Dynel McMILLAN, Lorna Peterson, James J. Dennison and Harold L. Smalls,
Justice REHNQUIST delivered the opinion of the Court.
We granted certiorari to consider the constitutionality, under the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment, of Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa.Const.Stat. § 9712 (1982) (the Act).
[p. 81] I
The Act was adopted in 1982. It provides that anyone convicted of certain enumerated felonies is subject to a mandatory minimum sentence of five years' imprisonment if the sentencing judge finds, by a preponderance of the evidence, that the person "visibly possessed a firearm" during the commission of the offense. At the sentencing hearing, the judge is directed to consider the evidence introduced at trial and any additional evidence offered by either the defendant or the Commonwealth. § 9712(b). [n. 1] The Act operates to divest [p. 82] the judge of discretion to impose any sentence of less than five years for the underlying felony; it does not authorize a sentence in excess of that otherwise allowed for that offense.
Petitioners also contended that even if visible possession is not an element of the offense, due process requires more than proof by a preponderance of the evidence. The Supreme Court of Pennsylvania rejected this claim as well, holding that the preponderance standard satisfies due process under the approach set out in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The Commonwealth's interest in deterring the illegal use of firearms and insure punishment for those who [p. 84] commit crimes with guns is as compelling as a convicted defendant's countervailing liberty interest, which has been substantially diminished by a guilty verdict. Moreover, the risk of error in the context of a § 9712 proceeding is comparatively slight--visible possession is a simple, straightforward issue susceptible of objective proof. On balance, the court concluded, it is reasonable for the defendant and the Commonwealth to share equally in any risk of error. The court vacated petitioners' sentences and remanded for sentencing pursuant to the Act. One justice concurred and filed a separate opinion.
We granted certiorari, 474 U.S. 815, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985), and now affirm.
II
Petitioners argue that under the Due Process Clause as interpreted in Winship and Mullaney, if a State wants to punish visible possession of a firearm it must undertake the burden of proving that fact beyond a reasonable doubt. We disagree. Winship held that "the Due Process Clause 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." 397 U.S., at 364, 90 S.Ct., at 1073. In Mullaney v. Wilbur, we held that the Due Process Clause "requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." 421 U.S., at 704, 95 S.Ct., at 1892. But in Patterson, we rejected the claim that whenever a State links the "severity of punishment" to "the presence or absence of an identified fact" the State must prove that fact beyond a reasonable doubt. 432 U.S., at 214, 97 S.Ct., at 2329; see also id., at 207, 97 S.Ct., at 2325 (State need not "prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment"). In particular, we upheld against a due process challenge New York's law placing on [p. 85] defendants charged with murder the burden of proving the affirmative defense of extreme emotional disturbance.
Patterson stressed that in determining what facts must be proved
beyond a reasonable doubt the state legislature's definition of the elements
of the offense is usually dispositive: "[T]he Due Process Clause
requires the prosecution to prove beyond a reasonable doubt all of the
elements included in the definition of the offense of which the defendant
is charged." Id., at 210, 97 S.Ct., at 2327 (emphasis added).
While "there are obviously constitutional limits beyond which the States
may not go in this regard," ibid., "[t]he applicability of the reasonable-doubt
standard ... has always been dependent on how a State defines the offense
that is charged in any given case," id., at 211, n. 12, 97 S.Ct., at 2327.
Patterson rests on a premise that bears repeating here:
"It goes without saying that preventing and dealing with crime is much
more the business of the States than it is of the Federal Government, Irvine
v. California, 347 U.S. 128, 134 [74 S.Ct. 381, 384, 98 L.Ed. 561] (1954)
(plurality opinion), and that we should not lightly construe the Constitution
so as to intrude upon the administration of justice by the individual States.
Among other things, it is normally 'within the power of the State to regulate
procedures under which its laws are carried out, including the burden of
producing evidence and the burden of persuasion,' and its decision in this
regard is not subject to proscription under the Due Process Clause unless
'it offends some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.' Speiser v. Randall,
357 U.S. 513, 523 [78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460] (1958)." Id. 432
U.S., at 201-202, 97 S.Ct., at 2322 (citations omitted).
We believe that the present case is controlled by Patterson, our most recent pronouncement on this subject, rather than by Mullaney. As the Supreme Court of Pennsylvania observed, the Pennsylvania Legislature has expressly provided that visible possession of a firearm is not an element of [p. 86] the crimes enumerated in the mandatory sentencing statute, § 9712(b), but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt. Indeed, the elements of the enumerated offenses, like the maximum permissible penalties for those offenses, were established long before the Mandatory Minimum Sentencing Act was passed. [n. 3] While visible possession might well have been included as an element of the enumerated offenses, Pennsylvania chose not to redefine those offenses in order to so include it, and Patterson teaches that we should hesitate to conclude that due process bars the State from pursuing its chosen course in the area of defining crimes and prescribing penalties.
3. The elements of the enumerated offenses were established in essentially their present form in 1972. See 1972 Pa.Laws No. 334, which compiled, amended, and codified the Pennsylvania "Crimes Code." The Mandatory Minimum Sentencing Act was passed in 1982.
As Patterson recognized, of course, there are constitutional limits to the State's power in this regard; in certain limited circumstances Winship' s reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged. Petitioners argue that Pennsylvania has gone beyond those limits and that its formal provision that visible possession is not an element of the crime is therefore of no effect. We do not think so. While we have never attempted to define precisely the constitutional limits noted in Patterson, i.e., the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases, and do not do so today, we are persuaded by several factors that Pennsylvania's Mandatory Minimum Sentencing Act does not exceed those limits.
We note first that the Act plainly does not transgress the limits
expressly set out in Patterson. Responding to the concern that its
rule would permit States unbridled power to redefine crimes to the detriment
of criminal defendants, the Patterson Court advanced the unremarkable proposition
that [p. 87] the Due Process Clause precludes States from discarding the
presumption of innocence:
" '[I]t is not within the province of a legislature to declare an individual
guilty or presumptively guilty of a crime.' McFarland v. American
Sugar Rfg. Co., 241 U.S. 79, 86 [36 S.Ct. 498, 500, 60 L.Ed. 899] (1916).
The legislature cannot 'validly command that the finding of an indictment,
or mere proof of the identity of the accused, should create a presumption
of the existence of all the facts essential to guilt.' Tot v. United
States, 319 U.S. 463, 469 [63 S.Ct. 1241, 1246, 87 L.Ed. 1519] (1943)."
Patterson, 432 U.S., at 210, 97 S.Ct., at 2327.
Here, of course, the Act creates no presumptions of the sort
condemned in McFarland v. American Sugar Rfg. Co., 241 U.S. 79, 36
S.Ct. 498, 60 L.Ed. 899 (1916) (presumption from price sugar refiner paid
for sugar that refiner was party to a monopoly), or Tot v. United States,
319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) (presumption that convicted
felon who possessed a weapon obtained it in interstate commerce).
Nor does it relieve the prosecution of its burden of proving guilt;
§ 9712 only becomes applicable after a defendant has been duly convicted
of the crime for which he is to be punished.
The Court in Mullaney observed, with respect to the main criminal statute invalidated in that case, that once the State proved the elements which Maine required it to prove beyond a reasonable doubt the defendant faced "a differential in sentencing ranging from a nominal fine to a mandatory life sentence." 421 U.S., at 700, 95 S.Ct., at 1890. In the present case the situation is quite different. Of the offenses enumerated in the Act, third-degree murder, robbery as defined in 18 Pa.Cons.Stat. § 3701(a)(1) (1982), kidnaping, rape, and involuntary deviate sexual intercourse are first-degree felonies subjecting the defendant to a maximum of 20 years' imprisonment. § 1103(1). Voluntary manslaughter and aggravated assault as defined in § 2702(a)(1) are felonies of the second degree carrying a maximum sentence of 10 years. § 1103(2). Section 9712 neither alters the maximum penalty for the crime [p. 88] committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 "ups the ante" for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. [n. 4] The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners' claim that visible possession under the Pennsylvania statute is "really" an element of the offenses for which they are being punished--that Pennsylvania has in effect defined a new set of upgraded felonies--would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through "use of a dangerous weapon or device"), but it does not.
4. By prescribing a mandatory minimum sentence, the Act incidentally serves to restrict the sentencing court's discretion in setting a maximum sentence. Pennsylvania law provides that a minimum sentence of confinement "shall not exceed one-half of the maximum sentence imposed." 42 Pa.Cons.Stat. § 9756(b) (1982). Thus, the shortest maximum term permissible under the Act is 10 years.
Petitioners contend that this Court's decision in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), requires the invalidation of the Pennsylvania statute challenged here. Again, we think petitioners simply read too much into one of our previous decisions. Under the Colorado scheme at issue in Specht, conviction of a sexual offense otherwise carrying a maximum penalty of 10 years exposed a defendant to an indefinite term to and including life imprisonment if the sentencing judge made a post-trial finding that the defendant posed "a threat of bodily harm to members of the public, or is an habitual offender and mentally ill," id., at 607, 87 S.Ct., at 1211. This finding could be made, without notice or any "hearing in the normal sense," [p. 89] based solely on a presentence psychiatric report. Id., at 608, 87 S.Ct., at 1211. This Court held that the Colorado scheme failed to satisfy the requirements of due process, and that the defendant had a right to be present with counsel, to be heard, to be confronted with and to cross-examine the witnesses against him, and to offer evidence of his own.
Petitioners suggest that had Winship already been decided at the time of Specht, the Court would have also required that the burden of proof as to the post-trial findings be beyond a reasonable doubt. But even if we accept petitioners' hypothesis, we do not think it avails them here. The Court in Specht observed that following trial the Colorado defendant was confronted with "a radically different situation" from the usual sentencing proceeding. The same simply is not true under the Pennsylvania statute. The finding of visible possession of a firearm of course "ups the ante" for a defendant, or it would not be challenged here; but it does so only in the way that we have previously mentioned, by raising the minimum sentence that may be imposed by the trial court.
Finally, we note that the specter raised by petitioners of States
restructuring existing crimes in order to "evade" the commands of Winship
just does not appear in this case. As noted above, § 9712's
enumerated felonies retain the same elements they had before the Mandatory
Minimum Sentencing Act was passed. The Pennsylvania Legislature did
not change the definition of any existing offense. It simply took
one factor that has always been considered by sentencing courts to bear
on punishment--the instrumentality used in committing a violent felony--and
dictated the precise weight [p. 90] to be given that factor if the instrumentality
is a firearm. Pennsylvania's decision to do so has not transformed against
its will a sentencing factor into an "element" of some hypothetical "offense."
Petitioners seek support for their due process claim by observing that many legislatures have made possession of a weapon an element of various aggravated offenses. But the fact that the States have formulated different statutory schemes to punish armed felons is merely a reflection of our federal system, which demands "[t]olerance for a spectrum of state procedures dealing with a common problem of law enforcement," Spencer v. Texas, 385 U.S. 554, 566, 87 S.Ct. 648, 655, 17 L.Ed.2d 606 (1967). That Pennsylvania's particular approach has been adopted in few other States does not render Pennsylvania's choice unconstitutional. See Patterson, 432 U.S., at 211, 97 S.Ct., at 2327; cf. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984). Nor does the historical test advanced by the Patterson dissent, on which petitioners apparently also rely, materially advance their cause. While it is surely true that "[f]or hundreds of years some offenses have been considered more serious and the punishment made more severe if the offense was committed with a weapon or while armed," Brief for Petitioners 17, n. 11, petitioners do not contend that the particular factor made relevant here--visible possession of a firearm--has historically been treated "in the Anglo-American legal tradition" as requiring proof beyond a reasonable doubt, Patterson, 432 U.S., at 226, 97 S.Ct., at 2335 (POWELL, J., dissenting). See also id., at 229, [p. 91] n. 14, 97 S.Ct., at 2337, n. 14 (POWELL, J., dissenting) (approving new scheme under which State put burden on armed robbery defendant to prove that gun was unloaded or inoperative in order to receive lower sentence).
We have noted a number of differences between this case and Winship, Mullaney, and Specht, and we find these differences controlling here. Our inability to lay down any "bright line" test may leave the constitutionality of statutes more like those in Mullaney and Specht than is the Pennsylvania statute to depend on differences of degree, but the law is full of situations in which differences of degree produce different results. We have no doubt that Pennsylvania's Mandatory Minimum Sentencing Act falls on the permissible side of the constitutional line.
III
Having concluded that States may treat "visible possession of a firearm" as a sentencing consideration rather than an element of a particular offense, we now turn to petitioners' subsidiary claim that due process nonetheless requires that visible possession be proved by at least clear and convincing evidence. Like the court below, we have little difficulty concluding that in this case the preponderance standard satisfies due process. Indeed, it would be extraordinary if the Due Process Clause as understood in Patterson plainly sanctioned Pennsylvania's scheme, while the same Clause explained in some other line of less clearly relevant cases imposed more stringent requirements. There is, after all, only one Due Process Clause in the Fourteenth Amendment. Furthermore, petitioners do not and could not claim that a sentencing court may never rely on a particular fact in passing sentence without finding that fact by "clear and convincing evidence." Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Pennsylvania has deemed a particular fact relevant and prescribed a [p. 92] particular burden of proof. We see nothing in Pennsylvania's scheme that would warrant constitutionalizing burdens of proof at sentencing. [n. 8]
8. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), which respectively applied the "clear and convincing evidence" standard where the State sought involuntary commitment to a mental institution and involuntary termination of parental rights, are not to the contrary. Quite unlike the situation in those cases, criminal sentencing takes place only after a defendant has been adjudged guilty beyond a reasonable doubt. Once the reasonable-doubt standard has been applied to obtain a valid conviction, "the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him." Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). As noted in text, sentencing courts have always operated without constitutionally imposed burdens of proof; embracing petitioners' suggestion that we apply the clear-and-convincing standard here would significantly alter criminal sentencing, for we see no way to distinguish the visible possession finding at issue here from a host of other express or implied findings sentencing judges typically make on the way to passing sentence.
Petitioners apparently concede that Pennsylvania's scheme would pass constitutional muster if only it did not remove the sentencing court's discretion, i.e., if the legislature had simply directed the court to consider visible possession in passing sentence. Brief for Petitioners 31-32. We have some difficulty fathoming why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance. Nor is there merit to the claim that a heightened burden of proof is required because visible possession is a fact "concerning the crime committed" rather than the background or character of the defendant. Ibid. Sentencing courts necessarily consider the circumstances of an offense in selecting the appropriate punishment, and we have consistently approved sentencing schemes that mandate consideration of facts related to the crime, e.g., Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), without suggesting that those facts must be proved beyond a reasonable doubt. The Courts of Appeals have uniformly rejected due process challenges to the preponderance standard under the federal "dangerous special offender" statute, 18 [p. 93] U.S.C. § 3575, which provides for an enhanced sentence if the court concludes that the defendant is both "dangerous" and a "special offender." See United States v. Davis, 710 F.2d 104, 106 (CA3) (collecting cases), cert. denied, 464 U.S. 1001, 104 S.Ct. 505, 78 L.Ed.2d 695 (1983).
IV
In light of the foregoing, petitioners' final claim--that the Act denies them their Sixth Amendment right to a trial by jury--merits little discussion. Petitioners again argue that the jury must determine all ultimate facts concerning the offense committed. Having concluded that Pennsylvania may properly treat visible possession as a sentencing consideration and not an element of any offense, we need only note that there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact. See Spaziano v. Florida, 468 U.S., at 459, 104 S.Ct., at 3161.
For the foregoing reasons, the judgment of the Supreme Court of Pennsylvania is affirmed.
It is so ordered.
Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting.
[omitted]
[p. 95] Justice STEVENS, dissenting.
Petitioner Dennison, a 73-year-old man, committed an aggravated assault upon a neighborhood youth whom he suspected of stealing money from his house. After a trial at which the Commonwealth proved the elements of the offense of aggravated assault beyond a reasonable doubt, the trial judge imposed a sentence of imprisonment of 11 1/2 to 23 months. Because he had concluded that Pennsylvania's recently enacted Mandatory Minimum Sentencing Act, 42 Pa.Cons.Stat. § 9712 (1982), was unconstitutional, the trial judge refused to impose the 5-year minimum sentence mandated by that Act whenever the Commonwealth proves--by a preponderance of the evidence--that the defendant "visibly possessed a firearm during the commission of the offense," § 9712(b).
The judge presiding over Dennison's trial, as well as the judges in the other three petitioners' trials and the Superior Court Judges hearing the appeals, all concluded that visible possession of a firearm was an element of the offense. " 'Visibly possessed a firearm' is inarguably language which refers to behavior which the legislature intended to prohibit." App. to Pet. for Cert. A35. As a consequence, the prohibited conduct had to be established by proof beyond a reasonable doubt. The Pennsylvania Supreme Court agreed that visible possession of a firearm is conduct that the Pennsylvania General Assembly intended to prohibit, Commonwealth v. Wright, 508 Pa. 25, 42, 494 A.2d 354, 363 (1985) (Larsen, J., concurring); id., at 49, 494 A.2d, at 366 (concurring opinion joined by the majority opinion), and it recognized that evidence of such conduct would mandate a minimum sentence of imprisonment more than twice as severe as the maximum the trial judge would otherwise have imposed on petitioner Dennison, id., at 29, n. 1, 494 A.2d, at 356, n. 1. But it nonetheless held that visible possession of a firearm was not an element of the offense because the Pennsylvania [p. 96] General Assembly had the foresight to declare in § 9712(b) that "Provisions of this section shall not be an element of the crime."
It is common ground that "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977). Today the Court holds that state legislatures may not only define the offense with which a criminal defendant is charged, but may also authoritatively determine that the conduct so described--i.e., the prohibited activity which subjects the defendant to criminal sanctions--is not an element of the crime which the Due Process Clause requires to be proved by the prosecution beyond a reasonable doubt. In my view, a state legislature may not dispense with the requirement of proof beyond a reasonable doubt for conduct that it targets for severe criminal penalties. Because the Pennsylvania statute challenged in this case describes conduct that the Pennsylvania Legislature obviously intended to prohibit, and because it mandates lengthy incarceration for the same, I believe that the conduct so described is an element of the criminal offense to which the proof beyond a reasonable doubt requirement applies.
Once a State defines a criminal offense, the Due Process Clause requires it to prove any component of the prohibited transaction that gives rise to both a special stigma and a special punishment beyond a reasonable doubt. This much has been evident at least since In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In that case, the Court "explicitly" held that "the Due Process Clause 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." Id., at 364, 90 S.Ct., at 1073. In reasoning to this conclusion the Court reviewed the heritage of the rule that Justice Frankfurter characterized as "basic in our law and rightly one of the boasts of [p. 97] a free society," [n. 1] and--of critical importance to the decision before us--explained the reasons that undergird the rule:
Indeed, contrary to the supposition of the majority, Patterson
v. New York is entirely in keeping with the limit on state definitional
power implied in Winship. Patterson was charged with second-degree
murder, a crime which in New York included two elements: " 'intent
to cause the death of another person' " and " 'caus[ing] the death of such
person or of a third person.' " 432 U.S., at 198, 97 S.Ct., at 2321
(quoting N.Y. Penal Law § 125.25 (McKinney 1975)). "Malice aforethought
[was] not an element of the crime." 432 U.S., at 198, 97 S.Ct., at
2321. Because [p. 99] "causing the death of another person with intent
to do so," id., at 205, 97 S.Ct., at 2324, was "an act which ... the State
may constitutionally criminalize and punish," id., at 209, 97 S.Ct., at
2326; accord, id., at 208, 97 S.Ct., at 2326, and because New York
in fact proscribed and punished that conduct, id., at 206, 97 S.Ct., at
2324, the Court upheld the State's refusal to "prove beyond a reasonable
doubt every fact, the existence or nonexistence of which it [was] willing
to recognize as an exculpatory or mitigating circumstance affecting the
degree of culpability or the severity of the punishment," id., at 207,
97 S.Ct., at 2325 (emphasis added)--in that case, the affirmative defense
of extreme emotional disturbance. The Court explained that "the Due
Process Clause did not invalidate every instance of burdening the defendant
with proving an exculpatory fact." Id., at 203, n. 9, 97 S.Ct., at
2323, n. 9 (emphasis added). "To recognize at all a mitigating circumstance
does not require the State to prove its nonexistence in each case in which
the fact is put in issue." Id., at 209, 97 S.Ct., at 2326 (emphasis
added). Patterson thus clarified that the Due Process Clause requires proof
beyond a reasonable doubt of conduct which exposes a criminal defendant
to greater stigma or punishment, but does not likewise constrain state
reductions of criminal penalties--even if such reductions are conditioned
on a prosecutor's failure to prove a fact by a preponderance of the evidence
or on proof supplied by the criminal defendant.
[p. 100] The distinction between aggravating and mitigating facts has
been criticized as formalistic. But its ability to identify genuine
constitutional threats depends on nothing more than the continued functioning
of the democratic process. To appreciate the difference between aggravating
and mitigating circumstances, it is important to remember that although
States may reach the same destination either by criminalizing conduct and
allowing an affirmative defense, or by prohibiting lesser conduct and enhancing
the penalty, legislation proceeding along these two paths is very different
even if it might theoretically achieve the same result. Consider,
for example, a statute making presence "in any private or public place"
a "felony punishable by up to five years imprisonment" and yet allowing
"an affirmative defense for the defendant to prove, to a preponderance
of the evidence, that he was not robbing a bank." Dutile, The Burden
of Proof in Criminal [p. 101] Cases: A Comment on the Mullaney-Patterson
Doctrine, 55 Notre Dame Law. 380, 383 (1980). No democratically elected
legislature would enact such a law, and if it did, a broad-based coalition
of bankers and bank customers would soon see the legislation repealed.
Nor is there a serious danger that a State will soon define murder to be
the "mere physical contact between the defendant and the victim leading
to the victim's death, but then set up an affirmative defense leaving it
to the defendant to prove that he acted without culpable mens rea."
Patterson v. New York, 432 U.S., at 224, n. 8, 97 S.Ct., at 2334, n. 8
(POWELL, J., dissenting). No legislator would be willing to expose
himself to the severe opprobrium and punishment meted out to murderers
for an accidental stumble on the subway. For similar reasons, it
can safely be assumed that a State will not "define all assaults as a single
offense and then require the defendant to disprove the elements of aggravation."
Mullaney v. Wilbur, 421 U.S. 684, 699, [p. 102] n. 24, 95 S.Ct. 1881, 1890,
n. 24, 44 L.Ed.2d 508 (1975). The very inconceivability of the hypothesized
legislation--all of which has been sincerely offered to illustrate the
dangers of permitting legislative mitigation of punishment in derogation
of the requirement of proof beyond a reasonable doubt--is reason enough
to feel secure that it will not command a majority of the electorate.
It is not at all inconceivable, however, to fear that a State might subject those individuals convicted of engaging in antisocial conduct to further punishment for aggravating conduct not proved beyond a reasonable doubt. As this case demonstrates, a State may seek to enhance the deterrent effect of its law forbidding the use of firearms in the course of felonies by mandating a minimum sentence of imprisonment upon proof by a preponderance against those already convicted of specified crimes. But In re Winship and Patterson teach that a State may not advance the objectives of its criminal laws at the expense of the accurate factfinding owed to the criminally accused who suffer the risk of nonpersuasion.
It would demean the importance of the reasonable-doubt standard--indeed, it would demean the Constitution itself--if the substance of the standard could be avoided by nothing more than a legislative declaration that prohibited conduct is not an "element" of a crime. A legislative definition of an offense named "assault" could be broad enough to encompass every intentional infliction of harm by one person upon another, but surely the legislature could not provide that only that fact must be proved beyond a reasonable doubt and then specify a range of increased punishments if the prosecution could show by a preponderance of the evidence that the defendant robbed, raped, or killed his victim "during the commission of the offense."
[p. 103] Appropriate respect for the rule of In re Winship requires that there be some constitutional limits on the power of a State to define the elements of criminal offenses. The high standard of proof is required because of the immense importance of the individual interest in avoiding both the loss of liberty and the stigma that results from a criminal conviction. It follows, I submit, that if a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a "fact necessary to constitute the crime" within the meaning of our holding in In re Winship.
Pennsylvania's Mandatory Minimum Sentencing Act reflects a legislative determination that a defendant who "visibly possessed a firearm" during the commission of an aggravated assault is more blameworthy than a defendant who did not. A judicial finding that the defendant used a firearm in an aggravated assault places a greater stigma on the defendant's name than a simple finding that he committed an aggravated assault. And not to be overlooked, such a finding with respect to petitioner Dennison automatically mandates a punishment that is more than twice as severe as the maximum punishment that the trial judge considered appropriate for his conduct.
It is true, as the Court points out, that the enhanced punishment is within the range that was authorized for any aggravated assault. That fact does not, however, minimize the significance of a finding of visible possession of a firearm whether attention is focused on the stigmatizing or punitive consequences of that finding. See Mullaney v. Wilbur, 421 U.S., at 697-698, 95 S.Ct., at 1888-1889. [n. 6] The finding identifies conduct that the legislature specifically intended to prohibit and to punish by a [p. 104] special sanction. In my opinion the constitutional significance of the special sanction cannot be avoided by the cavalier observation that it merely "ups the ante" for the defendant. See ante, at 2418. No matter how culpable petitioner Dennison may be, the difference between 11 1/2 months and 5 years of incarceration merits a more principled justification than the luck of the draw.
I respectfully dissent.