Blakely v. WashingtonAnnotate this Case
542 U.S. 296 (2004)
OPINION OF THE COURT
BLAKELY V. WASHINGTON
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
RALPH HOWARD BLAKELY, Jr., PETITIONER v. WASHINGTON
on writ of certiorari to the court of appeals of washington, division 3
[June 24, 2004]
Justice Scalia delivered the opinion of the Court.
Petitioner Ralph Howard Blakely, Jr., pleaded guilty to the kidnaping of his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months. Pursuant to state law, the court imposed an “exceptional” sentence of 90 months after making a judicial determination that he had acted with “deliberate cruelty.” App. 40, 49. We consider whether this violated petitioner’s Sixth Amendment right to trial by jury.
Petitioner married his wife Yolanda in 1973. He was evidently a difficult man to live with, having been diagnosed at various times with psychological and personality disorders including paranoid schizophrenia. His wife ultimately filed for divorce. In 1998, he abducted her from their orchard home in Grant County, Washington, binding her with duct tape and forcing her at knifepoint into a wooden box in the bed of his pickup truck. In the process, he implored her to dismiss the divorce suit and related trust proceedings.
When the couple’s 13-year-old son Ralphy returned home from school, petitioner ordered him to follow in another car, threatening to harm Yolanda with a shotgun if he did not do so. Ralphy escaped and sought help when they stopped at a gas station, but petitioner continued on with Yolanda to a friend’s house in Montana. He was finally arrested after the friend called the police.
The State charged petitioner with first-degree kidnaping, Wash. Rev. Code Ann. §9A.40.020(1) (2000).[Footnote 1] Upon reaching a plea agreement, however, it reduced the charge to second-degree kidnaping involving domestic violence and use of a firearm, see §§9A.40.030(1), 10.99.020(3)(p), 9.94A.125.[Footnote 2] Petitioner entered a guilty plea admitting the elements of second-degree kidnaping and the domestic-violence and firearm allegations, but no other relevant facts.
The case then proceeded to sentencing. In Washing- ton, second-degree kidnaping is a class B felony. §9A.40.030(3). State law provides that “[n]o person convicted of a [class B] felony shall be punished by confinement … exceeding … a term of ten years.” §9A.20.021(1)(b). Other provisions of state law, however, further limit the range of sentences a judge may impose. Washington’s Sentencing Reform Act specifies, for petitioner’s offense of second-degree kidnaping with a firearm, a “standard range” of 49 to 53 months. See §9.94A.320 (seriousness level V for second-degree kidnaping); App. 27 (offender score 2 based on §9.94A.360); §9.94A.310(1), box 2–V (standard range of 13–17 months); §9.94A.310(3)(b) (36-month firearm enhancement).[Footnote 3] A judge may impose a sentence above the standard range if he finds “substantial and compelling reasons justifying an exceptional sentence.” §9.94A.120(2). The Act lists aggravating factors that justify such a departure, which it recites to be illustrative rather than exhaustive. §9.94A.390. Nevertheless, “[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense.” State v. Gore, 143 Wash. 2d 288, 315–316, 21 P. 3d 262, 277 (2001). When a judge imposes an exceptional sentence, he must set forth findings of fact and conclusions of law supporting it. §9.94A.120(3). A reviewing court will reverse the sentence if it finds that “under a clearly erroneous standard there is insufficient evidence in the record to support the reasons for imposing an exceptional sentence.” Gore, supra, at 315, 21 P. 3d, at 277 (citing §9.94A.210(4)).
Pursuant to the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months. After hearing Yolanda’s description of the kidnap- ing, however, the judge rejected the State’s recom- mendation and imposed an exceptional sentence of 90 months—37 months beyond the standard maximum. He justified the sentence on the ground that petitioner had acted with “deliberate cruelty,” a statutorily enumerated ground for departure in domestic-violence cases. §9.94A.390(2)(h)(iii).[Footnote 4]
Faced with an unexpected increase of more than three years in his sentence, petitioner objected. The judge accordingly conducted a 3-day bench hearing featuring testimony from petitioner, Yolanda, Ralphy, a police officer, and medical experts. After the hearing, he issued 32 findings of fact, concluding:
“The defendant’s motivation to commit kidnapping was complex, contributed to by his mental condition and personality disorders, the pressures of the divorce litigation, the impending trust litigation trial and anger over his troubled interpersonal relationships with his spouse and children. While he misguidedly intended to forcefully reunite his family, his attempt to do so was subservient to his desire to terminate lawsuits and modify title ownerships to his benefit.
“The defendant’s methods were more homogeneous than his motive. He used stealth and surprise, and took advantage of the victim’s isolation. He immediately employed physical violence, restrained the victim with tape, and threatened her with injury and death to herself and others. He immediately coerced the victim into providing information by the threatening application of a knife. He violated a subsisting restraining order.” App. 48–49.
The judge adhered to his initial determination of deliberate cruelty.
Petitioner appealed, arguing that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. The State Court of Appeals affirmed, 111 Wash. App. 851, 870–871, 47 P. 3d 149, 159 (2002), relying on the Washington Supreme Court’s rejection of a similar challenge in Gore, supra, at 311–315, 21 P. 3d, at 275–277. The Washington Supreme Court denied discretionary review. 148 Wash. 2d 1010, 62 P. 3d 889 (2003). We granted certiorari. 540 U. S. 965 (2003).
This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that “an accusation which lacks any particular fact which the law makes essential to the punishment is … no accusation within the requirements of the common law, and it is no accusation in reason,” 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).[Footnote 5] These principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U. S., at 476–483, 489–490, n. 15; id., at 501–518 (Thomas, J., concurring), and need not repeat them here.[Footnote 6]
Apprendi involved a New Jersey hate-crime statute that authorized a 20-year sentence, despite the usual 10-year maximum, if the judge found the crime to have been committed “ ‘with a purpose to intimidate … because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ” Id., at 468–469 (quoting N. J. Stat. Ann. §2C:44–3(e) (West Supp. 1999–2000)). In Ring v. Arizona,536 U. S. 584, 592–593, and n. 1 (2002), we applied Apprendi to an Arizona law that authorized the death penalty if the judge found one of ten aggravating factors. In each case, we concluded that the defendant’s constitutional rights had been violated because the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding. Apprendi, supra, at 491–497; Ring, supra, at 603–609.
In this case, petitioner was sentenced to more than three years above the 53-month statutory maximum of the standard range because he had acted with “deliberate cruelty.” The facts supporting that finding were neither admitted by petitioner nor found by a jury. The State nevertheless contends that there was no Apprendi violation because the relevant “statutory maximum” is not 53 months, but the 10-year maximum for class B felonies in §9A.20.021(1)(b). It observes that no exceptional sentence may exceed that limit. See §9.94A.420. Our precedents make clear, however, that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solelyon the basis of the facts reflected in the jury verdict or admitted by the defendant. See Ring, supra, at 602 (“ ‘the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ ” (quoting Apprendi, supra, at 483)); Harris v. United States, 536 U. S. 545, 563 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488 (facts admitted by the defendant). In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” Bishop, supra, §87, at 55, and the judge exceeds his proper authority.
The judge in this case could not have imposed the exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea. Those facts alone were insufficient because, as the Washington Supreme Court has explained, “[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense,” Gore, 143 Wash. 2d, at 315–316, 21 P. 3d, at 277, which in this case included the elements of second-degree kidnaping and the use of a firearm, see §§9.94A.320, 9.94A.310(3)(b).[Footnote 7] Had the judge imposed the 90-month sentence solely on the basis of the plea, he would have been reversed. See §9.94A.210(4). The “maximum sentence” is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator).
The State defends the sentence by drawing an analogy to those we upheld in McMillan v. Pennsylvania,477 U. S. 79 (1986), and Williams v. New York,337 U. S. 241 (1949). Neither case is on point. McMillan involved a sentencing scheme that imposed a statutory minimum if a judge found a particular fact. 477 U. S., at 81. We specifically noted that the statute “does not authorize a sentence in excess of that otherwise allowed for [the underlying] offense.” Id., at 82; cf. Harris, supra, at 567. Williams involved an indeterminate-sentencing regime that allowed a judge (but did not compel him) to rely on facts outside the trial record in determining whether to sentence a defendant to death. 337 U. S., at 242–243, and n. 2. The judge could have “sentenced [the defendant] to death giving no reason at all.” Id., at 252. Thus, neither case involved a sentence greater than what state law authorized on the basis of the verdict alone.
Finally, the State tries to distinguish Apprendi and Ring by pointing out that the enumerated grounds for departure in its regime are illustrative rather than exhaustive. This distinction is immaterial. Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.[Footnote 8]
Because the State’s sentencing procedure did not com- ply with the Sixth Amendment, petitioner’s sentenceis invalid.[Footnote 9]
Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981) (describing the jury as “secur[ing] to the people at large, their just and rightful controul in the judicial department”); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (“[T]he common people, should have as complete a control … in every judgment of a court of judicature” as in the legislature); Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative”); Jones v. United States, 526 U. S. 227, 244–248 (1999). Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended.
Those who would reject Apprendi are resigned to one of two alternatives. The first is that the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors—no matter how much they may increase the punishment—may be found by the judge. This would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it—or of making an illegal lane change while fleeing the death scene. Not even Apprendi’scritics would advocate this absurd result. Cf. 530 U. S., at 552–553 (O’Connor, J., dissenting). The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.[Footnote 10]
The second alternative is that legislatures may establish legally essential sentencing factors within limits—limits crossed when, perhaps, the sentencing factor is a “tail which wags the dog of the substantive offense.” McMillan, 477 U. S., at 88. What this means in operation is that the law must not go too far—it must not exceed the judicial estimation of the proper role of the judge.
The subjectivity of this standard is obvious. Petitioner argued below that second-degree kidnaping with deliberate cruelty was essentially the same as first-degree kidnaping, the very charge he had avoided by pleading to a lesser offense. The court conceded this might be so but held it irrelevant. See 111 Wash. App., at 869, 47 P. 3d, at 158.[Footnote 11] Petitioner’s 90-month sentence exceeded the 53-month standard maximum by almost 70%; the Washington Supreme Court in other cases has upheld exceptional sentences 15 times the standard maximum. See State v. Oxborrow, 106 Wash. 2d 525, 528, 533, 723 P. 2d 1123, 1125, 1128 (1986) (15-year exceptional sentence; 1-year standard maximum sentence); State v. Branch, 129 Wash. 2d 635, 650, 919 P. 2d 1228, 1235 (1996) (4-year exceptional sentence; 3-month standard maximum sentence). Did the court go too far in any of these cases? There is no answer that legal analysis can provide. With too far as the yardstick, it is always possible to disagree with such judgments and never to refute them.
Whether the Sixth Amendment incorporates this manipulable standard rather than Apprendi’s bright-line rule depends on the plausibility of the claim that the Framers would have left definition of the scope of jury power up to judges’ intuitive sense of how far is too far. We think that claim not plausible at all, because the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury.
By reversing the judgment below, we are not, as the State would have it, “find[ing] determinate sentencing schemes unconstitutional.” Brief for Respondent 34. This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment. Several policies prompted Washington’s adoption of determinate sentencing, including proportionality to the gravity of the offense and parity among defendants. See Wash. Rev. Code Ann. §9.94A.010 (2000). Nothing we have said impugns those salutary objectives.
Justice O’Connor argues that, because determinate sentencing schemes involving judicial factfinding entail less judicial discretion than indeterminate schemes, the constitutionality of the latter implies the constitutionality of the former. Post, at 1–10. This argument is flawed on a number of levels. First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.
But even assuming that restraint of judicial power unrelated to the jury’s role is a Sixth Amendment objective, it is far from clear that Apprendi disserves that goal. Determinate judicial-factfinding schemes entail less judicial power than indeterminate schemes, but more judicial power than determinate jury-factfinding schemes. Whether Apprendi increases judicial power overall depends on what States with determinate judicial-factfinding schemes would do, given the choice between the two alternatives. Justice O’Connor simply assumes that the net effect will favor judges, but she has no empirical basis for that prediction. Indeed, what evidence we have points exactly the other way: When the Kansas Supreme Court found Apprendi infirmities in that State’s determinate-sentencing regime in State v. Gould, 271 Kan. 394, 404–414, 23 P. 3d 801, 809–814 (2001), the legislature responded not by reestablishing indeterminate sentencing but by applying Apprendi’s requirements to its current regime. See Act of May 29, 2002, ch. 170, 2002 Kan. Sess. Laws pp. 1018–1023 (codified at Kan. Stat. Ann. §21–4718 (2003 Cum. Supp.)); Brief for Kansas Appellate Defender Office as Amicus Curiae 3–7. The result was less, not more, judicial power.
Justice Breyer argues that Apprendi works to the detriment of criminal defendants who plead guilty by depriving them of the opportunity to argue sentencing factors to a judge. Post, at 4–5. But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. See Apprendi, 530 U. S., at 488; Duncan v. Louisiana,391 U. S. 145, 158 (1968). If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty. Even a defendant who stands trial may consent to judicial factfinding as to sentence enhancements, which may well be in his interest if relevant evidence would prejudice him at trial. We do not understand how Apprendi can possibly work to the detriment of those who are free, if they think its costs outweigh its benefits, to render it inapplicable.[Footnote 12]
Nor do we see any merit to Justice Breyer’s contention that Apprendi is unfair to criminal defendants because, if States respond by enacting “17-element robbery crime[s],” prosecutors will have more elements with which to bargain. Post, at 4–5, 9 (citing Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097 (2001)). Bargaining already exists with regard to sentencing factors because defendants can either stipulate or contest the facts that make them applicable. If there is any difference between bargaining over sentencing factors and bargaining over elements, the latter probably favors the defendant. Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond a reasonable doubt. Moreover, given the sprawling scope of most criminal codes, and the power to affect sentences by making (even nonbinding) sentencing recommendations, there is already no shortage of in terrorem tools at prosecutors’ disposal. See King & Klein, Apprendi and Plea Bargaining, 54 Stan. L. Rev. 295, 296 (2001) (“Every prosecutorial bargaining chip mentioned by Professor Bibas existed pre-Apprendi exactly as it does post-Apprendi”).
Any evaluation of Apprendi’s “fairness” to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment, see 21 U. S. C. §§841(b)(1)(A), (D),[Footnote 13] based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong. We can conceive of no measure of fairness that would find more fault in the utterly speculative bargaining effects Justice Breyer identifies than in the regime he champions. Suffice it to say that, if such a measure exists, it is not the one the Framers left us with.
The implausibility of Justice Breyer’s contention that Apprendi is unfair to criminal defendants is exposed by the lineup of amici in this case. It is hard to believe that the National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side. Justice Breyer’s only authority asking that defendants be protected from Apprendi is an article written not by a criminal defense lawyer but by a law professor and former prosecutor. See post, at 4–5 (citing Bibas, supra); Association of American Law Schools Directory of Law Teachers 2003–2004, p. 319.
Justice Breyer also claims that Apprendi will attenuate the connection between “real criminal conduct and real punishment” by encouraging plea bargaining and by restricting alternatives to adversarial factfinding. Post, at 7–8, 11–12. The short answer to the former point (even assuming the questionable premise that Apprendi does encourage plea bargaining, but see supra, at 14, and n. 12) is that the Sixth Amendment was not written for the benefit of those who choose to forgo its protection. It guarantees the right to jury trial. It does not guarantee that a particular number of jury trials will actually take place. That more defendants elect to waive that right (because, for example, government at the moment is not particularly oppressive) does not prove that a constitutional provision guaranteeing availability of that option is disserved.
Justice Breyer’s more general argument—that Apprendi undermines alternatives to adversarial factfinding—is not so much a criticism of Apprendi as an assault on jury trial generally. His esteem for “non-adversarial” truth-seeking processes, post, at 12, supports just as well an argument against either. Our Constitution and the common-law traditions it entrenches, however, do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury. See 3 Blackstone, Commentaries, at 373–374, 379–381. Justice Breyer may be convinced of the equity of the regime he favors, but his views are not the ones we are bound to uphold.
Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. Under the dissenters’ alternative, he has no such right. That should be the end of the matter.
* * *
Petitioner was sentenced to prison for more than three years beyond what the law allowed for the crime to which he confessed, on the basis of a disputed finding that he had acted with “deliberate cruelty.” The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbours,” 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.
The judgment of the Washington Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Parts of Washington’s criminal code have been recodified and amended. We cite throughout the provisions in effect at the time of sentencing.Footnote 2
Petitioner further agreed to an additional charge of second-degree assault involving domestic violence, Wash. Rev. Code Ann. §§9A.36.021(1)(c), 10.99.020(3)(b) (2000). The 14-month sentence on that count ran concurrently and is not relevant here.Footnote 3
The domestic-violence stipulation subjected petitioner to such measures as a “no-contact” order, see §10.99.040, but did not increase the standard range of his sentence.Footnote 4
The judge found other aggravating factors, but the Court of Appeals questioned their validity under state law and their independent sufficiency to support the extent of the departure. See 111 Wash. App. 851, 868–870, and n. 3, 47 P. 3d 149, 158–159, and n. 3 (2002). It affirmed the sentence solely on the finding of domestic violence with deliberate cruelty. Ibid. We therefore focus only on that factor.Footnote 5
Justice Breyer cites Justice O’Connor’s Apprendi dissent for the point that this Bishop quotation means only that indictments must charge facts that trigger statutory aggravation of a common-law offense. Post, at 14 (dissenting opinion). Of course, as he notes, Justice O’Connor was referring to an entirely different quotation, from Archbold’s treatise. See 530 U. S., at 526 (citing J. Archbold, Pleading and Evidence in Criminal Cases 51, 188 (15th ed. 1862)). Justice Breyer claims the two are “similar,” post, at 14, but they are as similar as chalk and cheese. Bishop was not “addressing” the “problem” of statutes that aggravate common-law offenses. Ibid. Rather, the entire chapter of his treatise is devoted to the point that “every fact which is legally essential to the punishment” must be charged in the indictment and proved to a jury. 1 J. Bishop, Criminal Procedure, ch. 6, pp. 50–56 (2d ed. 1872). As one “example” of this principle (appearing several pages before the language we quote in text above), he notes a statute aggravating common-law assault. Id., §82, at 51–52. But nowhere is there the slightest indication that his general principle was limited to that example. Even Justice Breyer’s academic supporters do not make that claim. See Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097, 1131–1132 (2001) (conceding that Bishop’s treatise supports Apprendi, while criticizing its “natural-law theorizing”).Footnote 6
As to Justice O’Connor’s criticism of the quantity of historical support for the Apprendi rule, post, at 10 (dissenting opinion): It bears repeating that the issue between us is not whether the Constitution limits States’ authority to reclassify elements as sentencing factors (we all agree that it does); it is only which line, ours or hers, the Constitution draws. Criticism of the quantity of evidence favoring our alternative would have some force if it were accompanied by any evidence favoring hers. Justice O’Connor does not even provide a coherent alternative meaning for the jury-trial guarantee, unless one considers “whatever the legislature chooses to leave to the jury, so long as it does not go too far” coherent. See infra, at 9–12.Footnote 7
The State does not contend that the domestic-violence stipulation alone supports the departure. That the statute lists domestic violence as grounds for departure only when combined with some other aggravating factor suggests it could not. See §§9.94A.390(2)(h)(i)–(iii).Footnote 8
Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence.Footnote 9
The United States, as amicus curiae, urges us to affirm. It notes differences between Washington’s sentencing regime and the Federal Sentencing Guidelines but questions whether those differences are constitutionally significant. See Brief for United States as Amicus Curiae 25–30. The Federal Guidelines are not before us, and we express no opinion on them.Footnote 10
Justice O’Connor believes that a “built-in political check” will prevent lawmakers from manipulating offense elements in this fashion. Post, at 10. But the many immediate practical advantages of judicial factfinding, see post, at 5–7, suggest that political forces would, if anything, pull in the opposite direction. In any case, the Framers’ decision to entrench the jury-trial right in the Constitution shows that they did not trust government to make political decisions in this area.Footnote 11
Another example of conversion from separate crime to sentence enhancement that Justice O’Connor evidently does not consider going “too far” is the obstruction-of-justice enhancement, see post, at 6–7. Why perjury during trial should be grounds for a judicial sentence enhancement on the underlying offense, rather than an entirely separate offense to be found by a jury beyond a reasonable doubt (as it has been for centuries, see 4 W. Blackstone, Commentaries on the Laws of England 136–138 (1769)), is unclear.Footnote 12
Justice Breyer responds that States are not required to give defendants the option of waiving jury trial on some elements but not others. Post, at 8–9. True enough. But why would the States that he asserts we are coercing into hard-heartedness—that is, States that want judge-pronounced determinate sentencing to be the norm but we won’t let them—want to prevent a defendant from choosing that regime? Justice Breyer claims this alternative may prove “too expensive and unwieldy for States to provide,” post, at 9, but there is no obvious reason why forcing defendants to choose between contesting all elements of his hypothetical 17-element robbery crime and contesting none of them is less expensive than also giving them the third option of pleading guilty to some elements and submitting the rest to judicial factfinding. Justice Breyer’s argument rests entirely on a speculative prediction about the number of defendants likely to choose the first (rather than the second) option if denied the third.Footnote 13
To be sure, Justice Breyer and the other dissenters would forbid those increases of sentence that violate the constitutional principle that tail shall not wag dog. The source of this principle is entirely unclear. Its precise effect, if precise effect it has, is presumably to require that the ratio of sentencing-factor add-on to basic criminal sentence be no greater than the ratio of caudal vertebrae to body in the breed of canine with the longest tail. Or perhaps no greater than the average such ratio for all breeds. Or perhaps the median. Regrettably, Apprendi has prevented full development of this line of jurisprudence.
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