OREGON v. ICE

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160 OCTOBER TERM, 2008
Syllabus
OREGON v. ICE
certiorari to the supreme court of oregon
No. 07–901. Argued October 14, 2008—Decided January 14, 2009
Respondent Ice twice entered an 11-year-old girl’s residence and sexually
assaulted her. For each of the incidents, an Oregon jury found Ice
guilty of first-degree burglary for entering with the intent to commit
sexual abuse; first-degree sexual assault for touching the victim’s va
gina; and first-degree sexual assault for touching her breasts. Ice was
sentenced under a state statute providing, generally, for concurrent sen
tences, Ore. Rev. Stat. § 137.123(1), but allowing the judge to impose
consecutive sentences in these circumstances: (1) when “a defendant is
simultaneously sentenced for . . . offenses that do not arise from the
same . . . course of conduct,” § 137.123(2), and (2) when offenses arise
from the same course of conduct, if the judge finds either “(a) [t]hat
the . . . offense . . . was an indication of defendant’s willingness to commit
more than one criminal offense; or . . . (b) [t]he . . . offense . . . caused
or created a risk of causing greater or qualitatively different . . . harm
to the victim,” § 137.123(5). The trial judge first found that the two
burglaries constituted separate incidents and exercised his discretion to
impose consecutive sentences for those crimes under § 137.123(2). The
court then found that each offense of touching the victim’s vagina met
§ 137.123(5)’s two criteria, giving the judge discretion to impose the sen
tences for those offenses consecutive to the two associated burglary sen
tences. The court elected to do so, but ordered that the sentences for
touching the victim’s breasts run concurrently with the other sentences.
On appeal, Ice argued, inter alia, that the sentencing statute was uncon
stitutional under Apprendi v. New Jersey, 530 U. S. 466, 490, and
Blakely v. Washington, 542 U. S. 296, holding that the Sixth Amend
ment’s jury-trial guarantee requires that the jury, rather than the judge,
determine any fact (other than the existence of a prior conviction) that
increases the maximum punishment authorized for a particular crime.
The appellate court affirmed, but the Oregon Supreme Court reversed,
holding that the Apprendi rule applied because the imposition of consec
utive sentences increased Ice’s quantum of punishment.
Held: In light of historical practice and the States’ authority over adminis
tration of their criminal justice systems, the Sixth Amendment does not
inhibit States from assigning to judges, rather than to juries, the finding
of facts necessary to the imposition of consecutive, rather than concur
rent, sentences for multiple offenses. Pp. 167–172.

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Syllabus
(a) The Court declines to extend the Apprendi and Blakely line of
decisions beyond the offense-specific context that supplied the historic
grounding for the decisions. The Court’s application of Apprendi’s rule
must honor the “longstanding common-law practice” in which the rule
is rooted. Cunningham v. California, 549 U. S. 270, 281. The rule’s
animating principle is the preservation of the jury’s historic role as a
bulwark between the State and the accused at the trial for an alleged
offense. See Apprendi, 530 U. S., at 477. Because the Sixth Amend
ment does not countenance legislative encroachment on the jury’s tradi
tional domain, see id., at 497, the Court considers whether the finding
of a particular fact was understood as within the jury’s domain by the
Bill of Rights’ Framers, Harris v. United States, 536 U. S. 545, 557. In
so doing, the Court is also cognizant that administration of a discrete
criminal justice system is among the basic sovereign prerogatives States
retain. See, e. g., Patterson v. New York, 432 U. S. 197, 201. These
twin considerations—historical practice and respect for state sover
eignty—counsel against extending Apprendi to the imposition of sen
tences for discrete crimes. Pp. 167–168.
(b) The historical record demonstrates that both in England before
this Nation’s founding and in the early American States, the common
law generally entrusted the decision whether sentences for discrete of
fenses should be served consecutively or concurrently to judges’ unfet
tered discretion, assigning no role in the determination to the jury.
Thus, legislative reforms regarding the imposition of multiple sentences
do not implicate the core concerns that prompted the Court’s decision
in Apprendi. There is no encroachment here by the judge upon facts
historically found by the jury, nor any threat to the jury’s domain as
a bulwark at trial between the State and the accused. Instead, the
defendant—who historically may have faced consecutive sentences by
default—has been granted by some modern legislatures statutory pro
tections meant to temper the harshness of the historical practice. Ice’s
argument that he is “entitled” to concurrent sentences absent the fact
findings Oregon law requires is rejected. Because the scope of the fed
eral constitutional jury right must be informed by the jury’s historical
common-law role, that right does not attach to every contemporary
state-law “entitlement” to predicate findings. For similar reasons,
Cunningham, upon which Ice heavily relies, does not control here. In
holding that the facts permitting imposition of an elevated “upper term”
sentence for a particular crime fell within the jury’s province rather
than the sentencing judge’s, 549 U. S., at 274, Cunningham had no occa
sion to consider the appropriate inquiry when no erosion of the jury’s
traditional role was at stake. Pp. 168–170.

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162 OREGON v. ICE
Syllabus
(c) States’ interest in the development of their penal systems, and
their historic dominion in this area, also counsel against the extension of
Apprendi that Ice requests. This Court should not diminish the States’
sovereign authority over the administration of their criminal justice sys
tems absent impelling reason to do so. Limiting judicial discretion to
impose consecutive sentences serves the “salutary objectives” of pro
moting sentences proportionate to “the gravity of the offense,” Blakely,
542 U. S., at 308, and of reducing disparities in sentence length. All
agree that a scheme making consecutive sentences the rule, and concur
rent sentences the exception, encounters no Sixth Amendment shoal.
To hem in States by holding that they may not choose to make concur
rent sentences the rule, and consecutive sentences the exception, would
make scant sense. Neither Apprendi nor the Court’s Sixth Amendment
traditions compel straitjacketing the States in that manner. Further,
the potential intrusion of Apprendi’s rule into other state initiatives
on sentencing choices or accoutrements—for example, permitting trial
judges to find facts about the offense’s nature or the defendant’s charac
ter in determining the length of supervised release, required attendance
at drug rehabilitation programs or terms of community service, and the
imposition of fines and restitution—would cut the rule loose from its
moorings. Moreover, the expansion Ice seeks would be difficult for
States to administer, as the predicate facts for consecutive sentences
could substantially prejudice the defense at the trial’s guilt phase, po
tentially necessitating bifurcated or trifurcated trials. Pp. 170–172.
343 Ore. 248, 170 P. 3d 1049, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Stevens,
Kennedy, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting
opinion, in which Roberts, C. J., and Souter and Thomas, JJ., joined,
post, p. 173.
Mary H. Williams, Solicitor General of Oregon, argued
the cause for petitioner. With her on the briefs were Hardy
Myers, Attorney General, Peter Shepherd, Deputy Attorney
General, and Douglas Petrina, Assistant Attorney General.
Ernest G. Lannet, by appointment of the Court, 553 U. S.
1030, argued the cause for respondent. With him on the
brief were Peter Gartlan and Rebecca A. Duncan.*
*Briefs of amici curiae urging reversal were filed for the State of Indi
ana et al. by Steve Carter, Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, Stephen R. Creason, Section Chief, and Ellen

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163 Cite as: 555 U. S. 160 (2009)
Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
This case concerns the scope of the Sixth Amendment’s
jury-trial guarantee, as construed in Apprendi v. New Jersey,
530 U. S. 466 (2000), and Blakely v. Washington, 542 U. S.
296 (2004). Those decisions are rooted in the historic jury
function—determining whether the prosecution has proved
each element of an offense beyond a reasonable doubt. They
hold that it is within the jury’s province to determine any
fact (other than the existence of a prior conviction) that in
creases the maximum punishment authorized for a particular
offense. Thus far, the Court has not extended the Apprendi
and Blakely line of decisions beyond the offense-specific con
text that supplied the historic grounding for the decisions.
The question here presented concerns a sentencing function
in which the jury traditionally played no part: When a de
fendant has been tried and convicted of multiple offenses,
each involving discrete sentencing prescriptions, does the
Sixth Amendment mandate jury determination of any fact
declared necessary to the imposition of consecutive, in lieu
of concurrent, sentences?
Most States continue the common-law tradition: They en
trust to judges’ unfettered discretion the decision whether
sentences for discrete offenses shall be served consecutively
or concurrently. In some States, sentences for multiple of-
H. Meilaender, Deputy Attorney General, and by the Attorneys General
for their respective States as follows: Troy King of Alabama, Terry God
dard of Arizona, John W. Suthers of Colorado, Bill McCollum of Florida,
Mark J. Bennett of Hawaii, Stephen N. Six of Kansas, G. Steven Rowe of
Maine, Martha Coakley of Massachusetts, Michael A. Cox of Michigan,
Lori Swanson of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Henry
D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Rob
ert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, and Robert
M. McKenna of Washington; for the Criminal Justice Legal Foundation
by Kent S. Scheidegger; and for Sentencing Law Scholars by Jonathan F.
Mitchell and Stephanos Bibas, both pro se.
Jeffrey T. Green filed a brief for the National Association of Criminal
Defense Lawyers as amicus curiae urging affirmance.

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164 OREGON v. ICE
Opinion of the Court
fenses are presumed to run consecutively, but sentencing
judges may order concurrent sentences upon finding cause
therefor. Other States, including Oregon, constrain judges’
discretion by requiring them to find certain facts before im
posing consecutive, rather than concurrent, sentences. It is
undisputed that States may proceed on the first two tracks
without transgressing the Sixth Amendment. The sole
issue in dispute, then, is whether the Sixth Amendment, as
construed in Apprendi and Blakely, precludes the mode of
proceeding chosen by Oregon and several of its sister States.
We hold, in light of historical practice and the authority of
States over administration of their criminal justice systems,
that the Sixth Amendment does not exclude Oregon’s choice.
I
A
State laws, as just observed, prescribe a variety of ap
proaches to the decision whether a defendant’s sentences for
distinct offenses shall run concurrently or consecutively.
Oregon might have followed the prevailing pattern by plac
ing the decision within the trial court’s discretion in all,1 or
almost all,2 circumstances. Instead, Oregon and several
other States have adopted a more restrained approach: They
provide for judicial discretion, but constrain its exercise. In
these States, to impose consecutive sentences, judges must
make certain predicate factfindings.3
1 E. g., Connecticut (Conn. Gen. Stat. § 53a–37 (2005)); Idaho (Idaho Code
§ 18–308 (Lexis 2004)); Nebraska (Neb. Rev. Stat. § 29–2204 (1995)). See
generally Brief for National Association of Criminal Defense Lawyers as
Amicus Curiae 9, n. 6 (listing laws of nine other States).
2 E. g., Florida (Fla. Stat. § 921.16 (2007)); Kansas (Kan. Stat. Ann. § 21–
4608 (2007)); Mississippi (Miss. Code Ann. § 99–19–21 (2007)).
3 E. g., Maine (Me. Rev. Stat. Ann., Tit. 17–A, § 1256 (2006); State v.
Keene, 2007 ME 84, 927 A. 2d 398); Tennessee (Tenn. Code Ann. § 40–35–
115(b) (2006); State v. Allen, 259 S. W. 3d 671 (Tenn. 2008)); Oregon (Ore.
Rev. Stat. § 137.123 (2007)).

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The controlling statute in Oregon provides that sentences
shall run concurrently unless the judge finds statutorily de
scribed facts. Ore. Rev. Stat. § 137.123(1) (2007). In most
cases, finding such facts permits—but does not require—the
judge to order consecutive sentences.4 Specifically, an Ore
gon judge may order consecutive sentences “[i]f a defendant
is simultaneously sentenced for criminal offenses that do not
arise from the same continuous and uninterrupted course of
conduct.” § 137.123(2). If the offenses do arise from the
same course of conduct, the judge may still impose consecu
tive sentences if she finds either:
“(a) That the criminal offense . . . was an indication of
defendant’s willingness to commit more than one crimi
nal offense; or
“(b) The criminal offense . . . caused or created a risk of
causing greater or qualitatively different loss, injury or
harm to the victim or . . . to a different victim . . . .”
§ 137.123(5).
B
On two occasions between December 1996 and July 1997,
respondent Thomas Eugene Ice entered an apartment in the
complex he managed and sexually assaulted an 11-year-old
girl. 343 Ore. 248, 250, 170 P. 3d 1049, 1050 (2007). An Ore
gon jury convicted Ice of six crimes. For each of the two
incidents, the jury found him guilty of first-degree burglary
for entering with the intent to commit sexual abuse; first
degree sexual assault for touching the victim’s vagina; and
first-degree sexual assault for touching the victim’s breasts.
Ibid.
At sentencing, the judge made findings, pursuant to
§ 137.123, that permitted the imposition of consecutive sen
tences. First, the judge found that the two burglaries con
4 Sentences must run consecutively, however, “[w]hen a defendant is sen
tenced for a crime committed while the defendant was incarcerated.”
Ore. Rev. Stat. § 137.123(3).

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166 OREGON v. ICE
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stituted “separate incident[s].” Id., at 255, 170 P. 3d, at 1053
(internal quotation marks omitted). Based on that finding,
the judge had, and exercised, discretion to impose the two
burglary sentences consecutively. Ibid.; see § 137.123(2).
Second, the court found that each offense of touching the
victim’s vagina met the statutory criteria set forth in
§ 137.123(5): Ice displayed a “willingness to commit more
than one . . . offense” during each criminal episode, and his
conduct “caused or created a risk of causing greater, qualita
tively different loss, injury or harm to the victim.” Id., at
253, 170 P. 3d, at 1051 (internal quotation marks omitted).
These findings gave the judge discretion to impose the sen
tence for each of those sexual assault offenses consecutive to
the associated burglary sentence. The court elected to do
so. Ibid. The court ordered, however, that the sentences
for touching the victim’s breasts run concurrently with the
other sentences. Ibid. In total, the court sentenced Ice to
340 months’ imprisonment. App. 46–87.5
Ice appealed his sentences. In relevant part, he argued
that he had a Sixth Amendment right to have the jury, not
the sentencing judge, find the facts that permitted the im
position of consecutive sentences. The appellate court af
firmed the trial court’s judgment without opinion. 178 Ore.
App. 415, 39 P. 3d 291 (2001).
The Oregon Supreme Court granted Ice’s petition for re
view and reversed, 4 to 2. 343 Ore., at 250, 170 P. 3d, at
1050.6 In the majority’s view, the rule of Apprendi applied,
because the imposition of consecutive sentences increased
“the quantum of punishment” imposed. 343 Ore., at 265, 170
5 Had the judge ordered concurrent service of all sentences, Ice’s time
in prison would have been 90 months. App. 68, 75.
6 Preliminarily, the Oregon Supreme Court ruled unanimously that the
consecutive-sentencing findings did not constitute elements of any specific
crime, and therefore the jury-trial right safeguarded by the Oregon Con
stitution was not violated. 343 Ore. 248, 261–262, 170 P. 3d 1049, 1056
(2007).

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Opinion of the Court
P. 3d, at 1058. The dissenting justices concluded that “[n]ei
ther the holding in Apprendi nor its reasoning support[ed]
extending that decision to the question of consecutive sen
tencing.” Id., at 267, 170 P. 3d, at 1059 (opinion of Kistler,
J.). State high courts have divided over whether the rule
of Apprendi governs consecutive-sentencing decisions.7 We
granted review to resolve the question. 552 U. S. 1256 (2008).
II
The Federal Constitution’s jury-trial guarantee assigns
the determination of certain facts to the jury’s exclusive
province. Under that guarantee, this Court held in Ap
prendi, “any fact that increases the penalty for a crime be
yond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” 530
U. S., at 490.
We have applied Apprendi’s rule to facts subjecting a
defendant to the death penalty, Ring v. Arizona, 536 U. S.
584, 602, 609 (2002), facts allowing a sentence exceeding
the “standard” range in Washington’s sentencing system,
Blakely, 542 U. S., at 304–305, and facts prompting an ele
vated sentence under then-mandatory Federal Sentencing
Guidelines, United States v. Booker, 543 U. S. 220, 244 (2005).
Most recently, in Cunningham v. California, 549 U. S. 270
(2007), we applied Apprendi’s rule to facts permitting impo
sition of an “upper term” sentence under California’s de
terminate sentencing law. All of these decisions involved
sentencing for a discrete crime, not—as here—for multiple
offenses different in character or committed at different
times.
Our application of Apprendi’s rule must honor the “long
standing common-law practice” in which the rule is rooted.
7 Compare, e. g., People v. Wagener, 196 Ill. 2d 269, 283–286, 752 N. E. 2d
430, 440–442 (2001) (holding that Apprendi does not apply); Keene, 927
A. 2d, at 405–408 (same), with State v. Foster, 109 Ohio St. 3d 1, 2006–
Ohio–856, 845 N. E. 2d 470 (holding Apprendi applicable).

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Cunningham, 549 U. S., at 281. The rule’s animating princi
ple is the preservation of the jury’s historic role as a bulwark
between the State and the accused at the trial for an alleged
offense. See Apprendi, 530 U. S., at 477. Guided by that
principle, our opinions make clear that the Sixth Amendment
does not countenance legislative encroachment on the jury’s
traditional domain. See id., at 497. We accordingly consid
ered whether the finding of a particular fact was understood
as within “the domain of the jury . . . by those who framed
the Bill of Rights.” Harris v. United States, 536 U. S. 545,
557 (2002) (plurality opinion). In undertaking this inquiry,
we remain cognizant that administration of a discrete crimi
nal justice system is among the basic sovereign prerogatives
States retain. See, e. g., Patterson v. New York, 432 U. S.
197, 201 (1977).
These twin considerations—historical practice and respect
for state sovereignty—counsel against extending Apprendi’s
rule to the imposition of sentences for discrete crimes. The
decision to impose sentences consecutively is not within the
jury function that “extends down centuries into the common
law.” Apprendi, 530 U. S., at 477. Instead, specification of
the regime for administering multiple sentences has long
been considered the prerogative of state legislatures.
A
The historical record demonstrates that the jury played
no role in the decision to impose sentences consecutively or
concurrently. Rather, the choice rested exclusively with the
judge. See, e. g., 1 J. Bishop, Criminal Law § 636, pp. 649–
650 (2d ed. 1858) (“[W]hen there are two or more convictions,
on which sentence remains to be pronounced; the judgment
may direct, that each succeeding period of imprisonment
shall commence on the termination of the period next pre
ceding.”); A. Campbell, Law of Sentencing § 9:22, p. 425 (3d
ed. 2004) (“Firmly rooted in common law is the principle that
the selection of either concurrent or consecutive sentences

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Opinion of the Court
rests within the discretion of sentencing judges.”). This
was so in England before the founding of our Nation,8 and in
the early American States.9 Ice “has no quarrel with [this
account] of consecutive sentencing practices through the
ages.” Brief for Respondent 32. The historical record fur
ther indicates that a judge’s imposition of consecutive, rather
than concurrent, sentences was the prevailing practice.10
In light of this history, legislative reforms regarding the
imposition of multiple sentences do not implicate the core
concerns that prompted our decision in Apprendi. There is
no encroachment here by the judge upon facts historically
found by the jury, nor any threat to the jury’s domain as a
bulwark at trial between the State and the accused. In
stead, the defendant—who historically may have faced con
secutive sentences by default—has been granted by some
modern legislatures statutory protections meant to temper
the harshness of the historical practice.
8 E. g., King v. Wilkes, 19 How. St. Tr. 1075, 1132–1136 (1770); see also
Lee v. Walker, [1985] 1 Q. B. 1191, 1201 (C. A. 1984) (“[T]he High Court
has always had inherent jurisdiction to impose consecutive sentences of
imprisonment in any appropriate case where the court had power to
imprison.”).
9 E. g., Russell v. Commonwealth, 7 Serg. & Rawle 489, 490 (Pa. 1822)
(Judicial imposition of consecutive sentences has been “the common prac
tice in the Courts of this State,” and it is “warranted by principle, practice,
and authority.”); In re Walsh, 37 Neb. 454, 456, 55 N. W. 1075, 1076 (1893)
(“[T]he great weight of authority is in favor of the proposition that . . . the
court has power to impose cumulative sentences.”); In re Breton, 93 Me.
39, 42, 44 A. 125, 126 (1899) (same); Howard v. United States, 75 F. 986,
993 (CA6 1896) (“[A] rule which denies the court the power to impose
cumulative sentences turns the trial and conviction on all the indictments
except one into an idle ceremony.”).
10 E. g., Queen v. Cutbush, L. R. 2 Q. B. 379, 382, 10 Cox Crim. Cas. 489,
492 (1867) (“[R]ight and justice require [that] when a man has been guilty
of separate offences, . . . that he should not escape from the punishment
due to the additional offence, merely because he is already sentenced to
be imprisoned for another offence.”); ibid. (noting that it had been the
practice to impose consecutive sentences “so far as living judicial memory
goes back”).

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It is no answer that, as Ice argues, “he was ‘entitled’ to”
concurrent sentences absent the factfindings Oregon law re
quires. Brief for Respondent 43. In Ice’s view, because
“the Oregon Legislature deviated from tradition” and
enacted a statute that hinges consecutive sentences on fact
findings, Apprendi’s rule must be imported. Brief for Re
spondent 33. As we have described, the scope of the consti
tutional jury right must be informed by the historical role of
the jury at common law. See, e. g., Williams v. Florida, 399
U. S. 78, 98–100 (1970). It is therefore not the case that, as
Ice suggests, the federal constitutional right attaches to
every contemporary state-law “entitlement” to predicate
findings.
For similar reasons, Cunningham, upon which Ice heavily
relies, does not control his case. As stated earlier, we held
in Cunningham that the facts permitting imposition of an
elevated “upper term” sentence for a particular crime fell
within the jury’s province. 549 U. S., at 274 (internal quota
tion marks omitted). The assignment of such a finding to
the sentencing judge implicates Apprendi’s core concern: a
legislative attempt to “remove from the [province of the]
jury” the determination of facts that warrant punishment for
a specific statutory offense. Apprendi, 530 U. S., at 490 (in
ternal quotation marks omitted). We had no occasion to
consider the appropriate inquiry when no erosion of the
jury’s traditional role was at stake. Cunningham thus does
not impede our conclusion that, as Apprendi’s core concern
is inapplicable to the issue at hand, so too is the Sixth
Amendment’s restriction on judge-found facts.
B
States’ interest in the development of their penal systems,
and their historic dominion in this area, also counsel against
the extension of Apprendi that Ice requests. Beyond ques
tion, the authority of States over the administration of their
criminal justice systems lies at the core of their sovereign
status. See, e. g., Patterson, 432 U. S., at 201 (“It goes with

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out saying that preventing and dealing with crime is much
more the business of the States than it is of the Federal
Government.”). We have long recognized the role of the
States as laboratories for devising solutions to difficult legal
problems. See New State Ice Co. v. Liebmann, 285 U. S. 262,
311 (1932) (Brandeis, J., dissenting). This Court should not
diminish that role absent impelling reason to do so.
It bears emphasis that state legislative innovations like
Oregon’s seek to rein in the discretion judges possessed at
common law to impose consecutive sentences at will. Limit
ing judicial discretion to impose consecutive sentences serves
the “salutary objectives” of promoting sentences proportion
ate to “the gravity of the offense,” Blakely, 542 U. S., at 308,
and of reducing disparities in sentence length, see 6 W. La-
Fave, J. Israel, N. King, & O. Kerr, Criminal Procedure
§ 26.3(f) (3d ed. 2007). All agree that a scheme making con
secutive sentences the rule, and concurrent sentences the ex
ception, encounters no Sixth Amendment shoal. To hem in
States by holding that they may not equally choose to make
concurrent sentences the rule, and consecutive sentences the
exception, would make scant sense. Neither Apprendi nor
our Sixth Amendment traditions compel straitjacketing the
States in that manner.
Further, it is unclear how many other state initiatives
would fall under Ice’s proposed expansion of Apprendi. As
17 States have observed in an amici brief supporting Ore
gon, States currently permit judges to make a variety of sen
tencing determinations other than the length of incarcera
tion. Trial judges often find facts about the nature of the
offense or the character of the defendant in determining, for
example, the length of supervised release following serv
ice of a prison sentence; required attendance at drug reha
bilitation programs or terms of community service; and the
imposition of statutorily prescribed fines and orders of
restitution. See Brief for State of Indiana et al. as Amici
Curiae 11. Intruding Apprendi’s rule into these decisions

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172 OREGON v. ICE
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on sentencing choices or accoutrements surely would cut the
rule loose from its moorings.
Moreover, the expansion that Ice seeks would be difficult
for States to administer. The predicate facts for consecutive
sentences could substantially prejudice the defense at the
guilt phase of a trial. As a result, bifurcated or trifurcated
trials might often prove necessary. Brief for State of
Indiana, supra, at 14–15. We will not so burden the Na
tion’s trial courts absent any genuine affront to Apprendi’s
instruction.
We recognize that not every state initiative will be in har
mony with Sixth Amendment ideals. But as we have pre
viously emphasized, “structural democratic constraints exist
to discourage legislatures from” pernicious manipulation of
the rules we articulate. Apprendi, 530 U. S., at 490, n. 16.
In any event, if confronted with such a manipulation, “we
would be required to question whether the [legislative meas
ure] was constitutional under this Court’s prior decisions.”
Id., at 491, n. 16. The Oregon statute before us today raises
no such concern.
III
Members of this Court have warned against “wooden, un
yielding insistence on expanding the Apprendi doctrine far
beyond its necessary boundaries.” Cunningham, 549 U. S.,
at 295 (Kennedy, J., dissenting). The jury-trial right is best
honored through a “principled rationale” that applies the
rule of the Apprendi cases “within the central sphere of their
concern.” 549 U. S., at 295. Our disposition today—up
holding an Oregon statute that assigns to judges a decision
that has not traditionally belonged to the jury—is faithful to
that aim.
* * *
For the reasons stated, the judgment of the Oregon
Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.

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Scalia, J., dissenting
Justice Scalia, with whom The Chief Justice, Justice
Souter, and Justice Thomas join, dissenting.
The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000),
is clear: Any fact—other than that of a prior conviction—
that increases the maximum punishment to which a defend
ant may be sentenced must be admitted by the defendant
or proved beyond a reasonable doubt to a jury. Oregon’s
sentencing scheme allows judges rather than juries to find
the facts necessary to commit defendants to longer prison
sentences, and thus directly contradicts what we held eight
years ago and have reaffirmed several times since. The
Court’s justification of Oregon’s scheme is a virtual copy of
the dissents in those cases.
The judge in this case could not have imposed a sentence
of consecutive prison terms without making the factual find
ing that the defendant caused “separate harms” to the victim
by the acts that produced two convictions. See 343 Ore. 248,
268, 170 P. 3d 1049, 1060 (2007) (Kistler, J., dissenting).
There can thus be no doubt that the judge’s factual finding
was “essential to” the punishment he imposed. United
States v. Booker, 543 U. S. 220, 232 (2005). That “should be
the end of the matter.” Blakely v. Washington, 542 U. S.
296, 313 (2004).
Instead, the Court attempts to distinguish Oregon’s sen
tencing scheme by reasoning that the rule of Apprendi ap
plies only to the length of a sentence for an individual crime
and not to the total sentence for a defendant. I cannot un
derstand why we would make such a strange exception to
the treasured right of trial by jury. Neither the reasoning
of the Apprendi line of cases, nor any distinctive history of
the factfinding necessary to imposition of consecutive sen
tences, nor (of course) logic supports such an odd rule.
We have taken pains to reject artificial limitations upon
the facts subject to the jury-trial guarantee. We long ago
made clear that the guarantee turns upon the penal conse
quences attached to the fact, and not to its formal definition
as an element of the crime. Mullaney v. Wilbur, 421 U. S.

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174 OREGON v. ICE
Scalia, J., dissenting
684, 698 (1975). More recently, we rejected the contention
that the “aggravating circumstances” that qualify a defend
ant for the death penalty did not have to be found by the
jury. “If,” we said, “a State makes an increase in a defend
ant’s authorized punishment contingent on the finding of a
fact, that fact—no matter how the State labels it—must be
found by a jury beyond a reasonable doubt.” Ring v. Ari
zona, 536 U. S. 584, 602 (2002). A bare three years ago, in
rejecting the contention that the facts determining applica
tion of the Federal Sentencing Guidelines did not have to be
found by the jury, we again set forth the pragmatic, practi
cal, nonformalistic rule in terms that cannot be mistaken:
The jury must “find the existence of ‘ “any particular fact” ’
that the law makes essential to [a defendant’s] punishment.”
Booker, supra, at 232 (quoting Blakely, supra, at 301).
This rule leaves no room for a formalistic distinction be
tween facts bearing on the number of years of imprisonment
that a defendant will serve for one count (subject to the rule
of Apprendi) and facts bearing on how many years will be
served in total (now not subject to Apprendi). There is no
doubt that consecutive sentences are a “greater punishment”
than concurrent sentences, Apprendi, supra, at 494. We
have hitherto taken note of the reality that “a concurrent
sentence is traditionally imposed as a less severe sanction
than a consecutive sentence.” Ralston v. Robinson, 454
U. S. 201, 216, n. 9 (1981) (emphasis deleted). The decision
to impose consecutive sentences alters the single conse
quence most important to convicted noncapital defendants:
their date of release from prison. For many defendants, the
difference between consecutive and concurrent sentences is
more important than a jury verdict of innocence on any sin
gle count: Two consecutive 10-year sentences are in most
circumstances a more severe punishment than any number
of concurrent 10-year sentences.
To support its distinction-without-a-difference, the Court
puts forward the same (the very same) arguments regarding

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175 Cite as: 555 U. S. 160 (2009)
Scalia, J., dissenting
the history of sentencing that were rejected by Apprendi.
Here, it is entirely irrelevant that common-law judges had
discretion to impose either consecutive or concurrent sen
tences, ante, at 168–169; just as there it was entirely irrele
vant that common-law judges had discretion to impose
greater or lesser sentences (within the prescribed statutory
maximum) for individual convictions. There is no Sixth
Amendment problem with a system that exposes defendants
to a known range of sentences after a guilty verdict: “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.”
Blakely, supra, at 309. The same analysis applies to a sys
tem where both consecutive and concurrent sentences are
authorized after only a jury verdict of guilt; the burglar
rapist knows he is risking consecutive sentences. Our con
cern here is precisely the same as our concern in Apprendi:
What happens when a State breaks from the common-law
practice of discretionary sentences and permits the imposi
tion of an elevated sentence only upon the showing of ex
traordinary facts? In such a system, the defendant “is enti
tled to” the lighter sentence “and by reason of the Sixth
Amendment[,] the facts bearing upon that entitlement must
be found by a jury.” Blakely, supra, at 309.
The Court protests that in this case there is no “encroach
ment” on or “erosion” of the jury’s role because traditionally
it was for the judge to determine whether there would be
concurrent terms. Ante, at 169–170. Alas, this argument
too was made and rejected in Apprendi. The jury’s role was
not diminished, the Apprendi dissent contended, because it
was traditionally up to judges, not juries, to determine what
the sentence would be. 530 U. S., at 556, 559 (opinion of
Breyer, J.). The Court’s opinion acknowledged that in the
19th century it was the practice to leave sentencing up to
the judges, within limits fixed by law. But, it said, that
practice had no bearing upon whether the jury must find the
fact where a law conditions the higher sentence upon the

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176 OREGON v. ICE
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fact. The jury’s role is diminished when the length of a sen
tence is made to depend upon a fact removed from its deter
mination. Id., at 482–483. The same is true here.
The Court then observes that the results of the Oregon
system could readily be achieved, instead, by a system in
which consecutive sentences are the default rule but judges
are permitted to impose concurrent sentences when they
find certain facts. Ante, at 171. Undoubtedly the Sixth
Amendment permits a system in which judges are au
thorized (or even required) to impose consecutive sentences
unless the defendant proves additional facts to the Court’s
satisfaction. See ibid. But the permissibility of that al
ternative means of achieving the same end obviously does
not distinguish Apprendi, because the same argument (the
very same argument) was raised and squarely rejected in
that case:
“If the defendant can escape the statutory maximum by
showing, for example, that he is a war veteran, then a
judge that finds the fact of veteran status is neither
exposing the defendant to a deprivation of liberty
greater than that authorized by the verdict according to
statute, nor is the judge imposing upon the defendant a
greater stigma than that accompanying the jury verdict
alone. Core concerns animating the jury and burden
of-proof requirements are thus absent from such a
scheme.” 530 U. S., at 491, n. 16.
Ultimately, the Court abandons its effort to provide ana
lytic support for its decision, and turns to what it thinks to
be the “ ‘salutary objectives’ ” of Oregon’s scheme. Ante,
at 171. “Limiting judicial discretion,” we are told, promotes
sentences proportionate to the gravity of the offense, and
reduces disparities in sentence length. Ibid. The same ar
gument (the very same argument) was made and rejected in
Booker, see 543 U. S., at 244, and Blakely, see 542 U. S., at
313. The protection of the Sixth Amendment does not turn
on this Court’s opinion of whether an alternative scheme is

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good policy, or whether the legislature had a compassionate
heart in adopting it. The right to trial by jury and proof
beyond a reasonable doubt is a given, and all legislative poli
cymaking—good and bad, heartless and compassionate—
must work within the confines of that reality. Of course the
Court probably exaggerates the benign effect of Oregon’s
scheme, as is suggested by the defense bar’s vigorous ob
jection, evidenced by the participation of the National As
sociation of Criminal Defense Lawyers as amicus in favor
of respondent. Even that exaggeration is a replay of the
rejected dissent in one of our prior cases. There the Court
responded: “It is hard to believe that the National Associa
tion of Criminal Defense Lawyers was somehow duped into
arguing for the wrong side.” Id., at 312.
Finally, the Court summons up the parade of horribles as
sembled by the amici brief of 17 States supporting Oregon.
It notes that “[t]rial judges often find facts” in connection
with “a variety of sentencing determinations other than the
length of incarceration,” and worries that even their ability
to set the length of supervised release, impose community
service, or order entry into a drug rehabilitation program
may be called into question. Ante, at 171. But if these
courses reduce rather than augment the punishment that the
jury verdict imposes, there is no problem. The last horrible
the Court invokes is the prospect of bifurcated or even tri
furcated trials in order to have the jury find the facts essen
tial to consecutive sentencing without prejudicing the de
fendant’s merits case. Ante, at 172. That is another de´ja`
vu and de´ja` rejete´; we have watched it parade past before, in
several of our Apprendi-related opinions, and have not sa
luted. See Blakely, supra, at 336–337 (Breyer, J., dissent
ing); Apprendi, supra, at 557 (same).
* * *
The Court’s peroration says that “[t]he jury-trial right is
best honored through a ‘principled rationale’ that applies the
rule of the Apprendi cases ‘within the central sphere of their

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178 OREGON v. ICE
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concern.’ ” Ante, at 172 (quoting Cunningham v. Califor
nia, 549 U. S. 270, 295 (2007) (Kennedy, J., dissenting)).
Undoubtedly so. But we have hitherto considered “the cen
tral sphere of their concern” to be facts necessary to the
increase of the defendant’s sentence beyond what the jury
verdict alone justifies. “If the jury’s verdict alone does not
authorize the sentence, if, instead, the judge must find an
additional fact to impose the longer term, the Sixth Amend
ment requirement is not satisfied.” Id., at 290 (opinion of
the Court). If the doubling or tripling of a defendant’s jail
time through fact-dependent consecutive sentencing does not
meet this description, nothing does. And as for a “princi
pled rationale”: The Court’s reliance upon a distinction with
out a difference, and its repeated exhumation of arguments
dead and buried by prior cases, seems to me the epitome of
the opposite. Today’s opinion muddies the waters, and gives
cause to doubt whether the Court is willing to stand by Ap
prendi’s interpretation of the Sixth Amendment’s jury-trial
guarantee.