(Slip Opinion)              OCTOBER TERM, 2023                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                  ERLINGER v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                THE SEVENTH CIRCUIT

      No. 23–370.      Argued March 27, 2024—Decided June 21, 2024
Paul Erlinger pleaded guilty to being a felon in possession of a firearm
  in violation of 

(g). At sentencing, the judge found Mr.
  Erlinger eligible for an enhanced sentence under the Armed Career
  Criminal Act, §924(e)(1), which increases the penalty for a 922(g) con-
  viction from a maximum sentence of 10 years to a mandatory mini-
  mum sentence of 15 years when the defendant has three or more qual-
  ifying convictions for offenses committed on different occasions.
  Subsequently, the Seventh Circuit held in unrelated decisions that two
  of the offenses on which the government relied for Mr. Erlinger’s sen-
  tence enhancement no longer qualified as ACCA predicate offenses.
  The District Court vacated Mr. Erlinger’s sentence and scheduled re-
  sentencing. At the resentencing hearing, prosecutors again pursued
  an ACCA sentence enhancement based on a new set of 26-year-old con-
  victions for burglaries committed by Mr. Erlinger over the course of
  several days. Mr. Erlinger protested that the burglaries were part of
  a single criminal episode and did not occur on separate occasions, as
  required by ACCA. Moreover, Mr. Erlinger argued that the question
  whether he committed these prior burglaries during a single episode
  or on distinct occasions required an assessment of the facts surround-
  ing those offenses, and that the Fifth and Sixth Amendments required
  that a jury make that assessment. The District Court rejected Mr.
  Erlinger’s request for a jury and issued a 15-year enhanced sentence.
  On appeal, the government confessed error. Pointing to this Court’s
  recent decision in Wooden v. United States, 

, which
  acknowledged that an ACCA “occasions inquiry” can be intensely fac-
  tual in nature, the government admitted that given the factual nature
  of the inquiry and its impact on a defendant’s sentence, the Constitu-
  tion requires a jury to decide unanimously and beyond a reasonable
2                  ERLINGER v. UNITED STATES

                                Syllabus

 doubt whether Mr. Erlinger’s prior offenses were committed on differ-
 ent occasions. This Court granted certiorari and appointed counsel to
 defend the judgment below.
Held: The Fifth and Sixth Amendments require a unanimous jury to
 make the determination beyond a reasonable doubt that a defendant’s
 past offenses were committed on separate occasions for ACCA pur-
 poses. Pp. 5–26.
    (a) The Sixth Amendment promises that “[i]n all criminal prosecu-
 tions the accused” has “the right to a speedy and public trial, by an
 impartial jury.” Inherent in that guarantee is an assurance that any
 guilty verdict will issue only from a unanimous jury. Ramos v. Louisi-
 ana, 

. The Fifth Amendment further promises that the
 government may not deprive individuals of their liberty without “due
 process of law.” It safeguards for criminal defendants well-established
 common-law protections, including the “ancient rule” that the govern-
 ment must prove to a jury every one of its charges beyond a reasonable
 doubt. Together, these Amendments place the jury at the heart of our
 criminal justice system and ensure a judge’s power to punish is derived
 wholly from, and remains always controlled by, the jury and its verdict.
 Blakely v. Washington, 

.
    The Court has repeatedly cautioned that trial and sentencing prac-
 tices must remain within the guardrails provided by these two Amend-
 ments. Thus in Apprendi v. New Jersey, 

, the Court held
 that a novel “sentencing enhancement” was unconstitutional because
 it violated the rule that only a jury may find “facts that increase the
 prescribed range of penalties to which a criminal defendant is ex-
 posed.” 

. This principle applies when a judge seeks to issue
 a sentence that exceeds the maximum penalty authorized by a jury’s
 findings as well as when a judge seeks to increase a defendant’s mini-
 mum punishment. See, e.g., Alleyne v. United States, 

,
 111–113. Pp. 5–10.
    (b) The government concedes what all of this means for Mr. Erlinger.
 To trigger ACCA’s mandatory minimum, the government had to prove,
 among other things, that his three predicate convictions were “com-
 mitted on occasions different from one another.” §924(e)(1). And as
 Wooden observed, deciding whether those past offenses occurred on
 three or more different occasions is a fact-laden task. As the govern-
 ment recognizes, virtually “any fact” that “increase[s] the prescribed
 range of penalties to which a criminal defendant is exposed” must be
 resolved by a unanimous jury beyond a reasonable doubt (or freely ad-
 mitted in a guilty plea). Apprendi, 

. Here, the sen-
 tencing court made a factual finding that Mr. Erlinger’s offenses oc-
 curred on at least three separate occasions. And as in Apprendi and
                   Cite as: 

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                              Syllabus

Alleyne, that factual finding had the effect of increasing both the max-
imum and minimum sentences Mr. Erlinger faced. Thus, Mr. Erlinger
was entitled to have a jury resolve ACCA’s occasions inquiry unani-
mously and beyond a reasonable doubt. This Court decides no more
than that. Pp. 10–12.
   (c) Court-appointed amicus cannot avoid this conclusion. Pp. 12–22.
      (1) Amicus relies on an exception announced in Almendarez-
Torres v. United States, 

, which he argues permits a judge
to find certain facts related to a defendant’s past offenses, including
whether he committed them on different occasions. That decision is
an outlier. And the Court has described it as “at best an exceptional
departure” from historic practice. Apprendi, 

. It per-
sists as a “narrow exception” permitting judges to find only “the fact of
a prior conviction.” Alleyne, 

. Pp. 13–15.
      (2) Amicus responds that if Almendarez-Torres permits a judge to
find the fact of a conviction, that necessarily implies that a judge may
also find the jurisdiction in which the underlying offense occurred and
the date it happened, which is generally enough to resolve the occa-
sions inquiry, making sending it to a jury pointless. This Court disa-
grees. To answer such questions, a court will sometimes consult the
Shepard documents in a case, which include judicial records, plea
agreements, and colloquies between a judge and the defendant. See
Shepard v. United States, 

. This Court’s cases hold that a
sentencing judge may use the information gleaned from Shepard doc-
uments for the “limited function” of determining the fact of a prior con-
viction and the then-existing elements of that offense. “[N]o more is
allowed.” Mathis v. United States, 

. Moreover, often
Shepard documents will not contain all the information needed to con-
duct a sensible ACCA occasions inquiry, and they can also be “prone to
error.” Mathis, 

. Pp. 15–19.
      (3) Amicus insists this Court’s Almendarez-Torres precedents are
mistaken, because the Fifth and Sixth Amendments’ original meaning
and common-law traditions authorize judges at sentencing to find all
manner of facts about an offender’s past crimes. But this Court has
been down this road many times before, and to reconsider all those
precedents now would require, at the least, convincing proof indeed.
See Gaudin, 515 U. S., at 515. Yet amicus offers nothing like that, and
the evidence he does offer does more to hurt than help his cause. Ami-
cus points to supplemental information procedures that a few States
employed in the early 19th century. But a sentencing procedure fol-
lowed by a few States hardly represents “convincing” proof that our
precedents have mistaken the original meaning of the Fifth and Sixth
Amendments. And in upholding one such scheme, the Court stressed
that, under the law’s terms, even “the fact of former conviction” had to
4                    ERLINGER v. UNITED STATES

                                  Syllabus

    be “charged” by prosecutors and then “determined by a jury in a pro-
    ceeding thereby instituted.” Graham v. West Virginia, 

    (1912). Amicus next turns to the Double Jeopardy Clause, which per-
    mits a judge to look into a defendant’s past conduct to ask whether the
    government has charged a defendant for the same crime a second time.
    While the Double Jeopardy Clause protects a defendant by prohibiting
    a judge from even empaneling a jury when the defendant has already
    faced trial on the charged crime, the Fifth and Sixth Amendments’ jury
    trial rights provide a defendant with entirely complementary protec-
    tions at a different stage of the proceedings by ensuring that, once a
    jury is lawfully empaneled, the government must prove beyond a rea-
    sonable doubt to a unanimous jury the facts necessary to sustain the
    punishment it seeks. Finally, Amicus points to case law and statutes
    in four other States. But while this evidence may suggest that in a
    small number of jurisdictions, judges could find the existence, number,
    and dates of a defendant’s prior convictions, none of this provides a
    persuasive basis for revisiting this Court’s many precedents forbidding
    judges from doing more, let alone prove a longstanding tradition.
    Pp. 19–23.
         (4) Amicus argues that leaving the occasions inquiry to juries
    would do more to prejudice than to protect defendants. That concern,
    like arguments about efficiency, cannot alter the demands of the Fifth
    and Sixth Amendments. Tools such as bifurcation in any event exist
    to address the prejudicial effect evidence about a defendant’s past
    crimes can have on a jury. Pp. 23–26.

, vacated and remanded.

   GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. ROB-
ERTS, C. J., and THOMAS, J., filed concurring opinions. KAVANAUGH, J.,
filed a dissenting opinion, in which ALITO, J., joined, and in which JACK-
SON, J., joined except as to Part III. JACKSON, J., filed a dissenting opin-
ion.
                        Cite as: 

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                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     United States Reports. Readers are requested to notify the Reporter of
     Decisions, Supreme Court of the United States, Washington, D. C. 20543,
     [email protected], of any typographical or other formal errors.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 23–370
                                   _________________


 PAUL ERLINGER, PETITIONER v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE SEVENTH CIRCUIT
                                 [June 21, 2024]

   JUSTICE GORSUCH delivered the opinion of the Court.
   This case concerns the Armed Career Criminal Act
(ACCA) and the Fifth and Sixth Amendments. ACCA im-
poses lengthy mandatory prison terms on certain defend-
ants who have previously committed three violent felonies
or serious drug offenses on separate occasions. The ques-
tion we face is whether a judge may decide that a defend-
ant’s past offenses were committed on separate occasions
under a preponderance-of-the-evidence standard, or
whether the Fifth and Sixth Amendments require a unani-
mous jury to make that determination beyond a reasonable
doubt.
                             I
  In 2017, the federal government charged Paul Erlinger
under 

(g) with being a felon unlawfully in
possession of a firearm. At the time, a conviction for that
offense ordinarily carried a sentence of up to 10 years in
prison. §924(a)(2) (2012 ed.). But the government also
charged Mr. Erlinger under ACCA. And under that statute,
a defendant found guilty of violating §922(g) can face even
more severe punishment. Specifically, if the defendant has
three prior convictions for “violent felon[ies]” or “serious
2               ERLINGER v. UNITED STATES

                      Opinion of the Court

drug offense[s]” that were “committed on occasions differ-
ent from one another,” ACCA increases the prison term he
faces to a minimum of 15 years and a maximum of life.
§924(e)(1) (2012 ed.).
   Mr. Erlinger pleaded guilty to violating §922(g). But in
doing so, he stressed that his previous convictions were
more than a decade old and since then he had turned his
life around, secured a steady job, built a family, and re-
mained free from drugs. Tr. of Plea and Sentencing Hear-
ing in No. 2:18–cr–00013 (SD Ind., Oct. 24, 2018), ECF Doc.
67, p. 24. In light of these facts, the sentencing judge stated
that a 5-year prison term would represent a “fair sentence.”
Id., at 30. But the judge also found it more likely than not
that Mr. Erlinger’s past included three ACCA-qualifying of-
fenses committed on three different occasions. Id., at 17.
And based on that finding, the court concluded, it had no
authority to issue a 5-year sentence. Id., at 29–30. Instead,
ACCA required a sentence of at least 15 years. That was
“too high” for Mr. Erlinger’s crime, the court emphasized,
but it had “no power” to order anything less. Ibid.
   Shortly after the court issued a 15-year sentence con-
sistent with ACCA, the ground shifted. The Seventh Cir-
cuit issued decisions indicating that two of the three of-
fenses on which the district court had relied to invoke
ACCA did not qualify as “violent felon[ies]” or “serious drug
offense[s].” 

 (2023) (citing United States
v. Glispie, 

 (2020), and United States v. De La
Torre, 

 (2019)). That left Mr. Erlinger with
only one qualifying prior conviction, not the three ACCA re-
quires. Recognizing as much, the district court vacated its
sentence and set the case for a new sentencing hearing. Or-
der, ECF Doc. 81.
   There, prosecutors once more pursued a 15-year ACCA
sentence. This time, though, they pointed to a new set of
prior convictions arising from burglaries Mr. Erlinger com-
mitted when he was 18 years old—some 26 years before his
                  Cite as: 

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                      Opinion of the Court

§922(g) charge. Tr. of Video Resentencing Hearing, ECF
Doc. 120, at 37–38. As the government told it, within a span
of days Mr. Erlinger burglarized a pizza shop, a sporting
goods store, and two restaurants. Ibid. Because each of
these burglaries occurred on different occasions, the gov-
ernment submitted, each could serve as an ACCA predicate
and collectively they could support an ACCA sentence. Id.,
at 39–40.
   Mr. Erlinger protested. He maintained that his decades-
old burglaries had not occurred on four separate occasions
but during a single criminal episode, all of which meant he
still lacked the three prior offenses ACCA requires. Id., at
20. More than that, Mr. Erlinger argued, the question
whether he committed his prior burglaries during a single
episode or on distinct occasions required an assessment of
the facts surrounding those offenses. Id., at 22–23. And,
he contended, the Fifth and Sixth Amendments entitled
him to have a jury make that assessment. Id., at 23.
   The district court rejected Mr. Erlinger’s request for a
jury. It proceeded to find for itself that each of his 26-year-
old burglaries occurred on distinct occasions. Id., at 48–49.
Armed with this finding, the court held that Mr. Erlinger
had at least three previous ACCA-qualifying offenses and
once more issued a 15-year sentence. Again, the court said
that it thought the result “unfortunate” and “excessive.”
Id., at 50. But, again, it said ACCA left it no choice. Id., at
50–51.
   On appeal, Mr. Erlinger renewed his argument that the
Fifth and Sixth Amendments entitled him to have a jury
decide whether his burglaries occurred on different occa-
sions. But this time, the government confessed error. The
Constitution, it said, “requires a jury” to decide unani-
mously and beyond a reasonable doubt whether Mr. Er-
linger’s ACCA predicates were “ ‘committed on occasions
different from one another.’ ” 

.
   In explaining its turnabout, the government pointed to
4               ERLINGER v. UNITED STATES

                      Opinion of the Court

this Court’s recent decision in Wooden v. United States, 

 (2022). That decision did not directly address
whether a judge may, or a jury must, resolve disputes about
whether multiple crimes occurred on multiple occasions.

; see 

 (GORSUCH, J., concur-
ring in judgment). But, the government acknowledged,
Wooden did hold that ACCA’s occasions “inquiry” can re-
quire an examination of a “range” of facts, including
whether the defendant’s past offenses were “committed
close in time,” whether they were committed near to or far
from one another, and whether the offenses were “similar
or intertwined” in purpose and character. 

. And
given the intensely factual nature of this inquiry and the
impact its resolution can have on a defendant’s sentence,
the government admitted, a jury must resolve it. That con-
clusion, the government represented, flows directly from
this Court’s consistent holdings that the Fifth and Sixth
Amendments generally guarantee a defendant the right to
have a unanimous jury find beyond a reasonable doubt any
fact that increases his exposure to punishment. Brief for
United States in No. 22–1926 (CA7), pp. 9–11.
   Despite the government’s concession, the Seventh Circuit
refused to disturb the district court’s sentence. 77 F. 4th,
at 621–622. That left Mr. Erlinger to petition this Court for
certiorari. The government filed a brief in support of his
petition. In it, the government argued that a number of
courts of appeals have refused requests for juries in cases
like Mr. Erlinger’s and that “this Court’s intervention is
necessary to ensure that the circuits correctly recognize de-
fendants’ constitutional rights in this context.” Brief for
United States on Pet. for Cert. 5–6.
   We agreed to take up Mr. Erlinger’s case to decide
whether ACCA’s occasions inquiry must be resolved by a
jury. 

 (2023). Because the government now
agrees with Mr. Erlinger about the proper resolution of that
question, we appointed Nick Harper to defend the judgment
                   Cite as: 

 (2024)              5

                       Opinion of the Court

below as amicus curiae. 

 (2023). He has ably
discharged his responsibilities.
                               II
                               A
   Prominent among the reasons colonists cited in the Dec-
laration of Independence for their break with Great Britain
was the fact Parliament and the Crown had “depriv[ed]
[them] in many cases, of the benefits of Trial by Jury.” ¶20.
For centuries, English law had recognized the right to trial
by jury. Duncan v. Louisiana, 

 (1968).
Yet, as tensions grew between the British Empire and its
American Colonies, imperial authorities responded by
stripping away that ancient right. By their lights, colonial
juries “ ‘were not to be trusted’ ” because they found for de-
fendants too often. D. Lovejoy, Rights Imply Equality: The
Case Against Admiralty Jurisdiction in America, 1764–
1776, 16 Wm. & Mary Q. 459, 468 (1959). To secure more
vigorous enforcement of the Stamp Act and other unpopular
laws, authorities directed more and more cases to vice-
admiralty courts where crown-appointed judges, rather
than local juries, decided the defendant’s fate. Jones v.
United States, 

, 245–246 (1999). Just as au-
thorities hoped, the tactic proved “ ‘most effective’ ” at secur-
ing the verdicts they wished. Parklane Hosiery Co. v. Shore,

 (1979) (Rehnquist, J., dissenting)
(quoting 11 W. Holdsworth, A History of English Law 110
(1966)).
   After securing their independence, the founding genera-
tion sought to ensure what happened before would not hap-
pen again. As John Adams put it, the founders saw repre-
sentative government and trial by jury as “the heart and
lungs” of liberty. Letter from Clarendon to W. Pym (Jan.
27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed.
1977). “[W]ithout them,” he wrote, we “have no other forti-
fication . . . against being ridden like horses, fleeced like
6               ERLINGER v. UNITED STATES

                      Opinion of the Court

sheep, worked like cattle, and fed and clothed like swine
and hounds.” 

 Reflecting that sentiment, the right to
trial by jury in criminal cases was, on one telling, the only
right included in every newly enacted state constitution. A.
Alschuler & A. Deiss, A Brief History of the Criminal Jury
in the United States, 

, 870 (1994).
   Those who drafted our Federal Constitution took just as
strong a stand on the jury trial right. As originally pro-
posed, the Constitution promised that “[t]he Trial of all
Crimes, except in Cases of Impeachment, shall be by Jury.”
Art. III, §2, cl. 3. In the ratification debates that followed,
some questioned the adequacy of this provision; even with
it, they feared, the new federal government might fall prey
to the kinds of temptations that led the British to restrict
the jury trial right in the colonies. That right, they argued,
had to be “guard[ed] with the most jealous circumspection.”
A [New Hampshire] Farmer, No. 3, June 6, 1788, quoted in
The Complete Bill of Rights 681 (N. Cogan 2d ed. 2015) (in-
ternal quotation marks and italics omitted). To address
this and other concerns about the new Constitution, James
Madison agreed to draft a series of amendments we now
know as the Bill of Rights. No fewer than three of those ten
amendments touch on the right to trial by jury, two with
implications for criminal cases. Amdts. 5, 6, 7. Madison
himself described protections for the jury trial right as
among “the most valuable” that appear in “the whole list”
of amendments he produced. 1 Annals of Cong. 755 (1789).
   The Sixth Amendment promises that “[i]n all criminal
prosecutions the accused” has “the right to a speedy and
public trial, by an impartial jury.” Inhering in that guaran-
tee is an assurance that a guilty verdict will issue only from
a unanimous jury. Ramos v. Louisiana, 

(2020). The Fifth Amendment further promises that the
government may not deprive individuals of their liberty
without “due process of law.” It is a promise that safe-
                 Cite as: 

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                     Opinion of the Court

guards for criminal defendants those procedural protec-
tions well established at common law, including the “an-
cient rule” that the government must prove to a jury every
one of its charges beyond a reasonable doubt. United States
v. Haymond, 

 (2019) (plurality opinion);
see Apprendi v. New Jersey, 

, 477–478 (2000);
United States v. Gaudin, 

 (1995); Sullivan
v. Louisiana, 

, 277–278 (1993).
   The Fifth and Sixth Amendments placed the jury at the
heart of our criminal justice system. From the start, those
provisions were understood to require the government to
include in its criminal charges “ ‘all the facts and circum-
stances which constitute the offence.’ ” Apprendi, 

 (quoting J. Archbold, Pleading and Evidence in
Criminal Cases 44 (15th ed. 1862)). Should an “indictment
or ‘accusation . . . lack any particular fact which the laws
ma[d]e essential to the punishment,’ it was treated as ‘no
accusation’ at all.” Haymond, 

 (quoting 1
J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872) (some
alterations omitted)). And at all times the “ ‘truth of every
accusation’ ” against a defendant had to be “ ‘confirmed by
the unanimous suffrage of twelve of [his] equals and neigh-
bours.’ ” Apprendi, 

 (quoting 4 W. Black-
stone, Commentaries on the Laws of England 343 (1769);
emphasis deleted).
   Equally, the Fifth and Sixth Amendments sought to en-
sure that a judge’s power to punish would “deriv[e] wholly”
from, and remain always “control[led]” by, the jury and its
verdict. Blakely v. Washington, 

 (2004).
Ordinarily, common-law crimes carried “specific sanctions,
and ‘[o]nce the facts of the offense were determined by the
jury, the judge was meant simply to impose the prescribed
sentence.’ ” Haymond, 

 (quoting Alleyne v.
United States, 

 (2013) (plurality opinion)).
Even when it came to early American statutes that gave
judges a measure of discretion in selecting among possible
8               ERLINGER v. UNITED STATES

                      Opinion of the Court

sentences, “the ranges themselves were linked to particular
facts” found by the jury. Alleyne, 

 (collect-
ing examples). All of which guaranteed that a judge could
not “ ‘swell the penalty above what the law . . . provided for
the acts’ ” found by a jury of the defendant’s peers. Hay-
mond, 

 (quoting Apprendi, 

(THOMAS, J., concurring)).
   These principles represent not “procedural formalit[ies]”
but “fundamental reservation[s] of power” to the American
people. Blakely, 542 U. S., at 305–306. By requiring the
Executive Branch to prove its charges to a unanimous jury
beyond a reasonable doubt, the Fifth and Sixth Amend-
ments seek to mitigate the risk of prosecutorial overreach
and misconduct, including the pursuit of “pretended of-
fenses” and “arbitrary convictions.” The Federalist No. 83,
p. 499 (C. Rossiter ed. 1961); accord, Federal Farmer, Letter
XV (Jan. 18, 1788), reprinted in 2 The Complete Anti-Feder-
alist 320 (H. Storing ed. 1981). By requiring a unanimous
jury to find every fact essential to an offender’s punishment,
those amendments similarly seek to constrain the Judicial
Branch, ensuring that the punishments courts issue are not
the result of a judicial “inquisition” but are premised on
laws adopted by the people’s elected representatives and
facts found by members of the community. Blakely, 

; Haymond, 588 U. S., at 640–641. Both of
these checks on governmental power, the framers appreci-
ated, were “anchor[s]” essential to prevent a slide back to-
ward regimes like the vice-admiralty courts they so des-
pised. Letter from T. Jefferson to T. Paine (July 11, 1789),
reprinted in 15 Papers of Thomas Jefferson 266, 269 (J.
Boyd ed. 1958).
   With the passage of time, and accelerating in earnest in
the 20th century, various governments in this country
sought to experiment with new trial and sentencing prac-
tices. See Mistretta v. United States, 

, 363–
367 (1989); Williams v. New York, 

, 247–248
                  Cite as: 

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                      Opinion of the Court

(1949); see also P. Tappan, Sentencing Under the Model Pe-
nal Code, 23 Law & Contemp. Prob. 528, 529–532 (1958).
But in case after case, this Court has cautioned that, while
some experiments may be tolerable, all must remain within
the Fifth and Sixth Amendments’ guardrails.
   So, for example, in Apprendi this Court faced a case in-
volving a New Jersey offense that ordinarily carried a max-
imum sentence of 10 years in prison. 

. The
State, however, had adopted a novel “sentencing enhance-
ment” that purported to allow a judge to impose an even
longer term of imprisonment after finding, by a preponder-
ance of the evidence, that the offender’s crime was moti-
vated by racial bias. 

 at 468–471. Relying on that stat-
utory authority, the sentencing judge ordered the
defendant to serve 12 years in prison. 

. This
Court found the sentence unconstitutional, and did so for a
by-now familiar reason: Only a jury may find “ ‘facts that
increase the prescribed range of penalties to which a crimi-
nal defendant is exposed.’ ” 

.
   It is a principle we have since reiterated in response to a
variety of other recent sentencing innovations. See Hay-
mond, 

 (collecting cases). And it is a prin-
ciple, we have observed, that does not just apply when a
judge seeks to issue a sentence that exceeds the maximum
penalty authorized by a jury’s findings (or a guilty plea). It
is a principle that also applies when a judge seeks to in-
crease a defendant’s minimum punishment. Alleyne illus-
trates the point. There, we confronted a case in which a
jury had convicted the defendant of a crime that usually
carried a sentence of between five years and life in prison.
570 U. S., at 103–104. But a separate statutory “sentencing
enhancement” ostensibly allowed the judge to transform
that 5-year minimum sentence into a 7-year minimum sen-
tence if he found a certain additional fact by a preponder-
ance of the evidence. 

 That innovation, too, the Court
held, improperly invaded the jury’s province because “[a]
10              ERLINGER v. UNITED STATES

                     Opinion of the Court

fact that increases” a defendant’s exposure to punishment,
whether by triggering a higher maximum or minimum sen-
tence, must “be submitted to a jury” and found unanimously
and beyond a reasonable doubt. 

 at 111–113.
   The principles Apprendi and Alleyne discussed are so
firmly entrenched that we have now overruled several deci-
sions inconsistent with them. See, e.g., Hurst v. Florida,

, 101–102 (2016) (overruling Hildwin v. Flor-
ida, 

 (1989) (per curiam), and Spaziano v. Flor-
ida, 

 (1984)); Alleyne, 

 (over-
ruling Harris v. United States, 

 (2002)); Ring
v. Arizona, 

 (2002) (overruling Walton v.
Arizona, 

 (1990)).
                             B
   Commendably, the government concedes before us, as it
did before the court of appeals, what all this means for Mr.
Erlinger’s case and others like it. Under §922(g), Mr. Er-
linger faced between 0 and 10 years in prison. §924(a)(2)
(2012 ed.). To trigger ACCA and expose him to longer
prison terms, the government had to prove that his past in-
cluded three convictions for “violent felon[ies]” or “serious
drug offense[s]” that were “committed on occasions differ-
ent from one another.” §924(e)(1). And under Wooden, de-
ciding whether those past offenses occurred on three or
more different occasions is a fact-laden task. Were the
crimes “committed close in time”? 

. How
about the “[p]roximity” of their “location[s]”? 

 Were
the offenses “similar or intertwined” in purpose and char-
acter? 

 All these questions, Wooden observed, “may be
relevant” to determining whether the offenses were com-
mitted on one occasion or separate ones—and all require
facts to be found before ACCA’s more punitive mandatory
minimum sentence may be lawfully deployed. 

   As the government recognizes, there is no doubt what the
Constitution requires in these circumstances: Virtually
                  Cite as: 

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                      Opinion of the Court

“any fact” that “ ‘increase[s] the prescribed range of penal-
ties to which a criminal defendant is exposed’ ” must be re-
solved by a unanimous jury beyond a reasonable doubt (or
freely admitted in a guilty plea). Apprendi, 

; see Brief for United States 9. Judges may not assume
the jury’s factfinding function for themselves, let alone pur-
port to perform it using a mere preponderance-of-the-evidence
standard. To hold otherwise might not portend a revival of
the vice-admiralty courts the framers so feared. See Part
II–A, supra. But all the same, it would intrude on a power
the Fifth and Sixth Amendments reserve to the American
people.
   Really, this case is as nearly on all fours with Apprendi
and Alleyne as any we might imagine. In Apprendi, a judge
relied on his own factual findings under a preponderance-
of-the-evidence standard to increase the defendant’s maxi-
mum sentence from 10 to 20 years. 

. In
Alleyne, a judge proceeded the same way to increase the de-
fendant’s minimum sentence from five to seven years. 

. Here, the sentencing court’s factual finding
that Mr. Erlinger’s offenses occurred on at least three sep-
arate occasions had the effect of increasing both the maxi-
mum and minimum sentences he faced. Rather than a
maximum sentence of 10 years in prison, the judge’s finding
left Mr. Erlinger exposed to life in prison. Rather than a
minimum penalty of no prison time, the judge’s finding
meant Mr. Erlinger had to serve at least 15 years.
   While recognizing Mr. Erlinger was entitled to have a
jury resolve ACCA’s occasions inquiry unanimously and be-
yond a reasonable doubt, we decide no more than that. For
purposes of the proceedings before us, the parties take as
given that Mr. Erlinger committed four burglaries and that
each qualifies as a “violent offense” under ACCA. But they
disagree vigorously about whether those burglaries took
place on at least three different occasions (so that ACCA’s
12                  ERLINGER v. UNITED STATES

                           Opinion of the Court

enhanced sentences would apply) or during a single crimi-
nal episode (so that they would not). Presented with evi-
dence about the times, locations, purpose, and character of
those crimes, a jury might have concluded that some or all
occurred on different occasions. Or it might not have done
so. All we can say for certain is that the sentencing court
erred in taking that decision from a jury of Mr. Erlinger’s
peers.1

——————
   1 JUSTICE JACKSON pursues an argument neither the government nor

amicus nor the principal dissent attempts. She says Apprendi v. New
Jersey, 

 (2000), “was wrongly decided,” and all but calls on
the Court to overturn our many precedents applying it, post, at 1, and
n. 1, 10–18. But rather than meaningfully engage with the Constitution,
its original meaning and history, or our precedents, JUSTICE JACKSON
would abandon “constitutional theory” and appeal to a different author-
ity. Post, at 27. “In my view,” post, at 20, JUSTICE JACKSON contends,
juries cannot “deal with the fine-grained, nuanced determinations . . .
that are necessary to fairly adjudicate factual questions like the one that
ACCA’s occasions inquiry raises,” post, at 23. But the Constitution does
not take such a dim view about the capacity of jurors or the rigors of trial.
Surely, too, juries are no less capable than judges to decide whether three
past events happened on three separate occasions. Day in and day out,
using everyday trial procedures, juries decide exponentially more com-
plex questions than that. Nor, of course, does Apprendi prohibit legisla-
tures from enacting reforms authorizing judges to lower sentences based
on their own factfinding. See, e.g., First Step Act of 2018, Pub. L. 115–
391, 

; 

(f ) (doing just that). The only thing
judges may not do consistent with Apprendi is increase a defendant’s ex-
posure to punishment based on their own factfinding. All of which leaves
JUSTICE JACKSON with her real complaint: In her view, it is “wildly inef-
ficient” to require the government to call witnesses and present evi-
dence—which is to say prove its case—when a judge might more easily
enhance a defendant’s exposure to punishment by consulting “some-
times-decades-old,” post, at 23, and error-prone court records, infra, at
17–19. But does JUSTICE JACKSON really think it too much to ask the
government to prove its case (as it concedes it must) with reliable evi-
dence before seeking enhanced punishments under a statute like ACCA
when the “practical realit[y]” for defendants like Mr. Erlinger is exposure
to an additional decade (or more) in prison? Post, at 27. JUSTICE JACKSON
may view juries as “roadblocks” to higher punishments. Post, at 18. But
                      Cite as: 

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                          Opinion of the Court

                             III
                              A
   The Court-appointed amicus resists the conclusion we
reach. Unlike JUSTICE JACKSON, see n. 1, supra, however,
amicus does not dispute the Constitution’s time-honored
guarantee that a unanimous jury ordinarily must find be-
yond a reasonable doubt any fact that increases a de-
fendant’s exposure to punishment. See Brief for Court-
Appointed Amicus Curiae 1. In defending the decision
below, amicus relies instead on an exception to that rule
this Court announced in Almendarez-Torres v. United
States, 

 (1998). On amicus’s telling, that ex-
ception permits a judge to find perhaps any fact related to
a defendant’s past offenses, including whether he commit-
ted them on different occasions. Brief for Court-Appointed
Amicus Curiae 10. The principal dissent presses the same
line of argument. Post, at 5 (opinion of KAVANAUGH, J.).
   We disagree. In Almendarez-Torres, the Court consid-
ered sentencing laws applicable to aliens who returned to
the United States after a previous removal. The default
sentencing range was up to two years of imprisonment. 

(a) (1994 ed.). But a finding that the govern-
ment previously removed the alien after a “conviction for
commission of an aggravated felony” triggered a new maxi-
mum penalty of up to 20 years in prison. §1326(b) (1994
ed.). In Almendarez-Torres, the Court permitted a judge to
undertake the job of finding the fact of a prior conviction—
and that job alone. 523 U. S., at 246–247.
   Almost immediately, too, the decision came under scru-
tiny. Jones, 

. The Court has since
described Almendarez-Torres as “at best an exceptional de-
parture” from “historic practice.” Apprendi, 

. That decision, we have said, parted ways from the
——————
“[t]he bottom line is this”: the people ratified the Fifth and Sixth Amend-
ments, not any of our personal views. Post, at 27.
14                 ERLINGER v. UNITED STATES

                          Opinion of the Court

“uniform course of decision during the entire history of our
jurisprudence.” 

. It was “arguabl[y] . . . incor-
rec[t].” 

. And it amounted to an “unusual . . .
exception to the Sixth Amendment rule in criminal cases
that ‘any fact that increases the penalty for a crime’ must
be proved to a jury.” Pereida v. Wilkinson, 

 (2021) (quoting Apprendi, 

).
   In separate opinions, a number of Justices have criticized
Almendarez-Torres further yet, and JUSTICE THOMAS,
whose vote was essential to the majority in that case, has
called for it to be overruled. See, e.g., Mathis v. United
States, 

 (2016) (THOMAS, J., concurring);
Descamps v. United States, 

 (2013)
(THOMAS, J., concurring in judgment); Shepard v. United
States, 

 (2005) (THOMAS, J., concurring in
part and concurring in judgment); see also Jones, 526 U. S.,
at 252–253 (Stevens, J., concurring); Monge v. California,

 (1998) (Scalia, J., joined by Souter and
Ginsburg, JJ., dissenting).
   Still, no one in this case has asked us to revisit Almendarez-
Torres. Nor is there need to do so today. In the years since
that decision, this Court has expressly delimited its reach.
It persists as a “narrow exception” permitting judges to find
only “the fact of a prior conviction.” Alleyne, 

. Under that exception, a judge may “do no more,
consistent with the Sixth Amendment, than determine
what crime, with what elements, the defendant was con-
victed of.” Mathis, 579 U. S., at 511–512. We have reiter-
ated this limit on the scope of Almendarez-Torres “over and
over,” to the point of “downright tedium.” 

.2 And so understood, Almendarez-Torres does nothing
——————
   2 See Pereida v. Wilkinson, 

 (2021); United States v.

Haymond, 

 (2019) (plurality opinion); Descamps
v. United States, 

 (2013); Cunningham v. California,

 (2007); Shepard v. United States, 

, 24
                     Cite as: 

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                          Opinion of the Court

to save the sentence in this case. To determine whether Mr.
Erlinger’s prior convictions triggered ACCA’s enhanced
penalties, the district court had to do more than identify his
previous convictions and the legal elements required to sus-
tain them. It had to find that those offenses occurred on at
least three separate occasions. And, in doing so, the court
did more than Almendarez-Torres allows.
                              B
  Perhaps, amicus replies, but perhaps not. If Almendarez-
Torres permits a judge to find “what crime, with what ele-
ments, the defendant was convicted of,” Mathis, 579 U. S.,
at 511–512, amicus reasons, that necessarily implies a
judge may also find the jurisdiction in which the underlying
offense occurred and the date it happened. Brief for Court-
Appointed Amicus Curiae 29. And, amicus continues, in at
least some (but admittedly not all) cases, knowing those
facts will make the occasions inquiry so “ ‘straightforward’ ”
that sending it to a jury would be pointlessly inefficient. 

at 39–40.
  Again, we disagree. To conduct the narrow inquiry
Almendarez-Torres authorizes, a court may need to know
the jurisdiction in which the defendant’s crime occurred
and its date in order to ascertain what legal elements the
government had to prove to secure a conviction in that place
at that time. And to answer those questions, a sentencing
court may sometimes consult “a restricted set of materials,”
often called Shepard documents, that include judicial rec-
ords, plea agreements, and colloquies between a judge and
——————
(2005) (plurality opinion); United States v. Booker, 

(2005); Blakely v. Washington, 

 (2004); Apprendi v.
New Jersey, 

 (2000). The principal dissent complains
that some of these decisions “did not involve recidivism” questions. Post,
at 7 (opinion of KAVANAUGH, J.). But surely our consistent explanations
of Almendarez-Torres’s reach cannot be so casually dismissed. Perhaps
especially when those explanations were repeated in multiple cases that
did “involve recidivism,” such as Shepard, Descamps, and Mathis.
16              ERLINGER v. UNITED STATES

                     Opinion of the Court

the defendant. Descamps, 

; see Shepard,
544 U. S., at 20–21, 26; Taylor v. United States, 

 (1990).
   None of that, however, means that a court may use Shep-
ard documents or any other materials for any other pur-
pose. To ensure compliance with the Fifth and Sixth
Amendments, a sentencing judge may use the information
he gleans from Shepard documents for the “limited func-
tion” of determining the fact of a prior conviction and the
then-existing elements of that offense. Descamps, 

. “[N]o more” is allowed. Mathis, 

. In particular, a judge may not use information in
Shepard documents to decide “what the defendant . . . actu-
ally d[id],” or the “means” or “manner” in which he commit-
ted his offense in order to increase the punishment to which
he might be exposed. 

, 510–511; see
Descamps, 

. To sanction that practice
would be to allow a sentencing court to do exactly what the
Fifth and Sixth Amendments forbid. 

   The sentencing court in this case disregarded these con-
straints. To determine what legal elements attached to Mr.
Erlinger’s decades-old offenses, the court might have
needed to consult Shepard documents to ascertain the ju-
risdiction in which they occurred and the date on which
they happened. But the court had no need or authority “to
go any further,” Mathis, 

, and assume for
itself the responsibility of deciding whether Mr. Erlinger’s
past offenses differed enough in time, location, character,
and purpose to have transpired on different occasions. Let
alone undertake that inquiry all with an eye toward in-
creasing his punishment. The Fifth and Sixth Amend-
ments “contemplat[e] that a jury—not a sentencing court—
will find such facts, unanimously and beyond a reasonable
                     Cite as: 

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                          Opinion of the Court

doubt.” Descamps, 

.3
   Other considerations fortify our conclusion. Often, as
amicus concedes, Shepard documents will not contain all
the information needed to conduct a sensible ACCA occa-
sions inquiry, such as the exact times and locations of the
defendant’s past crimes. Brief for Court-Appointed Amicus
Curiae 40. Even when Shepard documents do contain that
kind of granular information, more still may be required.
After all, this Court has held that no particular lapse of
time or distance between offenses automatically separates
a single occasion from distinct ones. Wooden, 595 U. S., at
369–370. Often, a qualitative assessment about “the char-
acter and relationship” of the offenses may be required. 

. So may an inquiry into whether the crimes shared
“a common scheme or purpose.” 

   Not only are Shepard documents of limited utility, they
can be “prone to error.” Mathis, 

; see also
Brief for National Association of Federal Defenders as Ami-
cus Curiae 8–15 (NAFD Brief ) (recounting examples of ma-
terial errors); post, at 25 (opinion of JACKSON, J.) (acknowl-
edging records are “imperfect” and may contain “material
gaps”). The risk of error may be especially grave when it
comes to facts recounted in Shepard documents on which
adversarial testing was “unnecessary” in the prior proceed-
ing. Mathis, 

. As we have recognized, “[a]t
trial, and still more at plea hearings, a defendant may have
——————
  3 The principal dissent dismisses our precedents restricting the mate-

rials and facts judges can consider on the ground that those decisions did
not “purpor[t] to articulate any Sixth Amendment holding.” Post, at 8
(opinion of KAVANAUGH, J.). But, as the government recognizes, this
Court did address the Sixth Amendment and “meant what it said.” See
Reply Brief for United States 7. As the Court has said before and we
hold again today: “[A] judge cannot go beyond identifying the crime of
conviction to explore the manner in which the defendant committed that
offense. . . . He can do no more, consistent with the Sixth Amendment,
than determine what crime, with what elements, the defendant was con-
victed of.” Mathis v. United States, 

, 511–512 (2016).
18              ERLINGER v. UNITED STATES

                     Opinion of the Court

no incentive to contest what does not matter” to his convic-
tion at the time. 

 He may even “ ‘have good reason not
to’ ” haggle over seemingly immaterial errors in his judicial
records. 

 (quoting Descamps, 

).
   Those realities counsel caution in the use of Shepard doc-
uments. At the time of his prior conviction, a defendant
might not have cared if a judicial record contained a mis-
take about, say, the time or location of his offense. Back
then, fine details like those might not have mattered a bit
to his guilt or innocence. Contesting them needlessly, too,
might have risked squandering the patience and good will
of a jury or the judge responsible for pronouncing a sen-
tence. Yet, years later and faced with an ACCA charge,
those kinds of details can carry with them life-altering con-
sequences. For Mr. Erlinger, they may mean perhaps 10
more years in prison. As a matter of fair notice alone, old
recorded details, prone to error, sometimes untested, often
inessential, and the consequences of which a defendant may
not have appreciated at the time, “should not come back to
haunt [him] many years down the road by triggering a
lengthy mandatory sentence.” 

; see also
Jones, 

.
   We do not question amicus’s assessment that in many
cases the occasions inquiry will be “ ‘straightforward.’ ”
Brief for Court-Appointed Amicus Curiae 39. Often, a de-
fendant’s past offenses will be different enough and sepa-
rated by enough time and space that there is little question
he committed them on separate occasions. But none of that
means a judge rather than a jury should make the call.
There is no efficiency exception to the Fifth and Sixth
Amendments. In a free society respectful of the individual,
a criminal defendant enjoys the right to hold the govern-
ment to the burden of proving its case beyond a reasonable
doubt to a unanimous jury of his peers “ ‘regardless of how
overwhelmin[g]’ ” the evidence may seem to a judge. Rose
                      Cite as: 

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                           Opinion of the Court

v. Clark, 

 (1986).4
                              C
  Amicus next asks us to turn from doctrine to history.
While our precedents have consistently read Almendarez-
Torres as permitting a judge to find only the fact of a prior
conviction and the elements required to sustain it, he in-
sists our precedents are mistaken. Properly understood, he
submits, the Fifth and Sixth Amendments’ original mean-
ing and “deep” common-law traditions authorize judges at
sentencing to find all manner of facts about an offender’s
past crimes. Brief for Court-Appointed Amicus Curiae 7.
  We have been down this road before. In Apprendi, the
Court carefully studied the original meaning of the Fifth
and Sixth Amendments and found that almost “any fact
that increases the penalty for a crime beyond the prescribed


——————
   4 The principal dissent stresses that, despite our repeated admonitions

about the limitations associated with the use of Shepard materials, “all
12 Courts of Appeals” have permitted judges to use them to resolve the
occasions inquiry. Post, at 6 (opinion of KAVANAUGH, J.). But most of the
decisions the dissent cites issued before Wooden’s clarification about the
nature of the occasions inquiry, a clarification even the government now
recognizes means a jury is required. And to the extent some lower courts
have continued to allow judges to resolve occasions inquiries even after
Wooden v. United States, 

 (2022), it seems confusion about
Almendarez-Torres has played a role in their misapprehension about
what the Constitution requires. See, e.g., United States v. Stowell, 

 (CA8 2023) (en banc) (Erickson, J., dissenting) (criticizing
the majority for treating as “a foregone conclusion” that a judge may con-
tinue to find facts not proved to the jury to decide the occasions inquiry);
United States v. Brown, 

, 301–302 (CA4 2023) (statement
of Heytens, J.) (noting the “uncertain scope of Almendarez-Torres”); 

 (Niemeyer, J., concurring in part) (conceding “different ap-
proach[es]” exist “as to the scope of Almendarez-Torres”); 

(Wynn, J., dissenting from denial of rehearing en banc) (questioning “the
continuing viability of Almendarez-Torres”); see also United States v.
Dudley, 

 (CA11 2021) (Newsom, J., concurring in part
and dissenting in part).
20              ERLINGER v. UNITED STATES

                      Opinion of the Court

statutory maximum” was understood at the time of the Na-
tion’s founding to be a fact a jury must find. 

; see also 

 at 499–512 (THOMAS, J., concurring). In
the years since, we have come to the same conclusion in one
decision after another. See, e.g., Mathis, 

;
supra, at 10 (collecting cases).
   To reconsider all those precedents now would require, at
the least, proof “convincing indeed.” Gaudin, 

. Yet amicus offers nothing like that. He points to the
“supplemental-information” procedures a few States em-
ployed “in the early 19th century.” Brief for Court-Appointed
Amicus Curiae 15. Those procedures allowed prosecutors
seeking enhanced penalties premised on a defendant’s past
convictions to charge them in “a supplemental, post-conviction
information,” rather than in “a pre-conviction indictment.”

 And, amicus stresses, this Court upheld one State’s
supplemental-information scheme in Graham v. West Vir-
ginia, 

 (1912). The principal dissent echoes
the same points. Post, at 14–16 (opinion of KAVANAUGH,
J.).
   But, if anything, the evidence amicus cites does more to
hurt than help his cause. For one thing, a sentencing pro-
cedure followed by a few States hardly represents “convinc-
ing” proof that our precedents have mistaken the original
meaning of the Fifth and Sixth Amendments. Gaudin, 

; see 

. For another, when this Court
upheld one of these supplemental-information schemes in
Graham, it stressed that, under the law’s terms, even “the
fact of former conviction” had to be “charged” by prosecutors
and then “determined by a jury in a proceeding thereby in-
stituted.” 

. Put those points together and
amicus’s evidence provides perhaps more reason to ques-
tion Almendarez-Torres’s narrow exception than to expand
                      Cite as: 

 (2024)                    21

                          Opinion of the Court

it.5
   Reaching for another tradition, amicus (but not the prin-
cipal dissent) turns to the Constitution’s Double Jeopardy
Clause. That Clause, amicus observes, permits a judge to
ask whether the government has charged a defendant for
the same crime a second time. From this, he suggests, it
must be that a judge can also look into the defendant’s past
conduct to increase his sentence. Brief for Court-Appointed
Amicus Curiae 25–26. But that, too, does not follow. The
Double Jeopardy Clause protects a defendant by prohibit-
ing a judge from even empaneling a jury when the defend-
ant has already faced trial on the charged crime. See, e.g.,
Green v. United States, 

 (1957). The Fifth
and Sixth Amendments’ jury trial rights provide a defend-
ant with entirely complementary protections at a different
stage of the proceedings by ensuring that, once a jury is law-
fully empaneled, the government must prove beyond a rea-
sonable doubt to a unanimous jury the facts necessary to
sustain the punishment it seeks.
   Finally, amicus (rejoined now by the principal dissent,
see post, at 15–18 (opinion of KAVANAUGH, J.)) directs us to
case law and statutes in four other States—South Carolina,
Louisiana, Alabama, and Kansas. After the Constitution’s

——————
  5 Amicus emphasizes that supplemental-information procedures be-

came more “widely adopted” in the 1920s after Graham. Brief for Court-
Appointed Amicus Curiae 16. But, since Apprendi, this Court has in-
sisted on “remain[ing] true” to the Fifth and Sixth Amendment’s original
meaning and protecting the rights they secure against “ ‘erosion.’ ” 

. Accordingly, relatively modern innovations move us little,
for they might just as well represent departures from the Constitution’s
historic protections as evidence of them. Ibid.; accord, Gaudin, 515 U. S.,
at 518–519. Nor, for that matter, does looking to more modern times do
much to help amicus. He does not dispute that, even as late as 1965,
juries usually still had to find facts about prior convictions, whether un-
der supplemental-information regimes or more traditional ones. See Ap-
prendi, 

; Almendarez-Torres v. United States, 

 (1998) (Scalia, J., dissenting).
22                 ERLINGER v. UNITED STATES

                          Opinion of the Court

adoption, amicus suggests, each of these States left “a wide
range of recidivism-related issues” for judges, rather than
juries, to resolve. Brief for Court-Appointed Amicus Curiae
18.
   But what does this prove? Here again, amicus points to
procedures in less than a handful of States. That is not the
kind of “uniform postratification practice” that can some-
times “shed light upon the meaning” of the Constitution.
Gaudin, 

. Nor, again, do these practices
prove much even taken on their own terms. Some of these
States permitted a judge to make “sequencing” determina-
tions—deciding, for example, whether the present offense
was the defendant’s “ ‘second or subsequent’ ” offense. Brief
for Court-Appointed Amicus Curiae 14, and n. 1, 18–19.6
Some allowed a judge to find whether the defendant had
successfully overturned a prior conviction on appeal or se-
cured a pardon. 

 at 19–20, and n. 4.7 Some authorized
a judge to find whether a defendant’s current offense and
past crime occurred within a specified period of time. Id.,
at 19.8 All told, amicus’s evidence may suggest that in a
small number of jurisdictions judges could find the exist-
ence, number, and dates of a defendant’s prior convictions.
But none of this provides a persuasive basis for revisiting
our many precedents prohibiting judges from doing more.
Let alone prove “ ‘a longstanding tradition’ ” in this Nation
allowing a judge to find any fact regarding a defendant’s
“recidivis[m].” Post, at 5 (opinion of KAVANAUGH, J.).
   For that matter, it is not clear whether these four States

——————
   6 See H. Toulmin, Digest of the Laws of the State of Alabama 209

(1823); Ala. Penal Code §73 (1866); 1859 Kan. Sess. Laws pp. 283–284;
1868 Kan. Sess. Laws pp. 380–381; 6 D. McCord, Statutes at Large of
South Carolina 413 (1839); State v. Smith, 

 (SC 1832); U. Phil-
lips, Revised Statutes of Louisiana 155 (1856); 1870 La. Acts p. 206, §4.
   7 See 1840 Ala. Sess. Laws 153; 1868 Kan. Sess. Laws pp. 380–381;

State v. Hudson, 

 (1880).
   8 Toulmin, Digest of the Laws of the State of Alabama, at 377.
                 Cite as: 

 (2024)           23

                     Opinion of the Court

always allowed judges to find even the fact of a defendant’s
prior conviction. Take South Carolina. In State v. Smith,

 (SC 1832), the court seemed to hold that the
government did not have to allege in its indictment that the
defendant had been previously convicted “for the crime of
horse stealing” because that was a question for “the Court,”

 at 460–461. But, as another State’s supreme court rec-
ognized, in so holding Smith may have gone “too far.” State
v. Burgett, 

 (1860). It is unclear, too,
whether Smith even accurately reflected South Carolina’s
customary practice. Apprendi, 

(THOMAS, J., concurring). Similar problems attend ami-
cus’s reliance on historic Louisiana practices. In State v.
Hudson, 

 (1880), the Louisiana Supreme
Court held that a jury did not “ha[ve] to pass” upon the ex-
istence of “previous convictions.” 

. But Louisi-
ana “overruled” Hudson three decades later, calling it out
of step with “the common law” and “other jurisdictions.”
State v. Compagno, 

, 671–672, 

(1910). Later still, amicus contends, Louisiana revived
Hudson in State v. Guidry, 

, 

 (1929). See Brief for Court-Appointed Amicus Curiae
14. But however that may be, the historical practices in the
four States amicus highlights do not appear to have been
nearly as uniform or expansive as he supposes.
                               D
  Finally, amicus asks us to consider some practical prob-
lems. Most especially, he argues that leaving the occasions
inquiry to juries would do more to prejudice than protect
defendants. 

 at 41–47. It would because requiring pros-
ecutors to prove that the defendant’s prior crimes took place
on distinct occasions would enable them “to regale juries
with the details” of the defendant’s past misconduct. Id., at
42; see also post, at 18–21 (opinion of KAVANAUGH, J.); post,
at 19–23 (opinion of JACKSON, J.).
24              ERLINGER v. UNITED STATES

                      Opinion of the Court

  But just as arguments from efficiency cannot alter the de-
mands of the Fifth and Sixth Amendments, neither may
that practical concern, “of which earlier courts were well
aware.” Apprendi, 

 (THOMAS, J., concur-
ring). It is hard not to wonder, too: Are we really to suppose
that the amici supporting Mr. Erlinger in this Court, in-
cluding the National Association of Criminal Defense Law-
yers and the National Association of Federal Defenders,
have been “somehow duped” into advocating for a rule that
would be “unfair to criminal defendants”? Blakely, 

; see also NAFD Brief 25; Brief for National As-
sociation of Criminal Defense Lawyers as Amicus Curiae
16–17.
  Of course not. As these groups stress, and the govern-
ment agrees, traditional tools exist to address the prejudi-
cial effect evidence about a defendant’s past crimes can
have on a jury. Most obviously, a court can bifurcate the
proceedings. In that “common,” Apprendi, 

 (THOMAS, J., concurring), and often “fairest” practice,
Spencer v. Texas, 

 (1967), a jury is first
tasked with assessing whether the government has proved
the elements of the §922(g) felon-in-possession charge.
Then, and only if it finds the defendant guilty, the jury
turns to consider evidence regarding whether the defend-
ant’s prior offenses occurred on different occasions for pur-
poses of applying ACCA’s mandatory minimum sentence
under §924(e). JUSTICE JACKSON expresses concern about
the “burdens” proceeding this way might impose. See post,
at 21. But by sequencing and separating the jury’s deter-
minations, a court decreases the likelihood that a jury will
be “ ‘overpersuade[d]’ ” by the defendant’s prior criminal
conduct. Post, at 22 (JACKSON, J., dissenting) (quoting Mi-
chelson v. United States, 

 (1948)).
  On this, all sides agree. The government reports that it
“generally agree[s] to bifurcation” in ACCA cases like this
one and that it has not “been able to anticipate as to why
                     Cite as: 

 (2024)                    25

                          Opinion of the Court

[it] wouldn’t agree to bifurcation.” Tr. of Oral Arg. 58–59.
Similarly, the National Association of Federal Defenders
reports that, “[t]o [its] knowledge, every jury trial but one
has been bifurcated when the jury was permitted to decide
both the §922(g) unlawful-firearm-possession question and
the §924(e) ‘occasions’ question.” NAFD Brief 26.9 States
that “have not already done so can likewise adjust to any
state-law implications of [our] straightforward application
of Apprendi to . . . ACCA’s different-occasions require-
ment.” Reply Brief 21; see also Spencer, 

(Warren, C. J., concurring and dissenting) (observing that,
whether or not required to do so, at the time most States
had adopted “procedures which postpone the introduction
of prior convictions until after the jury has found the de-
fendant guilty of the crime currently charged”).10

——————
  9 Of the trials where proceedings were bifurcated, the National Associ-

ation of Federal Defenders observes, some “have resulted in acquittal or
dismissal” at the first stage where prejudicial past conduct was omitted;
another has resulted in acquittal at the second stage after the jury found
the government had not carried its burden of showing the defendant’s
prior offenses were committed on separate occasions; three others “have
resulted in guilty verdicts” at both stages. NAFD Brief 21–22.
  10 Once more parting ways with the parties and defense bar amici,

JUSTICE JACKSON asserts that Apprendi’s rule confining judges at sen-
tencing to the facts found by the jury hurts defendants and makes “racial
disparities” in our criminal justice system “worse.” Post, at 16–17. As
we have seen, however, Apprendi allows judges to lower sentences based
on their own factual findings; it only prohibits judges from using their
own facts to increase a defendant’s exposure to punishment. See n. 1,
supra. As the defense bar amici are quick to point out, that helps de-
fendants. It seems, too, JUSTICE JACKSON has directed her fire at the
wrong target. The reports and law review article cited by JUSTICE
JACKSON attribute sentencing disparities to this Court’s remedial deci-
sion in United States v. Booker, 

, 245–246 (2005), as well as
various other factors: judges, “prosecutors, law enforcement officials,
probation officers . . . , overworked defense attorneys, and other actors
involved in maintaining the court system.” K. Klein & S. Klein, A Ra-
26                 ERLINGER v. UNITED STATES

                         Opinion of the Court

                                *
   The jury trial may have “never been efficient.” Apprendi,

 (Scalia, J., concurring). It may require
assembling a group of the defendant’s peers to resolve
unanimously even seemingly straightforward factual ques-
tions under a daunting reasonable doubt standard. Avoid-
ing the prejudice associated with the introduction of evi-
dence of past crimes may require careful attention, too. But
the right to a jury trial “has always been” an important part
of what keeps this Nation “free.” 

 Because the Fifth
and Sixth Amendments do not tolerate the denial of that
right in this case, the judgment of the Court of Appeals for
the Seventh Circuit is vacated, and the matter is remanded
for further proceedings consistent with this opinion.

                                                     It is so ordered.




——————
cially Biased Obstacle Course: Apprendi Transformed the Federal Sen-
tencing Guidelines into a Series of Judicial Obstacles; Can Shame Re-
duce the Racial Disparities?, 99 N. C. L. Rev. 1391, 1405, 1423 (2021).
And, unlike JUSTICE JACKSON, the authors of the very article she cites
“celebrate Apprendi” because, in their view, it “unequivocally” gives a
“bargaining chip” to defendants to seek more favorable plea offers. Id.,
at 1399, and n. 33; see Blakely, 542 U. S., at 311–313.
                 Cite as: 

 (2024)            1

                   ROBERTS, C. J., concurring

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 23–370
                         _________________


 PAUL ERLINGER, PETITIONER v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE SEVENTH CIRCUIT
                        [June 21, 2024]

  CHIEF JUSTICE ROBERTS, concurring.
  I join the opinion of the Court because I agree that under
the Fifth and Sixth Amendments, a defendant is entitled to
have a jury determine beyond a reasonable doubt whether
his predicate offenses were committed on different occa-
sions for purposes of the Armed Career Criminal Act. But
as JUSTICE KAVANAUGH explains, violations of that right
are subject to harmless error review. See post, at 9–11 (dis-
senting opinion). The Seventh Circuit should thus consider
on remand the Government’s contention that the error here
was harmless.
                  Cite as: 

 (2024)            1

                     THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES
                          _________________

                           No. 23–370
                          _________________


 PAUL ERLINGER, PETITIONER v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE SEVENTH CIRCUIT
                         [June 21, 2024]

   JUSTICE THOMAS, concurring.
   I join the Court’s opinion in full because it correctly
applies our precedents. The fact that a defendant’s prior
qualifying offenses occurred on “occasions different from
one another” results in an increased punishment under the
Armed Career Criminal Act. 

(e)(1). The
Sixth Amendment therefore gives criminal defendants the
right to have a jury find that fact. See Apprendi v. New
Jersey, 

 (2000) (THOMAS, J., concurring)
(“[A] ‘crime’ includes every fact that is by law a basis for
imposing or increasing punishment” (emphasis added)).
   In Almendarez-Torres v. United States, 

(1998), the Court created a “narrow exception” to the Sixth
Amendment’s general rule and allowed a judge to find “the
fact of a prior conviction,” even though that fact increases a
defendant’s punishment, Alleyne v. United States, 

 (2013). In this case, the Court acknowledges
the sharp conflict between Almendarez-Torres and the
Sixth Amendment. Ante, at 13–14. And, it properly de-
clines to extend that dubious exception to the different-oc-
casions inquiry under §924(e)(1). Ante, at 13–19.
   I continue to adhere to my view that we should revisit
Almendarez-Torres and correct the “error to which I suc-
cumbed” by joining that decision. Apprendi, 

 (opinion of THOMAS, J.); see also Sessions v. Dimaya,

 (2018) (THOMAS, J., dissenting); Mathis
2               ERLINGER v. UNITED STATES

                    THOMAS, J., concurring

v. United States, 

 (2016) (THOMAS, J., con-
curring); Descamps v. United States, 

, 280–281
(2013) (THOMAS, J., concurring in judgment); Rangel-Reyes
v. United States, 

 (2006) (THOMAS, J.,
dissenting from denial of certiorari); Shepard v. United
States, 

, 27–28 (2005) (THOMAS, J., concurring
in part and concurring in judgment). We need not overrule
Almendarez-Torres to rule in Erlinger’s favor, and he did
not ask us to reconsider the decision—although he agrees
that it should be overruled. Tr. of Oral Arg. 5. But, we have
no shortage of other cases. Each Term, criminal defendants
file a flood of petitions “specifically presenting this Court
with opportunities to reconsider Almendarez-Torres.”
Rangel-Reyes, 

 (opinion of THOMAS, J.).
Today’s decision demonstrates further that “[i]t is time for
this Court to do its part” by granting one of those many pe-
titions and overruling Almendarez-Torres. Rangel-Reyes,

.
                 Cite as: 

 (2024)            1

                   KAVANAUGH, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 23–370
                         _________________


 PAUL ERLINGER, PETITIONER v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE SEVENTH CIRCUIT
                        [June 21, 2024]

   JUSTICE KAVANAUGH, with whom JUSTICE ALITO joins,
and with whom JUSTICE JACKSON joins except as to Part
III, dissenting.
   To prevent and punish violent crime committed with
firearms, Congress has enacted numerous federal laws—
most notably the National Firearms Act of 1934, the Gun
Control Act of 1968, and the Armed Career Criminal Act of
1984. This case concerns the Armed Career Criminal Act.
   As relevant here, ACCA imposes a minimum sentence on
a defendant who previously was convicted of at least three
violent felonies committed on different occasions—and who
then, after the three prior violent felony convictions,
unlawfully possessed a firearm. In applying ACCA’s
minimum sentencing requirement, the Sixth Amendment
allows a judge to determine whether the defendant has
three or more prior convictions and whether those
convictions were for violent felonies. The question in this
case is whether the judge may also determine whether the
defendant committed those prior crimes on different
occasions, or instead whether a jury must do so.
   In my view, this Court’s precedents establish that a judge
may make the different-occasions determination. Because
the Court today concludes that only a jury may make the
different-occasions determination, I respectfully dissent.
2               ERLINGER v. UNITED STATES

                   KAVANAUGH, J., dissenting

                                I
   Paul Erlinger has been convicted of at least 9 felonies,
including at least 7 burglaries. Under federal law, he
therefore may not possess a firearm. See 

(g)(1). As a multiple-time convicted felon, Erlinger
would have received repeated notice that he could not
legally possess any firearms. Yet in 2017, the police
received a tip that Erlinger had recently violated that
federal law and purchased a gun. Pursuant to a search
warrant, officers searched his home and found 20 guns—16
long guns and 4 handguns—and ammunition to go with
them. Erlinger pled guilty to possessing a firearm as a
felon, in violation of §922(g).
   At sentencing, the Government argued that the Armed
Career Criminal Act mandated a minimum prison sentence
because Erlinger had previously been convicted of at least
three violent felonies committed on different occasions. The
Government presented the charging documents and plea
agreement for three offenses that Erlinger committed in
1991: (i) an April 4 burglary of a pizza restaurant; (ii) an
April 8 burglary of a sporting-goods store; and (iii) an April
11 burglary of another restaurant. The U. S. District Court
for the Southern District of Indiana determined that
Erlinger had been convicted of each of those burglaries, and
that those offenses qualified as violent felonies. Erlinger
did not question the judge’s authority to make those
determinations. The District Court then concluded that
Erlinger committed the three burglaries on “occasions
different from one another.” §924(e)(1).
   On appeal, despite accepting the District Court’s
authority to determine whether he was convicted of the
three prior violent felonies, Erlinger argued that the Sixth
Amendment required a jury, not a judge, to determine
whether he committed the felonies on different occasions.
That was not a promising argument. Like all 11 other
Courts of Appeals that handle federal criminal cases, the
                  Cite as: 

 (2024)            3

                   KAVANAUGH, J., dissenting

U. S. Court of Appeals for the Seventh Circuit had
previously ruled that a judge may determine whether a
defendant’s prior felonies were committed on different
occasions. Adhering to that Circuit precedent, the Seventh
Circuit therefore rejected Erlinger’s argument. 

, 621–622 (2023) (citing United States v. Elliott, 

 (2012)).
  The Court today, however, rejects the unanimous
conclusion of the 12 Courts of Appeals. The Court holds
that a jury must determine whether a defendant committed
his prior felonies on different occasions. I respectfully
disagree.
                               II
   The Sixth Amendment guarantees criminal defendants
the right to a “trial” by an “impartial jury.” Relying on text
and history, this Court’s precedents have interpreted the
Sixth Amendment to draw a clear line between (i) the facts
about the present crime that a jury must decide at trial and
(ii) the facts about past crimes that a judge may determine
at sentencing.
   In a series of cases that began with Apprendi v. New
Jersey, the Court has held that a jury must find facts about
a defendant’s present offense that alter the crime’s
maximum or minimum possible sentence. 

 (2000). But Apprendi and this Court’s subsequent
cases have not disturbed the longstanding sentencing rule
that this Court recognized two years earlier in Almendarez-
Torres v. United States: Judges may resolve questions
about a defendant’s past crimes—questions of recidivism—
that are relevant not to the defendant’s guilt for the present
offense but rather to the length of the defendant’s sentence.

 (1998).
4               ERLINGER v. UNITED STATES

                   KAVANAUGH, J., dissenting

                               A
   This Court’s opinion in Almendarez-Torres resolves the
question of whether a judge may decide if the defendant
committed his prior violent offenses on different occasions.
In that case, the Court squarely held that either a judge or
a jury may apply sentence enhancements based on
“recidivism.” 

.
   Almendarez-Torres involved a statute that made it a
crime for a deported noncitizen to illegally reenter the
United States. 

. The maximum sentence for that
crime was 2 years. 

 But if the noncitizen had been
convicted of certain aggravated felonies before he was
deported, the maximum sentence for illegal reentry
increased to 20 years. 

   Almendarez-Torres argued that the Constitution
required “Congress to treat recidivism as an element of the
offense.” 

. If so, the Government would have to
prove to a jury beyond a reasonable doubt that Almendarez-
Torres had been convicted of an aggravated felony before
his deportation. 

 This Court rejected that argument.

. Recidivism, the Court stated, “is a traditional,
if not the most traditional, basis for a sentencing court’s
increasing an offender’s sentence.” 

. It is not an
element of the present crime of illegal reentry. 

;
see also Jones v. United States, 

 (1999);
Graham v. West Virginia, 

 (1912).
   The Court explained that the Federal and State
Governments have long taken different approaches to
applying      recidivism       sentencing    enhancements.
Almendarez-Torres, 

. Some provide a jury
trial. 

 Others assign recidivism enhancements to the
sentencing judge. 

   Given the absence of any “uniform” “tradition,” the Court
concluded that the choice between those methods was left
to the Legislature, not governed by “a federal constitutional
guarantee.” 

 at 246–247. To hold “that the Constitution
                 Cite as: 

 (2024)            5

                   KAVANAUGH, J., dissenting

requires that recidivism be deemed an ‘element’ of
petitioner’s offense would mark an abrupt departure from
a longstanding tradition” where a judge or a jury could
determine that a defendant is a recidivist. 

.
   Importantly, that tradition of allowing judges to apply
recidivism sentencing enhancements developed so as to
avoid significant prejudice to criminal defendants. If the
jury had to determine recidivism, the jury would hear
highly prejudicial evidence about a defendant’s past
criminal offenses at the trial for the present crime. 

.
  In short, in Almendarez-Torres the Court held that the
Legislature can decide how it wants recidivism
enhancements to be applied—by a judge or by a jury. 

at 246–247.
  ACCA mandates a minimum sentence if the defendant
had three prior convictions for violent felonies committed
on different occasions. Erlinger does not dispute that
Almendarez-Torres allows a judge to determine whether
Erlinger had three prior convictions for violent felonies.
The narrow question here is whether Almendarez-Torres
also allows a judge to determine whether Erlinger’s three
prior offenses were committed on different occasions.
  I would conclude that Almendarez-Torres also applies to
the different-occasions inquiry. Under Almendarez-Torres,
legislatures may assign to judges the task of finding facts
related to a defendant’s past crimes—that is, to his
“recidivism.” 

. That principle encompasses the
different-occasions inquiry.
  After all, the enhancement in Almendarez-Torres applied
when “the defendant was previously deported subsequent
to a conviction for commission of an aggravated felony.” 

 (quotation marks omitted).           To apply that
enhancement, a judge had to find the date on which the
defendant was convicted of the aggravated felony. The
judge had to find that the defendant in fact was the person
6               ERLINGER v. UNITED STATES

                   KAVANAUGH, J., dissenting

who had committed the aggravated felony. And the judge
had to find that the defendant had been deported after that
date.
   Like the statute in Almendarez-Torres, recidivism
statutes often require a decisionmaker to determine the
who, what, when, and where of prior offenses. The
Almendarez-Torres Court had no difficulty concluding that
Congress could authorize judges to make the factual
findings necessary to apply the recidivism enhancement.

. To the extent that Almendarez-Torres left any
doubt on that score, this Court recognized the case’s
“precise holding” the following year: The “distinctive
significance of recidivism” distinguishes it from elements of
the present crime.        Jones, 526 U. S., at 248–249.
Almendarez-Torres thus means that judges can make all
recidivism determinations at sentencing. Only that rule
can explain this Court’s cases allowing judges to find
recidivism-related facts. See, e.g., McNeill v. United States,

 (2011); Shepard v. United States,

, 20–21 (2005).
   ACCA’s different-occasions requirement similarly
requires the judge to find the when and where of a
defendant’s prior criminal acts.          Therefore, under
Almendarez-Torres, judges may make the different-
occasions determination. Given the Court’s opinion in
Almendarez-Torres, it comes as no surprise that all 12
Courts of Appeals have concluded that judges may make
the different-occasions determination. See United States v.
Ivery, 

, 74–75 (CA1 2005); United States v.
Santiago, 

 (CA2 2001); United States v.
Blair, 

, 227–228 (CA3 2013); United States v.
Brown, 

 (CA4 2023); United States v.
Davis, 

 (CA5 2007); United States v.
Burgin, 

 (CA6 2004); United States v.
Elliott, 

, 381–383 (CA7 2012); United States v.
Harris, 

 (CA8 2015); United States v.
                  Cite as: 

 (2024)            7

                   KAVANAUGH, J., dissenting

Walker, 

, 580–582 (CA9 2020); United States
v. Harris, 

 (CA10 2006); United States
v. Weeks, 

 (CA11 2013); United States
v. Thomas, 

 (CADC 2009).
                              B
  In concluding that Almendarez-Torres does not authorize
judges to make the different-occasions determination, the
Court says that subsequent decisions of this Court have
“expressly delimited” the reach of Almendarez-Torres.
Ante, at 14–15, and n. 2 (citing United States v. Haymond,

 (2019) (plurality opinion); Mathis v.
United States, 

, 511–512 (2016); Descamps v.
United States, 

 (2013); Alleyne v. United
States, 

 (2013); Cunningham v.
California, 

 (2007); Shepard, 

 (plurality opinion); Blakely v. Washington, 

 (2004); Apprendi, 

).
  But the cases cited by the Court do not support its claim
that Almendarez-Torres has been cabined, at least not in a
way that would require a jury to make the different-
occasions finding.
  Many of those cited cases did not involve recidivism.
Both Alleyne v. United States and Apprendi v. New Jersey
addressed the present crime, not prior crimes. 570 U. S., at
104; 530 U. S., at 468–469.          Neither case revisited
Almendarez-Torres’s analysis of the distinctive history of
recidivism sentencing enhancements for prior offenses.
Indeed, both Alleyne and Apprendi expressly declined to
“revisit” Almendarez-Torres. 570 U. S., at 111, n. 1; 

.      And in analyzing Almendarez-Torres,
Apprendi drew a clear line between facts about prior crimes
and facts about present crimes. 

. Apprendi
8                  ERLINGER v. UNITED STATES

                       KAVANAUGH, J., dissenting

said as much multiple times. 

, 488–489, and
n. 14, 496.1
   The other cases cited by the Court did not even involve a
constitutional claim. In Mathis v. United States and
Descamps v. United States, the Court interpreted the text
of ACCA in order to determine whether a prior conviction
constituted a “violent felony.” 

 (quotation
marks omitted); 570 U. S., at 257 (same); see also Shepard,
544 U. S., at 15–16, 19. To be sure, the Court said that its
interpretation of ACCA avoided “Sixth Amendment
concerns.” Mathis, 

; Descamps, 

. But neither case purported to articulate any Sixth
Amendment holding.
   Importantly, constitutional avoidance “is not a method of
adjudicating constitutional questions by other means.”
Clark v. Martinez, 

 (2005). When the
Court flags potential constitutional concerns in a statutory
case, that is a far cry from the Court’s definitively resolving
the potential constitutional issue, let alone altering
previously binding constitutional precedent.           A prior
constitutional-avoidance holding does not absolve the Court
of the duty to address the constitutional issue head-on when
it is later presented to the Court. The Court’s decision
today mistakenly elevates constitutional-avoidance
holdings to constitutional holdings.
   Almendarez-Torres said what it said: The Constitution
does not require a jury to make recidivism determinations.
And no subsequent case of this Court has cabined the

——————
  1 The other constitutional cases that the Court cites similarly did not

involve recidivism. See United States v. Haymond, 

, 645–
646 (2019) (plurality opinion) (“additional conduct in violation of ” the
defendant’s supervised release); Cunningham v. California, 

 (2007) (facts about the defendant’s “violent conduct” in
committing the charged crime); Blakely v. Washington, 

 (2004) (defendant acted with “deliberate cruelty” in committing the
charged crime (quotation marks omitted)).
                      Cite as: 

 (2024)                      9

                        KAVANAUGH, J., dissenting

holding of Almendarez-Torres. By distinguishing the
different-occasions issue from the other facts about prior
crimes, today’s decision mistakenly crosses the clear line
that Almendarez-Torres and Apprendi drew between facts
about the present offense and facts about prior offenses.2
                               III
  Even accepting the Court’s interpretation of the Sixth
Amendment as to the different-occasions issue, Erlinger’s
sentence should be affirmed. As the Government says, any
error was harmless. Tr. of Oral Arg. 45.
  This Court has long ruled that most constitutional errors,
including Sixth Amendment errors, “can be harmless.”
Washington v. Recuenco, 

 (2006)
(quotation marks omitted). The harmless-error rule serves
an important purpose. It ensures that appellate courts do
not set aside convictions or sentences “for small errors or
defects that have little, if any, likelihood of having changed
the result.” Neder v. United States, 

 (1999)
(quotation marks omitted). So if a constitutional error is
harmless “beyond a reasonable doubt,” the defendant’s
conviction and sentence should be affirmed. 

.
  The harmless-error rule will likely ameliorate some of the
short-term problems that today’s decision otherwise would


——————
  2 Unlike the Court’s interpretation of ACCA in cases like Mathis and

Descamps, moreover, the Court’s new constitutional rule will apply not
only to federal cases, but also to state cases. Several States have
recidivism enhancements that require judges to find whether the
defendant committed prior crimes on different occasions. See, e.g., 

(a)(2) (2019); R. I. Gen. Laws §12–19–21 (2002).
Those state courts, like the federal courts, have long relied on
Almendarez-Torres to hold that judges may make that different-
occasions determination. See, e.g., Commonwealth v. Gordon, 

, and n. 16, 

, and n. 16 (2007); State v. Ramirez,

 (R. I. 2007). Those courts, too, will be surprised by
today’s new rule.
10                 ERLINGER v. UNITED STATES

                       KAVANAUGH, J., dissenting

cause. In any case that has not become final, the relevant
appellate court can apply harmless-error analysis.3
   In most (if not all) cases, the fact that a judge rather than
a jury applied ACCA’s different-occasions requirement will
be harmless. Whether prior felonies occurred on different
occasions under ACCA is usually a straightforward
question. As this Court succinctly stated in Wooden, courts
“have nearly always treated offenses as occurring on
separate occasions if a person committed them a day or
more apart, or at a significant distance.” Wooden v. United
States, 

 (2022) (quotation marks omitted).
So in cases like this where undisputed facts establish that
the defendant’s prior crimes occurred a day or more apart,
it will usually be evident beyond a reasonable doubt that
the failure to submit the different-occasions question to the
jury had no effect on the defendant’s sentence.4
   This case is a good example. There can be no reasonable
doubt that Erlinger committed three burglaries “on
occasions different from one another.”              

(e)(1). Erlinger burglarized three separate businesses,
and each burglary occurred several days apart from the
other two. His crimes had different victims, different dates,
and different locations. And when offered the opportunity
to dispute the District Court’s conclusion that he committed
the three burglaries on different occasions, “Erlinger
supplied no argument or evidence that would cast doubt” on
the District Court’s analysis. 77 F. 4th, at 622.
   In this Court, Erlinger’s argument on harmless error was
not much more enlightening. When asked whether he had
——————
  3 For any case that is already final, the Teague rule will presumably

bar the defendant from raising today’s new rule in collateral proceedings.
See Edwards v. Vannoy, 

 (2021); Teague v. Lane, 

 (1989) (plurality opinion).
  4 Going forward, I assume that the Wooden statement about offenses

committed a day or more apart or at a significant distance will inform
the content of jury instructions.
                 Cite as: 

 (2024)           11

                   KAVANAUGH, J., dissenting

“a viable argument” against harmless error, Erlinger
responded that he could “imagine somebody” who might.
Tr. of Oral Arg. 25. For example, Erlinger hypothesized
that someone might commit a string of burglaries several
days apart to pay a single gambling debt. 

 Of course,
Erlinger did not argue that he actually fit that description.
And regardless, no “rational jury” could think that separate
burglaries days apart in different places collapse into one
occasion simply because the defendant committed the
burglaries to pay a single debt. Neder, 

.
  For those reasons, I would hold that any Sixth
Amendment error in this case was harmless. I recognize
that this Court often leaves harmless-error questions to the
Court of Appeals when the issue was not addressed below.
See 

. But that is because harmless-error questions
sometimes are fact-intensive and require painstaking
analysis of a large record. Here, the relevant facts are
simple and undisputed:          Erlinger committed three
burglaries of three different businesses on three different
days, with several days separating each burglary. I would
resolve the harmless-error issue in this case now rather
than subjecting the parties to a pointless remand to the
Court of Appeals and another round of briefing and
argument, when the Court of Appeals’ decision is a foregone
conclusion. The Court declines to do so. But the harmless-
error analysis will be straightforward for the Court of
Appeals on remand.
                            IV
  The Court today has not overruled Almendarez-Torres; it
has simply carved out the different-occasions inquiry from
the general Almendarez-Torres rule. But JUSTICE THOMAS
has written separately to advocate overruling Almendarez-
Torres altogether. Ante, at 2 (concurring opinion). And
Erlinger agreed that “the Court should someday” overrule
that precedent. Tr. of Oral Arg. 5.
12              ERLINGER v. UNITED STATES

                   KAVANAUGH, J., dissenting

   Applying the traditional stare decisis factors, I am
strongly opposed to overruling Almendarez-Torres.
   The principle of stare decisis is encompassed within the
“judicial Power” of Article III of the Constitution. Stare
decisis “promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Payne v.
Tennessee, 

 (1991). Of course, adherence
to constitutional precedent is not and should not be
absolute. See Ramos v. Louisiana, 

, 116–117
(2020) (KAVANAUGH, J., concurring in part). But the Court
requires a “special justification” or “strong grounds” before
revisiting a settled holding. 

 (quotation marks
omitted). That requirement “disciplines jurisprudential
disagreement.” A. Barrett, Precedent and Jurisprudential
Disagreement, 91 Texas L. Rev. 1711, 1722 (2013).
   In general, when considering whether to overrule a
constitutional precedent, the Court analyzes a variety of
factors that often boil down to three basic questions. First,
“is the prior decision not just wrong, but grievously or
egregiously wrong?”          Ramos, 

(KAVANAUGH, J., concurring in part). Second, “has the prior
decision caused significant negative jurisprudential or real-
world consequences?” 

. And third, “would
overruling the prior decision unduly upset reliance
interests?” 

   Overruling Almendarez-Torres would require running
the table on all three. As I see it, however, the argument
for overruling Almendarez-Torres does not satisfy any of the
three requirements.
                               A
  On the merits, I believe that Almendarez-Torres is correct
in light of text and history. But even if one thinks that the
case is wrong, it certainly is not egregiously wrong.
                  Cite as: 

 (2024)           13

                   KAVANAUGH, J., dissenting

  The Sixth Amendment textually guarantees the right to
a jury trial, but its text does not specify all that the right
entails. Instead, to define the jury right, the Court has
looked to the common law, state practices in the founding
era, opinions and treatises written soon afterward, and this
Nation’s historical tradition. See Ramos, 

.
When those sources supply a clear answer, we can conclude
that a rule is part of the jury right enshrined in the Sixth
Amendment and therefore cannot be changed by the
legislature. See 

 at 90–92.
  No settled historical practice or understanding
establishes that a jury, rather than a judge, must determine
for sentencing purposes whether a defendant is a recidivist.
  Statutes that enhance repeat offenders’ sentences “have
a long tradition in this country that dates back to colonial
times.” Parke v. Raley, 

 (1992). Given the
prevalence of those statutes, if there were a legal consensus
that a jury had to determine a defendant’s recidivism, we
should be able to easily locate that consensus in the States’
laws. After all, as the Court reminds us, every state
constitution ratified in the aftermath of the Revolution
guaranteed a right to a trial by jury. Ante, at 6. Those state
constitutional rights are analogous to the right guaranteed
by the Sixth Amendment.
  But the States have traditionally used a “wide variety of
methods of dealing with” recidivism enhancements.
Spencer v. Texas, 

 (1967); see also
Almendarez-Torres v. United States, 

, 246–247
(1998). And some States have long given judges the
responsibility to find the facts necessary to apply a
recidivism sentencing enhancement for past crimes. States
have done so to avoid the prejudice to the defendant that
would result from telling the jury about the defendant’s
prior crimes.
  One example is South Carolina. There, in the 1830s, the
State had a steep recidivism enhancement for horse
14              ERLINGER v. UNITED STATES

                   KAVANAUGH, J., dissenting

thieves. State v. Smith, 

 (S. C. 1832). The
“Court, not the jury” decided whether the enhancement
applied. 

; see also State v. Allen, 

, 449
(S. C. 1832); State v. Parris, 89 S. C. 140, 141, 

 (1911).
  Louisiana similarly recognized that facts about
recidivism “were not essential ingredients constituting the
offense charged, upon which the jury had to pass.” State v.
Hudson, 

, 1053 (1880). As the Supreme Court
of Louisiana later explained, there “is no provision in the
Constitution that we have been able to find which
authorizes or requires questions of fact not pertaining to the
guilt or innocence of a defendant to be submitted to a jury.”
State v. Guidry, 

, 

 (1929).
Instead, the court held that the Louisiana Legislature could
decide whether a judge or a jury should apply the recidivism
sentencing enhancement.
  So did Alabama. See Yates v. State, 

, 

 (1944) (It is “discretionary with the trial
judge whether to impose additional punishment and to
make inquiry into that question in a supplementary
manner in order to apply the increased limits”).
  And Kansas. See State v. Woodman, 

,

 (1928) (“In this state it is no concern of the
jury” whether a recidivism enhancement applies); see also
Chance v. State, 

, 

(1965) (“It has never been the rule in Kansas” that
recidivism has to be treated as an element of a crime
(quotation marks omitted)); see also 1868 Kan. Sess. Laws
pp. 380–381 (recidivism enhancement).
  The variation in early American practice forecloses the
argument that the right to have a jury apply recidivism
                      Cite as: 

 (2024)                     15

                        KAVANAUGH, J., dissenting

enhancements was traditionally understood as an inherent
part of the Sixth Amendment right to trial by jury.5
   Another common practice in the early 1800s confirms
that legislatures could choose how to handle recidivism
issues. Early state constitutions required the government
to include the elements of an offense in an indictment. See,
e.g., Jones v. Robbins, 

 (1857). The
prosecution also had to prove elements of the offense
beyond a reasonable doubt, as the requirements for an
indictment and a jury trial went hand in hand.
Commonwealth v. McKie, 

 (1854).
   But many States, including Massachusetts and Virginia,
did not include the facts about past crimes in an
indictment—in other words, did not treat recidivism as an
element of the offense. See 1818 Mass. Acts pp. 603–604;
1819 Va. Acts ch. 171, pp. 619–620; 1824 Me. Laws p. 1009;
1868 W. Va. Acts ch. 165, pp. 733–734. Those States
allowed the government to raise and prove recidivism after
the defendant had been convicted of the present crime.
Those States’ practices reflected and reinforced the familiar
line between a conviction for the present offense and a
sentencing enhancement based on past offenses.
   State courts upheld that practice against constitutional
challenges. In 1824, the Massachusetts Supreme Judicial
Court held that even if the recidivism enhancement would
have been included in the original indictment “at common
law,” the “legislature had” the power to change that default
rule. In re Ross, 

; see also State v.
Graham, 

, 

 (1910)

——————
   5 A different constitutional rule applies if the defendant’s status as a

felon is an element of the present offense necessary to make the conduct
criminal in the first place, as with the prohibition on possessing a firearm
as a felon. See 

(g)(1); Rehaif v. United States, 

, 229–230 (2019). The issue here, by contrast, is the use of past
offenses to enhance the sentence for the present offense of conviction.
16                ERLINGER v. UNITED STATES

                     KAVANAUGH, J., dissenting

(The West Virginia recidivism statute “is not contrary to
any constitutional provision”).
  Importantly, this Court upheld that practice as well. In
Graham v. West Virginia, the Court reasoned that although
“the State may properly provide for the allegation of the
former conviction in the indictment,” there was “no
constitutional mandate” to do so. 

 (1912).
  In short, the historical evidence reveals a “spectrum of
state procedures” for applying recidivism-based sentence
enhancements. Spencer, 

. America has a
long tradition of legislative discretion over whether a judge
or jury will apply recidivism sentencing enhancements.6
  The different state approaches did not pop up by accident.
The States had good reason to experiment with different
approaches to recidivism enhancements. Why? Requiring
the Government to present evidence of a defendant’s past
crimes to a jury at trial would undermine the right to trial
“by an impartial jury” that the Sixth Amendment protects.
  As this Court “has long recognized, the introduction of
evidence of a defendant’s prior crimes risks significant
prejudice.” Almendarez-Torres, 

. That
kind of prior-crimes evidence “is said to weigh too much
with the jury and to so overpersuade them as to prejudge
one with a bad general record and deny him a fair
opportunity to defend against a particular charge.”
Michelson v. United States, 

 (1948). To
avoid that problem, American evidence laws have long
restricted the use of prior-crimes evidence. See 1 J.


——————
  6 Throughout much of American history, criminal sentencing at both

the state and federal levels has often been done by judges in systems
where the judges have discretion to sentence within broad ranges. And
in those discretionary-sentencing systems, judges routinely determine
the facts of a defendant’s prior convictions and take account of a
defendant’s criminal record in imposing a sentence within the broad
sentencing range authorized by statute.
                  Cite as: 

 (2024)           17

                   KAVANAUGH, J., dissenting

Wigmore, Evidence §§193–194, pp. 231–235 (1904); Fed.
Rule Evid. 404(b)(1).
   What good would that longstanding evidence principle be
if the jury always had to apply recidivism enhancements?
The price of having a jury apply recidivism sentencing
enhancements would be the loss of a protection against
prejudicial evidence that itself is deeply entrenched in
American law. To avoid making defendants pay that price,
some legislatures have long given judges the responsibility
of applying sentence enhancements—while reserving to
juries the duty to fairly decide the defendant’s guilt for the
present crime. See, e.g., Hudson, 32 La., at 1053 (A judge
may determine “previous convictions” because that
information “might prejudice the jury”); Woodman, 

, 272 P., at 134–135 (“the jurors’ minds should
not be diverted from the question of defendant’s innocence
or guilt by facts concerning defendant’s prior convictions of
other felonies,” and it “is also fairer to defendant to keep
such matters entirely away from the jury”); see also D.
Sidikman, Note, The Pleading and Proof of Prior
Convictions in Habitual Criminal Prosecutions, 33
N. Y. U. L. Rev. 210, 215 (1958) (allowing judges to apply
recidivism enhancements ensures that the “jury trial as to
the charged offense is conducted in a nonprejudicial
atmosphere”).      The distinctive tradition that governs
recidivism enhancements for past offenses has traditionally
co-existed with the general right to a jury trial for present
offenses.
   To sum up: Since the early 1800s, some legislatures have
entrusted recidivism sentencing findings to judges, and
others have required juries to make those findings. That
variation reflects the many countervailing interests that
legislatures must balance on this issue—including the
prejudice that results from telling a jury about a
defendant’s past criminal behavior. And that unsurprising
variation makes clear that Almendarez-Torres was and
18               ERLINGER v. UNITED STATES

                    KAVANAUGH, J., dissenting

remains correct. The Sixth Amendment allows a judge to
determine whether the defendant should receive a
recidivism sentencing enhancement. At a minimum, the
history shows that Almendarez-Torres is not egregiously
wrong.
                                B
  Suppose, however, that one thinks that Almendarez-
Torres is wrong, even egregiously wrong. Even then, the
two other stare decisis factors—consequences and reliance
interests—strongly counsel in favor of adhering to
Almendarez-Torres rather than overruling it.
  First, Almendarez-Torres has not generated the kind of
negative real-world or jurisprudential consequences that
would support an overruling. By allowing judges to apply
recidivism enhancements, Almendarez-Torres has ensured
that defendants need not choose between (i) their right to a
jury trial and (ii) their interest in keeping the details of past
crimes from a jury.
  Consider the prejudice that overruling Almendarez-
Torres would cause if a jury had to decide whether
defendants are eligible for every state and federal
recidivism sentencing enhancement. As happened in one
recent federal trial, the jury could hear a prosecutor’s
closing argument begin: “Ladies and gentlemen of the jury,
this defendant, a gun toting, drug slinging three time
convicted felon . . . .” United States v. Harrell, No. 1:22–cr–
20245 (SD Fla., Mar. 6, 2023), ECF Doc. 105, p. 33. The
verdict in that case? Guilty.
  Erlinger suggests that trial courts could avoid putting
defendants to the choice between prejudicing the jury and
having to forgo a jury trial by bifurcating the trial.
Bifurcating entails holding a separate mini-trial with the
jury on the recidivism enhancement after the jury has
found the defendant guilty of a crime.
                      Cite as: 

 (2024)                    19

                       KAVANAUGH, J., dissenting

  But most criminal cases are tried in state court. And
States remain free not to bifurcate (as do federal judges, for
that matter). Bifurcated trials have been and remain “rare
in our jurisprudence; they have never been compelled by
this Court as a matter of constitutional law, or even as a
matter of federal procedure.” Spencer, 

.
Instead, the trial court ordinarily has discretion to decide
whether to bifurcate, and bifurcation carries “its own costs.”
United States v. Durham, 

, 615 (WD Ky.
2023). In order for overruling Almendarez-Torres to help
defendants instead of hurting many of them, this Court
would have to say as a matter of constitutional law that all
50 States and the federal courts must hold bifurcated trials
in recidivism cases.        Of course, that would require
overruling Spencer, 385 U. S., at 568–569. I doubt that the
Court would go to that extreme. So if Almendarez-Torres
were overruled, a defendant who is denied a bifurcated trial
could be subject to all of the harm and prejudice that results
from telling a jury about the defendant’s past crimes.7
  Erlinger also suggests that, to avoid prejudice,
defendants can stipulate to the relevant facts about their
prior crimes. Brief for Petitioner 41. But that of course
makes sense only in cases where the defendant is not
disputing the recidivism enhancement. Stipulation is
obviously not a solution for those cases where the defendant
is contesting his prior convictions and the recidivism
enhancement.
  In any event, it is true that this Court has interpreted the
Federal Rules of Evidence to require the Government to
accept a defendant’s stipulation that he has a prior
conviction. Old Chief v. United States, 

, 191–
192 (1997).      But even under the Federal Rules as
——————
  7 If a State does not provide for bifurcation, a defendant’s only path to

avoid the prejudice from the prosecutor’s parading evidence of the
defendant’s past crimes before the jury may be to seek the best plea deal
possible and plead guilty—hardly a beneficial result for defendants.
20                 ERLINGER v. UNITED STATES

                       KAVANAUGH, J., dissenting

interpreted in Old Chief, the jury will still hear the
stipulation—for example, that the defendant admits that
he committed prior felonies.
   And to reiterate, most criminal cases are tried in state
court. This Court’s interpretation of the Federal Rules of
Evidence does not require state courts to follow suit when
they interpret state rules of evidence. See, e.g., State v.
Ball, 99–0428, p. 5 (La. 11/30/99), 

 (“We
conclude that Old Chief is not controlling and decline to
follow it”); Commonwealth v. Jemison, 

, 

, 1261–1262 (2014).
   Moreover, defendants will suffer that prejudicial harm
for little benefit. Determining whether the defendant has
a prior conviction for a particular offense will generally
yield an obvious answer from the record (or lack thereof ) of
the prior conviction. Important as the judgment of the jury
usually is, I struggle to imagine a jury making a different
(or at least a more accurate) finding than a judge on the
question of whether a defendant was previously convicted
of a crime.8 As explained above, this case is a prime
example. And even if one could stretch the imagination far
enough to conceive of a case in which sending the prior-
conviction issue to the jury makes a difference and produces
a more accurate answer, it would certainly not be a
sufficiently frequent occurrence to create a pressing need to
overrule precedent.
   Nor has Almendarez-Torres caused any jurisprudential
confusion. Erlinger suggests that the logic of Apprendi
undermines Almendarez-Torres.          But Apprendi itself
——————
  8 To be clear, in a recidivism proceeding (whether at trial or

sentencing), a defendant ordinarily cannot challenge the underlying
validity of the prior conviction—for example, by arguing that the prior
conviction was infected by error. See Parke v. Raley, 

, 29–30
(1992). Challenges to the underlying validity of a prior conviction
typically must be made in the appeal or habeas corpus proceedings
regarding that prior conviction.
                 Cite as: 

 (2024)           21

                   KAVANAUGH, J., dissenting

reconciled the two cases. In ruling the way that it did on
present crimes, Apprendi explained at length why
Almendarez-Torres raised a distinct issue about past
crimes.
  That line—between the present crime and the past
crimes—is clear and has been eminently workable. For
sentencing purposes, a judge can find that a defendant was
convicted of past crimes, including the who, what, when,
and where of those crimes. It is as easy as that. The
Apprendi rule and Almendarez-Torres rule easily co-exist
and have for 24 years co-existed as a matter of Sixth
Amendment law. See Apprendi v. New Jersey, 

, 487–490 (2000).
  And today’s decision does not alter the basic ease of
applying Almendarez-Torres. Today’s decision, although I
disagree with it, is a clear and easily administered carveout
from Almendarez-Torres.
  Second, as to reliance, the State and Federal
Governments possess substantial reliance interests in their
existing sentencing schemes.          “Statutes that punish
recidivists more severely than first offenders have a long
tradition in this country that dates back to colonial times.”
Parke, 

. By 1992, all 50 States and the
Federal     Government        had    recidivism    sentencing
enhancements. 

 at 26–27. State judges apply many of
those state recidivism sentencing enhancements, as federal
judges do in ACCA. See, e.g., N. J. Stat. Ann. §2C:44–3(a)
(West 2016); 

(a)(2) (2019); R. I.
Gen. Laws §12–19–21 (2002).
  Overruling Almendarez-Torres would upend that settled
practice. Legislatures across the country would have to
choose among various bad options. They could undermine
the longstanding limits on introducing evidence at trial of
past crimes. They could jettison longstanding sentencing
enhancements for recidivists. They could mandate costly
and inefficient bifurcated trials in cases with a recidivism
22              ERLINGER v. UNITED STATES

                   KAVANAUGH, J., dissenting

enhancement, a fairly dramatic change to day-to-day
criminal trial practice in many jurisdictions. Or they could
simply enact discretionary sentencing regimes and
authorize sentences within a broad range for most crimes,
leaving to judges’ discretion the choice within that range.
See Apprendi, 

. Any of those options
would be a big change—and on top of that, several would
actually be unhelpful to criminal defendants.
  To what end? There would be little (really nothing) to
gain by overruling Almendarez-Torres now, after 26 years
of settled federal and state practice relying on and easily
applying it. It is difficult to conceive of a stronger case for
stare decisis than a longstanding rule with substantial
systemic benefits, ease of application, no apparent
downside for criminal defendants, and significant reliance
interests. This Court should adhere to Almendarez-Torres’s
settled rule.
                       *     *    *
  As to the Court’s conclusion that a jury must determine
whether the defendant’s three prior violent felonies were
committed on different occasions, I respectfully dissent.
                     Cite as: 

 (2024)                    1

                        JACKSON, J., dissenting

SUPREME COURT OF THE UNITED STATES
                              _________________

                              No. 23–370
                              _________________


  PAUL ERLINGER, PETITIONER v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE SEVENTH CIRCUIT
                            [June 21, 2024]

   JUSTICE JACKSON, dissenting.
   In the Armed Career Criminal Act (ACCA), 

(e), Congress directed sentencing judges to conduct a
“multi-factored” inquiry into “a range of circumstances” to
determine whether a particular defendant’s criminal his-
tory suggests that he is the sort of “ ‘revolving door’ felo[n]”
that ACCA was designed to target. Wooden v. United
States, 

 (2022); see also §924(e)(1).
Those kinds of findings have historically been deemed well
within the capacity of a sentencing judge. See Almendarez-
Torres v. United States, 

, 243–244 (1998). To-
day, the Court concludes that Apprendi v. New Jersey, 

 (2000), must be read to suggest otherwise—i.e.,
that under Apprendi, for sentencing purposes, facts that re-
late to a defendant’s prior crimes cannot be determined by
judges but instead must be found by juries. I disagree for
several reasons, including my overarching view that Ap-
prendi was wrongly decided. Like many jurists and other
observers before me, I do not believe that Congress exceeds
its constitutional authority when it empowers judges to
make factual determinations related to punishment and di-
rects that a particular sentencing result follow from such
findings.1
——————
  1 Critiques of the Apprendi Court’s misguided constitutional analysis

have been covered at length elsewhere. See, e.g., Apprendi v. New Jersey,

, 524–536 (2000) (O’Connor, J., dissenting); 

 at 559–561
2                   ERLINGER v. UNITED STATES

                         JACKSON, J., dissenting

   I recognize, of course, that Apprendi is a binding prece-
dent of this Court, and one that “has now defined the rele-
vant legal regime” for nearly a quarter century. Alleyne v.
United States, 

 (2013) (Breyer, J., concur-
ring in part and concurring in judgment). Given that real-
ity, untangling the knots Apprendi has tied is probably in-
feasible at this point in our Court’s jurisprudential journey.
But considering the flaws inherent in Apprendi’s approach,
I cannot join today’s effort to further extend Apprendi’s
holding, particularly when there is a well-established recid-
ivism exception to the Apprendi rule that applies to the cir-
cumstances of the case before us now.
   I agree with JUSTICE KAVANAUGH that, all things consid-
ered, the Court errs in concluding today that ACCA’s occa-
sions inquiry must be decided by a jury. See ante, at 3–9
(dissenting opinion). I write separately to provide an addi-
tional critical perspective on the Apprendi doctrine—one
that is informed by how sentencing has actually worked on
the ground, before and after Apprendi—and to note that ap-
plying the Apprendi rule to ACCA’s occasions finding cre-
ates all sorts of practical problems that are easily avoided
by simply allowing judges to do what they have always
done. Because the Court pushes the flawed Apprendi rule
past where it needs to go, and, incidentally, establishes a
procedural requirement that is likely impossible to imple-
ment in real life, I respectfully dissent.
                               I
  In Apprendi, this Court held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
——————
(Breyer, J., dissenting); Blakely v. Washington, 

 (2004)
(O’Connor, J., dissenting); 

 at 326–327 (Kennedy, J., dissenting); 

at 340–346 (Breyer, J., dissenting); S. Bibas, Judicial Fact-Finding and
Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097
(2001).
                  Cite as: 

 (2024)            3

                     JACKSON, J., dissenting

submitted to a jury, and proved beyond a reasonable doubt.”

. For the reasons others have skillfully ar-
ticulated, see n. 1, supra, and also the reasons that follow,
I think the Apprendi Court was wrong to interpret the Sixth
Amendment’s jury-trial guarantee to limit legislatures’
ability to define crimes and give judges discretion to set ap-
propriate punishments based on findings of fact. Apprendi
and its ilk have also needlessly hampered Congress’s and
state legislatures’ pursuit of a fairer and more rational sen-
tencing system.
                               A
  Our Constitution “protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.”
In re Winship, 

 (1970). At the outset, it is
important to take note of the scope of this constitutional
protection as it has traditionally been recognized and un-
derstood: It is a protection against conviction without the
necessary facts having been established beyond a reasona-
ble doubt. 

 That is not the same as a protection
against being sentenced to a certain level of punishment un-
less the facts that are relevant to that sentencing determi-
nation have been proved to a jury consistent with the rea-
sonable-doubt standard.
  The facts that must be proved before a defendant can be
convicted are often called elements. See United States v.
Gaudin, 

 (1995). Traditionally, “the ele-
ments of a crime are its requisite (a) conduct (act or omis-
sion to act) and (b) mental fault (except for strict liability
crimes)—plus, often, (c) specified attendant circumstances,
and, sometimes, (d) a specified result of the conduct.” 1 W.
LaFave, Substantive Criminal Law §1.8(b), p. 103, n. 14 (3d
ed. 2018); see also 1 J. Ohlin, Wharton’s Criminal Law §3:1,
pp. 48–49 (16th ed. 2021). As the majority correctly recog-
nizes, such elemental facts have always been in the purview
4                ERLINGER v. UNITED STATES

                      JACKSON, J., dissenting

of the jury. See ante, at 7. The Sixth Amendment’s jury-
trial guarantee reflects this well-established understanding
of the jury’s domain. See Sullivan v. Louisiana, 

, 277–278 (1993).
    Although sometimes the “determination of what ele-
ments constitute a crime . . . is subject to dispute,” Gaudin,

 (Rehnquist, C. J., concurring), it is clear
that “[o]nly the people’s elected representatives in the leg-
islature are authorized to ‘make an act a crime,’ ” United
States v. Davis, 

 (2019) (quoting United
States v. Hudson, 

 (1812)). It follows that
“ ‘[t]he definition of the elements of a criminal offense is en-
trusted to the legislature.’ ” Staples v. United States, 

 (1994) (quoting Liparota v. United States,

 (1985); alteration in original). For that
reason, this Court—at least until recent times—generally
deferred to legislative judgments about which facts consti-
tute elements of the offense. See McMillan v. Pennsylva-
nia, 

 (1986) (“[I]n determining what facts
must be proved beyond a reasonable doubt the . . . legisla-
ture’s definition of the elements . . . is usually dispositive”).
    Once a defendant has been found guilty of a crime—i.e.,
once a jury has made the requisite factual findings estab-
lishing the elements of the crime—judges have traditionally
been entrusted with substantial discretion to impose the
appropriate sentence. See K. Stith & J. Cabranes, Fear of
Judging: Sentencing Guidelines in the Federal Courts 9
(1998). Indeed, at the dawn of our Republic, the very first
Congress enacted many criminal laws that prescribed a
range of possible punishments, leaving it to judges to deter-
mine the proper sentence. See An Act for the Punishment
of Certain Crimes Against the United States, ch. 9, 1 Stat.
112–118; see also R. Little & T. Chen, The Lost History of
Apprendi and the Blakely Petition for Rehearing, 17 Fed.
                      Cite as: 

 (2024)                      5

                         JACKSON, J., dissenting

Sentencing Rep. 69, 72 (2004).2
   Significantly for present purposes, judges were thought
to “inherently possess ample right to exercise reasonable,
that is, judicial, discretion to enable them to wisely exert
their authority” in deciding what punishment to impose. Ex
parte United States, 

, 41–42 (1916). In fact, a
judge’s determination of the appropriate sentence was long
considered to be unreviewable in most circumstances. See
Dorszynski v. United States, 

 (1974).
   When exercising their sentencing authority, judges were
also presumed to have the power to find and consider nearly
any fact deemed relevant to the penalty. “[B]oth before and
since the American colonies became a nation, courts in this
country and in England practiced a policy under which a
sentencing judge could exercise a wide discretion in the
sources and types of evidence used to assist him in deter-
mining the kind and extent of punishment to be imposed
within limits fixed by law.” Williams v. New York, 

 (1949). A sentencing judge might find, for exam-
ple, that a defendant lacked remorse for his crime, or that
the conduct underlying the crime was particularly heinous,
and sentence the defendant accordingly. See 

. All
of those kinds of factual determinations were considered to
be important factors for imposing the sentence that a per-
son who had been found guilty of a criminal act would be
required to serve. And none of them were thought to be
subject to the Sixth Amendment’s jury-trial right.
   By the late 19th century, sentencing schemes grew more

——————
  2 For example, the First Congress declared that misprision (i.e., con-

cealment) of a felony was punishable by “imprison[ment] not exceeding
three years” and a “fin[e] not exceeding five hundred dollars.” §6, 

. Stealing or falsifying court records was punishable by “im-
prison[ment] not exceeding seven years” and “whipp[ing] not exceeding
thirty-nine stripes.” §15, id., at 115–116. At least 14 other federal crimes
enacted during this time gave judges discretion over similar sentencing
ranges. See Little & Chen, 17 Fed. Sentencing Rep., at 72.
6                ERLINGER v. UNITED STATES

                     JACKSON, J., dissenting

complex, with the vast majority of States and the Federal
Government adopting so-called indeterminate sentencing
systems. A. Campbell, Law of Sentencing §§1:2–1:3, pp. 9–
10 (3d ed. 2004) (Campbell). In those jurisdictions, “[u]sing
broad discretion, trial courts imposed minimum and maxi-
mum [sentences] based on judicial estimates of how long it
would take to rehabilitate criminal offenders,” which parole
boards then used to determine when an offender would be
released. Id., §1:3, at 10. There, too, judges were given
wide authority to determine an appropriate sentencing
range, and to do so based on judicial findings of fact. In fact,
“judges were encouraged to weigh the character of the indi-
vidual offender along with the nature of the offense when
imposing sentence,” id., §1:2, at 9, considerations that are
immensely factbound. That judges rather that juries made
these factual findings was not thought to be constitution-
ally problematic.
   Critically, the nature of factfinding proceedings before a
judge at sentencing was—and still is—fundamentally dif-
ferent from the factfinding that a jury engages in. Jury
factfinding at trial “always ha[s] been hedged in by strict
evidentiary procedural limitations.” Williams, 

. By contrast, such limitations have not, as a general
matter, applied to judges when they find facts for sentenc-
ing purposes. See 

 Instead, a sentencing judge has al-
ways been expected to consider a wide range of infor-
mation—really, anything relevant to assessing the
appropriate penalty—when determining a sentence.
   The difference between jury factfinding at trial and judi-
cial factfinding for sentencing makes perfect sense. “Typi-
cally, trial disputes center on particular issues of historical
fact,” and juries accordingly “receive limited information
and must choose from limited options to resolve disputed
issues.” D. Berman & S. Bibas, Making Sentencing Sensi-
ble, 

, 54 (2006). As a result, “[r]ules
of evidence have been fashioned for criminal trials which
                  Cite as: 

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                     JACKSON, J., dissenting

narrowly confine the trial contest to evidence that is strictly
relevant to the particular offense charged.” Williams, 337
U. S., at 246–247. “A sentencing judge, however, is not con-
fined to the narrow issue of guilt. His task within fixed
statutory or constitutional limits is to determine the type
and extent of punishment after the issue of guilt has been
determined.” 

. Thus, sentencing judges “receiv[e]
a range of information about both the offense and the of-
fender and can choose from various possible dispositions.”
Berman & Bibas, 4 Ohio St. J. Crim. L., at 55. “Highly rel-
evant—if not essential—to [a judge’s] selection of an appro-
priate sentence is the possession of the fullest information
possible concerning the defendant’s life and characteris-
tics.” Williams, 

.
   The upshot is that, traditionally, judges and juries have
not only played different factfinding roles, they have also
utilized different tools to carry out those duties. And far
from being ill equipped to find facts for punishment pur-
poses, judges have long been regarded as having both the
power and the institutional competency to determine the
factual bases for the imposition of sentences. Again: This
judicial authority has traditionally included the ability to
make findings of fact related to both an offender’s charac-
teristics and the criminal conduct at issue as necessary to
determine an appropriate sentence—all while relying on a
wide range of evidence. Historically, none of this was
thought to conflict with or usurp the jury’s distinct role of
determining guilt or innocence.
                                B
  Over time, however, legislatures became concerned with
“the almost wholly unchecked and sweeping powers . . .
give[n] to judges in the fashioning of sentences.” M.
Frankel, Criminal Sentences: Law Without Order 5 (1973).
“[L]egislators . . . decried the perceived inequity of incarcer-
ating some offenders longer than others for the same
8                ERLINGER v. UNITED STATES

                     JACKSON, J., dissenting

crime,” as well as the possibility that discriminatory consid-
erations such as race and sex were playing a role in judges’
sentencing determinations. Campbell §1:3, at 11; see also
S. Breyer, The Federal Sentencing Guidelines and the Key
Compromises Upon Which They Rest, 

,
4–5 (1988). “The length of time a person spent in prison
appeared to depend on ‘what the judge ate for breakfast’ on
the day of sentencing, on which judge you got, or on other
factors that should not have made a difference to the length
of the sentence.” Blakely v. Washington, 

(2004) (Breyer, J., dissenting).
   Out of this unregulated environment emerged a legisla-
tive development—the identification of what are commonly
referred to as “sentencing factors” (also known as “sentenc-
ing facts”). In an effort “to bring more order and consistency
to the [sentencing] process,” Congress and state legisla-
tures “sought to move from a system of indeterminate sen-
tencing or a grant of vast discretion to the trial judge to a
regime in which there [were] more uniform penalties, pre-
scribed by the legislature.” Jones v. United States, 

 (1999) (Kennedy, J., dissenting). Legisla-
tures recognized that, although judges are fully competent
to find facts and exercise discretion when sentencing, too
much discretion could create unwarranted disparities and
therefore have detrimental effects. New sentencing re-
gimes were implemented to cabin sentencing discretion by
“directly limit[ing] the use . . . of particular factors in sen-
tencing” and “by specifying statutorily how a particular fac-
tor [would] affect the sentence.” Apprendi, 

(Breyer, J., dissenting).
   Legislatures sometimes specified, for example, “that a
particular factor, say, use of a weapon, recidivism, injury to
a victim, or bad motive, ‘shall’ increase, or ‘may’ increase, a
particular sentence in a particular way.” 

 Conversely,
legislatures also directed judges to disregard certain facts,
including those that were deemed irrelevant for sentencing
                  Cite as: 

 (2024)             9

                     JACKSON, J., dissenting

purposes. See 

(d) (directing the U. S. Sen-
tencing Commission to consider whether age, education, vo-
cational skills, and other factors are relevant to sentenc-
ing); United States Sentencing Commission, Guidelines
Manual §§5H1.2, 5H1.4, 5H1.5, 5H1.6 (Nov. 2023) (noting
that education, drug or alcohol dependence, employment
record, and family ties are ordinarily not relevant in deter-
mining the length of a sentence); see also, e.g., 

.94A.535(e) (2023) (excluding “[v]oluntary use of
drugs and alcohol” as a potential mitigating factor).
   These structured sentencing schemes were not adopted
“to manipulate the statutory elements of criminal offenses
or to circumvent the procedural protections of the Bill of
Rights.” Blakely, 

 (O’Connor, J., dissent-
ing). Rather, Congress and the States that adopted these
rules did so against a backdrop of unbounded judicial dis-
cretion that had proved, in their view, to be unwieldy, un-
fair, and unwise. Accordingly, the goal of legislative efforts
in this regard was to constrain judicial discretion by chan-
neling the accepted competency of judges to set appropriate
sentences toward the objective of achieving more consistent
and more equitable outcomes.
   This Court dealt a significant blow to these legislative at-
tempts to promote fairness and consistency in sentencing
with its decision in Apprendi. As I previously noted, we
concluded—for the first time in history—that “[o]ther than
the fact of a prior conviction, any fact that increases the
penalty of a crime beyond the prescribed statutory maxi-
mum” is an element that “must be submitted to a jury, and
proved beyond a reasonable doubt.” 

. We
later extended that rule to cover any “finding of fact” that
“alters the legally prescribed punishment so as to aggravate
it,” because—in the Court’s view—that “fact necessarily
forms a constituent part of a new offense and must be sub-
mitted to the jury.” Alleyne, 570 U. S., at 114–115.
   By now, the Apprendi rule has been applied to a litany of
10               ERLINGER v. UNITED STATES

                      JACKSON, J., dissenting

punishments other than incarceration. See ante, at 9.
Through these cases, the Court has “embrace[d] a universal
and seemingly bright-line rule limiting the power of Con-
gress and state legislatures to define criminal offenses and
the sentences that follow from convictions thereunder.” Ap-
prendi, 

 (O’Connor, J., dissenting). By any
measure, “[t]he impact of Apprendi and its progeny has
been extraordinary, disrupting sentences and prompting
new [corrective] legislation across the nation.” 6 W. LaFave,
J. Israel, N. King, & O. Kerr, Criminal Procedure §26.4(i),
p. 1011 (4th ed. 2015).
                                II
                                A
   I was not a Member of the Court during these develop-
ments. In my view, however, the Court made a serious mis-
take when it conflated elements and sentencing factors in
this way. As others have argued, “[t]he Court’s basic error
in Apprendi . . . was its failure to recognize the law’s tradi-
tional distinction between elements of a crime (facts consti-
tuting the crime, typically for the jury to determine) and
sentencing facts (facts affecting the sentence, often concern-
ing, e.g., the manner in which the offender committed the
crime, and typically for the judge to determine).” Alleyne,

 (Breyer, J., concurring in part and concur-
ring in judgment). The Sixth Amendment’s jury-trial right
“guarantees a jury’s determination of facts that constitute
the elements of a crime”—no more and no less. 

.
   To be fair, the principal justification that has been given
for Apprendi’s conflation of elements and sentencing factors
is a historical one. See, e.g., ante, at 5–6; Alleyne, 570 U. S.,
at 108–111 (opinion of THOMAS, J.). The account that has
been provided in some of the Court’s opinions is that, during
the founding era, “ ‘[o]nce the facts of the offense were de-
termined by the jury, the judge was meant simply to impose
the prescribed sentence.’ ” Ante, at 7 (quoting United States
                  Cite as: 

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                     JACKSON, J., dissenting

v. Haymond, 

 (2019) (plurality opinion);
alteration in original). But the accuracy of this historical
account is debatable. See n. 2, supra. Scholars have sug-
gested that, far from the simplistic picture painted by the
Court in Apprendi, the historical “tradition was not uni-
form, suggesting that the common law had no fixed rule on
the subject.” S. Bibas, Judicial Fact-Finding and Sentence
Enhancements in a World of Guilty Pleas, 110 Yale L. J.
1097, 1129 (2001); see also, e.g., id., at 1123–1132; Little &
Chen, 17 Fed. Sentencing Rep., at 69–70; J. Mitchell, Ap-
prendi’s Domain, 2006 S. Ct. Rev. 297, 298–299.
   In any event, the Constitution itself does not mention
sentencing at all—let alone the work of courts when sen-
tencing—and it certainly “does not freeze 19th-century sen-
tencing practices into permanent law.” Apprendi, 

 (Breyer, J., dissenting). Moreover, “[a]n essential as-
pect of the Constitution’s endurance is that it empowers the
political branches to address new challenges by enacting
new laws and policies.” Consumer Financial Protection Bu-
reau v. Community Financial Services Assn. of America,
Ltd., 

, 446 (2024) (JACKSON, J., concurring).
In my view, the People’s elected representatives should be
able to pursue new and innovative approaches to sentenc-
ing and sentencing reform “without undue interference by
courts,” ibid., especially given that unfair and disparate
sentences are a persistent societal problem that the legisla-
ture is indisputably authorized to address.
   Nor is there a functional, policy-based justification for the
constitutional rule that Apprendi and its progeny en-
shrined. The Court has repeatedly characterized Apprendi
as preserving “the right of jury trial” in the past, Blakely,

, and persists with that mantra to this day,
ante, at 5–8. As the reasoning goes, because the Apprendi
rule recognizes that it is “ ‘unconstitutional for a legislature
to remove from the jury the assessment of facts that in-
crease the prescribed range of penalties to which a criminal
12              ERLINGER v. UNITED STATES

                    JACKSON, J., dissenting

defendant is exposed,’ ” 570 U. S., at 490, Apprendi “pre-
serves the historic role of the jury as an intermediary be-
tween the State and criminal defendants,” Alleyne, 

.
   But, in reality, the Apprendi rule does no such thing. A
sentencing judge today remains free, consistent with Ap-
prendi, to impose any punishment within a prescribed sen-
tencing range based on whatever facts she deems relevant.
See 

 (conceding that judges may “exercise
discretion—taking into consideration various factors relat-
ing both to offense and offender—in imposing a judgment
within the range prescribed” (emphasis deleted)). So,
“[u]nder the Apprendi doctrine, the jury plays only one role
with respect to sentencing, and it is an indirect one: If the
defendant does not plead guilty, then the jury must deter-
mine the presence or absence of the verdict facts that oper-
ate to constrain the outer limit of the judge’s authority to
impose sentence.” B. Priester, Apprendi Land Becomes Bi-
zarro World: “Policy Nullification” and Other Surreal Doc-
trines in the New Constitutional Law of Sentencing, 

, 47 (2011) (emphasis added). Mean-
while, the judge continues to be the sole decisionmaker with
respect to determining the facts she will rely upon to sen-
tence within the typically broad statutory sentencing range.
See United States v. Booker, 

 (2005). “The
jury plays no role in extraverdict factfinding, nor in calcu-
lating the specific sentence to be imposed within the outer
limit authorized by the verdict facts.” Priester, 51 Santa
Clara L. Rev., at 48.
   Apprendi’s distinction between permissible and imper-
missible judicial factfinding therefore neither aligns with
the doctrine’s rationale nor achieves its stated goals. As a
result, the Apprendi rule does little actual work. Even after
Apprendi, a sentencing judge can still find and consider any
fact—including sentencing factors defined by the legisla-
                  Cite as: 

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                     JACKSON, J., dissenting

ture—so long as the consequence of that fact is not manda-
tory but rather left to the judge’s discretion. And after Ap-
prendi, just as before, criminal defendants routinely stipu-
late to facts that are relevant to statutory maximums and
minimums as part of binding plea agreements, making fact-
finding with respect to these newfound elements irrelevant.
So, really, the only change that Apprendi has wrought is
that legislatures may no longer limit judicial discretion as
a matter of law by requiring that a particular sentencing
fact have a particular effect on the sentence. See Blakely,
542 U. S., at 303–304.
   At bottom, then, all the Apprendi doctrine has done is
“shiel[d] the sentencing power of judges from legislative en-
croachment.” Priester, 51 Santa Clara L. Rev., at 49. Given
this, it is no wonder that, for all its exhortations about the
right to jury factfinding for sentencing purposes, the Ap-
prendi line of cases appears to have had no appreciable ef-
fect on “the number of criminal jury trials” or on “the num-
ber of sentence-affecting facts decided by juries in those
trials that do occur.” F. Bowman, Debacle: How the Su-
preme Court Has Mangled American Sentencing Law and
How It Might Yet Be Mended, 

, 461
(2010).
                              B
   In terms of the impact on the functioning of our criminal
justice system, however, the consequences of the Court’s de-
cisions in this area have been palpable. Most notably for
present purposes, Apprendi has prevented legislatures
from developing innovative methods to achieve fairness in
sentencing and thus, in my view, has stunted our collective
pursuit of justice. What I mean by this is that, while “[l]eg-
islatures may set the available penalties for offenses using
verdict facts,” they must now be essentially hands off “once
that scope of punishment is established.” Priester, 51
Santa Clara L. Rev., at 50. Far from the mystical myth that
14              ERLINGER v. UNITED STATES

                     JACKSON, J., dissenting

the Sixth Amendment vests juries with sentencing power,
the reality is that, through its Apprendi doctrine, the Court
has merely managed to oust the legislature from its rightful
place in the sentencing policy sphere, thereby effectively
“insist[ing] that the power to consider sentencing facts and
assess their normative worth must rest [solely] with
judges.” Priester, 51 Santa Clara L. Rev., at 50.
   The People’s representatives are left with “a binary
choice” when crafting legislation due to the Apprendi doc-
trine—“a fact is either of a type that triggers the full pano-
ply of procedural protections that comes with the Sixth
Amendment jury-trial right, or it is of no constitutional con-
sequence and can be found and relied on by a judge with
virtually no procedural safeguards at all.” Bowman, 77
U. Chi. L. Rev., at 466; see also Blakely, 542 U. S., at 330–
340 (Breyer, J., dissenting) (outlining the limited options
that legislatures have, all of which “ris[k] either impracti-
cality, unfairness, or harm to the jury trial right”). But not
every fact fits neatly into this dichotomy. Moreover, and
importantly, judges and juries engage with facts differently
in the context of their distinct roles.
   “Juries provide democratic legitimacy, common sense,
and fresh perspectives.” Berman & Bibas, 4 Ohio St. J.
Crim. L., at 62. Meanwhile, “[j]udges are experts, can more
effectively and consistently apply complex rules, and have
flexibility in how they consider evidence.” Id., at 62–63.
But under the Apprendi rule, the policymaking branches of
our government can no longer devise more nuanced, crea-
tive approaches to factfinding at sentencing that better re-
flect the differing competencies of jurors and judges.
   In short, the Court’s all-or-nothing approach to the jury-
trial right in Apprendi and its kin “pose[s] a serious obstacle
to [legislative] efforts to create a sentencing law that would
mandate more similar treatment of like offenders, that
would thereby diminish sentencing disparity, and that
                 Cite as: 

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                    JACKSON, J., dissenting

would consequently help to overcome irrational discrimina-
tion (including racial discrimination) in sentencing.”
Booker, 

 (Breyer, J., dissenting in part).
The Court has also “deprive[d] Congress and state legisla-
tures of authority that is constitutionally theirs.” 

.
                              C
   I recognize that many criminal defendants and their ad-
vocates prefer the Apprendi regime, which provides some
defendants with more procedural protections at sentencing.
In no way am I suggesting that the defense bar has “been
‘somehow duped’ into advocating for a rule that would be
‘unfair to criminal defendants.’ ” Ante, at 24 (quoting
Blakely, 

). Defendants’ embrace of the Ap-
prendi doctrine is perfectly rational because procedural
rights like the right to have a jury determine certain sen-
tencing facts “hel[p] some defendants—and probably rais[e]
the overall level of defense victories—by giving their law-
yers claims and arguments that otherwise would not exist.”
W. Stuntz, The Uneasy Relationship Between Criminal
Procedure and Criminal Justice, 107 Yale L. J. 1, 45 (1997).
   In my view, however, the benefit that some criminal de-
fendants derive from the Apprendi rule in the context of
their individual cases is outweighed by the negative sys-
temic effects that Apprendi has wrought, when compared to
“the greater fairness of a sentencing system that a more
uniform correspondence between real criminal conduct and
real punishment helps to create.” Blakely, 

(Breyer, J., dissenting). An individual defendant may, of
course, benefit from a reduced sentence based on a jury’s
verdict under the Apprendi rule, but that favorable outcome
for one person does little to ensure systemic fairness, con-
sistency, and transparency in sentencing. See Stuntz, 107
Yale L. J., at 75.
   The U. S. Sentencing Commission has documented the
16              ERLINGER v. UNITED STATES

                     JACKSON, J., dissenting

impact of the Apprendi rule in the wake of our decision in
United States v. Booker, 

, which applied Ap-
prendi to the Federal Sentencing Guidelines. In Booker, we
found certain judicial factfinding in the Guidelines context
unconstitutional under Apprendi, but to remedy that viola-
tion, we also held that the Guidelines must be treated as
advisory rather than mandatory. 543 U. S., at 244–245. Af-
ter Booker, sentencing disparities of all manner have in-
creased significantly. Otherwise similarly situated defend-
ants appear to receive vastly different sentences depending
on the court in which they are prosecuted and what judge
is assigned to their case. See, e.g., United States Sentenc-
ing Commission, Inter-District Differences in Federal Sen-
tencing Practices 7 (Jan. 2020) (“Variations in sentencing
practices across districts increased in the wake of the Su-
preme Court’s 2005 decision in Booker”); United States Sen-
tencing Commission, Intra-City Differences in Federal Sen-
tencing Practices 7 (Jan. 2019) (“In most cities, the length
of a defendant’s sentence increasingly depends on which
judge in the courthouse is assigned to his or her case”).
Given the history of sentencing reform in our Nation, see
Part I–B, supra, it was foreseeable that Apprendi’s interfer-
ence with legislative control over judicial sentencing discre-
tion would contribute to these kinds of disparities.
   Among the evidence that has been amassed concerning
Apprendi’s negative downstream impact on sentencing fair-
ness, one statistic is particularly sobering: In the federal
criminal justice system, racial disparities in sentencing
have been a persistent problem, but the gap between simi-
larly situated Black and White male defendants “was nar-
rowest” before the Court applied Apprendi to the Guide-
lines. K. Klein & S. Klein, A Racially Biased Obstacle
Course: Apprendi Transformed the Federal Sentencing
Guidelines into a Series of Judicial Obstacles; Can Shame
Reduce the Racial Disparities? 99 N. C. L. Rev. 1391, 1412
                  Cite as: 

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                     JACKSON, J., dissenting

(2021); see also United States Sentencing Commission, De-
mographic Differences in Sentencing: An Update to the
2012 Booker Report 6 (Nov. 2017). And Apprendi appears
to have made things appreciably worse. See Klein & Klein,
99 N. C. L. Rev., at 1412 (“Currently, for every fifty-one
months a judge gives a White man, a similarly situated
Black man receives eight more”).
   So, while the defense bar might like Apprendi because its
rule can benefit individual defendants in certain cases, that
rule might also be inhibiting our collective achievement of
a fairer sentencing system more broadly.
   I do acknowledge, however, that there are risks involved
with legislative innovation in this area, since not all legis-
lative action in the sentencing realm will be made in pur-
suit of greater systemic fairness. Legislatures are some-
times incentivized to adopt more punitive measures, such
as mandatory minimums or severe recidivism-based sen-
tencing enhancements. See W. Stuntz, The Pathological
Politics of Criminal Law, 

, 530–531
(2001). And at least in some circumstances, the Apprendi
rule operates to blunt such measures. See Alleyne, 570
U. S., at 123–124 (Breyer, J., concurring in part and con-
curring in judgment). But problems created by the legisla-
ture can also be addressed through the democratic process;
indeed, legislators have recently retreated from harsh sen-
tencing laws. See, e.g., First Step Act of 2018, Pub. L. 115–
391, 

; see also Pulsifer v. United States, 

 (2024) (GORSUCH, J., dissenting) (discussing
the First Step Act’s attempt to “recalibrate [Congress’s] ap-
proach” to sentencing). Meanwhile, Apprendi’s constitu-
tional rule operates to constrain legislative reforms while
also potentially perpetuating the unfairness caused by un-
warranted disparities.
   To be clear, my skepticism of Apprendi should not be
taken to suggest that I believe that legislatures should have
unbridled authority to write laws that distinguish between
18              ERLINGER v. UNITED STATES

                     JACKSON, J., dissenting

sentencing factors and elements. There is, of course, “a risk
of unfairness involved in permitting [legislatures] to make
this labeling decision.” Blakely, 

 (Breyer,
J., dissenting). Sentencing policymakers could, perhaps,
“permit [a sentencing factor] to be a tail which wags the dog
of the substantive offense.” McMillan, 

. For
example, in the most extreme circumstances, a legislature
“might permit a judge to sentence an individual for murder
though convicted only of making an illegal lane change.”
Blakely, 

 (Breyer, J., dissenting).
   But, to me, the most logical solution to that problem is
not to invoke the jury-trial right, as the Court has held.
“The jury-trial right addresses only who makes certain de-
terminations, not how these determinations are made.”
Berman & Bibas, 4 Ohio St. J. Crim. L., at 58–59; see also
Bibas, 110 Yale L. J., at 1177–1180. By contrast, “the Due
Process Clause is well suited” to address unfair sentencing
procedures. Blakely, 

 (Breyer, J., dissent-
ing); see also Morrissey v. Brewer, 

 (1972)
(“[D]ue process is flexible and calls for such procedural pro-
tections as the particular situation demands”). Other con-
stitutional provisions, like the Eighth Amendment’s prohi-
bition against excessive fines and cruel and unusual
punishments, also play an obvious role in limiting the types
of punishments that can be imposed based on sentencing
factors. See, e.g., Ring v. Arizona, 

 (2002)
(Breyer, J., concurring in judgment); United States v. Ba-
jakajian, 

, 334–335 (1998).
   In other words, to my mind, not every sentencing problem
is a nail requiring an Apprendi hammer. To the contrary,
applying Apprendi to address these and other concerns
seems to simply erect further roadblocks for policymakers
who might otherwise act to promote more fairness in sen-
tencing.
                  Cite as: 

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                     JACKSON, J., dissenting

                               III
   So what do my concerns about Apprendi have to do with
my analysis of the question presented in this case? The
doubts I have make me reluctant to join a ruling that ex-
tends Apprendi’s holding unnecessarily. And, here, we
need not conclude that the occasions finding in ACCA is one
to which the Apprendi rule applies, as JUSTICE KAVANAUGH
explains. Ante, at 3 (dissenting opinion). Indeed, we have
already recognized that “[j]udges may,” consistent with the
Apprendi rule, “resolve questions about a defendant’s past
crimes . . . that are relevant not to the defendant’s guilt for
the present offense but rather to the length of the defend-
ant’s sentence.” Ante, at 3; see also Almendarez-Torres, 

.
   I will use this opportunity to make one additional obser-
vation: Not only is the majority’s approach to ACCA’s occa-
sions finding inconsistent with our precedent (as JUSTICE
KAVANAUGH observes, ante, at 3–4), it is also unworkable
in practice, due to the limitations inherent in jury presen-
tations. That is, for all the majority’s talk of constitutional
theory, it gives little thought to “proportionality, uni-
formity, and administrability,” which “are all aspects of
that basic ‘fairness’ that the Constitution demands.” Ap-
prendi, 

 (Breyer, J., dissenting).
   As a reminder, ACCA directs sentencing courts to impose
a 15-year mandatory minimum for a violation of 

(g) if the defendant has three qualifying prior convic-
tions “committed on occasions different from one another.”

(e)(1). In Wooden, we explained that
ACCA’s occasions finding is not a simple up-or-down assess-
ment; rather, the factfinder must consider “a range of cir-
cumstances,” including the timing, location, character, and
relationship of the crimes. 

. The majority
now concludes that, “given the intensely factual nature of
this inquiry . . . , a jury must resolve it.” Ante, at 4. I come
to exactly the opposite conclusion, based on the nature of
20              ERLINGER v. UNITED STATES

                     JACKSON, J., dissenting

the factfinding that judges and juries engage in—and their
relative competencies. In my view, “the intensely factual
nature of this inquiry,” ibid., when combined with the fact
that ACCA’s occasions finding often pertains to long-past
prior criminal behavior by the defendant, is precisely why
a jury is poorly situated to make such a finding, as opposed
to a judge. As I explain below, the particular factfinding
determination that the occasions inquiry requires is unsuit-
able for juries to decide in terms of both fairness and effi-
ciency—two crucial criteria for procedural requirements in
a criminal justice system.
                                A
   As to fairness, ACCA’s occasions determination involves
facts about a defendant’s past crimes that can prejudice the
jury against the defendant and thereby make it more diffi-
cult for the jury to find in the defendant’s favor with respect
to the occasions issue.
   Past criminality on a defendant’s part “is a traditional, if
not the most traditional, basis for a sentencing court’s in-
creasing an offender’s sentence.” Almendarez-Torres, 

. And there is a good reason judges have long
been entrusted with finding facts related to recidivism—be-
cause “the introduction of evidence of a defendant’s prior
crimes” to a jury “risks significant prejudice.” 

.
This Court has specifically recognized the substantial risk
of “generalizing a defendant’s earlier bad act into bad char-
acter and taking that as raising the odds that he did the
later bad act now charged.” Old Chief v. United States, 

, 180–181 (1997). Empirical research has further
confirmed the commonsense conclusion that criminal his-
tory is prejudicial. See, e.g., T. Eisenberg & V. Hans, Tak-
ing a Stand on Taking the Stand: The Effect of a Prior Crim-
inal Record on the Decision To Testify and on Trial
Outcomes, 

, 1357 (2009) (“Juries ap-
                      Cite as: 

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                         JACKSON, J., dissenting

pear to rely on criminal records to convict when other evi-
dence in the case normally would not support conviction”).
   As JUSTICE KAVANAUGH notes, such fairness concerns
have long compelled courts to keep facts concerning a de-
fendant’s criminal history away from juries. Ante, at 16–
17. “Courts that follow the common-law tradition almost
unanimously have come to disallow resort by the prosecu-
tion to any kind of evidence of a defendant’s evil character
to establish a probability of his guilt.” Michelson v. United
States, 

 (1948). This principle—that ju-
ries would be prejudiced by exposure to a defendant’s crim-
inal history—is, in fact, a cornerstone of criminal proce-
dure.3
   The majority seems to agree that past-crimes evidence is
prejudicial, at least to a certain extent. It says that, when
ACCA’s occasions inquiry is set for jury determination un-
der the Apprendi rule (as we require today), trial courts will
need “to address the prejudicial effect evidence about a de-
fendant’s past crimes can have on a jury.” Ante, at 24. In
the majority’s view, however, the “[m]ost obviou[s]” solution
is bifurcating the proceedings between the §922(g) charge
and ACCA’s occasions determination. Ibid. But bifurcation
is not an easy fix, as JUSTICE KAVANAUGH explains. Ante,
at 18. For one thing, bifurcation of trial proceedings im-
poses significant additional burdens on the criminal justice
system. Ibid. I will point to an additional problem: Even

——————
   3 For example, this Court has held that, when a defendant stipulates

to the existence of a prior conviction, the prosecution may not introduce
evidence of the underlying facts for that conviction. Old Chief, 

. Similarly, we have recognized that prosecutors may not comment
on a defendant’s refusal to testify, given that such a refusal may stem
from a concern that his prior convictions will be used to impeach him and
thus prejudice the jury. See Griffin v. California, 

(1965). The suggestion that juries should now engage in rigorous fact-
finding with respect to a defendant’s criminal history is in tension with
these prior pronouncements.
22               ERLINGER v. UNITED STATES

                      JACKSON, J., dissenting

bifurcation may not suffice to completely eliminate poten-
tial juror prejudice with respect to the occasions finding.
   Consider, if you will, the kinds of evidence the prosecu-
tion might ask a jury to evaluate in a bifurcated trial over
(the comparatively pedestrian) question whether a defend-
ant’s prior crimes were committed on different occasions.
Also imagine the defendant’s potential arguments in re-
sponse. Concerning the latter, in this case, Erlinger’s coun-
sel suggested that his past crimes—three burglaries that
occurred on different dates over an 8-day period—could con-
ceivably constitute a single occasion of criminality if those
break-ins were all committed “to get money to pay [a] gam-
bling debt.” Tr. of Oral Arg. 25. Under Wooden’s inquiry,
however, any jury making the occasions determination in
this case would not be directed just to consider whether Er-
linger did, in fact, have a gambling problem—they would
also have to determine exactly what happened during each
of Erlinger’s burglaries.
   The jury would be called upon to assess Erlinger’s credi-
bility and decide whether they believed his gambling-debt
story in light of his criminality, and the potential prejudice
from entertaining evidence about all the sordid details of
Erlinger’s underlying crimes makes a fair credibility find-
ing much more difficult. In other words, Erlinger’s past
criminal behavior, and the fact that he was previously con-
victed of these crimes (more than one of them), conclusively
establishes that Erlinger is a convicted serial burglar—and
perhaps a violent one at that—rendering any credibility
finding in the defendant’s favor significantly more dubious.
See Shepard v. United States, 

 (2005)
(O’Connor, J., dissenting) (observing that the “prejudice is
likely to be especially strong in ACCA cases, where the rel-
evant prior crimes are, by definition, ‘violent’ ”); see also Mi-
chelson, 

 (observing that prior-crimes evi-
dence can “overpersuade” jurors “to prejudge [a defendant]
with a bad general record and deny him a fair opportunity
                   Cite as: 

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                      JACKSON, J., dissenting

to defend against” the Government’s arguments).
   To be sure, preventing undue prejudice against defend-
ants is an important responsibility of judges, and it is cer-
tainly possible that, with the benefit of careful limiting in-
structions, jurors would be able to dispassionately consider
evidence about the nature and extent of a defendant’s past
criminality only for the narrow question whether the de-
fendant’s past crimes were, in fact, committed on separate
occasions. See Spencer v. Texas, 

 (1967).
But given what Wooden calls for, it seems as though some
degree of prejudice from the sheer fact of the defendant’s
having been previously convicted of crimes of this nature is
inevitable. See Krulewitch v. United States, 

 (1949) (Jackson, J., concurring) (“The naive assumption
that prejudicial effects can be overcome by instructions to
the jury, all practicing lawyers know to be unmitigated fic-
tion” (citation omitted)).
                                  B
   The potential for prejudice is not the only practical prob-
lem. At the same time, a jury trial—a highly regulated, in-
flexible proceeding—is, by its nature, poorly equipped to
deal with the fine-grained, nuanced determinations based
on sometimes-decades-old evidence that are necessary to
fairly adjudicate factual questions like the one that ACCA’s
occasions inquiry raises. This mismatch, too, persists even
in the proposed world of bifurcated trials. Bifurcated trials
or no, it is wildly inefficient for our system to try to fit the
square peg of factfinding related to past criminality for sen-
tencing purposes into the round hole of the existing pro-
cesses that govern jury determinations.
   As I have explained, factfinding at trial (before a jury)
and factfinding at sentencing (before a judge) differ proce-
durally in fundamental ways. See Part I–A, supra. Jury
factfinding is restricted and regimented, because a jury
trial is “confine[d] . . . to evidence that is strictly relevant to
24               ERLINGER v. UNITED STATES

                     JACKSON, J., dissenting

the particular offense charged.” Williams, 

.
Meanwhile, because “[a] sentencing judge . . . is not con-
fined to the narrow issue of guilt,” she is not bound by “strict
evidentiary procedural limitations”; rather, when deter-
mining the appropriate sentence, a judge “exercise[s] a wide
discretion in the sources and types of evidence used to assist
[her] in determining the kind and extent of punishment to
be imposed.” 

 at 246–247.
   Again, ACCA’s occasions determination is illustrative.
Recall that Wooden requires a nuanced consideration of
various factors, such as timing, location, and character of
the past crimes, to determine whether those past crimes
constituted separate “episodes of criminal activity.” 

. The “strict evidentiary procedural limita-
tions” that apply to juries, Williams, 

, make
it impractical for juries to conduct this kind of assessment.
To take just one example, ACCA cases typically involve
predicate crimes that may have occurred years—or even, as
here, decades—ago. See ante, at 2–3. Erlinger’s sentencing
for the crime to which ACCA potentially applies took place
in 2022. See App. to Pet. for Cert. 14a. The three burglaries
that gave rise to the occasions issue occurred 31 years
prior—in 1991. 

 at 21a. Given the rigidity of trials and
the frailty of trial evidence, how—that is, based on what ev-
idence—is a jury supposed to go about making the occasions
finding in this case?
   The majority today boldly relegates this particular fact-
finding task to a jury, without pausing to explain how this
assignment will reasonably be accomplished in light of
these practical limitations. “But the real world of criminal
justice . . . can function only with the help of procedural
compromises, particularly in respect to sentencing.” Ap-
prendi, 

 (Breyer, J., dissenting). Even set-
ting aside that a perfectly competent alternative partici-
pant in the criminal justice process (the judge) stands ready
to do this (and can do it quite well, with the flexibility her
                  Cite as: 

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                     JACKSON, J., dissenting

role affords), I foresee many practical obstacles to jury fact-
finding concerning this particular recidivism fact, not the
least of which is that evidence required to make the occa-
sions determination with any reliability may not be in a
form suitable for submission to a jury, or simply may no
longer exist.
   Issues concerning the state of the evidence with respect
to decades-old past crimes could be why, between Wooden
and now, most sentencing judges have made ACCA’s occa-
sions finding based solely on so-called Shepard documents,
which “include judicial records, plea agreements, and collo-
quies between a judge and the defendant” from the past
criminal proceeding. Ante, at 15. In the context of a sen-
tencing hearing, a judge—who, after all, has professional
familiarity with these kinds of records—can consider such
documents with minimal effort. Judges know how to inter-
pret these sorts of court records. Additionally, during sen-
tencing proceedings, parties’ arguments and evidence are
not restricted, so based on what the parties find, as well as
what evidence still exists, arguments can be made directly
to the judge about whether the occasions inquiry is satis-
fied, including arguments that speak directly to imperfect
recordkeeping and any potentially material gaps.
   Not so for a jury trial—at least not easily. There is a good
reason why lawyers present live witnesses to juries: Show-
ing the cold record documenting an event to a jury has much
less value. At a minimum, a jury tasked with making the
occasions finding would likely need an explanation of what
the Shepard documents say, and in this adversarial con-
text, that explanation could probably not be provided by the
lawyers on their own—it would most likely have to take the
form of witness testimony.
   And if we were to authorize juries to go beyond the Shep-
ard documents related to past crimes in order to make the
occasions finding, that inquiry would probably be even more
26                 ERLINGER v. UNITED STATES

                         JACKSON, J., dissenting

difficult to conduct reliably. Why? First, because, presum-
ably, the original evidence and witnesses related to a de-
fendant’s past crimes would have to be somehow located
and produced, despite the passage of time and potential
chain-of-custody issues. Then, once we overcome those hur-
dles, the rules of evidence would most likely come into
play—screening out potentially probative considerations.
By comparison, a sentencing judge can account for imper-
fections in the evidentiary records and is permitted to con-
sider all manner of inadmissible evidence (such as out-of-
court affidavits or hearsay testimony) in order to sentence.
See Williams, 

.4
   Also, in terms of the most efficient use of the justice sys-
tem’s limited resources, any witnesses could testify in nar-
rative form when appearing before a sentencing judge as a
factfinder, at a hearing designated for this purpose, without
requiring examination by lawyers. In a jury trial, by con-
trast, such evidence would likely have to satisfy “strict evi-
dentiary procedural limitations,” ibid., such as direct, cross,
and redirect examination. That may prove particularly and
prohibitively cumbersome for the occasions inquiry, which
is one small piece of the larger sentencing puzzle.
   All of these practical considerations lead me to believe
that insisting that juries make factual determinations
about a defendant’s past criminal behavior—and especially
the “intensely factual” one at issue here, ante, at 4—is not
only unwise but unworkable. Again, how will juries of to-
day actually determine what happened—and why—with
——————
   4 Some courts have held that sentencing judges cannot consider any

evidence other than Shepard documents when undertaking ACCA’s oc-
casions inquiry. See, e.g., United States v. Elliott, 

(CA7 2012). But, in general, those conclusions appear to rest on a mis-
understanding of the scope of a judge’s power to find recidivism facts. As
I have explained, judges have long been able to make factual findings for
sentencing purposes by considering all manner of evidence, and they are
well equipped to consider any relevant evidence in making recidivism
findings.
                  Cite as: 

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                     JACKSON, J., dissenting

respect to long-forgotten crimes of yesteryear? Who will
testify about those crimes (who is still around and remem-
bers)? And where is the physical evidence that was origi-
nally used to try those cases now?
   These kinds of challenges present one obvious reason
that, even as the Apprendi Court held that the Constitution
prohibits judges from finding facts “that increas[e] the pen-
alty for a crime beyond the prescribed statutory maximum,”
it also included an express exemption—“[o]ther than the
fact of a prior conviction.” 

. Perhaps the
Court saw fit to expressly exclude the fact of a prior convic-
tion from its original holding in Apprendi because of the re-
ality that requiring juries to find recidivism facts is simply
not doable. See 

 (Breyer, J., dissenting) (empha-
sizing “the impractical nature” of the Apprendi rule).
   But, hey, says today’s majority, why should unrealistic
expectations stop the Court from nonetheless requiring this
to be done? Not one to be attentive to practical realities,
especially when it believes it has constitutional theory on
its side, the majority now plows forward, pushing the Ap-
prendi doctrine into the realm of facts related to recidivism,
which Apprendi had excluded, and which lower courts have
nearly uniformly reserved for sentencing judges in the two
decades since that opinion issued.
   The bottom line is this: Unlike juries, judges have the
competency, wherewithal, and flexibility to assess facts re-
lated to defendants’ past crimes and to handle, in a bal-
anced way, the various practical problems that reliance on
that kind of evidence raises. All things considered, then,
committing the factfinding exercise related to ACCA’s occa-
sions inquiry to judges is by far more efficient, and probably
more fair to participants in the justice system overall, than
requiring juries to make that finding. For this reason, too,
this Court should have continued to allow judges to do what
they have always done and what they do best—make fac-
tual findings related to a defendant’s criminal history, as
28              ERLINGER v. UNITED STATES

                     JACKSON, J., dissenting

Apprendi seems to permit, through its acceptance of Al-
mendarez-Torres.
                          *    *     *
   Judges take into account all kinds of facts about a crimi-
nal offense and the defendant when sentencing—they al-
ways have, and they always will. Doing so is, in fact, how
a judge goes about determining what sentence to impose in
a given case. Thus, the notion that it is possible for judges
to find facts in order to “lower” but not “increase” a defend-
ant’s sentence, ante, at 10, n. 1 (emphasis deleted), is a the-
oretical concept that bears no relationship to how sentenc-
ing actually works in a courtroom.
   This might well be why, in reality, judges have continued
to find facts that relate to the penalties they impose on
criminal defendants (even facts that they ultimately rely on
to give a higher sentence than the defendant may have oth-
erwise received) regardless of this Court’s pronouncements
purporting to vindicate defendants’ constitutional rights by
giving juries the responsibility to make those particular fac-
tual determinations. Ultimately, then, all the Apprendi
rule accomplishes on the ground is impeding legislative di-
rectives to courts about the exercise of judicial discretion
when sentencing—a development that, in my view, does not
redound to the benefit of defendants collectively, the crimi-
nal justice system, or our democratic society.
   In any event, before today, recidivism facts in particular
have been specifically reserved for judges to determine; Ap-
prendi itself expressly exempted the fact of a prior convic-
tion from the rule it was announcing. I would not extend
the Apprendi rule to cover this kind factfinding now, espe-
cially since applying Apprendi to recidivism facts creates a
host of practical problems that pertain to fairness and effi-
ciency. Because the Court applies the Apprendi doctrine to
recidivism findings when it did not have to do so, and also
reaches that conclusion without concern for the myriad
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                    JACKSON, J., dissenting

practical difficulties that arise from this determination, I
respectfully dissent.