Cite as: 536 U. S. 584 (2002)
Opinion of the Court
U. S., at 649 (quoting Cabana, 474 U. S., at 385-386). "If the Constitution does not require that the Enmund finding be proved as an element of the offense of capital murder, and does not require a jury to make that finding," Walton stated, "we cannot conclude that a State is required to denominate aggravating circumstances 'elements' of the offense or permit only a jury to determine the existence of such circumstances." 497 U. S., at 649.
In dissent in Walton, Justice Stevens urged that the Sixth Amendment requires "a jury determination of facts that must be established before the death penalty may be imposed." Id., at 709. Aggravators "operate as statutory 'elements' of capital murder under Arizona law," he reasoned, "because in their absence, [the death] sentence is unavailable." Id., at 709, n. 1. "If th[e] question had been posed in 1791, when the Sixth Amendment became law," Justice Stevens said, "the answer would have been clear," for "[b]y that time,
"the English jury's role in determining critical facts in homicide cases was entrenched. As fact-finder, the jury had the power to determine not only whether the defendant was guilty of homicide but also the degree of the offense. Moreover, the jury's role in finding facts that would determine a homicide defendant's eligibility for capital punishment was particularly well established. Throughout its history, the jury determined which homicide defendants would be subject to capital punishment by making factual determinations, many of which related to difficult assessments of the defendant's state of mind. By the time the Bill of Rights was adopted, the jury's right to make these determinations was unquestioned." Id., at 710-711 (quoting White, Fact-Finding and the Death Penalty: The Scope of a Capital Defendant's Right to Jury Trial, 65 Notre Dame L. Rev. 1, 10-11 (1989)).
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