In the Armed Career Criminal Act (ACCA), 18 U. S. C. § 924(e), Congress directed sentencing judges to conduct a “multi-factored” inquiry into “a range of circumstances” to determine whether a particular defendant's criminal history Page Proof Pending Publication Page Proof Pending Publication suggests that he is the sort of “ `revolving door' felo[n]” that ACCA was designed to target. Wooden v. United States, 595 U. S. 360, 369, 375 (2022); see also § 924(e)(1). Those kinds of fndings have historically been deemed well within the capacity of a sentencing judge. See Almendarez-Torres v. United States, 523 U. S. 224, 243–244 (1998). Today, the Court concludes that Apprendi v. New Jersey, 530 U. S. 466 (2000), must be read to suggest otherwise—i. e., that under Apprendi, for sentencing purposes, facts that relate to a defendant's prior crimes cannot be determined by judges but instead must be found by juries. I disagree for several reasons, including my overarching view that Apprendi was wrongly decided. Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority when it empowers judges to make factual determinations related to punishment and directs that a particular sentencing result follow from such fndings.1 I recognize, of course, that Apprendi is a binding precedent of this Court, and one that “has now defned the relevant legal regime” for nearly a quarter century. Alleyne v. United States, 570 U. S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment). Given that reality, untangling the knots Apprendi has tied is probably infeasible at this point in our Court's jurisprudential journey. But considering the faws inherent in Apprendi's approach, I cannot join today's effort to further extend Apprendi's holding, particularly when there is a well-established recidivism exception to the Apprendi rule that applies to the circumstances of the case before us now.
1Critiques of the Apprendi Court's misguided constitutional analysis have been covered at length elsewhere. See, e. g., Apprendi v. New Jer sey, 530 U. S. 466, 524–536 (2000) (O'Connor, J., dissenting); id., at 559–561 (Breyer, J., dissenting); Blakely v. Washington, 542 U. S. 296, 321 (2004) (O'Connor, J., dissenting); id., at 326–327 (Kennedy, J., dissenting); id., at 340–346 (Breyer, J., dissenting); S. Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097 (2001). I agree with Justice Kavanaugh that, all things considered, the Court errs in concluding today that ACCA's occasions inquiry must be decided by a jury. See ante, at 853– 858 (dissenting opinion). I write separately to provide an additional critical perspective on the Apprendi doctrine— one that is informed by how sentencing has actually worked on the ground, before and after Apprendi—and to note that applying the Apprendi rule to ACCA's occasions fnding creates all sorts of practical problems that are easily avoided by simply allowing judges to do what they have always done.
Because the Court pushes the fawed Apprendi rule past where it needs to go, and, incidentally, establishes a procedural requirement that is likely impossible to implement in real life, I respectfully dissent.
I
In Apprendi, this Court held that “[o]ther 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.” 530 U. S., at 490. For the reasons others have skillfully articulated, see n. 1, supra, and also the reasons that follow, I think the Apprendi Court was wrong to interpret the Sixth Amendment's jury-trial guarantee to limit legislatures' ability to defne crimes and give judges discretion to set appropriate punishments based on fndings of fact. Apprendi and its ilk have also needlessly hampered Congress's and state legislatures' pursuit of a fairer and more rational sentencing system.
A
Our Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S. 358, 364 (1970). At the outset, it is important to take note of the scope of this constitutional protection as it has traditionally been recognized and underPage Proof Pending Publication Page Proof Pending Publication stood: It is a protection against conviction without the necessary facts having been established beyond a reasonable doubt. Ibid. That is not the same as a protection against being sentenced to a certain level of punishment unless the facts that are relevant to that sentencing determination have been proved to a jury consistent with the reasonable-doubt standard.
The facts that must be proved before a defendant can be convicted are often called elements. See United States v. Gaudin, 515 U. S. 506, 510 (1995). Traditionally, “the elements of a crime are its requisite (a) conduct (act or omission to act) and (b) mental fault (except for strict liability crimes)—plus, often, (c) specifed attendant circumstances, and, sometimes, (d) a specifed result of the conduct.” 1 W. LaFave, Substantive Criminal Law § 1.8(b), p. 103, n. 14 (3d ed. 2018); see also 1 J. Ohlin, Wharton's Criminal Law § 3:1, pp. 48–49 (16th ed. 2021). As the majority correctly recognizes, such elemental facts have always been in the purview of the jury. See ante, at 831. The Sixth Amendment's jury- trial guarantee refects this well-established understanding of the jury's domain. See Sullivan v. Louisiana, 508 U. S. 275, 277–278 (1993).
Although sometimes the “determination of what elements constitute a crime . . . is subject to dispute,” Gaudin, 515 U. S., at 525 (Rehnquist, C. J., concurring), it is clear that “[o]nly the people's elected representatives in the legislature are authorized to `make an act a crime,' ” United States v. Davis, 588 U. S. 445, 451 (2019) (quoting United States v. Hudson, 7 Cranch 32, 34 (1812)). It follows that “ `[t]he defnition of the elements of a criminal offense is entrusted to the legislature.' ” Staples v. United States, 511 U. S. 600, 604 (1994) (quoting Liparota v. United States, 471 U. S. 419, 424 (1985); alteration in original). For that reason, this Court—at least until recent times—generally deferred to legislative judgments about which facts constitute elements of the offense. See McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986) (“[I]n determining what facts must be proved beyond a reasonable doubt the . . . legislature's defnition of the elements . . . is usually dispositive”).
Once a defendant has been found guilty of a crime—i.e., once a jury has made the requisite factual fndings establishing the elements of the crime—judges have traditionally been entrusted with substantial discretion to impose the appropriate sentence. See K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998). Indeed, at the dawn of our Republic, the very frst Congress enacted many criminal laws that prescribed a range of possible punishments, leaving it to judges to determine the proper sentence.
See An Act for the Punishment of Certain Crimes Against the United States, ch. 9, 1 Stat. 112–118; see also R. Little & T. Chen, The Lost History of Apprendi and the Blakely Petition for Rehearing, 17 Fed. Sentencing Rep. 69, 72 (2004).2 Signifcantly for present purposes, judges were thought to “inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority” in deciding what punishment to impose. Ex parte United States, 242 U. S. 27, 41–42 (1916). In fact, a judge's determination of the appropriate sentence was long considered to be unreviewable in most circumstances. See Dorszynski v. United States, 418 U. S. 424, 431 (1974).
When exercising their sentencing authority, judges were also presumed to have the power to fnd and consider nearly any fact deemed relevant to the penalty. “[B]oth before and 2For example, the First Congress declared that misprision (i.e., concealment) of a felony was punishable by “imprison[ment] not exceeding three years” and a “fn[e] not exceeding fve hundred dollars.” § 6, 1 Stat. 113. Stealing or falsifying court records was punishable by “imprison[ment] not exceeding seven years” and “whipp[ing] not exceeding thirty-nine stripes.” § 15, id., at 115–116. At least 14 other federal crimes enacted during this time gave judges discretion over similar sentencing ranges. See Little & Chen, 17 Fed. Sentencing Rep., at 72.
Page Proof Pending Publication since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fxed by law.” Williams v. New York, 337 U. S. 241, 246 (1949). A sentencing judge might fnd, for example, that a defendant lacked remorse for his crime, or that the conduct underlying the crime was particularly heinous, and sentence the defendant accordingly. See id., at 247. All of those kinds of factual determinations were considered to be important factors for imposing the sentence that a person who had been found guilty of a criminal act would be required to serve. And none of them were thought to be subject to the Sixth Amendment's jury-trial right.
By the late 19th century, sentencing schemes grew more complex, with the vast majority of States and the Federal Government adopting so-called indeterminate sentencing systems. A. Campbell, Law of Sentencing §§ 1:2–1:3, pp. 9– 10 (3d ed. 2004) (Campbell). In those jurisdictions, “[u]sing broad discretion, trial courts imposed minimum and maximum [sentences] based on judicial estimates of how long it would take to rehabilitate criminal offenders,” which parole boards then used to determine when an offender would be released. Id., § 1:3, at 10. There, too, judges were given wide authority to determine an appropriate sentencing range, and to do so based on judicial fndings of fact. In fact, “judges were encouraged to weigh the character of the individual offender along with the nature of the offense when imposing sentence,” id., § 1:2, at 9, considerations that are immensely factbound. That judges rather that juries made these factual fndings was not thought to be constitutionally problematic.
Critically, the nature of factfnding proceedings before a judge at sentencing was—and still is—fundamentally different from the factfnding that a jury engages in. Jury factPage Proof Pending Publication fnding at trial “always ha[s] been hedged in by strict evidentiary procedural limitations.” Williams, 337 U. S., at 246. By contrast, such limitations have not, as a general matter, applied to judges when they fnd facts for sentencing purposes. See ibid. Instead, a sentencing judge has always been expected to consider a wide range of information— really, anything relevant to assessing the appropriate penalty—when determining a sentence.
The difference between jury factfnding at trial and judicial factfnding for sentencing makes perfect sense. “Typically, trial disputes center on particular issues of historical fact,” and juries accordingly “receive limited information and must choose from limited options to resolve disputed issues.” D. Berman & S. Bibas, Making Sentencing Sensible, 4 Ohio St. J. Crim. L. 37, 54 (2006). As a result, “[r]ules of evidence have been fashioned for criminal trials which narrowly confne the trial contest to evidence that is strictly relevant to the particular offense charged.” Williams, 337 U. S., at 246–247. “A sentencing judge, however, is not confned to the narrow issue of guilt. His task within fxed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined.” Id., at 247. Thus, sentencing judges “receiv[e] a range of information about both the offense and the offender and can choose from various possible dispositions.” Berman & Bibas, 4 Ohio St. J. Crim. L., at 55. “Highly relevant—if not essential—to [a judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.” Williams, 337 U. S., at 247.
The upshot is that, traditionally, judges and juries have not only played different factfnding roles, they have also utilized different tools to carry out those duties. And far from being ill equipped to fnd facts for punishment purposes, judges have long been regarded as having both the power and the institutional competency to determine the factual bases for Page Proof Pending Publication the imposition of sentences. Again: This judicial authority has traditionally included the ability to make fndings of fact related to both an offender's characteristics and the criminal conduct at issue as necessary to determine an appropriate sentence—all while relying on a wide range of evidence.
Historically, none of this was thought to confict with or usurp the jury's distinct role of determining guilt or innocence.
B
Over time, however, legislatures became concerned with “the almost wholly unchecked and sweeping powers . . .
give[n] to judges in the fashioning of sentences.” M. Frankel, Criminal Sentences: Law Without Order 5 (1973).
“[L]egislators . . . decried the perceived inequity of incarcerating some offenders longer than others for the same crime,” as well as the possibility that discriminatory considerations such as race and sex were playing a role in judges' sentencing determinations.
Campbell § 1:3, at 11; see also S.
Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 4–5 (1988). “The length of time a person spent in prison appeared to depend on `what the judge ate for breakfast' on the day of sentencing, on which judge you got, or on other factors that should not have made a difference to the length of the sentence.” Blakely v. Washington, 542 U. S. 296, 332 (2004) (Breyer, J., dissenting).
Out of this unregulated environment emerged a legislative development—the identifcation of what are commonly referred to as “sentencing factors” (also known as “sentencing facts”). In an effort “to bring more order and consistency to the [sentencing] process,” Congress and state legislatures “sought to move from a system of indeterminate sentencing or a grant of vast discretion to the trial judge to a regime in which there [were] more uniform penalties, prescribed by the legislature.” Jones v. United States, 526 U. S. 227, Page Proof Pending Publication 271 (1999) (Kennedy, J., dissenting). Legislatures recognized that, although judges are fully competent to fnd facts and exercise discretion when sentencing, too much discretion could create unwarranted disparities and therefore have detrimental effects. New sentencing regimes were implemented to cabin sentencing discretion by “directly limit[ing] the use . . . of particular factors in sentencing” and “by specifying statutorily how a particular factor [would] affect the sentence.” Apprendi, 530 U. S., at 560 (Breyer, J., dissenting).
Legislatures sometimes specifed, for example, “that a particular factor, say, use of a weapon, recidivism, injury to a victim, or bad motive, `shall' increase, or `may' increase, a particular sentence in a particular way.” Ibid. Conversely, legislatures also directed judges to disregard certain facts, including those that were deemed irrelevant for sentencing purposes. See 28 U. S. C. § 994(d) (directing the U. S. Sentencing Commission to consider whether age, education, vocational skills, and other factors are relevant to sentencing); United States Sentencing Commission, Guidelines Manual §§ 5H1.2, 5H1.4, 5H1.5, 5H1.6 (Nov. 2023) (noting that education, drug or alcohol dependence, employment record, and family ties are ordinarily not relevant in determining the length of a sentence); see also, e. g., Wash. Rev. Code § 9.94A.535(e) (2023) (excluding “[v]oluntary use of drugs or alcohol” as a potential mitigating factor).
These structured sentencing schemes were not adopted “to manipulate the statutory elements of criminal offenses or to circumvent the procedural protections of the Bill of Rights.” Blakely, 542 U. S., at 316 (O'Connor, J., dissenting). Rather, Congress and the States that adopted these rules did so against a backdrop of unbounded judicial discretion that had proved, in their view, to be unwieldy, unfair, and unwise. Accordingly, the goal of legislative efforts in this regard was to constrain judicial discretion by channeling the Page Proof Pending Publication accepted competency of judges to set appropriate sentences toward the objective of achieving more consistent and more equitable outcomes.
This Court dealt a signifcant blow to these legislative attempts to promote fairness and consistency in sentencing with its decision in Apprendi. As I previously noted, we concluded—for the frst time in history—that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum” is an element that “must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490. We later extended that rule to cover any “fnding of fact” that “alters the legally prescribed punishment so as to aggravate it,” because—in the Court's view—that “fact necessarily forms a constituent part of a new offense and must be submitted to the jury.” Alleyne, 570 U. S., at 114–115.
By now, the Apprendi rule has been applied to a litany of punishments other than incarceration. See ante, at 833. Through these cases, the Court has “embrace[d] a universal and seemingly bright-line rule limiting the power of Congress and state legislatures to defne criminal offenses and the sentences that follow from convictions thereunder.”
Apprendi, 530 U. S., at 525 (O'Connor, J., dissenting). By any measure, “[t]he impact of Apprendi and its progeny has been extraordinary, disrupting sentences and prompting new [corrective] legislation across the nation.” 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 26.4(i), p. 1011 (4th ed. 2015).
II
A
I was not a Member of the Court during these developments. In my view, however, the Court made a serious mistake when it confated elements and sentencing factors in this way. As others have argued, “[t]he Court's basic error in Apprendi . . . was its failure to recognize the law's tradiPage Proof Pending Publication tional distinction between elements of a crime (facts constituting the crime, typically for the jury to determine) and sentencing facts (facts affecting the sentence, often concerning, e. g., the manner in which the offender committed the crime, and typically for the judge to determine).” Alleyne, 570 U. S., at 122 (Breyer, J., concurring in part and concurring in judgment). The Sixth Amendment's jury-trial right “guarantees a jury's determination of facts that constitute the elements of a crime”—no more and no less. Id., at 123. To be fair, the principal justifcation that has been given for Apprendi's confation of elements and sentencing factors is a historical one. See, e. g., ante, at 829–830; Alleyne, 570 U. S., at 108–111 (opinion of Thomas, J.). The account that has been provided in some of the Court's opinions is that, during the founding era, “ `[o]nce the facts of the offense were determined by the jury, the judge was meant simply to impose the prescribed sentence.' ” Ante, at 831 (quoting United States v. Haymond, 588 U. S. 634, 642 (2019) (plurality opinion); alteration in original). But the accuracy of this historical account is debatable. See n. 2, supra. Scholars have suggested that, far from the simplistic picture painted by the Court in Apprendi, the historical “tradition was not uniform, suggesting that the common law had no fxed rule on the subject.” S. Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097, 1129 (2001); see also, e. g., id., at 1123–1132; Little & Chen, 17 Fed. Sentencing Rep., at 69–70; J. Mitchell, Apprendi's Domain, 2006 S. Ct. Rev. 297, 298–299.
In any event, the Constitution itself does not mention sentencing at all—let alone the work of courts when sentencing—and it certainly “does not freeze 19th-century sentencing practices into permanent law.” Apprendi, 530 U. S., at 559 (Breyer, J., dissenting). Moreover, “[a]n essential aspect of the Constitution's endurance is that it empowers the political branches to address new challenges by enacting new laws and policies.” Consumer Financial Protection Bureau v. Page Proof Pending Publication Community Financial Services Assn. of America, Ltd., 601 U. S. 416, 446 (2024) (Jackson, J., concurring). In my view, the People's elected representatives should be able to pursue new and innovative approaches to sentencing and sentencing reform “without undue interference by courts,” ibid., especially given that unfair and disparate sentences are a persistent societal problem that the legislature is indisputably authorized to address.
Nor is there a functional, policy-based justifcation for the constitutional rule that Apprendi and its progeny enshrined. The Court has repeatedly characterized Apprendi as preserving “the right of jury trial” in the past, Blakely, 542 U. S., at 305, and persists with that mantra to this day, ante, at 829–832. As the reasoning goes, because the Apprendi rule recognizes that it is “ `unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed,' ” 530 U. S., at 490, Apprendi “preserves the historic role of the jury as an intermediary between the State and criminal defendants,” Alleyne, 570 U. S., at 114. But, in reality, the Apprendi rule does no such thing. A sentencing judge today remains free, consistent with Ap prendi, to impose any punishment within a prescribed sentencing range based on whatever facts she deems relevant. See 530 U. S., at 481 (conceding that judges may “exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed” (emphasis deleted)). So, “[u]nder the Apprendi doctrine, the jury plays only one role with respect to sentencing, and it is an indirect one: [I]f the defendant does not plead guilty, then the jury must determine the presence or absence of the verdict facts that operate to constrain the outer limit of the judge's authority to impose sentence.” B. Priester, Apprendi Land Becomes Bizarro World: “Policy Nullifcation” and Other Surreal Doctrines in the New Constitutional Law of Sentencing, 51 Santa Clara L. Rev. 1, 47 Page Proof Pending Publication (2011) (emphasis added). Meanwhile, the judge continues to be the sole decisionmaker with respect to determining the facts she will rely upon to sentence within the typically broad statutory sentencing range. See United States v. Booker, 543 U. S. 220, 246 (2005). “The jury plays no role in extraverdict factfnding, nor in calculating the specifc sentence to be imposed within the outer limit authorized by the verdict facts.” Priester, 51 Santa Clara L. Rev., at 48.
Apprendi's distinction between permissible and impermissible judicial factfnding therefore neither aligns with the doctrine's rationale nor achieves its stated goals. As a result, the Apprendi rule does little actual work. Even after Apprendi, a sentencing judge can still fnd and consider any fact—including sentencing factors defned by the legislature—so long as the consequence of that fact is not mandatory but rather left to the judge's discretion. And after Apprendi, just as before, criminal defendants routinely stipulate to facts that are relevant to statutory maximums and minimums as part of binding plea agreements, making factfnding with respect to these newfound elements irrelevant. So, really, the only change that Apprendi has wrought is that legislatures may no longer limit judicial discretion as a matter of law by requiring that a particular sentencing fact have a particular effect on the sentence. See Blakely, 542 U. S., at 303–304.
At bottom, then, all the Apprendi doctrine has done is “shiel[d] the sentencing power of judges from legislative encroachment.” Priester, 51 Santa Clara L. Rev., at 49.
Given this, it is no wonder that, for all its exhortations about the right to jury factfnding for sentencing purposes, the Ap prendi line of cases appears to have had no appreciable effect on “the number of criminal jury trials” or on “the number of sentence-affecting facts decided by juries in those trials that do occur.” F. Bowman, Debacle: How the Supreme Court Has Mangled American Sentencing Law and How It Might Yet Be Mended, 77 U. Chi. L. Rev. 367, 461 (2010).
Page Proof Pending Publication
B
In terms of the impact on the functioning of our criminal justice system, however, the consequences of the Court's decisions in this area have been palpable. Most notably for present purposes, Apprendi has prevented legislatures from developing innovative methods to achieve fairness in sentencing and thus, in my view, has stunted our collective pursuit of justice. What I mean by this is that, while “[l]egislatures may set the available penalties for offenses using verdict facts,” they must now be essentially hands off “once that scope of punishment is established.” Priester, 51 Santa Clara L. Rev., at 50. Far from the mystical myth that the Sixth Amendment vests juries with sentencing power, the reality is that, through its Apprendi doctrine, the Court has merely managed to oust the legislature from its rightful place in the sentencing policy sphere, thereby effectively “insist[ing] that the power to consider sentencing facts and assess their normative worth must rest [solely] with judges.” Priester, 51 Santa Clara L. Rev., at 50.
The People's representatives are left with “a binary choice” when crafting legislation due to the Apprendi doctrine—“a fact is either of a type that triggers the full panoply of procedural protections that comes with the Sixth Amendment jury trial right, or it is of no constitutional consequence and can be found and relied on by a judge with virtually no procedural safeguards at all.” Bowman, 77 U. Chi. L. Rev., at 466; see also Blakely, 542 U. S., at 330– 340 (Breyer, J., dissenting) (outlining the limited options that legislatures have, all of which “ris[k] either impracticality, unfairness, or harm to the jury trial right”). But not every fact fts neatly into this dichotomy. Moreover, and importantly, judges and juries engage with facts differently in the context of their distinct roles.
“Juries provide democratic legitimacy, common sense, and fresh perspectives.” Berman & Bibas, 4 Ohio St. J. Crim.
L., at 62. Meanwhile, “[j]udges are experts, can more effecPage Proof Pending Publication tively and consistently apply complex rules, and have fexibility in how they consider evidence.” Id., at 62–63. But under the Apprendi rule, the policymaking branches of our government can no longer devise more nuanced, creative approaches to factfnding at sentencing that better refect the differing competencies of jurors and judges.
In short, the Court's all-or-nothing approach to the jury- trial right in Apprendi and its kin “pose[s] a serious obstacle to [legislative] efforts to create a sentencing law that would mandate more similar treatment of like offenders, that would thereby diminish sentencing disparity, and that would consequently help to overcome irrational discrimination (including racial discrimination) in sentencing.” Booker, 543 U. S., at 329 (Breyer, J., dissenting in part). The Court has also “deprive[d] Congress and state legislatures of authority that is constitutionally theirs.” Id., at 330.
C
I recognize that many criminal defendants and their advocates prefer the Apprendi regime, which provides some defendants with more procedural protections at sentencing.
In no way am I suggesting that the defense bar has “been `somehow duped' into advocating for a rule that would be `unfair to criminal defendants.' ” Ante, at 847 (quoting Blakely, 542 U. S., at 312). Defendants' embrace of the Ap prendi doctrine is perfectly rational because procedural rights like the right to have a jury determine certain sentencing facts “hel[p] some defendants—and probably rais[e] the overall level of defense victories—by giving their lawyers claims and arguments that otherwise would not exist.” W. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L. J. 1, 45 (1997). In my view, however, the beneft that some criminal defendants derive from the Apprendi rule in the context of their individual cases is outweighed by the negative systemic effects that Apprendi has wrought, when compared to “the Page Proof Pending Publication greater fairness of a sentencing system that a more uniform correspondence between real criminal conduct and real punishment helps to create.” Blakely, 542 U. S., at 338 (Breyer, J., dissenting). An individual defendant may, of course, beneft from a reduced sentence based on a jury's verdict under the Apprendi rule, but that favorable outcome for one person does little to ensure systemic fairness, consistency, and transparency in sentencing. See Stuntz, 107 Yale L. J., at 75. The U. S. Sentencing Commission has documented the impact of the Apprendi rule in the wake of our decision in United States v. Booker, 543 U. S. 220, which applied Ap prendi to the Federal Sentencing Guidelines. In Booker, we found certain judicial factfnding in the Guidelines context unconstitutional under Apprendi, but to remedy that violation, we also held that the Guidelines must be treated as advisory rather than mandatory. 543 U. S., at 244–245. After Booker, sentencing disparities of all manner have increased signifcantly. Otherwise similarly situated defendants appear to receive vastly different sentences depending on the court in which they are prosecuted and what judge is assigned to their case. See, e. g., United States Sentencing Commission, Inter-District Differences in Federal Sentencing Practices 7 (Jan. 2020) (“Variations in sentencing practices across districts increased in the wake of the Supreme Court's 2005 decision in Booker”); United States Sentencing Commission, Intra-City Differences in Federal Sentencing Practices 7 (Jan. 2019) (“In most cities, the length of a defendant's sentence increasingly depends on which judge in the courthouse is assigned to his or her case”). Given the history of sentencing reform in our Nation, see Part I–B, supra, it was foreseeable that Apprendi's interference with legislative control over judicial sentencing discretion would contribute to these kinds of disparities.
Among the evidence that has been amassed concerning Apprendi's negative downstream impact on sentencing fairness, one statistic is particularly sobering: In the federal Page Proof Pending Publication criminal justice system, racial disparities in sentencing have been a persistent problem, but the gap between similarly situated Black and White male defendants “was narrowest” before the Court applied Apprendi to the Guidelines. K.
Klein & S. Klein, A Racially Biased Obstacle Course: Ap prendi Transformed the Federal Sentencing Guidelines into a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities? 99 N. C. L. Rev. 1391, 1412 (2021); see also United States Sentencing Commission, Demographic Differences in Sentencing: An Update to the 2012 Booker Report 6 (Nov. 2017). And Apprendi appears to have made things appreciably worse. See Klein & Klein, 99 N. C. L. Rev., at 1412 (“Currently, for every ffty-one months a judge gives a White man, a similarly situated Black man receives eight more”).
So, while the defense bar might like Apprendi because its rule can beneft individual defendants in certain cases, that rule might also be inhibiting our collective achievement of a fairer sentencing system more broadly.
I do acknowledge, however, that there are risks involved with legislative innovation in this area, since not all legislative action in the sentencing realm will be made in pursuit of greater systemic fairness. Legislatures are sometimes incentivized to adopt more punitive measures, such as mandatory minimums or severe recidivism-based sentencing enhancements. See W. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 530–531 (2001). And at least in some circumstances, the Apprendi rule operates to blunt such measures. See Alleyne, 570 U. S., at 123–124 (Breyer, J., concurring in part and concurring in judgment). But problems created by the legislature can also be addressed through the democratic process; indeed, legislators have recently retreated from harsh sentencing laws. See, e. g., First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194; see also Pulsifer v. United States, 601 U. S. 124, 155 (2024) (Gorsuch, J., dissenting) (discussing the First Step Act's atPage Proof Pending Publication Page Proof Pending Publication tempt to “recalibrate [Congress's] approach” to sentencing). Meanwhile, Apprendi's constitutional rule operates to constrain legislative reforms while also potentially perpetuating the unfairness caused by unwarranted disparities.
To be clear, my skepticism of Apprendi should not be taken to suggest that I believe that legislatures should have unbridled authority to write laws that distinguish between sentencing factors and elements. There is, of course, “a risk of unfairness involved in permitting [legislatures] to make this labeling decision.” Blakely, 542 U. S., at 344 (Breyer, J., dissenting). Sentencing policymakers could, perhaps, “permit [a sentencing factor] to be a tail which wags the dog of the substantive offense.” McMillan, 477 U. S., at 88.
For example, in the most extreme circumstances, a legislature “might permit a judge to sentence an individual for murder though convicted only of making an illegal lane change.” Blakely, 542 U. S., at 344 (Breyer, J., dissenting).
But, to me, the most logical solution to that problem is not to invoke the jury-trial right, as the Court has held. “The jury-trial right addresses only who makes certain determinations, not how these determinations are made.” Berman & Bibas, 4 Ohio St. J. Crim. L., at 58–59; see also Bibas, 110 Yale L. J., at 1177–1180. By contrast, “the Due Process Clause is well suited” to address unfair sentencing procedures. Blakely, 542 U. S., at 344 (Breyer, J., dissenting); see also Morrissey v. Brewer, 408 U. S. 471, 481 (1972) (“[D]ue process is fexible and calls for such procedural protections as the particular situation demands”). Other constitutional provisions, like the Eighth Amendment's prohibition against excessive fnes and cruel and unusual punishments, also play an obvious role in limiting the types of punishments that can be imposed based on sentencing factors. See, e. g., Ring v. Arizona, 536 U. S. 584, 619 (2002) (Breyer, J., concurring in judgment); United States v. Bajakajian, 524 U. S. 321, 334– 335 (1998).
In other words, to my mind, not every sentencing problem is a nail requiring an Apprendi hammer. To the contrary, applying Apprendi to address these and other concerns seems to simply erect further roadblocks for policymakers who might otherwise act to promote more fairness in sentencing.
III
So what do my concerns about Apprendi have to do with my analysis of the question presented in this case? The doubts I have make me reluctant to join a ruling that extends Apprendi's holding unnecessarily. And, here, we need not conclude that the occasions fnding in ACCA is one to which the Apprendi rule applies, as Justice Kavanaugh explains. Ante, at 853–854 (dissenting opinion). Indeed, we have already recognized that “[j]udges may,” consistent with the Apprendi rule, “resolve questions about a defendant's past crimes . . . that are relevant not to the defendant's guilt for the present offense but rather to the length of the defendant's sentence.” Ante, at 853–854; see also Almend arez-Torres, 523 U. S., at 239, 247.
I will use this opportunity to make one additional observation: Not only is the majority's approach to ACCA's occasions fnding inconsistent with our precedent (as Justice Kavanaugh observes, ante, at 853–854), it is also unworkable in practice, due to the limitations inherent in jury presentations. That is, for all the majority's talk of constitutional theory, it gives little thought to “proportionality, uniformity, and administrability,” which “are all aspects of that basic `fairness' that the Constitution demands.” Apprendi, 530 U. S., at 559 (Breyer, J., dissenting).
As a reminder, ACCA directs sentencing courts to impose a 15-year mandatory minimum for a violation of 18 U. S. C. § 922(g) if the defendant has three qualifying prior convictions “committed on occasions different from one another.” 18 U. S. C. § 924(e)(1). In Wooden, we explained Page Proof Pending Publication that ACCA's occasions fnding is not a simple up-or-down assessment; rather, the factfnder must consider “a range of circumstances,” including the timing, location, character, and relationship of the crimes. 595 U. S., at 369. The majority now concludes that, “given the intensely factual nature of this inquiry . . . , a jury must resolve it.” Ante, at 828. I come to exactly the opposite conclusion, based on the nature of the factfnding that judges and juries engage in—and their relative competencies. In my view, “the intensely factual nature of this inquiry,” ibid., when combined with the fact that ACCA's occasions fnding often pertains to long-past prior criminal behavior by the defendant, is precisely why a jury is poorly situated to make such a fnding, as opposed to a judge. As I explain below, the particular factfnding determination that the occasions inquiry requires is unsuitable for juries to decide in terms of both fairness and effciency—two crucial criteria for procedural requirements in a criminal justice system.
A
As to fairness, ACCA's occasions determination involves facts about a defendant's past crimes that can prejudice the jury against the defendant and thereby make it more diffcult for the jury to fnd in the defendant's favor with respect to the occasions issue.
Past criminality on a defendant's part “is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.” Almendarez-Torres, 523 U. S., at 243. And there is a good reason judges have long been entrusted with fnding facts related to recidivism—because “the introduction of evidence of a defendant's prior crimes” to a jury “risks signifcant prejudice.” Id., at 235. This Court has specifcally recognized the substantial risk of “generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged.” Old Chief v. United States, 519 U. S. 172, 180–181 (1997). Empirical research has further confrmed Page Proof Pending Publication the commonsense conclusion that criminal history is prejudicial. See, e. g., T. Eisenberg & V. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision To Testify and on Trial Outcomes, 94 Cornell L. Rev. 1353, 1357 (2009) (“Juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction”).
As Justice Kavanaugh notes, such fairness concerns have long compelled courts to keep facts concerning a defendant's criminal history away from juries. Ante, at 866– 867. “Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt.” Michelson v. United States, 335 U. S. 469, 475 (1948). This principle—that juries would be prejudiced by exposure to a defendant's criminal history—is, in fact, a cornerstone of criminal procedure.3 The majority seems to agree that past-crimes evidence is prejudicial, at least to a certain extent. It says that, when ACCA's occasions inquiry is set for jury determination under the Apprendi rule (as we require today), trial courts will need “to address the prejudicial effect evidence about a defendant's past crimes can have on a jury.” Ante, at 847. In the majority's view, however, the “[m]ost obviou[s]” solution is bifurcating the proceedings between the § 922(g) charge and ACCA's occasions determination. Ibid. But bifurcation is not an easy fx, as Justice Kavanaugh explains.
3For example, this Court has held that, when a defendant stipulates to the existence of a prior conviction, the prosecution may not introduce evidence of the underlying facts for that conviction. Old Chief v. United States, 519 U. S. 172, 191 (1997). Similarly, we have recognized that prosecutors may not comment on a defendant's refusal to testify, given that such a refusal may stem from a concern that his prior convictions will be used to impeach him and thus prejudice the jury. See Griffn v. California, 380 U. S. 609, 615 (1965). The suggestion that juries should now engage in rigorous factfnding with respect to a defendant's criminal history is in tension with these prior pronouncements.
Page Proof Pending Publication Ante, at 868. For one thing, bifurcation of trial proceedings imposes signifcant additional burdens on the criminal justice system. Ibid. I will point to an additional problem: Even bifurcation may not suffce to completely eliminate potential juror prejudice with respect to the occasions fnding.
Consider, if you will, the kinds of evidence the prosecution might ask a jury to evaluate in a bifurcated trial over (the comparatively pedestrian) question whether a defendant's prior crimes were committed on different occasions. Also imagine the defendant's potential arguments in response.
Concerning the latter, in this case, Erlinger's counsel suggested that his past crimes—three burglaries that occurred on different dates over an 8-day period—could conceivably constitute a single occasion of criminality if those break-ins were all committed “to get money to pay [a] gambling debt.” Tr. of Oral Arg. 25. Under Wooden's inquiry, however, any jury making the occasions determination in this case would not be directed just to consider whether Erlinger did, in fact, have a gambling problem—they would also have to determine exactly what happened during each of Erlinger's burglaries.
The jury would be called upon to assess Erlinger's credibility and decide whether they believed his gambling-debt story in light of his criminality, and the potential prejudice from entertaining evidence about all the sordid details of Erlinger's underlying crimes makes a fair credibility fnding much more diffcult. In other words, Erlinger's past criminal behavior, and the fact that he was previously convicted of these crimes (more than one of them), conclusively establishes that Erlinger is a convicted serial burglar—and perhaps a violent one at that—rendering any credibility fnding in the defendant's favor signifcantly more dubious. See Shepard v. United States, 544 U. S. 13, 38 (2005) (O'Connor, J., dissenting) (observing that the “prejudice is likely to be especially strong in ACCA cases, where the relevant prior crimes are, by defnition, `violent' ”); see also Michelson, 335 Page Proof Pending Publication U. S., at 476 (observing that prior-crimes evidence can “overpersuade” jurors “to prejudge [a defendant] with a bad general record and deny him a fair opportunity to defend against” the Government's arguments).
To be sure, preventing undue prejudice against defendants is an important responsibility of judges, and it is certainly possible that, with the beneft of careful limiting instructions, jurors would be able to dispassionately consider evidence about the nature and extent of a defendant's past criminality only for the narrow question whether the defendant's past crimes were, in fact, committed on separate occasions. See Spencer v. Texas, 385 U. S. 554, 562 (1967). But given what Wooden calls for, it seems as though some degree of prejudice from the sheer fact of the defendant's having been previously convicted of crimes of this nature is inevitable. See Krulewitch v. United States, 336 U. S. 440, 453 (1949) (Jackeffects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fction” (citation omitted)).
B
The potential for prejudice is not the only practical problem. At the same time, a jury trial—a highly regulated, infexible proceeding—is, by its nature, poorly equipped to deal with the fne-grained, nuanced determinations based on sometimes-decades-old evidence that are necessary to fairly adjudicate factual questions like the one that ACCA's occasions inquiry raises. This mismatch, too, persists even in the proposed world of bifurcated trials. Bifurcated trials or no, it is wildly ineffcient for our system to try to ft the square peg of factfnding related to past criminality for sentencing purposes into the round hole of the existing processes that govern jury determinations.
As I have explained, factfnding at trial (before a jury) and factfnding at sentencing (before a judge) differ procedurally in fundamental ways. See Part I–A, supra. Jury factfndPage Proof Pending Publication ing is restricted and regimented, because a jury trial is “confne[d] . . . to evidence that is strictly relevant to the particular offense charged.” Williams, 337 U. S., at 247. Meanwhile, because “[a] sentencing judge . . . is not confned to the narrow issue of guilt,” she is not bound by “strict evidentiary procedural limitations”; rather, when determining the appropriate sentence, a judge “exercise[s] a wide discretion in the sources and types of evidence used to assist [her] in determining the kind and extent of punishment to be imposed.” Id., at 246–247.
Again, ACCA's occasions determination is illustrative.
Recall that Wooden requires a nuanced consideration of various factors, such as timing, location, and character of the past crimes, to determine whether those past crimes constituted separate “episodes of criminal activity.” 595 U. S., at 369. The “strict evidentiary procedural limitations” that apply to juries, Williams, 337 U. S., at 246, make it impractical for juries to conduct this kind of assessment. To take just one example, ACCA cases typically involve predicate crimes that may have occurred years—or even, as here, decades—ago.
See ante, at 826–827. Erlinger's sentencing for the crime to which ACCA potentially applies took place in 2022. See App. to Pet. for Cert. 14a. The three burglaries that gave rise to the occasions issue occurred 31 years prior—in 1991. Id., at 21a. Given the rigidity of trials and the frailty of trial evidence, how—that is, based on what evidence—is a jury supposed to go about making the occasions fnding in this case?
The majority today boldly relegates this particular fact- fnding task to a jury, without pausing to explain how this assignment will reasonably be accomplished in light of these practical limitations. “But the real world of criminal justice . . . can function only with the help of procedural compromises, particularly in respect to sentencing.” Apprendi, 530 U. S., at 555 (Breyer, J., dissenting). Even setting aside that a perfectly competent alternative participant in the criminal justice process (the judge) stands ready to do this (and can Page Proof Pending Publication Page Proof Pending Publication do it quite well, with the fexibility her role affords), I foresee many practical obstacles to jury factfnding concerning this particular recidivism fact, not the least of which is that evidence required to make the occasions determination with any reliability may not be in a form suitable for submission to a jury, or simply may no longer exist.
Issues concerning the state of the evidence with respect to decades-old past crimes could be why, between Wooden and now, most sentencing judges have made ACCA's occasions fnding based solely on so-called Shepard documents, which “include judicial records, plea agreements, and colloquies between a judge and the defendant” from the past criminal proceeding. Ante, at 839. In the context of a sentencing hearing, a judge—who, after all, has professional familiarity with these kinds of records—can consider such documents with minimal effort. Judges know how to interpret these sorts of court records. Additionally, during sentencing proceedings, parties' arguments and evidence are not restricted, so based on what the parties fnd, as well as what evidence still exists, arguments can be made directly to the judge about whether the occasions inquiry is satisfed, including arguments that speak directly to imperfect recordkeeping and any potentially material gaps.
Not so for a jury trial—at least not easily. There is a good reason why lawyers present live witnesses to juries: Showing the cold record documenting an event to a jury has much less value. At a minimum, a jury tasked with making the occasions fnding would likely need an explanation of what the Shepard documents say, and in this adversarial context, that explanation could probably not be provided by the lawyers on their own—it would most likely have to take the form of witness testimony.
And if we were to authorize juries to go beyond the Shep ard documents related to past crimes in order to make the occasions fnding, that inquiry would probably be even more diffcult to conduct reliably. Why? First, because, presumably, the original evidence and witnesses related to a defendant's past crimes would have to be somehow located and produced, despite the passage of time and potential chain-ofcustody issues. Then, once we overcome those hurdles, the rules of evidence would most likely come into play—screening out potentially probative considerations. By comparison, a sentencing judge can account for imperfections in the evidentiary records and is permitted to consider all manner of inadmissible evidence (such as out-of-court affdavits or hearsay testimony) in order to sentence. See Williams, 337 U. S., at 246.4 Also, in terms of the most effcient use of the justice sys- tem's limited resources, any witnesses could testify in narrative form when appearing before a sentencing judge as a factfnder, at a hearing designated for this purpose, without requiring examination by lawyers. In a jury trial, by contrast, such evidence would likely have to satisfy “strict evidentiary procedural limitations,” ibid., such as direct, cross, and redirect examination. That may prove particularly and prohibitively cumbersome for the occasions inquiry, which is one small piece of the larger sentencing puzzle.
All of these practical considerations lead me to believe that insisting that juries make factual determinations about a defendant's past criminal behavior—and especially the “intensely factual” one at issue here, ante, at 828—is not only unwise but unworkable. Again, how will juries of today actually determine what happened—and why—with respect to long-forgotten crimes of yesteryear? Who will testify about those crimes (who is still around and remembers)? And 4Some courts have held that sentencing judges cannot consider any evidence other than Shepard documents when undertaking ACCA's occasions inquiry. See, e. g., United States v. Elliott, 703 F. 3d 378, 382 (CA7 2012). But, in general, those conclusions appear to rest on a misunderstanding of the scope of a judge's power to fnd recidivism facts. As I have explained, judges have long been able to make factual fndings for sentencing purposes by considering all manner of evidence, and they are well equipped to consider any relevant evidence in making recidivism fndings. Page Proof Pending Publication Page Proof Pending Publication where is the physical evidence that was originally used to try those cases now?
These kinds of challenges present one obvious reason that, even as the Apprendi Court held that the Constitution prohibits judges from fnding facts “that increas[e] the penalty for a crime beyond the prescribed statutory maximum,” it also included an express exemption—“[o]ther than the fact of a prior conviction.” 530 U. S., at 490. Perhaps the Court saw ft to expressly exclude the fact of a prior conviction from its original holding in Apprendi because of the reality that requiring juries to fnd recidivism facts is simply not doable. See id., at 555 (Breyer, J., dissenting) (emphasizing “the impractical nature” of the Apprendi rule).
But, hey, says today's majority, why should unrealistic expectations stop the Court from nonetheless requiring this to be done? Not one to be attentive to practical realities, especially when it believes it has constitutional theory on its side, the majority now plows forward, pushing the Apprendi doctrine into the realm of facts related to recidivism, which Apprendi had excluded, and which lower courts have nearly uniformly reserved for sentencing judges in the two decades since that opinion issued.
The bottom line is this: Unlike juries, judges have the competency, wherewithal, and fexibility to assess facts related to defendants' past crimes and to handle, in a balanced way, the various practical problems that reliance on that kind of evidence raises. All things considered, then, committing the factfnding exercise related to ACCA's occasions inquiry to judges is by far more effcient, and probably more fair to participants in the justice system overall, than requiring juries to make that fnding. For this reason, too, this Court should have continued to allow judges to do what they have always done and what they do best—make factual fndings related to a defendant's criminal history, as Apprendi seems to permit, through its acceptance of Almendarez- Torres.
* * * Judges take into account all kinds of facts about a criminal offense and the defendant when sentencing—they always have, and they always will. Doing so is, in fact, how a judge goes about determining what sentence to impose in a given case. Thus, the notion that it is possible for judges to fnd facts in order to “lower” but not “increase” a defendant's sentence, ante, at 835–836, n. 1 (emphasis deleted), is a theoretical concept that bears no relationship to how sentencing actually works in a courtroom.
This might well be why, in reality, judges have continued to fnd facts that relate to the penalties they impose on criminal defendants (even facts that they ultimately rely on to give a higher sentence than the defendant may have otherwise received) regardless of this Court's pronouncements purporting to vindicate defendants' constitutional rights by giving juries the responsibility to make those particular factual determinations. Ultimately, then, all the Apprendi rule accomplishes on the ground is impeding legislative directives to courts about the exercise of judicial discretion when sentencing—a development that, in my view, does not redound to the beneft of defendants collectively, the criminal justice system, or our democratic society.
In any event, before today, recidivism facts in particular have been specifcally reserved for judges to determine; Ap prendi itself expressly exempted the fact of a prior conviction from the rule it was announcing. I would not extend the Apprendi rule to cover this kind of factfnding now, especially since applying Apprendi to recidivism facts creates a host of practical problems that pertain to fairness and effciency. Because the Court applies the Apprendi doctrine to recidivism fndings when it did not have to do so, and also reaches that conclusion without concern for the myriad practical diffculties that arise from this determination, I respectfully dissent.
Page Proof Pending Publication Page Proof Pending Publication Reporter’s Note The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made: p. 879, line 11 from bottom: “and” is replaced with “or” p. 880, line 9: “of” is replaced with “for” p. 898, line 8 from bottom: “of” is inserted after “kind”