes, with respect to prospective application, that it can charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury. Tr. of Oral Arg. 42. Consequently, one is hard pressed to give credence to the plurality's suggestion that "[i]t is critical not to abandon" McMillan "at this late date." Ante, at 567. Rather, it is imperative that the Court maintain absolute fidelity to the protections of the individual af-5 Mandatory minimum sentence schemes are themselves phenomena of fairly recent vintage genesis. See ante, at 558-559; see also Apprendi v. New Jersey, 530 U. S. 466, 518 (2000) (Thomas, J., concurring) ("In fact, it is fair to say that McMillan began a revolution in the law regarding the definition of 'crime.' Today's decision, far from being a sharp break with the past, marks nothing more than a return to the status quo ante—the status quo that reflected the original meaning of the Fifth and Sixth Amendments").
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