Cite as: 536 U. S. 584 (2002)
Scalia, J., concurring
vating factors"? In Walton, to tell the truth, the Sixth Amendment claim was not put with the clarity it obtained in Almendarez-Torres and Apprendi. There what the appellant argued had to be found by the jury was not all facts essential to imposition of the death penalty, but rather "every finding of fact underlying the sentencing decision," including not only the aggravating factors without which the penalty could not be imposed, but also the mitigating factors that might induce a sentencer to give a lesser punishment. 497 U. S., at 647 (emphasis added). But even if the point had been put with greater clarity in Walton, I think I still would have approved the Arizona scheme—I would have favored the States' freedom to develop their own capital sentencing procedures (already erroneously abridged by Furman) over the logic of the Apprendi principle.
Since Walton, I have acquired new wisdom that consists of two realizations—or, to put it more critically, have discarded old ignorance that consisted of the failure to realize two things: First, that it is impossible to identify with certainty those aggravating factors whose adoption has been wrongfully coerced by Furman, as opposed to those that the State would have adopted in any event. Some States, for example, already had aggravating-factor requirements for capital murder (e. g., murder of a peace officer, see 1965 N. Y. Laws p. 1022 (originally codified at N. Y. Penal Law § 1045)) when Furman was decided. When such a State has added aggravating factors, are the new ones the Apprendi-exempt product of Furman, and the old ones not? And even as to those States that did not previously have aggravating-factor requirements, who is to say that their adoption of a new one today—or, for that matter, even their retention of old ones adopted immediately post-Furman—is still the product of that case, and not of a changed social belief that murder simpliciter does not deserve death?
Second, and more important, my observing over the past 12 years the accelerating propensity of both state and federal
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