☢ test - Í

‘extended term’ of imprisonment if the trial judge finds, by a preponderance of the evidence, that ‘[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ [Cit.] The extended term authorized by the hate crime law for second-degree offenses is imprisonment for ‘between 10 and 20 years.’” Trial court found, by the preponderance of the evidence, that defendant’s offense fit the hate crimes statute, and sentenced defendant to 12 years. Held, the hate crimes statute violates due process and defendant’s right to trial by jury. The defendant “had a constitutional right to have a jury find [hate crimes] bias on the basis of proof beyond a reasonable doubt.” Based on “ Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), [which] construing a federal statute. We there noted that ‘ under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ Id., at 243, n. 6, 119 S.Ct. 1215. The Fourteenth Amendment commands the same answer in this case involving a state statute.” Also based on In re: Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”). Rejects State’s attempt to characterize the hate crimes statute as a mere “sentencing factor”: “[a]ny possible distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court [fn] as it existed during the years surrounding our Nation's founding.” Instead, a “sentencing factor” should be understood to mean “a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense. On the other hand, when the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an “element” of the offense.” Contrary to dissent (O’Connor, writing for Rehnquist, Kennedy and Breyer), nothing in the majority’s analysis “suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” But the defendant must have the opportunity to require the State to prove before a jury, beyond a reasonable doubt, facts “‘that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence.’ Almendarez-Torres [ v. United States, 523 U.S. 224, 251, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (SCALIA, J., dissenting)].” Factors that might establish mandatory minimum sentences, however, may be considered “sentencing factors” and not “elements of the offense,” per McMillan v. Pennsylvania, 477 U.S. 79, 86-88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), but “[w]e did not [in McMillan ] budge from the position that (1) constitutional limits exist to States' authority to define away facts necessary to constitute a criminal offense, id., at 85-88, 106 S.Ct. 2411, and (2) that a state scheme that keeps from the jury facts that ‘expos[e] [defendants] to greater or additional punishment,’ id., at 88, 106 S.Ct. 2411, may raise serious constitutional concern.” Almendarez-Torres , however, recognized an exception for statutes that mandate greater sentences based on recidivism. “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in [ Jones ]: ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ 526 U.S., at 252-253, 119 S.Ct. 1215 (opinion of STEVENS, J.).” Thomas concurs, but would broaden the holding to include recidivism (Scalia agrees on this point) and factors requiring mandatory minimum sentences. O’Connor, writing for Rehnquist, Kennedy and Breyer, casts doubt on the constitutional pedigree of the rule enunciated by the majority; argues that it conflicts with other recent precedent of the Court such as Walton v. Arizona, 497 U.S. 639, 647, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (“‘Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.’”) and McMillan and others , which “declined to establish any bright-line rule for making such judgments and have instead approached each case individually”; and argues that the majority’s rule is “pure formalism,” given that a State can achieve the same result by setting a higher maximum sentence subject to mitigation upon the Court’s finding of the absence of certain factors. O’Connor also predicts (accurately) that the ruling will cause the federal (and state) sentencing guidelines to be held to be unconstitutional. Walton overruled by Ring v. Arizona (June 24, 2002), above. Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (March 24, 1999). Reversing Ninth Circuit; District Court erred by sentencing defendant based on criteria not found by jury beyond a reasonable doubt which increased the maximum sentence for carjacking. Defendant was convicted at jury trial on federal carjacking and related