Ring v. Arizona, 536 U.S. 584, 27 (2002)

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Scalia, J., concurring

Justice Scalia, with whom Justice Thomas joins, concurring.

The question whether Walton v. Arizona, 497 U. S. 639 (1990), survives our decision in Apprendi v. New Jersey, 530 U. S. 466 (2000), confronts me with a difficult choice. What compelled Arizona (and many other States) to specify particular "aggravating factors" that must be found before the death penalty can be imposed, see 1973 Ariz. Sess. Laws ch. 138, 5 (originally codified as Ariz. Rev. Stat. 13-454), was the line of this Court's cases beginning with Furman v. Georgia, 408 U. S. 238 (1972) (per curiam). See Walton, 497 U. S., at 659-660 (Scalia, J., concurring in part and concurring in judgment). In my view, that line of decisions had no proper foundation in the Constitution. Id., at 670 (" '[T]he prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed' " (quoting Gardner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist, J., dissenting))). I am therefore reluctant to magnify the burdens that our Furman jurisprudence imposes on the States. Better for the Court to have invented an evidentiary requirement that a judge can find by a preponderance of the evidence, than to invent one that a unanimous jury must find beyond a reasonable doubt.

On the other hand, as I wrote in my dissent in Almendarez-Torres v. United States, 523 U. S. 224, 248 (1998), and as I reaffirmed by joining the opinion for the Court in Apprendi, I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane— must be found by the jury beyond a reasonable doubt.

The quandary is apparent: Should I continue to apply the last-stated principle when I know that the only reason the fact is essential is that this Court has mistakenly said that the Constitution requires state law to impose such "aggra-

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