BLAKELY v. WASHINGTON

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
296 OCTOBER TERM, 2003
Syllabus
BLAKELY v. WASHINGTON
certiorari to the court of appeals of washington
No. 02–1632. Argued March 23, 2004—Decided June 24, 2004
Petitioner pleaded guilty to kidnaping his estranged wife. The facts ad-
mitted in his plea, standing alone, supported a maximum sentence of 53
months, but the judge imposed a 90-month sentence after finding that
petitioner had acted with deliberate cruelty, a statutorily enumerated
ground for departing from the standard range. The Washington Court
of Appeals affirmed, rejecting petitioner’s argument that the sentencing
procedure deprived him of his federal constitutional right to have a jury
determine beyond a reasonable doubt all facts legally essential to his
sentence.
Held: Because the facts supporting petitioner’s exceptional sentence were
neither admitted by petitioner nor found by a jury, the sentence violated
his Sixth Amendment right to trial by jury. Pp. 301–314.
(a) This case requires the Court to apply the rule of Apprendi v. New
Jersey, 530 U. S. 466, 490, that, “[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” The relevant statutory maximum for Ap-
prendi purposes is the maximum a judge may impose based solely on
the facts reflected in the jury verdict or admitted by the defendant.
Here, the judge could not have imposed the 90-month sentence based
solely on the facts admitted in the guilty plea, because Washington law
requires an exceptional sentence to be based on factors other than those
used in computing the standard-range sentence. Petitioner’s sentence
is not analogous to those upheld in McMillan v. Pennsylvania, 477 U. S.
79, and Williams v. New York, 337 U. S. 241, which were not greater
than what state law authorized based on the verdict alone. Regardless
of whether the judge’s authority to impose the enhanced sentence de-
pends on a judge’s finding a specified fact, one of several specified facts,
or any aggravating fact, it remains the case that the jury’s verdict alone
does not authorize the sentence. Pp. 301–305.
(b) This Court’s commitment to Apprendi in this context reflects not
just respect for longstanding precedent, but the need to give intelli-
gible content to the fundamental constitutional right of jury trial.
Pp. 305–308.
(c) This case is not about the constitutionality of determinate sentenc-
ing, but only about how it can be implemented in a way that respects

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
297 Cite as: 542 U. S. 296 (2004)
Syllabus
the Sixth Amendment. The Framers’ paradigm for criminal justice is
the common-law ideal of limited state power accomplished by strict divi-
sion of authority between judge and jury. That can be preserved with-
out abandoning determinate sentencing and at no sacrifice of fairness to
the defendant. Pp. 308–313.
111 Wash. App. 851, 47 P. 3d 149, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Stevens, Sou-
ter, Thomas, and Ginsburg, JJ., joined. O’Connor, J., filed a dissenting
opinion, in which Breyer, J., joined, and in which Rehnquist, C. J., and
Kennedy, J., joined except as to Part IV–B, post, p. 314. Kennedy, J.,
filed a dissenting opinion, in which Breyer, J., joined, post, p. 326.
Breyer, J., filed a dissenting opinion, in which O’Connor, J., joined,
post, p. 328.
Jeffrey L. Fisher argued the cause and filed briefs for
petitioner.
John D. Knodell III argued the cause and filed a brief for
respondent.
Deputy Solicitor General Dreeben argued the cause for
the United States as amicus curiae urging affirmance.
With him on the brief were Solicitor General Olson, As-
sistant Attorney General Wray, Matthew D. Roberts, and
Nina Goodman.*
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by James E. Lobsenz, Aaron H. Caplan, and
Steven R. Shapiro; for the Kansas Appellate Defender Office by Randall
L. Hodgkinson; and for the National Association of Criminal Defense
Lawyers et al. by David M. Porter and Sheryl Gordon McCloud.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama,
Kevin C. Newsom, Solicitor General, Michael B. Billingsley, Deputy Solic-
itor General, and Nathan A. Forrester, and by the Attorneys General for
their respective States as follows: M. Jane Brady of Delaware, Charles J.
Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois,
Jon Bruning of Nebraska, Hardy Myers of Oregon, Greg Abbott of Texas,
Mark L. Shurtleff of Utah, and Jerry W. Kilgore of Virginia; and for the
Criminal Justice Legal Foundation by Kent S. Scheidegger.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
298 BLAKELY v. WASHINGTON
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
Petitioner Ralph Howard Blakely, Jr., pleaded guilty to the
kidnaping of his estranged wife. The facts admitted in his
plea, standing alone, supported a maximum sentence of 53
months. Pursuant to state law, the court imposed an “ex-
ceptional” sentence of 90 months after making a judicial de-
termination that he had acted with “deliberate cruelty.”
App. 40, 49. We consider whether this violated petitioner’s
Sixth Amendment right to trial by jury.
I
Petitioner married his wife Yolanda in 1973. He was evi-
dently a difficult man to live with, having been diagnosed at
various times with psychological and personality disorders
including paranoid schizophrenia. His wife ultimately filed
for divorce. In 1998, he abducted her from their orchard
home in Grant County, Washington, binding her with duct
tape and forcing her at knifepoint into a wooden box in the
bed of his pickup truck. In the process, he implored her to
dismiss the divorce suit and related trust proceedings.
When the couple’s 13-year-old son Ralphy returned home
from school, petitioner ordered him to follow in another car,
threatening to harm Yolanda with a shotgun if he did not do
so. Ralphy escaped and sought help when they stopped at
a gas station, but petitioner continued on with Yolanda to a
friend’s house in Montana. He was finally arrested after the
friend called the police.
The State charged petitioner with first-degree kidnaping,
Wash. Rev. Code Ann. § 9A.40.020(1) (2000).1 Upon reach-
ing a plea agreement, however, it reduced the charge to
second-degree kidnaping involving domestic violence and use
1 Parts of Washington’s criminal code have been recodified and amended.
We cite throughout the provisions in effect at the time of sentencing.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
299 Cite as: 542 U. S. 296 (2004)
Opinion of the Court
of a firearm, see §§ 9A.40.030(1), 10.99.020(3)(p), 9.94A.125.2
Petitioner entered a guilty plea admitting the elements of
second-degree kidnaping and the domestic-violence and
firearm allegations, but no other relevant facts.
The case then proceeded to sentencing. In Washington,
second-degree kidnaping is a class B felony. § 9A.40.030(3).
State law provides that “[n]o person convicted of a [class B]
felony shall be punished by confinement . . . exceeding . . . a
term of ten years.” § 9A.20.021(1)(b). Other provisions of
state law, however, further limit the range of sentences a
judge may impose. Washington’s Sentencing Reform Act
specifies, for petitioner’s offense of second-degree kidnap-
ing with a firearm, a “standard range” of 49 to 53 months.
See § 9.94A.320 (seriousness level V for second-degree kid-
naping); App. 27 (offender score 2 based on § 9.94A.360);
§ 9.94A.310(1), box 2–V (standard range of 13–17 months);
§ 9.94A.310(3)(b) (36-month firearm enhancement).3 A judge
may impose a sentence above the standard range if he finds
“substantial and compelling reasons justifying an exceptional
sentence.” § 9.94A.120(2). The Act lists aggravating fac-
tors that justify such a departure, which it recites to be illus-
trative rather than exhaustive. § 9.94A.390. Nevertheless,
“[a] reason offered to justify an exceptional sentence can be
considered only if it takes into account factors other than
those which are used in computing the standard range sen-
tence for the offense.” State v. Gore, 143 Wash. 2d 288, 315–
316, 21 P. 3d 262, 277 (2001). When a judge imposes an ex-
ceptional sentence, he must set forth findings of fact and
conclusions of law supporting it. § 9.94A.120(3). A review-
2 Petitioner further agreed to an additional charge of second-degree as-
sault involving domestic violence, Wash. Rev. Code Ann. §§ 9A.36.021(1)(c),
10.99.020(3)(b) (2000). The 14-month sentence on that count ran concur-
rently and is not relevant here.
3 The domestic-violence stipulation subjected petitioner to such meas-
ures as a “no-contact” order, see § 10.99.040, but did not increase the stand-
ard range of his sentence.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
300 BLAKELY v. WASHINGTON
Opinion of the Court
ing court will reverse the sentence if it finds that “under
a clearly erroneous standard there is insufficient evidence
in the record to support the reasons for imposing an ex-
ceptional sentence.” Id., at 315, 21 P. 3d, at 277 (citing
§ 9.94A.210(4)).
Pursuant to the plea agreement, the State recommended
a sentence within the standard range of 49 to 53 months.
After hearing Yolanda’s description of the kidnaping, how-
ever, the judge rejected the State’s recommendation and
imposed an exceptional sentence of 90 months—37 months
beyond the standard maximum. He justified the sentence
on the ground that petitioner had acted with “deliberate
cruelty,” a statutorily enumerated ground for departure in
domestic-violence cases. § 9.94A.390(2)(h)(iii).4
Faced with an unexpected increase of more than three
years in his sentence, petitioner objected. The judge ac-
cordingly conducted a 3-day bench hearing featuring testi-
mony from petitioner, Yolanda, Ralphy, a police officer, and
medical experts. After the hearing, he issued 32 findings of
fact, concluding:
“The defendant’s motivation to commit kidnapping
was complex, contributed to by his mental condition and
personality disorders, the pressures of the divorce litiga-
tion, the impending trust litigation trial and anger over
his troubled interpersonal relationships with his spouse
and children. While he misguidedly intended to force-
fully reunite his family, his attempt to do so was subser-
vient to his desire to terminate lawsuits and modify title
ownerships to his benefit.
4 The judge found other aggravating factors, but the Court of Appeals
questioned their validity under state law and their independent sufficiency
to support the extent of the departure. See 111 Wash. App. 851, 868–870,
and n. 3, 47 P. 3d 149, 158–159, and n. 3 (2002). It affirmed the sentence
solely on the finding of domestic violence with deliberate cruelty. Ibid.
We therefore focus only on that factor.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
301 Cite as: 542 U. S. 296 (2004)
Opinion of the Court
“The defendant’s methods were more homogeneous
than his motive. He used stealth and surprise, and took
advantage of the victim’s isolation. He immediately
employed physical violence, restrained the victim with
tape, and threatened her with injury and death to her-
self and others. He immediately coerced the victim into
providing information by the threatening application of
a knife. He violated a subsisting restraining order.”
App. 48–49.
The judge adhered to his initial determination of deliberate
cruelty.
Petitioner appealed, arguing that this sentencing proce-
dure deprived him of his federal constitutional right to have
a jury determine beyond a reasonable doubt all facts legally
essential to his sentence. The State Court of Appeals af-
firmed, 111 Wash. App. 851, 870–871, 47 P. 3d 149, 159 (2002),
relying on the Washington Supreme Court’s rejection of a
similar challenge in Gore, supra, at 311–315, 21 P. 3d, at 275–
277. The Washington Supreme Court denied discretionary
review. 148 Wash. 2d 1010, 62 P. 3d 889 (2003). We granted
certiorari. 540 U. S. 965 (2003).
II
This case requires us to apply the rule we expressed in
Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): “Other
than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a rea-
sonable doubt.” This rule reflects two longstanding tenets
of common-law criminal jurisprudence: that the “truth of
every accusation” against a defendant “should afterwards be
confirmed by the unanimous suffrage of twelve of his equals
and neighbours,” 4 W. Blackstone, Commentaries on the
Laws of England 343 (1769), and that “an accusation which
lacks any particular fact which the law makes essential to
the punishment is . . . no accusation within the requirements

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
302 BLAKELY v. WASHINGTON
Opinion of the Court
of the common law, and it is no accusation in reason,” 1 J.
Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872).5 These
principles have been acknowledged by courts and treatises
since the earliest days of graduated sentencing; we compiled
the relevant authorities in Apprendi, see 530 U. S., at 476–
483, 489–490, n. 15; id., at 501–518 (Thomas, J., concurring),
and need not repeat them here.6
5 Justice Breyer cites Justice O’Connor’s Apprendi dissent for the
point that this Bishop quotation means only that indictments must charge
facts that trigger statutory aggravation of a common-law offense. Post,
at 340–341 (dissenting opinion). Of course, as he notes, Justice O’Con-
nor was referring to an entirely different quotation, from Archbold’s trea-
tise. See 530 U. S., at 526 (citing J. Archbold, Pleading and Evidence in
Criminal Cases 51, 188 (15th ed. 1862)). Justice Breyer claims the two
are “similar,” post, at 341, but they are as similar as chalk and cheese.
Bishop was not “addressing” the “problem” of statutes that aggravate
common-law offenses. Ibid. Rather, the entire chapter of his treatise
is devoted to the point that “every fact which is legally essential to the
punishment,” 1 Criminal Procedure § 81, at 51, must be charged in the
indictment and proved to a jury, id., ch. 6, at 50–56. As one “example” of
this principle (appearing several pages before the language we quote in
text above), he notes a statute aggravating common-law assault. Id., § 82,
at 51–52. But nowhere is there the slightest indication that his general
principle was limited to that example. Even Justice Breyer’s academic
supporters do not make that claim. See Bibas, Judicial Fact-Finding and
Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097,
1131–1132 (2001) (conceding that Bishop’s treatise supports Apprendi,
while criticizing its “natural-law theorizing”).
6 As to Justice O’Connor’s criticism of the quantity of historical sup-
port for the Apprendi rule, post, at 323 (dissenting opinion): It bears re-
peating that the issue between us is not whether the Constitution limits
States’ authority to reclassify elements as sentencing factors (we all agree
that it does); it is only which line, ours or hers, the Constitution draws.
Criticism of the quantity of evidence favoring our alternative would have
some force if it were accompanied by any evidence favoring hers. Jus-
tice O’Connor does not even provide a coherent alternative meaning for
the jury-trial guarantee, unless one considers “whatever the legislature
chooses to leave to the jury, so long as it does not go too far” coherent.
See infra, at 305–308.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
303 Cite as: 542 U. S. 296 (2004)
Opinion of the Court
Apprendi involved a New Jersey hate-crime statute that
authorized a 20-year sentence, despite the usual 10-year
maximum, if the judge found the crime to have been com-
mitted “ ‘with a purpose to intimidate . . . because of race,
color, gender, handicap, religion, sexual orientation or ethnic-
ity.’ ” Id., at 468–469 (quoting N. J. Stat. Ann. § 2C:44–3(e)
(West Supp. 1999–2000)). In Ring v. Arizona, 536 U. S. 584,
592–593, and n. 1 (2002), we applied Apprendi to an Arizona
law that authorized the death penalty if the judge found 1 of
10 aggravating factors. In each case, we concluded that the
defendant’s constitutional rights had been violated because
the judge had imposed a sentence greater than the maximum
he could have imposed under state law without the chal-
lenged factual finding. Apprendi, supra, at 491–497; Ring,
supra, at 603–609.
In this case, petitioner was sentenced to more than three
years above the 53-month statutory maximum of the stand-
ard range because he had acted with “deliberate cruelty.”
The facts supporting that finding were neither admitted by
petitioner nor found by a jury. The State nevertheless con-
tends that there was no Apprendi violation because the rele-
vant “statutory maximum” is not 53 months, but the 10-year
maximum for class B felonies in § 9A.20.021(1)(b). It ob-
serves that no exceptional sentence may exceed that limit.
See § 9.94A.420. Our precedents make clear, however, that
the “statutory maximum” for Apprendi purposes is the maxi-
mum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defend-
ant. See Ring, supra, at 602 (“ ‘the maximum he would re-
ceive if punished according to the facts reflected in the jury
verdict alone’ ” (quoting Apprendi, supra, at 483)); Harris v.
United States, 536 U. S. 545, 563 (2002) (plurality opinion)
(same); cf. Apprendi, supra, at 488 (facts admitted by the
defendant). In other words, the relevant “statutory maxi-
mum” is not the maximum sentence a judge may impose

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
304 BLAKELY v. WASHINGTON
Opinion of the Court
after finding additional facts, but the maximum he may im-
pose without any additional findings. When a judge inflicts
punishment that the jury’s verdict alone does not allow, the
jury has not found all the facts “which the law makes essen-
tial to the punishment,” Bishop, supra, § 87, at 55, and the
judge exceeds his proper authority.
The judge in this case could not have imposed the excep-
tional 90-month sentence solely on the basis of the facts
admitted in the guilty plea. Those facts alone were in-
sufficient because, as the Washington Supreme Court has
explained, “[a] reason offered to justify an exceptional sen-
tence can be considered only if it takes into account factors
other than those which are used in computing the standard
range sentence for the offense,” Gore, 143 Wash. 2d, at 315–
316, 21 P. 3d, at 277, which in this case included the elements
of second-degree kidnaping and the use of a firearm, see
§§ 9.94A.320, 9.94A.310(3)(b).7 Had the judge imposed the
90-month sentence solely on the basis of the plea, he would
have been reversed. See § 9.94A.210(4). The “maximum
sentence” is no more 10 years here than it was 20 years in
Apprendi (because that is what the judge could have im-
posed upon finding a hate crime) or death in Ring (because
that is what the judge could have imposed upon finding an
aggravator).
The State defends the sentence by drawing an analogy
to those we upheld in McMillan v. Pennsylvania, 477 U. S.
79 (1986), and Williams v. New York, 337 U. S. 241 (1949).
Neither case is on point. McMillan involved a sentencing
scheme that imposed a statutory minimum if a judge found
a particular fact. 477 U. S., at 81. We specifically noted
that the statute “does not authorize a sentence in excess
of that otherwise allowed for [the underlying] offense.” Id.,
7 The State does not contend that the domestic-violence stipulation alone
supports the departure. That the statute lists domestic violence as
grounds for departure only when combined with some other aggravating
factor suggests it could not. See §§ 9.94A.390(2)(h)(i)–(iii).

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
305 Cite as: 542 U. S. 296 (2004)
Opinion of the Court
at 82; cf. Harris, supra, at 567. Williams involved an
indeterminate-sentencing regime that allowed a judge (but
did not compel him) to rely on facts outside the trial record
in determining whether to sentence a defendant to death.
337 U. S., at 242–243, and n. 2. The judge could have “sen-
tenced [the defendant] to death giving no reason at all.” Id.,
at 252. Thus, neither case involved a sentence greater than
what state law authorized on the basis of the verdict alone.
Finally, the State tries to distinguish Apprendi and Ring
by pointing out that the enumerated grounds for departure
in its regime are illustrative rather than exhaustive. This
distinction is immaterial. Whether the judge’s authority to
impose an enhanced sentence depends on finding a specified
fact (as in Apprendi), one of several specified facts (as in
Ring), or any aggravating fact (as here), it remains the case
that the jury’s verdict alone does not authorize the sentence.
The judge acquires that authority only upon finding some
additional fact.8
Because the State’s sentencing procedure did not comply
with the Sixth Amendment, petitioner’s sentence is invalid.9
III
Our commitment to Apprendi in this context reflects not
just respect for longstanding precedent, but the need to give
intelligible content to the right of jury trial. That right is
8 Nor does it matter that the judge must, after finding aggravating facts,
make a judgment that they present a compelling ground for departure.
He cannot make that judgment without finding some facts to support it
beyond the bare elements of the offense. Whether the judicially deter-
mined facts require a sentence enhancement or merely allow it, the ver-
dict alone does not authorize the sentence.
9 The United States, as amicus curiae, urges us to affirm. It notes
differences between Washington’s sentencing regime and the Federal Sen-
tencing Guidelines but questions whether those differences are constitu-
tionally significant. See Brief for United States as Amicus Curiae 25–30.
The Federal Guidelines are not before us, and we express no opinion on
them.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
306 BLAKELY v. WASHINGTON
Opinion of the Court
no mere procedural formality, but a fundamental reservation
of power in our constitutional structure. Just as suffrage
ensures the people’s ultimate control in the legislative and
executive branches, jury trial is meant to ensure their con-
trol in the judiciary. See Letter XV by the Federal Farmer
(Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist
315, 320 (H. Storing ed. 1981) (describing the jury as “secur-
[ing] to the people at large, their just and rightful controul
in the judicial department”); John Adams, Diary Entry (Feb.
12, 1771), reprinted in 2 Works of John Adams 252, 253 (C.
Adams ed. 1850) (“[T]he common people, should have as com-
plete a control . . . in every judgment of a court of judicature”
as in the legislature); Letter from Thomas Jefferson to the
Abbe´ Arnoux (July 19, 1789), reprinted in 15 Papers of
Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I called
upon to decide whether the people had best be omitted in
the Legislative or Judiciary department, I would say it is
better to leave them out of the Legislative”); Jones v. United
States, 526 U. S. 227, 244–248 (1999). Apprendi carries out
this design by ensuring that the judge’s authority to sen-
tence derives wholly from the jury’s verdict. Without that
restriction, the jury would not exercise the control that the
Framers intended.
Those who would reject Apprendi are resigned to one of
two alternatives. The first is that the jury need only find
whatever facts the legislature chooses to label elements of
the crime, and that those it labels sentencing factors—no
matter how much they may increase the punishment—may
be found by the judge. This would mean, for example, that
a judge could sentence a man for committing murder even if
the jury convicted him only of illegally possessing the fire-
arm used to commit it—or of making an illegal lane change
while fleeing the death scene. Not even Apprendi’s critics
would advocate this absurd result. Cf. 530 U. S., at 552–553
(O’Connor, J., dissenting). The jury could not function as
circuitbreaker in the State’s machinery of justice if it were

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
307 Cite as: 542 U. S. 296 (2004)
Opinion of the Court
relegated to making a determination that the defendant at
some point did something wrong, a mere preliminary to a
judicial inquisition into the facts of the crime the State actu-
ally seeks to punish.10
The second alternative is that legislatures may establish
legally essential sentencing factors within limits—limits
crossed when, perhaps, the sentencing factor is a “tail which
wags the dog of the substantive offense.” McMillan, 477
U. S., at 88. What this means in operation is that the law
must not go too far—it must not exceed the judicial estima-
tion of the proper role of the judge.
The subjectivity of this standard is obvious. Petitioner
argued below that second-degree kidnaping with deliberate
cruelty was essentially the same as first-degree kidnaping,
the very charge he had avoided by pleading to a lesser of-
fense. The court conceded this might be so but held it irrel-
evant. See 111 Wash. App., at 869, 47 P. 3d, at 158.11 Peti-
tioner’s 90-month sentence exceeded the 53-month standard
maximum by almost 70%; the Washington Supreme Court in
other cases has upheld exceptional sentences 15 times the
standard maximum. See State v. Oxborrow, 106 Wash. 2d
525, 528, 533, 723 P. 2d 1123, 1125, 1128 (1986) (en banc) (15-
year exceptional sentence; 1-year standard maximum sen-
10 Justice O’Connor believes that a “built-in political check” will pre-
vent lawmakers from manipulating offense elements in this fashion. Post,
at 322. But the many immediate practical advantages of judicial factfind-
ing, see post, at 318–320, suggest that political forces would, if anything,
pull in the opposite direction. In any case, the Framers’ decision to en-
trench the jury-trial right in the Constitution shows that they did not
trust government to make political decisions in this area.
11 Another example of conversion from separate crime to sentence en-
hancement that Justice O’Connor evidently does not consider going “too
far” is the obstruction-of-justice enhancement, see post, at 319. Why per-
jury during trial should be grounds for a judicial sentence enhancement
on the underlying offense, rather than an entirely separate offense to be
found by a jury beyond a reasonable doubt (as it has been for centuries, see
4 W. Blackstone, Commentaries on the Laws of England 136–138 (1769)), is
unclear.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
308 BLAKELY v. WASHINGTON
Opinion of the Court
tence); State v. Branch, 129 Wash. 2d 635, 650, 919 P. 2d 1228,
1235 (1996) (en banc) (4-year exceptional sentence; 3-month
standard maximum sentence). Did the court go too far in
any of these cases? There is no answer that legal analysis
can provide. With too far as the yardstick, it is always pos-
sible to disagree with such judgments and never to refute
them.
Whether the Sixth Amendment incorporates this manipu-
lable standard rather than Apprendi’s bright-line rule de-
pends on the plausibility of the claim that the Framers would
have left definition of the scope of jury power up to judges’
intuitive sense of how far is too far. We think that claim
not plausible at all, because the very reason the Framers put
a jury-trial guarantee in the Constitution is that they were
unwilling to trust government to mark out the role of the
jury.
IV
By reversing the judgment below, we are not, as the State
would have it, “find[ing] determinate sentencing schemes un-
constitutional.” Brief for Respondent 34. This case is not
about whether determinate sentencing is constitutional, only
about how it can be implemented in a way that respects
the Sixth Amendment. Several policies prompted Washing-
ton’s adoption of determinate sentencing, including propor-
tionality to the gravity of the offense and parity among
defendants. See Wash. Rev. Code Ann. § 9.94A.010 (2000).
Nothing we have said impugns those salutary objectives.
Justice O’Connor argues that, because determinate-
sentencing schemes involving judicial factfinding entail less
judicial discretion than indeterminate schemes, the constitu-
tionality of the latter implies the constitutionality of the
former. Post, at 314–323. This argument is flawed on a
number of levels. First, the Sixth Amendment by its terms
is not a limitation on judicial power, but a reservation of jury
power. It limits judicial power only to the extent that the
claimed judicial power infringes on the province of the jury.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
309 Cite as: 542 U. S. 296 (2004)
Opinion of the Court
Indeterminate sentencing does not do so. It increases judi-
cial discretion, to be sure, but not at the expense of the jury’s
traditional function of finding the facts essential to lawful
imposition of the penalty. Of course indeterminate schemes
involve judicial factfinding, in that a judge (like a parole
board) may implicitly rule on those facts he deems important
to the exercise of his sentencing discretion. But the facts
do not pertain to whether the defendant has a legal right to
a lesser sentence—and that makes all the difference insofar
as judicial impingement upon the traditional role of the jury
is concerned. In a system that says the judge may punish
burglary with 10 to 40 years, every burglar knows he is risk-
ing 40 years in jail. In a system that punishes burglary with
a 10-year sentence, with another 30 added for use of a gun,
the burglar who enters a home unarmed is entitled to no
more than a 10-year sentence—and by reason of the Sixth
Amendment the facts bearing upon that entitlement must be
found by a jury.
But even assuming that restraint of judicial power unre-
lated to the jury’s role is a Sixth Amendment objective, it is
far from clear that Apprendi disserves that goal. Determi-
nate judicial-factfinding schemes entail less judicial power
than indeterminate schemes, but more judicial power than
determinate jury-factfinding schemes. Whether Apprendi
increases judicial power overall depends on what States with
determinate judicial-factfinding schemes would do, given the
choice between the two alternatives. Justice O’Connor
simply assumes that the net effect will favor judges, but she
has no empirical basis for that prediction. Indeed, what evi-
dence we have points exactly the other way: When the Kan-
sas Supreme Court found Apprendi infirmities in that State’s
determinate-sentencing regime in State v. Gould, 271 Kan.
394, 404–414, 23 P. 3d 801, 809–814 (2001), the legislature
responded not by reestablishing indeterminate sentencing
but by applying Apprendi’s requirements to its current re-
gime. See Act of May 29, 2002, ch. 170, 2002 Kan. Sess.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
310 BLAKELY v. WASHINGTON
Opinion of the Court
Laws pp. 1018–1023 (codified at Kan. Stat. Ann. § 21–4718
(2003 Cum. Supp.)); Brief for Kansas Appellate Defender Of-
fice as Amicus Curiae 3–7. The result was less, not more,
judicial power.
Justice Breyer argues that Apprendi works to the det-
riment of criminal defendants who plead guilty by depriving
them of the opportunity to argue sentencing factors to a
judge. Post, at 331. But nothing prevents a defendant
from waiving his Apprendi rights. When a defendant
pleads guilty, the State is free to seek judicial sentence en-
hancements so long as the defendant either stipulates to the
relevant facts or consents to judicial factfinding. See Ap-
prendi, 530 U. S., at 488; Duncan v. Louisiana, 391 U. S. 145,
158 (1968). If appropriate waivers are procured, States may
continue to offer judicial factfinding as a matter of course to
all defendants who plead guilty. Even a defendant who
stands trial may consent to judicial factfinding as to sentence
enhancements, which may well be in his interest if relevant
evidence would prejudice him at trial. We do not under-
stand how Apprendi can possibly work to the detriment of
those who are free, if they think its costs outweigh its bene-
fits, to render it inapplicable.12
12 Justice Breyer responds that States are not required to give de-
fendants the option of waiving jury trial on some elements but not others.
Post, at 335–336. True enough. But why would the States that he as-
serts we are coercing into hardheartedness—that is, States that want
judge-pronounced determinate sentencing to be the norm but we won’t let
them—want to prevent a defendant from choosing that regime? Justice
Breyer claims this alternative may prove “too expensive and unwieldy
for States to provide,” post, at 336, but there is no obvious reason why
forcing defendants to choose between contesting all elements of his hy-
pothetical 17-element robbery crime and contesting none of them is less
expensive than also giving them the third option of pleading guilty to
some elements and submitting the rest to judicial factfinding. Justice
Breyer’s argument rests entirely on a speculative prediction about the
number of defendants likely to choose the first (rather than the second)
option if denied the third.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
311 Cite as: 542 U. S. 296 (2004)
Opinion of the Court
Nor do we see any merit to Justice Breyer’s contention
that Apprendi is unfair to criminal defendants because, if
States respond by enacting “17-element robbery crime[s],”
prosecutors will have more elements with which to bargain.
Post, at 331, 335–336 (citing Bibas, Judicial Fact-Finding and
Sentence Enhancements in a World of Guilty Pleas, 110 Yale
L. J. 1097 (2001)). Bargaining already exists with regard to
sentencing factors because defendants can either stipulate or
contest the facts that make them applicable. If there is any
difference between bargaining over sentencing factors and
bargaining over elements, the latter probably favors the de-
fendant. Every new element that a prosecutor can threaten
to charge is also an element that a defendant can threaten
to contest at trial and make the prosecutor prove beyond
a reasonable doubt. Moreover, given the sprawling scope
of most criminal codes, and the power to affect sentences
by making (even nonbinding) sentencing recommendations,
there is already no shortage of in terrorem tools at prosecu-
tors’ disposal. See King & Klein, Apprendi and Plea Bar-
gaining, 54 Stan. L. Rev. 295, 296 (2001) (“Every prosecuto-
rial bargaining chip mentioned by Professor Bibas existed
pre-Apprendi exactly as it does post-Apprendi”).
Any evaluation of Apprendi’s “fairness” to criminal de-
fendants must compare it with the regime it replaced, in
which a defendant, with no warning in either his indictment
or plea, would routinely see his maximum potential sentence
balloon from as little as five years to as much as life impris-
onment, see 21 U. S. C. §§ 841(b)(1)(A), (D), 13 based not on
13 To be sure, Justice Breyer and the other dissenters would forbid
those increases of sentence that violate the constitutional principle that
tail shall not wag dog. The source of this principle is entirely unclear.
Its precise effect, if precise effect it has, is presumably to require that the
ratio of sentencing-factor add-on to basic criminal sentence be no greater
than the ratio of caudal vertebrae to body in the breed of canine with the
longest tail. Or perhaps no greater than the average such ratio for all
breeds. Or perhaps the median. Regrettably, Apprendi has prevented
full development of this line of jurisprudence.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
312 BLAKELY v. WASHINGTON
Opinion of the Court
facts proved to his peers beyond a reasonable doubt, but on
facts extracted after trial from a report compiled by a proba-
tion officer who the judge thinks more likely got it right than
got it wrong. We can conceive of no measure of fairness
that would find more fault in the utterly speculative bargain-
ing effects Justice Breyer identifies than in the regime he
champions. Suffice it to say that, if such a measure exists,
it is not the one the Framers left us with.
The implausibility of Justice Breyer’s contention that
Apprendi is unfair to criminal defendants is exposed by the
lineup of amici in this case. It is hard to believe that the
National Association of Criminal Defense Lawyers was
somehow duped into arguing for the wrong side. Justice
Breyer’s only authority asking that defendants be pro-
tected from Apprendi is an article written not by a criminal
defense lawyer but by a law professor and former prosecutor.
See post, at 331 (citing Bibas, supra); Association of Ameri-
can Law Schools Directory of Law Teachers 2003–2004,
p. 319.
Justice Breyer also claims that Apprendi will attenuate
the connection between “real criminal conduct and real pun-
ishment” by encouraging plea bargaining and by restricting
alternatives to adversarial factfinding. Post, at 334, 338–
339. The short answer to the former point (even assuming
the questionable premise that Apprendi does encourage plea
bargaining, but see supra, at 310, n. 12) is that the Sixth
Amendment was not written for the benefit of those who
choose to forgo its protection. It guarantees the right to
jury trial. It does not guarantee that a particular number
of jury trials will actually take place. That more defendants
elect to waive that right (because, for example, government
at the moment is not particularly oppressive) does not prove
that a constitutional provision guaranteeing availability of
that option is disserved.
Justice Breyer’s more general argument—that Ap-
prendi undermines alternatives to adversarial factfinding—

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
313 Cite as: 542 U. S. 296 (2004)
Opinion of the Court
is not so much a criticism of Apprendi as an assault on jury
trial generally. His esteem for “nonadversarial” truth-
seeking processes, post, at 339, supports just as well an argu-
ment against either. Our Constitution and the common-law
traditions it entrenches, however, do not admit the conten-
tion that facts are better discovered by judicial inquisition
than by adversarial testing before a jury. See 3 Blackstone,
Commentaries, at 373–374, 379–381. Justice Breyer may
be convinced of the equity of the regime he favors, but his
views are not the ones we are bound to uphold.
Ultimately, our decision cannot turn on whether or to what
degree trial by jury impairs the efficiency or fairness of crim-
inal justice. One can certainly argue that both these values
would be better served by leaving justice entirely in the
hands of professionals; many nations of the world, particu-
larly those following civil-law traditions, take just that
course. There is not one shred of doubt, however, about the
Framers’ paradigm for criminal justice: not the civil-law
ideal of administrative perfection, but the common-law ideal
of limited state power accomplished by strict division of au-
thority between judge and jury. As Apprendi held, every
defendant has the right to insist that the prosecutor prove
to a jury all facts legally essential to the punishment.
Under the dissenters’ alternative, he has no such right.
That should be the end of the matter.
* * *
Petitioner was sentenced to prison for more than three
years beyond what the law allowed for the crime to which
he confessed, on the basis of a disputed finding that he had
acted with “deliberate cruelty.” The Framers would not
have thought it too much to demand that, before depriving
a man of three more years of his liberty, the State should
suffer the modest inconvenience of submitting its accusation
to “the unanimous suffrage of twelve of his equals and neigh-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
314 BLAKELY v. WASHINGTON
O’Connor, J., dissenting
bours,” 4 Blackstone, supra, at 343, rather than a lone em-
ployee of the State.
The judgment of the Washington Court of Appeals is re-
versed, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
Justice O’Connor, with whom Justice Breyer joins,
and with whom The Chief Justice and Justice Kennedy
join as to all but Part IV–B, dissenting.
The legacy of today’s opinion, whether intended or not,
will be the consolidation of sentencing power in the State
and Federal Judiciaries. The Court says to Congress and
state legislatures: If you want to constrain the sentencing
discretion of judges and bring some uniformity to sentencing,
it will cost you—dearly. Congress and States, faced with
the burdens imposed by the extension of Apprendi v. New
Jersey, 530 U. S. 466 (2000), to the present context, will
either trim or eliminate altogether their sentencing guide-
lines schemes and, with them, 20 years of sentencing reform.
It is thus of little moment that the majority does not ex-
pressly declare guidelines schemes unconstitutional, ante, at
308; for, as residents of “Apprendi-land” are fond of saying,
“the relevant inquiry is one not of form, but of effect.” Ap-
prendi, supra, at 494; Ring v. Arizona, 536 U. S. 584, 613
(2002) (Scalia, J., concurring). The “effect” of today’s deci-
sion will be greater judicial discretion and less uniformity in
sentencing. Because I find it implausible that the Framers
would have considered such a result to be required by the
Due Process Clause or the Sixth Amendment, and because
the practical consequences of today’s decision may be disas-
trous, I respectfully dissent.
I
One need look no further than the history leading up to
and following the enactment of Washington’s guidelines

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
315 Cite as: 542 U. S. 296 (2004)
O’Connor, J., dissenting
scheme to appreciate the damage that today’s decision will
cause. Prior to 1981, Washington, like most other States
and the Federal Government, employed an indeterminate
sentencing scheme. Washington’s criminal code separated
all felonies into three broad categories: “class A,” carrying
a sentence of 20 years to life; “class B,” carrying a sentence
of 0 to 10 years; and “class C,” carrying a sentence of 0 to
5 years. Wash. Rev. Code Ann. § 9A.20.020 (2000); see
also Sentencing Reform Act of 1981, 1981 Wash. Laws
ch. 137, p. 534. Sentencing judges, in conjunction with pa-
role boards, had virtually unfettered discretion to sentence
defendants to prison terms falling anywhere within the stat-
utory range, including probation—i. e., no jail sentence at all.
Wash. Rev. Code Ann. §§ 9.95.010–9.95.011; Boerner & Lieb,
Sentencing Reform in the Other Washington, 28 Crime and
Justice 71, 73 (M. Tonry ed. 2001) (hereinafter Boerner &
Lieb) (“Judges were authorized to choose between prison and
probation with few exceptions, subject only to review for
abuse of discretion”). See also D. Boerner, Sentencing in
Washington § 2.4, pp. 2–27 to 2–28 (1985).
This system of unguided discretion inevitably resulted in
severe disparities in sentences received and served by de-
fendants committing the same offense and having similar
criminal histories. Boerner & Lieb 126–127; cf. S. Rep.
No. 98–225, p. 38 (1983) (Senate Report on precursor to fed-
eral Sentencing Reform Act of 1984) (“[E]very day Federal
judges mete out an unjustifiably wide range of sentences to
offenders with similar histories, convicted of similar crimes,
committed under similar circumstances. . . . These dispari-
ties, whether they occur at the time of the initial sentencing
or at the parole stage, can be traced directly to the unfet-
tered discretion the law confers on those judges and parole
authorities responsible for imposing and implementing the
sentence”). Indeed, rather than reflect legally relevant cri-
teria, these disparities too often were correlated with consti-
tutionally suspect variables such as race. Boerner & Lieb

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
316 BLAKELY v. WASHINGTON
O’Connor, J., dissenting
126–128. See also Breyer, The Federal Sentencing Guide-
lines and the Key Compromises Upon Which They Rest, 17
Hofstra L. Rev. 1, 5 (1988) (elimination of racial disparity one
reason behind Congress’ creation of the Federal Sentencing
Commission).
To counteract these trends, the state legislature passed
the Sentencing Reform Act of 1981. The Act had the
laudable purposes of “mak[ing] the criminal justice system
accountable to the public,” and “[e]nsur[ing] that the punish-
ment for a criminal offense is proportionate to the serious-
ness of the offense . . . [and] commensurate with the pun-
ishment imposed on others committing similar offenses.”
Wash. Rev. Code Ann. § 9.94A.010 (2000). The Act neither
increased any of the statutory sentencing ranges for the
three types of felonies (though it did eliminate the statutory
mandatory minimum for class A felonies), nor reclassified
any substantive offenses. 1981 Wash. Laws ch. 137, p. 534.
It merely placed meaningful constraints on discretion to sen-
tence offenders within the statutory ranges, and eliminated
parole. There is thus no evidence that the legislature was
attempting to manipulate the statutory elements of criminal
offenses or to circumvent the procedural protections of the
Bill of Rights. Rather, lawmakers were trying to bring
some much-needed uniformity, transparency, and account-
ability to an otherwise “ ‘labyrinthine’ sentencing and correc-
tions system that ‘lack[ed] any principle except unguided dis-
cretion.’ ” Boerner & Lieb 73 (quoting F. Zimring, Making
the Punishment Fit the Crime: A Consumers’ Guide to Sen-
tencing Reform, Occasional Paper No. 12, p. 6 (1977)).
II
Far from disregarding principles of due process and the
jury trial right, as the majority today suggests, Washington’s
reform has served them. Before passage of the Act, a de-
fendant charged with second degree kidnaping, like peti-
tioner, had no idea whether he would receive a 10-year sen-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
317 Cite as: 542 U. S. 296 (2004)
O’Connor, J., dissenting
tence or probation. The ultimate sentencing determination
could turn as much on the idiosyncracies of a particular judge
as on the specifics of the defendant’s crime or background.
A defendant did not know what facts, if any, about his offense
or his history would be considered relevant by the sentenc-
ing judge or by the parole board. After passage of the Act,
a defendant charged with second degree kidnaping knows
what his presumptive sentence will be; he has a good idea of
the types of factors that a sentencing judge can and will con-
sider when deciding whether to sentence him outside that
range; he is guaranteed meaningful appellate review to pro-
tect against an arbitrary sentence. Boerner & Lieb 93 (“By
consulting one sheet, practitioners could identify the applica-
ble scoring rules for criminal history, the sentencing range,
and the available sentencing options for each case”). Crimi-
nal defendants still face the same statutory maximum sen-
tences, but they now at least know, much more than before,
the real consequences of their actions.
Washington’s move to a system of guided discretion has
served equal protection principles as well. Over the past 20
years, there has been a substantial reduction in racial dispar-
ity in sentencing across the State. Id., at 126 (Racial dispar-
ities that do exist “are accounted for by differences in legally
relevant variables—the offense of conviction and prior
criminal record”); id., at 127 (“[J]udicial authority to impose
exceptional sentences under the court’s departure authority
shows little evidence of disparity correlated with race”).
The reduction is directly traceable to the constraining ef-
fects of the guidelines—namely, their “presumptive range[s]”
and limits on the imposition of “exceptional sentences” out-
side of those ranges. Id., at 128. For instance, sentencing
judges still retain unreviewable discretion in first-time
offender cases and in certain sex offender cases to impose
alternative sentences that are far more lenient than those
contemplated by the guidelines. To the extent that unjus-
tifiable racial disparities have persisted in Washington, it

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
318 BLAKELY v. WASHINGTON
O’Connor, J., dissenting
has been in the imposition of such alternative sentences:
“The lesson is powerful: racial disparity is correlated with
unstructured and unreviewed discretion.” Ibid.; see also
Washington State Minority and Justice Commission,
R. Crutchfield, J. Weis, R. Engen, & R. Gainey, Racial/Ethnic
Disparities and Exceptional Sentences in Washington State,
Final Report 51–53 (Sept. 1993) (“[E]xceptional sentences
are not a major source of racial disparities in sentencing”).
The majority does not, because it cannot, disagree that de-
terminate sentencing schemes, like Washington’s, serve im-
portant constitutional values. Ante, at 308. Thus, the ma-
jority says: “This case is not about whether determinate
sentencing is constitutional, only about how it can be imple-
mented in a way that respects the Sixth Amendment.”
Ibid. But extension of Apprendi to the present context will
impose significant costs on a legislature’s determination that
a particular fact, not historically an element, warrants a
higher sentence. While not a constitutional prohibition on
guidelines schemes, the majority’s decision today exacts a
substantial constitutional tax.
The costs are substantial and real. Under the majority’s
approach, any fact that increases the upper bound on a
judge’s sentencing discretion is an element of the offense.
Thus, facts that historically have been taken into account by
sentencing judges to assess a sentence within a broad
range—such as drug quantity, role in the offense, risk of
bodily harm—all must now be charged in an indictment and
submitted to a jury, In re Winship, 397 U. S. 358 (1970), sim-
ply because it is the legislature, rather than the judge, that
constrains the extent to which such facts may be used to
impose a sentence within a pre-existing statutory range.
While that alone is enough to threaten the continued use
of sentencing guidelines schemes, there are additional costs.
For example, a legislature might rightly think that some fac-
tors bearing on sentencing, such as prior bad acts or criminal
history, should not be considered in a jury’s determination of

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
319 Cite as: 542 U. S. 296 (2004)
O’Connor, J., dissenting
a defendant’s guilt—such “character evidence” has tradition-
ally been off limits during the guilt phase of criminal pro-
ceedings because of its tendency to inflame the passions of
the jury. See, e. g., Fed. Rule Evid. 404; 1 E. Imwinkelried,
P. Giannelli, F. Gilligan, & F. Lederer, Courtroom Criminal
Evidence 285 (3d ed. 1998). If a legislature desires uniform
consideration of such factors at sentencing, but does not want
them to impact a jury’s initial determination of guilt, the
State may have to bear the additional expense of a separate,
full-blown jury trial during the penalty phase proceeding.
Some facts that bear on sentencing either will not be dis-
covered, or are not discoverable, prior to trial. For in-
stance, a legislature might desire that defendants who act in
an obstructive manner during trial or post-trial proceedings
receive a greater sentence than defendants who do not.
See, e. g., United States Sentencing Commission, Guidelines
Manual § 3C1.1 (Nov. 2003) (hereinafter USSG) (2-point in-
crease in offense level for obstruction of justice). In such
cases, the violation arises too late for the State to provide
notice to the defendant or to argue the facts to the jury. A
State wanting to make such facts relevant at sentencing
must now either vest sufficient discretion in the judge to
account for them or bring a separate criminal prosecution
for obstruction of justice or perjury. And, the latter option
is available only to the extent that a defendant’s obstructive
behavior is so severe as to constitute an already-existing sep-
arate offense, unless the legislature is willing to undertake
the unlikely expense of criminalizing relatively minor ob-
structive behavior.
Likewise, not all facts that historically have been relevant
to sentencing always will be known prior to trial. For in-
stance, trial or sentencing proceedings of a drug distribution
defendant might reveal that he sold primarily to children.
Under the majority’s approach, a State wishing such a reve-
lation to result in a higher sentence within a pre-existing
statutory range either must vest judges with sufficient dis-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
320 BLAKELY v. WASHINGTON
O’Connor, J., dissenting
cretion to account for it (and trust that they exercise that
discretion) or bring a separate criminal prosecution. In-
deed, the latter choice might not be available—a separate
prosecution, if it is for an aggravated offense, likely would
be barred altogether by the Double Jeopardy Clause.
Blockburger v. United States, 284 U. S. 299 (1932) (govern-
ment cannot prosecute for separate offenses unless each of-
fense has at least one element that the other does not).
The majority may be correct that States and the Federal
Government will be willing to bear some of these costs.
Ante, at 309–310. But simple economics dictate that they
will not, and cannot, bear them all. To the extent that they
do not, there will be an inevitable increase in judicial discre-
tion with all of its attendant failings.1
III
Washington’s Sentencing Reform Act did not alter the
statutory maximum sentence to which petitioner was ex-
posed. See Wash. Rev. Code Ann. § 9A.40.030 (2003) (second
1 The paucity of empirical evidence regarding the impact of extending
Apprendi v. New Jersey, 530 U. S. 466 (2000), to guidelines schemes should
come as no surprise to the majority. Ante, at 309. Prior to today, only
one court had ever applied Apprendi to invalidate application of a guide-
lines scheme. Compare State v. Gould, 271 Kan. 394, 23 P. 3d 801 (2001),
with, e. g., United States v. Goodine, 326 F. 3d 26 (CA1 2003); United States
v. Luciano, 311 F. 3d 146 (CA2 2002); United States v. DeSumma, 272
F. 3d 176 (CA3 2001); United States v. Kinter, 235 F. 3d 192 (CA4 2000);
United States v. Randle, 304 F. 3d 373 (CA5 2002); United States v. Helton,
349 F. 3d 295 (CA6 2003); United States v. Johnson, 335 F. 3d 589 (CA7
2003) (per curiam); United States v. Piggie, 316 F. 3d 789 (CA8 2003);
United States v. Toliver, 351 F. 3d 423 (CA9 2003); United States v.
Mendez-Zamora, 296 F. 3d 1013 (CA10 2002); United States v. Sanchez,
269 F. 3d 1250 (CA11 2001); United States v. Fields, 251 F. 3d 1041 (CADC
2001); State v. Dilts, 336 Ore. 158, 82 P. 3d 593 (2003); State v. Gore, 143
Wash. 2d 288, 21 P. 3d 262 (2001); State v. Lucas, 353 N. C. 568, 548 S. E.
2d 712 (2001); State v. Dean, No. C4–02–1225, 2003 WL 21321425 (Ct. App.
Minn., June 10, 2003) (unpublished opinion). Thus, there is no map of the
uncharted territory blazed by today’s unprecedented holding.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
321 Cite as: 542 U. S. 296 (2004)
O’Connor, J., dissenting
degree kidnaping class B felony since 1975); see also State v.
Pawling, 23 Wash. App. 226, 228–229, 597 P. 2d 1367, 1369
(1979) (citing second degree kidnaping provision as existed
in 1977). Petitioner was informed in the charging docu-
ment, his plea agreement, and during his plea hearing that
he faced a potential statutory maximum of 10 years in prison.
App. 63, 66, 76. As discussed above, the guidelines served
due process by providing notice to petitioner of the conse-
quences of his acts; they vindicated his jury trial right by
informing him of the stakes of risking trial; they served
equal protection by ensuring petitioner that invidious char-
acteristics such as race would not impact his sentence.
Given these observations, it is difficult for me to discern
what principle besides doctrinaire formalism actually moti-
vates today’s decision. The majority chides the Apprendi
dissenters for preferring a nuanced interpretation of the Due
Process Clause and Sixth Amendment jury trial guarantee
that would generally defer to legislative labels while ac-
knowledging the existence of constitutional constraints—
what the majority calls “the law must not go too far” ap-
proach. Ante, at 307 (emphasis deleted). If indeed the
choice is between adopting a balanced case-by-case approach
that takes into consideration the values underlying the Bill
of Rights, as well as the history of a particular sentencing
reform law, and adopting a rigid rule that destroys every-
thing in its path, I will choose the former. See Apprendi,
530 U. S., at 552–554 (O’Connor, J., dissenting) (“Because I
do not believe that the Court’s ‘increase in the maximum
penalty’ rule is required by the Constitution, I would evalu-
ate New Jersey’s sentence-enhancement statute by analyz-
ing the factors we have examined in past cases” (citation
omitted)).
But even were one to accept formalism as a principle
worth vindicating for its own sake, it would not explain Ap-
prendi’s, or today’s, result. A rule of deferring to legisla-
tive labels has no less formal pedigree. It would be more

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
322 BLAKELY v. WASHINGTON
O’Connor, J., dissenting
consistent with our decisions leading up to Apprendi, see
Almendarez-Torres v. United States, 523 U. S. 224 (1998)
(fact of prior conviction not an element of aggravated recidi-
vist offense); United States v. Watts, 519 U. S. 148 (1997) (per
curiam) (acquittal of offense no bar to consideration of un-
derlying conduct for purposes of guidelines enhancement);
Witte v. United States, 515 U. S. 389 (1995) (no double jeop-
ardy bar against consideration of uncharged conduct in impo-
sition of guidelines enhancement); Walton v. Arizona, 497
U. S. 639 (1990) (aggravating factors need not be found by a
jury in capital case); Mistretta v. United States, 488 U. S. 361
(1989) (Federal Sentencing Guidelines do not violate separa-
tion of powers); McMillan v. Pennsylvania, 477 U. S. 79
(1986) (facts increasing mandatory minimum sentence are
not necessarily elements); and it would vest primary author-
ity for defining crimes in the political branches, where it
belongs. Apprendi, supra, at 523–554 (O’Connor, J., dis-
senting). It also would be easier to administer than the
majority’s rule, inasmuch as courts would not be forced to
look behind statutes and regulations to determine whether
a particular fact does or does not increase the penalty to
which a defendant was exposed.
The majority is correct that rigid adherence to such an
approach could conceivably produce absurd results, ante, at
306; but, as today’s decision demonstrates, rigid adherence
to the majority’s approach does and will continue to produce
results that disserve the very principles the majority pur-
ports to vindicate. The pre-Apprendi rule of deference to
the legislature retains a built-in political check to prevent
lawmakers from shifting the prosecution for crimes to the
penalty phase proceedings of lesser included and easier-to-
prove offenses—e. g., the majority’s hypothesized prosecu-
tion of murder in the guise of a traffic offense sentencing
proceeding. Ante, at 306. There is no similar check, how-
ever, on application of the majority’s “any fact that in-
creases the upper bound of judicial discretion” by courts.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
323 Cite as: 542 U. S. 296 (2004)
O’Connor, J., dissenting
The majority claims the mantle of history and original in-
tent. But as I have explained elsewhere, a handful of state
decisions in the mid-19th century and a criminal procedure
treatise have little if any persuasive value as evidence of
what the Framers of the Federal Constitution intended in
the late 18th century. See Apprendi, 530 U. S., at 525–528
(O’Connor, J., dissenting). Because broad judicial sentenc-
ing discretion was foreign to the Framers, id., at 478–479
(citing J. Archbold, Pleading and Evidence in Criminal Cases
44 (15th ed. 1862)), they were never faced with the constitu-
tional choice between submitting every fact that increases a
sentence to the jury or vesting the sentencing judge with
broad discretionary authority to account for differences in
offenses and offenders.
IV
A
The consequences of today’s decision will be as far reach-
ing as they are disturbing. Washington’s sentencing system
is by no means unique. Numerous other States have
enacted guidelines systems, as has the Federal Government.
See, e. g., Alaska Stat. § 12.55.155 (2002); Ark. Code Ann.
§ 16–90–804 (2003 Supp.); Fla. Stat. § 921.0016 (2003); Kan.
Stat. Ann. § 21–4701 et seq. (2003); Mich. Comp. Laws Ann.
§ 769.34 (West Supp. 2004); Minn. Stat. § 244.10 (2002); N. C.
Gen. Stat. § 15A–1340.16 (Lexis 2003); Ore. Admin. Rule
§ 213–008–0001 (2003); 204 Pa. Code § 303 et seq. (2004), re-
produced following 42 Pa. Cons. Stat. Ann. § 9721 (Purdon
Supp. 2004); 18 U. S. C. § 3553; 28 U. S. C. § 991 et seq. To-
day’s decision casts constitutional doubt over them all and, in
so doing, threatens an untold number of criminal judgments.
Every sentence imposed under such guidelines in cases cur-
rently pending on direct appeal is in jeopardy. And, despite
the fact that we hold in Schriro v. Summerlin, post, p. 348,
that Ring (and a fortiori Apprendi) does not apply retroac-
tively on habeas review, all criminal sentences imposed

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
324 BLAKELY v. WASHINGTON
O’Connor, J., dissenting
under the federal and state guidelines since Apprendi was
decided in 2000 arguably remain open to collateral attack.
See Teague v. Lane, 489 U. S. 288, 301 (1989) (plurality opin-
ion) (“[A] case announces a new rule if the result was not
dictated by precedent existing at the time the defendant’s
conviction became final”).2
The practical consequences for trial courts, starting today,
will be equally unsettling: How are courts to mete out guide-
lines sentences? Do courts apply the guidelines as to miti-
gating factors, but not as to aggravating factors? Do they
jettison the guidelines altogether? The Court ignores the
havoc it is about to wreak on trial courts across the country.
B
It is no answer to say that today’s opinion impacts only
Washington’s scheme and not others, such as, for example,
the Federal Sentencing Guidelines. See ante, at 305, n. 9
(“The Federal Guidelines are not before us, and we express
no opinion on them”); cf. Apprendi, supra, at 496–497 (claim-
ing not to overrule Walton, supra, soon thereafter overruled
in Ring); Apprendi, supra, at 497, n. 21 (reserving question
of Federal Sentencing Guidelines). The fact that the Fed-
eral Sentencing Guidelines are promulgated by an adminis-
trative agency nominally located in the Judicial Branch is
irrelevant to the majority’s reasoning. The Guidelines have
the force of law, see Stinson v. United States, 508 U. S.
36 (1993); and Congress has unfettered control to reject or
2 The numbers available from the federal system alone are staggering.
On March 31, 2004, there were 8,320 federal criminal appeals pending in
which the defendant’s sentence was at issue. Memorandum from Steven
Schlesinger, Administrative Office of the United States Courts, to Su-
preme Court Library (June 1, 2004) (available in Clerk of Court’s case file).
Between June 27, 2000, when Apprendi was decided, and March 31, 2004,
there have been 272,191 defendants sentenced in federal court. Memo-
randum, supra. Given that nearly all federal sentences are governed by
the Federal Sentencing Guidelines, the vast majority of these cases are
Guidelines cases.

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
325 Cite as: 542 U. S. 296 (2004)
O’Connor, J., dissenting
accept any particular guideline, Mistretta, 488 U. S., at
393–394.
The structure of the Federal Guidelines likewise does not,
as the Government halfheartedly suggests, provide any
grounds for distinction. Brief for United States as Amicus
Curiae 27–29. Washington’s scheme is almost identical to
the upward departure regime established by 18 U. S. C.
§ 3553(b) and implemented in USSG § 5K2.0. If anything,
the structural differences that do exist make the Federal
Guidelines more vulnerable to attack. The provision struck
down here provides for an increase in the upper bound of the
presumptive sentencing range if the sentencing court finds,
“considering the purpose of [the Act], that there are substan-
tial and compelling reasons justifying an exceptional sen-
tence.” Wash. Rev. Code Ann. § 9.94A.120 (2000). The Act
elsewhere provides a nonexhaustive list of aggravating fac-
tors that satisfy the definition. § 9.94A.390. The Court
flatly rejects respondent’s argument that such soft con-
straints, which still allow Washington judges to exercise a
substantial amount of discretion, survive Apprendi. Ante,
at 305. This suggests that the hard constraints found
throughout chapters 2 and 3 of the Federal Sentencing
Guidelines, which require an increase in the sentencing
range upon specified factual findings, will meet the same fate.
See, e. g., USSG § 2K2.1 (increases in offense level for fire-
arms offenses based on number of firearms involved,
whether possession was in connection with another offense,
whether the firearm was stolen); § 2B1.1 (increase in offense
level for financial crimes based on amount of money involved,
number of victims, possession of weapon); § 3C1.1 (general
increase in offense level for obstruction of justice).
Indeed, the “extraordinary sentence” provision struck
down today is as inoffensive to the holding of Apprendi as a
regime of guided discretion could possibly be. The list of
facts that justify an increase in the range is nonexhaustive.
The State’s “real facts” doctrine precludes reliance by sen-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
326 BLAKELY v. WASHINGTON
Kennedy, J., dissenting
tencing courts upon facts that would constitute the elements
of a different or aggravated offense. See Wash. Rev. Code
Ann. § 9.94A.370(2) (2000) (codifying “real facts” doctrine).
If the Washington scheme does not comport with the Consti-
tution, it is hard to imagine a guidelines scheme that would.
* * *
What I have feared most has now come to pass: Over
20 years of sentencing reform are all but lost, and tens of
thousands of criminal judgments are in jeopardy. Ap-
prendi, 530 U. S., at 549–559 (O’Connor, J., dissenting);
Ring, 536 U. S., at 619–621 (O’Connor, J., dissenting). I
respectfully dissent.
Justice Kennedy, with whom Justice Breyer joins,
dissenting.
The majority opinion does considerable damage to our
laws and to the administration of the criminal justice system
for all the reasons well stated in Justice O’Connor’s dis-
sent, plus one more: The Court, in my respectful submission,
disregards the fundamental principle under our constitu-
tional system that different branches of government “con-
verse with each other on matters of vital common interest.”
Mistretta v. United States, 488 U. S. 361, 408 (1989). As
the Court in Mistretta explained, the Constitution estab-
lishes a system of government that presupposes, not just
“ ‘autonomy’ ” and “ ‘separateness,’ ” but also “ ‘interdepend-
ence’ ” and “ ‘reciprocity.’ ” Id., at 381 (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jack-
son, J., concurring)). Constant, constructive discourse be-
tween our courts and our legislatures is an integral and
admirable part of the constitutional design. Case-by-case
judicial determinations often yield intelligible patterns that
can be refined by legislatures and codified into statutes or
rules as general standards. As these legislative enactments
are followed by incremental judicial interpretation, the legis-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
327 Cite as: 542 U. S. 296 (2004)
Kennedy, J., dissenting
latures may respond again, and the cycle repeats. This re-
curring dialogue, an essential source for the elaboration and
the evolution of the law, is basic constitutional theory in
action.
Sentencing guidelines are a prime example of this collabo-
rative process. Dissatisfied with the wide disparity in sen-
tencing, participants in the criminal justice system, including
judges, pressed for legislative reforms. In response, legisla-
tors drew from these participants’ shared experiences and
enacted measures to correct the problems, which, as Justice
O’Connor explains, could sometimes rise to the level of a
constitutional injury. As Mistretta recognized, this inter-
change among different actors in the constitutional scheme
is consistent with the Constitution’s structural protections.
To be sure, this case concerns the work of a state legis-
lature, and not of Congress. If anything, however, this
distinction counsels even greater judicial caution. Unlike
Mistretta, the case here implicates not just the collective
wisdom of legislators on the other side of the continuing dia-
logue over fair sentencing, but also the interest of the States
to serve as laboratories for innovation and experiment. See
New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932)
(Brandeis, J., dissenting). With no apparent sense of irony
that the effect of today’s decision is the destruction of a sen-
tencing scheme devised by democratically elected legislators,
the majority shuts down alternative, nonjudicial, sources of
ideas and experience. It does so under a faintly disguised
distrust of judges and their purported usurpation of the
jury’s function in criminal trials. It tells not only trial
judges who have spent years studying the problem but also
legislators who have devoted valuable time and resources
“calling upon the accumulated wisdom and experience of the
Judicial Branch . . . on a matter uniquely within the ken
of judges,” Mistretta, supra, at 412, that their efforts and
judgments were all for naught. Numerous States that have
enacted sentencing guidelines similar to the one in Washing-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
328 BLAKELY v. WASHINGTON
Breyer, J., dissenting
ton State are now commanded to scrap everything and
start over.
If the Constitution required this result, the majority’s de-
cision, while unfortunate, would at least be understandable
and defensible. As Justice O’Connor’s dissent demon-
strates, however, this is simply not the case. For that rea-
son, and because the Constitution does not prohibit the
dynamic and fruitful dialogue between the judicial and legis-
lative branches of government that has marked sentencing
reform on both the state and the federal levels for more than
20 years, I dissent.
Justice Breyer, with whom Justice O’Connor joins,
dissenting.
The Court makes clear that it means what it said in Ap-
prendi v. New Jersey, 530 U. S. 466 (2000). In its view, the
Sixth Amendment says that “ ‘any fact that increases the
penalty for a crime beyond the prescribed statutory maxi-
mum must be submitted to a jury.’ ” Ante, at 301 (quoting
Apprendi, supra, at 490). “ ‘[P]rescribed statutory maxi-
mum’ ” means the penalty that the relevant statute author-
izes “solely on the basis of the facts reflected in the jury
verdict.” Ante, at 301, 303 (emphasis deleted). Thus, a
jury must find, not only the facts that make up the crime of
which the offender is charged, but also all (punishment-
increasing) facts about the way in which the offender carried
out that crime.
It is not difficult to understand the impulse that produced
this holding. Imagine a classic example—a statute (or man-
datory sentencing guideline) that provides a 10-year sen-
tence for ordinary bank robbery, but a 15-year sentence for
bank robbery committed with a gun. One might ask why it
should matter for jury trial purposes whether the statute (or
guideline) labels the gun’s presence (a) a sentencing fact
about the way in which the offender carried out the lesser
crime of ordinary bank robbery, or (b) a factual element of

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
329 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
the greater crime of bank robbery with a gun? If the Sixth
Amendment requires a jury finding about the gun in the lat-
ter circumstance, why should it not also require a jury to
find the same fact in the former circumstance? The two sets
of circumstances are functionally identical. In both in-
stances, identical punishment follows from identical factual
findings (related to, e. g., a bank, a taking, a thing-of-value,
force or threat of force, and a gun). The only difference be-
tween the two circumstances concerns a legislative (or Sen-
tencing Commission) decision about which label (“sentencing
fact” or “element of a greater crime”) to affix to one of the
facts, namely, the presence of the gun, that will lead to the
greater sentence. Given the identity of circumstances apart
from the label, the jury’s traditional factfinding role, and the
law’s insistence upon treating like cases alike, why should
the legislature’s labeling choice make an important Sixth
Amendment difference?
The Court in Apprendi, and now here, concludes that it
should not make a difference. The Sixth Amendment’s jury
trial guarantee applies similarly to both. I agree with the
majority’s analysis, but not with its conclusion. That is to
say, I agree that, classically speaking, the difference between
a traditional sentencing factor and an element of a greater
offense often comes down to a legislative choice about which
label to affix. But I cannot jump from there to the conclu-
sion that the Sixth Amendment always requires identical
treatment of the two scenarios. That jump is fraught with
consequences that threaten the fairness of our traditional
criminal justice system; it distorts historical sentencing or
criminal trial practices; and it upsets settled law on which
legislatures have relied in designing punishment systems.
The Justices who have dissented from Apprendi have writ-
ten about many of these matters in other opinions. See 530
U. S., at 523–554 (O’Connor, J., dissenting); id., at 555–566
(Breyer, J., dissenting); Harris v. United States, 536 U. S.
545, 549–550, 556–569 (2002) (Kennedy, J.); id., at 569–572

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
330 BLAKELY v. WASHINGTON
Breyer, J., dissenting
(Breyer, J., concurring in part and concurring in judgment);
Jones v. United States, 526 U. S. 227, 254, 264–272 (1999)
(Kennedy, J., dissenting); Monge v. California, 524 U. S.
721, 728–729 (1998) (O’Connor, J.); McMillan v. Pennsylva-
nia, 477 U. S. 79, 86–91 (1986) (Rehnquist, C. J.). At the
risk of some repetition, I shall set forth several of the most
important considerations here. They lead me to conclude
that I must again dissent.
I
The majority ignores the adverse consequences inherent
in its conclusion. As a result of the majority’s rule, sentenc-
ing must now take one of three forms, each of which risks
either impracticality, unfairness, or harm to the jury trial
right the majority purports to strengthen. This circum-
stance shows that the majority’s Sixth Amendment interpre-
tation cannot be right.
A
A first option for legislators is to create a simple, pure
or nearly pure “charge offense” or “determinate” sentencing
system. See Breyer, The Federal Sentencing Guidelines
and the Key Compromises upon Which They Rest, 17 Hof-
stra L. Rev. 1, 8–9 (1988). In such a system, an indictment
would charge a few facts which, taken together, constitute a
crime, such as robbery. Robbery would carry a single sen-
tence, say, five years’ imprisonment. And every person con-
victed of robbery would receive that sentence—just as, cen-
turies ago, everyone convicted of almost any serious crime
was sentenced to death. See, e. g., Lillquist, The Puzzling
Return of Jury Sentencing: Misgivings About Apprendi, 82
N. C. L. Rev. 621, 630 (2004).
Such a system assures uniformity, but at intolerable costs.
First, simple determinate sentencing systems impose identi-
cal punishments on people who committed their crimes in
very different ways. When dramatically different conduct

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
331 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
ends up being punished the same way, an injustice has taken
place. Simple determinate sentencing has the virtue of
treating like cases alike, but it simultaneously fails to treat
different cases differently. Some commentators have lev-
eled this charge at sentencing guidelines systems them-
selves. See, e. g., Schulhofer, Assessing the Federal Sen-
tencing Process: The Problem Is Uniformity, Not Disparity,
29 Am. Crim. L. Rev. 833, 847 (1992) (arguing that the “most
important problem under the Guidelines system is not too
much disparity, but rather excessive uniformity” and arguing
for adjustments, including elimination of mandatory mini-
mums, to make the Guidelines system more responsive to
relevant differences). The charge is doubly applicable to
simple “pure charge” systems that permit no departures
from the prescribed sentences, even in extraordinary cases.
Second, in a world of statutorily fixed mandatory sen-
tences for many crimes, determinate sentencing gives tre-
mendous power to prosecutors to manipulate sentences
through their choice of charges. Prosecutors can simply
charge, or threaten to charge, defendants with crimes bear-
ing higher mandatory sentences. Defendants, knowing that
they will not have a chance to argue for a lower sentence in
front of a judge, may plead to charges that they might other-
wise contest. Considering that most criminal cases do not
go to trial and resolution by plea bargaining is the norm,
the rule of Apprendi, to the extent it results in a return to
determinate sentencing, threatens serious unfairness. See
Bibas, Judicial Fact-Finding and Sentence Enhancements in
a World of Guilty Pleas, 110 Yale L. J. 1097, 1100–1101 (2001)
(explaining that the rule of Apprendi hurts defendants by
depriving them of sentencing hearings, “the only hearings
they were likely to have”; forcing defendants to surrender
sentencing issues like drug quantity when they agree to the
plea; and transferring power to prosecutors).

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
332 BLAKELY v. WASHINGTON
Breyer, J., dissenting
B
A second option for legislators is to return to a system of
indeterminate sentencing, such as California had before the
recent sentencing reform movement. See Payne v. Tennes-
see, 501 U. S. 808, 820 (1991) (“With the increasing impor-
tance of probation, as opposed to imprisonment, as a part
of the penological process, some States such as California
developed the ‘indeterminate sentence,’ where the time of
incarceration was left almost entirely to the penological au-
thorities rather than to the courts”); Thompson, Navigating
the Hidden Obstacles to Ex-Offender Reentry, 45 Boston
College L. Rev. 255, 267 (2004) (“In the late 1970s, California
switched from an indeterminate criminal sentencing scheme
to determinate sentencing”). Under indeterminate sys-
tems, the length of the sentence is entirely or almost entirely
within the discretion of the judge or of the parole board,
which typically has broad power to decide when to release
a prisoner.
When such systems were in vogue, they were criticized,
and rightly so, for producing unfair disparities, including
race-based disparities, in the punishment of similarly situ-
ated defendants. See, e. g., ante, at 315–316 (O’Connor, J.,
dissenting) (citing sources). 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. See Breyer,
supra, at 4–5 (citing congressional and expert studies indi-
cating that, before the United States Sentencing Commission
Guidelines were promulgated, punishments for identical
crimes in the Second Circuit ranged from 3 to 20 years’ im-
prisonment and that sentences varied depending upon re-
gion, gender of the defendant, and race of the defendant).
And under such a system, the judge could vary the sentence
greatly based upon his findings about how the defendant had
committed the crime—findings that might not have been

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
333 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
made by a “preponderance of the evidence,” much less “be-
yond a reasonable doubt.” See McMillan, 477 U. S., at 91
(“Sentencing courts have traditionally heard evidence and
found facts without any prescribed burden of proof at all”
(citing Williams v. New York, 337 U. S. 241 (1949))).
Returning to such a system would diminish the “ ‘reason’ ”
the majority claims it is trying to uphold. Ante, at 302
(quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed.
1872)). It also would do little to “ensur[e] [the] control” of
what the majority calls “the peopl[e,]” i. e., the jury, “in the
judiciary,” ante, at 306, since “the peopl[e]” would only de-
cide the defendant’s guilt, a finding with no effect on the
duration of the sentence. While “the judge’s authority to
sentence” would formally derive from the jury’s verdict, the
jury would exercise little or no control over the sentence
itself. Ibid. It is difficult to see how such an outcome pro-
tects the structural safeguards the majority claims to be
defending.
C
A third option is that which the Court seems to believe
legislators will in fact take. That is the option of retaining
structured schemes that attempt to punish similar conduct
similarly and different conduct differently, but modifying
them to conform to Apprendi’s dictates. Judges would be
able to depart downward from presumptive sentences upon
finding that mitigating factors were present, but would not
be able to depart upward unless the prosecutor charged the
aggravating fact to a jury and proved it beyond a reasonable
doubt. The majority argues, based on the single example of
Kansas, that most legislatures will enact amendments along
these lines in the face of the oncoming Apprendi train. See
ante, at 309–310 (citing State v. Gould, 271 Kan. 394, 404–414,
23 P. 3d 801, 809–814 (2001); Act of May 29, 2002, ch. 170,
2002 Kan. Sess. Laws pp. 1018–1023 (codified at Kan. Stat.
Ann. § 21–4718 (2003 Cum. Supp.)); Brief for Kansas Appel-
late Defender Office as Amicus Curiae 3–7). It is therefore

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
334 BLAKELY v. WASHINGTON
Breyer, J., dissenting
worth exploring how this option could work in practice, as
well as the assumptions on which it depends.
1
This option can be implemented in one of two ways. The
first way would be for legislatures to subdivide each crime
into a list of complex crimes, each of which would be defined
to include commonly found sentencing factors such as drug
quantity, type of victim, presence of violence, degree of in-
jury, use of gun, and so on. A legislature, for example,
might enact a robbery statute, modeled on robbery sentenc-
ing guidelines, that increases punishment depending upon
(1) the nature of the institution robbed, (2) the (a) presence
of, (b) brandishing of, (c) other use of, a firearm, (3) making
of a death threat, (4) presence of (a) ordinary, (b) serious,
(c) permanent or life threatening, bodily injury, (5) abduction,
(6) physical restraint, (7) taking of a firearm, (8) taking of
drugs, (9) value of property loss, etc. Cf. United States Sen-
tencing Commission, Guidelines Manual § 2B3.1 (Nov. 2003)
(hereinafter USSG).
This possibility is, of course, merely a highly calibrated
form of the “pure charge” system discussed in Part I–A,
supra. And it suffers from some of the same defects. The
prosecutor, through control of the precise charge, controls
the punishment, thereby marching the sentencing system di-
rectly away from, not toward, one important guideline goal:
rough uniformity of punishment for those who engage in
roughly the same real criminal conduct. The artificial (and
consequently unfair) nature of the resulting sentence is ag-
gravated by the fact that prosecutors must charge all rele-
vant facts about the way the crime was committed before
a presentence investigation examines the criminal conduct,
perhaps before the trial itself, i. e., before many of the facts
relevant to punishment are known.
This “complex charge offense” system also prejudices de-
fendants who seek trial, for it can put them in the untenable

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
335 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
position of contesting material aggravating facts in the guilt
phases of their trials. Consider a defendant who is charged,
not with mere possession of cocaine, but with the specific
offense of possession of more than 500 grams of cocaine. Or
consider a defendant charged, not with murder, but with the
new crime of murder using a machete. Or consider a de-
fendant who the prosecution wants to claim was a “supervi-
sor,” rather than an ordinary gang member. How can a
Constitution that guarantees due process put these defend-
ants, as a matter of course, in the position of arguing, “I did
not sell drugs, and if I did, I did not sell more than 500
grams,” or “I did not kill him, and if I did, I did not use a
machete,” or “I did not engage in gang activity, and certainly
not as a supervisor” to a single jury? See Apprendi, 530
U. S., at 557–558 (Breyer, J., dissenting); Monge, 524 U. S.,
at 729. The system can tolerate this kind of problem up
to a point (consider the defendant who wants to argue in-
nocence, and, in the alternative, second-degree, not first-
degree, murder). But a rereading of the many distinctions
made in a typical robbery guideline, see supra, at 334, sug-
gests that an effort to incorporate any real set of guidelines
in a complex statute would reach well beyond that point.
The majority announces that there really is no problem
here because “States may continue to offer judicial factfind-
ing as a matter of course to all defendants who plead guilty”
and defendants may “stipulat[e] to the relevant facts or con-
sen[t] to judicial factfinding.” Ante, at 310. The problem,
of course, concerns defendants who do not want to plead
guilty to those elements that, until recently, were commonly
thought of as sentencing factors. As to those defendants,
the fairness problem arises because States may very well
decide that they will not permit defendants to carve subsets
of facts out of the new, Apprendi-required 17-element rob-
bery crime, seeking a judicial determination as to some of
those facts and a jury determination as to others. Instead,
States may simply require defendants to plead guilty to all

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
336 BLAKELY v. WASHINGTON
Breyer, J., dissenting
17 elements or proceed with a (likely prejudicial) trial on all
17 elements.
The majority does not deny that States may make this
choice; it simply fails to understand why any State would
want to exercise it. Ante, at 310, n. 12. The answer is, as
I shall explain in a moment, that the alternative may prove
too expensive and unwieldy for States to provide. States
that offer defendants the option of judicial factfinding as to
some facts (i. e., sentencing facts), say, because of fairness
concerns, will also have to offer the defendant a second sen-
tencing jury—just as Kansas has done. I therefore turn to
that alternative.
2
The second way to make sentencing guidelines Apprendi-
compliant would be to require at least two juries for each
defendant whenever aggravating facts are present: one jury
to determine guilt of the crime charged, and an additional
jury to try the disputed facts that, if found, would aggravate
the sentence. Our experience with bifurcated trials in the
capital punishment context suggests that requiring them for
run-of-the-mill sentences would be costly, both in money and
in judicial time and resources. Cf. Kozinski & Gallagher,
Death: The Ultimate Run-On Sentence, 46 Case W. Res.
L. Rev. 1, 13–15, and n. 64 (1995) (estimating the costs of each
capital case at around $1 million more than each noncapital
case); Tabak, How Empirical Studies Can Affect Positively
the Politics of the Death Penalty, 83 Cornell L. Rev. 1431,
1439–1440 (1998) (attributing the greater cost of death pen-
alty cases in part to bifurcated proceedings). In the context
of noncapital crimes, the potential need for a second indict-
ment alleging aggravating facts, the likely need for formal
evidentiary rules to prevent prejudice, and the increased dif-
ficulty of obtaining relevant sentencing information, all will
mean greater complexity, added cost, and further delay. See
Part V, infra. Indeed, cost and delay could lead legislatures

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
337 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
to revert to the complex charge offense system described in
Part I–C–1, supra.
The majority refers to an amicus curiae brief filed by the
Kansas Appellate Defender Office, which suggests that a
two-jury system has proved workable in Kansas. Ante, at
309–310. And that may be so. But in all likelihood, any
such workability reflects an uncomfortable fact, a fact at
which the majority hints, ante, at 310, but whose constitu-
tional implications it does not seem to grasp. The uncom-
fortable fact that could make the system seem workable—
even desirable in the minds of some, including defense
attorneys—is called “plea bargaining.” See Bibas, 110 Yale
L. J., at 1150, and n. 330 (reporting that in 1996, fewer than
4% of adjudicated state felony defendants have jury trials,
5% have bench trials, and 91% plead guilty). See also ante,
at 310 (making clear that plea bargaining applies). The
Court can announce that the Constitution requires at least
two jury trials for each criminal defendant—one for guilt,
another for sentencing—but only because it knows full well
that more than 90% of defendants will not go to trial even
once, much less insist on two or more trials.
What will be the consequences of the Court’s holding for
the 90% of defendants who do not go to trial? The truthful
answer is that we do not know. Some defendants may re-
ceive bargaining advantages if the increased cost of the “dou-
ble jury trial” guarantee makes prosecutors more willing to
cede certain sentencing issues to the defense. Other de-
fendants may be hurt if a “single-jury-decides-all” approach
makes them more reluctant to risk a trial—perhaps because
they want to argue that they did not know what was in the
cocaine bag, that it was a small amount regardless, that they
were unaware a confederate had a gun, etc. See Bibas, 110
Yale L. J., at 1100 (“Because for many defendants going to
trial is not a desirable option, they are left without any real
hearings at all”); id., at 1151 (“The trial right does little good
when most defendants do not go to trial”).

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
338 BLAKELY v. WASHINGTON
Breyer, J., dissenting
At the least, the greater expense attached to trials and
their greater complexity, taken together in the context of an
overworked criminal justice system, will likely mean, other
things being equal, fewer trials and a greater reliance upon
plea bargaining—a system in which punishment is set not by
judges or juries but by advocates acting under bargaining
constraints. At the same time, the greater power of the
prosecutor to control the punishment through the charge
would likely weaken the relation between real conduct and
real punishment as well. See, e. g., Schulhofer, 29 Am. Crim.
L. Rev., at 845 (estimating that evasion of the proper sen-
tence under the Federal Guidelines may now occur in 20%–
35% of all guilty plea cases). Even if the Court’s holding
does not further embed plea-bargaining practices (as I fear
it will), its success depends upon the existence of present
practice. I do not understand how the Sixth Amendment
could require a sentencing system that will work in practice
only if no more than a handful of defendants exercise their
right to a jury trial.
The majority’s only response is to state that “bargaining
over elements . . . probably favors the defendant,” ante,
at 311, adding that many criminal defense lawyers favor its
position, ante, at 312. But the basic problem is not one of
“fairness” to defendants or, for that matter, “fairness” to
prosecutors. Rather, it concerns the greater fairness of a
sentencing system that a more uniform correspondence be-
tween real criminal conduct and real punishment helps to
create. At a minimum, a two-jury system, by preventing a
judge from taking account of an aggravating fact without
the prosecutor’s acquiescence, would undercut, if not nullify,
legislative efforts to ensure through guidelines that punish-
ments reflect a convicted offender’s real criminal conduct,
rather than that portion of the offender’s conduct that a
prosecutor decides to charge and prove.
Efforts to tie real punishment to real conduct are not new.
They are embodied in well-established preguidelines sen-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
339 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
tencing practices—practices under which a judge, looking at
a presentence report, would seek to tailor the sentence in
significant part to fit the criminal conduct in which the of-
fender actually engaged. For more than a century, ques-
tions of punishment (not those of guilt or innocence) have
reflected determinations made, not only by juries, but also
by judges, probation officers, and executive parole boards.
Such truthseeking determinations have rested upon both
adversarial and nonadversarial processes. The Court’s
holding undermines efforts to reform these processes, for it
means that legislatures cannot both permit judges to base
sentencing upon real conduct and seek, through guidelines,
to make the results more uniform.
In these and other ways, the two-jury system would work
a radical change in pre-existing criminal law. It is not sur-
prising that this Court has never previously suggested that
the Constitution—outside the unique context of the death
penalty—might require bifurcated jury-based sentencing.
And it is the impediment the Court’s holding poses to legisla-
tive efforts to achieve that greater systematic fairness that
casts doubt on its constitutional validity.
D
Is there a fourth option? Perhaps. Congress and state
legislatures might, for example, rewrite their criminal codes,
attaching astronomically high sentences to each crime, fol-
lowed by long lists of mitigating facts, which, for the most
part, would consist of the absence of aggravating facts. Ap-
prendi, 530 U. S., at 541–542 (O’Connor, J., dissenting) (ex-
plaining how legislatures can evade the majority’s rule by
making yet another labeling choice). But political impedi-
ments to legislative action make such rewrites difficult to
achieve; and it is difficult to see why the Sixth Amendment
would require legislatures to undertake them.
It may also prove possible to find combinations of, or varia-
tions upon, my first three options. But I am unaware of any

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
340 BLAKELY v. WASHINGTON
Breyer, J., dissenting
variation that does not involve (a) the shift of power to the
prosecutor (weakening the connection between real conduct
and real punishment) inherent in any charge offense system,
(b) the lack of uniformity inherent in any system of pure
judicial discretion, or (c) the complexity, expense, and in-
creased reliance on plea bargains involved in a “two-jury”
system. The simple fact is that the design of any fair sen-
tencing system must involve efforts to make practical com-
promises among competing goals. The majority’s reading of
the Sixth Amendment makes the effort to find those compro-
mises—already difficult—virtually impossible.
II
The majority rests its conclusion in significant part upon a
claimed historical (and therefore constitutional) imperative.
According to the majority, the rule it applies in this case is
rooted in “longstanding tenets of common-law criminal juris-
prudence,” ante, at 301: that every accusation against a de-
fendant must be proved to a jury and that “ ‘an accusation
which lacks any particular fact which the law makes essen-
tial to the punishment is . . . no accusation within the require-
ments of the common law, and it is no accusation in reason,’ ”
ante, at 301–302 (quoting Bishop, Criminal Procedure § 87, at
55). The historical sources upon which the majority relies,
however, do not compel the result it reaches. See ante, at
323 (O’Connor, J., dissenting); Apprendi, 530 U. S., at 525–
528 (O’Connor, J., dissenting). The quotation from Bishop,
to which the majority attributes great weight, stands for
nothing more than the “unremarkable proposition” that
where a legislature passes a statute setting forth heavier
penalties than were available for committing a common-law
offense and specifying those facts that triggered the statu-
tory penalty, “a defendant could receive the greater statu-
tory punishment only if the indictment expressly charged
and the prosecutor proved the facts that made up the statu-
tory offense, as opposed to simply those facts that made up

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
341 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
the common-law offense.” Id., at 526 (O’Connor, J., dissent-
ing) (characterizing a similar statement of the law in J. Arch-
bold, Pleading and Evidence in Criminal Cases 51, 188 (15th
ed. 1862)).
This is obvious when one considers the problem that
Bishop was addressing. He provides as an example “stat-
utes whereby, when [a common-law crime] is committed with
a particular intent, or with a particular weapon, or the like,
it is subjected to a particular corresponding punishment,
heavier than that for” the simple common-law offense
(though, of course, his concerns were not “limited to that
example,” ante, at 302, n. 5). Bishop, supra, § 82, at 51–52
(discussing the example of common assault and enhanced-
assault statutes, e. g., “assaults committed with the intent to
rob”). That indictments historically had to charge all of the
statutorily labeled elements of the offense is a proposition
on which all can agree. See Apprendi, supra, at 526–527
(O’Connor, J., dissenting). See also J. Archbold, Pleading
and Evidence in Criminal Cases 44 (11th ed. 1849) (“[E]very
fact or circumstance which is a necessary ingredient in the
offence must be set forth in the indictment” so that “there
may be no doubt as to the judgment which should be given,
if the defendant be convicted”); 1 T. Starkie, Criminal Plead-
ing 68 (2d ed. 1822) (the indictment must state “the criminal
nature and degree of the offence, which are conclusions of
law from the facts; and also the particular facts and circum-
stances which render the defendant guilty of that offence”).
Neither Bishop nor any other historical treatise writer,
however, disputes the proposition that judges historically
had discretion to vary the sentence, within the range pro-
vided by the statute, based on facts not proved at the trial.
See Bishop, supra, § 85, at 54 (“[W]ithin the limits of any
discretion as to the punishment which the law may have al-
lowed, the judge, when he pronounces sentence, may suffer
his discretion to be influenced by matter shown in aggrava-
tion or mitigation, not covered by the allegations of the in-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
342 BLAKELY v. WASHINGTON
Breyer, J., dissenting
dictment”); K. Stith & J. Cabranes, Fear of Judging: Sentenc-
ing Guidelines in the Federal Courts 9 (1998). The modern
history of preguidelines sentencing likewise indicates that
judges had broad discretion to set sentences within a statu-
tory range based on uncharged conduct. Usually, the judge
based his or her sentencing decision on facts gleaned from a
presentence report, which the defendant could dispute at a
sentencing hearing. In the federal system, for example,
Federal Rule of Criminal Procedure 32 provided that proba-
tion officers, who are employees of the Judicial Branch, pre-
pared a presentence report for the judge, a copy of which
was generally given to the prosecution and defense before
the sentencing hearing. See Stith & Cabranes, supra, at
79–80, 221, n. 5. See also ante, at 315 (O’Connor, J., dis-
senting) (describing the State of Washington’s former inde-
terminate sentencing law).
In this case, the statute provides that kidnaping may be
punished by up to 10 years’ imprisonment. Wash. Rev. Code
Ann. §§ 9A.40.030(3), 9A.20.021(1)(b) (2000). Modern struc-
tured sentencing schemes like Washington’s do not change
the statutorily fixed maximum penalty, nor do they purport
to establish new elements for the crime. Instead, they un-
dertake to structure the previously unfettered discretion of
the sentencing judge, channeling and limiting his or her dis-
cretion even within the statutory range. (Thus, contrary to
the majority’s arguments, ante, at 308–309, kidnapers in the
State of Washington know that they risk up to 10 years’ im-
prisonment, but they also have the benefit of additional infor-
mation about how long—within the 10-year maximum—their
sentences are likely to be, based on how the kidnaping was
committed.)
Historical treatises do not speak to such a practice because
it was not done in the 19th century. Cf. Jones, 526 U. S., at
244 (“[T]he scholarship of which we are aware does not show
that a question exactly like this one was ever raised and
resolved in the period before the framing”). This makes

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
343 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
sense when one considers that, prior to the 19th century, the
prescribed penalty for felonies was often death, which the
judge had limited, and sometimes no, power to vary. See
Lillquist, 82 N. C. L. Rev., at 628–630. The 19th century
saw a movement to a rehabilitative mode of punishment in
which prison terms became a norm, shifting power to the
judge to impose a longer or shorter term within the statu-
tory maximum. See ibid. The ability of legislatures to
guide the judge’s discretion by designating presumptive
ranges, while allowing the judge to impose a more or less
severe penalty in unusual cases, was therefore never consid-
ered. To argue otherwise, the majority must ignore the sig-
nificant differences between modern structured sentencing
schemes and the history on which it relies to strike them
down. And while the majority insists that the historical
sources, particularly Bishop, should not be “limited” to the
context in which they were written, ante, at 302, n. 5, it has
never explained why the Court must transplant those dis-
cussions to the very different context of sentencing schemes
designed to structure judges’ discretion within a statutory
sentencing range.
Given history’s silence on the question of laws that struc-
ture a judge’s discretion within the range provided by the
legislatively labeled maximum term, it is not surprising that
our modern, pre-Apprendi cases made clear that legislatures
could, within broad limits, distinguish between “sentencing
facts” and “elements of crimes.” See McMillan, 477 U. S.,
at 85–88. By their choice of label, legislatures could indicate
whether a judge or a jury must make the relevant factual
determination. History does not preclude legislatures from
making this decision. And, as I argued in Part I, supra,
allowing legislatures to structure sentencing in this way has
the dual effect of enhancing and giving meaning to the Sixth
Amendment’s jury trial right as to core crimes, while afford-
ing additional due process to defendants in the form of sen-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
344 BLAKELY v. WASHINGTON
Breyer, J., dissenting
tencing hearings before judges—hearings the majority’s rule
will eliminate for many.
Is there a risk of unfairness involved in permitting Con-
gress to make this labeling decision? Of course. As we
have recognized, the “tail” of the sentencing fact might
“wa[g] the dog of the substantive offense.” McMillan,
supra, at 88. Congress might permit a judge to sentence an
individual for murder though convicted only of making an
illegal lane change. See ante, at 306 (majority opinion).
But that is the kind of problem that the Due Process Clause
is well suited to cure. McMillan foresaw the possibility
that judges would have to use their own judgment in dealing
with such a problem; but that is what judges are there for.
And, as Part I, supra, makes clear, the alternatives are
worse—not only practically, but, although the majority re-
fuses to admit it, constitutionally as well.
Historic practice, then, does not compel the result the
majority reaches. And constitutional concerns counsel the
opposite.
III
The majority also overlooks important institutional consid-
erations. Congress and the States relied upon what they
believed was their constitutional power to decide, within
broad limits, whether to make a particular fact (a) a sentenc-
ing factor or (b) an element in a greater crime. They relied
upon McMillan as guaranteeing the constitutional validity
of that proposition. They created sentencing reform, an ef-
fort to change the criminal justice system so that it reflects
systematically not simply upon guilt or innocence but also
upon what should be done about this now-guilty offender.
Those efforts have spanned a generation. They have led to
state sentencing guidelines and the Federal Sentencing
Guidelines system. E. g., ante, at 314–318 (O’Connor, J.,
dissenting) (describing sentencing reform in the State of
Washington). These systems are imperfect and they yield
far from perfect results, but I cannot believe the Constitu-

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
345 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
tion forbids the state legislatures and Congress to adopt such
systems and to try to improve them over time. Nor can I
believe that the Constitution hamstrings legislatures in the
way that Justice O’Connor and I have discussed.
IV
Now, let us return to the question I posed at the outset.
Why does the Sixth Amendment permit a jury trial right (in
respect to a particular fact) to depend upon a legislative la-
beling decision, namely, the legislative decision to label the
fact a sentencing fact, instead of an element of the crime?
The answer is that the fairness and effectiveness of a sen-
tencing system, and the related fairness and effectiveness of
the criminal justice system itself, depend upon the legisla-
ture’s possessing the constitutional authority (within due
process limits) to make that labeling decision. To restrict
radically the legislature’s power in this respect, as the major-
ity interprets the Sixth Amendment to do, prevents the leg-
islature from seeking sentencing systems that are consistent
with, and indeed may help to advance, the Constitution’s
greater fairness goals.
To say this is not simply to express concerns about fairness
to defendants. It is also to express concerns about the seri-
ous practical (or impractical) changes that the Court’s deci-
sion seems likely to impose upon the criminal process; about
the tendency of the Court’s decision to embed further plea
bargaining processes that lack transparency and too often
mean nonuniform, sometimes arbitrary, sentencing practices;
about the obstacles the Court’s decision poses to legislative
efforts to bring about greater uniformity between real crimi-
nal conduct and real punishment; and ultimately about the
limitations that the Court imposes upon legislatures’ ability
to make democratic legislative decisions. Whatever the
faults of guidelines systems—and there are many—they are
more likely to find their cure in legislation emerging from
the experience of, and discussion among, all elements of the

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
346 BLAKELY v. WASHINGTON
Breyer, J., dissenting
criminal justice community, than in a virtually unchangeable
constitutional decision of this Court.
V
Taken together these three sets of considerations, concern-
ing consequences, concerning history, concerning institu-
tional reliance, leave me where I was in Apprendi, i. e., con-
vinced that the Court is wrong. Until now, I would have
thought the Court might have limited Apprendi so that its
underlying principle would not undo sentencing reform ef-
forts. Today’s case dispels that illusion. At a minimum,
the case sets aside numerous state efforts in that direction.
Perhaps the Court will distinguish the Federal Sentencing
Guidelines, but I am uncertain how. As a result of today’s
decision, federal prosecutors, like state prosecutors, must de-
cide what to do next, how to handle tomorrow’s case.
Consider some of the matters that federal prosecutors
must know about, or guess about, when they prosecute their
next case: (1) Does today’s decision apply in full force to the
Federal Sentencing Guidelines? (2) If so, must the initial
indictment contain all sentencing factors, charged as “ele-
ments” of the crime? (3) What, then, are the evidentiary
rules? Can the prosecution continue to use, say, presen-
tence reports, with their conclusions reflecting layers of
hearsay? Cf. Crawford v. Washington, 541 U. S. 36, 63, 68
(2004) (clarifying the Sixth Amendment’s requirement of con-
frontation with respect to testimonial hearsay). Are the nu-
merous cases of this Court holding that a sentencing judge
may consider virtually any reliable information still good law
when juries, not judges, are required to determine the mat-
ter? See, e. g., United States v. Watts, 519 U. S. 148, 153–157
(1997) (per curiam) (evidence of conduct of which the defend-
ant has been acquitted may be considered at sentencing).
Cf. Witte v. United States, 515 U. S. 389, 399–401 (1995) (evi-
dence of uncharged criminal conduct used in determining
sentence). (4) How are juries to deal with highly complex

542US2 Unit: $U69 [11-01-06 18:18:51] PAGES PGT: OPIN
347 Cite as: 542 U. S. 296 (2004)
Breyer, J., dissenting
or open-ended Sentencing Guidelines obviously written for
application by an experienced trial judge? See, e. g., USSG
§ 3B1.1 (requiring a greater sentence when the defendant
was a leader of a criminal activity that involved four or more
participants or was “otherwise extensive” (emphasis added));
§§ 3D1.1–3D1.2 (highly complex “multiple count” rules);
§ 1B1.3 (relevant conduct rules).
Ordinarily, this Court simply waits for cases to arise in
which it can answer such questions. But this case affects
tens of thousands of criminal prosecutions, including federal
prosecutions. Federal prosecutors will proceed with those
prosecutions subject to the risk that all defendants in those
cases will have to be sentenced, perhaps tried, anew. Given
this consequence and the need for certainty, I would not pro-
ceed further piecemeal; rather, I would call for further argu-
ment on the ramifications of the concerns I have raised. But
that is not the Court’s view.
For the reasons given, I dissent.