Justice Stevens

delivered the opinion of the Court.

A New Jersey statute classifies the possession of a firearm for an unlawful purpose as a “second-degree” offense. N. J. Stat. Ann. § 2C:39-4(a) (West 1995). Such an offense is punishable by imprisonment for “between five years and 10 years.” §2C:4S-6(a)(2). A separate statute, described by that State’s Supreme Court as a “hate crime” law, provides for an “extended term” of imprisonment if the trial judge finds, by a preponderance of the evidence, that “[t]he de*469fendant 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.” N. J. Stat. Ann. §2C:44-3(e) (West Supp. 1999-2000). The extended term authorized by the hate crime law for second-degree offenses is imprisonment for “between 10 and 20 years.” § 2C:43-7(a)(3).

The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.

I

At 2:04 a.m. on December 22, 1994, petitioner Charles C. Apprendi, Jr., fired several .22-caliber bullets into the home of an African-American family that had recently moved into a previously all-white neighborhood in Vineland, New Jersey. Apprendi was promptly arrested and, at 3:05 a.m., admitted that he was the shooter. After further questioning, at 6:04 a.m., he made a statement — which he later retracted — that even though he did not know the occupants of the house personally, “because they are black in color he does not want them in the neighborhood.” 159 N. J. 7, 10, 731 A. 2d 485, 486 (1999).

A New Jersey grand jury returned a 23-count indictment charging Apprendi with four first-degree, eight second-degree, six third-degree, and five fourth-degree offenses. The charges alleged shootings on four different dates, as well as the unlawful possession of various weapons. None of the counts referred to the hate crime statute, and none alleged that Apprendi acted with a racially biased purpose.

The parties entered into a plea agreement, pursuant to which Apprendi pleaded guilty to two counts (3 and 18) of second-degree possession of a firearm for an unlawful pur*470pose, N. J. Stat. Ann. §2C:39-4a (West 1995), and one count (22) of the third-degree offense of unlawful possession of an antipersonnel bomb, § 2C:39-3a; the prosecutor dismissed the other 20 counts. Under state law, a second-degree offense carries a penalty range of 5 to 10 years, §2C:43-6(a)(2); a third-degree offense carries a penalty range of between 3 and 5 years, § 2C:43-6(a)(3). As part of the plea agreement, however, the State reserved the right to request the court to impose a higher “enhanced” sentence on count 18 (which was based on the December 22 shooting) on the ground that that offense was committed with a biased purpose, as described in §2C:44-3(e). Apprendi, correspondingly, reserved the right to challenge the hate crime sentence enhancement on the ground that it violates the United States Constitution.

At the plea hearing, the trial judge heard sufficient evidence to establish Apprendi’s guilt on counts 3, 18, and 22; the judge then confirmed that Apprendi understood the maximum sentences that could be imposed on those counts. Because the plea agreement provided that the sentence on the sole third-degree offense (count 22) would run concurrently with the other sentences, the potential sentences on the two second-degree counts were critical. If the judge found no basis for the biased purpose enhancement, the maximum consecutive sentences on those counts would amount to 20 years in aggregate; if, however, the judge enhanced the sentence on count 18, the maximum on that count alone would be 20 years and the maximum for the two counts in aggregate would be 30 years, with a 15-year period of parole ineligibility.

After the trial judge accepted the three guilty pleas, the prosecutor filed a formal motion for an extended term. The trial judge thereafter held an evidentiary hearing on the issue of Apprendi’s “purpose” for the shooting on December 22. Apprendi adduced evidence from a psychologist and from seven character witnesses who testified that he did not *471have a reputation for racial bias. He also took the stand himself, explaining that the incident was an unintended consequence of overindulgence in alcohol, denying that he was in any way biased against African-Americans, and denying that his statement to the police had been accurately described. The judge, however, found the police officer’s testimony credible, and concluded that the evidence supported a finding "that the crime was motivated by racial bias.” App. to Pet. for Cert. 148a. Having found “by a preponderance of the evidence” that Apprendi’s actions were taken “with a purpose to intimidate” as provided by the statute, id., at 138a, 139a, 144a, the trial judge held that the hate crime enhancement applied. Rejecting Apprendi’s constitutional challenge to the statute, the judge sentenced him to a 12-year term of imprisonment on count 18, and to shorter concurrent sentences on the other two counts.

Apprendi appealed, arguing, inter alia, that the Due Process Clause of the United States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt, In re Winship, 397 U. S. 358 (1970). Over dissent, the Appellate Division of the Superior Court of New Jersey upheld the enhanced sentence. 304 N. J. Super. 147, 698 A. 2d 1265 (1997). Relying on our decision in McMillan v. Pennsylvania, 477 U. S. 79 (1986), the appeals court found that the state legislature decided to make the hate crime enhancement a “sentencing factor,” rather than an element of an underlying offense — and that decision was within the State’s established power to define the elements of its crimes. The hate crime statute did not create a presumption of guilt, the court determined, and did not appear “‘tailored to permit the... finding to be a tail which wags the dog of the substantive offense.’” 304 N. J. Super., at 154, 698 A. 2d, at 1269 (quoting McMillan, 477 U. S., at 88). Characterizing the required finding as one of “motive,” the court described it as a traditional “sentencing factor,” one not considered an “essen*472tial element” of any crime unless the legislature so provides. 304 N. J. Super., at 158, 698 A. 2d, at 1270. While recognizing that the hate crime law did expose defendants to “ ‘greater and additional punishment/ ” id., at 156,698 A. 2d, at 1269 (citing McMillan, 477 U. S., at 88), the court held that that “one factor standing alone” was not sufficient to render the statute unconstitutional, 304 N. J. Super., at 156, 698 A. 2d, at 1269.

A divided New Jersey Supreme Court affirmed. 159 N. J. 7, 731 A. 2d 485 (1999). The court began by explaining that while due process only requires the State to prove the “elements” of an offense beyond a reasonable doubt, the mere fact that a state legislature has placed a criminal component “within the sentencing provisions” of the criminal code “does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense.” Id., at 20, 731 A. 2d, at 492. “Were that the ease,” the court continued, “the Legislature could just as easily allow judges, not juries, to determine if a kidnapping victim has been released unharmed.” Ibid, (citing state precedent requiring sueh a finding to be submitted to a jury and proved beyond a reasonable doubt). Neither could the constitutional question be settled simply by defining the hate crime statute’s “purpose to intimidate” as “motive” and thereby excluding the provision from any traditional conception of an “element” of a crime. Even if one could characterize the language this way — and the court doubted that sueh a characterization was accurate — proof of motive did not ordinarily “increase the penal consequences to an actor.” Ibid. Sueh “[ljabels,” the court concluded, would not yield an answer to Apprendi’s constitutional question. Ibid.

While noting that we had just last year expressed serious doubt concerning the constitutionality of allowing penalty- • enhancing findings to be determined by a judge by a preponderance of the evidence, Jones v. United States, 526 U. S. *473227 (1999), the court concluded that those doubts were not essential to our holding. Turning then, as the appeals court had, to McMillan, as well as to Almendarez-Torres v. United States, 523 U. S. 224 (1998), the court undertook a multifaetor inquiry and then held that the hate crime provision was valid. In the majority’s view, the statute did not allow impermissible burden shifting, and did not “create a separate offense calling for a separate penalty.” 159 N. J., at 24, 731 A. 2d, at 494. Rather, “the Legislature simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the weight to be given that factor.” Ibid., 731 A. 2d, at 494-495. As had the appeals court, the majority recognized that the state statute was unlike that in McMillan inasmuch as it increased the maximum penalty to which a defendant could be subject. But it was not clear that this difference alone would “change the constitutional calculus,” especially where, as here, “there is rarely any doubt whether the defendants committed the crimes with the purpose of intimidating the victim on the basis of race or ethnicity.” 159 N. J., at 24-25, 731 A. 2d, at 495. Moreover, in light of concerns “idiosyncratic” to hate crime statutes drawn carefully to avoid “punishing thought itself,” the enhancement served as an appropriate balance between those concerns and the State’s compelling interest in vindicating the right “to be free of invidious discrimination.” Id., at 25-26,731 A. 2d, at 495.

The dissent rejected this conclusion, believing instead that the case turned on two critical characteristics: (1) “[A] defendant’s mental state in committing the subject offense ... necessarily involves a finding so integral to the charged offense that it must be characterized as an element thereof”; and (2) “the significantly increased sentencing range triggered by . . . the finding of a purpose to intimidate” means that the purpose “must be treated as a material element [that] must be found by a jury beyond a reasonable doubt.” *474 Id., at 30, 731 A. 2d, at 498. In the dissent’s view, the facts increasing sentences in both Almendarez-Torres (recidivism) and Jones (serious bodily injury) were quite distinct from New Jersey’s required finding of purpose here; the latter finding turns directly on the conduct of the defendant during the crime and defines a level of culpability necessary to form the hate crime offense. While acknowledging “analytical tensions” in this Court’s post-Winship jurisprudence, the dissenters concluded that “there can be little doubt that the sentencing factor applied to this defendant — the purpose to intimidate a victim because of race — must fairly be regarded as an element of the crime requiring inclusion in the indictment and proof beyond a reasonable doubt.” 159 N. J., at 51, 731 A. 2d, at 512.

We granted certiorari, 528 U. S. 1018 (1999), and now reverse.

II

It is appropriate to begin by explaining why certain aspects of the case are not relevant to the narrow issue that we must resolve. First, the State has argued that even without the trial judge’s finding of racial bias, the judge could have imposed consecutive sentences on counts 3 and 18 that would have produced the 12-year term of imprisonment that Apprendi received; Apprendi’s actual sentence was thus within the range authorized by statute for the three offenses to which he pleaded guilty. Brief for Respondent 4. The constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. The finding is legally significant because it increased — indeed, it doubled — the maximum range within which the judge could exercise his discretion, converting what otherwise was a maximum 10-year sentence on that count into a minimum sentence. The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts.

*475Second, although the constitutionality of basing an enhanced sentence on racial bias was argued in the New Jersey courts, that issue was not raised here.1 The substantive basis for New Jersey’s enhancement is thus not at issue; the adequacy of New Jersey’s procedure is. The strength of the state interests that are served by the hate crime legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.

Third, we reject the suggestion by the State Supreme Court that “there is rarely any doubt” concerning the existence of the biased purpose that will support an enhanced sentence, 159 N. J., at 25, 731 A. 2d, at 495. In this very case, that issue was the subject of the full evidentiary hearing we described. We assume that both the purpose of the offender, and even the known identity of the victim, will sometimes be hotly disputed, and that the outcome may well depend in some cases on the standard of proof and the identity of the factfinder.

Fourth, because there is no ambiguity in New Jersey’s statutory scheme, this case does not raise any question concerning the State’s power to manipulate the prosecutor’s burden of proof by, for example, relying on a presumption rather than evidence to establish an element of an offense, cf. Mullaney v. Wilbur, 421 U. S. 684 (1975); Sandstrom v. Montana, 442 U. S. 510 (1979), or by placing the affirmative defense label on “at least some elements” of traditional crimes, Patterson v. New York, 432 U. S. 197, 210 (1977). The prosecutor did not invoke any presumption to buttress the evidence of racial bias and did not claim that Apprendi had the burden of disproving an improper motive. The question whether Apprendi had a constitutional right to *476have a jury find such bias on the basis of proof beyond a reasonable doubt is starkly presented.

Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U. S. 227 (1999), 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 248, n. 6. The Fourteenth Amendment commands the same answer in this ease involving a state statute.

III

In his 1881 lecture on the criminal law, Oliver Wendell Holmes, Jr., observed: “The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.”2 New Jersey threatened Apprendi with certain pains if he unlawfully possessed a weapon and ■with additional pains if he selected his victims with a purpose to intimidate them because of their race. As a matter of simple justice, it seems obvious that the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to the two acts that New Jersey has singled out for punishment. Merely using the label “sentence enhancement” to describe the latter surely does not provide a principled basis for treating them differently.

At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without “due process of law,” Arndt. 14, and the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an im*477partial jury,” Amdt. 6.3 Taken together, these rights indisputably entitle a criminal defendant to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U. S. 506, 510 (1995); see also Sullivan v. Louisiana, 508 U. S. 275,278 (1993); Winship, 397 U. S., at 364 (“[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”).

As we have, unanimously, explained, Gaudin, 515 U. S., at 510-511, the historical foundation for our recognition of these principles extends down centuries into the common law. “[T]o guard against a spirit of oppression and tyranny on the part of rulers,” and “as the great bulwark of [our] civil and political liberties,” 2 J. Story, Commentaries on the Constitution of the United States 540-541 (4th ed. 1873), trial by jury has been understood to require that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s) equals and neighbours . . . .” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) (hereinafter Blackstone) (emphasis added). See also Duncan v. Louisiana, 391 U. S. 145, 151-154 (1968).

*478Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt. “The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.’ C. McCormick, Evidence §321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed. 1940).” Winship, 397 U. S., at 361. We went on to explain that the reliance on the “reasonable doubt” standard among common-law jurisdictions “ ‘reflects] a profound judgment about the way in which law should be enforced and justice administered.’ ” Id., at 361-362 (quoting Duncan, 391 U. S., at 155).

Any 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 court4 as it existed during the years surrounding our Nation’s founding. As a general rule, criminal proceedings were submitted to a jury after being initiated by an indictment containing “all the facts and circumstances which constitute the offence, . . . stated with such certainty and precision, that the defendant. . . may be enabled to determine the species of offence they constitute, in order that he may prepare his defence accordingly ... and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.” J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) (emphasis added). The defendant’s ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime. See 4 Blaek-*479stone 369-370 (after verdict, and barring a defect in the indictment, pardon, or benefit of clergy, “the court must 'pronounce that judgment, which the law hath annexed to the crime” (emphasis added)).

Thus, with respect to the criminal law of felonious conduct, “the English trial judge of the later eighteenth century had very little explicit discretion in sentencing. The substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense. The judge was meant simply to impose that sentence (unless he thought in the circumstances that the sentence was so inappropriate that he should invoke the pardon process to commute it).” Lang-bein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700-1900, pp. 36-37 (A. Schioppa ed. 1987).5 As Blaekstone, among many others, has made clear,6 “[t]he judg*480ment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law.” 3 Blaekstone 396 (emphasis deleted).7

This practice at common law held true when indictments were issued pursuant to statute. Just as the circumstances of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment, so too were the circumstances mandating a particular punishment. “Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the of-fenee, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170].” Archbold, Pleading and Evidence in Criminal Cases, at 51. If, then, “upon an indictment under the statute, the prosecutor prove the felony to have been committed, but fail in proving it to have been committed under the circumstances specified in the statute, the *481defendant shall be convicted of the common-law felony only.” Id., at 188.8

We should be clear that nothing in this history 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. See, e. g., Williams v. New York, 337 U. S. 241, 246 (1949) (“[Bjoth 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 determining the kind and extent of punishment to be imposed within limits fixed by law” (emphasis added)). As in Williams, our periodic recognition of judges’ broad discretion in sentencing — since the 19th-century shift in this country from statutes providing fixed-term sentences to those providing judges discretion within a permissible range, Note, The Admissibility of Character Evidence in Determining Sentence, 9 U. Chi. L. Rev. 715 (1942) — has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature. See, e.g., United States v. Tucker, 404 U. S. 443, 447 (1972) (agreeing that “[tjhe Government is also on solid ground in asserting that a *482sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review” (emphasis added)); Williams, 337 U. S., at 246, 247 (explaining that, in contrast to the guilt stage of trial, the judge’s task in sentencing is to determine, “within fixed statutory or constitutional limits[,] the type and extent of punishment after the issue of guilt” has been resolved).9

The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from *483the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.10

We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers’ fears “that the jury right could be lost not only by gross denial, but by erosion.” Jones, 526 U. S., at 247-248.11 But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reason*484able doubt. As we made clear in Winship, the "reasonable doubt” requirement “has [a] vital role in our criminal procedure for cogent reasons.” 397 U. S., at 363. Prosecution subjects the criminal defendant both to “the possibility that he may lose his liberty upon conviction and... the certainty that he would be stigmatized by the conviction.” Ibid. We thus require this, among other, procedural protections in order to “provid[e] concrete substance for the presumption of innocence,” and to reduce the risk of imposing such deprivations erroneously. Ibid. If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not — at the moment the State is put to proof of those circumstances — be deprived of protections that have, until that point, unquestionably attached.

Since Winship, we have made clear beyond peradventure that Winship’s due process and associated jury protections extend, to some degree, “to determinations that [go] not to a defendant’s guilt or innoeenee, but simply to the length of his sentence.” Almendarez-Torres, 523 U. S., at 251 (Scalia, J., dissenting). This was a primary lesson of Mullaney. v. Wilbur, 421 U. S. 684 (1975), in which we invalidated a Maine statute that presumed that a defendant who acted with an intent to kill possessed the “malice aforethought” necessary to constitute the State’s murder offense (and therefore, was subject to that crime’s associated punishment of life imprisonment). The statute placed the burden on the defendant of proving, in rebutting the statutory presumption, that he acted with a lesser degree of culpability, such as in the heat of passion, to win a reduction in the offense from murder to manslaughter (and thus a reduction of the maximum punishment of 20 years).

The State had posited in Mullaney that requiring a defendant to prove heat-of-passion intent to overcome a pre*485sumption of murderous intent did not implicate Winship protections because, upon conviction of either offense, the defendant would lose his liberty and face societal stigma just the same. Rejecting this argument, we acknowledged that criminal law “is concerned not only with guilt or innocence in the abstract, but also with the degree of criminal culpability” assessed. 421 U. S., at 697-698. Because the “consequences” of a guilty verdict for murder and for manslaughter differed substantially, we dismissed the possibility that a State could circumvent the protections of Winship merely by “redefining] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.” 421 U. S., at 698.12

IV

It was in McMillan v. Pennsylvania, 477 U. S. 79 (1986), that this Court, for the first time, coined the term “sentencing factor” to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge. That case involved a challenge to the State’s Man*486datory Minimum Sentencing Act, 42 Pa. Cons. Stat. §9712 (1982). According to its provisions, anyone convicted of certain felonies would be subject to a mandatory minimum penalty of five years’ imprisonment if the judge found, by a preponderance of the evidence, that the person “visibly possessed a firearm” in the course of committing one of the specified felonies. 477 U. S., at 81-82. Articulating for the first time, and then applying, a multifaetor set of criteria for determining whether the Winskip protections applied to bar such a system, we concluded that the Pennsylvania statute did not run afoul of our previous admonitions against relieving the State of its burden of proving guilt, or tailoring the mere form of a criminal statute solely to avoid Winship’s strictures. 477 U. S., at 86-88.

We did not, however, there 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, and (2) that a state scheme that keeps from the jury facts that “expos[e] [defendants] to greater or additional punishment,” id., at 88, may raise serious constitutional concern. As we explained:

“Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. . . . The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners’ claim that visible possession under the Pennsylvania statute is ‘really5 an element of the offenses for which they are being punished- — that Pennsylvania has in effect defined a new set of upgraded felonies — would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punish*487ment, ef 18 U. S. C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through ‘use of a dangerous weapon or device’), but it does not.” Id., at 87-88.13

Finally, as we made plain in Jones last Term, Almendarez-Torres v. United States, 523 U. S. 224 (1998), represents at best an exceptional departure from the historic practice that we have described. In that case, we considered a federal grand jury indictment, which charged the petitioner with “having been ‘found in the United States . . . after being deported,’” in violation of 8 U.S.G. § 1326(a) — an offense carrying a maximum sentence of two years. 523 U. S., at 227. Almendarez-Torres pleaded guilty to the indictment, admitting at the plea hearing that he had been deported, that he had unlawfully reentered this country, and that “the earlier deportation had taken place ‘pursuant to’ three earlier ‘convictions’ for aggravated felonies.” Ibid. The Government then filed a presentenee report indicating that Almendarez-Torres’ offense fell within the bounds of § 1326(b) because, as specified in that provision, his original deportation had been subsequent to an aggravated felony conviction; accordingly, Almendarez-Torres could be subject to a sentence of up to 20 years. Almendarez-Torres objected, contending that because the indictment “had not mentioned his- earlier aggravated felony convictions,” he could be sentenced to no more than two years in prison. Ibid.

*488Rejecting Almendarez-Torres’ objection, we concluded that sentencing him to a term higher than that attached to the offense alleged in the indictment did not violate the strictures of Winship in that case. Because Almendarez-Torres had admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own— no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court. Although our conclusion in that ease was based in part on our application of the criteria we had invoked in McMillan, the specific question decided concerned the sufficiency of the indictment. More important, as Jones made crystal clear, 526 U. S., at 248-249, our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was “the prior commission of a serious crime.” 523 U. S., at 230; see also id., at 243 (explaining that “recidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence”); id., at 244 (emphasizing “the fact that recidivism ‘does not relate to the commission of the offense...’”); Jones, 526 U. S., at 249-250, n. 10 (“The majority and the dissenters in Almendarez-Torres disagreed over the legitimacy of the Court’s decision to restrict its holding to recidivism, but both sides agreed that the Court had done just that”). Both the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that “fact” in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a “fact” increasing punishment beyond the maximum of the statutory range.14

*489Even though it is arguable that Almendarez-Torres was incorrectly decided,15 and that a logical application of our reasoning today should apply if the recidivist issue were *490contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.

In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. 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 that ease: “[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 (opinion of Stevens, J.); see also id., at 253 (opinion of SCALIA, J.).16

*491V

The New Jersey statutory scheme that Apprendi asks us to invalidate allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to. impose punishment identical to that New Jersey provides for crimes of the first degree, N. J. Stat. Ann. § 2C:48 — 6(a)(1) (West 1999), based upon the judge’s finding, by a preponderance of the evidence, that the defendant’s “purpose” for unlawfully possessing the weapon was “to intimidate” his victim on the basis of a particular characteristic the victim possessed. In light of the constitutional rule ex*492plained above, and all of the eases supporting it, this practice cannot stand.

New Jersey’s defense of its hate crime enhancement statute has three primary components: (1) The required finding of biased purpose is not an “element” of a distinct hate crime offense, but rather the traditional “sentencing factor” of motive; (2) McMillan holds that the legislature can authorize a judge to find a traditional sentencing factor on the basis of a preponderance of the evidence; and (3) Almendarez-Torres extended McMillan’s holding to encompass factors that authorize a judge to impose a sentence beyond the maximum provided by the substantive statute under which a defendant is charged. None of these persuades us that the constitutional rule that emerges from our history and case law should incorporate an exception for this New Jersey statute.

New Jersey’s first point is nothing more than a disagreement with the rule we apply today. Beyond this, we do not see how the argument can succeed on its own terms. The state high court evinced substantial skepticism at the suggestion that the hate crime statute’s “purpose to intimidate” was simply an inquiry into “motive.” We share that skepticism. The text of the statute requires the factfinder to determine whether the defendant possessed, at the time he committed the subject act, a “purpose to intimidate” on account of, inter alia, race. By its very terms, this statute mandates an examination of the defendant’s state of mind— a concept known well to the criminal law as the defendant’s mens rea. 17 It makes no difference in identifying the nature *493of this finding that Apprendi was also required, in order to receive the sentence he did for weapons possession, to have possessed the weapon with a “purpose to use [the weapon] unlawfully against the person or property of another,” §2C:39-4(a). A second mens rea requirement hardly defeats the reality that the enhancement statute imposes of its own force an intent requirement necessary for the imposition of sentence. On the contrary, the fact that the language and structure of the “purpose to use” criminal offense is identical in relevant respects to the language and structure of the “purpose to intimidate” provision demonstrates to us that it is precisely a particular criminal mens rea that the hate crime enhancement statute seeks to target. The defendant’s intent in committing a crime is perhaps as close as one might hope to come to a core criminal offense “element.”18

*494The foregoing notwithstanding, however, the New Jersey-Supreme Court correctly recognized that it does not matter whether the required finding is characterized as one of intent or of motive, because “[l]abels do not afford an acceptable answer.” 159 N. J., at 20, 731 A. 2d, at 492. That point, applies as well to the constitutionally novel and elusive distinction between “elements” and “sentencing factors.” McMillan, 477 U. S., at 86 (noting that the sentencing factor — visible possession of a firearm — “might well have been included as an element of the enumerated offenses”). Despite what appears to us the clear “elemental” nature of the factor here, the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?19

As the New Jersey Supreme Court itself understood in rejecting the argument that the required “motive” finding was simply a “traditional” sentencing factor, proof of motive did not ordinarily “increase the penal consequences to an actor.” 159 N. J., at 20, 731 A. 2d, at 492. Indeed, the effect of New Jersey’s sentencing “enhancement” here is unquestionably to turn a second-degree offense into a first-degree offense, under the State’s own criminal code. The law thus runs directly into our warning in Mullaney that Winship is *495concerned as much with the category of substantive offense as “with the degree of criminal culpability” assessed. 421 U. S., at 698. This concern flows not only from the historical pedigree of the jury and burden rights, but also from the powerful interests those rights serve. The degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant’s very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.

The preceding discussion should make clear why the State’s reliance on McMillan is likewise misplaced. The differential in sentence between what Apprendi would have received without the finding of biased purpose and what he could receive with it is not, it is true, as extreme as the difference between a small fine and mandatory life imprisonment. Mullaney, 421 U. S., at 700. But it can hardly be said that the potential doubling of one’s sentence — from 10 years to 20 — has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judge’s finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as “a tail which wags the dog of the substantive offense.” McMillan, 477 U. S., at 88.

New Jersey would also point to the fact that the State did not, in placing the required biased purpose finding in a sentencing enhancement provision, create a “separate offense calling for a separate penalty.” Ibid. As for this, we agree wholeheartedly with the New Jersey Supreme Court that merely because the state legislature placed its hate crime sentence “enhancer” “within the sentencing provisions” of the criminal code “does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense.” 159 N. J., at 20, 731 A. 2d, at 492. Indeed, *496the fact that New Jersey, along with numerous other States, has also made precisely the same conduct the subject of an independent substantive offense makes it clear that the mere presence of this “enhancement” in a sentencing statute does not define its character.20

New Jersey’s reliance on Almendarez-Torres is also unavailing. The reasons supporting an exception from the general rule for the statute construed in that case do not apply to the New Jersey statute. Whereas recidivism “does not relate to the commission of the offense” itself, 523 U. S., at 230, 244, New Jersey’s biased purpose inquiry goes precisely to what happened in the “commission of the offense.” Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.

Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Walton v. Arizona, 497 U. S. 639, 647-649 (1990); id., at 709-714 (Stevens, J., dissenting). For reasons we have explained, the capital eases are not controlling:

*497“Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. What the cited eases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed .... The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge.” Almendarez-Torres, 523 U. S., at 257, n. 2 (Scalia, J., dissenting) (emphasis deleted).

See also Jones, 526 U. S., at 250-251; post, at 520-522 (Thomas, J., concurring).21

* * *

The New Jersey procedure challenged in this ease is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system. Accordingly, the judgment of the Supreme Court of New Jersey is reversed, and the ease is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

*498Justice Scalia,

concurring.

I feel the need to say a few words in response to Justice Breyer’s dissent. It sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State — and an increasingly bureaucratic part of it, at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.

As for fairness, which Justice Breyer believes “[i]n modern times,” post, at 555, the jury cannot provide: I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a jail sentence of 30 years — and that if, upon conviction, he gets anything less than that he may thank the mercy of a tenderhearted judge (just as he may thank the mercy of a tenderhearted parole commission if he is let out inordinately early, or the mercy of a tenderhearted governor if his sentence is commuted). Will there be disparities? Of course. But the criminal will never get more punishment than he bargained for when he did the crime, and his guilt of the crime (and hence the length of the sentence to which he is exposed) will be determined beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens:

In Justice Breyer’s bureaucratic realm of perfect equity, by contrast, the facts that determine the length of sentence to which the defendant is exposed will be determined to exist (on a more-likely-than-not basis) by a single employee of the State. It is certainly arguable (Justice Breyer argues it) that this sacrifice of prior protections is worth it. But it is not arguable that, just because one thinks it is a better system, it must be, or is even more likely to be, the system envisioned by a Constitution-that guarantees trial by jury. What ultimately demolishes the case for the dis*499senters is that they are unable to say what the right to trial by jury does guarantee if, as they assert, it does not guarantee — what it has been assumed to guarantee throughout our history — the right to have a jury determine those facts that determine the maximum sentence the law allows. They provide no coherent alternative.

Justice Breyer proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says. And the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury,” has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.

Justice Thomas,

with whom Justice Scalia joins as to Parts I and II, concurring.

I join the opinion of the Court in full. I write separately to explain my view that the Constitution requires a broader rule than the Court adopts.

I

This case turns on the seemingly simple question of what constitutes a “crime.” Under the Federal Constitution, “the accused” has the right (1) “to be informed of the nature and cause of the accusation” (that is, the basis on which he is accused of a crime), (2) to be “held to answer for a capital, or otherwise infamous crime” only on an indictment or presentment of a grand jury, and (3) to be tried by “an impartial jury of the State and district wherein the crime shall have been committed.” Arndts. 5 and 6. See also Art. Ill, §2, cl. 3 (“The Trial of all Crimes ... shall be by Jury”). With the exception of the Grand Jury Clause, see Hurtado v. California, 110 U. S. 516, 538 (1884), the Court has held that these protections apply in state prosecutions, Herring v. New York, 422 U. S. 853, 857, and n. 7 (1975). Further, the Court has held that due process requires that the jury find *500beyond a reasonable doubt every fact necessary to constitute the crime. In re Winship, 397 U. S. 358, 364 (1970).

All of these constitutional protections turn on determining which facts constitute the “crime'’ — that is, which facts are the “elements” or “ingredients” of a crime. In order for an accusation of a crime (whether by indictment or some other form) , to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime; likewise, in order for a jury trial of a crime to be proper, all elements of the crime must be proved to the jury (and, under Winship, proved beyond a reasonable doubt). See J. Story, Commentaries on the Constitution §§928-929, pp. 660-662, § 934, p. 664 (1833); J. Archbold, Pleading and Evidence in Criminal Cases *41, *99-*100 (hereinafter Archbold).1

Thus, it is critical to know which facts are elements. This question became more complicated following the Court’s decision in McMillan v. Pennsylvania, 477 U. S. 79 (1986), which spawned a special sort of fact known as a sentencing enhancement. See ante, at 478, 485, 494. Such a fact increases a defendant’s punishment but is not subject to the constitutional protections to which elements are subject. Justice O’Connor’s dissent, in agreement with McMillan and Almendarez-Torres v. United States, 523 U. S. 224 (1998), takes the view that a legislature is free (within unspecified outer limits) to decree which facts are elements and which are sentencing enhancements. Post, at 524.

Sentencing enhancements may be new creatures, but the question that they create for courts is not. Courts have *501long had to consider which facts are elemente in order to determine the sufficiency of an accusation (usually an indictment). The answer that courts have provided regarding the accusation tells us what an element is, and it is then a simple matter to apply that answer to whatever constitutional right may be at issue in a case — here, Winship and the right to trial by jury. A long line of essentially uniform authority addressing accusations, and stretching from the earliest reported cases after the founding until well into the 20th century, establishes that the original understanding of which facts are elements was even broader than the rule that the Court adopts today.

This authority establishes that a “crime” includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment). Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact — of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact — such as a fine that is proportional to the value of stolen goods — that fact is also an element. No multifactor parsing of statutes, of the sort that we have attempted since McMillan, is necessary. One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facte. Each fact necessary for that entitlement is an element.

II

A

Cases from the founding to roughly the end of the Civil War establish the rule that I have described, applying it to *502all sorts of facts, including recidivism. As legislatures varied common-law crimes and created new crimes, American courts, particularly from the 1840’s on, readily applied to these new laws the common-law understanding that a fact that is by law the basis for imposing or increasing punishment is an element.2

Massachusetts, which produced the leading cases in the antebellum years, applied this rule as early as 1804, in Commonwealth v. Smith, 1 Mass. *245, and foreshadowed the fuller discussion that was to come. Smith was indicted for and found guilty of larceny, but the indictment failed to allege the value of all of the stolen goods. Massachusetts had abolished the common-law distinction between grand and simple larceny, replacing it with a single offense of larceny whose punishment (triple damages) was based on the value of the stolen goods. The prosecutor relied on this abolition of the traditional distinction to justify the indictment’s omissions. The court, however, held that it could not sentence the defendant for the stolen goods whose value was not set out in the indictment. Id., at *246-*247.

The understanding implicit in Smith was explained in Hope v. Commonwealth, 50 Mass. 134 (1845). Hope was indicted for and convicted of larceny. The larceny statute at *503issue retained the single-offense structure of the statute addressed in Smith, and established two levels of sentencing based on whether the value of the stolen property exceeded $100. The statute was structured similarly to the statutes that we addressed in Jones v. United States, 526 U. S. 227, 230 (1999), and, even more, Castillo v. United States, ante, at 122, in that it first set out the core crime and then, in subsequent clauses, set out the ranges of punishments.3 Further, the statute opened by referring simply to “the of-fence of larceny,” suggesting, at least from the perspective of our post-McMillan cases, that larceny was the crime whereas the value of the stolen property was merely a fact for sentencing. But the matter was quite simple for the Massachusetts high court. Value was an element because punishment varied with value:

“Our statutes, it will be remembered, prescribe the punishment for larceny, with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long established practice, the court are of opinion that the value of the property alleged to be stolen must be set forth in the indictment.” 50 Mass., at 137.

Two years after Hope, the court elaborated on this rule in a case involving burglary, stating that if “certain acts are, by force of the statutes, made punishable with greater severity, when accompanied with aggravating circumstances,” then *504the statute has “creat[ed] two grades of crime.” Lamed v. Commonwealth, 53 Mass. 240, 242 (1847). See also id., at 241 (“[Tjhere is a gradation of offences of the same species” where the statute sets out “various degrees of punishment”).

Conversely, where a fact was not the basis for punishment, that fact was, for that reason, not an element. Thus, in Commonwealth v. McDonald, 59 Mass. 365 (1850), which involved an indictment for attempted larceny from the person, the court saw no error in the failure of the indictment to allege any value of the goods that the defendant had attempted to steal. The defendant, in challenging the indictment, apparently relied on Smith and Hope, and the court rejected his challenge by explaining that “[a]s the p'unishment. .. does not depend on the amount stolen, there was no occasion for any allegation as to value in this indictment.” 59 Mass., at 367. See Commonwealth v. Burke, 94 Mass. 182, 183 (1866) (applying same reasoning to completed larceny from the person; finding no trial error where value was not proved to jury).

Similar reasoning was employed by the Wisconsin Supreme Court in Lacy v. State, 15 Wis. *13 (1862), in interpreting a statute that was also similar to the statutes at issue in Jones and Castillo. The statute, in a single paragraph, outlawed arson of a dwelling house at night. Arson that Mlled someone was punishable by life in prison; arson that did not kill anyone was punishable by 7 to 14 years in prison; arson of a house in which no person was lawfully dwelling was punishable by 3 to 10 years.4 The court had no trouble *505concluding that the statute “creates three distinct statutory-offenses,” 15 Wis., at *15, and that the lawful presence of a person in the dwelling was an element of the middle offense. The court reasoned from the gradations of punishment: “That the legislature considered the circumstance that a person was lawfully in the dwelling house when fire was set to it most material and important, and as greatly aggravating the crime, is clear from the severity of the punishment imposed.” Id., at *16. The “aggravating circumstances” created “the higher statutory offense[s].” Id., at *17. Because the indictment did not allege that anyone had been present in the dwelling, the court reversed the defendant’s 14-year sentence, but, relying on Larned, supra, the court remanded to permit sentencing under the lowest grade of the crime (which was properly alleged in the indictment). 15 Wis., at *17.

Numerous other state and federal courts in this period took the same approach to determining which facts are elements of a crime. See Ritchey v. State, 7 Blackf 168, 169 (Ind. 1844) (citing Commonwealth v. Smith, 1 Mass. *245 (1804), and holding that indictment for arson must allege value of property destroyed, because statute set punishment based on value); Spencer v. State, 18 Ohio 401, 406, 408 (1844) (holding that value of goods intended to be stolen is not “an ingredient of the crime” of burglary with intent to steal, because punishment under statute did not depend on value; contrasting larceny, in which “[vjalue must be laid, and value proved, that the jury may find it, and the court, by that means, know whether it is grand or petit, and apply the grade of punishment the statute awards”); United States v. Fisher, 25 F. Cas. 1086 (CC Ohio 1849) (McLean, J.) (“A car*506rier of the mail is subject to a higher penalty where he steals a letter out of the mail, which contains an article of value. And when this offense is committed, the indictment must allege the letter contained an article of value, which aggravates the offense and incurs a higher penalty”); Brightwell v. State, 41 Ga. 482, 483 (1871) (“When the law prescribes a different punishment for different phases of the same crime, there is good reason for requiring the indictment to specify which of the phases the prisoner is charged with. The record ought to show that the defendant is convicted of the offense for which he is sentenced”). Cf. State v. Farr, 12 Rich. 24, 29 (S. C. App. 1859) (where two statutes barred purchasing corn from a slave, and one referred to purchasing from slave who lacked a permit, absence of permit was not an element, because both statutes had the same punishment).

Also demonstrating the common-law approach to determining elements was the well-established rule that, if a statute increased the punishment of a common-law crime, whether felony or misdemeanor, based on some fact, then that fact must be charged in the indictment in order for the court to impose the increased punishment. Archbold *106; see id., at *50; ante, at 480-481. There was no question of treating the statutory aggravating faet as merely a sentencing enhancement — as a nonelement enhancing the sentence of the common-law crime. The aggravating fact was an element of a new, aggravated grade of the common-law crime simply because it increased the punishment of the common-law crime. And the common-law crime was, in relation to the statutory one, essentially just like any other lesser included offense. See Archbold *106.

Further evidence of the rule that a crime includes every faet that is by law a basis for imposing or increasing punishment comes from early eases addressing recidivism statutes. As Justice Scalia has explained, there was a tradition of treating recidivism as an element. See Almendarez-Torres, 523 U. S., at 256-257, 261 (dissenting opinion). That tradi*507tion stretches back to the earliest years of the Republic. See, e. g., Commonwealth v. Welsh, 4 Va. 57 (1817); Smith v. Commonwealth, 14 Serg. & Rawle 69 (Pa. 1826); see also Archbold *695-*696. For my purposes, however, what is noteworthy is not so much the fact of that tradition as the reason for it: Courts treated the fact of a prior conviction just as any other fact that increased the punishment by law. By the same reasoning that the courts employed in Hope, Lacy, and the other cases discussed above, the fact of a prior conviction was an element, together with the facts constituting the core crime of which the defendant was charged, of a new, aggravated crime.

The two leading antebellum cases on whether recidivism is an element were Plumbly v. Commonwealth, 43 Mass. 413 (1841), and Tuttle v. Commonwealth, 68 Mass. 505 (1854). In the latter, the court explained the reason for treating as an element the fact of the prior conviction:

“When the statute imposes a higher penalty upon a second and third conviction, respectively, it makes the prior conviction of a similar offence a part of the description and character of the offence intended to be punished; and therefore the fact of such prior conviction must be charged, as well as proved. It is essential to an indictment, that the facts constituting the offence intended to be punished should be averred.” Id., at 506.

The court rested this rule on the common law and the Massachusetts equivalent of the Sixth Amendment’s Notice Clause. Ibid. See also Commonwealth v. Haynes, 107 Mass. 194, 198 (1871) (reversing sentence, upon confession of error by attorney general, in case similar to Tuttle).

Numerous other eases treating the fact of a prior conviction as an element of a crime take the same view. They make clear, by both their holdings and their language, that when a statute increases punishment for some core crime based on the fact of a prior conviction, the core crime and *508the fact of the prior crime together create a new, aggravated crime. Kilbourn v. State, 9 Conn. 560, 568 (1833) (“No person ought to be, or can be, subjected to a cumulative penalty, without being charged with a cumulative offence”); Plumbly, supra, at 414 (conviction under recidivism statute is “one conviction, upon one aggregate offence”); Hines v. State, 26 Ga. 614, 616 (1859) (reversing enhanced sentence imposed by trial judge and explaining: “[T]he question, whether the offence was a second one, or not, was a question for the jury. . . . The allegation [of a prior offence] is certainly one of the first importance to the accused, for if it is true, he becomes subject to a greatly increased punishment”). See also Commonwealth v. Phillips, 28 Mass. 28, 33 (1831) (“[U]pon a third conviction, the court may sentence the convict to hard labor for life. The punishment is to be awarded upon that conviction, and for the offence of which he is then and there convicted”).

Even the exception to this practice of including the fact of a prior conviction in the indictment and trying it to the jury helps to prove the rule that that fact is an element because it increases the punishment by law. In State v. Freeman, 27 Vt. 523 (1855), the Vermont Supreme Court upheld a statute providing that, in an indictment or complaint for violation of a liquor law, it was not necessary to allege a prior conviction of that law in order to secure an increased sentence. But the court did not hold that the prior conviction was not an element; instead, it held that the liquor law created only minor offenses that did not qualify as crimes. Thus, the state constitutional protections that would attach were a “crime” at issue did not apply. Id., at 527; see Goeller v. State, 119 Md. 61, 66-67, 85 A. 954, 956 (1912) (discussing Freeman). At the same time, the court freely acknowledged that it had “no doubt” of the general rule, particularly as articulated in Massachusetts, that “it is necessary to allege the former conviction, in the indictment, when a higher *509sentence is claimed on that account.” Freeman, supra, at 526. Unsurprisingly, then, a leading treatise explained Freeman as only “apparently” contrary to the general rule and as involving a “special statute.” 3 F. Wharton, Criminal Law §3417, p. 307, n. r (7th rev. ed. 1874) (hereinafter Wharton). In addition, less than a decade after Freeman, the same Vermont court held that if a defendant charged with a successive violation of the liquor laws contested identity— that is, whether the person in the record of the prior conviction was the same as the defendant — he should be permitted to have a jury resolve the question. State v. Haynes, 35 Vt. 570, 572-573 (1863). (Freeman itself had anticipated this holding by suggesting the use of a jury to resolve disputes over identity. See 27 Vt., at 528.) In so holding, Haynes all but applied the general rule, since a determination of identity was usually the chief factual issue whenever recidivism was charged. See Arehbold *695-*696; see also, e. g., Graham v. West Virginia, 224 U. S. 616, 620-621 (1912) (defendant had been convicted under three different names).5

*510B

An 1872 treatise by one of the leading authorities of the era in criminal law and procedure confirms the common-law understanding that the above cases demonstrate. The treatise condensed the traditional understanding regarding the indictment, and thus regarding the elements of a crime, to the following: “[T]he indictment must allege whatever is in law essential to the punishment sought to be inflicted.” 1 J. Bishop, Law of Criminal Procedure 50 (2d ed. 1872) (hereinafter Bishop, Criminal Procedure). See id., §81, at 51 (“[T]he indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted”); id., § 540, at 330 (“[T]he indictment must... contain an averment of every particular thing which enters into the punishment”). Crimes, he explained, consist of those “acts to which the law affixes ... punishment,” id., §80, at 51, or, stated differently, a crime consists of the whole of “the wrong upon which the punishment is based,” id., § 84, at 53. In a later edition, Bishop similarly defined the elements of a crime as “that wrongful aggregation out of which the punishment proceeds.” 1 J. Bishop, New Criminal Procedure §84, p. 49 (4th ed. 1895).

Bishop grounded his definition in both a generalization from well-established common-law practice, 1 Bishop, Criminal Procedure §§81-84, at 51-53, and in the provisions of Federal and State Constitutions guaranteeing notice of an accusation in all criminal cases, indictment by a grand jury for serious crimes, and trial by jury. With regard to the common law, he explained that his rule was “not made apparent to our understandings by a single case only, but by all the cases,” id., §81, at 51, and was followed “in all cases, without one exception,” id., §84, at 53. To illustrate, he observed that there are

“various statutes whereby, when . . . assault is committed with a particular intent, or with a particular *511weapon, or the like, it is subjected to a particular corresponding punishment, heavier than that for common assault, or differing from it, pointed out by the statute. And the reader will notice that, in all eases where the peculiar or aggravated punishment is to be inflicted, the peculiar or aggravating matter is required to be set out in the indictment.” Id., §82, at 52.

He also found burglary statutes illustrative in the same way. Id., §83, at 52-53. Bishop made no exception for the fact of a prior conviction — he simply treated it just as any other aggravating fact: “[If] it is sought to make the sentence heavier by reason of its being [a second or third offence], the fact thus relied on must be averred in the indictment; because the rules of criminal procedure require the indictment, in all cases, to contain an averment of every fact essential to the punishment sought to be inflicted.” 1 J. Bishop, Commentaries on Criminal Law § 961, pp. 564-565 (5th ed. 1872).

The constitutional provisions provided further support, in his view, because of the requirements for a proper accusation at common law and because of the common-law understanding that a proper jury trial required a proper accusation: “The idea of a jury trial, as it has always been known where the common law prevails, includes the allegation, as part of the machinery of the trial .... [A]n accusation which lacks any particular fact which the law makes essential to the punishment is... no accusation within the requirements of the common law, and it is no accusation in reason.” 1 Bishop, Criminal Procedure §87, at 55. See id., §88, at 56 (notice and indictment requirements ensure that before “persons held for crimes . . . shall be convicted, there shall be an allegation made against them of every element of crime which the law makes essential to the punishment to be inflicted”).

Numerous high courts contemporaneously and explicitly agreed that Bishop had accurately captured the common-law understanding of what facts are elements of a crime. See, *512 e. g., Hobbs v. State, 44 Tex. 353, 354 (1875) (favorably quoting 1 Bishop, Criminal Procedure § 81); Maguire v. State, 47 Md. 485, 497 (1878) (approvingly citing different Bishop treatise for the same rule); Larney v. Cleveland, 34 Ohio St. 599, 600 (1878) (rule and reason for rule “are well stated by Mr. Bishop”); State v. Hayward, 83 Mo. 299, 307 (1884) (extensively quoting §81 of Bishop’s “admirable treatise”); Riggs v. State, 104 Ind. 261, 262, 3 N. E. 886, 887 (1885) (“We agree with Mr. Bishop that the nature and cause of the accusation are not stated where there is no mention of the full act or series of acts for which the punishment is to be inflicted” (internal quotation marks omitted)); State v. Perley, 86 Me. 427, 431, 30 A. 74, 75 (1894) (“The doctrine of the court, says Mr. Bishop, is identical with that of reason, viz: that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted” (internal quotation marks omitted)); see also United States v. Reese, 92 U. S. 214, 232-233 (1876) (Clifford, J., concurring in judgment) (citing and paraphrasing 1 Bishop, Criminal Procedure § 81).

C

In the half century following publication of Bishop’s treatise, numerous courts applied his statement of the common-law understanding; most of them explicitly relied on his treatise. Just as in the earlier period, every fact that was by law a basis for imposing or increasing punishment (including the fact of a prior conviction) was an element. Each such fact had to be included in the accusation of the crime and proved to the jury.

Courts confronted statutes quite similar to the ones with which we have struggled since McMillan, and, applying the traditional rule, they found it not at all difficult to determine whether a fact was an element. In Hobbs, swpra, the defendant was indicted for a form of burglary punishable by 2 to 5 years in prison. A separate statutory section provided for an increased sentence, up to double the punishment *513to which the defendant would otherwise be subject, if the entry into the house was effected by force exceeding that incidental to burglary. The trial court instructed the jury to sentence the defendant to 2 to 10 years if it found the requisite level of force, and the jury sentenced him to 8. The Texas Supreme Court, relying on Bishop, reversed because the indictment had not alleged such force; even though the jury had sentenced Hobbs within the range (2 to 5 years) that was permissible under the lesser crime that the indictment had charged, the court thought it "impossible to say ... that the erroneous charge of the court may not have had some weight in leading the jury” to impose the sentence that it did. 44 Tex., at 355.6 See also Searcy v. State, 1 Tex. App. 440, 444 (1876) (similar); Garcia v. State, 19 Tex. App. 389, 393 (1885) (not citing Hobbs, but relying on Bishop to reverse 10-year sentence for assault with a bowie knife or dagger, where statute doubled range for assault from 2 to 7 to 4 to 14 years if the assault was committed with either weapon but where indictment had not so alleged).

As in earlier eases, such as McDonald (discussed swpra, at 504), courts also used the converse of the Bishop rule to explain when a fact was not an element of the crime. In Perley, supra, the defendant was indicted for and convicted of robbery, which was punishable by imprisonment for life *514or any term of years. The court, relying on Bishop, Hope, McDonald, and other authority, rejected his argument that Maine’s Notice Clause (which of course required all elements to be alleged) required the indictment to allege the value of the goods stolen, because the punishment did not turn on value: “[T]here is no provision of this statute which makes the amount of property taken an essential element of the offense; and there is no statute in this State which creates degrees in robbery, or in any way makes the punishment of the offense dependent upon the value of the property taken.” 86 Me., at 482, 30 A., at 75. The court further explained that “where the value is not essential to the punishment it need not be distinctly alleged or proved.” Id., at 433, 30 A., at 76.

Reasoning similar to Perley and the Texas cases is evident in other cases as well. See Jones v. State, 63 Ga. 141, 143 (1879) (where punishment for burglary in the day is 3 to 5 years in prison and for burglary at night is 5 to 20, time of burglary is a “constituent of the offense”; indictment should “charge all that is requisite to render plain and certain every constituent of the offense”); United States v. Woodruff, 68 F. 536, 538 (Kan. 1895) (where embezzlement statute “contemplates that there should be an ascertainment of the exact sum for which a fine may be imposed” and jury did not determine amount, judge lacked authority to impose fine; “[o]n such an issue the defendant is entitled to his constitutional right of trial by jury”).

Courts also, again just as in the pre-Bishop period, applied the same reasoning to the fact of a prior conviction as they did to any other fact that aggravated the punishment by law. Many, though far from all, of these courts relied on Bishop. In 1878, Maryland’s high court, in Maguire v. State, 47 Md. 485, stated the rule and the reason for it in language indistinguishable from that of Tuttle a quarter century before:

“The law would seem to be well settled, that if the party be proceeded against for a second or third offence under *515the statute, and the sentence prescribed be different from the first, or severer, by reason of its being such second or third offence, the fact thus relied on must be averred in the indictment; for the settled rule is, that the indictment must contain an averment of every fact essential to justify the punishment inflicted.” Maguire, supra, at 496 (citing English cases, Plumbly v. Commonwealth, 43 Mass. 413 (1841), Wharton, and Bishop).

In Goeller v. State, 119 Md. 61, 85 A. 954 (1912), the same court reaffirmed Maguire and voided, as contrary to Maryland’s Notice Clause, a statute that permitted the trial judge to determine the fact of a prior conviction. The eourt extensively quoted Bishop, who had, in the court’s view, treated the subject “more fully, perhaps, than any other legal writer,” and it cited, among other authorities, “a line of Massachusetts decisions” and Riggs (quoted supra, at 512). 119 Md., at 66, 85 A., at 955. In Larney, 34 Ohio St., at 600-601, the Supreme Court of Ohio, in an opinion citing only Bishop, reversed a conviction under a recidivism statute where the indictment had not alleged any prior conviction. (The defendant had also relied on Plumbly, supra, and Kilbourn v. State, 9 Conn. 560 (1833). 34 Ohio St., at 600.) And in State v. Adams, 64 N. H. 440, 13 A. 785 (1888), the court, relying on Bishop, explained that “[t]he former conviction being a part of the description and character of the offense intended to be punished, because of the higher penalty imposed, it must be alleged.” Id., at 442, 13 A., at 786. The defendant had been “charged with an offense aggravated by its repetitious character.” Ibid. See also Evans v. State, 150 Ind. 651, 653, 50 N. E. 820 (1898) (similar); Shiflett v. Commonwealth, 114 Va. 876, 877, 77 S. E. 606, 607 (1913) (similar).

Even without any reliance on Bishop, other courts addressing recidivism statutes employed the same reasoning as did he and the above cases — that a crime includes any fact to which punishment attaches. One of the leading cases was *516 Wood v. People, 58 N. Y. 511 (1873). The statute in Wood provided for increased punishment if the defendant had previously been convicted of a felony then discharged from the conviction. The court, repeatedly referring to “the aggravated offence,” id., at 513,515, held that the facts of the prior conviction and of the discharge must be proved to the jury, for “[b]oth enter into and make a part of the offence . . . subjecting the prisoner to the increased punishment.” Id., at 513; see ibid, (fact of prior conviction was an “essential ingredient” of the offense). See also Johnson v. People, 55 N. Y. 512, 514 (1874) (“A more severe penalty is denounced by the statute for a second offence; and all the facts to bring the case within the statute must be [alleged in the indictment and] established on the trial”); People v. Sickles, 156 N. Y. 541, 544-545, 51N. E. 288, 289 (1898) (reaffirming Wood and Johnson and explaining that “the charge is not merely that the prisoner has committed the offense specifically described, but that, as a former convict, his second offense has subjected him to an enhanced penalty”).

Contemporaneously with the New York Court of Appeals in Wood and Johnson, state high courts in California and Pennsylvania offered similar explanations for why the fact of a prior conviction is an element. In People v. Delany, 49 Cal. 394 (1874), which involved a statute making petit larceny (normally a misdemeanor) a felony if committed following a prior conviction for petit larceny, the court left no doubt that the fact of the prior conviction was an element of an aggravated crime consisting of petit larceny committed following a prior conviction for petit larceny:

“The particular circumstances of the offense are stated [in the indictment], and consist of the prior convictions and of the facts constituting the last larceny.

“[T]he former convictions are made to adhere to and constitute a portion of the aggravated offense.” Id., at 395.

*517"The felony consists both of the former convictions and of the particular larceny. . . . [T]he former convictions were a separate fact; which, taken in connection with the facts constituting the last offense, make a distinct and greater offense than that charged, exclusive of the prior convictions.” Id., at 396.7

See also People v. Coleman, 145 Cal. 609, 610-611, 79 P. 283, 284-285 (1904).

Similarly, in Rauch v. Commonwealth, 78 Pa. 490 (1876), the court applied its 1826 decision in Smith v. Commonwealth, 14 Serg. & Rawle 69, and reversed the trial court’s imposition of an enhanced sentence “upon its own knowledge of its records.” 78 Pa., at 494. The court explained that “imprisonment in jail is not a lawful consequence of a mere conviction for an unlawful sale of liquors. It is the lawful consequence of a second sale only after a former conviction. On every principle of personal security and the due administration of justice, the fact whieh gives rightfulness to the greater punishment should appear in the record.” Ibid. See also id., at 495 (“But clearly the substantive offence, whieh draws to itself the greater punishment, is the unlawful sale after a former conviction. This, therefore, is the very offence he is called upon to defend against”).

Meanwhile, Massachusetts reaffirmed its earlier decisions, striking down, in Commonwealth v. Harrington, 130 Mass. 35 (1880), a liquor law that provided a small fine for a first or second conviction, provided a larger fine or imprisonment up to a year for a third conviction, and specifically provided that a prior conviction need not be alleged in the complaint. The court found this law plainly inconsistent with Tuttle and with the State’s Notice Clause, explaining that “the offence whieh is punishable with the higher penalty is not fully and *518substantially described to the defendant, if the complaint fails to set forth the former convictions which are essential features of it.” 130 Mass., at 36.8

Without belaboring the point any further, I simply note that this traditional understanding — that a “crime” includes every fact that is by law a basis for imposing or increasing punishment — continued well into the 20th century, at least until the middle of the century. See Knoll & Singer, Searching for the “Tail of the Dog”: Finding “Elements” of Crimes in the Wake of McMillan v. Pennsylvania, 22 Seattle U. L. Rev. 1057, 1069-1081 (1999) (surveying 20th-century decisions of federal courts prior to McMillan)-, see also People v. Ratner, 67 Cal. App. 2d Supp. 902, 903-906, 153 P. 2d 790, 791-793 (1944). In fact, it is fair to say that McMillan began a revolution in the law regarding the definition of “crime.” Today’s decision, far from being a sharp break with the past, marks nothing more than a return to the status quo ante — the status quo that reflected the original meaning of the Fifth and Sixth Amendments.

Ill

The consequence of the above discussion for our decisions in Almendarez-Torres and McMillan should be plain enough, but a few points merit special mention.

*519First, it is irrelevant to the question of which facts are elements that legislatures have allowed sentencing judges discretion in determining punishment (often within extremely broad ranges). See ante, at 481-482; post, at 544-545 (O’Connor, J., dissenting). Bishop, immediately after setting out the traditional rule on elements, explained why:

"The reader should distinguish between the foregoing doctrine, and the doctrine . . . that, within the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment. . . . The aggravating circumstances spoken of cannot swell the penalty above what the law has provided for the acts charged against the prisoner, and they are interposed merely to cheek the judicial discretion in the exercise of the permitted mercy [in finding mitigating circumstances]. This is an entirely different thing from punishing one for what is not alleged against him.” 1 Bishop, Criminal Procedure §85, at 54.

See also 1 J. Bishop, New Commentaries on the Criminal Law §§600-601, pp. 370-371, §948, p. 572 (8th ed. 1892) (similar). In other words, establishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things.9 *520Cf. 4 W. Blackstone, Commentaries on the Law of England 371-872 (1769) (noting judges’ broad discretion in setting amount of fine and length of imprisonment for misdemeanors, but praising determinate punishment and “discretion . . . regulated by law”); Perley, 86 Me., at 429, 432, 30 A., at 74, 75-76 (favorably discussing Bishop’s rule on elements without mentioning, aside from quotation of statute in statement of facts, that defendant’s conviction for robbery exposed him to imprisonment for life or any term of years). Thus, it is one thing to consider what the Constitution requires the prosecution to do in order to entitle itself to a particular kind, degree, or range of punishment of the accused, see Woodruff, 68 F., at 538, and quite another to consider what constitutional constraints apply either to the imposition of punishment within the limits of that entitlement or to a legislature’s ability to set broad ranges of punishment. In answering the former constitutional question, I need not, and do not, address the latter.

Second, and related, one of the chief errors of Almendarez-Torres — an error to which I succumbed — was to attempt to discern whether a particular fact is traditionally (or typically) a basis for a sentencing court to increase an offender’s sentence. 523 U. S., at 243-244; see id., at 230, 241. For the *521reasons I have given, it should be clear that this approach just defines away the real issue. What matters is the way by which a fact enters into the sentence. If a fact is by law the basis for imposing or increasing punishment — for establishing or increasing the prosecution’s entitlement — it is an element. (To put the point differently, I am aware of no historical basis for treating as a nonelement a fact that by law sets or increases punishment.) When one considers the question from this perspective, it is evident why the fact of a prior conviction is an element under a recidivism statute. Indeed, cases addressing such statutes provide some of the best discussions of what constitutes an element of a crime. One reason frequently offered for treating recidivism differently, a reason on which we relied in Almendarez-Torres, supra, at 285, is a concern for prejudicing the jury by informing it of the prior conviction. But this concern, of which earlier courts were well aware, does not make the traditional understanding of what an element is any less applicable to the fact of a prior conviction. See, e. g., Maguire, 47 Md., at 498; Sickles, 156 N. Y., at 547, 51 N. R, at 290.10

Third, I think it clear that the common-law rule would cover the McMillan situation of a mandatory minimum sentence (in that case, for visible possession of a firearm during the commission of certain crimes). No doubt a defendant could, under such a scheme, find himself sentenced to the same term to which he could have been sentenced absent the mandatory minimum. The range for his underlying crime *522could be 0 to 10 years, with the mandatory minimum of 5 years, and he could be sentenced to 7. (Of course, a similar scenario is possible with an increased maximum.) But it is equally true that his expected punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. The mandatory minimum “entities] the government,” Wood-ruff, supra, at 588, to more than it would otherwise be entitled (5 to 10 years, rather than 0 to 10 and the risk of a sentence below 5). Thus, the fact triggering the mandatory minimum is part of “the punishment sought to be inflicted,” Bishop, Criminal Procedure 50; it undoubtedly “enters into the punishment” so as to aggravate it, id., § 540, at 330, and is an “ac[t] to which the law affixes ... punishment,” id., § 80, at 51. Further, just as in Hobbs and Searcy, see swpra, at 512-513, it is likely that the change in the range available to the judge affects his choice of sentence. Finally, in numerous eases, such as Lacy, Garcia, and Jones, see supra, at 504-505, 514, the aggravating fact raised the whole range— both the top and bottom. Those courts, in holding that such a fact was an element, did not bother with any distinction between changes in the maximum and the minimum. What mattered was simply the overall increase in the punishment provided by law. And in several cases, such as Smith and Woodruff, see supra, at 502, 514, the very concept of máximums and mínimums had no applicability, yet the same rule for elements applied. See also Harrington (discussed supra, at 517-518).

Finally, I need not in this case address the implications of the rule that I have stated for the Court’s decision in Walton v. Arizona, 497 U. S. 639, 647-649 (1990). See ante, at 496. Walton did approve a scheme by which a judge, rather than a jury, determines an aggravating fact that makes a convict eligible for the death penalty, and thus eligible for a greater punishment. In this sense, that fact is an element. But that scheme exists in a unique context, for in the area of cap*523ital punishment, unlike any other area, we have imposed special constraints on a legislature’s ability to determine what facts shall lead to what punishment — we have restricted the legislature’s ability to define crimes. Under our recent capital-punishment jurisprudence, neither Arizona nor any other jurisdiction could provide — as, previously, it freely could and did — that a person shall be death eligible automatically upon conviction for certain crimes. We have interposed a barrier between a jury finding of a capital crime and a court’s ability to impose capital punishment. Whether this distinction between capital crimes and all others, or some other distinction, is sufficient to put the former outside the rule that I have stated is a question for another day.11

For the foregoing reasons, as well as those given in the Court’s opinion, I agree that the New Jersey procedure at issue is unconstitutional.

Justice O’Connor,

with whom The ChieF Justice, Justice Kennedy, and Justice Breyer join, dissenting.

Last Term, in Jones v. United States, 526 U. S. 227 (1999), this Court found that our prior eases suggested the following principle: “[U]nder 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. At the time, Justice Kennedy rightly criticized the Court for its failure to ex*524plain the origins, contours, or consequences of its purported constitutional principle; for the inconsistency of that principle with our prior eases; and for the serious doubt that the holding cast on sentencing systems employed by the Federal Government and States alike. Id., at 254, 264-272 (dissenting opinion). Today, in what will surely be remembered as a watershed change in constitutional law, the Court imposes as a constitutional rule the principle it first identified in Jones.

> — i

Our Court has long recognized that not every fact that bears on a defendant’s punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the “legislature’s definition of the elements of the offense is usually dispositive.” McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986); see also Almendarez-Torres v. United States, 528 U. S. 224, 228 (1998); Patterson v. New York, 432 U. S. 197, 210, 211, n. 12 (1977). Although we have recognized that “there are obviously constitutional limits beyond which the States may not go in this regard,” id., at 210, and that “in certain limited circumstances Winship’s reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged,” McMillan, supra, at 86, we have proceeded with caution before deciding that a certain fact must be treated as an offense element despite the legislature’s choice not to characterize it as such. We have therefore declined to establish any bright-line rule for making such judgments and have instead approached each case individually, sifting through the considerations most relevant to determining whether the legislature has acted properly within its broad power to define crimes and their punishments or instead has sought to evade the constitutional requirements associated with the characterization of a faet as an offense element. See, e. g., Monge v. California, 524 U. S. 721, 728-729 (1998); McMillan, supra, at 86.

*525In one bold stroke the Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of Congress and state legislatures to define criminal offenses and the sentences that follow from convictions thereunder. The Court states: "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.” Ante, at 490. In its opinion, the Court marshals virtually no authority to support its extraordinary rule. Indeed, it is remarkable that the Court cannot identify a single instance, in the over 200 years since the ratification of the Bill of Rights, that our Court has applied, as a constitutional requirement, the rule it announces today.

According to the Court, its constitutional rule "emerges from our history and case law.” Ante, at 492. None of the history contained in the Court’s opinion requires the rule it ultimately adopts. The history cited by the Court can be divided into two categories: first, evidence that judges at common law had virtually no discretion in sentencing, ante, at 478-480, and, second, statements from a 19th-century criminal procedure treatise that the government must charge in an indictment and prove at trial the elements of a statutory offense for the defendant to be sentenced to the punishment attached to that statutory offense, ante, at 480-481. The relevance of the first category of evidence can be easily dismissed. Indeed, the Court does not even claim that the historical evidence of nondiscretionary sentencing at common law supports its “increase in the maximum penalty” rule. Rather, almost as quickly as it recites that historical practice, the Court rejects its relevance to the constitutional question presented here due to the conflicting American practice of judges exercising sentencing discretion and our decisions recognizing the legitimacy of that American practice. See ante, at 481-482 (citing Williams v. New York, 337 U. S. 241, 246 (1949)). Even if the Court were to *526claim that the common-law history on this point did bear on the instant ease, one wonders why the historical practice of judges pronouncing judgments in cases between private parties is relevant at all to the question of criminal punishment presented here. See ante, at 479-480 (quoting 3 W. Blackstone, Commentaries on the Laws of England 396 (1768), which pertains to “remedies] prescribed by law for the redress of injuries”).

Apparently, then, the historical practice on which the Court places so much reliance consists of only two quotations taken from an 1862 criminal procedure treatise. See ante, at 480-481 (quoting J. Arehbold, Pleading and Evidence in Criminal Cases 51,188 (15th ed. 1862)). A closer examination of the two statements reveals that neither supports the Court’s “increase in the maximum penalty” rule. Both of the excerpts pertain to circumstances in which a common-law felony had also been made a separate statutory offense carrying a greater penalty. Taken together, the statements from the Arehbold treatise demonstrate nothing more than the unremarkable proposition that a defendant could receive the greater statutory punishment only if the indictment expressly charged and the prosecutor proved the facts that made up the statutory offense, as opposed to simply those facts that made up the common-law offense. See id., at 51 (indictment); id., at 188 (proof). In other words, for the defendant to receive the statutory punishment, the prosecutor had to charge in the indictment and prove at trial the elements of the statutory offense. To the extent there is any doubt about the precise meaning of the treatise excerpts, that doubt is dispelled by looking to the treatise sections from which the excerpts are drawn and the broader principle each section is meant to illustrate. See id., at 43- (“Every offence consists of certain acts done or omitted under certain circumstances; and in an indictment for the offence, it is not sufficient to charge the defendant generally with having committed it,... but all the facts and circumstances constituting *527the offence must be specially set forth”); id., at 180 (“Every offence consists of certain acts done or omitted, under certain circumstances, all of which must be stated in the indictment... and be proved as laid”). And, to the extent further clarification is needed, the authority cited by the Arehbold treatise to support its stated proposition with respect to the requirements of an indictment demonstrates that the treatise excerpts mean only that the prosecutor must charge and then prove at trial the elements of the statutory offense. See 2 M. Hale, Pleas of the Crown *170 (hereinafter Hale) (“An indictment grounded upon an offense made by act of parliament must by express words bring the offense within the substantial description made in the act of parliament”). No Member of this Court questions the proposition that a State must charge in the indictment and prove at trial beyond a reasonable doubt the actual elements of the offense. This case, however, concerns the distinct question of when a fact that bears on a defendant’s punishment, but which the legislature has not classified as an element of the charged offense, must nevertheless be treated as an offense element. The excerpts drawn from the Archbold treatise do not speak to this question at all. The history on which the Court’s opinion relies provides no support for its “increase in the maximum penalty” rule.

In his concurring opinion, Justice Thomas cites additional historical evidence that, in his view, dictates an even broader rule than that set forth in the Court’s opinion. The history cited by Justice Thomas does not require, as a matter of federal constitutional law, the application of the rule he advocates. To understand why, it is important to focus on the basis for Justice Thomas’ argument. First, he claims that the Fifth and Sixth Amendments “codified” preexisting common law. Second, he contends that the relevant common law treated any fact that served to increase a defendant’s punishment as an element of an offense. See ante, at 500-501. Even if Justice Thomas’ first assertion were *528correct — a proposition this Court has not before embraced— he fails to gather the evidence necessary to support his second assertion. Indeed, for an opinion that purports to be founded upon the original understanding of the Fifth and Sixth Amendments, Justice Thomas’ concurrence is notable for its failure to discuss any historical practice, or to cite any decisions, predating (or contemporary with) the ratification of the Bill of Rights. Rather, Justice Thomas divines the common-law understanding of the Fifth and Sixth Amendment rights by consulting decisions rendered by American courts well after the ratification of the Bill of Rights, ranging primarily from the 1840’s to the 1890’s. Whatever those decisions might reveal about the way American state 'courts resolved questions regarding the distinction between a crime and its punishment under general rules of criminal pleading or their own state constitutions, the decisions fail to demonstrate any settled understanding with respect to the definition of a crime under the relevant, pre-existing common law. Thus, there is a crucial disconnect between the historical evidence Justice Thomas cites and the proposition he seeks to establish with that evidence.

An examination of the decisions cited by Justice Thomas makes clear that they did not involve a simple application of a long-settled common-law rule that any fact that increases punishment must constitute an offense element. That would have been unlikely, for there does not appear to have been any such common-law rule. The most relevant common-law principles in this area were that an indictment must charge the elements of the relevant offense and must do so with certainty. See, e.g., 2 Hale *182 (“Touching the thing wherein or of which the offense is committed, there is required a certainty in an indictment”); id., at *188 (“The fact itself must be certainly set down in an indictment”); id., at *184 (“The offense itself must be alledged, and the manner of it”). Those principles, of course, say little about when a specific fact constitutes an element of the offense.

*529Justice Thomas is correct to note that American courts in the 19th century came to confront this question in their cases, and often treated facts that served to increase punishment as elements of the relevant statutory offenses. To the extent Justice Thomas’ broader rule can be drawn from those decisions, the rule was one of those courts’ own invention, and not a previously existing rule that would have been "codified” by the ratification of the Fifth and Sixth Amendments. Few of the decisions cited by Justice Thomas indicate a reliance on pre-existing common-law principles. In fact, the converse rule that he identifies in the 19th-century American cases — that a fact that does not make a difference in punishment need not be charged in an indictment, see, e. g., Larned v. Commonwealth, 53 Mass. 240, 242-244 (1847) — was assuredly created by American courts, given that English courts of roughly the same period followed a contrary rule. See, e. g., Rex v. Marshall, 1 Moody C. C. 158, 168 Eng. Rep. 1224 (1827). Justice Thomas’ collection of state-court opinions is therefore of marginal assistance in determining the original understanding of the Fifth and Sixth Amendments. While the decisions Justice Thomas cites provide some authority for the rule he advocates, they certainly do not control our resolution of the federal constitutional question presented in the instant case and cannot, standing alone, justify overruling three decades’ worth of decisions by this Court.

In contrast to Justice Thomas, the Court asserts that its rule is supported by "our cases in this area.” Ante, at 490. That the Court begins its review of our precedent with a quotation from a dissenting opinion speaks volumes about the support that actually can be drawn from our cases for the "increase in the maximum penalty” rule announced today. See ante, at 484 (quoting Almendarez-Torres, 523 U. S., at 251 (Scalia, J., dissenting)). The Court then cites our decision in Mullaney v. Wilbur, 421 U. S. 684 (1975), to demonstrate the “lesson” that due process and jury protec*530tions extend beyond those factual determinations that affect a defendant’s guilt or innocence. Ante, at 484. The Court explains Mullaney as having held that the due process proof-beyond-a-reasonable-doubt requirement applies to those factual determinations that, under a State’s criminal law, make a difference in the degree of punishment the defendant receives. Ante, at 484. The Court chooses to ignore, however, the decision we issued two years later, Patterson v. New York, 432 U. S. 197 (1977), which clearly rejected the Court’s broad reading of Mullaney.

In Patterson, the jury found the defendant guilty of second-degree murder. Under New York law, the fact that a person intentionally killed another while under the influence of extreme emotional disturbance distinguished the reduced offense of first-degree manslaughter from the more serious offense of second-degree murder. Thus, the presence or absence of this one fact was the defining factor separating a greater from a lesser punishment. Under New York law, however, the State did not need to prove the absence of extreme emotional disturbance beyond a reasonable doubt. Rather, state law imposed the burden of proving the presence of extreme emotional disturbance on the defendant, and required that the fact be proved by a preponderance of the evidence. 482 U. S., at 198-200. We rejected Patterson’s due process challenge to his conviction:

“We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch.” Id., at 210.

*531Although we characterized the factual determination under New York law as one going to the mitigation of culpability, id., at 206, as opposed to the aggravation of the punishment, it is difficult to understand why the rule adopted by the Court in today’s ease (or the broader rule advocated by Justice Thomas) would not require the overruling of Patterson. Unless the Court is willing to defer to a legislature’s formal definition of the elements of an offense, it is clear that the fact that Patterson did not act under the influence of extreme emotional disturbance, in substance, “increase[d] the penalty for [his] crime beyond the prescribed statutory maximum” for first-degree manslaughter. Ante, at 490. Nonetheless, we held that New York’s requirement that the defendant, rather than the State, bear the burden of proof on this factual determination comported with the Fourteenth Amendment’s Due Process Clause. Patterson, 432 U. S., at 205-211, 216; seé also id., at 204-205 (reaffirming Leland v. Oregon, 343 U. S. 790 (1952), which upheld against due process challenge Oregon’s requirement that the defendant, rather than the State, bear the burden on factual determination of defendant’s insanity).

Patterson is important because it plainly refutes the Court’s expansive reading of Mullaney. Indeed, the defendant in Patterson characterized Mullaney exactly as the Court has today and we rejected that interpretation:

“Mullaneys holding, it is argued, is that the State may not permit the blameworthiness of an aet or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the ease may be, beyond a reasonable doubt. In our view, the Mullaney holding should not be so broadly read.” Patterson, supra, at 214-215 (emphasis added) (footnote omitted).

*532We explained Mullaney instead as holding only “that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.” 432 U. S., at 215. Because nothing had been presumed against Patterson under New York law, we found no due process violation. Id., at 216. Ever since our decision in Patterson, we have consistently explained the holding in Mullaney in these limited terms and have rejected the broad interpretation the Court gives Mullaney today. See Jones, 526 U. S., at 241 (“We identified the use of a presumption to establish an essential ingredient of the offense as the curse of the Maine law [in Mullaney]”); Almendarez-Torres, 523 U. S., at 240 (“[Mulla-ney] suggests that Congress cannot permit judges to increase a sentence in light of recidivism, or any other factor, not set forth in an indictment and proved to a jury beyond a reasonable doubt. This Court’s later ease, Patterson v. New York,... however, makes absolutely clear that such a reading of Mullaney is wrong”); McMillan, 477 U. S., at 84 (same).

The case law from which the Court claims that its rule emerges consists of only one other decision — McMillan v. Pennsylvania. The Court’s reliance on McMillan is also puzzling, given that our holding in that case points to the rejection of the Court’s rule. There, we considered a Pennsylvania statute that subjected a defendant to a mandatory minimum sentence of five years’ imprisonment if a judge found, by a preponderance of the evidence, that the defendant had visibly possessed a firearm during the commission of the offense for which he had been convicted. Id., at 81. The petitioners claimed that the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s jury trial guarantee (as incorporated by the Fourteenth Amendment) required the State to prove to the jury beyond a reasonable *533doubt that they had visibly possessed firearms. We rejected both constitutional claims. Id., at 84-91, 93.

The essential holding of McMillan conflicts with at least two of the several formulations the Court gives to the rule it announces today. First, the Court endorses the following principle: “‘[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.’” Ante, at 490 (emphasis added) (quoting Jones, supra, at 252-253 (Stevens, J., concurring)). Second, the Court endorses the rule as restated in Justice Scalia’s concurring opinion in Jones. See ante, at 490. There, Justice Scalia wrote: “[I]t is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which a criminal defendant is exposed.” Jones, supra, at 253 (emphasis added). Thus, the Court appears to hold that any fact that increases or alters the range of penalties to which a defendant is exposed — which, by definition, must include increases or alterations to either the minimum or maximum penalties — must be proved to a jury beyond a reasonable doubt. In McMillan, however, we rejected such a rule to the extent it concerned those facts that increase or alter the minimum penalty to which a defendant is exposed. Accordingly, it is incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action is appropriate under normal principles of stare decisis.

The Court’s opinion does neither. Instead, it attempts to lay claim to McMillan as support for its “increase in the maximum penalty” rule. According to the Court, McMillan acknowledged that permitting a judge to make findings that expose a defendant to greater or additional punishment “may raise serious constitutional concern.” Ante, at 486. We said nothing of the sort in McMillan. To the contrary, we *534began our discussion of the petitioners’ constitutional claims by emphasizing that we had already “rejected the claim that whenever a State links the ‘severity of punishment’ to ‘the presence or absence of an identified fact’ the State must prove that fact beyond a reasonable doubt.” 477 U. S., at 84 (quoting Patterson, 482 U. S., at 214). We then reaffirmed the rule set forth in Patterson — “that in determining what facts must be proved beyond a reasonable doubt the state legislature’s definition of the elements of the offense is usually dispositive.” McMillan, 477 U. S., at 85. Although we acknowledged that there are constitutional limits to the State’s power to define crimes and prescribe penalties, we found no need to establish those outer boundaries in McMillan because “several factors” persuaded us that the Pennsylvania statute did not exceed those limits, however those limits might be defined. Id., at 86. The Court’s assertion that McMillan supports the application of its bright-line rule in this area is, therefore, unfounded.

The Court nevertheless claims to find support for its rule in our discussion of one factor in McMillan — namely, our statement that the petitioners’ claim would have had “at least more superficial appeal” if the firearm possession finding had exposed them to greater or additional punishment. Id., at 88. To say that a claim may have had “more superficial appeal” is, of course, a far cry from saying that a claim would have been upheld. Moreover, we made that statement in the context of examining one of several factors that, in combination, ultimately gave “no doubt that Pennsylvania’s [statute fell] on the permissible side of the constitutional line.” Id., at 91. The confidence of that conclusion belies any argument that our ruling would have been different had the Pennsylvania statute instead increased the maximum penalty to which the petitioners were exposed. In short, it is clear that we did not articulate any bright-line rule that States must prove to a jury beyond a reasonable doubt any fact that exposes a defendant to a greater punishment. *535Such a rule would have been in substantial tension with both our earlier acknowledgment that Patterson rejected such a rule, see 477 U. S., at 84, and our recognition that a state legislature’s definition of the elements is normally disposi-tive, see id., at 85. If any single rule can be derived from McMillan, it is not the Court’s “increase in the maximum penalty” principle, but rather the following: When a State takes a fact that has always been considered by sentencing courts to bear on punishment, and dictates the precise weight that a court should give that fact in setting a defendant’s sentence, the relevant fact need not be proved to a jury beyond a reasonable doubt as would an element of the offense. See id., at 89-90.

Apart from Mullaney and McMillan, the Court does not claim to find support for its rule in any other pre-Jones decision. Thus, the Court is in error when it says that its rule emerges from our ease law. Nevertheless, even if one were willing to assume that Mullaney and McMillan lend some support for the Court’s position, that feeble foundation is shattered by several of our precedents directly addressing the issue. The only one of those decisions that the Court addresses at any length is Almendarez-Torres. There, we squarely rejected the “increase in the maximum penalty” rule: “Petitioner also argues, in essence, that this Court should simply adopt a rule that any significant increase in a statutory maximum sentence would trigger a constitutional ‘elements’ requirement. We have explained why we believe the Constitution, as interpreted in McMillan and earlier eases, does not impose that requirement.” 528 U. S., at 247. Whether Almendarez-Torres directly refuted the “increase in the maximum penalty” rule was extensively debated in Jones, and that debate need not be repeated here. See 526 U. S., at 248-249; id., at 268-270 (Kennedy, J., dissenting). I continue to agree with Justice Kennedy that Almendarez-Torres constituted a clear repudiation of the rule the Court adopts today. See Jones, supra, at 268 (dis*536senting opinion). My understanding is bolstered by Monge v. California, a decision relegated to a footnote by the Court today. In Monge, in reasoning essential to our holding, we reiterated that “the Court has rejected an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence to which a defendant is exposed.” 524 U. S., at 729 (citing Almendarez-Torres). At the very least, Monge demonstrates that Almendarez-Torres was not an “exceptional departure” from “historic practice.” Ante, at 487.

Of all the decisions that refute the Court’s “increase in the maximum penalty” rule, perhaps none is as important as Walton v. Arizona, 497 U. S. 639 (1990). There, a jury found Walton, the petitioner, guilty of first-degree murder. Under Arizona law, a trial court conducts a separate sentencing hearing to determine whether a defendant convicted of first-degree murder should receive the death penalty or life imprisonment. See id., at 643 (citing Ariz. Rev. Stat. Ann. § 13-703(B) (1989)). At that sentencing hearing, the judge, rather than the jury, must determine the existence or nonexistence of the statutory aggravating and mitigating factors. See Walton, 497 U. S., at 643 (quoting § 13-703(B)). The Arizona statute directs the judge to “ ‘impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in [the statute] and that there are no mitigating circumstances sufficiently substantial to call for leniency.’” Id., at 644 (quoting §13-703(E)). Thus, under Arizona law, a defendant convicted of first-degree murder can be sentenced to death only if the judge finds the existence of a statutory aggravating factor.

Walton challenged the Arizona capital sentencing scheme, arguing that the Constitution requires that the jury, and not the judge, make the factual determination of the existence or nonexistence of the statutory aggravating factors. We rejected that contention: “‘Any argument that the Constitution requires that a jury impose the sentence of death or *537make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.’” Id., at 647 (quoting Clemons v. Mississippi, 494 U. S. 738, 745 (1990)). Relying in part on our decisions rejecting challenges to Florida’s capital sentencing scheme, which also provided for sentencing by the trial judge, we added that “ ‘the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.’ ” Walton, supra, at 648 (quoting Hildwin v. Florida, 490 U. S. 638, 640-641 (1989) (per curiam)).

While the Court can cite no decision that would require its “increase in the maximum penalty” rule, Walton plainly rejects it. Under Arizona law, the fact that a statutory aggravating circumstance exists in the defendant’s case ‘“increases the maximum penalty for [the] crime’ ” of first-degree murder to death. Ante, at 476 (quoting Jones, supra, at 243, n. 6). If the judge does not find the existence of a statutory aggravating circumstance, the maximum punishment authorized by the jury’s guilty verdict is life imprisonment. Thus, using the terminology that the Court itself employs to describe the constitutional fault in the New Jersey sentencing scheme presented here, under Arizona law, the judge’s finding that a statutory aggravating circumstance exists “exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Ante, at 483 (emphasis in original). Even Justice Thomas, whose vote is necessary to the Court’s opinion today, agrees on this point. See ante, at 522 (concurring opinion). If a State can remove from the jury a factual determination that makes the difference between life and death, as Walton holds that it can, it is inconceivable why a State cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed.

*538The distinction of Walton offered by the Court today is baffling, to say the least. The key to that distinction is the Court’s claim that, in Arizona, the jury makes all of the findings necessary to expose the defendant to a death sentence. See ante, at 496-497 (quoting Almendarez-Torres, 523 U. S., at 257, n. 2 (Scalia, J., dissenting)). As explained above, that claim is demonstrably untrue. A defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty. Indeed, at the time Walton was decided, the author of the Court’s opinion today understood well the issue at stake. See Walton, 497 U. S., at 709 (Stevens, J., dissenting) (“[U]nder Arizona law, as construed by Arizona’s highest court, a first-degree murder is not punishable by a death sentence until at least one statutory aggravating circumstance has been proved”). In any event, the extent of our holding in Walton should have been perfectly obvious from the face of our decision. We upheld the Arizona scheme specifically on the ground that the Constitution does not require the jury to make the factual findings that serve as the “ ‘prerequisite to imposition of [a death] sentence,’” id., at 647 (quoting Clemons, supra, at 745), or “ ‘the specific findings authorizing the imposition of the sentence of death,’ ” Walton, supra, at 648 (quoting Hildwin, supra, at 640-641). If the Court does not intend to overrule Walton, one would be hard pressed to tell from the opinion it issues today.

The distinction of Walton offered by Justice Thomas is equally difficult to comprehend. According to Justice Thomas, because the Constitution requires state legislatures to narrow sentencing discretion in the capital punishment context, facts that expose a convicted defendant to a capital sentence may be different from all other facts that expose a defendant to a more severe sentence. See ante, at 522-523. *539Justice Thomas gives no specific reason for excepting capital defendants from the constitutional protections he would extend to defendants generally, and none is readily apparent. If Justice Thomas means to say that the Eighth Amendment’s restriction on a state legislature’s ability to define capital crimes should be compensated for by permitting States more leeway under the Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence, his reasoning is without precedent in our constitutional jurisprudence.

In sum, the Court’s statement that its “increase in the maximum penalty” rule emerges from the history and case law that it cites is simply incorrect. To make such a claim, the Court finds it necessary to rely on irrelevant historical evidence, to ignore our controlling precedent (e. g., Patterson), and to offer unprincipled and inexplicable distinctions between its decision and previous cases addressing the same subject in the capital sentencing context (e. g., Walton). The Court has failed to offer any meaningful justification for deviating from years of cases both suggesting and holding that application of the “increase in the maximum penalty” rule is not required by the Constitution.

II

That the Court’s rule is unsupported by the history and ease law it cites is reason enough to reject such a substantial departure from our settled jurisprudence. Significantly, the Court also fails to explain adequately why the Due Process Clauses of the Fifth and Fourteenth Amendments and the jury trial guarantee of the Sixth Amendment require application of its rule. Upon closer examination, it is possible that the Court’s “increase in the maximum penalty” rule rests on a meaningless formalism that accords, at best, marginal protection for the constitutional rights that it seeks to effectuate.

*540Any discussion of either the constitutional necessity or the likely effect of the Court’s rule must begin, of course, with an understanding of what exactly that rule is. As was the case in Jones, however, that discussion is complicated here by the Court’s failure to clarify the contours of the constitutional principle underlying its decision. See Jones, 526 U. S., at 267 (Kennedy, J., dissenting). In fact, there appear to be several plausible interpretations of the constitutional principle on which the Court’s decision rests.

For example, under one reading, the Court appears to hold that the Constitution requires that a fact be submitted to a jury and proved beyond a reasonable doubt only if that fact, as a formal matter, extends the range of punishment beyond the prescribed statutory maximum. See, e. g., ante, at 490. A State could, however, remove from the jury (and subject to a standard of proof below “beyond a reasonable doubt”) the assessment of those facts that define narrower ranges of punishment, within the overall statutory range, to which the defendant may be sentenced. See, e. g., ante, at 494, n. 19. Thus, apparently New Jersey could cure its sentencing scheme, and achieve virtually the same results, by drafting its weapons possession statute in the following manner: First, New Jersey could prescribe, in the weapons possession statute itself, a range of 5 to 20 years’ imprisonment for one who commits that criminal offense. Second, New Jersey could provide that only those defendants convicted under the statute who are found by a judge, by a preponderance of the evidence, to have acted with a purpose to intimidate an individual on the basis of race may receive a sentence greater than 10 years’ imprisonment.

The Court’s proffered distinction of Walton v. Arizona suggests that it means to announce a rule of only this limited effect. The Court claims the Arizona capital sentencing scheme is consistent with the constitutional principle underlying today’s decision because Arizona’s first-degree murder statute itself authorizes both life imprisonment and *541the death penalty. See Ariz. Rev. Stat. Ann. §13-1105(0 (1989). “ ‘[0]nee a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.’ ” Ante, at 497 (emphasis in original) (quoting Almendarez-Torres, 523 U. S., at 257, n. 2 (Scalia, J., dissenting)). Of course, as explained above, an Arizona sentencing judge can impose the maximum penalty of death only if the judge first makes a statutorily required finding that at least one aggravating factor exists in the defendant’s case. Thus, the Arizona first-degree murder statute authorizes a maximum penalty of death only in a formal sense. In real terms, however, the Arizona sentencing scheme removes from the jury the assessment of a fact that determines whether the defendant can receive that maximum punishment. The only difference, then, between the Arizona scheme and the New Jersey scheme we consider here — apart from the magnitude of punishment at stake — is that New Jersey has not prescribed the 20-year maximum penalty in the same statute that it defines the crime to be punished. It is difficult to understand, and the Court does not explain, why the Constitution would require a state legislature to follow such a meaningless and formalistic difference in drafting its criminal statutes.

Under another reading of the Court’s decision, it may mean only that the Constitution requires that a fact be submitted to a jury and proved beyond a reasonable doubt if it, as a formal matter, increases the range of punishment beyond that which could legally be imposed absent that fact. See, e. g., ante, at 482-483, 490. A State could, however, remove from the jury (and subject to a standard of proof below “beyond a reasonable doubt”) the assessment of those facts that, as a formal matter, decrease the range of punishment below that which could legally be imposed absent that fact. Thus, consistent with our decision in Patterson, New *542Jersey could cure its sentencing scheme, and achieve virtually the same results, by drafting its weapons possession statute in the following manner: First, New Jersey could prescribe, in the weapons possession statute itself, a range of 5 to 20 years’ imprisonment for one who commits that criminal offense. Second, New Jersey could provide that a defendant convicted under the statute whom a judge finds, by a preponderance of the evidence, not to have acted with a purpose to intimidate an individual on the basis of race may receive a sentence no greater than 10 years’ imprisonment.

The rule that Justice Thomas advocates in his concurring opinion embraces this precise distinction between a fact that increases punishment and a fact that decreases punishment. See ante, at 501 (“[A] ‘crime’ includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment)”). The historical evidence on which Justice Thomas relies, however, demonstrates both the difficulty and the pure formalism of making a constitutional “elements” rule turn on such a difference. For example, the Wisconsin statute considered in Lacy v. State, 15 Wis. *13 (1862), could plausibly qualify as either increasing or mitigating punishment on the basis of the same specified fact. There, Wisconsin provided that the willful and malicious burning of a dwelling house in which “the life of no person shall have been destroyed” was punishable by 7 to 14 years in prison, but that the same burning at a time in which “there was no person lawfully in the dwelling house” was punishable by only 3 to 10 years in prison. Wis. Eev. Stat., ch. 165, §1 (1858). Although the statute appeared to make the absence of persons from the affected dwelling house a fact that mitigated punishment, the Wisconsin Supreme Court found that the presence of a person in the affected house constituted an aggravating circumstance. Lacy, supra, at *15-*16. As both this example and the above hypothetical redrafted New Jersey statute demonstrate, see supra, at 540, whether a fact is responsible for an *543increase or a decrease in punishment rests in the eye of the beholder. Again, it is difficult to understand, and neither the Court nor Justice Thomas explains, why the Constitution would require a state legislature to follow such a meaningless and formalistic difference in drafting its criminal statutes.

If either of the above readings is all that the Court’s decision means, “the Court’s principle amounts to nothing more than chastising [the New Jersey Legislature] for failing to use the approved phrasing in expressing its intent as to how [unlawful weapons possession] should be punished.” Jones, 526 U. S., at 267 (Kennedy, J., dissenting). If New Jersey can, consistent with the Constitution, make precisely the same differences in punishment turn on precisely the same facts, and can remove the assessment of those facts from the jury and subject them to a standard of proof below “beyond a reasonable doubt,” it is impossible to say that the Fifth, Sixth, and Fourteenth Amendments require the Court’s rule. For the same reason, the “structural democratic constraints” that might discourage a legislature from enacting either of the above hypothetical statutes would be no more significant than those that would discourage the enactment of New Jersey’s present sentence-enhancement statute. See ante, at 490-491, n. 16 (majority opinion). In all three cases, the legislature is able to calibrate punishment perfectly, and subject to a maximum penalty only those defendants whose eases satisfy the sentence-enhancement criterion. As Justice Kennedy explained in Jones, “[n]o constitutional values are served by so formalistic an approach, while its constitutional costs in statutes struck down... are real.” 526 U. S., at 267.

Given the pure formalism of the above readings of the Court’s opinion, one suspects that the constitutional principle underlying its decision is more far reaching. The actual principle underlying the Court’s decision may be that any fact (other than prior conviction) that has the effect, in real terms, of increasing the maximum punishment beyond an *544otherwise applicable range must be submitted to a jury and proved beyond a reasonable doubt. See, e. g., ante, at 494 (“[T]he relevant inquiry is one not of form, but of effect— does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”). The principle thus would apply not only to schemes like New Jersey’s, under which a factual determination exposes the defendant to a sentence beyond the prescribed statutory maximum, but also to all determinate-sentencing schemes in which the length of a defendant’s sentence within the statutory range turns on specific factual determinations (e. g., the federal Sentencing Guidelines). Justice Thomas essentially concedes that the rule outlined in his concurring opinion would require the invalidation of the Sentencing Guidelines. See ante, at 528, n. 11.

I would reject any such principle. As explained above, it is inconsistent with our precedent and would require the Court to overrule, at a minimum, decisions like Patterson and Walton. More importantly, given our approval of — and the significant history in this country of — discretionary sentencing by judges, it is difficult to understand how the Fifth, Sixth, and Fourteenth Amendments could possibly require the Court’s or Justice Thomas’ rule. Finally, in light of the adoption of determinate-sentencing schemes by many States and the Federal Government, the consequences of the Court’s and Justice Thomas’ rules in terms of sentencing schemes invalidated by today’s decision will likely be severe.

As the Court acknowledges, we have never doubted that the Constitution permits Congress and the state legislatures to define criminal offenses, to prescribe broad ranges of punishment for those offenses, and to give judges discretion to decide where within those ranges a particular defendant’s punishment should be set. See ante, at 481-482. That view accords with historical practice under the Constitution. “From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion. The great *545majority of federal criminal statutes have stated only a maximum term of years and a maximum monetary fine, permitting the sentencing judge to impose any term of imprisonment and any fine up to the statutory maximum.” K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) (footnote omitted). Under discretionary-sentencing schemes, a judge bases the defendant’s sentence on any number of facts neither presented at trial nor found by a jury beyond a reasonable doubt. As one commentator has explained:

“During the age of broad judicial sentencing discretion, judges frequently made sentencing decisions on the basis of facts that they determined for themselves, on less than proof beyond a reasonable doubt, without eliciting very much concern from civil libertarians.... The sentence in any number of traditional discretionary situations depended quite directly on judicial findings of specific contested facts. . . . Whether because such facts were directly relevant to the judge’s retributionist assessment of how serious the particular offense was (within the spectrum of conduct covered by the statute of conviction), or because they bore on a determination of how much rehabilitation the offender’s character was likely to need, the sentence would be higher or lower, in some specific degree determined by the judge, based on the judge’s factual conclusions.” Lynch, Towards A Model Penal Code, Second (Federal?), 2 Buffalo Grim. L. Rev. 297, 320 (1998) (footnote omitted).

Accordingly, under the discretionary-sentencing schemes, a factual determination made by a judge on a standard of proof below “beyond a reasonable doubt” often made the difference between a lesser and a greater punishment.

For example, in Williams v. New York, a jury found the defendant guilty of first-degree murder and recommended life imprisonment. The judge, however, rejected the jury’s *546recommendation and sentenced Williams to death on the basis of additional facts that he learned through a pre-sentence investigation report and that had neither been charged in an indictment nor presented to the jury. 337 U. S., at 242-245. In rejecting Williams’ due process challenge to his death sentence, we explained that there was a long history of sentencing judges exercising “wide discretion in the sources and types of evidence used to assist [them] in determining the kind and extent of punishment to be imposed within limits fixed by law.” Id., at 246. Specifically, we held that the Constitution does not restrict a judge’s sentencing decision to information that is charged in an indictment and subject to cross-examination in open court. “The due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.” Id., at 251.

Under our precedent, then, a State may leave the determination of a defendant’s sentence to a judge’s discretionary decision within a prescribed range of penalties. When a judge, pursuant to that sentencing scheme, decides to increase a defendant’s sentence on the basis of certain contested facts, those facts need not be proved to a jury beyond a reasonable doubt. The judge’s findings, whether by proof beyond a reasonable doubt or less, suffice for purposes of the Constitution. Under the Court’s decision today, however, it appears that once a legislature constrains judges’ sentencing discretion by prescribing certain sentences that may only be imposed (or must be imposed) in connection with the same determinations of the same contested facts, the Constitution requires that the facts instead be proved to a jury beyond a reasonable doubt. I see no reason to treat the two schemes differently. See, e. g., McMillan, 477 U. S., at 92 ("We have some difficulty fathoming why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance”). In this respect, I agree with the Solicitor General that “[a] sen*547tence that is constitutionally permissible when selected by a court on the basis of whatever factors it deems appropriate does not become impermissible simply because the court is permitted to select that sentence only after making a finding prescribed by the legislature.” Brief for United States as Amicus Curiae 7. Although the Court acknowledges the legitimacy of discretionary sentencing by judges, see ante, at 481-482, it never provides a sound reason for treating judicial factfinding under determinate-sentencing schemes differently under the Constitution.

Justice Thomas’ attempt to explain this distinction is similarly unsatisfying. His explanation consists primarily of a quotation, in turn, of a 19th-century treatise writer, who contended that the aggravation of punishment within a statutory range on the basis of facts found by a judge “ 'is an entirely different thing from punishing one for what is not alleged against him.’” Ante, at 519 (quoting 1 J. Bishop, Commentaries on Law of Criminal Procedure § 85, p. 54 (rev. 2d ed. 1872)). As our decision in Williams v. New York demonstrates, however, that statement does not accurately describe the reality of discretionary sentencing conducted by judges. A defendant’s actual punishment can be affected in a very real way by facts never alleged in an indictment, never presented to a jury, and never proved beyond a reasonable doubt. In Williams’ case, facts presented for the first time to the judge, for purposes of sentencing alone, made the difference between life imprisonment and a death sentence.

Consideration of the purposes underlying the Sixth Amendment’s jury trial guarantee further demonstrates why our acceptance of judge-made findings in the context of discretionary sentencing suggests the approval of the same judge-made findings in the context of determinate sentencing as well. One important purpose of the Sixth Amendment’s jury trial guarantee is to protect the criminal defendant against potentially arbitrary judges. It effectuates this promise by preserving, as a constitutional matter, certain *548fundamental decisions for a jury of one’s peers, as opposed to a judge. For example, the Court has recognized that the Sixth Amendment’s guarantee was motivated by the English experience of “competition ... between judge and jury over the real significance of their respective roles,” Jones, 526 U. S., at 245, and “measures [that were taken] to diminish the juries’ power,” ibid. We have also explained that the jury trial guarantee was understood to provide “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” Duncan v. Louisiana, 391 U. S. 145, 156 (1968). Blackstone explained that the right to trial by jury was critically important in criminal eases because of “the violence and partiality of judges appointed by the crown,. . . who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration, that such is their will and pleasure.” 4 Blackstone, Commentaries, at 343. Clearly, the concerns animating the Sixth Amendment’s jury trial guarantee, if they were to extend to the sentencing context at all, would apply with greater strength to a discretionary-sentencing scheme than to determinate sentencing. In the former scheme, the potential for mischief by an arbitrary judge is much greater, given that the judge’s decision of where to set the defendant’s sentence within the prescribed statutory range is left almost entirely to discretion. In contrast, under a determinate-sentencing system, the discretion the judge wields within the statutory range is tightly constrained. Accordingly, our approval of discretionary-sentencing schemes, in which a defendant is not entitled to have a jury make factual findings relevant to sentencing despite the effect those findings have on the severity of the defendant’s sentence, demonstrates that the defendant should have no right to demand that a jury make *549the equivalent factual determinations under a determinate-sentencing scheme.

The Court appears to hold today, however, that a defendant is entitled to have a jury decide, by proof beyond a reasonable doubt, every fact relevant to the determination of sentence under a determinate-sentencing scheme. If this is an accurate description of the constitutional principle underlying the Court’s opinion, its decision will have the effect of invalidating significant sentencing reform accomplished at the federal and state levels over the past three decades. Justice Thomas’ rule, as he essentially concedes, see ante, at 523, n. 11, would have the same effect.

Prior to the most recent wave of sentencing reform, the Federal Government and the States employed indeterminate-sentencing schemes in which judges and executive branch officials (e. g., parole board officials) had substantial discretion to determine the actual length of a defendant’s sentence. See, e. g., U. S. Dept, of Justice, S. Shane-DuBow, A. Brown, & E. Olsen, Sentencing Reform in the United States: History, Content, and Effect 6-7 (Aug. 1985) (hereinafter Shane-DuBow); Report of Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment 11-13 (1976) (hereinafter Task Force Report); A. Dershowitz, Criminal Sentencing in the United States: An Historical and Conceptual Overview, 423 Annals Am. Acad. Pol. & Soe. Sci. 117, 128-129 (1976). Studies of indeterminate-sentencing schemes found that similarly situated defendants often received widely disparate sentences. See, e. g., Shane-Dubow 7; Task Force Report 14. Although indeterminate sentencing was intended to soften the harsh and uniform sentences formerly imposed under mandatory-sentencing systems, some studies revealed that indeterminate sentencing actually had the opposite effect. See, e. g., A. Campbell, Law of Sentencing 13 (1978) (“Paradoxically the humanitarian impulse sparking the adoption of indeterminate sentencing systems in this country has resulted in *550an actual increase of the average criminal’s incarceration term”); Task Force Report 13 (“[T]he data seem to indicate that in those jurisdictions where the sentencing structure is more indeterminate, judicially imposed sentences tend to be longer”).

In response, Congress and the state legislatures shifted to determinate-sentencing schemes that aimed to limit judges’ sentencing discretion and, thereby, afford similarly situated offenders equivalent treatment. See, e. g., Cal. Penal Code Ann. §1170 (West Supp. 2000). The most well known of these reforms was the federal Sentencing Reform Act of 1984,18 U. S. C. § 3551 et seq. In the Act, Congress created the United States Sentencing Commission, which in turn promulgated the Sentencing Guidelines that now govern sentencing by federal judges. See, e. g., United States Sentencing Commission, Guidelines Manual (Nov. 1998). Whether one believes the determinate-sentencing reforms have proved successful or not — and the subject is one of extensive debate among commentators — the apparent effect of the Court’s opinion today is to halt the current debate on sentencing reform in its tracks and to invalidate with the stroke of a pen three decades’ worth of nationwide reform, all in the name of a principle with a questionable constitutional pedigree. Indeed, it is ironic that the Court, in the name of constitutional rights meant to protect criminal defendants from the potentially arbitrary exercise of power by prosecutors and judges, appears to rest its decision on a principle that would render unconstitutional efforts by Congress and the state legislatures to place constraints on that very power in the sentencing context.

Finally, perhaps the most significant impact of the Court’s decision will be a practical one — its unsettling effect on sentencing conducted under current federal and state determinate-sentencing schemes. As I have explained, the Court does not say whether these schemes are constitutional, *551but its reasoning strongly suggests that they are not. Thus, with respect to past sentences handed down by judges under determinate-sentencing schemes, the Court’s decision threatens to unleash a flood of petitions by convicted defendants seeldng to invalidate their sentences in whole or in part on the authority of the Court’s decision today. Statistics compiled by the United States Sentencing Commission reveal that almost a half-million cases have been sentenced under the Sentencing Guidelines since 1989. See Memorandum from U. S. Sentencing Commission to Supreme Court Library, dated June 8, 2000 (total number of eases sentenced under federal Sentencing Guidelines since 1989) (available in Clerk of Court’s case file). Federal eases constitute only the tip of the iceberg. In 1998, for example, federal criminal prosecutions represented only about 0.4% of the total number of criminal prosecutions in federal and state courts. See National Center for State Courts, A National Perspective: Court Statistics Project (federal and state court filings, 1998), http://www.nese.dni.us/divisions/researeh/csp/ csp98-fsef.html (showing that, in 1998, 57,691 criminal cases were filed in federal court compared to 14,623,830 in state courts) (available in Clerk of Court’s ease file). Because many States, like New Jersey, have determinate-sentencing schemes, the number of individual sentences drawn into question by the Court’s decision could be colossal.

The decision will likely have an even more damaging effect on sentencing conducted in the immediate future under current determinate-sentencing schemes. Because the Court fails to clarify the precise contours of the constitutional principle underlying its decision, federal and state judges are left in a state of limbo. Should they continue to assume the constitutionality of the determinate-sentencing schemes under which they have operated for so long, and proceed to sentence convicted defendants in accord with those governing statutes and guidelines? The Court provides no answer, *552yet its reasoning suggests that each new sentence will rest on shaky ground. The most unfortunate aspect of today’s decision is that our precedents did not foreordain this disruption in the world of sentencing. Rather, our cases traditionally took a cautious approach to questions like the one presented in this case. The Court throws that caution to the wind and, in the process, threatens to east sentencing in the United States into what will likely prove to be a lengthy period of considerable confusion.

rH 1 — 1

Because I do not believe that the Court’s "increase in the maximum penalty” rule is required by the Constitution, I would evaluate New Jersey’s sentence-enhancement statute, N. J. Stat. Ann. §2C:44-3 (West Supp. 2000), by analyzing the factors we have examined in past cases. See, e. g., Almendarez-Torres, 523 U. S., at 242-243; McMillan, All U. S., at 86-90. First, the New Jersey statute does not shift the burden of proof on an essential ingredient of the offense by presuming that ingredient upon proof of other elements of the offense. See, e. g., id., at 86-87; Patterson, 432 U. S., at 215. Second, the magnitude of the New Jersey sentence enhancement, as applied in petitioner’s case, is constitutionally permissible. Under New Jersey law, the weapons possession offense to which petitioner pleaded guilty carries a sentence range of 5 to 10 years’ imprisonment. N. J. Stat. Ann. §§ 2C:39-4(a), 2C:43-6(a)(2) (West 1995). The fact that petitioner, in committing that offense, acted with a purpose to intimidate because of race exposed him to a higher sentence range of 10 to 20 years’ imprisonment. §2C:43-7(a)(3). The 10-year increase in the maximum penalty to which petitioner was exposed falls well within the range we have found permissible. See Almendarez-Torres, supra, at 226, 242-243 (approving 18-year enhancement). Third, the New Jersey statute gives no impression of having been *553enacted to evade the constitutional requirements that attach when a State makes a fact an element of the charged offense. For example, New Jersey did not take what had previously been an element of the weapons possession offense and transform it into a sentencing factor. See McMillan, 477 U. S., at 89.

In sum, New Jersey “simply took one factor that has always been considered by sentencing courts to bear on punishment” — a defendant’s motive for committing the criminal offense — “and dictated the precise weight to be given that factor” when the motive is to intimidate a person because of race. Id., at 89-90. The Court claims that a purpose to intimidate on account of race is a traditional mens rea element, and not a motive. See ante, at 492-493. To make this claim, the Court finds it necessary once again to ignore our settled precedent. In Wisconsin v. Mitchell, 508 U. S. 476 (1993), we considered a statute similar to the one at issue here. The Wisconsin statute provided for an increase in a convicted defendant’s punishment if the defendant intentionally selected the victim of the crime because of that victim’s race. Id., at 480. In a unanimous decision upholding the statute, we specifically characterized it as providing a sentence enhancement based on the “motive” of the defendant. See id., at 485 (distinguishing between punishment of defendant’s “criminal conduct” and penalty enhancement “for conduct motivated by a discriminatory point of view” (emphasis added)); id., at 484-485 (“[U]nder the Wisconsin statute the same criminal conduct may be more heavily punished if the victim is selected because of his race . . . than if no such motive obtained” (emphasis added)). .That same characterization applies in the ease of the New Jersey statute. As we also explained in Mitchell, the motive for committing an offense has traditionally been an important factor in determining a defendant’s sentence. Id., at 485. New Jersey, therefore, has done no more than what we held permissible *554in McMillan; it has taken a traditional sentencing factor and dictated the precise weight judges should attach to that factor when the specific motive is to intimidate on the basis of race.

The New Jersey statute resembles the Pennsylvania statute we upheld in McMillan in every respect but one. That difference — that the New Jersey statute increases the maximum punishment to which petitioner was exposed — does not persuade me that New Jersey “sought to evade the constitutional requirements associated with the characterization of a fact as an offense element.” Supra, at 524. There is no question that New Jersey could prescribe a range of 5 to 20 years’ imprisonment as punishment for its weapons possession offense. Thus, as explained above, the specific means by which the State chooses to control judges’ discretion within that permissible range is of no moment. Cf. Patterson, supra, at 207-208 (“The Due Process Clause, as we see it, does not put New York to the choice of abandoning [the affirmative defense] or undertaking to disprove [its] existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment”). The New Jersey statute also resembles in virtually every respect the federal statute we considered in Almendarez-Torres. That the New Jersey statute provides an enhancement based on the defendant’s motive while the statute in Almendarez-Torres provided an enhancement based on the defendant’s commission of a prior felony is a difference without constitutional importance. Both factors are traditional bases for increasing an offender’s sentence and, therefore, may serve as the grounds for a sentence enhancement.

On the basis of our prior precedent, then, I would hold that the New Jersey sentence-enhancement statute is constitutional, and affirm the judgment of the Supreme Court of New Jersey.

*555Justice Breyer,

with whom The ChieF Justice joins, dissenting.

The majority holds that the Constitution contains the following requirement: “[A]ny fact [other than recidivism] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Ante, at 490. This rule would seem to promote a procedural ideal — that of juries, not judges, determining the existence of those facts upon which increased punishment tens. But the real world of criminal justice cannot hope to meet any such ideal. It can function only with the help of procedural compromises, particularly in respect to sentencing. And those compromises, which are themselves necessary for the fair functioning of the criminal justice system, preclude implementation of the procedural model that today’s decision reflects. At the very least, the impractical nature of the requirement that the majority now recognizes supports the proposition that the Constitution was not intended to embody it.

In modern times, the law has left it to the sentencing judge to find those facts which (within broad sentencing limits set by the legislature) determine the sentence of a convicted offender. The judge’s factfinding role is not inevitable. One could imagine, for example, a pure “charge offense” sentencing system in which the degree of punishment depended only upon the crime charged (e. g., eight mandatory years for robbery, six for arson, three for assault). But such a system would ignore many harms and risks of harm that the offender caused or created, and it would ignore many relevant offender characteristics. See United States Sentencing Commission, Sentencing Guidelines and Policy Statements, Part A, at 1.5 (1987) (hereinafter Sentencing Guidelines or Guidelines) (pointing out that a “charge offense” *556system by definition would ignore any fact “that did not constitute [a] statutory elemen[t] of the offens[e] of which the defendant was convicted”). Hence, that imaginary “charge offense” system would not be a fair system, for it would lack proportionality, i. e., it would treat different offenders similarly despite major differences in the manner in which each committed the same crime.

There are many such manner-related differences in respect to criminal behavior. Empirical data collected by the Sentencing Commission make clear that, before the Guidelines, judges who exercised discretion within broad legislatively determined sentencing limits (say, a range of 0 to 20 years) would impose very different sentences upon offenders engaged in the same basic criminal conduct, depending, for example, upon the amount of drugs distributed (in respect to drug crimes), the amount of money taken (in respect to robbery, theft, or fraud), the presence or use of a weapon, injury to a victim, the vulnerability of a victim, the offender’s role in the offense, recidivism, and many other offense-related or offender-related factors. See United States Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements 35-39 (1987) (hereinafter Supplementary Report) (table listing data representing more than 20 such factors); see generally Department of Justice, W. Rhodes & C. Conly, Analysis of Federal Sentencing (May 1981). The majority does not deny that judges have exercised, and, constitutionally speaking, may exercise sentencing discretion in this way.

Nonetheless, it is important for present purposes to understand why judges, rather than juries, traditionally have determined the presence or absence of such sentence-affecting facts in any given case. And it is important to realize that the reason is not a theoretical one, but a practical one. It does not reflect (Justice Sgalia’s opinion to the contrary notwithstanding) an ideal of procedural “fairness,” ante, at 498 (concurring opinion), but rather an administrative need *557for procedural compromise. There are, to put it simply, far too many potentially relevant sentencing factors to permit submission of all (or even many) of them to a jury. As the Sentencing Guidelines state the matter,

“[a] bank robber with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, a teller or a customer, at night (or at noon), for a bad (or arguably less bad) motive, in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time that day, while sober (or under the influence of drugs or alcohol), and so forth.” Sentencing Guidelines, Part A, at 1.2.

The Guidelines note that "a sentencing system tailored to fit every conceivable wrinkle of each case can become unworkable and seriously compromise the certainty of punishment and its deterrent effect.” Ibid. To ask a jury to consider all, or many, such matters would do the same.

At the same time, to require jury consideration of all such factors — say, during trial where the issue is guilt or innocence — could easily place the defendant in the awkward (and conceivably unfair) position of having to deny he committed the crime yet offer proof about how he committed it, e. g., “I did not sell drugs, but I sold no more than 500 grams.” And while special postverdict sentencing juries could cure this problem, they have seemed (but for capital cases) not worth their administrative costs. Hence, before the Guidelines, federal sentencing judges typically would obtain relevant factual sentencing information from probation officers’ presentence reports, while permitting a convicted offender to challenge the information’s accuracy at a hearing before the judge without benefit of trial-type evi-dentiary rules. See Williams v. New York, 337 U. S. 241, *558249-251 (1949) (describing the modern “practice of individualizing punishments” under which judges often consider otherwise inadmissible information gleaned from probation reports); see also Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 Harv. L. Rev. 904, 915-917 (1962).

It is also important to understand how a judge traditionally determined which factors should be taken into account for sentencing purposes. In principle, the number of potentially relevant behavioral characteristics is endless. A judge might ask, for example, whether an unlawfully possessed knife was “a switchblade, drawn or concealed, opened or closed, large or small, used in connection with a car theft (where victim confrontation is rare), a burglary (where confrontation is unintended) or a robbery (where confrontation is intentional).” United States Sentencing Commission, Preliminary Observations of the Commission on Commissioner Robinson’s Dissent 8, n. 3 (May 1,1987). Again, the method reflects practical, rather than theoretical, considerations. Prior to the Sentencing Guidelines, federal law left the individual sentencing judge free to determine which factors were relevant. That freedom meant that each judge, in an effort to tailor punishment to the individual offense and offender, was guided primarily by experience, relevance, and a sense of proportional fairness. Cf. Supplementary Report 16-17 (noting that the goal of the Sentencing Guidelines was to create greater sentencing uniformity among judges, but in doing so the Guidelines themselves had to rely primarily upon empirical studies that showed which factors had proved important to federal judges in the past).

Finally, it is important to understand how a legislature decides which factual circumstances among all those potentially related to generally harmful behavior it should transform into elements of a statutorily defined crime (where they would become relevant to the guilt or innocence of an accused), and which factual circumstances it should leave to *559the sentencing process (where, as sentencing factors, they would help to determine the sentence imposed upon one who has been found guilty). Again, theory does not provide an answer. Legislatures, in defining crimes in terms of elements, have looked for guidance to common-law tradition, to history, and to current social need. And, traditionally, the Court has left legislatures considerable freedom to make the element determination. See Almendarez-Torres v. United States, 523 U. S. 224, 228 (1998); McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986).

By placing today’s constitutional question in a broader context, this brief survey may help to clarify the nature of today’s decision. It also may explain why, in respect to sentencing systems, proportionality, uniformity, and admin-istrability are all aspects of that basic “fairness” that the Constitution demands. And it suggests my basic problem with the Court’s rule: A sentencing system in which judges have discretion to find senteneing-related factors is a workable system and one that has long been thought consistent with the Constitution; why, then, would the Constitution treat sentencing statutes any differently?

H-i H-i

As Justice Thomas suggests, until fairly recent times many legislatures rarely focused upon sentencing factors. Rather, it appears they simply identified typical forms of antisocial conduct, defined basic “crimes,” and attached a broad sentencing range to each definition — leaving judges free to decide how to sentence within those ranges in light of such factors as they found relevant. Ante, at 510-512,518 (concurring opinion). But the Constitution does not freeze 19th-century sentencing practices into permanent law. And dissatisfaction with the traditional sentencing system (reflecting its tendency to treat similar eases differently) has led modern legislatures to write new laws that refer specifically to sentencing factors. See Supplementary Report 1 *560(explaining that “a growing recognition of the need to bring greater rationality and consistency to penal statutes and to sentences imposed under those statutes” led to reform efforts such as the Federal Sentencing Guidelines).

Legislatures have tended to address the problem of too much judicial sentencing discretion in two ways. First, legislatures sometimes have created sentencing commissions armed with delegated authority to make more uniform judicial exercise of that discretion. Congress, for example, has created a federal Sentencing Commission, giving it the power to create Guidelines that (within the sentencing range set by individual statutes) reflect the host of factors that might be used to determine the actual sentence imposed for each individual crime. See 28 U. S. C. § 994(a); see also United States Sentencing Commission, Guidelines Manual (Nov. 1999). Federal judges must apply those Guidelines in typical eases (those that lie in the “heartland” of the crime as the statute defines it) while retaining freedom to depart in atypical eases. Id., eh. 1, pt. A, 4(b).

Second, legislatures sometimes have directly limited the use (by judges or by a commission) of particular factors in sentencing, either by specifying statutorily how a particular factor will affect the sentence imposed or by specifying how a commission should use a particular factor when writing a guideline. Such a statute might state explicitly, 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. See, e. g., McMillan, supra, at 83 (Pennsylvania statute expressly treated “visible possession of a firearm” as a sentencing consideration that subjected a defendant to a mandatory 5-year term of imprisonment).

The issue the Court decides today involves this second kind of legislation. The Court holds that a legislature cannot enact such legislation (where an increase in the maximum is involved) unless the factor at issue has been charged, *561tried to a jury, and found to exist beyond a reasonable doubt. My question in respect to this holding is, simply, “why would the Constitution contain such a requirement”?

In light of the sentencing background described in Parts I and II, I do not see how the majority can find in the Constitution a requirement that “any fact” (other than recidivism) that increases the maximum penalty for a crime “must be submitted to a jury.” Ante, at 490. As Justice O’Con-nor demonstrates, this Court has previously failed to view the Constitution as embodying any such principle, while sometimes finding to the contrary. See Almendarez-Torres, supra, at 239-247; McMillan, supra, at 84-91. The majority raises no objection to traditional pre-Guidelines sentencing procedures under which judges, not juries, made the factual findings that would lead to an increase in an individual offender’s sentence. How does a legislative determination differ in any significant way? For example, if a judge may on his or her own decide that victim injury or bad motive should increase a bank robber’s sentence from 5 years to 10, why does it matter that a legislature instead enacts a statute that increases a bank robber’s sentence from 5 years to 10 based on this same judicial finding?

With the possible exception of the last line of Justice Scalia’s concurring opinion, the majority also makes no constitutional objection to a legislative delegation to a commission of the authority to create guidelines that determine how a judge is to exercise sentencing discretion. See also ante, at 523, n. 11 (Thomas, J., concurring) (reserving the question). But if the Constitution permits Guidelines, why does it not permit Congress similarly to guide the exercise of a judge’s sentencing discretion? That is, if the Constitution permits a delegatee (the commission) to exercise senteneing-related rulemaking power, how can it deny the *562delegator (the legislature) what is, in effect, the same rule-making power?

The majority appears to offer two responses. First, it argues for a limiting principle that would prevent a legislature with broad authority from transforming (jury-determined) facts that constitute elements of a crime into (judge-determined) sentencing factors, thereby removing procedural protections that the Constitution would otherwise require. See ante, at 486 (“[Cjonstitutional limits” prevent States from “defining] away facts necessary to constitute a criminal offense”). The majority’s cure, however, is not aimed at the disease.

The same “transformational” problem exists under traditional sentencing law, where legislation, silent as to sentencing factors, grants the judge virtually unchecked discretion to sentence within a broad range. Under such a system, judges or prosecutors can similarly “transform” crimes, punishing an offender convicted of one crime as if he had committed another. A prosecutor, for example, might charge an offender with five counts of embezzlement (each subject to a 10-year maximum penalty), while asking the judge to impose maximum and consecutive sentences because the embezzler murdered his employer. And, as part of the traditional sentencing discretion that the majority concedes judges retain, the judge, not a jury, would determine the last-mentioned relevant fact, i. e., that the murder actually occurred.

This egregious example shows the problem’s complexity. The source of the problem lies not in a legislature’s power to enact sentencing factors, but in the traditional legislative power to select elements defining a crime, the traditional legislative power to set broad sentencing ranges, and the traditional judicial power to choose a sentence within that range on the basis of relevant offender conduct. Conversely, the solution to the problem lies, not in prohibiting legislatures from enacting sentencing factors, but in sentencing rules that determine punishments on the basis of properly defined *563relevant conduct, with sensitivity to the need for procedural protections where sentencing factors are determined by a judge (for example, use of a “reasonable doubt” standard), and invocation of the Due Process Clause where the history of the crime at issue, together with the nature of the facts to be proved, reveals unusual and serious procedural unfairness. Cf. McMillan, 477 U. S., at 88 (upholding statute in part because it “gives no impression of having been tailored to permit the [sentencing factor] to be a tail which wags the dog of the substantive offense”).

Second, the majority, in support of its constitutional rule, emphasizes the concept of a statutory “maximum.” The Court points out that a sentencing judge (or a commission) traditionally has determined, and now still determines, sentences within a legislated range capped by a maximum (a range that the legislature itself sets). See ante, at 481-482. I concede the truth of the majority’s statement, but I do not understand its relevance.

From a defendant’s perspective, the legislature’s decision to cap the possible range of punishment at a statutorily prescribed “maximum” would affect the actual sentence imposed no differently than a sentencing commission’s (or a sentencing judge’s) similar determination. Indeed, as a practical matter, a legislated mandatory “minimum” is far more important to an actual defendant. A judge and a commission, after all, are legally free to select any sentence below a statute’s maximum, but they are not free to subvert a statutory minimum. And, as Justice Thomas indicates, all the considerations of fairness that might support submission to a jury of a factual matter that increases a statutory maximum apply a fortiori to any matter that would increase a statutory minimum. See ante, at 521-522 (concurring opinion). To repeat, I do not understand why, when a legislature authorizes a judge to impose a higher penalty for bank robbery (based, say, on the court’s finding that a victim was injured or the defendant’s motive was bad), a new crime is born; but *564where a legislature requires a judge to impose a higher penalty than he otherwise would (within a pre-existing statutory range) based on similar criteria, it is not. Cf. Almendarez-Torres, 523 U. S., at 246.

IV

I certainly do not believe that the present sentencing system is one of “perfect equity,” ante, at 498 (Scalia, J., concurring), and I am willing, consequently, to assume that the majority’s rule would provide a degree of increased procedural protection in respect to those particular sentencing factors currently embodied in statutes. I nonetheless believe that any such increased protection provides little practical help and comes at too high a price. For one thing, by leaving mandatory minimum sentences untouched, the majority’s rule simply encourages any legislature interested in asserting control over the sentencing process to do so by creating those mínimums. That result would mean significantly less procedural fairness, not more.

For another thing, this Court’s case law, prior to Jones v. United States, 526 U. S. 227, 243, n. 6 (1999), led legislatures to believe that they were permitted to increase a statutory maximum sentence on the basis of a sentencing factor. See ante, at 529-539 (O’Connor, J., dissenting); see also, e. g., McMillan, supra, at 84-91 (indicating that a legislature could impose mandatory sentences on the basis of sentencing factors, thereby suggesting it could impose more flexible statutory máximums on same basis). And legislatures may well have relied upon that belief. See, e. g., 21 U. S. C. § 841(b) (1994 ed. and Supp. III) (providing penalties for, among other things, possessing a “controlled substance” with intent to distribute it, which sentences vary dramatically depending upon the amount of the drug possessed, without requiring jury determination of the amount); N. J. Stat. Ann. §§2C:43-6, 2C:43-7, 2C:44-la-f, 2C:44-3 (West 1995 and Supp. 1999-2000) (setting sentencing ranges for crimes, while providing for lesser or greater punishments *565depending upon judicial findings regarding certain “aggravating” or “mitigating” factors); Cal. Penal Code Ann. § 1170 (West Supp. 2000) (similar); see also Cal. Court Rule 420(b) (1996) (providing that “[ejircumstanees in aggravation and mitigation” are to be established by the sentencing judge based on “the ease record, the probation officer’s report, [and] other reports and statements properly received”).

As Justice O’Connor points out, the majority’s rule creates serious uncertainty about the constitutionality of such statutes and about the constitutionality of the confinement of those punished under them. See ante, at 549-552 (dissenting opinion). The few amicus briefs that the Court received in this case do not discuss the impact of the Court’s new rule on, for example, drug crime statutes or state criminal justice systems. This fact, I concede, may suggest that my concerns about disruption are overstated; yet it may also suggest that (despite Jones and given Almendarez-Torres) so absolute a constitutional prohibition is unexpected. Moreover, the rationale that underlies the Court’s rule suggests a principle — jury determination of all sentencing-related facts — that, unless restricted, threatens the workability of every criminal justice system (if applied to judges) or threatens efforts to make those systems more uniform, hence more fair (if applied to commissions).

Finally, the Court’s new rule will likely impede legislative attempts to provide authoritative guidance as to how courts should respond to the presence of traditional sentencing factors. The factor at issue here — motive—is such a factor. Whether a robber takes money to finance other crimes or to feed a starving family can matter, and long has mattered, when the length of a sentence is at issue. The State of New Jersey has determined that one motive — racial hatred — is particularly bad and ought to make a difference in respect to punishment for a crime. That determination is reasonable. The procedures mandated are consistent with traditional sentencing practice. Though additional proce*566dural protections might well be desirable, for the reasons Justice O’Connor discusses and those I have discussed, I do not believe the Constitution requires them where ordinary sentencing factors are at issue. Consequently, in my view, New Jersey’s statute is constitutional.

I respectfully dissent.

Justice Stevens

delivered the opinion of the Court in part.*

The question presented in each of these cases is whether an application of the Federal Sentencing Guidelines violated the Sixth Amendment. In each case, the courts below held that binding rules set forth in the Guidelines limited the severity of the sentence that the judge could lawfully impose on the defendant based on the facts found by the jury at his trial. In both cases the courts rejected, on the basis of our decision in Blakely v. Washington, 542 U. S. 296 (2004), the Government’s recommended application of the Sentencing Guidelines because the proposed sentences were based on additional facts that the sentencing judge found by a preponderance of the evidence. We hold that both courts correctly concluded that the Sixth Amendment as construed in *227 Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by Justice Breyer, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.

I

Respondent Booker was charged with possession with intent to distribute at least 50 grams of cocaine base (crack). Having heard evidence that he had 92.5 grams in his duffel bag, the jury found him guilty of violating 21 U. S. C. § 841(a)(1). That statute prescribes a minimum sentence of 10 years in prison and a maximum sentence of life for that offense. §841(b)(1)(A)(iii).

Based upon Booker’s criminal history and the quantity of drugs found by the jury, the Sentencing Guidelines required the District Court Judge to select a “base” sentence of not less than 210 nor more than 262 months in prison. See United States Sentencing Commission, Guidelines Manual §§2D1.1(c)(4), 4A1.1 (Nov. 2003) (USSG). The judge, however, held a post-trial sentencing proceeding and concluded by a preponderance of the evidence that Booker had possessed an additional 566 grams of crack and that he was guilty of obstructing justice. Those findings mandated that the judge select a sentence between 360 months and life imprisonment; the judge imposed a sentence at the low end of the range. Thus, instead of the sentence of 21 years and 10 months that the judge could have imposed on the basis of the facts proved to the jury beyond a reasonable doubt, Booker received a 30-year sentence.

Over the dissent of Judge Easterbrook, the Court of Appeals for the Seventh Circuit held that this application of the Sentencing Guidelines conflicted with our holding in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases *228the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 375 F. 3d 508, 510 (2004). The majority relied on our holding in Blakely, 542 U. S. 296, that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. ” Id., at 303. The court held that the sentence violated the Sixth Amendment, and remanded with instructions to the District Court either to sentence respondent within the sentencing range supported by the jury’s findings or to hold a separate sentencing hearing before a jury.

Respondent Fanfan was charged with conspiracy to distribute and to possess with intent to distribute at least 500. grams of cocaine in violation of 21 U. S. C. §§ 846, 841(a)(1), and 841(b)(1)(B)(ii). He was convicted by the jury after it answered “Yes” to the question “Was the amount of cocaine 500 or more grams?” App. C to Pet. for Cert, in No. 04-105, p. 15a, Under the Guidelines, without additional findings of fact, the maximum sentence authorized by the jury verdict was imprisonment for 78 months.

A few days after our decision in Blakely, the trial judge conducted a sentencing hearing at which he found additional facts that, under the Guidelines, would have authorized a sentence in the 188-to-235-month range. Specifically, he found that respondent Fanfan was responsible for 2.5 kilograms of cocaine powder, and 261.6 grams of crack. He also concluded that respondent had been an organizer, leader, manager, or supervisor in the criminal activity. Both findings were made by a preponderance of the evidence. Under the Guidelines, these additional findings would have required an enhanced sentence of 15 or 16 years instead of the 5 or 6 years authorized by the jury verdict alone. Relying not only on the majority opinion in Blakely, but also on the categorical statements in the dissenting opinions and in the Solic- • *229itor General’s brief in Blakely, see App. A to Pet. for Cert, in No. 04-105, pp. 6a-7a, the judge concluded that he could not follow the particular provisions of the Sentencing Guidelines “which involve drug quantity and role enhancement,” id., at 11a. Expressly refusing to make “any blanket decision about the federal guidelines,” he followed the provisions of the Guidelines that did not implicate the Sixth Amendment by imposing a sentence on respondent “based solely upon the jury verdict in this case.” Ibid.

Following the denial of its motion to correct the sentence in Fanfan’s case, the Government filed a notice of appeal in the Court of Appeals for the First Circuit, and a petition in this Court for a writ of certiorari before judgment. Because of the importance of the questions presented, we granted that petition, 542 U. S. 956 (2004), as well as a similar petition filed by the Government in Booker’s case, ibid. In both petitions, the Government asks us to determine whether our Apprendi line of cases applies to the Sentencing Guidelines, and if so, what portions of the Guidelines remain in effect.1

In this opinion, we explain why we agree with the lower courts’ answer to the first question. In a separate opinion for the Court, Justice Breyer explains the Court’s answer to the second question.

*230II

It has been settled throughout our history that the Constitution protects every criminal defendant “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, 397 U. S. 358, 364 (1970). It is equally clear that the “Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.” United States v. Gaudin, 515 U. S. 506, 511 (1995). These basic precepts, firmly rooted in the common law, have provided the basis for recent decisions interpreting modern criminal statutes and sentencing procedures.

In Jones v. United States, 526 U. S. 227, 230 (1999), we considered the federal carjacking statute, which provides three different maximum sentences depending on the extent of harm to the victim: 15 years in jail if there was no serious injury to a victim, 25 years if there was “serious bodily injury,” and life in prison if death resulted. 18 U. S. C. § 2119 (1988 ed., Supp. V). In spite of the fact that the statute “at first glance has a look to it suggesting [that the provisions relating to the extent of harm to the victim] are only sentencing provisions,” 526 U. S., at 232, we concluded that the harm to the victim was an element of the crime. That conclusion was supported by the statutory text and structure, and was influenced by our desire to avoid the constitutional issues implicated by a contrary holding, which would have reduced the jury’s role “to the relative importance of low-level gate-keeping.” Id., at 244. Foreshadowing the result we reach today, we noted that our holding was consistent with a “rule requiring jury determination of facts that raise a sentencing ceiling” in state and federal sentencing guidelines systems. Id., at 251-252, n. 11.

In Apprendi v. New Jersey, 530 U. S. 466 (2000), the defendant pleaded guilty to second-degree possession of a firearm for an unlawful purpose, which carried a prison term *231of 5-to-10 years. Thereafter, the trial court found that his conduct had violated New Jersey’s “hate crime” law because it was racially motivated, and imposed a 12-year sentence. This Court set aside the enhanced sentence. We held: “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.” Id., at 490.

The fact that New Jersey labeled the hate crime a “sentence enhancement” rather than a separate criminal act was irrelevant for constitutional purposes. Id., at 478. As a matter of simple justice, it seemed obvious that the procedural safeguards designed to protect Apprendi from punishment for the possession of a firearm should apply equally to his violation of the hate crime statute. Merely using the label “sentence enhancement” to describe the latter did not provide a principled basis for treating the two crimes differently. Id., at 476.

In Ring v. Arizona, 536 U. S. 584 (2002), we reaffirmed our conclusion that the characterization of critical facts is constitutionally irrelevant. There, we held that it was impermissible for “the trial judge, sitting alone” to determine the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty. Id., at 588-589. “If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.” Id., at 602. Our opinion made it clear that ultimately, while the procedural error in Ring’s case might have been harmless because the necessary finding was implicit in the jury’s guilty verdict, id., at 609, n. 7, “the characterization of a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is not determinative of the question ‘who decides,’ judge or jury,” id., at 605.

In Blakely v. Washington, 542 U. S. 296 (2004), we dealt with a determinate sentencing scheme similar to the Federal *232Sentencing Guidelines. There the defendant pleaded guilty to kidnaping, a class B felony punishable by a term of not more than 10 years. Other provisions of Washington law, comparable to the Federal Sentencing Guidelines, mandated a “standard” sentence of 49-to-53 months, unless the judge found aggravating facts justifying an exceptional sentence. Although the prosecutor recommended a sentence in the standard range, the judge found that the defendant had acted with “ ‘deliberate cruelty’ ” and sentenced him to 90 months. Id., at 300.

For reasons explained in Jones, Apprendi, and Ring, the requirements of the Sixth Amendment were clear. The application of Washington’s sentencing scheme violated the defendant’s right to have the jury find the existence of “ ‘any particular fact’ ” that the law makes essential to his punishment. 542 U. S., at 301. That right is implicated whenever a judge seeks to impose a sentence that is not solely based on “facts reflected in the jury verdict or admitted by the defendant.” Id., at 303 (emphasis deleted). We rejected the State’s argument that the jury verdict was sufficient to authorize a sentence within the general 10-year sentence for class B felonies, noting that under Washington law, the judge was required to find additional facts in order to impose the greater 90-month sentence. Our precedents, we explained, make clear “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Ibid, (emphasis in original). The determination that the defendant acted with deliberate cruelty, like the determination in Apprendi that the defendant acted with racial malice, increased the sentence that the defendant could have otherwise received. Since this fact was found by a judge using a preponderance of the evidence standard, the sentence violated Blakely’s Sixth Amendment rights.

*233As the dissenting opinions in Blakely recognized, there is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case. See, e. g,, 542 U. S., at 325 (opinion of O’Connor, J.) (“The structure of the Federal Guidelines likewise does not, as the Government halfheartedly suggests, provide any grounds for distinction. ... If anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack”). This conclusion rests on the premise, common to both systems, that the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges.

If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U. S., at 481; Williams v. New York, 337 U. S. 241, 246 (1949). Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the Court’s answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.2 While subsection *234(a) of §3553 of the sentencing statute3 lists the Sentencing Guidelines as one factor to be considered in imposing a sentence, subsection (b) directs that the court “símil impose a sentence of the kind, and within the range” established by the Guidelines, subject to departures in specific, limited cases. (Emphasis added.) Because they are binding on judges, we have consistently held that the Guidelines have the force and effect of laws. See, e. g., Mistretta v. United States, 488 U. S. 361, 391 (1989); Stinson v. United States, 508 U. S. 36, 42 (1993).

The availability of a departure in specified circumstances does not avoid the constitutional issue, just as it did not in Blakely itself. The Guidelines permit departures from the prescribed sentencing range in cases in which the judge “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U. S. C. § 3553(b)(1) (2000 ed., Supp. IV). At first glance, one might believe that the ability of a district judge to depart from the Guidelines means that she is bound only by the statutory maximum. Were this the case, there would be no Apprendi problem. Importantly, however, departures are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is bound to impose a sentence within the Guidelines range. It was for this reason that we rejected a similar argument in Blakely, holding that although the Washington statute allowed the judge to impose a sentence outside the sentencing range for “ ‘substantial and compelling reasons,’” that exception was not available for Blakely himself. 542 U. S., at 299. The sentencing judge *235would have been reversed had he invoked the departure section to justify the sentence.

Booker’s case illustrates the mandatory nature of the Guidelines. The jury convicted him of possessing at least 50 grams of crack in violation of 21 U. S. C. § 841(b)(1)(A)(iii) based on evidence that he had 92.5 grams of crack in his duffel bag. Under these facts, the Guidelines specified an offense level of 32, which, given the defendant’s criminal history category, authorized a sentence of 210-to-262 months. See USSG §2D1.1(c)(4). Booker’s is a run-of-the-mill drug case, and does not present any factors that were inadequately considered by the Commission. The sentencing judge would therefore have been reversed had he not imposed a sentence within the level 32 Guidelines range.

Booker’s actual sentence, however, was 360 months, almost 10 years longer than the Guidelines range supported by the jury verdict alone. To reach this sentence, the judge found facts beyond those found by the jury: namely, that Booker possessed 566 grams of crack in addition to the 92.5 grams in his duffel bag. The jury never heard any evidence of the additional drug quantity, and the judge found it true by a preponderance of the evidence. Thus, just as in Blakely, “the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” 542 U. S., at 305. There is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases.

In his dissent, post, at 327-329, Justice Breyer argues on historical grounds that the Guidelines scheme is constitutional across the board. He points to traditional judicial authority to increase sentences to take account of any unusual blameworthiness in the manner employed in committing a crime, an authority that the Guidelines require to be exercised consistently throughout the system. This tradition, *236however, does not provide a sound guide to enforcement of the Sixth Amendment’s guarantee of a jury trial in today’s world.

It is quite true that once determinate sentencing had fallen from favor, American judges commonly determined facts justifying a choice of a heavier sentence on account of the manner in which particular defendants acted. Apprendi, 530 U. S., at 481. In 1986, however, our own cases first recognized a new trend in the legislative regulation of sentencing when we considered the significance of facts selected by legislatures that not only authorized, or even mandated, heavier sentences than would otherwise have been imposed, but increased the range of sentences possible for the underlying crime. See McMillan v. Pennsylvania, 477 U. S. 79, 87-88 (1986). Provisions for such enhancements of the permissible sentencing range reflected growing and wholly justified legislative concern about the proliferation and variety of drug crimes and their frequent identification with firearms offenses.

The effect of the increasing emphasis on facts that enhanced sentencing ranges, however, was to increase the judge’s power and diminish that of the jury. It became the judge, not the jury, who determined the upper limits of sentencing, and the facts determined were not required to be raised before trial or proved by more than a preponderance.

As the enhancements became greater, the jury’s finding of the underlying crime became less significant. And the enhancements became very serious indeed. See, e. g., Jones, 526 U. S., at 230-231 (judge’s finding increased the maximum sentence from 15 to 25 years); respondent Booker’s case (from 262 months to a life sentence); respondent Fanfan’s case (from 78 to 235 months); United States v. Rodriguez, 73 F. 3d 161, 162-163 (CA7 1996) (Posner, C. J., dissenting from denial of rehearing en banc) (from approximately 54 months to a life sentence); United States v. Hammoud, 381 F. 3d 316, *237361-362 (CA4 2004) (en banc) (Motz, J., dissenting) (actual sentence increased from 57 months to 165 years).

As it thus became clear that sentencing was no longer taking place in the tradition that Justice Breyer invokes, the Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances. The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.

HH l-H

The Government advances three arguments in support of its submission that we should not apply our reasoning in Blakely to the Federal Sentencing Guidelines. It contends that Blakely is distinguishable because the Guidelines were promulgated by a Commission rather than the Legislature; that principles of. stare decisis require us to follow four earlier decisions that are arguably inconsistent with Blakely; and that the application of Blakely to the Guidelines would conflict with separation-of-powers principles reflected in Mistretta v. United States, 488 U. S. 361 (1989). These arguments are unpersuasive.

Commission v. Legislature:

In our judgment the fact that the Guidelines were promulgated by the Sentencing Commission, rather than Congress, lacks constitutional significance. In order to impose the defendants’ sentences under the Guidelines, the judges in these *238cases were required to find an additional fact, such as drug quantity, just as the judge found the additional fact of serious bodily injury to the victim in Jones. As far as the defendants are concerned, they face significantly higher sentences — in Booker’s case almost 10 years higher — because a judge found true by a preponderance of the evidence a fact that was never submitted to the jury. Regardless of whether Congress or a Sentencing Commission concluded that a particular fact must be proved in order to sentence a defendant within a particular range, “[t]he Framers would not have thought it too much to demand that, before depriving a man of [ten] more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neigh-bours,’ rather than a lone employee of the State.” Blakely, 542 U. S., at 313-314 (citation omitted).

The Government correctly notes that in Apprendi we referred to “‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum....’” Brief for United States 15 (quoting Apprendi, 530 U. S., at 490 (emphasis in Brief for United States)). The simple answer, of course, is that we were only considering a statute in that case; we expressly declined to consider the Guidelines. See Apprendi, 530 U. S., at 497, n. 21. It was therefore appropriate to state the rule in that case in terms of a “statutory maximum” rather than answering a question not properly before us.

More important than the language used in our holding in Apprendi are the principles we sought to vindicate. Those principles are unquestionably applicable to the Guidelines. They are not the product of recent innovations in our jurisprudence, but rather have their genesis in the ideals our constitutional tradition assimilated from the common law. See Jones, 526 U. S., at 244-248. The Framers of the Constitution understood the threat of “judicial despotism” that could arise from “arbitrary punishments upon arbitrary convic*239tions” without the benefit of a jury in criminal cases. The Federalist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton). The Founders presumably carried this concern from England, in which the right to a jury trial had been enshrined since the Magna Carta. As we noted in Apprendi:

“[T]he historical foundation for our recognition of these principles extends down centuries into the common law. ‘[T]o guard against a spirit of oppression and tyranny on the part of rulers,’ and ‘as the great bulwark of [our] civil and political liberties,’ trial by jury has been understood to require that ‘the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours 530 U. S., at 477 (citations omitted).

Regardless of whether the legal basis of the accusation is in a statute or in guidelines promulgated by an independent commission, the principles behind the jury trial right are equally applicable.

Stare Decisis:

The Government next argues that four recent cases preclude our application of Blakely to the Sentencing Guidelines. We disagree. In United States v. Dunnigan, 507 U. S. 87 (1993), we held that the provisions of the Guidelines that require a sentence enhancement if the judge determines that the defendant committed perjury do not violate the privilege of the accused to testify on her own behalf. There was no contention that the enhancement was invalid because it resulted in a more severe sentence than the jury verdict had authorized. Accordingly, we found this case indistinguishable from United States v. Grayson, 438 U. S. 41 (1978), a pre-Guidelines case in which we upheld a similar sentence increase. Applying Blakely to the Guidelines would invali*240date' a sentence that relied on such an enhancement if the resulting sentence was outside the range authorized by the jury verdict. Nevertheless, there are many situations in which the district judge might find that the enhancement is warranted, yet still sentence the defendant within the range authorized by the jury. See post, at 276-279 (Stevens, J., dissenting in part). Thus, while the reach of Dunnigan may be limited, we need not overrule it.

In Witte v. United States, 515 U. S. 389 (1995), we held that the Double Jeopardy Clause did not bar a prosecution for conduct that had provided the basis for an enhancement of the defendant's sentence in a prior case. “We concluded that ‘consideration of information about the defendant’s character and conduct at sentencing does not result in “punishment” for any offense other than the one of which the defendant was convicted.’ Rather, the defendant is ‘punished only for the fact that the present offense was carried out in a manner that warrants increased punishment....’” United States v. Watts, 519 U. S. 148, 165 (1997) (per curiam) (quoting Witte, 515 U. S., at 401, 403; emphasis deleted). In Watts, relying on Witte, we held that the Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines. In neither Witte nor Watts was there any contention that the sentencing enhancement had exceeded the sentence authorized by the jury verdict in violation of the Sixth Amendment. The issue we confront today simply was not presented.4

Finally, in Edwards v. United States, 523 U. S. 511 (1998), the Court held that a jury’s general verdict finding the defendants guilty of a conspiracy involving either cocaine or crack supported a sentence based on their involvement with *241both drugs. Even though the indictment had charged that their conspiracy embraced both, they argued on appeal that the verdict limited the judge’s sentencing authority. We recognized that the defendants’ statutory and constitutional claims might have had merit if it had been possible to argue that their crack-related activities were not part of the same conspiracy as their cocaine activities. But they failed to make that argument, and, based on our review of the record which showed “a series of interrelated drug transactions involving both cocaine and crack,” we concluded that no such claim could succeed.5 Id., at 515.

None of our prior cases is inconsistent with today’s decision. Stare decisis does not compel us to limit Blakely's holding.

Separation of Powers:

Finally, the Government and, to a lesser extent, Justice Breyer’s dissent, argue that any holding that would require Guidelines sentencing factors to be proved to a jury beyond a reasonable doubt would effectively transform them into a code defining elements of criminal offenses. The result, according to the Government, would be an unconstitutional grant to the Sentencing Commission of the inherently legislative power to define criminal elements.

There is no merit to this argument because the Commission’s authority to identify the facts relevant to sentencing *242decisions and to determine the impact of such facts on federal sentences is precisely the same whether one labels such facts “sentencing factors” or “elements” of crimes. Our decision in Mistretta, 488 U. S., at 371, upholding the validity of the delegation of that authority, is unaffected by the characterization of such facts, or by the procedures used to find such facts in particular sentencing proceedings. Indeed, we rejected a similar argument in Jones:

“Contrary to the dissent’s suggestion, the constitutional proposition that drives our concern in no way ‘call[s] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature.’ The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish to characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability. The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.” 526 U. S., at 243, n. 6 (citation omitted).

Our holding today does not call into question any aspect of our decision in Mistretta. That decision was premised on an understanding that the Commission, rather than performing adjudicatory functions, instead makes political and substantive decisions. 488 U. S., at 393. We noted that the promulgation of the Guidelines was much like other activities in the Judicial Branch, such as the creation of the Federal Rules of Evidence, all of which are nonadjudicatory activities. Id., at 387. We also noted that “Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and *243that are appropriate to the central mission of the Judiciary.” Id., at 388. While we recognized that the Guidelines were more substantive than the Rules of Evidence or other nonad-judicatory functions delegated to the Judicial Branch, we nonetheless concluded that such a delegation did not exceed Congress’ powers.

Further, a recognition that the Commission did not exercise judicial authority, but was more properly thought of as exercising some sort of legislative power, ibid., was essential to our holding. If the Commission in fact performed adjudicatory functions, it would have violated Article III because some of the members were not Article III judges. As we explained:

“[T]he ‘practical consequences’ of locating the Commission within the Judicial Branch pose no threat of undermining the integrity of the Judicial Branch or of expanding the powers of the Judiciary beyond constitutional bounds by uniting within the Branch the political or quasi-legislative power of the Commission with the judicial power of the courts. [The Commission’s] powers are not united with the powers of the Judiciary in a way that has meaning for separation-of-powers analysis. Whatever constitutional problems might arise if the powers of the Commission were vested in a court, the Commission is not a court, does not exercise judicial power, and is not controlled by or accountable to members of the Judicial Branch.” Id., at 393.

We have thus always recognized the fact that the Commission is an independent agency that exercises policymaking authority delegated to it by Congress. Nothing in our holding today is inconsistent with our decision in Mistretta.

IV

All of the foregoing supports our conclusion that our holding in Blakely applies to the Sentencing Guidelines. We *244recognize, as we did in Jones, Apprendi, and Blakely, that in some cases jury factfinding may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial — a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment— has always outweighed the interest in concluding trials swiftly. Blakely, 542 U. S., at 313. As Blackstone put it:

“[Hjowever convenient these [new methods of trial] may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concerns.” 4 Commentaries on the Laws of England 343-344 (1769).

Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.

Justice Breyer

delivered the opinion of the Court in part.*

The first question that the Government has presented in these cases is the following:

*245“Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.” Pet. for Cert, in No. 04-104, p. (I).

The Court, in an opinion by Justice Stevens, answers this question in the affirmative. Applying its decisions in Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely v. Washington, 542 U. S. 296 (2004), to the Federal Sentencing Guidelines, the Court holds that, in the circumstances mentioned, the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing. See ante, at 226-227, 244 (Stevens, J., opinion of the Court).

We here turn to the second question presented, a question that concerns the remedy. We must decide whether or to what extent, “as a matter of severability analysis,” the Guidelines “as a whole” are “inapplicable . . . such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.” Pet. for Cert. in. No. 04-104, p. (I).

We answer the question of remedy by finding the provision of the federal sentencing statute that makes .the Guidelines mandatory, 18 U. S. C. § 3553(b)(1) (Supp. IV), incompatible with today’s constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, § 3742(e) (2000 ed. and Supp. IV), which depends upon the Guidelines’ mandatory nature. So modified, the federal sentencing statute, see Sentencing Reform Act of 1984 (Sentencing Act), as amended, 18 U. S. C. § 3551 et seq., 28 U. S. C. § 991 et seq., makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U. S. C. § 3553(a)(4) (Supp. IV), but it permits the court to tailor the *246sentence in light of other statutory concerns as well, see § 3553(a).

I

We answer the remedial question by looking to legislative intent. See, e. g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999); Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Regan v. Time, Inc., 468 U. S. 641, 653 (1984) (plurality opinion). We seek to determine what “Congress would have intended” in light of the Court’s constitutional holding. Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767 (1996) (plurality opinion) (“Would Congress still have passed” the valid sections “had it known” about the constitutional invalidity of the other portions of the statute? (internal quotation marks omitted)). In this instance, we must determine which of the two following remedial approaches is the more compatible with the Legislature’s intent as embodied in the 1984 Sentencing Act.

One approach, that of Justice Stevens’ dissent, would retain the Sentencing Act (and the Guidelines) as written, but would engraft onto the existing system today’s Sixth Amendment “jury trial” requirement. The addition would change the Guidelines by preventing the sentencing court from increasing a sentence on the basis of a fact that the jury did not find (or that the offender did not admit).

The other approach, which we now adopt, would (through severance and excision of two provisions) make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender’s real conduct — a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.

Both approaches would significantly alter the system that Congress designed. But today’s constitutional holding means that it is no longer possible to maintain the judicial factfinding that Congress thought would underpin the man*247datory Guidelines system that it sought to create and that Congress wrote into the Act in 18 U. S. C. §§ 3553(a) and 3661 (2000 ed. and Supp. IV). Hence we must decide whether we would deviate less radically from Congress’ intended system (1) by superimposing the constitutional requirement announced today or (2) through elimination of some provisions of the statute.

To say this is not to create a new kind of severability analysis. Post, at 291 (Stevens, J., dissenting in part). Rather, it is to recognize that sometimes severability questions (questions as to how, or whether, Congress would intend a statute to apply) can arise when a legislatively unforeseen constitutional problem requires modification of a statutory provision as applied in a significant number of instances. Compare, e. g., Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in result) (explaining that when a statute is defective because of its failure to extend to some group a constitutionally required benefit, the court may “either declare it a nullity” or “extend” the benefit “to include those who are aggrieved by exclusion”); Heckler v. Mathews, 465 U. S. 728, 739, n. 5 (1984) (“Although . . . ordinarily ‘extension, rather than nullification, is the proper course,’ the court should not, of course, ‘use its remedial powers to circumvent the intent of the legislature ... ’ ” (quoting Califano v. Westcott, 443 U. S. 76, 89 (1979), and id., at 94 (Powell, J., concurring in part and dissenting in part))); Sloan v. Lemon, 413 U. S. 825, 834 (1973) (striking down entire Pennsylvania tuition reimbursement statute because to eliminate only unconstitutional applications “would be to create a program quite different from the one the legislature actually adopted”). See also post, at 320, 323 (Thomas, J., dissenting in part) (“[S]everability questions” can “arise from unconstitutional applications” of statutes, and such a question “is squarely presented” here); Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1950, n. 26 (1997).

*248In today’s context — a highly complex statute, interrelated provisions, and a constitutional requirement that creates fundamental change — we cannot assume that Congress, if faced with the statute’s invalidity in key applications, would have preferred to apply the statute in as many other instances as possible. Neither can we determine likely congressional intent mechanically. We cannot simply approach the problem grammatically, say, by looking to see whether the constitutional requirement and the words of the Act are linguistically compatible.

Nor do simple numbers provide an answer. It is, of course, true that the numbers show that the constitutional jury trial requirement would lead to additional decision-making by juries in only a minority of cases. See post, at 277 (Stevens, J., dissenting in part). Prosecutors and defense attorneys would still resolve the lion’s share of criminal matters through plea bargaining, and plea bargaining takes place without a jury. See ibid. Many of the rest involve only simple issues calling for no upward Guidelines adjustment. See post, at 275. And in at least some of the remainder, a judge may find adequate room to adjust a sentence within the single Guidelines range to which the jury verdict points, or within the overlap between that range and the next highest. See post, at 278-279.

But the constitutional jury trial requirement would nonetheless affect every case. It would affect decisions about whether to go to trial. It would affect the content of plea negotiations. It would alter the judge’s role in sentencing. Thus we must determine likely intent not by counting proceedings, but by evaluating the consequences of the Court’s constitutional requirement in light of the Act’s language, its history, and its basic purposes.

. While reasonable minds can, and do, differ about the outcome, we conclude that the constitutional jury trial requirement is not compatible with the Act as written and that some severance and excision are necessary. In Part II, infra, we *249explain the incompatibility. In Part III, infra, we describe the necessary excision. In Part IV, infra, we explain why we have rejected other possibilities. In essence, in what follows, we explain both (1) why Congress would likely have preferred the total invalidation of the Act to an Act with the Court’s Sixth Amendment requirement engrafted onto it, and (2) why Congress would likely have preferred the excision of some of the Act, namely the Act’s mandatory language, to the invalidation of the entire Act. That is to say, in light of today’s holding, we compare maintaining the Act as written with jury factfinding added (the dissenters’ proposed remedy) to the total invalidation of the statute, and . conclude that Congress would have preferred the latter. We then compare our own remedy to the total invalidation of the statute, and conclude that Congress would have preferred our remedy.

II

Several considerations convince us that, were the Court’s constitutional requirement added onto the Sentencing Act as currently written, the requirement would so transform the scheme that Congress created that Congress likely would not have intended the Act as so modified to stand. First, the statute’s text states that “[t]he court” when sentencing will consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1) (2000 ed. and Supp. IV). In context, the words “the court” mean “the judge without the jury,” not “the judge working together with the jury.” A further statutory provision, by removing typical “jury trial” evidentiary limitations, makes this clear. See §3661 (ruling out any “limitation ... on the information concerning the [offender’s] background, character, and conduct” that the “court . . . may receive”). The Act’s history confirms it. See, e.g., S. Rep. No. 98-225, p. 51 (1983) (the Guidelines system “will guide the judge in making” sentencing decisions (emphasis added)); id., at 52 (before sentencing, “the judge” *250must consider “the nature and circumstances of the offense”); id., at 53 (“the judge” must conduct “a comprehensive examination of the characteristics of the particular offense and the particular offender”).

This provision is tied to the provision of the Act that makes the Guidelines mandatory, see § 8553(b)(1) (2000 ed., Supp. IV). They are part and parcel of a single, unified whole — a whole that Congress intended to apply to all federal sentencing.

This provision makes it difficult to justify JUSTICE Stevens’ approach, for that approach requires reading the words “the court” as if they meant “the judge working together with the jury.” Unlike Justice Stevens, we do not _ believe we can interpret the statute’s language to save its constitutionality, see post, at 286 (opinion dissenting in part), because we believe that any such reinterpretation, even if limited to instances in which a Sixth Amendment problem arises, would be “plainly contrary to the intent of Congress.” United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994). Without some such reinterpretation, however, this provision of the statute, along with those inextricably connected to it, are constitutionally invalid, and fall outside of Congress’ power to enact. Nor can we agree with Justice Stevens that a newly passed “identical statute” would be valid, post, at 283 (opinion dissenting in part). Such a new, identically worded statute would be valid only if (unlike the present statute) we could interpret that new statute (without disregarding Congress’ basic intent) as being consistent with. the Court’s jury factfinding requirement. Compare post, at 283-284 (Stevens, J., dissenting in part). If so, the statute would stand.

Second, Congress’ basic statutory goal — a system that diminishes sentencing disparity — depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction. That determination is particularly important in the federal *251system where crimes defined as, for example, “obstruct[ing], delay[ing], or affect[ing] commerce or the movement of any article or commodity in commerce, by . . . extortion,” 18 U. S. C. § 1951(a), or, say, using the mail “for the purpose of executing” a “scheme or artifice to defraud,” § 1341 (2000 ed., Supp. II), can encompass a vast range of very different kinds of underlying conduct. But it is also important even in respect to ordinary crimes, such as robbery, where an act that meets the statutory definition can be committed in a host of different ways. Judges have long looked to real conduct when sentencing. Federal judges have long relied upon a presentence report, prepared by a probation officer, for information (often unavailable until after the trial) relevant to the manner in which the convicted offender committed the crime of conviction.

Congress expected this system to continue. That is why it specifically inserted into the Act the provision cited above, which (recodifying prior law) says that

“[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U. S. C. § 3661.

This Court’s earlier opinions assumed that this system would continue. Thazt is why the Court, for example, held in United States v. Watts, 519 U. S. 148 (1997) (per curiam), that a sentencing judge could rely for sentencing purposes upon a fact that a jury had found unproved (beyond a reasonable doubt). See id., at 157; see also id., at 152-153 (quoting United States Sentencing Commission, Guidelines Manual § 1B1.3, comment., backg’d (Nov. 1995) (USSG), which “describes in sweeping language the conduct that a sentencing court may consider in determining the applicable guideline range,” and which provides that “‘[cjonduct that is not formally charged or is not an element of the offense of con*252viction may enter into the determination of the applicable guideline sentencing range’ ”).

The Sentencing Guidelines also assume that Congress intended this system to continue. See USSG §1B1.3, comment., backg’d (Nov. 2003). That is why, among other things, they permit a judge to reject a plea-bargained sentence if he determines, after reviewing the presentence report, that the sentence does not adequately reflect the seriousness of the defendant’s actual conduct. See §6B1.2(a).

To engraft the Court’s constitutional requirement onto the sentencing statutes, however, would destroy the system. It would prevent a judge from relying upon a presentence report for factual information, relevant to sentencing, uncovered after the trial. In doing so, it would, even compared to pre-Guidelines sentencing, weaken the tie between a sentence and an offender’s real conduct. It would thereby undermine the sentencing statute’s basic aim of ensuring similar sentences for those who have committed similar crimes in similar ways.

Several examples help illustrate the point. Imagine Smith and Jones, each of whom violates the Hobbs Act in very different ways. See 18 U. S. C. § 1951(a) (forbidding “obstructing], delaying], or affecting] commerce or the movement of any article or commodity in commerce, by . . . extortion”). Smith threatens to injure a co-worker unless the co-worker advances him a few dollars from the interstate company’s till; Jones, after similarly threatening the coworker, causes far more harm by seeking far more money, by making certain that the co-worker’s family is aware of the threat, by arranging for deliveries of dead animals to the co-worker’s home to show he is serious, and so forth. The offenders’ behavior is very different; the known harmful consequences of their actions are different; their punishments both before, and after, the Guidelines would have been different. But, under the dissenters’ approach, unless prosecutors decide to charge more than the elements of the crime, *253the judge would have to impose similar punishments. See, e. g., post, at 303-304 (Scalia, J., dissenting in part).

Now imagine two former felons, Johnson and Jackson, each of whom engages in identical criminal behavior: threatening a bank teller with a gun, securing $50,000, and injuring an innocent bystander while fleeing the bank. Suppose prosecutors charge Johnson with one crime (say, illegal gun possession, see 18 U. S. C. § 922(g)) and Jackson with another (say, bank robbery, see § 2113(a)). Before the Guidelines, a single judge faced with such similar real conduct would have been able (within statutory limits) to impose similar sentences upon the two similar offenders despite the different charges brought against them. The Guidelines themselves would ordinarily have required judges to , sentence the two offenders similarly. But under the dissenters’ system, in these circumstances the offenders likely would receive different punishments. See, e. g., post, at 303-304 (Scalia, J., dissenting in part).

Consider, too, a complex mail fraud conspiracy where a prosecutor may well be uncertain of the amount of harm and of the role each indicted individual played until after conviction — when the offenders may turn over financial records, when it becomes easier to determine who were the leaders and who the followers, when victim interviews are seen to be worth the time. In such a case the relation between the sentence and what actually occurred is likely to be considerably more distant under a system with a jury trial requirement patched onto it than it was even prior to the Senténcing Act, when judges routinely used information obtained after the verdict to decide upon a proper sentence.

This point is critically important. Congress’ basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity. See 28 U. S. C. § 991(b)(1)(B); see also § 994(f). That uniformity does not consist simply of similar sentences for those convicted of violations of the same statute — a uniformity consistent with the *254dissenters’ remedial approach. It consists, more importantly, of similar relationships between sentences and real conduct, relationships that Congress’ sentencing statutes helped to advance and that Justice Stevens’ approach would undermine. Compare post, at 288 (opinion dissenting in part) (conceding that the Sixth Amendment requirement would “undoubtedly affect 'real conduct’ sentencing in certain cases,” but minimizing the significance of that circumstance). In significant part, it is the weakening of this real-conduct/uniformity-in-sentencing relationship, and not any “[i]nexplicabl[e]” concerns for the “manner of achieving uniform sentences,” post, at 304 (Scalia, J., dissenting in part), that leads us to conclude that Congress would have preferred no mandatory system to the system the dissenters envisage.

Third, the sentencing statutes, read to include the Court’s Sixth Amendment requirement, would create a system far more complex than Congress could have intended. How would courts and counsel work with an indictment and a jury trial that involved not just whether a defendant robbed a bank but also how? Would the indictment have to allege, in addition to the elements of robbery, whether the defendant possessed a firearm, whether he brandished or discharged it, whether he threatened death, whether he caused bodily injury, whether any such injury was ordinary, serious, permanent or life threatening, whether he abducted or physically restrained anyone, whether any victim was unusually vulnerable, how much money was taken, and whether he was an organizer, leader, manager, or supervisor in a robbery gang? See USSG §§2B3.1, 3B1.1. If so, how could a defendant mount a defense against some or all such specific claims should he also try simultaneously to maintain that the Government’s evidence failed to place him at the scene of the crime? Would the indictment in a mail fraud case have to allege the number of victims, their vulnerability, and the amount taken from each? How could a judge expect a jury to work with the Guidelines’ definitions of, say, “relevant con*255duct,” which includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and [in the case of a conspiracy] all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity”? §§ lB1.3(a)(l)(A)-(B). How would a jury measure “loss” in a securities fraud case — a matter so complex as to lead the Commission to instruct judges to make “only . . . a reasonable estimate”? §2B1.1, comment., n. 3(C). How would the court take account, for punishment purposes, of a defendant’s contemptuous behavior at trial — a matter that the Government could not have charged in the indictment? §3C1.1.

Fourth, plea bargaining would not significantly diminish the consequences of the Court’s constitutional holding for the operation of the Guidelines. Compare post, at 273-274 (Stevens, J., dissenting in part). Rather, plea bargaining would make matters worse. Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing, i. e., to increase the likelihood that offenders who engage in similar real conduct would receive similar sentences. The statutes reasonably assume that their efforts to move the trial-based sentencing process in the direction of greater sentencing uniformity would have a similar positive impact upon plea-bargained sentences, for plea bargaining takes place in the shadow of (i e., with an eye toward the hypothetical result of) a potential trial.

That, too, is why Congress, understánding the realities of plea bargaining, authorized the Commission to promulgate policy statements that would assist sentencing judges in determining whether to reject a plea agreement after reading about the defendant’s real conduct in a presentence report (and giving the offender an opportunity to challenge the re-. port). See 28 U. S. C. § 994(a)(2)(E); USSG §6B1.2(a), p. s. This system has not worked perfectly; judges have often simply accepted an agreed-upon account of the conduct at *256issue. But compared to pre-existing law, the statutes try to move the system in the right direction, i. e., toward greater sentencing uniformity.

The Court’s constitutional jury trial requirement, however, if patched onto the present Sentencing Act, would move the system backwards in respect both to tried and to plea-bargained cases. In respect to tried cases, it would effectively deprive the judge of the ability to use post-verdict-aequired real-conduct information; it would prohibit the judge from basing a sentence upon any conduct other than the conduct the prosecutor chose to charge; and it would put a defendant to a set of difficult strategic choices as to which prosecutorial claims he would contest. The sentence that would emerge in a case tried under such a system would likely reflect real conduct less completely, less accurately, and less often than did a pre-Guidelines, as well as a Guidelines, trial.

Because plea bargaining inevitably reflects estimates of what would happen at trial, plea bargaining too under such a system would move in the wrong direction. That is to say, in a sentencing system modified by the Court’s constitutional requirement, plea bargaining would likely lead to sentences that gave greater weight not to real conduct, but rather to the skill of counsel, the policies of the prosecutor, the caseload, and other factors that vary from place to place, defendant to defendant, and crime to crime. Compared to pre-Guidelines plea bargaining, plea bargaining of this kind would necessarily move federal sentencing in the direction of diminished, not increased, uniformity in sentencing. Compare supra, at 250-252, with post, at 288 (Stevens, J., dissenting in part). It would tend to defeat, not to further, Congress’ basic statutory goal.

Such a system would have particularly troubling consequences with respect to prosecutorial power. Until now, sentencing factors have come before the judge in the presen-tence report. But in a sentencing system with the Court’s *257constitutional requirement engrafted onto it, any factor that a prosecutor chose not to charge at the plea negotiation would be placed beyond the reach of the judge entirely. Prosecutors would thus exercise a power the Sentencing Act vested in judges: the power to decide, based on relevant information about the offense and the offender, which defendants merit heavier punishment.

In respondent Booker’s case, for example, the jury heard evidence that the crime had involved 92.5 grams of crack cocaine, and convicted Booker of possessing more than 50 grams. But the judge, at sentencing, found that the crime had involved an additional 566 grams, for a total of 658.5 grams. A system that would require the jury, not the judge, to make the additional “566 grams” finding is a system in which the prosecutor, not the judge, would control the sentence. That is because it is the prosecutor who would have to decide what drug amount to charge. He could choose to charge 658.5 grams, or 92.5, or less. It is the prosecutor who, through such a charging decision, would control the sentencing range. And it is different prosecutors who, in different cases — say, in two cases involving 566 grams — would potentially insist upon different punishments for similar defendants who engaged in similar criminal conduct involving similar amounts of unlawful drugs — say, by charging one of them with the full 566 grams, and the other with 10. As long as different prosecutors react differently, a system with a patched-on jury factfinding requirement would mean different sentences for otherwise similar conduct, whether in the context of trials or that of plea bargaining.

Fifth, Congress would not have enacted sentencing statutes that make it more difficult to adjust sentences upward than to adjust them downward. As several United States Senators have written in an amicus brief, “the Congress that enacted the 1984 Act did not conceive of — much less establish — a sentencing guidelines system in which sentencing judges were free to consider facts or circumstances not found *258by a jury or admitted in a plea agreement for the purpose of adjusting a base-offense level down, but not up, within the applicable guidelines range. Such a one-way lever would be grossly at odds with Congress’s intent.” Brief for Sen. Orrin G. Hatch et al. as Amici Curiae 22. Yet that is the system that the dissenters’ remedy would create. Compare post, at 291 (Stevens, J., dissenting in part) (conceding asymmetry but stating belief that this “is unlikely to have more than a minimal effect”).

For all these reasons, Congress, had it been faced with the constitutional jury trial requirement, likely would not have passed the same Sentencing Act. It likely would have found the requirement incompatible with the Act as written. Hence the Act cannot remain valid in its entirety. Severance and excision are necessary.

III

We now turn to the question of which portions of the sentencing statute we must sever and excise as inconsistent with the Court’s constitutional requirement. Although, as we have explained, see Part II, supra, we believe that Congress would have preferred the total invalidation of the statute to the dissenters’ remedial approach, we nevertheless do not believe that the entire statute must be invalidated. Compare post, at 292 (Stevens, J., dissenting in part). Most of the statute is perfectly valid. See, e. g., 18 U. S. C. § 3551 (2000 ed. and Supp. IV) (describing authorized sentences as probation, fine, or imprisonment); §3552 (presentence reports); §3554 (forfeiture); §3555 (notification to the victims); §3583 (supervised release). And we must “refrain from invalidating more of the statute than is necessary.” Regan, 468 U. S., at 652 (plurality opinion). Indeed, we must retain those portions of the Act that are (1) constitutionally valid, id., at 652-653, (2) capable of “functioning independently,” Alaska Airlines, 480 U. S., at 684, *259and (3) consistent with Congress’ basic objectives in enacting the statute, Regan, supra, at 653.

Application of these criteria indicates that we must sever and excise two specific statutory provisions: the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure), see 18 U. S. C. § 3553(b)(1) (2000 ed., Supp. IV), and the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range, see § 3742(e) (2000 ed. and Supp. IV) (see Appendix, infra, for text of both provisions). With these two sections excised (and statutory cross-references to the two sections consequently invalidated), the remainder of the Act satisfies the Court’s constitutional requirements.

As the Court today recognizes in its first opinion in these cases, the existence of § 3553(b)(1) is a necessary condition of the constitutional violation. That is to say, without this provision — namely, the provision that makes “the relevant sentencing rules . . . mandatory and impose[s] binding requirements on all sentencing judges” — the statute falls outside the scope of Apprendi’s requirement. Ante, at 233 (Stevens, J., opinion of the Court); see also ibid. (“[Everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the Guidelines binding on district judges”). Cf. post, at 314-320 (THOMAS, J., dissenting in part).

The remainder of the Act “function[s] independently.” Alaska Airlines, supra, at 684. Without the “mandatory” provision, the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals. See 18 U. S. C. § 3553(a) (2000 ed., Supp. IV). The Act nonetheless requires judges to consider the Guidelines “sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant,” *260§ 3553(a)(4)(A), the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims, §§ 3553(a)(1), (3), (5H7) (2000 ed. and Supp.' IV). And the Act nonetheless requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care. § 3553(a)(2) (2000 ed. and Supp. IV) (see Appendix, infra, for text of § 3553(a)).

Moreover, despite the absence of § 3553(b)(1) (Supp. 2004), the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a)). See § 3742(a) (2000 ed.) (appeal by defendant); § 3742(b) (appeal by Government). We concede that the excision of § 3553(b)(1) requires the excision of a different, appeals-related section, namely, § 3742(e) (2000 ed. and Supp. IV), which sets forth standards of review on appeal. That section contains critical cross-references to the (now-excised) § 3553(b)(1) and consequently must be severed and excised for similar reasons.

Excision of § 3742(e), however, does not pose a critical problem for the handling of appeals. That is because, as we have previously held, a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly. See Pierce v. Underwood, 487 U. S. 552, 558-560 (1988) (adopting a standard of review, where “neither a clear statutory prescription nor a historical tradition” existed, based on the statutory text and structure, and on practical considerations); see also Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 403-405 (1990) (same); Koon v. United States, 518 U. S. 81, 99 (1996) (citing Pierce and Cooter & Gell with approval). We infer appropriate review standards from related statutory language, the structure of the statute, and the “ ‘sound *261administration of justice.’ ” Pierce, supra, at 559-560. And in this instance those factors, in addition to the past two decades of appellate practice in cases involving departures, imply a practical standard of review already familiar to appellate courts: review for “unreasonable[ness].” 18 U. S. C. § 3742(e)(3) (1994 ed.).

Until 2003, § 3742(e) explicitly set forth that standard. See § 3742(e)(3) (1994 ed.). In 2003, Congress modified the pre-existing text, adding a de novo standard of review for departures and inserting cross-references to § 3553(b)(1). Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. 108-21, § 401(d)(1), 117 Stat. 670. In light of today’s holding, the reasons for these revisions — to make Guidelines sentencing even more mandatory than it had been — have ceased to be relevant. The pre-2003 text directed appellate, courts to review sentences that reflected an applicable Guidelines range for correctness, but to review other sentences — those that fell “outside the applicable Guideline range” — with a view toward determining whether such a sentence

“is unreasonable, having regard for . . . the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and . . . the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c).” 18 U.S.C. § 3742(e)(3) (1994 ed.) (emphasis added).

In other words, the text told appellate courts to determine whether the sentence “is unreasonable” with regard to § 3553(a). Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.

Taking into account the factors set forth in Pierce, we read the statute as implying this appellate review standard — a *262standard consistent with appellate sentencing practice during the last two decades. Justice Scalia believes that only in “Wonderland” is it possible to infer a standard of review after excising § 3742(e). See post, at 309 (opinion dissenting in part). But our application of Pierce does not justify that characterization. Pierce requires us to judge the appropriateness of our inference based on the statute’s language and basic purposés. We believe our inference a fair one linguistically, and one consistent with Congress’ intent to provide appellate review. Under these circumstances, to refuse to apply Pierce and thereby retreat to a remedy that raises the problems discussed in Part II, supra (as the dissenters would do), or thereby eliminate appellate review entirely, would cut the statute loose from its moorings in congressional purpose.

Nor do we share the dissenters’ doubts about the practicality of a “reasonableness” standard of review. “Reasonableness” standards are not foreign to sentencing law. The Act has long required their use in important sentencing circumstances — both on review of departures, see 18 U. S. C. § 3742(e)(3) (1994 ed.), and on review of sentences imposed where there was no applicable Guideline, see §§ 3742(a)(4), (b)(4), (e)(4). Together, these cases account for about 16.7% of sentencing appeals. See United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics 107, n. 1, 111 (at least 711 of 5,018 sentencing appeals involved departures), 108 (at least 126 of 5,018 sentencing appeals involved the imposition of a term of imprisonment after the revocation of supervised release). See also, e. g., United States v. White Face, 383 F. 3d 733, 737-740 (CA8 2004); United States v. Tsosie, 376 F. 3d 1210, 1218-1219 (CA10 2004); United States v. Salinas, 365 F. 3d 582, 588-590 (CA7 2004); United States v. Cook, 291 F. 3d 1297, 1300-1302 (CA11 2002 (per curiam); United States v. Olabanji, 268 F. 3d 636, 637-639 (CA9 2001); United States v. Ramirez-Rivera, 241 F. 3d 37, 40-41 (CA1 2001). That is why we think it fair (and not, in Justice Scalia’s words, a “gross exaggera-*263tio[n],” post, at 311 (opinion dissenting in part)) to assume judicial familiarity with a “reasonableness” standard. And that is why we believe that appellate judges will prove capable of facing with greater equanimity than would Justice Scalia what he calls the “daunting prospect,” post, at 312, of applying such a standard across the board.

Neither do we share Justice Scalia’s belief that use of a reasonableness standard “will produce a discordant symphony” leading to “excessive sentencing disparities,” and “wreak havoc” on the judicial system, post, at 312-313 (internal quotation marks omitted). The Sentencing Commission will continue to collect and study appellate court decision-making. It will continue to modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices. It will thereby promote uniformity in the sentencing process. 28 U. S. C. § 994 (2000 ed. and Supp. IV).

Regardless, in this context, we must view fears of a “discordant symphony,” “excessive disparities,” and “havoc” (if they are not themselves “gross exaggerations”) with a comparative eye. We cannot and do not claim that use of a “reasonableness” standard will provide the uniformity that Congress originally sought to secure. Nor do we doubt that Congress wrote the language of the appellate provisions to correspond with the mandatory system it intended to create. Compare post, at 306-307 (Scalia, J., dissenting in part) (expressing concern regarding the presence of § 3742(f) in light of the absence of § 3742(e)). But, as by now should be clear, that mandatory system is no longer an open choice. And the remedial question we must ask here (as we did in respect to § 3553(b)(1)) is, which alternative adheres more closely to Congress’ original objective: (1) retention of sentencing appeals, or (2) invalidation of the entire Act, including its appellate provisions? The former, by providing appellate review, would tend to iron out sentencing differences; the latter would not. Hence we believe Congress would have pre*264ferred the former to the latter — even if the former means that some provisions will apply differently from the way Congress had originally expected. See post, at 306-307 (Scalia, J., dissenting in part). But, as we have said, we believe that Congress would have preferred even the latter to the system the dissenters recommend, a system that has its own problems of practicality. See supra, at 254-256.

Finally, the Act without its “mandatory” provision and related language remains consistent with Congress’ initial and basic sentencing intent. Congress sought to “provide certainty and fairness in meeting the purposes of sentencing, [while] avoiding unwarranted sentencing disparities ... [and] maintaining sufficient flexibility to permit individualized sentences when warranted.” 28 U. S. C. § 991(b)(1)(B); see also USSG §1A1.1, application note (explaining that Congress sought to achieve “honesty,” “uniformity,” and “proportionality” in sentencing (emphasis deleted)). The system remaining after excision, while lacking the mandatory features that Congress enacted, retains other features that help to further these objectives.

As we have said, the Sentencing Commission remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly. See 28 U. S. C. § 994 (2000 ed. and Supp. IV). The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing. See 18 U. S. C. A. §§ 3553(a)(4), (5) (Supp. 2004). But compare post, at 305 (Scalia, J., dissenting in part) (claiming that the sentencing judge has the same discretion “he possessed before the Act was passed”). The courts of appeals review sentencing decisions for unreasonableness. These features of the remaining system, while not the system Congress enacted, nonetheless continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to *265individualize sentences where necessary. See 28 U. S. C. § 991(b). We can find no feature of the remaining system that tends to hinder, rather than to further, these basic objectives. Under these circumstances, why would Congress not have preferred excision of the “mandatory” provision to a system that engrafts today’s constitutional requirement onto the unchanged pre-existing statute — a system that, in terms of Congress’ basic objectives, is counterproductive?

We do not doubt that Congress, when it wrote the Sentencing Act, intended to create a form of mandatory Guidelines system. See post, at 291-296 (Stevens, J., dissenting in part). But, we repeat, given today’s constitutional holding, that is not a choice that remains open. Hence we have examined the statute in depth to determine Congress’ likely intent in light of today’s holding. See, e. g., Denver Area Ed. Telecommunications Consortium, Inc., 518 U. S., at 767. And we have concluded that today’s holding is fundamentally inconsistent with the judge-based sentencing system that Congress enacted into law. In our view, it is more consistent with Congress’ likely intent in enacting the Sentencing Reform Act (1) to preserve important elements of that system while severing and excising two provisions (§§ 3553(b)(1) and 3742(e)) than (2) to maintain all provisions of the Act and. engraft today’s constitutional requirement onto that statutory scheme.

Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.

IV

We briefly explain why we have not fully adopted the remedial proposals that the parties have advanced. First, the Government argues that “in any case in which the Constitution prohibits the judicial factfinding procedures that Congress and the Commission contemplated for implementing *266the Guidelines, the Guidelines as a whole become inapplicable.” Brief for United States in No. 04-104, p. 44. Thus the Guidelines “system contemplated by Congress and created by the Commission would be inapplicable in a case in which the Guidelines would require the sentencing court to find a sentence-enhancing fact.” Id., at 66-67. The Guidelines would remain advisory, however, for § 3553(a) would remain intact. Ibid. Cf. Brief .for New York Council of Defense Lawyers as Amicus Curiae 15, n. 9 (A “decision that Section 3553(b) ... is unconstitutional . . . would not necessarily jeopardize the other reforms made by the Sentencing Reform Act, including ... 18 U. S. C. § 3553(a)”); see also ibid, (recognizing that the remainder of the Act functions independently); Brief for Families Against Mandatory Mínimums as Amicus Curiae 29, 30.

As we understand the Government’s remedial suggestion, it coincides significantly with our own. But compare post, at 282 (Stevens, J., dissenting in part) (asserting that no party or amicus sought the remedy we adopt); post, at 309 (Scalia, J., dissenting in part) (same). . The Government would render the Guidelines advisory in “any case in which the Constitution prohibits” judicial factfinding. But it apparently would leave them as binding in all other cases.

We agree with the first part of the Government’s suggestion. However, we do not see how it is possible to leave the Guidelines as binding in other cases. For one thing, the Government’s proposal would impose mandatory Guidelines-type limits upon a judge’s ability to reduce sentences, but it would not impose those limits upon a judge’s ability to increase sentences. We do not believe that such “one-way lever[s]” are compatible with Congress’ intent. Cf. Brief for Sen. Orrin G. Hatch et al. as Amici Curiae 22; see also supra, at 253-254. For another, we believe that Congress would not have authorized a mandatory system in some cases and a nonmandatory system in others, given the administrative complexities that such a system would create. *267Such a two-system proposal seems unlikely to further Congress’ basic objective of promoting uniformity in sentencing.

Second, the respondents in essence would take the same approach as would Justice Stevens. They believe that the constitutional requirement is compatible with the Sentencing Act, and they ask us to hold that the Act continues to stand as written with the constitutional requirement en-grafted onto it. We do not accept their position for the reasons we have already given. See Part II, supra.

Respondent Fanfan argues in the alternative that we should excise those provisions of the Sentencing Act that require judicial factfinding at sentencing. That system, however, would produce problems similar to those we have discussed in Part II, supra. We reject Fanfan’s remedial suggestion for that reason.

V

In respondent Booker’s case, the District Court applied the Guidelines as written and imposed a sentence higher than the maximum authorized solely by the jury’s verdict. The Court of Appeals held Blakely applicable to the Guidelines, concluded that Booker’s sentence violated the Sixth Amendment, vacated the judgment of the District Court, and remanded for resentencing. We affirm the judgment of the Court of Appeals and remand the case. On remand, the District Court should impose a sentence in accordance with today’s opinions, and, if the sentence comes before the Court of Appeals for review, the Court of Appeals should apply the review standards set forth in this opinion.

In respondent Fanfan’s case, the District Court held Blakely applicable to the Guidelines. It then imposed a sentence that was authorized by the jury’s verdict — a sentence lower than the sentence authorized by the Guidelines as written. Thus, Fanfan’s sentence does not violate the Sixth Amendment. Nonetheless, the Government (and the defendant should he so choose) may seek resentencing under the system set forth in today’s opinions. Hence we vacate *268the judgment of the District Court and remand the case for further proceedings consistent with this opinion.

As these dispositions indicate, we must apply today’s holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review. See Griffith v. Kentucky, 479 U. S. 314, 328 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past”). See also Reynoldsville Casket Co. v. Hyde, 514 U. S. 749, 752 (1995) (civil case); Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993) (same). That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the “plain-error” test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

Title 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV) provides:

“Factors to be considered in imposing a sentence. — The court shall impose, a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

“(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

*269“(2) the need for the sentence imposed—

“(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

“(B) to afford adequate deterrence to criminal conduct;

“(C) to protect the public from further crimes of the defendant; and

“(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

“(3) the kinds of sentences available;

“(4) the kinds of sentence and the sentencing range established for—

“(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

“(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

“(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

“(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

“(5) any pertinent policy statement—

“(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to *270any amendments made to such policy statement by act of Congress (regardless of whether such .amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

“(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.

“(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

“(7) the need to provide restitution to any victims of the offense.”

Title 18 U. S. C. § 3553(b)(1) (Supp. IV) provides: “Application of guidelines in imposing a sentence. — (1) In general. — Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.”

*271Title 18 U. S. C. § 3742(e) (2000 ed. and Supp. IV) provides:

“Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence—

“(1) was imposed in violation of law;

“(2) was imposed as a result of an incorrect application of the sentencing guidelines;

“(3) is outside the applicable guideline range, and “(A) the district court failed to provide the written statement of reasons required by section 3553(c);

“(B) the sentence departs from the applicable guideline range based on a factor that—

“(i) does not advance the objectives set forth in section 3553(a)(2); or

“(ii) is not authorized under section 3553(b); or

“(in) is not justified by the facts of the case; or

“(C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

“(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

“The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts.”

*272Justice Stevens,

with whom Justice Souter joins, and with whom Justice Scalia joins except for Part III and footnote 17,

dissenting in part.

Neither of the two Court opinions that decide these cases finds any constitutional infirmity inherent in any provision of the Sentencing Reform Act of 1984 (SRA) or the Federal Sentencing Guidelines. Specifically, neither 18 U. S. C. § 3553(b)(1) (Supp. IV), which makes application of the Guidelines mandatory, nor § 3742(e) (2000 ed. and Supp. IV), which authorizes appellate review of departures from the Guidelines, is even arguably unconstitutional. Neither the Government, nor the respondents, nor any of the numerous amici has suggested that there is any need to invalidate either provision in order to avoid violations of the Sixth Amendment in the administration of the Guidelines. The Court’s decision to do so represents a policy choice that Congress has considered and decisively rejected. While it is perfectly clear that Congress has ample power to repeal these two statutory provisions if it so desires, this Court should not make that choice on Congress’ behalf. I respectfully dissent from the Court’s extraordinary exercise of authority.

Before explaining why the law does not authorize the Court’s creative remedy, why the reasons it advances in support of its decision are unpersuasive, and why it is abundantly clear that Congress has already rejected that very remedy, it is appropriate to explain how the violation of the Sixth Amendment that occurred in Booker’s case could readily have been avoided without making any change in the Guidelines. Booker received a sentence of 360 months’ imprisonment. His sentence was based on four factual determinations: (1) the jury’s finding that he possessed 92.5 grams of crack (cocaine base); (2) the judge’s finding that he possessed an additional 566 grams; (3) the judge’s conclusion that he had obstructed justice; and (4) the judge’s evaluation of his prior criminal record. Under the jury’s 92.5 grams finding, the maximum sentence authorized by the Guidelines *273was a term of 262 months. See United States Sentencing Commission, Guidelines Manual §2D1.1(c)(4) (Nov. 2003) (USSG).

If the 566 gram finding had been made by the jury based on proof beyond a reasonable doubt, that finding would have authorized a Guidelines sentence anywhere between 324 and 405 months — the equivalent of a range from 27 to nearly 34 years — given Booker’s criminal history. §2Dl.l(c)(2). Relying on his own appraisal of the defendant’s obstruction of justice, and presumably any other information in the presen-tence report, the judge would have had discretion to select any sentence within that range. Thus, if the two facts, which in this case actually established two separate crimes, had both been found by the jury, the judicial factfinding that produced the actual sentence would not havé violated the Constitution. In other words, the judge could have considered Booker’s obstruction of justice, his criminal history, and all other real offense and offender factors without violating the Sixth Amendment. Because the Guidelines as written possess the virtue of combining a mandatory determination of sentencing ranges and discretionary decisions within those ranges, they allow ample latitude for judicial factfinding that does not even arguably raise any Sixth Amendment issue.

The principal basis for the Court’s chosen remedy is its assumption that Congress did not contemplate that the Sixth Amendment would be violated by depriving the defendant of the right to a jury trial on a factual issue as important as whether Booker possessed the additional 566 grams of crack that exponentially increased the maximum sentence that he could receive. I am not at all sure that that assumption is correct, but even if it is, it does not provide an adequate basis for volunteering a systemwide remedy that Congress has already rejected and could enact on its own if it elected to.

When one pauses to note that over 95% of all federal criminal prosecutions are terminated by a plea bargain, and the *274further fact that in almost half of the cases that go to trial there are no sentencing enhancements, the extraordinary overbreadth of the Court’s unprecedented remedy is manifest. It is, moreover, unique because, under the Court’s reasoning, if Congress should decide to reenact the exact text of the two provisions that the Court has chosen to invalidate, that reenactment would be unquestionably constitutional. In my judgment, it is therefore clear that the Court’s creative remedy is an exercise of legislative, rather than judicial, power.

I

It is a fundamental premise of judicial review that all Acts of Congress are presumptively valid. See Regan v. Time, Inc., 468 U. S. 641, 652 (1984). “A ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Ibid. In the past, because of its respect for the coordinate branches of Government, the Court has invalidated duly enacted statutes — or particular provisions of such statutes — “only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U. S. 598, 607 (2000); see also El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 97 (1909). The exercise of such power is traditionally limited to issues presented in the case or controversy before the Court, and to the imposition of remedies that redress specific constitutional violations.

There are two narrow exceptions to this general rule. A facial challenge may succeed if a legislative scheme is unconstitutional in all or nearly all of its applications. That is certainly not true in these cases, however, because most applications of the Guidelines are unquestionably valid. A second exception involves cases in which an invalid provision or application cannot be severed from the remainder of the statute. That exception is inapplicable because there is no statutory or Guidelines provision that is invalid. Neither exception supports the majority’s newly minted remedy.

*275 Facial Invalidity:

Regardless of how the Court defines the standard for determining when a facial challenge to a statute should succeed,1 it is abundantly clear that the fact that a statute, or any provision of a statute, is unconstitutional in a portion of its applications does not render the statute or provision invalid, and no party suggests otherwise. The Government conceded at oral argument that 45% of federal sentences involve no enhancements. Cf. United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics 39-40 (hereinafter Sourcebook).2 And, according to two U. S. Sentencing Commissioners who testified before Congress shortly after we handed down our decision in Blakely v. Washington, 542 U. S. 296 (2004), the number of enhancements that would actually implicate a defendant’s Sixth Amendment rights is even smaller. See Hearings on Blakely v. Washington and the Future of the Federal Sentencing Guidelines before the Senate Committee on the Judiciary, 108th Cong., 2d Sess., 2 (2004) (hereinafter Hearings on Blakely) (testimony of Commissioners John R. Steer and Hon. William K. Sessions III) (“[A] majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely”), available at http://www.ussc.gov/hearings/BlakelyTest.pdf (all Internet materials as visited Jan. 7,2005, and available in Clerk of Court’s case file). Simply stated, the Government’s *276submissions to this Court and to Congress demonstrate that the Guidelines could be constitutionally applied in their entirety, without any modifications, in the “majority of the cases sentenced under the federal guidelines.” Ibid. On the basis of these submissions alone, this Court should have declined to find the Guidelines, or any particular provisions of the Guidelines, facially invalid.3

Accordingly, the majority’s claim that a jury factfinding requirement would “destroy the system,” ante, at 252 (opinion of Breyer, J.), would at most apply to a minority of sentences imposed under the Guidelines. In reality, given that the Government and judges have been apprised of the requirements of the Sixth Amendment, the number of unconstitutional applications would have been even smaller had we allowed them the opportunity to comply with our constitutional holding. This is so for several reasons.

First, it is axiomatic that a defendant may waive his Sixth Amendment right to trial by jury. Patton v. United States, 281 U. S. 276, 312-313 (1930). In Blakely we explained that “[w]hen a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant *277either stipulates to the relevant facts or consents to judicial factfinding.” 542 U. S., at 310. Such reasoning applies with equal force to sentences imposed under the Guidelines. As the majority concedes, ante, at 248, only a tiny fraction of federal prosecutions ever go to trial. See Estimate, at 2 (“In FY02, 97.1 percent of cases sentenced under the guidelines were the result of plea agreements”). If such procedures were followed in the future, our holding that Blakely applies to the Guidelines would be consequential only in the tiny portion of prospective sentencing decisions that are made after a defendant has been found guilty by a jury.

Second, in the remaining fraction of cases that result in a jury trial, I am confident that those charged with complying with the Guidelines — judges, aided by prosecutors and defense attorneys — could adequately protect defendants’ Sixth Amendment rights without this Court’s extraordinary remedy. In many cases, prosecutors could avoid an Apprendi v. New Jersey, 530 U. S. 466 (2000), problem simply by alleging in the indictment the facts necessary to reach the chosen Guidelines sentence. Following our decision in Apprendi, and again after our decision in Blakely, the Department of Justice advised federal prosecutors to adopt practices that would enable them “to charge and prove to the jury facts that increase the statutory maximum — for example, drug type and quantity for offenses under 21 U. S. C. 841.”4 Enhancing the specificity of indictments would be a simple matter, for example, in prosecutions under the federal drug statutes (such as Booker’s prosecution). The Government has already directed its prosecutors to allege facts such as the *278possession of a dangerous weapon or “that the defendant was an organizer or leader of criminal activity that involved five or more participants” in the indictment and prove them to the jury beyond a reasonable doubt.5

Third, even in those trials in which the Guidelines require the finding of facts not alleged in the indictment, such fact-finding by a judge is not unconstitutional per se. To be clear, our holding in Parts I — III, ante, at 243-244 (STEVENS, J., opinion of the Court), that Blakely applies to the Guidelines does not establish the “impermissibility of judicial fact-finding.” Brief for United States 46. Instead, judicial fact-finding to support an offense level determination or an enhancement is only unconstitutional when that finding raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant. This distinction is crucial to a proper understanding of why the Guidelines could easily function as they are currently written.

Consider, for instance, a case in which the defendant’s initial sentencing range under the Guidelines is 130-to-162 months, calculated by combining a base offense level of 28 and a criminal history category of V. See USSG ch. 5, pt. A (Table). Depending upon the particular offense, the sentencing judge may use her discretion to select any sentence within this range, even if her selection relies upon factual determinations beyond the facts found by the jury. If the defendant described above also possessed a firearm, the Guidelines would direct the judge to apply a two-level enhancement under § 2D 1.1, which would raise the defendant’s total offense level from 28 to 30. That, in turn, would raise the defendant’s eligible sentencing range to 151-to-188 months. That act of judicial factfinding would comply with the Guidelines and the Sixth Amendment so long as the sen-*279fencing judge then selected a sentence between 151-to-162 months — the lower number (151) being the bottom of offense level 30 and the higher number (162) being the maximum sentence under level 28, which is the upper limit of the range supported by the jury findings alone. This type of overlap between sentencing ranges is the rule, not the exception, in the Guidelines as currently constituted. See 1 Practice Under the Federal Sentencing Guidelines §6.01[B], p. 7 (P. Bamberger & D. Gottlieb eds. 4th ed. 2003 Supp.) (noting that nearly all Guidelines ranges overlap and that “because of the overlap, the actual sentence imposed can theoretically be the same no matter which guideline range is chosen”). Trial courts have developed considerable expertise in employing overlapping provisions in such a manner as to avoid unnecessary resolution of factual disputes, see § 7.03[B][2], at 34 (2004 Supp.), and lower courts have shown themselves capable of distinguishing proper from improper applications of sentencing enhancements under Blakely, see, e. g., United States v. Mayfield, 386 F. 3d 1301 (CA9 2004) (upholding a two-level enhancement for firearm possession from offense level 34 to 36 because the sentencing judge selected a sentence within the overlapping range between the two levels). The interaction of these various Guidelines provisions demonstrates the fallacy in the assumption that judicial fact-finding can never be constitutional under the Guidelines.

The majority’s answer to the fact that the vast majority of applications of the Guidelines are constitutional is that “we must determine likely intent not by counting proceedings, but by evaluating the consequences of the Court’s constitutional requirement” on every imaginable case. Ante, at 248 (opinion of Breyer, J.). That approach ignores the lessons of our facial invalidity cases. Those cases stress that this Court is ill suited to the task of drafting legislation and that, therefore, as a matter of respect for coordinate branches of *280Government, we ought to presume whenever possible that those charged with writing and implementing legislation will and can apply “the statute consistently with the constitutional command.” Time, Inc. v. Hill, 385 U. S. 374, 397 (1967). Indeed, this Court has generally refused to consider “every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,” Barrows v. Jackson, 346 U. S. 249, 256 (1953), because “[t]he delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined,” United States v. Raines, 362 U. S. 17, 22 (1960). The Government has already shown it can apply the Guidelines constitutionally even as written, and Congress is perfectly capable of redrafting the statute on its own. Thus, there is no justification for the extreme judicial remedy of total invalidation of any. part of the SR A or the Guidelines.

In sum, it is indisputable that the vast majority of federal sentences under the Guidelines would have complied with the Sixth Amendment without the Court’s extraordinary remedy. Under any reasonable reading of our precedents, in no way can it be said that the Guidelines are, or that any particular Guidelines provision is, facially unconstitutional.

Severability:

Even though a statute is not facially invalid, a holding that certain specific provisions are unconstitutional may make it necessary to invalidate the entire statute. See generally Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76 (1937) (hereinafter Stern). Our normal rule, however, is that the “unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative *281as a law.” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932) (emphasis added).6

Our “severability” precedents, however, cannot support the Court’s remedy because there is no provision of the SRA or the Guidelines that falls outside of Congress’ power. See Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987). Accordingly, severability analysis simply does not apply.

The majority concludes that our constitutional holding requires the invalidation of §§ 3653(b)(1) and 3742(e). The first *282of these sections uses the word “shall” to make the substantive provisions of the Guidelines mandatory. See Mistretta v. United States, 488 U. S. 361, 367 (1989). The second authorizes de novo review of sentencing judges’ applications of relevant Guidelines provisions. Neither section is unconstitutional. While these provisions can in certain cases, when combined with other statutory and Guidelines provisions, result in a violation of the Sixth Amendment, they are plainly constitutional on their faces.

Rather than rely on traditional principles of facial invalidity or severability, the majority creates a new category of cases in which this Court may invalidate any part or parts of a statute (and add others) when it concludes that Congress would have preferred a modified system to administering the statute in compliance with the Constitution. This is entirely new law. Usually the Court first declares unconstitutional a particular provision of law, and only then does it inquire whether the remainder of the statute can be saved. See, e. g., Regan v. Time, 468 U. S., at 652; Alaska Airlines, 480 U. S., at 684. Review in this manner limits judicial power by minimizing the damage done to the statute by judicial fiat. There is no case of which I am aware, however, in which this Court has used “severability” analysis to do what the majority does today: determine that some unconstitutional applicátions of a statute, when viewed in light of the Court’s reading of “likely” legislative intent, justifies the invalidation of certain statutory sections in their entirety, their constitutionality notwithstanding, in order to save the parts of the statute the Court deemed most important. The novelty of this remedial maneuver perhaps explains why no party or amicus curiae to this litigation has requested the remedy the Court now orders. In addition, none of the federal courts that have addressed Blakely’s application to the Guidelines has concluded that striking down § 3553(b)(1) is a proper solution.

*283Most importantly, the Court simply has no authority to invalidate legislation absent a showing that it is unconstitutional. To paraphrase Chief Justice Marshall, an "act of the legislature” must be “repugnant to the constitution” in order to be void. Marbury v. Madison, 1 Cranch 137, 177 (1803). When a provision of a statute is unconstitutional, that provision is void, and the Judiciary is therefore not bound by it in a particular case. Here, however, the provisions the majority has excised from the statute are perfectly valid: Congress could pass the identical statute tomorrow and it would be binding on this Court so long as it were administered in compliance with the Sixth Amendment.7 Because the statute itself is not repugnant to the Constitution and can by its terms comport with the Sixth Amendment, the Court does not have the constitutional authority to invalidate it.

The precedent on which the Court relies is scant indeed. It can only point to cases in which a provision of law was unconstitutionally extended to or limited to a particular class; in such cases it is necessary either to invalidate the provision or to require the legislature to extend the benefit to an excluded class.8 Given the sweeping nature of the *284remedy ordained today, the majority’s assertions that it is proper to engage in an ex ante analysis of congressional intent in order to select in the first instance the statutory provisions to be struck down is contrary to the very purpose of engaging in severability analysis — the Court’s remedy expands, rather than limits, judicial power.

There is no justification for extending our severability cases to cover this situation. The SRA and the Guidelines can be read — and are being currently read — in a way that complies with the Sixth Amendment. If Congress wished to amend the statute to enact the majority’s vision of how the Guidelines should operate, it would be perfectly free to do so. There is no need to devise a novel and questionable method of invalidating statutory provisions that can be constitutionally applied.

II

Rather than engage in a wholesale rewriting of the SRA, I would simply allow the Government to continue doing what it has done since this Court handed down Blakely — prove any fact that is required to increase a defendant’s sentence *285under the Guidelines to a jury beyond a reasonable doubt. As I have already discussed, a requirement of jury fact-finding for certain issues can be implemented without difficulty in the vast majority of cases. See supra, at 276-280.

Indeed, this already appears to be the case. “[T]he Department of Justice already has instituted procedures which would protect the overwhelming majority of future cases from Blakely infirmity. The Department of Justice has issued detailed guidance for every stage of the prosecution from indictment to final sentencing, including alleging facts that would support sentencing enhancements and requiring defendants to waive any potential Blakely rights in plea agreements.” Hearings on Blakely 1-2.9 Given this experience, I think the Court dramatically overstates the difficulty of implementing this solution.

The majority advances five reasons why the remedy that is already in place will not work. First, the majority points to the statutory text referring to "the court” in arguing that jury factfinding is impermissible. While this text is no doubt evidence that Congress contemplated judicial fact-finding, it does not demonstrate that Congress thought that judicial factfinding was so essential that, if forced to choose between a system including jury determinations of certain facts in certain cases on the one hand, and a system in which the Guidelines would cease to restrain the discretion of federal judges on the other, Congress would have selected the latter.

*286As a textual matter, the word “court” can certainly be read to include a judge’s selection of a sentence as supported by a jury verdict — this reading is plausible either as a pure matter of statutory construction or under principles of constitutional avoidance. Ordinarily, “'where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.’” Jones v. United States, 526 U. S. 227, 239 (1999) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909)). This principle, which “has for so long been applied by this Court that it is beyond debate,” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988), is intended to show respect for Congress by presuming it “legislates in the light of constitutional limitations,” Rust v. Sullivan, 500 U. S. 173, 191 (1991).

The Court, however, reverses the ordinary presumption. It interprets the phrase “[t]he court . . . shall consider” in 18 U. S. C. § 3553(a) (Supp. IV) to mean: The judge shall consider and impose the appropriate sentence, but the judge shall not be constrained by any findings of a jury. See ante, at 249 (opinion of Breyer, J.) (interpreting the word “court” to mean “ ‘the judge without the jury’ ”). The Court’s narrow reading of the statutory text is unnecessary. Even assuming that the word “court” should be read to mean “judge, and only the judge,” a requirement that certain enhancements be supported by jury verdicts leaves the ultimate sentencing decision exclusively within the judge’s hands — the judge, and the judge alone, would retain the discretion to sentence the defendant anywhere within the required Guidelines range and within overlapping Guidelines ranges when applicable. See supra, at 278-279. The judge would, no doubt, be limited by the findings of the jury in certain cases, but the fact that such a limitation would be required by the Sixth Amendment in those limited circumstances is not *287a reason to adopt such a constrained view of an Act of Congress.10

In adopting its constrictive reading of “court,” the majority has manufactured a broader constitutional problem than is necessary, and has thereby made necessary the extraordinary remedy it has chosen. I pause, however, to stress that it is not this Court’s holding that the Guidelines must be applied consistently with the Sixth Amendment that has made the majority’s remedy necessary. Rather, it is the Court’s miserly reading of the statutory language that results in “constitutional infirmities.” See ante, at 254 (opinion of Breyer, J.)

Second, the Court argues that simply applying Blakely to the Guidelines would make “real conduct” sentencing more difficult. While that is perhaps true in some cases, judges could always consider relevant conduct obtained from a pre-sentence report pursuant to 18 U. S. C. §3661 and USSG § 6A1.1 in selecting a sentence within a Guidelines range, and of course would be free to consider any such circumstances in cases in which the defendant pleads guilty and waives his Blakely rights. Further, in many cases the Government could simply prove additional facts to a jury beyond a reasonable doubt — as it has been doing in some cases since Ap-prendi — or the court could use bifurcated proceedings in which the relevant conduct is proved to a jury after it has convicted the defendant of the underlying crime.

*288The majority is correct, however, that my preferred holding would undoubtedly affect “real conduct” sentencing in certain cases. This is so because the goal of such sentencing — increasing a defendant’s sentence on the basis of conduct not proved at trial — is contrary to the very core of Apprendi. That certain applications of “relevant conduct” sentencing are unconstitutional should not come as a complete surprise to Congress: The House Report recognized that “real offense” sentencing could pose constitutional difficulties. H. R. Rep. No. 98-1017, p. 98 (1984). In reality, the majority’s concerns about relevant conduct are nothing more than an objection to Apprendi itself, an objection that this Court rejected in Parts I — III, ante (opinion of Stevens, J.).

Further, the Court does not explain how its proposed remedy will "ensure that judges take real conduct into account. While judges certainly may do so in their discretion under § 3553(a), there is no indication as to how much or to what extent “relevant conduct” should matter under the majority’s regime. Nor is there any meaningful standard by which appellate courts may review a sentencing judge’s “relevant conduct” determination — only a general “reasonableness” inquiry that may discourage sentencing judges from considering such conduct altogether. The Court’s holding thus may do just as much damage to real conduct sentencing as would simply requiring the Government to follow the Guidelines consistent with the Sixth Amendment.

Third, the majority argues that my remedy would make sentencing proceedings far too complex. But of the very small number of cases in which a Guidelines sentence would implicate the Sixth Amendment, see supra, at 275-276, most involve drug quantity determinations, firearm enhancements, and other factual findings that can readily be made by juries. I am not blind to the fact that some cases, such as fraud prosecutions, would pose new problems for prosecutors and trial judges. Seé ante, at 252-253 (opinion of Breyer, J.). In such cases, I am confident that federal trial *289judges, assisted by capable prosecutors and defense attorneys, could have devised appropriate procedures to impose the sentences the Guidelines envision in a manner that is consistent with the Sixth Amendment. We have always trusted juries to sort through, complex facts in various areas of law. This may not be the most efficient system imaginable, but the Constitution does not permit efficiency to be our primary concern. See Blakely v. Washington, 542 U. S., at 312-313.

Fourth, the majority assails my reliance on plea bargaining. The Court claims that I cannot discount the effect that applying Blakely to the Guidelines would have on plea-bargained cases, since the specter of Blakely will affect those cases. However, the majority's decision suffers from the same problem to a much greater degree. Prior to the Court’s decision to strike the mandatory feature of the Guidelines, prosecutors and defendants alike could bargain from a position of reasonable confidence with respect to the sentencing range into which a defendant would likely fall. The majority, however, has eliminated the certainty of expectations in the plea process. And, unlike my proposed remedy, which would potentially affect only a fraction of plea bargains, the uncertainty resulting from the Court’s regime change will infect the entire universe of guilty pleas which occur in 97% of all federal prosecutions.

The majority also argues that applying Blakely to the Guidelines would allow prosecutors to exercise “a power the Sentencing Act vested in judges,” ante, at 257 (opinion of Breyer, J.), by giving prosecutors the choice whether to “charge” a particular fact. Under the remedy I favor, however, judges would still be able to reject factually false plea agreements under USSG §6B 1.2(a), and could still consider relevant information about the offense and the offender in ¿very single case. Judges could consider such characteristics as an aid in selecting the appropriate sentence within the Guidelines range authorized by the jury verdict, determining the defendant’s criminal history level, reducing a de*290fendant’s sentence, or justifying discretionary departures from the applicable Guidelines range. The Court is therefore incorrect when it suggests that requiring a supporting jury verdict for certain enhancements in certain cases would place certain sentencing factors “beyond the reach of the judge entirely.” See ante, at 257 (opinion of Breyer, J.).

Moreover, the premise on which the Court’s argument is based — that the Guidelines as currently written prevent fact bargaining and therefore diminish prosecutorial power — is probably not correct. As one commentator has noted:

“[P]rosecutors exercise nearly as much control when guidelines tie sentences to so-called ‘real-offense’ factors .... One might reasonably assume those factors are outside of prosecutors’ control, but experience with the Federal Sentencing Guidelines suggests otherwise; when necessary, the litigants simply bargain about what facts will (and won’t) form the basis for sentencing. It seems to be an iron rule: guidelines sentencing empowers prosecutors, even where the guidelines’ authors try to fight that tendency.” Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548, 2559-2560 (2004) (footnote omitted).

Not only is fact bargaining quite common under the current system, it is also clear that prosecutors have substantial bargaining power.11 And surely, contrary to the Court’s re*291sponse to this dissent, ante, at 256-257 (opinion of Breyer, J.), a prosecutor who need only prove an enhancing fact by a preponderance of the evidence has more bargaining power than if required to prove the same fact beyond a reasonable doubt.

Finally, the majority argues that my solution would require a different burden of proof for enhancements above the maximum authorized by the jury verdict and for reductions. This is true because the requirement that guilt be established by proof beyond a reasonable doubt is a constitutional mandate. However, given the relatively few reductions available in the Guidelines and the availability of judicial discretion within the applicable range, this is unlikely to have more than a minimal effect.

In sum, I find unpersuasive the Court’s objections to allowing Congress to decide in the first instance whether the Guidelines should be converted from a mandatory into a discretionary system. Far more important than those objections is the overwhelming evidence that Congress has already considered, and unequivocally rejected, the regime that the Court endorses today.

H — I H-i

Even under the Court’s innovative approach to severability analysis when confronted with unconstitutional applications of a statute, its opinion is unpersuasive. It assumes that this Court’s only inquiry is to “decide whether we would deviate less radically from Congress’ intended system (1) by superimposing the constitutional requirement announced today or (2) through elimination of some provisions of the statute.” Ante, at 247 (opinion of Breyer, J.). I will assume, consistently with the majority, that in this exercise we should never use our “remedial powers to circumvent the intent of the legislature,” Califano v. Westcott, 443 U. S. 76, 94 (1979) (Powell, J., concurring in part and dissenting in part), and that we must not create “a program quite different *292from the one the legislature actually adopted,” Sloan v. Lemon, 413 U. S. 825, 834 (1973).

In the context of this framework, in order to justify “excising” 18 U. S. C. §§ 3553(b)(1) (Supp. IV) and 3742(e) (2000 ed. and Supp. IV), the Court has the burden of showing that Congress would have preferred the remaining system of discretionary Sentencing Guidelines to not just the remedy I would favor, but also to any available alternative, including the alternative of total invalidation, which would give Congress a clean slate on which to write an entirely new law. The Court cannot meet this burden because Congress has already considered and overwhelmingly rejected the system it enacts today. In doing so, Congress revealed both an unmistakable preference for the certainty of a binding regime and a deep suspicion of judges’ ability to reduce disparities in federal sentencing. A brief examination of the SRA’s history reveals the gross impropriety of the remedy the Court has selected.

History of Sentence Reform Efforts:

In the mid-1970’s, Congress began to study the numerous problems attendant to indeterminate sentencing in the federal criminal justice system. After nearly a decade of review, Congress in 1984 decided that the system needed a comprehensive overhaul. The elimination of sentencing disparity, which Congress determined was chiefly the result of a discretionary sentencing regime, was unquestionably Congress’ principal aim. See Feinberg, Federal Criminal Sentencing Reform: Congress and the United States Sentencing Commission, 28 Wake Forest L. Rev. 291, 295-296 (1993) (“The first and foremost goal of the sentencing reform effort was to alleviate the perceived problem of federal criminal sentencing disparity. . . . Quite frankly, all other considerations were secondary”); see also Breyer, Federal Sentencing Guidelines Revisited, 2 Fed. Sentencing Rptr. 180 (1999) (“In seeking ‘greater fairness,’ Congress, acting in bipartisan *293fashion, intended to respond to complaints of unreasonable disparity in sentencing — that is, complaints that differences among sentences reflected not simply different offense conduct or different offender history, but the fact that different, judges imposed the sentences” (emphasis added)). As Senator Hatch, a central participant in the reform effort, has explained: “The discretion that Congress had conferred for so long upon the judiciary and the parole authorities was at the heart of sentencing disparity” The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Cer- . tain and Effective Sentencing System, 28 Wake Forest L. Rev. 185, 187 (1998) (hereinafter Hatch) (emphasis added).

Consequently, Congress explicitly rejected as a model for reform the various proposals for advisory guidelines that had been introduced in past Congresses. One example of such legislation was the bill introduced in 1977 by Senators Kennedy and McClellan, S. 1437, 95th Cong., 1st Sess. (as reported by the Senate Judiciary Committee on Nov. 15, 1977) (hereinafter S. 1437), which allowed judges to impose sentences based on the characteristics of the individual defendant and granted judges substantial discretion to depart from recommended guidelines sentences. See Stith & Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223, 238 (1993) (hereinafter Stith & Koh). That bill never became law and was refined several times between 1977 and 1984: Each of those refinements made the regime more, not less, restrictive on trial judges’ discretion in sentencing.12

*294 Passage of the Sentencing Reform Act of 1984,:

Congress’ preference for binding guidelines was evident in •the debate over passage of the SR A itself, which was predicated entirely on the move from a discretionary guidelines system to the mandatory system the Court strikes down today. The SRA was the product of competing versions of sentencing reform legislation: the House bill, H. R. 6012, 98th Cong., 2d Sess., authorized the creation of discretionary guidelines whereas the Senate bill, S. 668, 98th Cong., 2d Sess., provided for binding guidelines and de novo appellate review. The House was splintered regarding whether to make the Guidelines binding on judges, but the vote in the Senate was an overwhelming 85 to 3 in favor of binding Guidelines. 130 Cong. Rec. 1649 (1984); see generally Stith & Koh 261-266. Eventually, the House substituted the Senate version for H. R. 6012, and the current system of mandatory Guidelines became law. 130 Cong. Rec. 29730 (1984).

The text of the law that actually passed Congress (including §§ 3553(b)(1) and 3742(e)) should be more than sufficient .to demonstrate Congress’ unmistakable commitment to a binding Guidelines system. That text requires the sentencing judge to impose the sentence dictated by the Guidelines (“[T]he court shall impose a sentence of the kind, and within the range” provided in the Guidelines unless there is a circumstance “not adequately taken into consideration by the” *295Guidelines), and § 3742(e) gives § 3553(b)(1) teeth by instructing judges that any sentence outside of the Guidelines range without adequate explanation will be overturned on appeal.13 Congress’ chosen regime was carefully designed to produce uniform compliance with the Guidelines. Congress surely would not have taken the pains to create such a regime had it found the Court’s system of discretionary guidelines acceptable in any way.

The accompanying Senate Report and floor debate make plain what should be obvious from the structure of the statute: Congress refused to accept the discretionary system that the Court implausibly deems most consistent with congressional intent.14 In other words, given the choice between the statute created by the Court today or a clean slate *296on which to write a wholly different law, Congress undoubtedly would have selected the latter.

Congress’ Method of Reducing Disparities:

The notion that Congress had any confidence that judges would reduce sentencing disparities by considering relevant conduct — an idea that is championed by the Court, ante, at 253-254 (opinion of Breyer, J.) — either ignores or misreads the political environment in which the SRA passed. It is true that the SRA instructs sentencing judges to consider real offense and offender characteristics, 28 U. S. C. A. § 994 (2000 ed. and Supp. IV), but Congress only wanted judges to consider those characteristics within the limits of a mandatory system.15 The Senate Report on which the Court relies,- see ante, at 249-250, clearly concluded that the existence of sentencing disparities “can be traced directly to the unfettered discretion the law confers on those judges . . . responsible for imposing and implementing the sentence.” S. Rep. No. 98-225, p. 38 (1983). Even in a system in which judges could not impose sentences based on “relevant con*297duct” determinations (absent a plea agreement or supporting jury findings), sentences would still be every bit as certain and uniform as in the status quo — at most, the process for imposing those sentences would be more complex. The same can hardly be said of the Court’s chosen system, in which all federal sentencing judges, in all cases, regain the unconstrained discretion Congress eliminated in 1984.

The Court’s conclusion that Congress envisioned a sentencing judge as the centerpiece of its effort to reduce disparities is remarkable given the context of the broader legislative debate about what entity would be responsible for drafting the Guidelines under the SRA. The House version of the bill preferred the Guidelines to be written by the Judicial Conference of the United States — the House Report accompanying that bill argued that judges had vast experience in sentencing and would best be able to craft a system capable of providing sentences based on real conduct without excessive disparity. See H. R. Rep. No. 98-1017, at 93-94. Those in the Senate majority, however, favored an independent Commission. They did so, whether rightly or wrongly, based on a belief that federal judges could not be trusted to impose fair and uniform sentences. See, e. g., 130 Cong. Rec. 976 (1984) (remarks of Sen. Laxalt) (“The present problem with disparity in sentencing ... stems precisely from the failure of [fjederal judges — individually and collectively — to sentence similarly situated defendants in a consistent, reasonable manner. There is little reason to believe that judges will now begin to do what they have failed to do in the past”). And, at the end of the debate, the few remaining Members in the minority recognized that the battle to empower judges with more discretion had been lost. See, e.g., id., at 973 (remarks of Sen. Mathias) (arguing that “[t]he proponents of the bill.. . . argue in essence that judges cannot be trusted. You cannot trust a judge . . . you must not trust a judge”). I find it impossible to believe that a Congress in which these *298sentiments prevailed would have ever approved of the discretionary sentencing regime the Court enacts today.

Congressional Activity Since 1984:

Congress has not wavered in its commitment to a binding system of Sentencing Guidelines. In fact, Congress has rejected each and every attempt to loosen the rigidity of the Guidelines or vest judges with more sentencing options. See Hatch 189 (“In ensuing years, Congress would maintain its adherence to the concept of binding guidelines by consistently rejecting efforts to make the guidelines more discretionary”). Most recently, Congress’ passage of the Prosecu-torial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. 108-21, 117 Stat. 650, reinforced the mandatory nature of the Guidelines by expanding de novo review of sentences to include all departures from the Guidelines and by directing the Commission to limit the number of available departures. The majority admits that its holding has made the PROTECT Act irrelevant. See ante, at 261 (opinion of Breyer, J.) (admitting that after the Court’s remedy, the PROTECT Act's provisions “have ceased to be relevant”). Even a cursory reading of the legislative history of the PROTECT Act reveals the absurdity of the claim that Congress would find acceptable, under any circumstances, the Court’s restoration of judicial discretion through the facial invalidation of §§ 3553(b)(1) and 3742(e).16 In sum, despite Congress’ un*299equivocal demand that the Guidelines operate as a binding system, and in the name of avoiding any reduction in the power of the sentencing judge vis-á-vis the jury (a subject to which Congress did not speak), the majority has erased the heart of the SRA and ignored in their entirety all of the Legislative Branch’s postenactment expressions of how the Guidelines are supposed to operate.

The majority’s answer to this overwhelming history is that retaining a mandatory Guidelines system “is not a choice that remains open” given our holding that Blakely applies to the Guidelines. Ante, at 265. This argument — essentially, that the Apprendi rule makes determinate sentencing unconstitutional — has been advanced repeatedly since Apprendi. See, e. g., 530 U. S., at 549-554 (O’Connor, J., dissenting); Blakely, 542 U. S., at 314 (O’Connor, J., dissenting); id., at 345-346 (Breyer, J., dissenting). These prophecies were self-fulfilling. It is not Apprendi that has brought an end to determinate sentencing. This Court clearly had the power to adopt a remedy that both complied with the Sixth Amendment and also preserved a determinate sentencing regime in which judges make regular factual determinations regarding a defendant’s sentence. It has chosen instead to exaggerate the constitutional problem and to expand the scope of judicial invalidation far beyond that which is even arguably necessary. Our holding that Blakely applies to the Sentencing Guidelines did not dictate the Court’s unprecedented remedy.

*300 IV

As a matter of policy, the differences between the regime enacted by Congress and the system the Court has chosen are stark. Were there any doubts about whether Congress would have preferred the majority’s solution, these are sufficient to dispel them. First, Congress’ stated goal of uniformity is eliminated by the majority’s remedy. True, judges must still consider the sentencing range contained in the Guidelines, but that range is now nothing more than a suggestion that may or may not be persuasive to a judge when weighed against the numerous other considerations listed in 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV). The result is certain to be a return to the same type of sentencing disparities Congress sought to eliminate in 1984. Prior to the PROTECT Act, rates of departure from the applicable Guidelines sentence (via upward or downward departure) varied considerably depending upon the Circuit in which one was sentenced. See Sourcebook 53-55 (Table 26) (showing that 76.6% of sentences in the Fourth Circuit were within the applicable Guidelines range, whereas only 48.8% of sentences in the Ninth Circuit fell within the range). Those disparities will undoubtedly increase in a discretionary system in which the Guidelines are but one factor a judge must consider in sentencing a defendant within a broad statutory range.

Moreover, the Court has neglected to provide a critical procedural protection that existed prior to the enactment of a binding Guidelines system. Before the SRA, the sentencing judge had the discretion to impose a sentence that designated a minimum term “at the expiration of which the prisoner shall become eligible for parole.” 18 U. S. C. § 4205(b) (1982 ed.) (repealed by Pub. L. 98-473, § 218(a)(5), 98 Stat. 2027). Sentencing judges had the discretion to reduce a minimum term of imprisonment upon the recommendation of the Bureau of Prisons. § 4205(g). Through these provi*301sions and others, see generally §§4201-4215, all of which were effectively repealed in 1984, it was the Parole Commission — not the sentencing judge — who was ultimately responsible for determining the length of each defendant’s real sentence. See, e. g., S. Rep. No. 98-225, at 38. Prior to the Guidelines regime, the Parole Commission was designed to reduce sentencing disparities and to provide a check for defendants who had received excessive sentences. Today, the Court reenacts the discretionary Guidelines system that once existed without providing this crucial safety net.

Other concerns are likely to arise. Congress’ demand in the PROTECT Act that departures from the Guidelines be closely regulated and monitored is eviscerated — for there can be no “departure” from a mere suggestion. How will a judge go about determining how much deference to give to the applicable Guidelines range? How will a court of appeals review for reasonableness a district court’s decision that the need for “just punishment” and “adequate deterrence to criminal conduct” simply outweighs the considerations contemplated by the Sentencing Commission? See 18 U. S. C. §§ 3553(a)(2)(A)-(B). What if a sentencing judge determines that a defendant’s need for “educational or vocational training, medical care, or other correctional treatment in the most effective manner,” § 3553(a)(2)(D), requires disregarding the stiff Guidelines range Congress presumably preferred? These questions will arise in every case in the federal system under the Court’s system. Regrettably, these are exactly the sort of questions Congress hoped that sentencing judges would not ask after the SRA.

The consequences of such a drastic change — unaided by the usual processes of legislative deliberation — are likely to be sweeping. For example, the majority’s unnecessarily broad remedy sends every federal sentence back to the drawing board, or at least into the novel review for “reasonableness,” regardless of whether those individuals’ constitu*302tional rights were violated. It is highly unlikely that the mere application of “prudential doctrines” will mitigate the consequences of such a gratuitous change.

The majority’s remedy was not the inevitable result of the Court’s holding that Blakely applies to the Guidelines. Neither Apprendi, nor Blakely, nor these cases made determinate sentencing unconstitutional.17 Merely requiring all applications of the Guidelines to comply with the Sixth Amendment would have allowed judges to distinguish harmless error from error requiring correction, would have required no more complicated procedures than the procedural regime the majority enacts today, and, ultimately, would have left most sentences intact.

Unlike a rule that would merely require judges and prosecutors to comply with the Sixth Amendment, the Court’s systematic overhaul turns the entire system on its head in every case, and, in so doing, runs contrary to the central purpose that motivated Congress to act in the first instance. Moreover, by repealing the right to a determinate sentence that Congress established in the SRA, the Court has effectively eliminated the very constitutional right Apprendi sought to vindicate. No judicial remedy is proper if it is “not commensurate with the constitutional violation to be repaired.” Hills v. Gautreaux, 425 U. S. 284, 294 (1976). The Court’s system fails that test, frustrates Congress’ principal goal in *303enacting the SRA, and violates the tradition of judicial restraint that has heretofore limited our power to overturn validly, enacted statutes.

I respectfully dissent.

Justice Scalia,

dissenting in part.

I join the portions of the opinion of the Court that are delivered by Justice Stevens. I also join Justice Stevens’s dissent, with the exception of Part III1 and footnote 17. I write separately mainly to add some comments regarding the change that the remedial majority’s handiwork has wrought (or perhaps — who can tell? — has not wrought) upon appellate review of federal sentencing.

The remedial majority takes as the North Star of its analysis the fact that Congress enacted a “judge-based sentencing system.” Ante, at 265 (opinion of Breyer, J.). That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read “Congress reaffirms judge-based sentencing” rather than “Congress prescribes standardized sentences.” JUSTICE Breyer’s opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce *304sentencing disparity.2 Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformity — that Congress was so attached to having judges determine “real conduct” on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. See ante, at 253-254,265. The majority’s remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing..

That is the plain effect of the remedial majority’s decision to excise 18 U. S. C. § 3553(b)(1) (Supp. IV). See ante, at 259. District judges will no longer be told they “shall impose a sentence . . . within the range” established by the Guidelines. § 3553(b)(1). Instead, under § 3553(a), they will need only to “consider” that range as one of many factors, including “the need for the sentence ... to provide just punishment for the offense,” § 3553(a)(2)(A) (2000 ed.), “to afford adequate deterrence to criminal conduct,” § 3553(a)(2)(B), and “to protect the public from the further crimes of the defendant,” § 3553(a)(2)(C). The statute provides no order *305of priority among all those factors, but since the three just mentioned are the fundamental criteria governing penology, the statute — absent the mandate of § 3553(b)(1) — authorizes the judge to apply his own perceptions of just punishment, deterrence, and protection of the public even when these differ from the perceptions of the Commission members who drew up the Guidelines. Since the Guidelines are not binding, in order to comply with the (oddly) surviving requirement that the court set forth “the specific reason for the imposition of a sentence different from that described” in the Guidelines, § 3553(c)(2), the sentencing judge need only state that “this court does not believe that the punishment set forth in the Guidelines is appropriate for this sort of offense.”3 That is to say, district courts have discretion to sentence anywhere within the ranges authorized by statute-r-much as they were generally able to do before the Guidelines came into being. To be sure, factor (6) is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” § 3553(a)(6) (2000 ed.), but this would require a judge to adhere to the Guidelines only if all other judges had to adhere to the Guidelines (which they certainly do not, as the Court holds today) or if all other judges could at least be expected to adhere to the Guidelines (which they certainly cannot, given the notorious unpopularity of the Guidelines with many district judges). Thus, logic compels the conclusion that the sentencing judge, after considering the recited factors (including the Guidelines), has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range. If the *306majority thought otherwise — if it thought the Guidelines not only had to be “considered” (as the amputated statute requires) but had generally to be followed — its opinion would surely say so.4

As frustrating as this conclusion is to the Act’s purpose of uniform sentencing, it at least establishes a clear and comprehensible regime — essentially the regime that existed before the Act became effective. That clarity is eliminated, however, by the remedial majority’s surgery on 18 U. S. C. § 3742 (2000 ed. and Supp. IV), the provision governing appellate review of sentences. Even the most casual reading of this section discloses that its purpose — its only purpose — is to enable courts of appeals to enforce conformity with the Guidelines. All of the provisions of that section that impose a review obligation beyond what existed under prior law5 are related to the district judge’s obligations under the Guidelines. If the Guidelines are no longer binding, one would think that the provision designed to ensure compliance with them would, in its totality, be inoperative. The Court holds otherwise. Like a black-robed Alexander cutting the Gordian knot, it simply severs the purpose of the review provisions from their text, holding that only subsection (e), which sets forth the determinations that the court of appeals must make, is inoperative, whereas all the rest of § 3742 subsists — including, mirabile dictu, subsection (f), *307entitled “Decision and disposition,” which tracks the determinations required by the severed subsection (e) and specifies what disposition each of those determinations is to produce. This is rather like deleting the ingredients portion of a recipe and telling the cook to proceed with the preparation portion.6

Until today, appellate review of sentencing discretion has been limited to instances prescribed by statute. Before the Guidelines, federal appellate courts had little experience reviewing sentences for anything but legal error. “[W]ell-established doctrine,” this Court said, “bars [appellate] review of the exercise of sentencing discretion.” Dorszynski v. United States, 418 U. S. 424, 443 (1974). “[Q]nce it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.” Id., at 431-432 (citing cases). When it established the Guidelines regime, Congress expressly provided for appellate review of sentences in specified circumstances, but the Court has been appropriately chary of aggrandizement, refusing to treat § 3742 as a blank check to appellate courts. Thus, in 1992, the Court recognized that Congress’s grant of “limited appellate review of sentencing decisions... did not alter a court of appeals’ traditional deference to a district court’s exercise of its sentencing discretion.” Williams v. United States, 503 U. S. 193, 205 (emphasis added). *308Notwithstanding §3742, much remained off limits to the courts of appeals: “The selection of the appropriate sentence from within the guideline range, as well as the decision to depart from the range in certain circumstances, are decisions that are left solely to the sentencing court.” Ibid, (emphasis added). Similarly, in 1996, the Court took pains to note that the § 3742 power to engage in “limited appellate review” of Guidelines departures did not “vest in appellate courts wide-ranging authority over district court sentencing decisions.” Koon v. United States, 518 U. S. 81, 97. The Court repeated its caution that “ ‘[t]he development of the guideline sentencing regime’ ” did not allow appellate review “ ‘except to the extent specifically directed by statute.’” Ibid, (quoting Williams, supra, at 205).

Today’s remedial opinion does not even pretend to honor this principle that sentencing discretion is unreviewable except pursuant to specific statutory direction. The discussion of appellate review begins with the declaration that, “despite the absence of § 3553(b)(1) (Supp. 2004), the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range . . . ),” ante, at 260 (citing §§ 3742(a) and (b)); and the opinion later announces that the standard of review for all such appeals is “unreasonableness,” ante, at 261,264-265. This conflates different and distinct statutory authorizations of appeal and elides crucial differences in the statutory scope of review. Section 3742 specifies four different kinds of appeal,7 setting forth for each the grounds of *309appeal permitted to the defendant and the Government (§§ 3742(a) and (b)), the manner in which each ground should be considered (§ 3742(e)), and the permissible dispositions (§ 3742(f)). Thére is no one-size-fits-all “unreasonableness” review. The power to review a sentence for reasonableness arises only when the sentencing court has departed from “the applicable guideline range.” § 3742(f)(2); cf. United States v. Soltero-Lopez, 11 F. 3d 18, 19 (CA1 1993) (Breyer, C. J.) (“[T]he sentencing statutes . . . provide [a defendant] with only a very narrow right of appeal” because the power “to-set aside a departure that is ‘unreasonable’” appears “in the context of other provisions that permit defendants to appeal only upward . . . departures”). This Court has expressly rejected the proposition that there may be a “reasonableness]” inquiry when a sentence is imposed as a result of an incorrect application of the Guidelines. See Williams, supra, at 201.

The Court claims that “a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly.” Ante, at 260 (opinion of Breyer, J.). Perhaps so. But we have before us a statute that does explicitly set forth a standard of review. The question is, when the Court has severed that standard of review (contained in § 3742(e)), does • it make any sense to look for some congressional “implication” of a different standard of review in the remnants of the statute that the Court has left standing? Only in Wonderland. (This may explain in part why, as Justice Stevens’s dissent correctly observes, ante, at 282, none of the numerous persons and organizations filing briefs as parties or amici in these cases — all of whom filed this side of the looking-glass — proposed, or I think even imagined, the remedial majority’s wonderful disposition.) Unsurprisingly, none of the three cases cited by the Court used the power of impli*310cation to fill a gap created by the Court’s own removal of an explicit standard.8 The Court’s need to create a new, “implied” standard of review — however “linguistically” “fair,” ante, at 262 — amounts to a confession that it has exceeded its powers. According to the “well established” standard for severability, the unconstitutional part of a statute “may be dropped if what is left is fully operative as a law.” Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987) (emphasis added and internal quotation marks omitted). Severance is not possible “if the balance of the legislation is incapable of functioning independently.” Ibid. The Court’s need to supplement the text that remains after severance suggests that it is engaged in “redrafting] the statute” rather than just implementing the valid portions of it. United States v. Treasury Employees, 513 U. S. 454, 479, and n. 26 (1995); see also id., at 502, and n. 8 (Rehnquist, C. J., dissenting); Reno v. American Civil Liberties Union, 521 U. S. 844, 884-885 (1997).

Even assuming that the Court ought to be inferring standards of review to stanch the bleeding created by its aggressive severance of § 3742(e), its “unreasonableness” standard is not, as it claims, consistent with the “related statutory language” or with “appellate sentencing practice during the last two decades.” Ante, at 260, 262. As already noted, sentences within the Guidelines range have not previously been reviewed for reasonableness. Indeed, the very concept of having a unitary standard of review for all kinds of appeals authorized by §§ 3742(a) and (b) finds no support in statutory language or established practice of the last two decades. Although a “reasonableness” standard did appear in § 3742(e)(3) until 2003, it never extended beyond review of deliberate departures from the Guidelines range. See 18 U.S.C. § 3742(e)(3) (2000 ed.); see also §§ 3742(f)(2)(A), (B) (prescribing how to dispose on appeal of a sentence that *311is “outside the applicable guideline range and is unreasonable”). According to the statistics cited by the Court, that standard applied to only 16.7% of federal sentencing appeals in 2002, see ante, at 262 (opinion of Breyer, J.), but the Court would now have it apply across the board to all sentencing appeals, even to sentences within “the applicable guideline range,” where there is no legal error or misapplication of the Guidelines.

There can be no doubt that the Court’s severability analysis has produced a scheme dramatically different from anything Congress has enacted since 1984. Sentencing courts are told to “provide just punishment” (among other things), and appellate courts are told to ensure that district judges are not “unreasonable.” The worst feature of the scheme is that no one knows — and perhaps no one is meant to know— how advisory Guidelines and “unreasonableness” review will function in practice. The Court’s description of what it anticipates is positively Delphic: “These features of the remaining system . . . continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary. We can find no feature of the remaining system that tends to hinder, rather than to further, these basic objectives.” Ante, at 264-265 (citation omitted).

As I have suggested earlier, any system which held it per se unreasonable (and hence reversible) for a sentencing judge to reject the Guidelines is indistinguishable from'the mandatory Guidelines system that the Court today holds unconstitutional. But the remedial majority’s gross exaggerations (it says that the “practical standard of review” it prescribes is “already familiar to appellate courts” and “consistent with appellate sentencing practice during the last two decades,” ante, at 261, 262)9 may lead some courts of appeals to con-*312elude — may indeed be designed to lead courts of appeals to conclude — that little has changed. Bear in mind that one of the most significant features of the remedial majority’s scheme of “unreasonableness” review is that it requires courts of appeals to evaluate each sentence individually for reasonableness, rather than apply the cookie-cutter standards of the mandatory Guidelines (within the correct Guidelines range, affirm; outside the range without adequate explanation, vacate and remand). A court of appeals faced with this daunting prospect might seek refuge in the familiar and continue (as the remedial majority invites, though the merits majority forbids) the “appellate sentencing practice during the last two decades,” ante, at 262 (opinion of Breyer, J.). At the other extreme, a court of appeals might handle the new workload by approving virtually any sentence within the statutory range that the sentencing court imposes, so long as the district judge goes through the appropriate formalities, such as expressing his consideration of and disagreement with the Guidelines sentence. What I anticipate will happen is that “unreasonableness” review will produce a discordant symphony of different standards, varying from court to court and judge to judge, giving the lie to the remedial majority’s sanguine claim that “no feature” of its avant-garde Guidelines system will “ten[d] to hinder” the avoidance of “excessive sentencing disparities.” Ante, at 265.

In Blakely v. Washington, 542 U. S. 296 (2004), the four dissenting Justices accused the Court of ignoring “the havoc it is about to wreak on trial courts across the country.” Id., at 324 (opinion of O’Connor, J.). And that harsh assessment, of course, referred to just a temporary and unavoid*313able uncertainty, until the Court could get before it a case properly presenting the constitutionality of the mandatory Guidelines. Today, the same Justices wreak havoc on federal district and appellate courts quite needlessly, and for the indefinite future. Will appellate review for “unreasonableness” preserve de facto mandatory Guidelines by discouraging district courts from sentencing outside Guidelines ranges? Will it simply add another layer of unfettered judicial discretion to the sentencing process? Or will it be a mere formality, used by busy appellate judges only to ensure that busy district judges say all the right things when they explain how they have exercised their newly restored discretion? Time may tell, but today’s remedial majority will not.

I respectfully dissent.

Justice Thomas,

dissenting in part.

I join Justice Stevens’ opinion for the Court, but I dissent from Justice Breyer’s opinion for the Court. While I agree with Justice Stevens’ proposed remedy and much of his analysis, I disagree with his restatement of severability principles and reliance on legislative history, and thus write separately.

The Constitution prohibits allowing a judge alone to make a finding that raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant. Application of the Federal Sentencing Guidelines resulted in impermissible factfinding in Booker’s case, but not in Fanfan’s. Thus Booker’s sentence is unconstitutional, but Fanfan’s is not. Rather than applying the usual presumption in favor of sev-erability, and leaving the Guidelines standing insofar as they may be applied without any constitutional problem, the remedial majority converts the Guidelines from a mandatory system to a discretionary one. The majority’s solution fails to tailor the remedy to the wrong, as this Court’s precedents require.

*314I

When a litigant claims that a statute is unconstitutional as applied to him, and the statute is in fact unconstitutional as applied, we normally invalidate the statute only as applied to the litigant in question. We do not strike down the statute on its face. In the typical case, “we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants.” United States v. Treasury Employees, 513 U. S. 454, 478 (1995); see also Renne v. Geary, 501 U. S. 312, 323-324 (1991); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 484-485 (1989); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 501-504 (1985). Absent an exception such as First Amendment overbreadth, we will facially invalidate a statute only if the plaintiff establishes that the statute is invalid in all of its applications. United States v. Salerno, 481 U. S. 739, 745 (1987).

Booker’s case presents an as-applied challenge. Booker challenges Guidelines enhancements that, based on fact-finding by a judge alone, raised his sentence above the range legally mandated for his base offense level, determined by reference to the jury verdict. In effect, he contends that the Guidelines supporting the enhancements, and the Sentencing Reform Act of 1984 (SRA) that makes the Guidelines enhancements mandatory, were unconstitutionally applied to him. (Fanfan makes no similar contention, as he seeks to uphold the District Court’s application of the Guidelines.)

A provision of the SRA, 18 U. S. C. § 3553(b)(1) (Supp. IV), commands that the court “shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4),” which in turn refers to the Guidelines. (Emphasis added.) The Court reasons that invalidating § 3553(b)(1) would render the Guidelines nonbinding and therefore con*315stitutional. Hence, it concludes, § 3553(b)(1) must fall on its face.1

The majority’s excision of § 3553(b)(1) is at once too narrow and too broad. It is too narrow in that it focuses only on § 3553(b)(1), when Booker’s unconstitutional sentence enhancements stemmed not from § 3553(b)(1) alone, but from the combination of § 3553(b)(1) and individual Guidelines. Specifically, in Booker’s case, the District Court increased the base offense level2 under these Guidelines:3 USSG § 1B1.3(a)(2), which instructs that the base offense level shall (for certain offenses) take into account all acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction”; §2D1.1(c)(2), which sets the offense level for 500g to 1.5kg of cocaine base at 36; and § 3C1.1, which provides for a two-level increase in the offense level for obstruction of justice. The court also implicitly applied § IB 1.1, which provides general instructions for applying the Guidelines, including determining the base offense level and applying appropriate adjustments; § 1B1.11(b)(2), *316which requires that “[t]he Guidelines Manual in effect on a particular date shall be applied in its entirety”; §6A1.3(b) p. s.,4 which provides that “[t]he court shall resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(c)(1), Fed. R. Grim. R”; and Rule 32(c)(1),5 which in turn provided:

“At the sentencing hearing, the court. . . must rule on any unresolved objections to the presentence report.... For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing.”

Section 3553(b)(1), the listed Guidelines and policy statement, and Rule 32(c)(1) are unconstitutional as applied to Booker. Under their authority, the judge, rather than the jury, found the facts necessary to increase Booker’s offense level pursuant to the listed provisions; the judge found those facts by a preponderance of the evidence, rather than beyond a reasonable doubt; and, on the basis of these findings, the judge imposed a sentence above the maximum legally permitted by the jury’s findings. Thus, in Booker’s case, the concerted action of § 3553(b)(1) and the operative Guidelines and the relevant Rule of Criminal Procedure resulted in un*317constitutional judicial factfinding. The majority cannot pinpoint § 3553(b)(1) alone as the source of the violation.

At the same time, the majority’s remedy is far too broad. We have before us only a single unconstitutional application of § 3553(b)(1) (and accompanying parts of the sentencing scheme). In such a case, facial invalidation is unprecedented. It is particularly inappropriate here, where it is evident that § 3553(b)(1) is entirely constitutional in numerous other applications. Fanfan’s case is an example: The judge applied the Guidelines to the extent supported by the jury’s findings. This application of § 3553(b)(1) was constitutional. To take another example, when the Government seeks a sentence within the Guidelines range supported by the jury’s verdict, applying § 3553(b)(1) to restrict the judge’s discretion to that Guidelines range is constitutional.

Section 3553(b)(1) is also constitutional when the Government seeks a sentence above the Guidelines range supported by the jury’s verdict, but proves the facts supporting the enhancements to a jury beyond a reasonable doubt. Section 3553(b)(1) provides that “the court shall impose a sentence of the kind, and within the range,” set by the Guidelines. (Emphasis added.) It says nothing, however, about the procedures the court must employ to determine the sentence it ultimately “impose[s].” It says nothing about whether, before imposing a sentence, the court may submit sentence-enhancing facts to the jury; and it says nothing about the standard of proof. Because it does not address at all the procedures for Guidelines sentencing proceedings, § 3553(b)(1) comfortably accommodates cases in which a court determines a defendant’s Guidelines range by way of jury factfinding or admissions rather than judicial factfinding.

The Constitution does not prohibit what § 3553(b)(1) accomplishes — binding district courts to the Guidelines. It prohibits allowing a judge alone to make a finding that raises the sentence beyond the sentence that could have lawfully *318been imposed by reference to facts found by the jury or admitted by the defendant. Many applications of § 3553(b)(1) suffer from no such vice. Yet the majority, by facially invalidating the statute, also invalidates these unobjectionable applications of the statute and thereby ignores the longstanding distinction between as-applied and facial challenges.

Just as there is no reason to strike § 3553(b)(1) on its face, there is likewise no basis for striking any Guideline at issue here on its face. Respondents have not established that USSG § lB1.3(a)(2), §2Dl.l(c)(2), §3C1.1, or § lBl.ll(b)(2) is invalid in all its applications, as Salerno requires. To the contrary, numerous applications of these provisions are valid. Such applications include cases in which the defendant admits the relevant facts or the jury finds the relevant facts beyond a reasonable doubt. Like § 3553(b)(1), USSG §§ lB1.3(a)(2), 2Dl.l(c)(2), 3C1.1, and lBl.ll(b)(2) say nothing about who must find the facts supporting enhancements, or what standard of proof the prosecution must satisfy. They simply attach effects to certain facts; they do not prescribe procedures for determining those facts. Even § 1B1.1, which provides instructions for applying the Guidelines, directs an order in which the various provisions are to be applied (“[determine the base offense level,” § lBl.l(b), then “[a]pply the adjustments,” § 1B1.1(c)), but says nothing about the specific procedures a sentencing court may employ in determining the base offense level and applying adjustments.

Moreover, there is no basis for facially invalidating §6A1.3 or Rule 32(c)(1). To be sure, §6A1.3(b) and Rule. 32(c)(1) prescribe procedure: They require the judge, acting alone, to resolve factual disputes. When Booker was sentenced, §6A1.3(b) provided that “[t]he court shall resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(c)(1), Fed. R. Crim. P.” At the time, the relevant portions of Rule 32(c)(1) provided:

*319“At the sentencing hearing, the court. . . must rule on any unresolved objections to the presentence report.... For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing.” (Emphasis added.)

The natural meaning of “the court . . . must rule” is that the judge, without the jury, must resolve factual disputes as necessary. This Rule of Criminal Procedure, as applied at Booker’s sentencing hearing, required the judge to make findings that increased Booker’s offense level beyond the Guidelines range authorized by the jury. The application of the Rule to Booker therefore was unconstitutional.

Nonetheless, the Rule has other valid applications. For example,, the Rule is valid when it requires the sentencing judge, without a jury, to resolve a factual dispute in order to decide where within the jury-authorized Guidelines range a defendant should be sentenced. The Rule is equally valid when it requires the judge to resolve a factual dispute in order to support a downward adjustment to the defendant’s offense level.6

Given the significant number of valid applications of all portions of the current sentencing scheme, we should not facially invalidate any particular section of the Federal Rules of Criminal Procedure, the Guidelines, or the SRA. Instead, we should invalidate only the application to Booker, *320at his previous sentencing hearing, of § 3553(b)(1); USSG §§ 1B 1.3(a)(2), 2D1.1(c)(2), 3C1.1, 1B1.1, 1B1.11(b)(2), and 6A1.3(b); and Rule 32(c)(1).

II

Invalidating § 3553(b)(1), the Guidelines listed above, and Rule 32(c)(1) as applied to Booker by the District Court leaves the question whether the scheme’s unconstitutional application to Booker can be severed from the scheme’s many other constitutional applications to defendants like Fanfan. Severability doctrine is grounded in a presumption that Congress intends statutes to have effect to the full extent the Constitution allows.7 Regan v. Time, Inc., 468 U. S. 641, 652 (1984); Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1959-1963 (1997) (hereinafter Vermeule). The severability issue may arise when a court strikes either a provision of a statute or an application of a provision. Severability of provisions is perhaps more visible than severability of applications in our case law. See, e.g., Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684-697 (1987) (severing unconstitutional legislative veto provision from other provisions).8

However, severability questions arise from unconstitutional applications of statutes as well. Congress often expressly provides for severance of unconstitutional applica*321tions.9 This Court has acknowledged the severability of applications in striking down some applications of a statute while leaving others standing. In Brockett, 472 U. S., at 504-507, the Court invalidated a state moral nuisance statute only insofar as it reached constitutionally protected materials, relying on the statute’s severability clause. And in Tennessee v. Garner, 471 U. S. 1, 4 (1985), the Court considered a state statute that authorized police to use “‘all the necessary means to effect [an] arrest.’” The Court held the statute unconstitutional insofar as it allowed the use of deadly force against an unarmed, nondangerous suspect; but it declined to invalidate the statute on its face, specifically noting that the statute could be applied constitutionally in other circumstances. Id., at 11-12. In Brockett and Garner, then, the Court recognized that the unconstitutional applications of the statutes were severable from the constitutional applications. The Court fashioned the remedy narrowly, in keeping with the usual presumption of severability.

*322I thus disagree with Justice Stevens that severability analysis does not apply. Ante, at 280-281, and n. 6 (opinion dissenting in part).10 I acknowledge that, as a general matter, the Court often disposes of as-applied challenges to a statute by simply invalidating particular applications of the statute, without saying anything at all about severability. See United States v. Grace, 461 U. S. 171, 183 (1983) (concluding that statute that prohibited carrying banners in the United States Supreme Court Building and on its grounds was unconstitutional as applied to the sidewalks surrounding the building); Edenfield v. Fane, 507 U. S. 761, 763 (1993) (striking down a solicitation ban on certified public accountants as applied “in the business context”); Treasury Employees, 513 U. S., at 501-503 (Rehnquist, C. J., joined by Scalia and Thomas, JJ., dissenting) (expressing view that injunction against honoraria ban should be tailored to unconstitutional applications).

Such decisions (in which the Court is silent as to applications not before it) might be viewed as having conducted an implicit severability analysis. See id., at 485-489 (O’Connor, J., concurring in judgment in part and dissenting in part). A better view is that the parties in those cases could have raised the issue of severability, but did not bother, because (as is often the case) there was no arguable reason to defeat the presumption of severability. The unconstitutional applications of the statute were fully independent of *323and severable from the remaining constitutional applications. Here, the question is squarely presented: The parties press it, and there is extraordinary reason to clarify the remedy, namely, that our decision potentially affects every sentencing by the federal courts.

I therefore proceed to the severability question — whether the unconstitutional application of § 3553(b)(1); USSG §§ 1B1.3, 2D 1.1(c)(2), 3C1.1, 1B1.1, 1B1.11(b)(2), and 6A1.3; and Rule 32(c)(1) to Booker is severable from the constitutional applications of these provisions. That is, even though we have invalidated the application of these provisions to Booker, may other defendants be sentenced pursuant to them? We presume that the unconstitutional application is severable. See, e. g., Regan, 468 U. S., at 653. This presumption is a manifestation of Salerno’s general rule that we should not strike a statute on its face unless it is invalid in all its applications. Unless the Legislature clearly would not have enacted the constitutional applications independently of the unconstitutional application, the Court leaves the constitutional applications standing. 468 U. S., at 653.

Here, the presumption of severability has not been overcome. In light of the significant number of constitutional applications of the scheme, it is far from clear that Congress would not have passed the SRA or allowed Rule 32 to take effect, or that the Commission would not have promulgated the particular Guidelines at issue, had either body known that the application of the scheme to Booker was unconstitutional. Ante, at 274-279 (Stevens, J., dissenting in part). As noted above, many applications of the Guidelines are constitutional: The defendant may admit the necessary facts; the Government may not seek enhancements beyond the offense level supported by the jury’s verdict; the judge may find facts supporting an enhancement but (taking advantage of the overlap in Guidelines ranges) sentence the defendant within the jury-authorized range; or the jury may find the necessary facts.

*324Certainly it is not obvious that Congress would have preferred the entirely discretionary system that the majority fashions. The text and structure of the SRA show that Congress meant the Guidelines to bind judges. One of the purposes of the Commission, as set forth in the SRA, was to

“provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.” 28 U. S. C. § 991(b)(1)(B) (emphasis added).

Accordingly, Congress made the Guidelines mandatory and closely circumscribed courts’ authority to depart from the Guidelines range. 18 U. S. C. § 3553(b)(1) (Supp. IV). Congress also limited appellate review of sentences imposed pursuant to the Guidelines to instances in which the sentence was (1) in violation of law, (2) a result of an incorrect application of the Guidelines, (3) outside the applicable Guidelines range, or (4) in the absence of an applicable Guideline, plainly unreasonable. § 3742(e) (2000 ed. and Supp. IV). Striking down § 3553(b)(1) and the Guidelines only as applied to Booker (and other defendants who have received unconstitutional enhancements) would leave in place the essential framework of the mandatory system Congress created. Applying the Guidelines in a constitutional fashion affords some uniformity; total discretion, none. To suggest, as Justice Breyer does, that a discretionary system would do otherwise, ante, at 249-253,264 (opinion of the Court), either supposes that the system is discretionary in name only or overlooks the very nature of discretion. Either assumption is implausible.

*325The majority says that retaining the SR A and the Guidelines “engraft[s]” a jury trial requirement onto the sentencing scheme. Ante, at 246 (opinion of Breyer, J.). I am, of course, aware that, though severability analysis may proceed “by striking out or disregarding words [or, here, applications] that are in the [challenged] section,” it may not proceed “by inserting [applications] that are not now there”; that would constitute legislation beyond our judicial power. United States v. Reese, 92 U. S. 214, 221 (1876). By allowing jury factfinding in some cases, however, we are no more “engraft-ing” a new requirement onto the statute than we do every time we invalidate a statute in some of the applications that the statute, on its face, appears to authorize. See, e. g., Brockett v. Spokane Arcades, Inc., 472 U. S. 491 (1985). I therefore do not find the “engraftment” label helpful as a means of judging the correctness of our severability analysis.

Granted, part of the severability inquiry is “whether the statute [as severed] will function in a manner consistent with the intent of Congress.” Alaska Airlines, Inc., 480 U. S., at 685. Applying the Guidelines constitutionally (for instance, when admissions or jury findings support all upward enhancements) might seem at first glance to violate this principle. But so would the Government’s proposal of applying the Guidelines as a whole to some defendants, but not others. The Court’s solution violates it even more clearly by creating a system that eliminates the mandatory nature of the Guidelines. In the end, nothing except the Guidelines as written will function in a manner perfectly consistent with the intent of Congress, and the Guidelines as written are unconstitutional in some applications. While all of the remedial possibilities are thus, in a sense, second best, the solution Justice Stevens and I would adopt does the least violence to the statutory and regulatory scheme.

* * *

*326I would hold that § 3553(b)(1), the provisions of the Guidelines discussed above, and Rule 32(c)(1) are unconstitutional as applied to Booker, but that the Government has not overcome the presumption of severability. Accordingly, the unconstitutional application of the scheme in Booker’s case is severable from the constitutional applications of the same scheme to other defendants. I respectfully dissent from the Court’s contrary conclusion.

Justice Breyer,

with whom The ChieF Justice, Justice O’Connor, and Justice Kennedy join,

dissenting in part.

The Court today applies its decisions in Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely v. Washington, 542 U. S. 296 (2004), to the Federal Sentencing Guidelines. The Court holds that the Sixth Amendment requires a jury, not a judge, to find sentencing facts — facts about the way in which an offender committed the crime — where those facts would move an offender from lower to higher Guidelines ranges. I disagree with the Court’s conclusion. I find nothing in the Sixth Amendment that forbids a sentencing judge to determine (as judges at sentencing havé traditionally determined) the manner or way in which the offender carried out the crime of which he was convicted.

The Court’s substantive holding rests upon its decisions in Apprendi, supra, and Blakely, supra. In Apprendi, the Court held that the Sixth Amendment requires juries to find beyond a reasonable doubt the existence of “any fact that increases the penalty for a crime” beyond “the prescribed statutory maximum.” 530 U. S., at 490 (emphasis added). In Blakely, the Court defined the latter term as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at 303 (emphasis in original). Today, the Court applies its Blakely definition to the Federal Sentencing Guidelines. I continue to disagree with the constitu*327tional analysis the Court set forth in Apprendi and in Blakely. But even were I to accept that analysis as valid, I would disagree with the way in which the Court applies it here.

I

The Chief Justice, Justice O’Connor, Justice Kennedy, and I have previously explained at length why we cannot accept the Court’s constitutional analysis. See Blakely, 542 U. S., at 314-326 (O’Connor, J., dissenting); id., at 326-328 (Kennedy, J., dissenting); id., at 328-347 (Breyer, J., dissenting); Harris v. United States, 536 U. S. 545, 549-550 (2002) (Kennedy, J., opinion of the Court); id., at 569-572 (Breyer, J., concurring in part and concurring in judgment); Apprendi, 530 U. S., at 523-554 (O’Connor, J., dissenting); id., at 555-556 (Breyer, J., dissenting); Jones v. United States, 526 U. S. 227, 264-272 (1999) (Kennedy, J., dissenting); Monge v. California, 524 U. S. 721, 728-729 (1998) (O’Connor, J., opinion of the Court); McMillan v. Pennsylvania, 477 U. S. 79, 86-91 (1986) (Rehnquist, C. J., opinion of the Court).

For one thing, we have found the Court’s historical argument unpersuasive. See Blakely, supra, at 323 (O’Connor, J., dissenting); Apprendi, supra, at 525-528 (O’Connor, J., dissenting). Indeed, the Court’s opinion today illustrates the historical mistake upon which its conclusions rest. The Court reiterates its view that the right of “ ‘trial by jury has been understood to require’ ” a jury trial for determination of “ ‘the truth of every accusation.”’ Ante, at 239 (opinion of Stevens, J.) (quoting Apprendi, supra, at 477; emphasis in original). This claim makes historical sense insofar as an “accusation” encompasses each factual element of the crime of which a defendant is accused. See, e. g., United States v. Gaudin, 515 U. S. 506, 509-510, 522-523 (1995). But the key question here is whether that word also encompasses sentencing facts — facts about the offender (say, recidivism) or about the way in which the offender committed the crime *328(say, the seriousness of the injury or the amount stolen) that help a sentencing judge determine a convicted offender’s specific sentence.

History does not support a “right to jury trial” in respect to sentencing facts. Traditionally, the law has distinguished between facts that are elements of crimes and facts that are relevant only to sentencing. See, e. g., Almendarez-Torres v. United States, 523 U. S. 224, 228 (1998); Witte v. United States, 515 U. S. 389, 399 (1995); United States v. Watts, 519 U. S. 148, 154 (1997) (per curiam); United States v. Dunnigan, 507 U. S. 87, 97 (1993); Mistretta v. United States, 488 U. S. 361, 396 (1989). Traditionally, federal law has looked to judges, not to juries, to resolve disputes about sentencing facts. See, e. g., Fed. Rule Crim. Proc. 32(a). Traditionally, those familiar with the criminal justice system have found separate, postconviction judge-run sentencing procedures sensible given the difficulty of obtaining relevant sentencing information before the moment of conviction. They have found those proceedings practical given the impracticality of the alternatives, say, two-stage (guilt, sentence) jury procedures. See, e. g., Judicial Conference of the United States, Committee on Defender Services, Subcommittee on Federal Death Penalty Cases, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation 9-10 (May 1998). And, despite the absence of jury determinations, they have found those proceedings fair as long as the convicted offender has the opportunity to contest a claimed fact before the judge, and as long as the sentence falls within the maximum of the range that a congressional statute specifically sets forth.

The administrative rules at issue here, Federal Sentencing Guidelines, focus on sentencing facts. They circumscribe a federal judge’s sentencing discretion in respect to such facts, but in doing so, they do not change the nature of those facts. The sentencing courts continue to use those facts, not to convict a person of a crime as a statute defines it, but to help *329determine an appropriate punishment. Thus, the Court cannot ground today’s holding in a “constitutional tradition assimilated from the common law” or in “the Magna Carta.” Ante, at 238-239 (opinion of Stevens, J.). It cannot look to the Framers for support, for they, too, enacted criminal statutes with indeterminate sentences, revealing their own understanding and acceptance of the judge’s factfinding role at sentencing. See Act of Apr. 30, 1790, ch. 9, 1 Stat. 112-118.

Indeed, it is difficult for the Court to find historical support other than in two recent cases, Apprendi and Blakely— cases that we, like lower courts, read not as confirming, but as confounding a pre-Apprendi, pre-Blakely legal tradition that stretches back a century or more. See, e. g., Williams v. New York, 337 U. S. 241, 246 (1949); cf., e. g., 375 F. 3d 508, 514 (CA7 2004) (case below) (“Blakely redefined ‘statutory maximum’”); United States v. Ameline, 376 F. 3d 967, 973 (CA9 2004) (“Blakely court worked a sea change in the body of sentencing law”); United States v. Pineiro, 377 F. 3d 464, 468-469 (CA5 2004) (same); see also United States v. Penaranda, 375 F. 3d 238, 243, n. 5 (CA2 2004) (same, collecting cases).

For another thing, applied in the federal context of mandatory Guidelines, the Court’s Sixth Amendment decision would risk unwieldy trials, a two-tier jury system, a return to judicial sentencing discretion, or the replacement of sentencing ranges with specific mandatory sentences. Cf. Blakely, 542 U. S., at 330-340 (Breyer, J., dissenting). The decision would pose a serious obstacle to congressional efforts to create a sentencing law that would mandate more similar treatment of like offenders, that would thereby diminish sentencing disparity, and that would consequently help to overcome irrational discrimination (including racial discrimination) in sentencing. See id,, at 315-316 (O’Connor, J., dissenting). These consequences would seem perverse when viewed through the lens of a Constitution that seeks a fair criminal process.

*330The upshot is that the Court’s Sixth Amendment decisions — Apprendi, Blakely, and today’s — deprive Congress and state legislatures of authority that is constitutionally theirs. Cf. Blakely, supra, at 326-328 (Kennedy, J., dissenting); Apprendi, 530 U. S., at 544-545 (O’Connor, J., dissenting); id., at 560-564 (Breyer, J., dissenting). The “sentencing function long has been a peculiarly shared responsibility among the Branches of Government.” Mis-tretta, supra, at 390. Congress’ share of this joint responsibility has long included not only the power to define crimes (by enacting statutes setting forth their factual elements) but also the power to specify sentences, whether by setting forth a range of individual-crime-related sentences (say, 0-to-10 years’ imprisonment for bank robbery) or by identifying sentencing factors that permit or require a judge to impose higher or lower sentences in particular circumstances. See, e. g., Almendarez-Torres, supra, at 228; McMillan, 477 U. S., at 85.

This last mentioned power is not absolute. As the Court suggested in McMillan, confirmed in Almendarez-Torres, and recognized but rejected in Blakely, one might read the Sixth Amendment as permitting “legislatures” to “establish legally essential [judge-determined] sentencing factors within [say, due process] limits.” Blakely, supra, at 307 (emphasis in original); cf. Almendarez-Torres, supra, at 228 (distinguishing between “elements” and “factors relevant only to ... sentencing,” and noting that, “[w]ithin limits, the question of which factors are which is normally a matter for Congress” (citation omitted)); McMillan, supra, at 88 (upholding a Pennsylvania statute in part because it gave “no impression of having been tailored to permit the [sentencing factor] finding to be a tail which wags the dog of the substantive offense”). But the power does give Congress a degree of freedom (within constraints of fairness) to choose to characterize a fact as a “sentencing factor,” relevant only to punishment, or as an element of a crime, relevant to guilt or *331innocence. The Court has rejected this approach apparently because it finds too difficult the judicial job of managing the “fairness” constraint, i. e., of determining when Congress has overreached. But the Court has nowhere asked, “compared to what?” Had it done so, it could not have found the practical difficulty it has mentioned, Blakely, supra, at 307-308, sufficient to justify the severe limits that its approach imposes upon Congress’ legislative authority.

These considerations — of history, of constitutionally relevant consequences, and of constitutional authority — have been more fully discussed in other opinions. See, e.g., Blakely, 542 U. S., at 314-326 (O’Connor, J., dissenting); id., at 327-328 (Kennedy, J., dissenting); id., at 328-347 (Breyer, J., dissenting); Harris, 536 U. S., at 549-550, 569-572; Apprendi, supra, at 523-554, 555-556; McMillan, supra, at 86-91. I need not elaborate them further.

II

Although the considerations just mentioned did not dissuade the Court from its holdings in Apprendi and Blakely, I should have hoped they would have dissuaded the Court from extending those holdings to the statute and Guidelines at issue here. See Sentencing Reform Act of 1984, as amended, 18 U. S. C. § 3551 et seq., 28 U. S. C. § 991 et seq.; United States Sentencing Commission, Guidelines Manual (Nov. 2003) (USSG). Legal logic does not require that extension, for there are key differences.

First, the Federal Guidelines are not statutes. The rules they set forth are administrative, not statutory, in nature. Members, not of Congress, but of a Judicial Branch Commission, wrote those rules. The rules do not “establis[h] minimum and maximum penalties” for individual crimes, but guide sentencing courts, only to a degree, “fetter[ing] the discretion of sentencing judges to do what they have done for generations — impose sentences within the broad limits established by Congress.” Mistretta, 488 U. S., at 396; see *332also USSG § 5G1.1; cf. Witte, 515 U. S., at 399 (explaining that the Guidelines range “still falls within the scope of the legislatively authorized penalty”). The rules do not create a new set of legislatively determined sentences so much as they reflect, organize, rationalize, and modify an old set of judicially determined pre-Guidelines sentences. See 28 U. S. C. § 994(a); USSG § 1A1.1, editorial note, §3, pp. 2-4 (describing the Commission’s empirical approach). Thus, the rules do not, in Apprendi’s words, set forth a “prescribed statutory maximum,” 530 U. S., at 490 (emphasis added), as the law has traditionally understood that phrase.

I concede that Blakely defined “prescribed statutory maximum” more broadly as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at 303 (emphasis deleted). But the Court need not read this language as extending the scope of Apprendi. Blakely purports to follow, not to extend, Apprendi. 542 U. S., at 301. And Blakely, like Apprendi, involved sentences embodied in a statute, not in administrative rules.

More importantly, there is less justification for applying an Apprendi-type constitutional rule where administrative guidelines, not statutes, are at issue. The Court applies its constitutional rule to statutes in part to avoid what Blakely sees as a serious problem, namely, a legislature’s ability to make of a particular fact an “element” .of a crime or a sentencing factor, at will. See ante, at 230 (opinion of Stevens, J.). That problem — that legislative temptation— is severely diminished when Commission Guidelines are at issue, for the Commission cannot create “elements” of crimes. It cannot write rules that “bind or regulate the primary conduct of the public.” Mistretta, supra, at 396. Rather, it must write rules that reflect what the law has traditionally understood as sentencing factors. That is to say, the Commission cannot switch between “elements” and “sentencing factors” at will because it cannot write sub*333stantive criminal statutes at all. See 28 U. S. C. § 994(a); cf. Blakely, supra, at 301-302, 306-307.

At the same time, to extend Blakely’s holding to administratively written sentencing rules risks added legal confusion and uncertainty. Read literally, Blakely’s language would include within Apprendi’s strictures a host of nonstat-utory sentencing determinations, including appellate court decisions delineating the limits of the legally “reasonable.” (Imagine an appellate opinion that says a sentence for ordinary robbery greater than five years is unreasonably long unless a special factor, such as possession of a gun, is present.) Indeed, read literally, Blakely’s holding would apply to a single judge’s determination of the factors that make a particular sentence disproportionate or proportionate. (Imagine a single judge setting forth, as a binding rule of law, the legal proposition about robbery sentences just mentioned.) Appellate courts’ efforts to define the limits of the “reasonable” of course would fall outside Blakely’s scope. But they would do so not because they escape Blakely’s literal language, but because they are not legislative efforts to create limits. Neither are the Guidelines legislative efforts. See Mistretta, supra, at 412.

Second, the sentencing statutes at issue in Blakely imposed absolute constraints on a judge’s sentencing discretion, while the federal sentencing statutes here at issue do not. As the Blakely Court emphasized, the Washington statutes authorized a higher-than-standard sentence on the basis of a factual finding only if the fact in question was a new fact— i. e., a fact that did not constitute an element of the crime of conviction or an element of any more serious or additional crime. 542 U. S., at 301-302, 306-307. A judge applying those statutes could not even consider, much less impose, an exceptional sentence, unless he found facts “‘other than those which are used in computing the standard range sentence for the offense.’” Id., at 299 (quoting State v. Gore, 143 Wash. 2d 288, 315-316, 21 P. 3d 262, 277 (2001)).

*334The federal sentencing statutes, however, offer a defendant no such fact-related assurance. As long as “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission,” 18 U. S. C. § 3553(b)(1) (Supp. IV), they permit a judge to depart from a Guidelines sentence based on facts that constitute elements of the crime (say, a bank robbery involving a threat to use a weapon, where the weapon in question is nerve gas). Whether departure-triggering circumstances exist in a particular case is a matter for a court, not for Congress, to decide.

Thus, as far as the federal statutes are concerned, the federal system, unlike the state system at issue in Blakely, provides a defendant with no guarantee that the jury’s finding of factual elements will result in a sentence lower than the statutory maximum. Rather, the statutes put a potential federal defendant on notice that a judge conceivably might sentence him anywhere within the range provided by statute — regardless of the applicable Guidelines range. See Witte, supra, at 399; see also Comment, Sixth Amendment— State Sentencing Guidelines, 118 Harv. L. Rev. 333, 339-340 (2004). Hence as a practical matter, they grant a potential federal defendant less assurance of a lower Guidelines sentence than did the state statutes at issue in Blakely.

These differences distinguish these cases from Apprendi and Blakely. They offer a principled basis for refusing to extend Apprendi's rule to these cases.

Ill

For these reasons, I respectfully dissent.

Justice Breyer

delivered the opinion of the Court

Subsection (a) of 8 U. S. C. § 1326 defines a crime. It forbids an alien who once was deported to return to the United States without special permission, and it authorizes a prison term of up to, but no more than, two years. Subsection (b)(2) of the same section authorizes a prison term of up to, but no more than, 20 years for “any alien described” in subsection (a), if the initial “deportation was subsequent to a conviction for commission of an aggravated felony.” The question before us is whether this latter provision defines a separate crime or simply authorizes an enhanced penalty. If the former, i. e., if it constitutes a separate crime, then the Government must write an indictment that mentions the additional element, namely, a prior aggravated felony conviction. If the latter, i. e., if the provision simply authorizes an enhanced sentence when an offender also has an earlier conviction, then the indictment need not mention that fact, for the fact of an earlier conviction is not an element of the present crime.

We conclude that the subsection is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution requires the *227Government to charge the factor that it mentions, an earlier conviction, in the indictment.

I

In September 1995, a federal grand jury returned an indictment charging petitioner, Hugo Almendarez-Torres, with having been “found in the United States ... after being deported” without the “permission and consent of the Attorney General” in “violation of... Section 1326.” App. 3. In December 1995, Almendarez-Torres entered a plea of guilty. At a hearing, before the District Court accepted his plea, Almendarez-Torres admitted that he had been deported, that he had later unlawfully returned to the United States, and that the earlier deportation had taken place “pursuant to” three earlier “convictions” for aggravated felonies. Id., at 10-14.

In March 1996, the District Court held a sentencing hearing. Almendarez-Torres pointed out that an indictment must set forth all the elements of a crime. See Hamling v. United States, 418 U. S. 87, 117 (1974). He added that his indictment had not mentioned his earlier aggravated felony convictions. And he argued that, consequently, the court could not sentence him to more than two years imprisonment, the maximum authorized for an offender without an earlier conviction. The District Court rejected this argument. It found applicable a Sentencing Guideline range of 77 to 96 months, see United States Sentencing Commission, Guidelines Manual §2L1.2; ch. 5, pt. A (sentencing table) (Nov. 1995) (USSG), and it imposed a sentence of 85 months’ imprisonment. App. 17.

On appeal the Fifth Circuit also rejected petitioner’s argument. 113 F. 3d 515 (1996). Like seven other Circuits, it has held that subsection (b)(2) is a penalty provision that simply permits a sentencing judge to impose a higher sentence when the unlawfully returning alien also has a record of prior convictions. United States v. Vasquez-Olvera, 999 *228F. 2d 943, 945-947 (CA5 1993); see United States v. Forbes, 16 F. 3d 1294, 1297-1300 (CA1 1994); United States v. DeLeon-Rodriguez, 70 F. 3d 764, 765-767 (CA3 1995); United States v. Crawford, 18 F. 3d 1173, 1176-1178 (CA4 1994); United States v. Munoz-Cerna, 47 F. 3d 207, 210, n. 6 (CA7 1995); United States v. Haggerty, 85 F. 3d 403, 404-405 (CA8 1996); United States v. Valdez, 103 F. 3d 95, 97-98 (CA10 1996); United States v. Palacios-Casquete, 55 F. 3d 557, 559-560 (CA11 1995); cf. United States v. Cole, 32 F. 3d 16, 18-19 (CA2 1994) (reaching same result with respect to 8 U. S. C. § 1326(b)(1)). The Ninth Circuit, however, has reached the opposite conclusion. United States v. Gonzalez-Medina, 976 F. 2d 570, 572 (1992) (subsection (b)(2) constitutes separate crime). We granted certiorari to resolve this difference among the Circuits.

II

An indictment must set forth each element of the crime that it charges. Hamling v. United States, supra, at 117. But it need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime. Within limits, see McMillan v. Pennsylvania, 477 U. S. 79, 84-91 (1986), the question of which factors are which is normally a matter for Congress. See Staples v. United States, 511 U. S. 600, 604 (1994) (definition of a criminal offense entrusted to the legislature, “ ‘particularly in the case of federal crimes, which are solely creatures of statute’ ”) (quoting Liparota v. United States, 471 U. S. 419, 424 (1985)). We therefore look to the statute before us and ask what Congress intended. Did it intend the factor that the statute mentions, the prior aggravated felony conviction, to help define a separate crime? Or did it intend the presence of an earlier conviction as a sentencing factor, a factor that a sentencing court might use to increase punishment? In answering this question, we look to the statute’s language, structure, subject matter, context, and history — factors that typically help courts determine a statute’s objectives and thereby illuminate its text. *229See, e. g., United States v. Wells, 519 U. S. 482, 490-492 (1997); Garrett v. United States, 471 U. S. 773, 779 (1985).

The directly relevant portions of the statute as it existed at the time of petitioner’s conviction included subsection (a), which Congress had enacted in 1952, and subsection (b), which Congress added in 1988. See 8 U. S. C. § 1326 (1952 ed.), as enacted June 27, 1952, §276, 66 Stat. 229; 8 U. S. C. §1326 (1988 ed.) (reflecting amendments made by § 7345(a), 102 Stat. 4471). We print those portions of text below:

Ҥ1326. Reentry of deported alien; criminal penalties for reentry of certain deported aliens.

“(a) Subject to subsection (b) of this section, any alien who—

“(1) has been ... deported ..., and thereafter “(2) enters ..., or is at any time found in, the United States [without the Attorney General’s consent or the legal equivalent],

“shall be fined under title 18, or imprisoned not more than 2 years, or both.

“(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection— “(1) whose deportation was subsequent to a conviction for commission of [certain misdemeanors], or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both; or

“(2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both.” 8 U. S. C. § 1326.

A

Although the statute’s language forces a close reading of the text, as well as consideration of other interpretive circumstances, see Wells, supra, we believe that the answer *230to the question presented — whether Congress intended subsection (b)(2) to set forth a sentencing factor or a separate crime — is reasonably clear.

At the outset, we note that the relevant statutory subject matter is recidivism. That subject matter — prior commission of a serious crime — is as typical a sentencing factor as one might imagine. See, e.g., USSG §§4A1.1, 4A1.2 (Nov. 1997) (requiring sentencing judge to consider an offender’s prior record in every case); 28 U. S. C. § 994(h) (instructing Commission to write Guidelines that increase sentences dramatically for serious recidivists); 18 U. S. C. § 924(e) (Armed Career Criminal Act of 1984) (imposing significantly higher sentence for felon-in-possession violation by serious recidivists); 21 U. S. C. §§841(b)(1)(A)-(D) (same for drug distribution); United States Sentencing Commission, 1996 Source-book of Federal Sentencing Statistics 35, 49 (for year ending Sept. 30, 1996, 20.3% of all federal cases involved offenders with substantial criminal records (criminal history categories IV-VI); 44.2% of drug eases involved offenders with prior convictions). Perhaps reflecting this fact, the lower courts have almost uniformly interpreted statutes (that authorize higher sentences for recidivists) as setting forth sentencing factors, not as creating new crimes (at least where the conduct, in the absence of the recidivism, is independently unlawful). E. g., United States v. McGatha, 891 F. 2d 1520, 1525 (CA11 1990) (18 U.S.C. § 924(e)); United States v. Arango-Montoya, 61 F. 3d 1331, 1339 (CA7 1995) (21 U. S. C. § 841(b)); United States v. Jackson, 824 F. 2d 21, 25, and n. 6 (CADC 1987). And we have found no statute that clearly makes recidivism an offense element in such circumstances. But cf. 18 U. S. C. § 922(g)(1) (prior felony conviction an element but conduct not otherwise unlawful).

With recidivism as the subject matter in mind, we turn to the statute’s language. In essence, subsection (a) says that “any alien” once “deported,” who.reappears in the United *231States'without appropriate permission, shall be fined or “imprisoned not more than 2 years.” Subsection (b) says that “any alien described in” subsection (a), “whose deportation was subsequent to a conviction” for a minor, or for a major, crime, may be subject to a much longer prison term.

The statute includes the words “subject to subsection (b)” at the beginning of subsection (a), and the words “Notwithstanding subsection (a)” at the beginning of subsection (b). If Congress intended subsection (b) to set forth substantive crimes, in respect to which subsection (a) would define a lesser included offense, see Blockburger v. United States, 284 U. S. 299, 304 (1932), what are those words doing there? The dissent believes that the words mean that the substantive crime defined by “subsection (a) is inapplicable to an alien covered by subsection (b),” post, at 264, hence the words represent an effort to say that a defendant cannot be punished for both substantive crimes. But that is not what the words say. Nor has Congress ever (to our knowledge) used these or similar words anywhere else in the federal criminal code for such a purpose. See, e. g., 18 U. S. C. § 113 (aggravated and simple assault); §§ 1111, 1112 (murder and manslaughter); § 2113 (bank robbery and incidental crimes); §§ 2241, 2242 (aggravated and simple sexual abuse). And this should come as no surprise since, for at least 60 years, the federal courts have presumed that Congress does not intend for a defendant to be cumulatively punished for two crimes where one crime is a lesser included offense of the other. See Whalen v. United States, 445 U. S. 684, 691-693 (1980); Blockburger, supra.

If, however, Congress intended subsection (b) to provide additional penalties, the mystery disappears. The words “subject to subsection (b)” and “Notwithstanding subsection (a)” then are neither obscure nor pointless. They say, without obscurity, that the crime set forth in subsection (a), which both defines a crime and sets forth a penalty, is “sub*232ject to” subsection (b)’s different penalties (where the alien is also a felon or aggravated felon). And (b)’s higher maximum penalties may apply to an offender who violates (a) “notwithstanding” the fact that (a) sets forth a lesser penalty for one who has committed the same substantive crime. Nor is it pointless to specify that (b)’s punishments, not (a)’s punishment, apply whenever an offender commits (a)’s offense in a manner set forth by (b).

Moreover, the circumstances of subsection (b)’s adoption support this reading of the statutory text. We have examined the language of the statute in 1988, when Congress added the provision here at issue. That original language does not help petitioner. In 1988, the statute read as follows (with the 1988 amendment underscored):

Ҥ 1326. Reentry of deported alien; criminal penalties for reentry of certain deported aliens.

“(a) Subject to subsection (b) of this section, any alien who—

“(1) has been ... deported ..., and thereafter

“(2) enters ..., or is at any time found in, the United States [without the Attorney General’s consent or the legal equivalent],

“shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both.

“(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—

“(1) whose deportation was subsequent to a conviction for commission of a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 5 years, or both; or

“(2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 15years, or both” 8 U. S. C. § 1326 (1988 ed.) (emphasis added).

*233Thus, at the time of the amendment, the operative language of subsection (a)’s ordinary reentering-alien provision said that a reentering alien “shall he guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000.” The 1988 amendment, subsection (b), by way of contrast, referred only to punishment — an increased punishment for the felon, or the aggravated felon, whom subsection (a) has “described.” Although one could read the language, “any alien described in [subsection (a)],” standing alone, as importing subsection (a)’s elements into new offenses defined in subsection (b), that reading seems both unusual and awkward when taken in context, for the reasons just given. Linguistically speaking, it seems more likely that Congress simply meant to “describe” an alien who, in the words of the 1988 statute, was “guilty of a felony” defined in subsection (a) and “convict[ed] thereof.”

As the dissent points out, post, at 265, Congress later struck from subsection (a) the words just quoted, and added in their place the words, “shall be fined under title 18, or imprisoned not more than two years.” See Immigration Act of 1990 (1990 Act), § 543(b)(8), 104 Stat. 5059. But this amendment was one of a series in the 1990 Act that uniformly updated and simplified the phrasing of various, disparate civil and criminal penalty provisions in the Immigration and Naturalization Act. See, e. g., 1990 Act, § 548(b)(1) (amending 8 U. S. C. § 1282(c)); § 543(b)(2)(C) (amending 8 U. S. C. § 1325); § 543(b)(4) (amending 8 U. S. C. § 1327); § 543(b)(5) (amending 8 U. S. C. § 1328). The section of the Act that contained the amendment is titled “Increase in Fine Levels; Authority of the INS to Collect Fines,” and the relevant subsection, simply “Criminal Fine Levels.” 1990 Act, § 543(b), 104 Stat. 5057, 5059. Although the 1990 amendment did have the effect of making the penalty provision in subsection (a) (which had remained unchanged since 1952) parallel with its counterparts in later enacted subsection (b), *234neither the amendment’s language, nor the legislative history of the 1990 Act, suggests that in this housekeeping measure, Congress intended to change, or to clarify, the fundamental relationship between the two subsections.

We also note that “the title of a statute and the heading of a section” are “tools available for the resolution of a doubt” about the meaning of a statute. Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947); see also INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 189 (1991). The title of the 1988 amendment is “Criminal penalties for reentry of certain deported aliens.” § 7345, 102 Stat. 4471 (emphasis added). A title that contains the word “penalties” more often, but certainly not always, see post, at 266-267, signals a provision that deals with penalties for a substantive crime.

In this instance the amendment’s title does not reflect careless, or mistaken, drafting, for the title is reinforced by a legislative history that speaks about, and only about, the creation of new penalties. See S. 973, 100th Cong., 1st Sess. (1987), 133 Cong. Rec. 8771 (1987) (original bill titled, “A bill to provide for additional criminal penalties for deported aliens who reenter the United States, and for other purposes”); 134 Cong. Rec. 27429 (1988) (section-by-seetion analysis referring to Senate bill as increasing penalties for unlawful reentry); id., at 27445 (remarks of Sen. D’Amato) (law would “increas [e] current penalties for illegal reentry after deportation”); id., at 27462 (remarks of Sen. Chiles) (law would “impose stiff penalties” against deported aliens previously convicted of drug offenses); 133 Cong. Rec. 28840-28841 (1987) (remarks of Rep. Smith) (corresponding House bill creates three-tier penalty structure). The history, to our knowledge, contains no language at all that indicates Congress intended to create a new substantive crime.

Finally, the contrary interpretation — a substantive criminal offense — risks unfairness. If subsection (b)(2) sets forth a separate crime, the Government would be required to *235prove to the jury that the defendant was previously deported “subsequent to a conviction for commission of an aggravated felony.” As this Court has long recognized, the introduction of evidence of a defendant’s prior crimes risks significant prejudice. See, e.g., Spencer v. Texas, 385 U. S. 554, 560 (1967) (evidence of prior crimes “is generally recognized to have potentiality for prejudice”). Even if a defendant’s stipulation were to keep the name and details of the previous offense from the jury, see Old Chief v. United States, 519 U. S. 172, 178-179 (1997), jurors would still learn, from the indictment, the judge, or the prosecutor, that the defendant had committed an aggravated felony. And, as we said last Term, “there can be no question that evidence of the . . . nature of the prior offense,” here, that it was “aggravated” or serious, “carries a risk of unfair prejudice to the defendant.” Id., at 185 (emphasis added). Like several lower courts, we do not believe, other things being equal, that Congress would have wanted to create this kind of unfairness in respect to facts that are almost never contested. See, e. g., United States v. Forbes, 16 F. 3d, at 1298-1300; United States v. Rumney, 867 F. 2d 714, 718-719 (CA1 1989); United States v. Brewer, 853 F. 2d 1319, 1324-1325 (CA6 1988) (en banc); United States v. Jackson, 824 F. 2d, at 25-26; Government of Virgin Islands v. Castillo, 550 F. 2d 850, 854 (CA3 1977).

In sum, we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.

B

We must also consider several additional arguments that have been or might be made for a contrary interpretation of the statute. First, one might try to derive a congressional intent to establish a separate crime from the magnitude of the increase in the maximum authorized sentence. The magnitude of the change that Congress made in 1988, however, proves little. That change — from a 2-year maximum to 5- and 15-year máximums — is well within the range *236set forth in other statutes that the lower courts have generally interpreted as providing for sentencing enhancements. Compare 8 U. S. C. § 1326 (1988 ed.) with 21 U. S. C. §§ 841(b)(1)(B) and (D) (distributing less than 50 kilograms of marijuana, maximum 5 years; distributing 100 or more kilograms of marijuana, 5 to 40 years), §§ 841(b)(1)(A) and (C) (distributing less than 100 grams of heroin, maximum 20 years; distributing 1 kilogram or more of heroin, maximum of life imprisonment), § 841(b)(1)(B) (distributing 500 grams or more of cocaine, 5 to 40 years; same, with prior drug felony conviction, 10 years to life); §962 (doubling maximum term for second and subsequent violations of drug importation laws); 18 U. S. C. § 844 (using or carrying explosive device during commission of felony, maximum 10 years; subsequent offense, maximum 20 years); § 2241(c) (sexual abuse of children, maximum life; second offense, mandatory life); § 2320(a) (trafficking in counterfeit goods, maximum 10 years; subsequent offense, maximum 20 years). Congress later amended the statute, increasing the máximums to 10 and to 20 years, respectively. "Violent Crime Control and Law Enforcement Act of 1994, §§ 130001(b)(1)(B) and (b)(2), 108 Stat. 2023. But nothing suggests that, in doing so, Congress intended to transform that statute’s basic nature. And the later limits are close to the range suggested by other statutes regardless.

Second, petitioner and the dissent point, in part, to statutory language that did not exist when petitioner was convicted in 1995. Petitioner, for example, points out that in 1996, Congress added two new subsections, (b)(3) and (b)(4), which, petitioner says, created new substantive crimes. See Antiterrorism and Effective Death Penalty Act of 1996, § 401(c), 110 Stat. 1267 (adding subsection (b)(3)); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 305(b), 110 Stat. 3009-606 to 3009-607 (adding subsection (b)(4)). Both petitioner and the dissent also refer to another 1996 statutory provision in which Congress used *237the word “offense” to refer to the subsection now before us. See IIRIRA, §834,110 Stat. 3009-635.

These later enacted laws, however, are beside the point. They do not declare the meaning of earlier law. Cf. Federal Housing Administration v. Darlington, Inc., 358 U. S. 84, 90 (1958). They do not seek to clarify an earlier enacted general term. Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969). They do not depend for their effectiveness upon clarification, or a change in the meaning of an earlier statute. Cf. Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U. S. 572, 595-596 (1980). They do not reflect any direct focus by Congress upon the meaning of the earlier enacted provisions. Cf. ibid.; Darlington, supra, at 86. Consequently, we do not find in them any forward looking legislative mandate, guidance, or direct suggestion about how courts should interpret the earlier provisions.

Regardless, it is not obvious that the two new subsections to which petitioner points create new crimes (a matter on which we express no view) nor, in adding them, did Congress do more than leave the legal question here at issue where it found it. The fact that Congress used a technical, crime-suggesting word — “offense”—eight years later in a different, and minor, statutory provision proves nothing — not least because it is more than offset by different words in the same later statute that suggest with greater force the exact opposite, namely, the precise interpretation of the relation of subsection (b) to subsection (a) that we adopt. See IIRIRA, § 321(e), 110 Stat. 3009-628 (stating that a new definition of “aggravated felony” applies “under" subsection (b) “only to violations” of subsection (a)).

Finally, petitioner and the dissent argue that the doctrine of “constitutional doubt” requires us to interpret subsection (b)(2) as setting forth a separate crime. As Justice Holmes said long ago: “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United *238 States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916) (citing United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909)); see also Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring). “This canon is followed out of inspect for Congress, which we assume legislates in the light of constitutional limitations.” Rust v. Sullivan, 500 U. S. 173, 191 (1991); see also FTC v. American Tobacco Co., 264 U. S. 298, 305-307 (1924). The doctrine seeks in part to minimize disagreement between the branches by preserving congressional enactments that might otherwise founder on constitutional objections. It is not designed to aggravate that friction by creating (through the power of precedent) statutes foreign to those Congress intended, simply through fear of a constitutional difficulty that, upon analysis, will evaporate. Thus, those who invoke the doctrine must believe that the alternative is a serious likelihood that the statute will be held unconstitutional. Only then will the doctrine serve its basic democratic function of maintaining a set of statutes that reflect, rather than distort, the policy choices that elected representatives have made. For similar reasons, the statute must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a “fair” one.

Unlike the dissent, we do not believe these conditions are met in the present case. The statutory language is somewhat complex. But after considering the matter in context, we believe the interpretative circumstances point significantly in one direction. More important, even if we were to assume that petitioner’s construction of the statute is “fairly possible,” Jin Fuey Moy, supra, at 401, the constitutional questions he raises, while requiring discussion, simply do not lead us to doubt gravely that Congress may authorize courts to impose longer sentences upon recidivists who commit a particular crime. The fact that we, unlike the dissent, do *239not gravely doubt the statute’s constitutionality in this respect is a crucial point. That is because the “constitutional doubt” doctrine does not apply mechanically whenever there arises a significant constitutional question the answer to which is not obvious. And precedent makes clear that the Court need not apply (for it has not always applied) the doctrine in circumstances similar to those here — where a constitutional question, while lacking an obvious answer, does not lead a majority gravely to doubt that the statute is constitutional. See, e. g., Rust, 500 U. S., at 190-191 (declining to apply doctrine although petitioner’s constitutional claims not “without some force”); id., at 204-207 (Blackmun, J., dissenting); United States v. Monsanto, 491 U. S. 600, 611 (1989); id., at 636 (Blackmun, J., dissenting); United States v. Locke, 471 U. S. 84, 95 (1985); id., at 120 (Stevens, J., dissenting).

HH HH b-H

Invoking several of the Court’s precedents, petitioner claims that the Constitution requires Congress to treat recidivism as an element of the offense — irrespective of Congress’ contrary intent. Moreover, petitioner says, that requirement carries with it three subsidiary requirements that the Constitution mandates in respect to ordinary, legislatively intended, elements of crimes. The indictment must state the “element.” See, e.g., Hamling v. United States, 418 U. S., at 117. The Government must prove that “element” to a jury. See, e. g., Duncan v. Louisiana, 391 U. S. 145, 149 (1968). And the Government must prove the “element” beyond a reasonable doubt. See, e.g., Patterson v. New York, 432 U. S. 197, 210 (1977). We cannot find sufficient support, however, in our precedents or elsewhere, for petitioner’s claim.

This Court has explicitly held that the Constitution’s 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.” *240 In re Winship, 397 U. S. 358, 364 (1970). But Winship, the ease in which the Court set forth this proposition of constitutional law, does not decide this case. It said that the Constitution entitles juveniles, like adults, to the benefit of proof beyond a reasonable doubt in respect to the elements of the crime. It did not consider whether, or when, the Constitution requires the Government to treat a particular fact as an element, i. e., as a “fact necessary to constitute the crime,” even where the crime-defining statute does not do so.

Mullaney v. Wilbur, 421 U. S. 684 (1975), provides petitioner with stronger support. The Court there struck down a state homicide statute under which the State presumed that all homicides were committed with “malice,” punishable by life imprisonment, unless the defendant proved that he had acted in the heat of passion. Id., at 688. The Court wrote that “if Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect” just by redefining “the elements that constituted] different crimes, characterising them as factors that bear solely on the extent of punishment.” Id., at 698. It simultaneously held that the prosecution must establish “beyond a reasonable doubt” the nonexistence of “heat of passion” — the fact that, under the State’s statutory scheme, distinguished a homicide punishable by a life sentence from a homicide punishable by a maximum of 20 years. Id., at 704. Read literally, this language, we concede, suggests that Congress cannot permit judges to increase a sentence in light of recidivism, or any other factor, not set forth in an indictment and proved to a jury beyond a reasonable doubt.

This Court’s later case, Patterson v. New York, supra, however, makes absolutely clear that such a reading of Mullaney is wrong. The Court, in Patterson, pointed out that the State in Mullaney made the critical fact — the absence of “heat of passion” — not simply a potential sentencing factor, but also a critical part of the definition of “malice afore*241thought,” which was itself in turn “part of” the statute’s definition of “homicide,” the crime in question. Patterson, 432 U. S., at 215-216. (The Maine Supreme Court, in defining the crime, had said that “malice” was “presumed” unless “rebutted” by the defendant’s showing of “heat of passion.” Id., at 216.) The Court found this circumstance extremely important. It said that Mullaney had considered (and held “impermissible”) the shifting of a burden of proof “with respect to a fact which the State deems so important that it must be either proved or presumed.” 432 U. S., at 215 (emphasis added). And the Court then held that similar burden shifting was permissible with respect to New York’s homicide-related sentencing factor “extreme emotional disturbance.” Id., at 205-206. That factor was not a factor that the state statute had deemed “so important” in relation to the crime that it must be either “proved or presumed.” Id., at 205-206, 215.

The upshot is that Mullaney's language, if read literally, suggests that the Constitution requires that most, if not all, sentencing factors be treated as elements. But Patterson suggests the exact opposite, namely, that the Constitution requires scarcely any sentencing factors to be treated in that way. The cases, taken together, cannot significantly help petitioner, for the statute here involves a sentencing factor— the prior commission of an aggravated felony — that is neither “presumed” to be present, nor need be “proved” to be present, in order to prove the commission of the relevant crime. See 8 U. S. C. § 1326(a) (defining offense elements). Indeed, as we have said, it involves one of the most frequently found factors that affects sentencing — recidivism.

Nor does Specht v. Patterson, 386 U. S. 605 (1967), which petitioner cites, provide significant additional help, for Specht was decided before Patterson (indeed before Win-ship); it did not consider the kind of matter here at issue; and, as this Court later noted, the Colorado defendant in Specht was “confronted with ‘a radically different situation’ *242from the usual sentencing proceeding.” McMillan v. Pennsylvania, 477 U. S., at 89. At most, petitioner might read all these cases, taken together, for the broad proposition that sometimes the Constitution does require (though sometimes it does not require) the State to treat a sentencing factor as an element. But we do not see how they can help petitioner more than that.

We turn then to the case upon which petitioner must primarily rely, McMillan v. Pennsylvania. The Court there considered a Pennsylvania statute that set forth a sentencing factor — “visibly possessing a firearm” — the presence of which required the judge to impose a minimum prison term of five years. The Court held that the Constitution did not require the State to treat the factor as an element of the crime. In so holding, the Court said that the State’s “link-ting] the ‘severity of punishment’ to ‘the presence or absence of an identified fact’ ” did not automatically make of that fact an “element.” Id., at 84 (quoting Patterson v. New York, supra, at 214). It said, citing Patterson, that “the state legislature’s definition of the elements of the offense is usually dispositive.” 477 U. S., at 85. It said that it would not “define precisely the constitutional limits” of a legislature’s power to define the elements of an offense. Id., at 86. And it held that, whatever those limits might be, the State had not exceeded them. Ibid. Petitioner must therefore concede that “firearm possession” (in respect to a mandatory minimum sentence) does not violate those limits. And he must argue that, nonetheless, “recidivism” (in respect to an authorized maximum) does violate those limits.

In assessing petitioner’s claim, we have examined McMillan to determine the various features of the case upon which the Court’s conclusion arguably turned. The McMillan Court pointed out: (1) that the statute plainly “does not transgress the limits expressly set out in Patterson,” ibid.; (2) that the defendant (unlike Mullaney’s defendant) did not face “‘a differential in sentencing ranging from a nominal *243fine to a mandatory life sentence,' ” 477 U. S., at 87 (quoting Mullaney, 421 U. S., at 700); (3) that the statute did not “alte[r] the maximum penalty for the crime” but “operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it,” 477 U. S., at 87-88; (4) that the statute did not “ereat[e] a separate offense calling for a separate penalty,” id., at 88; and (5) that the statute gave “no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense,” but, to the contrary, “simply took one factor that has always been considered by sentencing courts to bear on punishment... and dictated the precise weight to be given that factor,” id., at 88, 89-90.

This case resembles McMillan in respect to most of these factors. But it is different in respect to the third factor, for it does “alte[r] the maximum penalty for the crime,” id., at 87; and it also creates a wider range of appropriate punishments than did the statute in McMillan. We nonetheless conclude that these differences do not change the constitutional outcome for several basic reasons.

First, the sentencing factor at issue here — recidivism—is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. See, e. g., Parke v. Raley, 506 U. S. 20, 26 (1992) (Recidivism laws “have a long tradition in this country that dates back to colonial times” and currently are in effect in all 50 States); U. S. Dept, of Justice, Office of Justice Programs, Statutes Requiring the Use of Criminal History Record Information 17-41 (June 1991) (50-state survey); USSG §§ 4A1.1, 4A1.2 (Nov. 1997) (requiring sentencing court to consider defendant’s prior record in every ease). Consistent with this tradition, the Court said long ago that a State need not allege a defendant’s prior conviction in the indictment or information that alleges the elements of an underlying crime, even though the conviction was “necessary to bring the ease within the statute.” Graham v. West Virginia, 224 U. S. 616, 624 (1912). That con-*244elusion followed, the Court said, from “the distinct nature of the issue,” and the fact that recidivism “does not relate to the commission of the offense, but goes to the punishment only, and therefore . . . may be subsequently decided.” Id., at 629 (emphasis added). The Court has not deviated from this view. See Oyler v. Boles, 368 U. S. 448, 452 (1962) (due process does not require advance notice that trial for substantive offense will be followed by accusation that the defendant is a habitual offender); Parke, supra, at 27 (“[A] charge -under a recidivism statute does not state a separate offense, but goes to punishment only”). And, as we said before, supra, at 230, Congress, reflecting this tradition, has never, to our knowledge, made a defendant’s recidivism an element of an offense where the conduct proscribed is otherwise unlawful. See United States v. Jackson, 824 F. 2d 21, 25, and n. 6 (CADC 1987) (opinion of R. Ginsburg, J.) (referring to fact that few, if any, federal statutes make “prior criminal convictions ... elements of another criminal offense to be proved before the jury”). Although these precedents do not foreclose petitioner’s claim (because, for example, the state statute at issue in Graham and Oyler provided for a jury determination of disputed prior convictions), to hold that the Constitution requires that recidivism be deemed an “element” of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as “go[ing] to the punishment only.” Graham, supra, at 629.

Second, the major difference between this ease and McMillan consists of the circumstance that the sentencing factor at issue here (the prior conviction) triggers an increase in the maximum permissive sentence, while the sentencing factor at issue in McMillan triggered a mandatory minimum sentence. Yet that difference — between a permissive maximum and a mandatory minimum — does not systematically, or normally, work to the disadvantage of a criminal defendant. To the contrary, a statutory minimum binds a sentencing judge; a statutory maximum does not. A mandatory mini*245mum can, as Justice Stevens dissenting in McMillan pointed out, “mandate a minimum sentence of imprisonment more than twiee as severe as the maximum the trial judge would otherwise have imposed.” 477 U. S., at 95. It can eliminate a sentencing judge’s discretion in its entirety. See, e. g., 18 U. S. C. § 2241(c) (authorizing maximum term of life imprisonment for sexual abuse of children; mandating life imprisonment for second offense). And it can produce unfairly disproportionate impacts on certain kinds of offenders. See United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System 26-84 (Aug. 1991) (discussing “tariff” and “cliff” effects of mandatory mínimums). In sum, the risk of unfairness to a particular defendant is no less, and may well be greater, when a mandatory minimum sentence, rather than a permissive maximum sentence, is at issue.

Although McMillan pointed to a difference between mandatory mínimums and higher authorized máximums, it neither “rested its judgment” on that difference, nor “rejected” the above analysis, as the dissent contends, post, at 254. Rather, McMillan said that the petitioners’ argument in that ease would have had “more superficial appeal” if the sentencing fact “exposed them to greater or additional punishment.” 477 U. S., at 88 (emphasis added). For the reasons just given, and in light of the particular sentencing factor at issue in this ease — recidivism—we should take McMillan’s statement to mean no more than it said, and therefore not to make a determinative difference here.

Third, the statute’s broad permissive sentencing range does not itself create significantly greater unfairness. Judges (and parole boards) have typically exercised their discretion within broad statutory ranges. See, e. g., supra, at 232, 236 (statutory examples); National Institute of Justice, Sentencing Reform in the United States (Aug. 1985) (survey of sentencing laws in the 50 States); L. Friedman, Crime and Punishment in American History 159-163 (1993) *246(history of indeterminate sentencing). And the Sentencing Guidelines have recently sought to channel that discretion using “sentencing factors” which no one here claims that the Constitution thereby makes “elements” of a crime.

Finally, the remaining McMillan factors support the conclusion that Congress has the constitutional power to treat the feature before us — prior conviction of an aggravated felony' — as a sentencing factor for this particular offense (illegal entry after deportation). The relevant statutory provisions do not change a pre-existing definition of a well-established crime, nor is there any more reason here, than in McMillan, to think Congress intended to “evade” the Constitution, either by “presuming” guilt or “restructuring” the elements of an offense. Cf. McMillan, supra, at 86-87, 89-90.

For these reasons, we cannot find in McMillan (a case holding that the Constitution permits a legislature to require a longer sentence for gun possession) significant support for the proposition that the Constitution forbids a legislature to authorize a longer sentence for recidivism.

Petitioner makes two basic additional arguments in response. He points to what he calls a different “tradition”— that of courts having treated recidivism as an element of the related crime. See, e. g., Massey v. United States, 281 F. 293, 297-298 (CA8 1922); Singer v. United States, 278 F. 415, 420 (CA3 1922); People v. Sickles, 51 N. E. 288, 289 (N. Y. 1898); see also post, at 256-257 (citing authority). We do not find this claim convincing, however, for any such tradition is not uniform. See Spencer v. Texas, 385 U. S., at 566 (“The method for determining prior convictions varies . . . between jurisdictions affording a jury trial on this issue ... and those leaving that question to the court”); Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332, 347 (1965) (as of 1965, eight States’ recidivism statutes provide for determination of prior convictions by judge, not jury). Nor does it appear modern. Compare State v. Thorne, 129 Wash. 2d *247736, 776-784, 921 P. 2d 514, 533-538 (1996) (upholding state recidivism law against federal constitutional challenge), with State v. Furth, 5 Wash. 2d 1, 11-19, 104 P. 2d 925, 930-933 (1940). And it nowhere (to our knowledge) rested upon a federal constitutional guarantee. See, e. g., Massey v. United States, supra, at 297 (applying federal law, noting jury determination of prior offense applied “unless the statute designates a different mode of procedure”).

Petitioner also argues, in essence, that this Court, should simply adopt a rule that any significant increase in a statutory maximum sentence would trigger a constitutional “elements” requirement. We have explained why we believe the Constitution, as interpreted in McMillan and earlier eases, does not impose that requirement. We add that such a rule would seem anomalous in light of existing case law that permits a judge, father than a jury, to determine the existence of factors that can make a defendant eligible for the death penalty, a punishment far more severe than that faced by petitioner here. See Walton v. Arizona, 497 U. S. 639, 647 (1990) (rejecting capital defendant’s argument that every finding of fact underlying death sentence must be made by a jury); Hildwin v. Florida, 490 U. S. 638, 640-641 (1989) (per curiam) (judge may impose death penalty based on his finding of aggravating factor because such factor is not element of offense to be determined by jury); Spaziano v. Florida, 468 U. S. 447, 465 (1984) (same). And we would also find it difficult to reconcile any such rule with our precedent holding that the senteneing-related circumstances of recidivism are not part of the definition of the offense for double jeopardy purposes. Graham, 224 U. S., at 623-624.

For these reasons, we reject petitioner’s constitutional claim that his recidivism must be treated as an element of his offense.

IV

We mention one final point. Petitioner makes no separate, subsidiary, standard of proof claims with respect to his *248sentencing, perhaps because he admitted his recidivism at the time he pleaded guilty and would therefore find it difficult to show that the standard of proof could have made a difference to his ease. Accordingly, we express no view on whether some heightened standard of proof might apply to sentencing determinations that bear significantly on the severity of sentence. Cf. United States v. Watts, 519 U. S. 148, 156, and n. 2 (1997) (per curiam) (acknowledging, but not resolving, “divergence of opinion among the Circuits” as to proper standard for determining the existence of “relevant conduct” that would lead to an increase in sentence).

The judgment of the Court of Appeals is

Affirmed.

Justice Scalia,

with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

Because Hugo Roman Almendarez-Torres illegally reentered the United States after having been convicted of an aggravated felony, he was subject to a maximum possible sentence of 20 years’ imprisonment. See 8 U. S. C. § 1326(b)(2), Had he not been convicted of that felony, he would have been subject to a maximum of only two years. See 8 U. S. C. § 1326(a). The Court today holds that § 1326(b)(2) does not set forth a separate offense, and that conviction of a prior felony is merely a sentencing enhancement for the offense set forth in § 1326(a). This causes the Court to confront the difficult question whether the Constitution requires a fact which substantially increases the maximum permissible punishment for a crime to be treated as an element of that crime — to be charged in the indictment, and found beyond a reasonable doubt by a jury. Until the Court said so, it was far from obvious that the answer to this question was no; on the basis of our prior law, in fact, the answer was considerably doubtful.

In all our prior cases bearing upon the issue, however, we confronted a criminal statute or state-court criminal ruling *249that unambiguously relieved the prosecution of the burden of proving a critical fact to the jury beyond a reasonable doubt. In McMillan v. Pennsylvania, 477 U. S. 79 (1986), the statute provided that “ fvisibl[e] possession] [of] a firearm’ ” “‘shall not be an element of the crime,’” but shall be determined at sentencing by “ ‘[t]he court... by a preponderance of the evidence,’” id., at 81, n. 1 (quoting 42 Pa. Cons. Stat. § 9712 (1982)). In In re Winship, 397 U. S. 358 (1970), it provided that determinations of criminal action in juvenile cases “‘must be based on a preponderance of the evidence,’ ” id., at 360 (quoting N. Y. Family Court Act § 744(b)). In Patterson v. New York, 432 U. S. 197 (1977), the statute provided that extreme emotional disturbance “ ‘is an affirmative defense,’ ” id., at 198, n. 2 (quoting N. Y. Penal Law § 125.25 (McKinney 1975)). And in Mullaney v. Wilbur, 421 U. S. 684 (1975), Maine’s highest court had held that in murder cases malice aforethought was presumed and had to be negated by the defendant, id., at 689 (citing State v. Lafferty, 309 A. 2d 647 (1973)).

In contrast to the provisions involved in these cases, 8 U. S. C. § 1326 does not, on its face, place the constitutional issue before us: It does not say that subsection (b)(2) is merely a sentencing enhancement. The text of the statute supports, if it does not indeed demand, the conclusion that subsection (b)(2) is a separate offense that includes the violation described in subsection (a) but adds the additional element of prior felony conviction. I therefore do not reach the difficult constitutional issue in this case because I adopt, as I think oui’ eases require, that reasonable interpretation of § 1326 which avoids the problem. Illegal reentry simplic-iter (§ 1326(a)) and illegal reentry after conviction of an aggravated felony (§ 1326(b)(2)) are separate criminal offenses. Prior conviction of an aggravated felony being an element of the latter offense, it must be charged in the indictment. Since it was not, petitioner’s sentence must be set aside.

*250H

“[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909). This ‘‘cardinal principle,” which “has for so long been applied by this Court that it is beyond debate,” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988), requires merely a determination of serious constitutional doubt, and not a determination of unconstitutionality. That must be so, of course, for otherwise the rule would “mea[n] that our duty is to first decide that a statute is unconstitutional and then proceed to hold that such ruling was unnecessary because the statute is susceptible of a meaning, which causes it not to be repugnant to the Constitution.” United States ex rel. Attorney General v. Delaware & Hudson Co., supra, at 408. The Court contends that neither of the two conditions for application of this rule is present here: that the constitutional question is not doubtful, and that the statute is not susceptible of a construction that will avoid it. I shall address the former point first.1

*251That it is genuinely doubtful whether the Constitution permits a judge (rather than a jury) to determine by a mere preponderance of the evidence (rather than beyond a reasonable doubt) a fact that increases the maximum penalty to which a criminal defendant is subject is clear enough from our prior cases resolving questions on the margins of this one. In In re Winship, supra, we invalidated a New York statute under which the burden of proof in a juvenile delinquency proceeding was reduced to proof by a preponderance of the evidence. We held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” 397 U. S., at 364, and that the same protection extends to “a juvenile ... charged with an act which would constitute a crime if committed by an adult,” id., at 359.

Five years later, in Mullaney v. Wilbur, supra, we unanimously extended Winship’s protections to determinations that went not to a defendant’s guilt or innocence, but simply to the length of his sentence. We invalidated Maine’s homicide law, under which all intentional murders were presumed to be committed with malice aforethought (and, as such, were punishable by life imprisonment), unless the defendant could rebut this presumption with proof that he acted in the heat of passion (in which case the conviction would be reduced to manslaughter and the maximum sentence to 20 years). We acknowledged that “under Maine law these facts of intent [were] not general elements of the crime of felonious homieideC, but] [i]nstead, [bore] only on the appropriate punishment category.” 421 U. S., at 699. Nonetheless, we rejected this distinction between guilt and punishment. “[I]f Winship,” we said, “were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. ■ It would only be necessary to redefine the elements that constitute differ*252ent crimes, characterizing them as factors that bear solely on the extent of punishment.” Id., at 697-698.

In Patterson v. New York, we cut back on some of the broader implications of Mullaney. Although that case contained, we acknowledged, “some language... that ha[dj been understood as perhaps construing the Due Process Clause to require the prosecution to prove beyond a reasonable doubt any fact affecting 'the degree of criminal culpability/ ” we denied that we “intended]... such far-reaching effect.” 432 U. S., at 214-215, n. 15. Accordingly, we upheld in Patterson New York’s law casting upon the defendant the burden of proving as an “affirmative defense” to second-degree murder that he “'acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse,'” id., at 198-199, n. 2, which defense would reduce his crime to manslaughter. We explained that “[pjroof of the nonexistence of all affirmative defenses has never been constitutionally required,” id., at 210, and that the State need not “prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affeeting the degree of culpability or the severity of the punishment.” Id., at 207. We cautioned, however, that while our decision might “seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes[,]... there are obviously constitutional limits beyond which the States may not go in this regard.” Id., at 210.

Finally, and most recently, in McMillan v. Pennsylvania, 477 U. S., at 81, we upheld Pennsylvania’s Mandatory Minimum Sentencing Act, which prescribed a mandatory minimum sentence of five years upon a judge’s finding by a preponderance of the evidence that the defendant “visibly possessed a firearm” during the commission of certain enumerated offenses which all carried maximum sentences of *253more than five years. We observed that "we [had] never attempted to define precisely the constitutional limits noted in Patterson, i. e., the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases,” but explained that, whatever those limits, Pennsylvania’s law did not transgress them, id., at 86, primarily because it “neither alter[ed] the maximum penalty for the crime committed nor ereate[d] a separate offense calling for a separate penalty; it operate[d] solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm,” id., at 87-88.

The feebleness of the Court’s contention that here there is no serious constitutional doubt is evidenced by the degree to which it must ignore or distort the analysis of McMillan. As just described, that opinion emphasized — and emphasized repeatedly — that an increase of the maximum penalty was not at issue. Beyond that, it specifically acknowledged that the outcome might have been different (i. e., the statute might have been unconstitutional) if the maximum sentence had been affected:

“Petitioners’ claim that visible possession under the Pennsylvania statute is ‘really5 an element of the offenses for which they are being punished' — that Pennsylvania has in effect defined a new set of upgraded felonies — would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U. S. C. § 2118(d) (providing separate and greater punishment for bank robberies accomplished through ‘use of a dangerous weapon or device’), but it does not.” Id., at 88.

The opinion distinguished one of our own precedents on this very ground, noting that the Colorado Sex Offenders Act invalidated in Specht v. Patterson, 386 U. S. 605 (1967), increased a sex offender’s sentence from a 10-year maximum *254to an indefinite term up to and including life imprisonment. 477 U. S., at 88.

Despite all of that, the Court would have us believe that the present statute’s alteration of the maximum permissible sentence — which it acknowledges is “the major difference between this case and McMillan,” ante, at 244 — militates in favor of, rather than against, this statute’s constitutionality, because an increase of the minimum sentence (rather than the permissible maximum) is more disadvantageous to the defendant. Ibid. That is certainly an arguable position (it was argued, as the Court has the temerity to note, by the dissent in McMillan). But it is a position which McMillan not only rejected, but upon the converse of which McMillan rested its judgment.

In addition to inverting the consequence of this distinction (between statutes that prescribe a minimum sentence and those that increase the permissible maximum sentence) the Court seeks to minimize the importance of the distinction by characterizing it as merely one of five factors relied on in McMillan, and asserting that the other four factors here are the same. Ante, at 242-243. In fact, however, McMillan did not set forth any five-factor test; the Court selectively recruits “factors” from various parts of the discussion. Its first*factor, for example, that “‘the statute plainly does not transgress the limits expressly set.out in Patterson,’” ante, at 242, quoting McMillan, 477 U. S, at 86 — viz., that it does not “disear[d] the presumption of innocence” or “relieve the prosecution of its burden of proving guilt,” id., at 87 — merely narrows the issue to the one before the Court, rather than giving any clue to the resolution of that issue. It is no more a factor in solving the constitutional problem before us than is the observation that § 1326 is not an ex post facto law and does not effect an unreasonable search or seizure. The Court’s second, fourth, and part of its fifth “factors” are in fact all subparts of the crucial third factor (the one that is absent here), since they are all culled from the general dis*255cussion in McMillan of how the Pennsylvania statute simply limited a sentencing judge’s discretion. We said that, whereas in Mullaney the State had imposed “‘a differential in sentencing ranging from a nominal fine to a mandatory life sentence’” (the Court’s “second” faetor), Pennsylvania’s law “neither alter[ed] the maximum penalty for the crime committed [the Court’s‘third’ faetor] nor ereate[d] a separate offense calling for a separate penalty [the Court’s ‘fourth’ factor]; it operate[d] solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm [the Court’s ‘third’ faetor]. . . . The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense [part of the Court’s ‘fifth’ factor].” 477 U. S., at 87-88.

The Court’s recruitment of “factors” is, as I have said, selective. Omitted, for example, is McMillan’s statement that “petitioners do not contend that the particular faetor made relevant [by the statute]... has historically been treated ‘in the Anglo-American legal tradition’ as requiring proof beyond a reasonable doubt.” Id., at 90, quoting Patterson, 432 U. S., at 226. Petitioner does make such an assertion in the present case — correctly, as I shall discuss. But even with its selective harvesting, the Court is incorrect in its assertion that “most” of the “factors” it recites, ante, at 243 (and in its implication that all except the third of them) exist in the present ease as well. The second of them contrasted the consequence of the fact assumed in Mullaney (extension of the permissible sentence from as little as a nominal fine to as much as a mandatory life sentence) with the consequence of the fact at issue in McMillan (no extension of the permissible sentence at all, but merely a “limit[ation of] the sentencing court’s discretion in selecting a penalty within the range already available,” 477 U. S., at 88). The present case resembles Mullaney rather than McMillan in this regard, *256since the fact at issue increases the permissible sentence tenfold. And the only significant part of the fifth “factor”— that the statute in McMillan “'dictated the precise weight to be given [the statutory] factor,' ” ante, at 243, quoting McMillan, supra, at 89-90 — is likewise a point of difference and not of similarity.

But this parsing of various factors is really beside the point. No one can read our pre-McMillan eases, and especially Mullaney (whose limits were adverted to in Patterson but never precisely described), without entertaining a serious doubt as to whether the statute as interpreted by the Court in the present case is constitutional. And no one can read McMillan, our latest opinion on the point, without perceiving that the determinative element in our validation of the Pennsylvania statute was the fact that it merely limited the sentencing judge’s discretion within the range of penalty already available, rather than substantially increasing the available sentence. And even more than that: No one can read McMillan without learning that the Court was open to the argument that the Constitution requires a fact which does increase the available sentence to be treated as an element of the crime (such an argument, it said, would have “at least . . . superficial appeal,” 477 U. S., at 88). If all that were not enough, there must be added the fact that many State Supreme Courts have concluded that a prior conviction which increases maximum punishment must be treated as an element of the offense under either their State Constitutions, see, e. g., State v. McClay, 146 Me. 104, 112, 78 A. 2d 347, 352 (1951); Tuttle v. Commonwealth, 68 Mass. 505, 506 (1854) (prior conviction increasing maximum sentence must be set forth in indictment); State v. Furth, 5 Wash. 2d 1, 11-19, 104 P. 2d 925, 930-933 (1940); State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 98-99, 101 So. 228, 229 (1924); Roberson v. State, 362 P. 2d 1115, 1118-1119 (Okla. Crim. App. 1961), or as a matter of common law, see, e. g., People ex rel. Cosgriff v. Craig, 195 N. Y. 190, 194-195, 88 N. E. 38, 39 (1909); People *257v. McDonald, 233 Mich. 98, 102, 105, 206 N. W. 516, 518, 519 (1925); State v. Smith, 129 Iowa 709, 710-715, 106 N.W. 187, 188-189 (1906) (“By the uniform current of authority, the fact of the prior convictions is to be taken as part of the offense instantly charged, at least to the extent of aggravating it and authorizing an increased punishment”); State v. Pennye, 102 Ariz. 207, 208-209, 427 P. 2d 525, 526-527 (1967); State v. Waterhouse, 209 Ore. 424, 428-433, 307 P. 2d 327, 329-331 (1957); Robbins v. State, 219 Ark. 376, 380-381, 242 S. W. 2d 640, 643 (1951); State v. Eichler, 248 Iowa 1267, 1270-1273, 83 N. W. 2d 576, 577-579 (1957).2

In the end, the Court cannot credibly argue that the question whether a fact which increases maximum permissible punishment must be found by a jury beyond a reasonable doubt is an easy one. That, perhaps, is why the Court stresses, and stresses repeatedly, the limited subject matter that § 1326(b) addresses — recidivism. It even tries, with utter lack of logic, to limit its rejection of the fair reading of McMillan to recidivism cases. “For the reasons just given,” it says, “and in light of the particular sentencing factor at issue in this case — recidivism—we should take *258 McMillan’s statement [regarding the “superficial appeal” the defendant’s argument would have had if the factor at issue increased his maximum sentence] to mean no more than it said, and therefore not to make a determinative difference here.” Ante, at 245 (emphasis added). It is impossible to understand how McMillan could mean one thing in a later case where recidivism is at issue, and something else in a later ease where some other sentencing factor is at issue. One might say, of course, that recidivism should be an exception to the general rule set forth in McMillan — but that more forthright characterization would display how doubtful the constitutional question is in light of our prior case law.

In any event, there is no rational basis for making recidivism an exception. The Court is of the view that recidivism need not be proved to a jury beyond a reasonable doubt (a view that, as I shall discuss, is precisely contrary to the common-law tradition) because it “ ‘goes to the punishment only.’” It relies for this conclusion upon our opinion in Graham v. West Virginia, 224 U. S. 616 (1912). See ante, at 243, quoting Graham, supra, at 624; see also ante, at 247. The holding of Graham provides no support for the Court’s position. It upheld against due process and double jeopardy objections a state recidivism law under which a defendant’s prior convictions were charged and tried in a separate proceeding after he was convicted of the underlying offense. As the Court notes, ante, at 243, the prior convictions were not charged in the same indictment as the underlying offense; but they were charged in an “information” before the defendant was tried for the prior convictions, and, more importantly, the law explicitly preserved his right to a jury determination on the recidivism question. See Graham, supra, at 622-623; see also Oyler v. Boles, 368 U. S. 448, 453 (1962) (same). It is true, however, that if the basis for Graham’s holding were accepted, one would have to conclude that recidivism need not be tried to the jury and found beyond a reasonable doubt. The essence of Graham’s reason*259ing was that in the recidivism proceeding the defendant “was not held to answer for an offense,” 224 U. S., at 624, since the recidivism charge “ ‘goes to the punishment only/ ” ibid., quoting McDonald v. Massachusetts, 180 U. S. 311, 313 (1901).

But that basis for dispensing with the protections of jury trial and findings beyond a reasonable doubt was explicitly rejected in Mullaney, which accorded these protections to facts that were “not general elements of the crime of felonious homicide . . . [but bore] only on the appropriate punishment category,” 421 U. S., at 699. Whatever else Mulla-ney stands for, it certainly stands for the proposition that what Graham used as the line of demarcation for double jeopardy and some due process purposes (the matter “goes only to the punishment”) is not the line of demarcation for purposes of the right to jury trial and to proof beyond a reasonable doubt. So also does McMillan, which even while narrowing Mullaney made it very clear that the mere fact that a certain finding “goes only to the penalty” does not end the inquiry. The Court is certainly correct that the distinctive treatment of recidivism determinations for double jeopardy purposes takes some explaining; but it takes some explaining for the Court no less than for me. And the explanation assuredly is not (what the Court apparently suggests) that recidivism is never an element of the crime. It does much less violence to our jurisprudence, and to the traditional practice of requiring a jury finding of recidivism beyond a reasonable doubt, to explain Graham as a recidivism exception to the normal double jeopardy rule that conviction of a lesser included offense bars later trial for the greater erime. Our double jeopardy law, after all, is based upon traditional American and English practice, see United States v. Dixon, 509 U. S. 688, 704 (1993); United States v. Wilson, 420 U. S. 332, 339-344 (1975), and that practice has allowed recidivism to be charged and tried separately, see Spencer v. Texas, 385 U. S. 554, 566-567 (1967); Graham, supra, at 623, *260625-626, 631; McDonald, supra, at 312-313. It has not allowed recidivism to be determined by a judge as more likely than not.

While I have given many arguments supporting the position that the Constitution requires the recidivism finding in this ease to be made by a jury beyond a reasonable doubt, I do not endorse that position as necessarily correct. Indeed, that would defeat my whole purpose, which is to honor the practice of not deciding doubtfu.1 constitutional questions unnecessarily. What I have tried to establish — and all that I need to establish — is that on the basis of our jurisprudence to date, the answer to the constitutional question is not clear. It is the Court’s burden, on the other hand, to establish that its constitutional answer shines forth clearly from our eases. That burden simply cannot be sustained. I think it beyond question that there was, until today’s unnecessary resolution of the point, “serious doubt” whether the Constitution permits a defendant’s sentencing exposure to be increased tenfold on the basis of a fact that is not charged, tried to a jury, and found beyond a reasonable doubt. If the Court wishes to abandon the doctrine of constitutional doubt, it should do so forthrightly, rather than by declaring certainty on a point that is clouded in doubt.

II

The Court contends that the doctrine of constitutional doubt is also inapplicable because § 1326 is not fairly susceptible of the construction which avoids the constitutional problem — i e., the construction whereby subsection (b)(2) sets forth a separate criminal offense. Ante, at 238. The Court begins its statutory analysis not by examining the text of § 1326, but by demonstrating that the “subject matter [of the statute] — prior commission of a serious crime — is as typical a sentencing factor as one might imagine.” Ante, at 230. That is eminently demonstrable, sounds powerfully good, but in fact proves nothing at all. It is certainly true that a *261judge (whether or not bound by the Federal Sentencing Guidelines) is likely to sentence nearer the maximum permitted for the offense if the defendant is a repeat offender. But the same can be said of many, perhaps most, factors that are used to define aggravated offenses. For example, judges will “typically” sentence nearer the maximum that a statute allows if the crime of conviction is committed with a firearm, or in the course of another felony; but that in no way suggests that armed robbery and felony murder are sentencing enhancements rather than separate crimes.

The relevant question for present purposes is not whether prior felony conviction is “typically” used as a sentencing factor, but rather whether, in statutes that provide higher maximum sentences for crimes committed by convicted felons, prior conviction is “typically” treated as a mere sentence enhancement or rather as an element of a separate offense. The answer to that question is the latter. That was the rule at common law, and was the near-uniform practice among the States at the time of the most recent study I am aware of. See Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332, 333-334 (1965); Note, The Pleading and Proof of Prior Convictions in Habitual Criminal Prosecutions, 33 N. Y. U. L. Rev. 210, 215-216 (1958). At common law, the fact of prior convictions had to be charged in the same indictment charging the underlying crime, and submitted to the jury for determination along with that crime. See, e.g., Spencer v. Texas, supra, at 566; Massey v. United States, 281 F. 293, 297 (CA8 1922); Singer v. United States, 278 F. 415, 420 (CA3 1922); People v. Sickles, 156 N. Y. 541, 545, 51 N. E. 288, 289 (1898). While several States later altered this procedure by providing a separate proceeding for the determination of prior convictions, at least as late as 1965 all but eight retained the defendant’s right to a jury determination on this issue. See Note, 40 N. Y. U. L. Rev., at 333-334, 347. I am at a loss to explain the Court’s assertion that it has “found no statute that clearly makes recidivism an offense *262element” added to another crime, ante, at 230. There are many such.3

It is interesting that the Court drags the red herring of recidivism through both parts of its opinion — the “constitutional doubt” part and the “statutory interpretation” part alike. As just discussed, logic demonstrates that the nature of that charge (the fact that it is a “typical” sentencing factor) has nothing to do with what this statute means. And as discussed earlier, the text and reasoning of McMillan, and of the cases McMillan distinguishes, provide no basis for saying that recidivism is exempt from the Court’s clear acknowledgment that taking away from the jury facts that increase the maximum sentence is constitutionally questionable. One wonders what state courts, and lower federal courts, are supposed to do with today’s mysterious utterances. Are they to pursue logic, and conclude that all ambiguous statutes adding punishment for factors accompanying the principal offense are mere enhancements, or are they illogieally to give this special treatment only to recidivism? Are they to deem the reasoning of McMillan superseded for all eases, or does it remain an open and doubtful question, for all eases except those involving recidivism, whether statutory máximums can be increased without the benefit of jury trial? Whatever else one may say about today’s opinion, there is no doubt that it has brought to this area of the law more confusion than clarification.

Passing over the red herring, let me turn now to the statute at issue — §1326 as it stood when petitioner was con-*263vieted. The author of today’s opinion for the Court once agreed that the “language and structure” of this enactment “are subject to two plausible readings/’ one of them being that recidivism constitutes a separate offense. United States v. Forbes, 16 F. 3d 1294, 1298 (CA1 1994) (opinion of Coffin, J., joined by Breyer, C. J.).4 This would surely be enough to satisfy the- requirement expressed by Justice Holmes, see United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916), and approved by the Court, ante, at 237-238, that the constitutional-doubt-avoiding construction be “fairly possible.” Today, however, the Court relegates statutory language and structure to merely two of five “factors” that “help courts determine a statute’s objectives and thereby illuminate its text,” ante, at 228.

The statutory text reads, in relevant part, as follows:

“Reentry of deported alien; criminal penalties for reentry of certain deported aliens

“(a) Subject to subsection (b) of this section, any alien who [has been deported and thereafter reenters the United States]... shall be fined under title 18, or imprisoned not more than 2 years, or both.

“(b) Notwithstanding subsection (a) of this section, in the ease of any alien described in such subsection—

“(1) whose deportation was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both; or

“(2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien *264shall be fined under such title, imprisoned not more than 20 years, or both.” 8 U. S. C. § 1326(b).

One is struck at once by the parallel structure of subsections (a) and (b). Neither subsection says that the individual it describes “shall be guilty of a felony,” and both subsections say that the individuals they describe “shall be fined under title 18, or imprisoned not more than [2, 10, or 20] years.” If this suffices to define a substantive offense in subsection (a) (as all agree it does), it is hard to see why it would not define a substantive offense in each paragraph of subsection (b) as well. Cl, for example, 21 U. S. C. § 841, which has a subsection (a) entitled “Unlawful acts,” and a subsection (b) entitled “Penalties.”

The opening phrase of subsection (b) certainly does not indicate that what follows merely supplements or enhances the penalty provision of subsection (a); what follows is to apply “notwithstanding” all of subsection (a), 1 e., “in spite of” or “without prevention or obstruction from or by” subsection (a). See, e.g., Webster’s New International Dictionary 1669 (2d ed. 1949). The next phrase (“in the case of any alien described in . . . subsection [(a)]”) imports by reference the substantive acts attributed to the hypothetical alien (deportation and unauthorized reentry) in subsection (a). Significantly, this phrase does not apply subsection (b) to any alien “convicted under” subsection (a) — which is what one would expect if the provision was merely increasing the penalty for certain subsection (a) convictions. See, e. g., United States v. Davis, 801 F. 2d 754, 755-756 (CA5 1986) (noting that “predicat[ing] punishment upon conviction” of another offense is one of the “common indicia of sentence-enhancement provisions”). Instead, subsection (b) applies to an alien “described in” subsection (a) — one who has been deported and has reentered illegally. And finally, subsection (a)’s provision that it applies “[sjubject to subsection (b)” means that subsection (a) is inapplicable to an alien covered by subsection (b), just as subsection (b) applies “not*265withstanding” that the alien would otherwise be covered by-subsection (a).5

The Court relies on an earlier version of § 1826 to support its interpretation of the statute in its current form. Ante, at 232. While I agree that such statutory history is a legitimate tool of construction, the statutory history of §1326 does not support, but rather undermines, the Court’s interpretation. That earlier version contained a subsection (a) that, in addition to setting forth penalties (as did the sub-parts of subsection (b)), contained the phrase (which the subparts of subsection (b) did not) “shall be guilty of a felony, and upon conviction thereof....” With such a formulation, of course, it would be easier to conclude that subsection (a) defines the crime and sets forth the basic penalty, and subsection (b) sets forth merely penalty enhancements. But if that was what the additional language in subsection (a) of the 1988 statute connoted, then what was the elimination of that additional language (in the 1990 version of the statute at issue here) meant to achieve? See § 543(b)(3), 104 Stat. 5059. The more strongly the “shall be guilty of a felony” language suggests that subsection (b) of the 1988 statute contained only enhancements, the more strongly the otherwise inexplicable elimination of that language sug*266gests that subsection (b) of the 1990 statute was meant to be parallel with subsection (a) — i. e., that both subsections were meant to set forth not merely penalties but also offenses.6

After considering the subject matter and statutory language, the third factor the Court considers in arriving at its determination that this statute can only be read as a sentencing enhancement is the title of the 1988 amendment that added subsection (b)(2): “Criminal Penalties for Reentry of Certain Deported Aliens.” See § 7345, 102 Stat. 4471, cited ante, at 234. Of course, this title pertains to a subsection (b)(2) which, unlike the (b)(2) under which petitioner was convicted, was not parallel with the preceding subsection (a). But even disregarding that, the title of the amendment proves nothing at all. While “Criminal Penalties for Reentry” might normally be more suggestive of an enhancement than of a separate offense, there is good reason to believe it imports no such suggestion here. For the very next provision of the same enactment, which adjusts the substantive requirements for the crime of aiding and abetting the unlawful entry of an alien, is entitled “Criminal Penalties for Aiding or Assisting Certain Aliens to Enter the United States.” See § 7346, 102 Stat. 4471. Evidently, new substantive offenses that were penalized were simply entitled “Criminal Penalties” for the relevant offense. Moreover, *267the 1988 amendment kept the original title of § 1326 (“Reentry of Deported Alien”) intact, leaving it to apply to both subsection (a) and subsection (b). See § 7345, supra; § 276, 66 Stat. 229.

The Court’s fourth factor leading it to conclude that this statute cannot reasonably be construed as establishing substantive offenses is legislative history. See ante, at 234. It is, again, the legislative history of the provision as it existed in 1988, before subsection (a) was stripped of the language “shall be guilty of a felony,” thereby making subsections (a) and (b) parallel. Even so, it is of no help to the Court’s case. The stray statements that the Court culls from the Congressional Record prove only that the new subsection (b) was thought to increase penalties for unlawful reentry. But there is no dispute that it does that! The critical question is whether it does it by adding penalties to the subsection (a) offense, or by creating additional, more severely punished, offenses. That technical point is not alluded to in any of the remarks the Court recites.

The Court’s fifth and last argument in support of its interpretation of the statute is the contention that “the contrary interpretation . .. risks unfairness,” ibid., because it would require bringing the existence of the prior felony conviction to the attention of the jury. But it is also “unfair,” of course, to deprive the defendant of a jury determination (and a beyond-a-reasonable-doubt burden of proof) on the critical question of the prior conviction. This Court’s own assessment of which of those disadvantages is the greater can be of relevance here only insofar as we can presume that that perception would have been shared by the enacting Congress. We usually presume, however, not that an earlier Congress agreed with our current policy judgments, but rather that it agreed with the disposition provided by traditional practice or the common law. See United States v. Texas, 507 U. S. 529, 534 (1993); Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991); Norfolk Redevel *268 opment and Housing Authority v. Chesapeake & Potomac Telephone Co. of Va., 464 U. S. 30, 35 (1983); Morissette v. United States, 342 U. S. 246, 263 (1952). As noted earlier, the Court’s hostility to jury determination of prior convictions is quite simply at odds with the manner in which recidivism laws have historically been treated in this country.

Moreover, even if we were free to resolve this matter according to our current views of what is fair, the Court’s judgment that avoiding jury “infection” is more important than affording a jury verdict (beyond a reasonable doubt) does not seem to me sound. The Court is not correct, to begin with, that the fact of prior conviction is “almost never contested,” ante, at 235, particularly in unlawful-entry cases. That is clear from the very legislative history of the present statute. Senator Chiles explained that “identifying and prosecuting . . . illegal alien felons is a long and complex process” because “[i]t is not uncommon for an alien who has committed a certain felony to pay his bond and walk, only to be apprehended for a similar crime in the next county but with a new name and identification.” 133 Cong. Rec. 8771 (1987). He went on to describe two specific aliens, one from whom police “seized 3 passports issued to him in 3 different names, 11 drivers licenses, immigration cards and numerous firearms and stolen property,” and the other on whom immigration officials had “5 alien files ... with 13 aliases, different birth dates and different social security cards.” Id., at 8771, 8772. He said that “these aliens [were] not exceptions but rather common amongst the 100,000 illegal alien felons in the United States.” Id., at 8772. Representative Smith stated that aliens arrested for felonies “often are able to pay expensive bonds and disappear under a new identity often to reappear in court with a different name and a new offense. In some eases, they may return to their native lands and reenter the United States with new names and papers but committing the same crimes.” Id., at 28840. And on the other side of the ledger, I doubt whether “infection” of the jury *269with knowledge of the prior crime is a serious problem. See, e. g., Spencer, 385 U. S., at 561 (“The defendants’ interests [in keeping prejudicial prior convictions from the jury] are protected by limiting instructions and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence” (eitation omitted)); Old Chief v. United States, 519 U. S. 172, 191 (1997) (it is an abuse of discretion under Federal Rulé of Evidence 408 to disallow defendant’s stipulation to prior felony convictions where such convictions are an element of the offense); cf. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 30 (“In 1996, 98.2% of all Section 1326 defendants pleaded guilty”). If it is a problem, however, there are legislative and even judicial means for dealing with it, short of what today’s decision does: taking the matter away from the jury in all eases. See Note, 40 N. Y. U. L. Rev., at 333-334 (describing commonly used procedures under which defendant’s right to a jury is invoked only “[i]f [he] denies the existence of prior convictions or stands mute”); Spencer, supra, at 567 (describing the English rule, under which the indictment alleges both the substantive offense and prior conviction, but the jury is not charged on the prior conviction until after it convicts the defendant of the substantive offense).

In sum, I find none of the four nontextual factors relied upon by the Court to support its interpretation (“typicality” of recidivism as a sentencing factor; titles; legislative history; and risk of unfairness) persuasive. What does seem to me significant, however, is a related statutory provision, introduced by a 1996 amendment, which explicitly refers to subsection (b)(2) as setting forth “offenses.” See §334, 110 Stat. 3009-635 (instructing United States Sentencing Commission to amend sentencing guidelines “for offenses under . . . 1326(b)”). This later amendment can of course not cause subsection (b)(2) to have meant, at the time of petitioner’s conviction, something different from what it then *270said. But Congress's expressed understanding that subsection (b) creates separate offenses is surely evidence that it is “fairly possible” to read the provision that way.7

I emphasize (to conclude this part of the discussion) that “fairly possible” is all that needs to be established. The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one — the one the Court would adopt in any event. Such a standard would deprive the doctrine of all function. “Adopt the interpretation that avoids the constitutional doubt if that is the right one” produces precisely the same result as “adopt the right interpretation.” Rather, the doctrine of constitutional doubt comes into play when the statute is “susceptible of” the problem-avoiding interpretation, Delaware & Hudson Co., 213 U. S., at 408 — when that interpretation is reasonable, though not necessarily the best. I think it quite impossible to maintain that this standard is not met by the interpretation of subsection (b) which regards it as creating separate offenses.

* * *

For the foregoing reasons, I think we must interpret the statute before us here as establishing a separate offense rather than a sentence enhancement. It can be argued that, once the constitutional doubts that require this course have been resolved, statutes no less ambiguous than the one before us here will be interpretable as sentence enhancements, *271so that not much will have been achieved. That begs the question, of course, as to how the constitutional doubt will be resolved. Moreover, where the doctrine of constitutional doubt does not apply, the same result may be dictated by the rule of lenity, which would preserve rather than destroy the criminal defendant’s right to jury findings beyond a reasonable doubt. See, e. g., People ex rel. Cosgriff v. Craig, 195 N. Y., at 197, 88 N. E., at 40 (“It is unnecessary in this case to decide how great punishment the legislature may constitutionally authorize Courts of Special Sessions to impose on a conviction without a common-law jury. It is sufficient to say that in cases of doubtful construction or of conflicting statutory provisions, that interpretation should be given which best protects the rights of a person charged with an offense, to a trial according to the common law”). Whichever doctrine is applied for the purpose, it seems to me a sound principle that whenever Congress wishes a fact to increase the maximum sentence without altering the substantive offense, it must make that intention unambiguously clear. Accordingly, I would find that § 1826(b)(2) establishes a separate offense, and would reverse the judgment below.

Justice SCALIAdelivered the opinion of the Court.

Under the Armed Career Criminal Act of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a "violent felony," a term defined to include any felony that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). We must decide whether this part of the definition of a violent felony survives the Constitution's prohibition of vague criminal laws.

I

Federal law forbids certain people-such as convicted felons, persons committed to mental institutions, and drug users-to ship, possess, and receive firearms. § 922(g). In general, the law punishes violation of this ban by up to 10 years' imprisonment. § 924(a)(2). But if the violator has three or more earlier convictions for a "serious drug offense" or a "violent felony," the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life. § 924(e)(1); Johnson v. United States,559 U.S. 133, 136, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The Act defines "violent felony" as follows:

"any crime punishable by imprisonment for a term exceeding one year ... that-

"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious *2556potential risk of physical injury to another." § 924(e)(2)(B)(emphasis added).

The closing words of this definition, italicized above, have come to be known as the Act's residual clause. Since 2007, this Court has decided four cases attempting to discern its meaning. We have held that the residual clause (1) covers Florida's offense of attempted burglary, James v. United States,550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); (2) does notcover New Mexico's offense of driving under the influence, Begay v. United States,553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); (3) does not cover Illinois' offense of failure to report to a penal institution, Chambers v. United States,555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); and (4) does cover Indiana's offense of vehicular flight from a law-enforcement officer, Sykes v. United States,564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). In both Jamesand Sykes, the Court rejected suggestions by dissenting Justices that the residual clause violates the Constitution's prohibition of vague criminal laws. Compare James, 550 U.S., at 210, n. 6, 127 S.Ct. 1586, with id.,at 230, 127 S.Ct. 1586(SCALIA, J., dissenting); compare Sykes, 564 U.S., at ----, 131 S.Ct., at 2276-2277, with id.,at ----, 131 S.Ct., at 2286-2288(SCALIA, J., dissenting).

This case involves the application of the residual clause to another crime, Minnesota's offense of unlawful possession of a short-barreled shotgun. Petitioner Samuel Johnson is a felon with a long criminal record. In 2010, the Federal Bureau of Investigation began to monitor him because of his involvement in a white-supremacist organization that the Bureau suspected was planning to commit acts of terrorism. During the investigation, Johnson disclosed to undercover agents that he had manufactured explosives and that he planned to attack "the Mexican consulate" in Minnesota, "progressive bookstores," and " 'liberals.' " Revised Presentence Investigation in No. 0:12CR00104-001 (D. Minn.), p. 15, ¶ 16. Johnson showed the agents his AK-47 rifle, several semiautomatic firearms, and over 1,000 rounds of ammunition.

After his eventual arrest, Johnson pleaded guilty to being a felon in possession of a firearm in violation of § 922(g). The Government requested an enhanced sentence under the Armed Career Criminal Act. It argued that three of Johnson's previous offenses-including unlawful possession of a short-barreled shotgun, see Minn.Stat. § 609.67(2006)-qualified as violent felonies. The District Court agreed and sentenced Johnson to a 15-year prison term under the Act. The Court of Appeals affirmed. 526 Fed.Appx. 708 (C.A.8 2013)(per curiam). We granted certiorari to decide whether Minnesota's offense of unlawful possession of a short-barreled shotgun ranks as a violent felony under the residual clause. 572 U.S. ----, 134 S.Ct. 1871, 188 L.Ed.2d 910 (2014). We later asked the parties to present reargument addressing the compatibility of the residual clause with the Constitution's prohibition of vague criminal laws. 574 U.S. ----, 135 S.Ct. 939, 190 L.Ed.2d 718 (2015).

II

The Fifth Amendment provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." Our cases establish that the Government violates this guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.Kolender v. Lawson,461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The prohibition of vagueness *2557in criminal statutes "is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law," and a statute that flouts it "violates the first essential of due process." Connally v. General Constr. Co.,269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. United States v. Batchelder,442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).

In Taylor v. United States,495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Under the categorical approach, a court assesses whether a crime qualifies as a violent felony "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay, supra,at 141, 128 S.Ct. 1581.

Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in "the ordinary case," and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra,at 208, 127 S.Ct. 1586. The court's task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part of the definition of a violent felony that asks whether the crime "has as an elementthe use ... of physical force," the residual clause asks whether the crime "involves conduct" that presents too much risk of physical injury. What is more, the inclusion of burglary and extortion among the enumerated offenses preceding the residual clause confirms that the court's task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone. The act of making an extortionate demand or breaking and entering into someone's home does not, in and of itself, normally cause physical injury. Rather, risk of injury arises because the extortionist might engage in violence aftermaking his demand or because the burglar might confront a resident in the home afterbreaking and entering.

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.

A

Two features of the residual clause conspire to make it unconstitutionally vague. In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined "ordinary case" of a crime, not to real-world facts or statutory elements. How does one go about deciding what kind of conduct the "ordinary case" of a crime involves? "A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?" United States v. Mayer,560 F.3d 948, 952 (C.A.9 2009)(Kozinski, C.J., dissenting from denial of rehearing en banc). To take an example, does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence? Critically, picturing the criminal's behavior is not enough; as we have already discussed, assessing "potential risk" seemingly requires the judge to imagine how the idealized ordinary *2558case of the crime subsequently plays out. Jamesillustrates how speculative (and how detached from statutory elements) this enterprise can become. Explaining why attempted burglary poses a serious potential risk of physical injury, the Court said: "An armed would-be burglar may be spotted by a police officer, a private security guard, or a participant in a neighborhood watch program. Or a homeowner ... may give chase, and a violent encounter may ensue." 550 U.S., at 211, 127 S.Ct. 1586. The dissent, by contrast, asserted that any confrontation that occurs during an attempted burglary "is likely to consist of nothing more than the occupant's yelling 'Who's there?' from his window, and the burglar's running away." Id.,at 226, 127 S.Ct. 1586(opinion of SCALIA, J.). The residual clause offers no reliable way to choose between these competing accounts of what "ordinary" attempted burglary involves.

At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise "serious potential risk" standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction. By asking whether the crime "otherwiseinvolves conduct that presents a serious potential risk," moreover, the residual clause forces courts to interpret "serious potential risk" in light of the four enumerated crimes-burglary, arson, extortion, and crimes involving the use of explosives. These offenses are "far from clear in respect to the degree of risk each poses." Begay,553 U.S., at 143, 128 S.Ct. 1581. Does the ordinary burglar invade an occupied home by night or an unoccupied home by day? Does the typical extortionist threaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarrassing personal information? By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.

This Court has acknowledged that the failure of "persistent efforts ... to establish a standard" can provide evidence of vagueness. United States v. L. Cohen Grocery Co.,255 U.S. 81, 91, 41 S.Ct. 298, 65 L.Ed. 516 (1921). Here, this Court's repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy. Three of the Court's previous four decisions about the clause concentrated on the level of risk posed by the crime in question, though in each case we found it necessary to resort to a different ad hoc test to guide our inquiry. In James,we asked whether "the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses," namely completed burglary; we concluded that it was. 550 U.S., at 203, 127 S.Ct. 1586. That rule takes care of attempted burglary, but offers no help at all with respect to the vast majority of offenses, which have no apparent analog among the enumerated crimes. "Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion, or a crime involving use of explosives?"Id.,at 215, 127 S.Ct. 1586(SCALIA, J., dissenting).

Chambers,our next case to focus on risk, relied principally on a statistical report prepared by the Sentencing Commission to conclude that an offender who fails to report to prison is not "significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a 'serious potential risk of physical *2559injury.' " 555 U.S., at 128-129, 129 S.Ct. 687. So much for failure to report to prison, but what about the tens of thousands of federal and state crimes for which no comparable reports exist? And even those studies that are available might suffer from methodological flaws, be skewed toward rarer forms of the crime, or paint widely divergent pictures of the riskiness of the conduct that the crime involves. See Sykes,564 U.S., at ---- - ----, 131 S.Ct., at 2285-2287(SCALIA, J., dissenting); id.,at ----, n. 4, 131 S.Ct., at 2291, n. 4(KAGAN, J., dissenting).

Our most recent case, Sykes, also relied on statistics, though only to "confirm the commonsense conclusion that Indiana's vehicular flight crime is a violent felony." Id.,at ----, 131 S.Ct., at 2274(majority opinion). But common sense is a much less useful criterion than it sounds-as Sykesitself illustrates. The Indiana statute involved in that case covered everything from provoking a high-speed car chase to merely failing to stop immediately after seeing a police officer's signal. See id.,at ----, 131 S.Ct., at 2289-2290(KAGAN, J., dissenting). How does common sense help a federal court discern where the "ordinary case" of vehicular flight in Indiana lies along this spectrum? Common sense has not even produced a consistent conception of the degree of risk posed by each of the four enumerated crimes; there is no reason to expect it to fare any better with respect to thousands of unenumerated crimes. All in all, James,Chambers,and Sykesfailed to establish any generally applicable test that prevents the risk comparison required by the residual clause from devolving into guesswork and intuition.

The remaining case, Begay,which preceded Chambersand Sykes, took an entirely different approach. The Court held that in order to qualify as a violent felony under the residual clause, a crime must resemble the enumerated offenses "in kind as well as in degree of risk posed." 553 U.S., at 143, 128 S.Ct. 1581. The Court deemed drunk driving insufficiently similar to the listed crimes, because it typically does not involve "purposeful, violent, and aggressive conduct." Id.,at 144-145, 128 S.Ct. 1581(internal quotation marks omitted). Alas, Begaydid not succeed in bringing clarity to the meaning of the residual clause. It did not (and could not) eliminate the need to imagine the kind of conduct typically involved in a crime. In addition, the enumerated crimes are not much more similar to one another in kind than in degree of risk posed, and the concept of "aggressive conduct" is far from clear. Sykescriticized the "purposeful, violent, and aggressive" test as an "addition to the statutory text," explained that "levels of risk" would normally be dispositive, and confined Begayto "strict liability, negligence, and recklessness crimes." 564 U.S., at ---- - ----, 131 S.Ct., at 2275-2276.

The present case, our fifth about the meaning of the residual clause, opens a new front of uncertainty. When deciding whether unlawful possession of a short-barreled shotgun is a violent felony, do we confine our attention to the risk that the shotgun will go off by accident while in someone's possession? Or do we also consider the possibility that the person possessing the shotgun will later use it to commit a crime? The inclusion of burglary and extortion among the enumerated offenses suggests that a crime may qualify under the residual clause even if the physical injury is remote from the criminal act. But how remote is too remote? Once again, the residual clause yields no answers.

This Court is not the only one that has had trouble making sense of the residual *2560clause. The clause has "created numerous splits among the lower federal courts," where it has proved "nearly impossible to apply consistently." Chambers,555 U.S., at 133, 129 S.Ct. 687(ALITO, J., concurring in judgment). The most telling feature of the lower courts' decisions is not division about whether the residual clause covers this or that crime (even clear laws produce close cases); it is, rather, pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider. Some judges have concluded that deciding whether conspiracy is a violent felony requires evaluating only the dangers posed by the "simple act of agreeing [to commit a crime]," United States v. Whitson,597 F.3d 1218, 1222 (C.A.11 2010)(per curiam); others have also considered the probability that the agreement will be carried out, United States v. White,571 F.3d 365, 370-371 (C.A.4 2009). Some judges have assumed that the battery of a police officer (defined to include the slightest touching) could "explode into violence and result in physical injury," United States v. Williams,559 F.3d 1143, 1149 (C.A.10 2009); others have felt that it "do[es] a great disservice to law enforcement officers" to assume that they would "explod[e] into violence" rather than "rely on their training and experience to determine the best method of responding," United States v. Carthorne,726 F.3d 503, 514 (C.A.4 2013). Some judges considering whether statutory rape qualifies as a violent felony have concentrated on cases involving a perpetrator much older than the victim, United States v. Daye,571 F.3d 225, 230-231 (C.A.2 2009); others have tried to account for the possibility that "the perpetrator and the victim [might be] close in age," United States v. McDonald,592 F.3d 808, 815 (C.A.7 2010). Disagreements like these go well beyond disputes over matters of degree.

It has been said that the life of the law is experience. Nine years' experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but "their sum makes a task for us which at best could be only guesswork." United States v. Evans,333 U.S. 483, 495, 68 S.Ct. 634, 92 L.Ed. 823 (1948). Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process.

B

The Government and the dissent claim that there will be straightforward cases under the residual clause, because some crimes clearly pose a serious potential risk of physical injury to another. See post, at 2562 - 2563 (opinion of ALITO, J.). True enough, though we think many of the cases the Government and the dissent deem easy turn out not to be so easy after all. Consider just one of the Government's examples, Connecticut's offense of "rioting at a correctional institution." See United States v. Johnson,616 F.3d 85 (C.A.2 2010). That certainly sounds like a violent felony-until one realizes that Connecticut defines this offense to include taking part in "any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations" of the prison. Conn. Gen.Stat. § 53a-179b(a)(2012). Who is to say which the ordinary "disorder" most closely resembles-a full-fledged prison riot, a food-fight in the prison cafeteria, or a "passive and nonviolent [act] such as disregarding an order to move," Johnson,616 F.3d, at 95(Parker, J., dissenting)?

In all events, although statements in some of our opinions could be read to *2561suggest otherwise, our holdingssquarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp. For instance, we have deemed a law prohibiting grocers from charging an "unjust or unreasonable rate" void for vagueness-even though charging someone a thousand dollars for a pound of sugar would surely be unjust and unreasonable. L. Cohen Grocery Co.,255 U.S., at 89, 41 S.Ct. 298. We have similarly deemed void for vagueness a law prohibiting people on sidewalks from "conduct[ing] themselves in a manner annoying to persons passing by"-even though spitting in someone's face would surely be annoying. Coates v. Cincinnati,402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). These decisions refute any suggestion that the existence of someobviously risky crimes establishes the residual clause's constitutionality.

Resisting the force of these decisions, the dissent insists that "a statute is void for vagueness only if it is vague in all its applications." Post, at 2574. It claims that the prohibition of unjust or unreasonable rates in L. Cohen Grocerywas "vague in all applications," even though one can easily envision rates so high that they are unreasonable by any measure. Post, at 2582. It seems to us that the dissent's supposed requirement of vagueness in all applications is not a requirement at all, but a tautology: If we hold a statute to be vague, it is vague in all its applications (and never mind the reality). If the existence of some clearly unreasonable rates would not save the law in L. Cohen Grocery,why should the existence of some clearly risky crimes save the residual clause?

The Government and the dissent next point out that dozens of federal and state criminal laws use terms like "substantial risk," "grave risk," and "unreasonable risk," suggesting that to hold the residual clause unconstitutional is to place these provisions in constitutional doubt. See post,at 2558 - 2559. Not at all. Almost none of the cited laws links a phrase such as "substantial risk" to a confusing list of examples. "The phrase 'shades of red,' standing alone, does not generate confusion or unpredictability; but the phrase 'fire-engine red, light pink, maroon, navy blue,or colors that otherwise involve shades of red' assuredly does so." James,550 U.S., at 230, n. 7, 127 S.Ct. 1586(SCALIA, J., dissenting). More importantly, almost all of the cited laws require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as "substantial risk" to real-world conduct; "the law is full of instances where a man's fate depends on his estimating rightly ... some matter of degree," Nash v. United States,229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1913). The residual clause, however, requires application of the "serious potential risk" standard to an idealized ordinary case of the crime. Because "the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect," this abstract inquiry offers significantly less predictability than one "[t]hat deals with the actual, not with an imaginary condition other than the facts." International Harvester Co. of America v. Kentucky,234 U.S. 216, 223, 34 S.Ct. 853, 58 L.Ed. 1284 (1914).

Finally, the dissent urges us to save the residual clause from vagueness by interpreting it to refer to the risk posed by the particular conduct in which the defendant engaged, not the risk posed by the ordinary case of the defendant's crime.

*2562See post, at 2578 - 2580. In other words, the dissent suggests that we jettison for the residual clause (though not for the enumerated crimes) the categorical approach adopted in Taylor,see 495 U.S., at 599-602, 110 S.Ct. 2143, and reaffirmed in each of our four residual-clause cases, see James,550 U.S., at 202, 127 S.Ct. 1586; Begay,553 U.S., at 141, 128 S.Ct. 1581; Chambers,555 U.S., at 125, 129 S.Ct. 687; Sykes,564 U.S., ----, 131 S.Ct., at 2272-2273. We decline the dissent's invitation. In the first place, the Government has not asked us to abandon the categorical approach in residual-clause cases. In addition, Taylorhad good reasons to adopt the categorical approach, reasons that apply no less to the residual clause than to the enumerated crimes. Taylorexplained that the relevant part of the Armed Career Criminal Act "refers to 'a person who ... has three previous convictions' for-not a person who has committed-three previous violent felonies or drug offenses." 495 U.S., at 600, 110 S.Ct. 2143. This emphasis on convictions indicates that "Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Ibid. Tayloralso pointed out the utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction. For example, if the original conviction rested on a guilty plea, no record of the underlying facts may be available. "[T]he only plausible interpretation" of the law, therefore, requires use of the categorical approach. Id.,at 602, 110 S.Ct. 2143.

C

That brings us to stare decisis. This is the first case in which the Court has received briefing and heard argument from the parties about whether the residual clause is void for vagueness. In James,however, the Court stated in a footnote that it was "not persuaded by [the principal dissent's] suggestion ... that the residual provision is unconstitutionally vague." 550 U.S., at 210, n. 6, 127 S.Ct. 1586. In Sykes, the Court again rejected a dissenting opinion's claim of vagueness. 564 U.S., at ---- - ----, 131 S.Ct., at 2276-2277.

The doctrine of stare decisisallows us to revisit an earlier decision where experience with its application reveals that it is unworkable. Payne v. Tennessee,501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Experience is all the more instructive when the decision in question rejected a claim of unconstitutional vagueness. Unlike other judicial mistakes that need correction, the error of having rejected a vagueness challenge manifests itself precisely in subsequent judicial decisions: the inability of later opinions to impart the predictability that the earlier opinion forecast. Here, the experience of the federal courts leaves no doubt about the unavoidable uncertainty and arbitrariness of adjudication under the residual clause. Even after Sykestried to clarify the residual clause's meaning, the provision remains a "judicial morass that defies systemic solution," "a black hole of confusion and uncertainty" that frustrates any effort to impart "some sense of order and direction." United States v. Vann,660 F.3d 771, 787 (C.A.4 2011)(Agee, J., concurring).

This Court's cases make plain that even decisions rendered after full adversarial presentation may have to yield to the lessons of subsequent experience. See, e.g., United States v. Dixon,509 U.S. 688, 711, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Payne, 501 U.S., at 828-830, 111 S.Ct. 2597 (1991). But Jamesand Sykesopined about vagueness without full briefing *2563or argument on that issue-a circumstance that leaves us "less constrained to follow precedent," Hohn v. United States,524 U.S. 236, 251, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998). The brief discussions of vagueness in Jamesand Sykeshomed in on the imprecision of the phrase "serious potential risk"; neither opinion evaluated the uncertainty introduced by the need to evaluate the riskiness of an abstract ordinary case of a crime. 550 U.S., at 210, n. 6, 127 S.Ct. 1586, 564 U.S., at ----, 131 S.Ct., at 2276-2277. And departing from those decisions does not raise any concerns about upsetting private reliance interests.

Although it is a vital rule of judicial self-government, stare decisisdoes not matter for its own sake. It matters because it "promotes the evenhanded, predictable, and consistent development of legal principles." Payne, supra,at 827, 111 S.Ct. 2597. Decisions under the residual clause have proved to be anything but evenhanded, predictable, or consistent. Standing by Jamesand Sykeswould undermine, rather than promote, the goals that stare decisisis meant to serve.

* * *

We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings in Jamesand Sykesare overruled. Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.

We reverse the judgment of the Court of Appeals for the Eighth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice KENNEDY, concurring in the judgment.

In my view, and for the reasons well stated by Justice ALITO in dissent, the residual clause of the Armed Career Criminal Act is not unconstitutionally vague under the categorical approach or a record-based approach. On the assumption that the categorical approach ought to still control, and for the reasons given by Justice THOMAS in Part I of his opinion concurring in the judgment, Johnson's conviction for possession of a short-barreled shotgun does not qualify as a violent felony.

For these reasons, I concur in the judgment.

Justice THOMAS, concurring in the judgment.

I agree with the Court that Johnson's sentence cannot stand. But rather than use the Fifth Amendment's Due Process Clause to ify an Act of Congress, I would resolve this case on more ordinary grounds. Under conventional principles of interpretation and our precedents, the offense of unlawfully possessing a short-barreled shotgun does not constitute a "violent felony" under the residual clause of the Armed Career Criminal Act (ACCA).

The majority wants more. Not content to engage in the usual business of interpreting statutes, it holds this clause to be unconstitutionally vague, notwithstanding the fact that on four previous occasions we found it determinate enough for judicial application. As Justice ALITO explains, that decision cannot be reconciled with our precedents concerning the vagueness doctrine. See post, at 2580 - 2581 (dissenting opinion). But even if it were a closer case under those decisions, I would be wary of holding the residual clause to be unconstitutionally vague. Although I have joined the Court in applying our modern vagueness *2564doctrine in the past, see FCC v. Fox Television Stations, Inc., 567 U.S. ----, ---- - ----, 132 S.Ct. 2307, 2319-2320, 183 L.Ed.2d 234 (2012), I have become increasingly concerned about its origins and application. Simply put, our vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.

I

We could have easily disposed of this case without ifying ACCA's residual clause. Under ordinary principles of statutory interpretation, the crime of unlawfully possessing a short-barreled shotgun does not constitute a "violent felony" under ACCA. In relevant part, that Act defines a "violent felony" as a "crime punishable by imprisonment for a term exceeding one year" that either

"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).

The offense of unlawfully possessing a short-barreled shotgun neither satisfies the first clause of this definition nor falls within the enumerated offenses in the second. It therefore can constitute a violent felony only if it falls within ACCA's so-called "residual clause"-i.e.,if it "involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B)(ii).

To determine whether an offense falls within the residual clause, we consider "whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another." James v. United States,550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The specific crimes listed in § 924(e)(2)(B)(ii)-arson, extortion, burglary, and an offense involving the use of explosives-offer a "baseline against which to measure the degree of risk" a crime must present to fall within that clause. Id.,at 208, 127 S.Ct. 1586.Those offenses do not provide a high threshold, see id.,at 203, 207-208, 127 S.Ct. 1586, but the crime in question must still present a " 'serious' "-a " 'significant' or 'important' "-risk of physical injury to be deemed a violent felony, Begay v. United States,553 U.S. 137, 156, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)(ALITO, J., dissenting); accord, Chambers v. United States,555 U.S. 122, 128, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

To qualify as serious, the risk of injury generally must be closely related to the offense itself. Our precedents provide useful examples of the close relationship that must exist between the conduct of the offense and the risk presented. In Sykes v. United States,564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), for instance, we held that the offense of intentional vehicular flight constitutes a violent felony because that conduct always triggers a dangerous confrontation, id.,at ----, 131 S.Ct., at 2274. As we explained, vehicular flights "by definitional necessity occur when police are present" and are done "in defiance of their instructions ... with a vehicle that can be used in a way to cause serious potential risk of physical injury to another." Ibid.In James,we likewise held that attempted burglary offenses "requir[ing] an overt act directed toward the entry of a structure" are violent felonies because the underlying conduct often results in a dangerous confrontation. 550 U.S., at 204, 206, 127 S.Ct. 1586. But we distinguished those crimes from "the more *2565attenuated conduct encompassed by" attempt offenses "that c[an] be satisfied by preparatory conduct that does not pose the same risk of violent confrontation," such as " 'possessing burglary tools.' " Id.,at 205, 206, and n. 4, 127 S.Ct. 1586. At some point, in other words, the risk of injury from the crime may be too attenuated for the conviction to fall within the residual clause, such as when an additional, voluntary act (e.g.,the useof burglary tools to enter a structure) is necessary to bring about the risk of physical injury to another.

In light of the elements of and reported convictions for the unlawful possession of a short-barreled shotgun, this crime does not "involv[e] conduct that presents a serious potential risk of physical injury to another," § 924(e)(2)(B)(ii). The acts that form the basis of this offense are simply too remote from a risk of physical injury to fall within the residual clause.

Standing alone, the elements of this offense-(1) unlawfully (2) possessing (3) a short-barreled shotgun-do not describe inherently dangerous conduct. As a conceptual matter, "simple possession [of a firearm], even by a felon, takes place in a variety of ways (e.g.,in a closet, in a storeroom, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence." United States v. Doe,960 F.2d 221, 225 (C.A.1 1992). These weapons also can be stored in a manner posing a danger to no one, such as unloaded, disassembled, or locked away. By themselves, the elements of this offense indicate that the ordinary commission of this crime is far less risky than ACCA's enumerated offenses.

Reported convictions support the conclusion that mere possession of a short-barreled shotgun does not, in the ordinary case, pose a serious risk of injury to others. A few examples suffice. In one case, officers found the sawed-off shotgun locked inside a gun cabinet in an empty home. State v. Salyers,858 N.W.2d 156, 157-158 (Minn.2015). In another, the firearm was retrieved from the trunk of the defendant's car. State v. Ellenberger,543 N.W.2d 673, 674 (Minn.App.1996). In still another, the weapon was found missing a firing pin. State v. Johnson,171 Wis.2d 175, 178, 491 N.W.2d 110, 111 (App.1992). In these instances and others, the offense threatened no one.

The Government's theory for why this crime should nonetheless qualify as a "violent felony" is unpersuasive. Although it does not dispute that the unlawful possession of a short-barreled shotgun can occur in a nondangerous manner, the Government contends that this offense poses a serious risk of physical injury due to the connection between short-barreled shotguns and other serious crimes. As the Government explains, these firearms are "weapons not typically possessed by law-abiding citizens for lawful purposes," District of Columbia v. Heller,554 U.S. 570, 625, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), but are instead primarily intended for use in criminal activity. In light of that intended use, the Government reasons that the ordinary case of this possession offense will involve the useof a short-barreled shotgun in a serious crime, a scenario obviously posing a serious risk of physical injury.

But even assuming that those who unlawfully possess these weapons typically intend to use them in a serious crime, the risk that the Government identifies arises not from the act of possessing the weapon, but from the act of using it. Unlike attempted burglary (at least of the type at issue in James) or intentional vehicular flight-conduct that by itself often or always invites a dangerous confrontation-possession of a short-barreled shotgun poses a threat onlywhen an offender decides *2566to engage in additional, voluntary conduct that is not included in the elements of the crime. Until this weapon is assembled, loaded, or used, for example, it poses no risk of injury to others in and of itself. The risk of injury to others from mere possession of this firearm is too attenuated to treat this offense as a violent felony. I would reverse the Court of Appeals on that basis.

II

As the foregoing analysis demonstrates, ACCA's residual clause can be applied in a principled manner. One would have thought this proposition well established given that we have already decided four cases addressing this clause. The majority nonetheless concludes that the operation of this provision violates the Fifth Amendment's Due Process Clause.

Justice ALITO shows why that analysis is wrong under our precedents. See post, at 2580 - 2583 (dissenting opinion). But I have some concerns about our modern vagueness doctrine itself. Whether that doctrine is defensible under the original meaning of "due process of law" is a difficult question I leave for the another day, but the doctrine's history should prompt us at least to examine its constitutional underpinnings more closely before we use it to ify yet another duly enacted law.

A

We have become accustomed to using the Due Process Clauses to invalidate laws on the ground of "vagueness." The doctrine we have developed is quite sweeping: "A statute can be impermissibly vague ... if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" or "if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado,530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Using this framework, we have ified a wide range of enactments. We have struck down laws ranging from city ordinances, Papachristou v. Jacksonville,405 U.S. 156, 165-171, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), to Acts of Congress, United States v. L. Cohen Grocery Co.,255 U.S. 81, 89-93, 41 S.Ct. 298, 65 L.Ed. 516 (1921). We have struck down laws whether they are penal, Lanzetta v. New Jersey,306 U.S. 451, 452, 458, 59 S.Ct. 618, 83 L.Ed. 888 (1939), or not, Keyishian v. Board of Regents of Univ. of State of N. Y.,385 U.S. 589, 597-604, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).1We have struck down laws addressing subjects ranging from abortion, Colautti v. Franklin,439 U.S. 379, 390, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), and obscenity, Winters v. New York,333 U.S. 507, 517-520, 68 S.Ct. 665, 92 L.Ed. 840 (1948), to the minimum wage, Connally v. General Constr. Co.,269 U.S. 385, 390-395, 46 S.Ct. 126, 70 L.Ed. 322 (1926), and antitrust, Cline v. Frink Dairy Co.,274 U.S. 445, 453-465, 47 S.Ct. 681, 71 L.Ed. 1146 (1927). We have even struck down a *2567law using a term that has been used to describe criminal conduct in this country since before the Constitution was ratified.Chicago v. Morales,527 U.S. 41, 51, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)(invalidating a "loitering" law); see id.,at 113, and n. 10, 119 S.Ct. 1849(THOMAS, J., dissenting) (discussing a 1764 Georgia law requiring the apprehension of "all able bodied persons ... who shall be found loitering").

That we have repeatedly used a doctrine to invalidate laws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford,19 How. 393, 450-452, 15 L.Ed. 691 (1857)(stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in "due process of law" to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago,561 U.S. 742, 811, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010)(THOMAS, J., concurring in part and concurring in judgment) ("The one theme that links the Court's substantive due process precedents together is their lack of a guiding principle to distinguish 'fundamental' rights that warrant protection from nonfundamental rights that do not"). Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels.

1

The problem of vague penal statutes is nothing new. The notion that such laws may be void under the Constitution's Due Process Clauses, however, is a more recent development.

Before the end of the 19th century, courts addressed vagueness through a rule of strict construction of penal statutes, not a rule of constitutional law. This rule of construction-better known today as the rule of lenity-first emerged in 16th-century England in reaction to Parliament's practice of making large swaths of crimes capital offenses, though it did not gain broad acceptance until the following century. See Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749-751 (1935); see also 1 L. Radzinowicz, A History of English Criminal Law and Its Administration From 1750, pp. 10-11 (1948) (noting that some of the following crimes triggered the death penalty: "marking the edges of any current coin of the kingdom," "maliciously cutting any hop-binds growing on poles in any plantation of hops," and "being in the company of gypsies"). Courts relied on this rule of construction in refusing to apply vague capital-offense statutes to prosecutions before them. As an example of this rule, William Blackstone described a notable instance in which an English statute imposing the death penalty on anyone convicted of "stealing sheep, or other cattle" was "held to extend to nothing but mere sheep" as "th[e] general words, 'or other cattle,' [were] looked upon as much too loose to create a capital offence." 1 Commentaries on the Laws of England 88 (1765).2

Vague statutes surfaced on this side of the Atlantic as well. Shortly after the First Congress proposed the Bill of Rights, for instance, it passed a law providing *2568"[t]hat every person who shall attempt to trade with the Indian tribes, or be found in the Indian country with such merchandise in his possession as are usually vended to the Indians, without a license," must forfeit the offending goods. Act of July 22, 1790, ch. 33, § 3, 1 Stat. 137-138. At first glance, punishing the unlicensed possession of "merchandise ... usually vended to the Indians," ibid.,would seem far more likely to "invit [e] arbitrary enforcement," ante,at 2557, than does the residual clause.

But rather than strike down arguably vague laws under the Fifth Amendment Due Process Clause, antebellum American courts-like their English predecessors-simply refused to apply them in individual cases under the rule that penal statutes should be construed strictly. See, e.g.,United States v. Sharp,27 F.Cas. 1041 (No. 16,264) (C.C.Pa. 1815) (Washington, J.). In Sharp,for instance, several defendants charged with violating an Act rendering it a capital offense for "any seaman" to "make a revolt in [a] ship," Act of Apr. 30, 1790, § 8, 1 Stat. 114, objected that "the offence of making a revolt, [wa]s not sufficiently defined by this law, or by any other standard, to which reference could be safely made; to warrant the court in passing a sentence upon [them]." 27 F.Cas., at 1043. Justice Washington, riding circuit, apparently agreed, observing that the common definitions for the phrase "make a revolt" were "so multifarious, and so different" that he could not "avoid feeling a natural repugnance, to selecting from this mass of definitions, one, which may fix a crime upon these men, and that too of a capital nature." Ibid. Remarking that "[l]aws which create crimes, ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid," he refused to "recommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be." Ibid.

Such analysis does not mean that federal courts believed they had the power to invalidate vague penal laws as unconstitutional. Indeed, there is good evidence that courts at the time understood judicial review to consist "of a refusal to give a statute effect as operative law in resolving a case," a notion quite distinct from our modern practice of " 'strik[ing] down' legislation." Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 756 (2010). The process of refusing to apply such laws appeared to occur on a case-by-case basis. For instance, notwithstanding his doubts expressed in Sharp,Justice Washington, writing for this Court, later rejected the argument that lower courts could arrest a judgment under the same ship-revolt statute because it "does not define the offence of endeavouring to make a revolt." United States v. Kelly,11 Wheat. 417, 418, 6 L.Ed. 508 (1826). The Court explained that "it is ... competent to the Court to give a judicial definition" of "the offence of endeavouring to make a revolt," and that such definition "consists in the endeavour of the crew of a vessel, or any one or more of them, to overthrow the legitimate authority of her commander, with intent to remove him from his command, or against his will to take possession of the vessel by assuming the government and navigation of her, or by transferring their obedience from the lawful commander to some other person." Id.,at 418-419. In dealing with statutory indeterminacy, federal courts saw themselves engaged in construction, not judicial review as it is now understood.3

*25692

Although vagueness concerns played a role in the strict construction of penal statutes from early on, there is little indication that anyone before the late 19th century believed that courts had the power under the Due Process Clauses to ify statutes on that ground. Instead, our modern vagueness doctrine materialized after the rise of substantive due process. Following the ratification of the Fourteenth Amendment, corporations began to use that Amendment's Due Process Clause to challenge state laws that attached penalties to unauthorized commercial conduct. In addition to claiming that these laws violated their substantive due process rights, these litigants began-with some success-to contend that such laws were unconstitutionally indefinite. In one case, a railroad company challenged a Tennessee law authorizing penalties against any railroad that demanded "more than a just and reasonable compensation" or engaged in "unjust and unreasonable discrimination" in setting its rates. Louisville & Nashville R. Co. v. Railroad Comm'n of Tenn.,19 F. 679, 690 (C.C.M.D.Tenn.1884)(internal quotation marks deleted). Without specifying the constitutional authority for its holding, the Circuit Court concluded that "[n]o citizen ... can be constitutionally subjected to penalties and despoiled of his property, in a criminal or quasi criminal proceeding, under and by force of such indefinite legislation." Id.,at 693(emphasis deleted).

Justice Brewer-widely recognized as "a leading spokesman for 'substantized' due process," Gamer, Justice Brewer and Substantive Due Process: A Conservative Court Revisited, 18 Vand. L. Rev. 615, 627 (1965)-employed similar reasoning while riding circuit, though he did not identify the constitutional source of judicial authority to ify vague laws. In reviewing an Iowa law authorizing fines against railroads for charging more than a "reasonable and just" rate, Justice Brewer mentioned in dictum that "no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it." Chicago & N.W.R. Co. v. Dey,35 F. 866, 876 (C.C.S.D.Iowa 1888).

Constitutional vagueness challenges in this Court initially met with some resistance. Although the Court appeared to acknowledge the possibility of unconstitutionally indefinite enactments, it repeatedly rejected vagueness challenges to penal laws addressing railroad rates, Railroad Comm'n Cases,116 U.S. 307, 336-337, 6 S.Ct. 1191, 29 L.Ed. 636 (1886), liquor sales, Ohio ex rel. Lloyd v. Dollison,194 U.S. 445, 450-451, 24 S.Ct. 703, 48 L.Ed. 1062 (1904), and anticompetitive conduct, Nash v. United States,229 U.S. 373, 376-378, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); Waters-Pierce Oil Co. v. Texas (No. 1),212 U.S. 86, 108-111, 29 S.Ct. 220, 53 L.Ed. 417 (1909).

*2570In 1914, however, the Court ified a law on vagueness grounds under the Due Process Clause for the first time. In International Harvester Co. of America v. Kentucky,234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284 (1914), a tobacco company brought a Fourteenth Amendment challenge against several Kentucky antitrust laws that had been construed to render unlawful "any combination [made] ... for the purpose or with the effect of fixing a price that was greater or less than the real value of the article," id.,at 221, 34 S.Ct. 853. The company argued that by referring to "real value," the laws provided "no standard of conduct that it is possible to know." Ibid.The Court agreed. Id.,at 223-224, 34 S.Ct. 853. Although it did not specify in that case which portion of the Fourteenth Amendment served as the basis for its holding, ibid.,it explained in a related case that the lack of a knowable standard of conduct in the Kentucky statutes "violated the fundamental principles of justice embraced in the conception of due process of law." Collins v. Kentucky,234 U.S. 634, 638, 34 S.Ct. 924, 58 L.Ed. 1510 (1914).

3

Since that time, the Court's application of its vagueness doctrine has largely mirrored its application of substantive due process. During the Lochnerera, a period marked by the use of substantive due process to strike down economic regulations, e.g., Lochner v. New York,198 U.S. 45, 57, 25 S.Ct. 539, 49 L.Ed. 937 (1905), the Court frequently used the vagueness doctrine to invalidate economic regulations penalizing commercial activity.4Among the penal laws it found to be impermissibly vague were a state law regulating the production of crude oil, Champlin Refining Co. v. Corporation Comm'n of Okla.,286 U.S. 210, 242-243, 52 S.Ct. 559, 76 L.Ed. 1062 (1932), a state antitrust law, Cline,274 U.S., at 453-465, 47 S.Ct. 681, a state minimum-wage law, Connally,269 U.S., at 390-395, 46 S.Ct. 126, and a federal price-control statute, L. Cohen Grocery Co.,255 U.S., at 89-93, 41 S.Ct. 298.5

*2571Around the time the Court began shifting the focus of its substantive due process (and equal protection) jurisprudence from economic interests to "discrete and insular minorities," see United States v. Carolene Products Co.,304 U.S. 144, 153, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), the target of its vagueness doctrine changed as well. The Court began to use the vagueness doctrine to invalidate noneconomic regulations, such as state statutes penalizing obscenity, Winters,333 U.S., at 517-520, 68 S.Ct. 665, and membership in a gang, Lanzetta,306 U.S., at 458, 59 S.Ct. 618.

Successful vagueness challenges to regulations penalizing commercial conduct, by contrast, largely fell by the wayside. The Court, for instance, upheld a federal regulation punishing the knowing violation of an order instructing drivers transporting dangerous chemicals to " 'avoid, so far as practicable ... driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings,' " Boyce Motor Lines, Inc. v. United States,342 U.S. 337, 338-339, 343, 72 S.Ct. 329, 96 L.Ed. 367 (1952). And notwithstanding its earlier conclusion that an Oklahoma law requiring state employees and contractors to be paid " 'not less than the current rate of per diem wages in the locality where the work is performed' " was unconstitutionally vague, Connally, supra,at 393, 46 S.Ct. 126, the Court found sufficiently definite a federal law forbidding radio broadcasting companies from attempting to compel by threat or duress a licensee to hire " 'persons in excess of the number of employees needed by such licensee to perform actual services,' " United States v. Petrillo,332 U.S. 1, 3, 6-7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947).

In more recent times, the Court's substantive due process jurisprudence has focused on abortions, and our vagueness doctrine has played a correspondingly significant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade,410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), on the theory that laws prohibiting all abortions save for those done "for the purpose of saving the life of the mother" forced abortionists to guess when this exception would apply on penalty of conviction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116-118 (1988) (reprinting first draft of Roe). Roe,of course, turned out as a substantive due process opinion. See 410 U.S., at 164, 93 S.Ct. 705. But since then, the Court has repeatedly deployed the vagueness doctrine to ify even mild regulations of the abortion industry. See Akron v. Akron Center for Reproductive Health, Inc.,462 U.S. 416, 451-452, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983)(ifying law requiring " 'that the remains of the unborn child [be] disposed of in a humane and sanitary manner' ");Colautti,439 U.S., at 381, 99 S.Ct. 675(ifying law mandating abortionists adhere to a prescribed standard of care if "there is 'sufficient reason to believe that the fetus may be viable' ").6

*2572In one of our most recent decisions ifying a law on vagueness grounds, substantive due process was again lurking in the background. In Morales,a plurality of this Court insisted that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment," 527 U.S., at 53, 119 S.Ct. 1849, a conclusion that colored its analysis that an ordinance prohibiting loitering was unconstitutionally indeterminate, see id.,at 55, 119 S.Ct. 1849("When vagueness permeates the text of" a penal law "infring[ing] on constitutionally protected rights," "it is subject to facial attack").

I find this history unsettling. It has long been understood that one of the problems with holding a statute "void for 'indefiniteness' " is that " 'indefiniteness' ... is itself an indefinite concept," Winters, supra,at 524, 68 S.Ct. 665(Frankfurter, J., dissenting), and we as a Court have a bad habit of using indefinite concepts-especially ones rooted in "due process"-to invalidate democratically enacted laws.

B

It is also not clear that our vagueness doctrine can be reconciled with the original understanding of the term "due process of law." Our traditional justification for this doctrine has been the need for notice: "A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited." United States v. Williams,553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); accord, ante,at 2564. Presumably, that justification rests on the view expressed in Murray's Lessee v. Hoboken Land & Improvement Co.,18 How. 272, 15 L.Ed. 372 (1856), that "due process of law" constrains the legislative branch by guaranteeing "usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country," id.,at 277. That justification assumes further that providing "a person of ordinary intelligence [with] fair notice of what is prohibited," Williams, supra,at 304, 128 S.Ct. 1830, is one such usage or mode.7

To accept the vagueness doctrine as founded in our Constitution, then, one must reject the possibility "that the Due Process Clause requires only that our Government must proceed according to the 'law of the land'-that is, according to *2573written constitutional and statutory provisions," which may be all that the original meaning of this provision demands. Hamdi v. Rumsfeld,542 U.S. 507, 589, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)(THOMAS, J., dissenting) (some internal quotation marks omitted); accord, Turner v. Rogers,564 U.S. ----, ----, 131 S.Ct. 2507, 2521, 180 L.Ed.2d 452 (2011)(THOMAS, J., dissenting). Although Murray's Lesseestated the contrary, 18 How., at 276, a number of scholars and jurists have concluded that "considerable historical evidence supports the position that 'due process of law' was a separation-of-powers concept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law." D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, p. 272 (1985); see also, e.g., In re Winship,397 U.S. 358, 378-382, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)(Black, J., dissenting). Others have disagreed. See, e.g., Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1679 (2012)(arguing that, as originally understood, "the principle of due process" required, among other things, that "statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review").

I need not choose between these two understandings of "due process of law" in this case. Justice ALITO explains why the majority's decision is wrong even under our precedents. See post, at 2580 - 2583 (dissenting opinion). And more generally, I adhere to the view that " '[i]f any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face,' " Morales, supra,at 112, 119 S.Ct. 1849(THOMAS, J., dissenting), and there is no question that ACCA's residual clause meets that description, see ante,at 2568 (agreeing with the Government that "there will be straightforward cases under the residual clause").

* * *

I have no love for our residual clause jurisprudence: As I observed when we first got into this business, the Sixth Amendment problem with allowing district courts to conduct factfinding to determine whether an offense is a "violent felony" made our attempt to construe the residual clause " 'an unnecessary exercise.' " James,550 U.S., at 231, 127 S.Ct. 1586(THOMAS, J., dissenting). But the Court rejected my argument, choosing instead to begin that unnecessary exercise. I see no principled way that, four cases later, the Court can now declare that the residual clause has become too indeterminate to apply. Having damaged the residual clause through our misguided jurisprudence, we have no right to send this provision back to Congress and ask for a new one. I cannot join the Court in using the Due Process Clause to ify an Act of Congress that contains an unmistakable core of forbidden conduct, and I concur only in its judgment.

Justice ALITO, dissenting.

The Court is tired of the Armed Career Criminal Act of 1984 (ACCA) and in particular its residual clause. Anxious to rid our docket of bothersome residual clause cases, the Court is willing to do what it takes to get the job done. So brushing aside stare decisis, the Court holds that the residual clause is unconstitutionally vague even though we have twice rejected that very argument within the last eight years. The canons of interpretation get no greater respect. Inverting the canon that *2574a statute should be construed if possible to avoid unconstitutionality, the Court rejects a reasonable construction of the residual clause that would avoid any vagueness problems, preferring an alternative that the Court finds to be unconstitutionally vague. And the Court is not stopped by the well-established rule that a statute is void for vagueness only if it is vague in all its applications. While conceding that some applications of the residual clause are straightforward, the Court holds that the clause is now void in its entirety. The Court's determination to be done with residual clause cases, if not its fidelity to legal principles, is impressive.

I

A

Petitioner Samuel Johnson (unlike his famous namesake) has led a life of crime and violence. His presentence investigation report sets out a résumé of petty and serious crimes, beginning when he was 12 years old. Johnson's adult record includes convictions for, among other things, robbery, attempted robbery, illegal possession of a sawed-off shotgun, and a drug offense.

In 2010, the Federal Bureau of Investigation (FBI) began monitoring Johnson because of his involvement with the National Socialist Movement, a white-supremacist organization suspected of plotting acts of terrorism. In June of that year, Johnson left the group and formed his own radical organization, the Aryan Liberation Movement, which he planned to finance by counterfeiting United States currency. In the course of the Government's investigation, Johnson "disclosed to undercover FBI agents that he manufactured napalm, silencers, and other explosives for" his new organization. 526 Fed.Appx. 708, 709 (C.A.8 2013)(per curiam). He also showed the agents an AK-47 rifle, a semiautomatic rifle, a semiautomatic pistol, and a cache of approximately 1,100 rounds of ammunition. Later, Johnson told an undercover agent: "You know I'd love to assassinate some ... hoodrats as much as the next guy, but I think we really got to stick with high priority targets." Revised Presentence Investigation Report (PSR) ¶ 15. Among the top targets that he mentioned were "the Mexican consulate," "progressive bookstores," and individuals he viewed as "liberals." PSR ¶ 16.

In April 2012, Johnson was arrested, and he was subsequently indicted on four counts of possession of a firearm by a felon and two counts of possession of ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)and § 924(e). He pleaded guilty to one of the firearms counts, and the District Court sentenced him to the statutory minimum of 15 years' imprisonment under ACCA, based on his prior felony convictions for robbery, attempted robbery, and illegal possession of a sawed-off shotgun.

B

ACCA provides a mandatory minimum sentence for certain violations of § 922(g), which prohibits the shipment, transportation, or possession of firearms or ammunition by convicted felons, persons previously committed to a mental institution, and certain others. Federal law normally provides a maximum sentence of 10 years' imprisonment for such crimes. See § 924(a)(2). Under ACCA, however, if a defendant convicted under § 922(g)has three prior convictions "for a violent felony or a serious drug offense," the sentencing court must impose a sentence of at least 15 years' imprisonment. § 924(e)(1).

ACCA's definition of a "violent felony" has three parts. First, a felony qualifies if it "has as an element the use, attempted use, or threatened use of physical force *2575against the person of another." § 924(e)(2)(B)(i). Second, the Act specifically names four categories of qualifying felonies: burglary, arson, extortion, and offenses involving the use of explosives. See § 924(e)(2)(B)(ii). Third, the Act contains what we have called a "residual clause," which reaches any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Ibid.

The present case concerns the residual clause. The sole question raised in Johnson's certiorari petition was whether possession of a sawed-off shotgun under Minnesota law qualifies as a violent felony under that clause. Although Johnson argued in the lower courts that the residual clause is unconstitutionally vague, he did not renew that argument here. Nevertheless, after oral argument, the Court raised the question of vagueness on its own. The Court now holds that the residual clause is unconstitutionally vague in all its applications. I cannot agree.

II

I begin with stare decisis. Eight years ago in James v. United States,550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), Justice SCALIA, the author of today's opinion for the Court, fired an opening shot at the residual clause. In dissent, he suggested that the residual clause is void for vagueness. Id., at 230, 127 S.Ct. 1586. The Court held otherwise, explaining that the standard in the residual clause "is not so indefinite as to prevent an ordinary person from understanding" its scope. Id., at 210, n. 6, 127 S.Ct. 1586.

Four years later, in Sykes v. United States,564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), Justice SCALIA fired another round. Dissenting once again, he argued that the residual clause is void for vagueness and rehearsed the same basic arguments that the Court now adopts. See id.,at ---- - ----, 131 S.Ct., at 2273-2274; see also Derby v. United States,564 U.S. ----, ---- - ----, 131 S.Ct. 2858, 2859-2860, 180 L.Ed.2d 904 (2011)(SCALIA, J., dissenting from denial of certiorari). As in James,the Court rejected his arguments. See Sykes,564 U.S., at ----, 131 S.Ct., at 2276-2277. In fact, Justice SCALIA was the onlyMember of the SykesCourt who took the position that the residual clause could not be intelligibly applied to the offense at issue. The opinion of the Court, which five Justices joined, expressly held that the residual clause "states an intelligible principle and provides guidance that allows a person to 'conform his or her conduct to the law.' " Id.,at ---- - ----, 131 S.Ct., at 2277(quoting Chicago v. Morales,527 U.S. 41, 58, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)(plurality opinion)). Justice THOMAS's concurrence, while disagreeing in part with the Court's interpretation of the residual clause, did not question its constitutionality. See Sykes,564 U.S., at ----, 131 S.Ct., at ---- (opinion concurring in judgment). And Justice KAGAN's dissent, which Justice GINSBURG joined, argued that a proper application of the provision required a different result. See id.,at ----, 131 S.Ct., at ----. Thus, eight Members of the Court found the statute capable of principled application.

It is, of course, true that "[s]tare decisisis not an inexorable command." Payne v. Tennessee,501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). But neither is it an empty Latin phrase. There must be good reasons for overruling a precedent, and there is none here. Nothing has changed since our decisions in Jamesand Sykes-nothing, that is, except the Court's weariness with ACCA cases.

Reprising an argument that Justice SCALIA made to no avail in *2576Sykes, supra,at ----, 131 S.Ct., at 2287(dissenting opinion), the Court reasons that the residual clause must be unconstitutionally vague because we have had trouble settling on an interpretation. See ante,at 2558 - 2559. But disagreement about the meaning and application of the clause is not new. We were divided in Jamesand in Sykesand in our intervening decisions in Begay v. United States,553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). And that pattern is not unique to ACCA; we have been unable to come to an agreement on many recurring legal questions. The Confrontation Clause is one example that comes readily to mind. See, e.g., Williams v. Illinois,567 U.S. ----, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012); Bullcoming v. New Mexico,564 U.S. ----, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); Melendez-Diaz v. Massachusetts,557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Our disagreements about the meaning of that provision do not prove that the Confrontation Clause has no ascertainable meaning. Likewise, our disagreements on the residual clause do not prove that it is unconstitutionally vague.

The Court also points to conflicts in the decisions of the lower courts as proof that the statute is unconstitutional. See ante, at 2559 - 2560. The Court overstates the degree of disagreement below. For many crimes, there is no dispute that the residual clause applies. And our certiorari docket provides a skewed picture because the decisions that we are asked to review are usually those involving issues on which there is at least an arguable circuit conflict. But in any event, it has never been thought that conflicting interpretations of a statute justify judicial elimination of the statute. One of our chief responsibilities is to resolve those disagreements, see Supreme Court Rule 10, not to strike down the laws that create this work.

The Court may not relish the task of resolving residual clause questions on which the Circuits disagree, but the provision has not placed a crushing burden on our docket. In the eight years since James,we have decided all of three cases involving the residual clause. See Begay, supra; Chambers, supra; Sykes, supra. Nevertheless, faced with the unappealing prospect of resolving more circuit splits on various residual clause issues, see ante, at 2559, six Members of the Court have thrown in the towel. That is not responsible.

III

Even if we put stare decisisaside, the Court's decision remains indefensible. The residual clause is not unconstitutionally vague.

A

The Fifth Amendment prohibits the enforcement of vague criminal laws, but the threshold for declaring a law void for vagueness is high. "The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language." United States v. National Dairy Products Corp.,372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). Rather, it is sufficient if a statute sets out an "ascertainable standard." United States v. L. Cohen Grocery Co.,255 U.S. 81, 89, 41 S.Ct. 298, 65 L.Ed. 516 (1921). A statute is thus void for vagueness only if it wholly "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement."

*2577United States v. Williams,553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

The bar is even higher for sentencing provisions. The fair notice concerns that inform our vagueness doctrine are aimed at ensuring that a " 'person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that he may act accordingly.' " Hoffman Estates v. Flipside, Hoffman Estates, Inc.,455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)(quoting Grayned v. City of Rockford,408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). The fear is that vague laws will " 'trap the innocent.' " 455 U.S., at 498, 102 S.Ct. 1186. These concerns have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question. Due process does not require, as Johnson oddly suggests, that a "prospective criminal" be able to calculate the precise penalty that a conviction would bring. Supp. Brief for Petitioner 5; see Chapman v. United States,500 U.S. 453, 467-468, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)(concluding that a vagueness challenge was "particularly" weak "since whatever debate there is would center around the appropriate sentence and not the criminality of the conduct").

B

ACCA's residual clause unquestionably provides an ascertainable standard. It defines "violent felony" to include any offense that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). That language is by no means incomprehensible. Nor is it unusual. There are scores of federal and state laws that employ similar standards. The Solicitor General's brief contains a 99-page appendix setting out some of these laws. See App. to Supp. Brief for United States; see also James, supra,at 210, n. 6, 127 S.Ct. 1586. If all these laws are unconstitutionally vague, today's decision is not a blast from a sawed-off shotgun; it is a nuclear explosion.

Attempting to avoid such devastation, the Court distinguishes these laws primarily on the ground that almost all of them "require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion." Ante,at 2561 (emphasis in original). The Court thus admits that, "[a]s a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct." Ibid.Its complaint is that the residual clause "requires application of the 'serious potential risk' standard to an idealized ordinary case of the crime." Ibid. (emphasis added). Thus, according to the Court, ACCA's residual clause is unconstitutionally vague because its standard must be applied to "an idealized ordinary case of the crime" and not, like the vast majority of the laws in the Solicitor General's appendix, to "real-world conduct."

ACCA, however, makes no reference to "an idealized ordinary case of the crime." That requirement was the handiwork of this Court in Taylor v. United States,495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). And as I will show, the residual clause can reasonably be interpreted to refer to "real-world conduct."1

*2578C

When a statute's constitutionality is in doubt, we have an obligation to interpret the law, if possible, to avoid the constitutional problem. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council,485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). As one treatise puts it, "[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 38, p. 247 (2012). This canon applies fully when considering vagueness challenges. In cases like this one, "our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations." Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 571, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); see also Skilling v. United States,561 U.S. 358, 403, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). Indeed, " '[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.' " Id.,at 406, 130 S.Ct. 2896(quoting Hooper v. California,155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895); emphasis deleted); see also Ex parte Randolph,20 F.Cas. 242, 254 (No. 11,558) (C.C.Va.1833) (Marshall, C.J.).

The Court all but concedes that the residual clause would be constitutional if it applied to "real-world conduct." Whether that is the bestinterpretation of the residual clause is beside the point. What matters is whether it is a reasonable interpretation of the statute. And it surely is that.

First, this interpretation heeds the pointed distinction that ACCA draws between the "element[s]" of an offense and "conduct." Under § 924(e)(2)(B)(i), a crime qualifies as a "violent felony" if one of its "element [s]" involves "the use, attempted use, or threatened use of physical force against the person of another." But the residual clause, which appears in the very next subsection, § 924(e)(2)(B)(ii), focuses on "conduct"-specifically, "conduct that presents a serious potential risk of physical injury to another." The use of these two different terms in § 924(e)indicates that "conduct" refers to things done during the commission of an offense that are not part of the elements needed for conviction. Because those extra actions vary from case to case, it is natural to interpret "conduct" to mean real-world conduct, not the conduct involved in some Platonic ideal of the offense.

Second, as the Court points out, standards like the one in the residual clause almost always appear in laws that call for application by a trier of fact. This strongly suggests that the residual clause calls for the same sort of application.

Third, if the Court is correct that the residual clause is nearly incomprehensible when interpreted as applying to an "idealized ordinary case of the crime," then that is telling evidence that this is not what Congress intended. When another interpretation is ready at hand, why should we assume that Congress gave the clause a meaning that is impossible-or even, exceedingly difficult-to apply?

D

Not only does the "real-world conduct" interpretation fit the terms of the residual *2579clause, but the reasons that persuaded the Court to adopt the categorical approach in Tayloreither do not apply or have much less force in residual clause cases.

In Taylor,the question before the Court concerned the meaning of "burglary," one of ACCA's enumerated offenses. The Court gave three reasons for holding that a judge making an ACCA determination should generally look only at the elements of the offense of conviction and not to other things that the defendant did during the commission of the offense. First, the Court thought that ACCA's use of the term "convictions" pointed to the categorical approach. The Court wrote: "Section 924(e)(1)refers to 'a person who ... has three previous convictions' for-not a person who has committed-three previous violent felonies or drug offenses." 495 U.S., at 600, 110 S.Ct. 2143. Second, the Court relied on legislative history, noting that ACCA had previously contained a generic definition of burglary and that "the deletion of [this] definition ... may have been an inadvertent casualty of a complex drafting process." Id.,at 589-590, 601, 110 S.Ct. 2143. Third, the Court felt that "the practical difficulties and potential unfairness of a factual approach [were] daunting." Id., at 601, 110 S.Ct. 2143.

None of these three grounds dictates that the categorical approach must be used in residual clause cases. The second ground, which concerned the deletion of a generic definition of burglary, obviously has no application to the residual clause. And the first ground has much less force in residual clause cases. In Taylor,the Court reasoned that a defendant has a "conviction" for burglary only if burglary is the offense set out in the judgment of conviction. For instance, if a defendant commits a burglary but pleads guilty, under a plea bargain, to possession of burglar's tools, the TaylorCourt thought that it would be unnatural to say that the defendant had a convictionfor burglary. Now consider a case in which a gang member is convicted of illegal possession of a sawed-off shotgun and the evidence shows that he concealed the weapon under his coat, while searching for a rival gang member who had just killed his brother. In that situation, it is not at all unnatural to say that the defendant had a conviction for a crime that "involve[d] conductthat present[ed] a serious potential risk of physical injury to another." § 924(e)(2)(B)(ii)(emphasis added). At the very least, it would be a reasonable way to describe the defendant's conviction.

The TaylorCourt's remaining reasons for adopting the categorical approach cannot justify an interpretation that renders the residual clause unconstitutional. While the TaylorCourt feared that a conduct-specific approach would unduly burden the courts, experience has shown that application of the categorical approach has not always been easy. Indeed, the Court's main argument for overturning the statute is that this approach is unmanageable in residual clause cases.

As for the notion that the categorical approach is more forgiving to defendants, there is a strong argument that the opposite is true, at least with respect to the residual clause. Consider two criminal laws: Injury occurs in 10% of cases involving the violation of statute A, but in 90% of cases involving the violation of statute B. Under the categorical approach, a truly dangerous crime under statute A might not qualify as a violent felony, while a crime with no measurable risk of harm under statute B would count against the defendant. Under a conduct-specific inquiry, on the other hand, a defendant's actual conduct would determine whether ACCA's mandatory penalty applies.

*2580It is also significant that the allocation of the burden of proof protects defendants. The prosecution bears the burden of proving that a defendant has convictions that qualify for sentencing under ACCA. If evidentiary deficiencies, poor recordkeeping, or anything else prevents the prosecution from discharging that burden under the conduct-specific approach, a defendant would not receive an ACCA sentence.

Nor would a conduct-specific inquiry raise constitutional problems of its own. It is questionable whether the Sixth Amendment creates a right to a jury trial in this situation. See Almendarez-Torres v. United States,523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). But if it does, the issue could be tried to a jury, and the prosecution could bear the burden of proving beyond a reasonable doubt that a defendant's prior crimes involved conduct that presented a serious potential risk of injury to another. I would adopt this alternative interpretation and hold that the residual clause requires an examination of real-world conduct.

The Court's only reason for refusing to consider this interpretation is that "the Government has not asked us to abandon the categorical approach in residual-clause cases." Ante,at 2562. But the Court cites no case in which we have suggested that a saving interpretation may be adopted only if it is proposed by one of the parties. Nor does the Court cite any secondary authorities advocating this rule. Cf. Scalia, Reading Law § 38 (stating the canon with no such limitation). On the contrary, we have long recognized that it is "our plain duty to adopt that construction which will save [a] statute from constitutional infirmity," where fairly possible. United States ex rel. Attorney General v. Delaware & Hudson Co.,213 U.S. 366, 407, 29 S.Ct. 527, 53 L.Ed. 836 (1909). It would be strange if we could fulfill that "plain duty" only when a party asks us to do so. And the Court's refusal to consider a saving interpretation not advocated by the Government is hard to square with the Court's adoption of an argument that petitioner chose not to raise. As noted, Johnson did not ask us to hold that the residual clause is unconstitutionally vague, but the Court interjected that issue into the case, requested supplemental briefing on the question, and heard reargument. The Court's refusal to look beyond the arguments of the parties apparently applies only to arguments that the Court does not want to hear.

E

Even if the categorical approach is used in residual clause cases, however, the clause is still not void for vagueness. "It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined" on an as-applied basis. United States v. Mazurie,419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). "Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk." Maynard v. Cartwright,486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Thus, in a due process vagueness case, we will hold that a law is facially invalid "only if the enactment is impermissibly vague in allof its applications." Hoffman Estates,455 U.S., at 494-495, 102 S.Ct. 1186(emphasis added); see also Chapman,500 U.S., at 467, 111 S.Ct. 1919.2

In concluding that the residual clause is facially void for vagueness, the Court flatly *2581contravenes this rule. The Court admits "that there will be straightforward cases under the residual clause." Ante,at 2560. But rather than exercising the restraint that our vagueness cases prescribe, the Court holds that the residual clause is unconstitutionally vague even when its application is clear.

The Court's treatment of this issue is startling. Its facial invalidation precludes a sentencing court that is applying ACCA from counting convictions for even those specific offenses that this Court previously found to fall within the residual clause. See James,550 U.S., at 203-209, 127 S.Ct. 1586(attempted burglary); Sykes,564 U.S., at ---- - ----, 131 S.Ct., at 2272-2275(flight from law enforcement in a vehicle). Still worse, the Court holds that vagueness bars the use of the residual clause in other cases in which its applicability can hardly be questioned. Attempted rape is an example. See, e.g.,Dawson v. United States,702 F.3d 347, 351-352 (C.A.6 2012). Can there be any doubt that "an idealized ordinary case of th[is] crime" "involves conduct that presents a serious potential risk of physical injury to another"? How about attempted arson,3attempted kidnapping,4solicitation to commit aggravated assault,5possession of a loaded weapon with the intent to use it unlawfully against another person,6possession of a weapon in prison,7or compelling a person to act as a prostitute?8Is there much doubt that those offenses "involve conduct that presents a serious potential risk of physical injury to another"?

Transforming vagueness doctrine, the Court claims that we have never actually held that a statute may be voided for vagueness only when it is vague in all its applications. But that is simply wrong. In Hoffman Estates,we reversed a Seventh Circuit decision that voided an ordinance prohibiting the sale of certain items. See 455 U.S., at 491, 102 S.Ct. 1186. The Seventh Circuit struck down the ordinance because it was "unclear in someof its applications," but we reversed and emphasized that a law is void for vagueness "only if [it] is impermissibly vague in all of its applications." Id.,at 494-495, 102 S.Ct. 1186; see also id.,at 495, n. 7, 102 S.Ct. 1186(collecting cases). Applying that principle, we held that the "facial challenge [wa]s unavailing" because "at least some of the items sold ... [we]re covered" by the *2582ordinance. Id.,at 500, 102 S.Ct. 1186. These statements were not dicta. They were the holding of the case. Yet the Court does not even mention this binding precedent.

Instead, the Court says that the facts of two earliercases support a broader application of the vagueness doctrine. See ante, at 2560 - 2561. That, too, is incorrect. Neither case remotely suggested that mere overbreadth is enough for facial invalidation under the Fifth Amendment.

In Coates v. Cincinnati,402 U.S. 611, 612, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), we addressed an ordinance that restricted free assembly and association rights by prohibiting "annoying" conduct. Our analysis turned in large part on those First Amendment concerns. In fact, we specifically explained that the "vice of the ordinance lies not alone in its violation of the due process standard of vagueness." Id.,at 615, 91 S.Ct. 1686. In the present case, by contrast, no First Amendment rights are at issue. Thus, Coatescannot support the Court's rejection of our repeated statements that "vagueness challenges to statutes which do not involve First Amendment freedomsmust be examined in light of the facts ... at hand." Mazurie, supra,at 550, 95 S.Ct. 710(emphasis added).

Likewise, L. Cohen Grocery Co.,255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, proves precisely the opposite of what the Court claims. In that case, we struck down a statute prohibiting " 'unjust or unreasonable rate[s]' " because it provided no "ascertainable standard of guilt" and left open "the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against." Id.,at 89, 41 S.Ct. 298. The clear import of this language is that the law at issue was impermissibly vague in all applications. And in the years since, we have never adopted the majority's contradictory interpretation. On the contrary, we have characterized the case as involving a statute that could "not constitutionally be applied to any set of facts." United States v. Powell,423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). Thus, our holdings and our dicta prohibit the Court's expansion of the vagueness doctrine. The Constitution does not allow us to hold a statute void for vagueness unless it is vague in all its applications.

IV

Because I would not strike down ACCA's residual clause, it is necessary for me to address whether Johnson's conviction for possessing a sawed-off shotgun qualifies as a violent felony. Under either the categorical approach or a conduct-specific inquiry, it does.

A

The categorical approach requires us to determine whether "the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another." James,550 U.S., at 208, 127 S.Ct. 1586. This is an "inherently probabilistic" determination that considers the circumstances and conduct that ordinarily attend the offense. Id.,at 207, 127 S.Ct. 1586. The mere fact that a crime couldbe committed without a risk of physical harm does not exclude it from the statute's reach. See id.,at 207-208, 127 S.Ct. 1586. Instead, the residual clause speaks of "potential risk[s]," § 924(e)(2)(B)(ii), a term suggesting "that Congress intended to encompass possibilities even more contingent or remote than a simple 'risk,' much less a certainty." James, supra, at 207-208, 127 S.Ct. 1586.

Under these principles, unlawful possession of a sawed-off shotgun qualifies as a violent felony. As we recognized in District of Columbia v. Heller,554 U.S. 570, 625, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), sawed-off shotguns are "not typically possessed by law-abiding citizens for *2583lawful purposes." Instead, they are uniquely attractive to violent criminals. Much easier to conceal than long-barreled shotguns used for hunting and other lawful purposes, short-barreled shotguns can be hidden under a coat, tucked into a bag, or stowed under a car seat. And like a handgun, they can be fired with one hand-except to more lethal effect. These weapons thus combine the deadly characteristics of conventional shotguns with the more convenient handling of handguns. Unlike those common firearms, however, they are not typically possessed for lawful purposes. And when a person illegally possesses a sawed-off shotgun during the commission of a crime, the risk of violence is seriously increased. The ordinary case of unlawful possession of a sawed-off shotgun therefore "presents a serious potential risk of physical injury to another." § 922(e)(2)(B)(ii).

Congress' treatment of sawed-off shotguns confirms this judgment. As the Government's initial brief colorfully recounts, sawed-off shotguns were a weapon of choice for gangsters and bank robbers during the Prohibition Era. See Brief for United States 4.9In response, Congress enacted the National Firearms Act of 1934, which required individuals possessing certain especially dangerous weapons-including sawed-off shotguns-to register with the Federal Government and pay a special tax. 26 U.S.C. §§ 5845(a)(1)-(2). The Act was passed on the understanding that "while there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction, there is no reason why anyone except a law officer should have a ... sawed-off shotgun." H.R.Rep. No. 1780, 73d Cong., 2d Sess., 1 (1934). As amended, the Act imposes strict registration requirements for any individual wishing to possess a covered shotgun, see, e.g.,§§ 5822, 5841(b), and illegal possession of such a weapon is punishable by imprisonment for up to 10 years. See §§ 5861(b)-(d), 5871. It is telling that this penalty exceeds that prescribed by federal law for quintessential violent felonies.10It thus seems perfectly clear that Congress has long regarded the illegal possession of a sawed-off shotgun as a crime that poses a serious risk of harm to others.

The majority of States agree. The Government informs the Court, and Johnson does not dispute, that 28 States have followed Congress' lead by making it a crime to possess an unregistered sawed-off shotgun, and 11 other States and the District of Columbia prohibit private possession of sawed-off shotguns entirely. See Brief for United States 8-9 (collecting statutes). Minnesota, where petitioner was convicted, *2584has adopted a blanket ban, based on its judgment that "[t]he sawed-off shotgun has no legitimate use in the society whatsoever." State v. Ellenberger,543 N.W.2d 673, 676 (Minn.App.1996)(internal quotation marks and citation omitted). Possession of a sawed-off shotgun in Minnesota is thus an inherently criminal act. It is fanciful to assume that a person who chooses to break the law and risk the heavy criminal penalty incurred by possessing a notoriously dangerous weapon is unlikely to use that weapon in violent ways.

B

If we were to abandon the categorical approach, the facts of Johnson's offense would satisfy the residual clause as well. According to the record in this case, Johnson possessed his sawed-off shotgun while dealing drugs. When police responded to reports of drug activity in a parking lot, they were told by two people that "Johnson and another individual had approached them and offered to sell drugs." PSR ¶ 45. The police then searched the vehicle where Johnson was seated as a passenger, and they found a sawed-off shotgun and five bags of marijuana. Johnson admitted that the gun was his.

Understood in this context, Johnson's conduct posed an acute risk of physical injury to another. Drugs and guns are never a safe combination. If one of his drug deals had gone bad or if a rival dealer had arrived on the scene, Johnson's deadly weapon was close at hand. The sawed-off nature of the gun elevated the risk of collateral damage beyond any intended targets. And the location of the crime-a public parking lot-significantly increased the chance that innocent bystanders might be caught up in the carnage. This is not a case of "mere possession" as Johnson suggests. Brief for Petitioner i. He was not storing the gun in a safe, nor was it a family heirloom or collector's item. He illegally possessed the weapon in case he needed to use it during another crime. A judge or jury could thus conclude that Johnson's offense qualified as a violent felony.

There should be no doubt that Samuel Johnson was an armed career criminal. His record includes a number of serious felonies. And he has been caught with dangerous weapons on numerous occasions. That this case has led to the residual clause's demise is confounding. I only hope that Congress can take the Court at its word that either amending the list of enumerated offenses or abandoning the categorical approach would solve the problem that the Court perceives.

*14Justice O’Connor

announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Kennedy join.

In this case, we decide whether the Eighth Amendment prohibits the State of California from sentencing a repeat felon to a prison term of 25 years to life under the State’s “Three Strikes and You’re Out” law.

r — <

A

California’s three strikes law reflects a shift in the State’s sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety. The law was designed “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” Cal. Penal Code Ann. § 667(b) (West 1999). On March 3, 1993, California Assemblymen Bill Jones and Jim Costa introduced Assembly Bill 971, the legislative version of what would later become the three strikes law. The Assembly Committee on Public Safety defeated the bill only weeks later. Public outrage over the defeat sparked a voter initiative to add Proposition 184, based loosely on the bill, to the ballot in the November 1994 general election.

On October 1, 1993, while Proposition 184 was circulating, 12-year-old Polly Klaas was kidnaped from her home in Petaluma, California. Her admitted killer, Richard Allen Davis, had a long criminal history that included two prior kidnaping convictions. Davis had served only half of his *15most recent sentence (16 years for kidnaping, assault, and burglary). Had Davis served his entire sentence, he would still have been in prison on the day that Polly Klaas was kidnaped.

Polly Klaas’ murder galvanized support for the three strikes initiative. Within days, Proposition 184 was on its way to becoming the fastest qualifying initiative in California history. On January 3, 1994, the sponsors of Assembly Bill 971 resubmitted an amended version of the bill that conformed to Proposition 184. On January 31,1994, Assembly Bill 971 passed the Assembly by a 63 to 9 margin. The Senate passed it by a 29 to 7 margin on March 3, 1994. Governor Pete Wilson signed the bill into law on March 7, 1994. California voters approved Proposition 184 by a margin of 72 to 28 percent on November 8, 1994.

California thus became the second State to enact a three strikes law. In November 1993, the voters of Washington State approved their own three strikes law, Initiative 593, by a margin of 3 to 1. U. S. Dept. of Justice, National Institute of Justice, J. Clark, J. Austin, & D. Henry, “Three Strikes and You’re Out”: A Review of State Legislation 1 (Sept. 1997) (hereinafter Review of State Legislation). Between 1993 and 1995, 24 States and the Federal Government enacted three strikes laws. Ibid. Though the three strikes laws vary from State to State, they share a common goal of protecting the public safety by providing lengthy prison terms for habitual felons.

B

California’s current three strikes law consists of two virtually identical statutory schemes “designed to increase the prison terms of repeat felons.” People v. Superior Court of San Diego Cty. ex rel. Romero, 13 Cal. 4th 497, 504, 917 P. 2d 628, 630 (1996) (Romero). When a defendant is convicted of a felony, and he has previously been convicted of one or more prior felonies defined as “serious” or “violent” in Cal. Penal Code Ann. §§ 667.5 and 1192.7 (West Supp. 2002), sentencing *16is conducted pursuant to the three strikes law. Prior convictions must be alleged in the charging document, and the defendant has a right to a jury determination that the prosecution has proved the prior convictions beyond a reasonable doubt. § 1025; § 1158 (West 1985).

If the defendant has one prior “serious” or “violent” felony conviction, he must be sentenced to “twice the term otherwise provided as punishment for the current felony conviction.” § 667(e)(1) (West 1999); § 1170.12(c)(1) (West Supp. 2002). If the defendant has two or more prior “serious” or “violent” felony convictions, he must receive “an indeterminate term of life imprisonment.” § 667(e)(2)(A) (West 1999); § 1170.12(c)(2)(A) (West Supp. 2002). Defendants sentenced to life under the three strikes law become eligible for parole on a date calculated by reference to a “minimum term,” which is the greater of (a) three times the term otherwise provided for the current conviction, (b) 25 years, or (c) the term determined by the court pursuant to §1170 for the underlying conviction, including any enhancements. §§667(e)(2)(A)(i)-(iii) (West 1999); §§ 1170.12(c)(2)(A)(i)-(iii) (West Supp. 2002).

Under California law, certain offenses may be classified as either felonies or misdemeanors. These crimes are known as “wobblers.” Some crimes that would otherwise be misdemeanors become “wobblers” because of the defendant’s prior record. For example, petty theft, a misdemeanor, becomes a “wobbler” when the defendant has previously served a prison term for committing specified theft-related crimes. §490 (West 1999); §666 (West Supp. 2002). Other crimes, such as grand theft, are “wobblers” regardless of the defendant’s prior record. See § 489(b) (West 1999). Both types of “wobblers” are triggering offenses under the three strikes law only when they are treated as felonies. Under California law, a “wobbler” is presumptively a felony and “remains a felony except when the discretion is actually exercised” to make the crime a misdemeanor. People v. Wil*17liams, 27 Cal. 2d 220, 229, 163 P. 2d 692, 696 (1945) (emphasis deleted and internal quotation marks omitted).

In California, prosecutors may exercise their discretion to charge a “wobbler” as either a felony or a misdemeanor. Likewise, California trial courts have discretion to reduce a “wobbler” charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a three strikes sentence. Cal. Penal Code Ann. §§ 17(b)(5), 17(b)(1) (West 1999); People v. Superior Court of Los Angeles Cty. ex rel. Alvarez, 14 Cal. 4th 968, 978, 928 P. 2d 1171, 1177-1178 (1997). In exercising this discretion, the court may consider “those factors that direct similar sentencing decisions,” such as “the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense,... [and] the general objectives of sentencing.” Ibid, (internal quotation marks and citations omitted).

California trial courts can also vacate allegations of prior “serious” or “violent” felony convictions, either on motion by the prosecution or sua sponte. Romero, supra, at 529-530, 917 P. 2d, at 647-648. In ruling whether to vacate allegations of prior felony convictions, courts consider whether, “in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes’] scheme’s spirit, in whole or in part.” People v. Williams, 17 Cal. 4th 148, 161, 948 P. 2d 429, 437 (1998). Thus, trial courts may avoid imposing a three strikes sentence in two ways: first, by reducing “wobblers” to misdemeanors (which do not qualify as triggering offenses), and second, by vacating allegations of prior “serious” or “violent” felony convictions.

C

On parole from a 9-year prison term, petitioner Gary Ewing walked into the pro shop of the El Segundo Golf *18Course in Los Angeles County on March 12, 2000. He walked out with three golf clubs, priced at $399 apiece, concealed in his pants leg. A shop employee, whose suspicions were aroused when he observed Ewing limp out of the pro shop, telephoned the police. The police apprehended Ewing in the parking lot.

Ewing is no stranger to the criminal justice system. In 1984, at the age of 22, he pleaded guilty to theft. The court sentenced him to six months in jail (suspended), three years’ probation, and a $300 fine. In 1988, he was convicted of felony grand theft auto and sentenced to one year in jail and three years’ probation. After Ewing completed probation, however, the sentencing court reduced the crime to a misdemeanor, permitted Ewing to withdraw his guilty plea, and dismissed the case. In 1990, he was convicted of petty theft with a prior and sentenced to 60 days in the county jail and three years’ probation. In 1992, Ewing was convicted of battery and sentenced to 30 days in the county jail and two years’ summary probation. One month later, he was convicted of theft and sentenced to 10 days in the county jail and 12 months’ probation. In January 1993, Ewing was convicted of burglary and sentenced to 60 days in the county jail and one year’s summary probation. In February 1993, he was convicted of possessing drug paraphernalia and sentenced to six months in the county jail and three years’ probation. In July 1993, he was convicted of appropriating lost property and sentenced to 10 days in the county jail and two years’ summary probation. In September 1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced to 30 days in the county jail and one year’s probation.

In October and November 1993, Ewing committed three burglaries and one robbery at a Long Beach, California, apartment complex over a 5-week period. He awakened one of his victims, asleep on her living room sofa, as he tried to disconnect her video cassette recorder from the television in *19that room. When she screamed, Ewing ran out the front door. On another occasion, Ewing accosted a victim in the mailroom of the apartment complex. Ewing claimed to have a gun and ordered the victim to hand over his wallet. When the victim resisted, Ewing produced a knife and forced the victim back to the apartment itself. While Ewing rifled through the bedroom, the victim fled the apartment screaming for help. Ewing absconded with the victim’s money and credit cards.

On December 9,1993, Ewing was arrested on the premises of the apartment complex for trespassing and lying to a police officer. The knife used in the robbery and a glass cocaine pipe were later found in the back seat of the patrol car used to transport Ewing to the police station. A jury convicted Ewing of first-degree robbery and three counts of residential burglary. Sentenced to nine years and eight months in prison, Ewing was paroled in 1999.

Only 10 months later, Ewing stole the golf clubs at issue in this case. He was charged with, and ultimately convicted of, one count of felony grand theft of personal property in excess of $400. See Cal. Penal Code Ann. § 484 (West Supp. 2002); §489 (West 1999). As required by the three strikes law, the prosecutor formally alleged, and the trial court later found, that Ewing had been convicted previously of four serious or violent felonies for the three burglaries and the robbery in the Long Beach apartment complex. See § 667(g) (West 1999); § 1170.12(e) (West Supp. 2002).

At the sentencing hearing, Ewing asked the court to reduce the conviction for grand theft, a “wobbler” under California law, to a misdemeanor so as to avoid a three strikes sentence. See §§ 17(b), 667(d)(1) (West 1999); § 1170.12(b)(1) (West Supp. 2002). Ewing also asked the trial court to exercise its discretion to dismiss the allegations of some or all of his prior serious or violent felony convictions, again for purposes of avoiding a three strikes sentence. See Romero, 13 Cal. 4th, at 529-531, 917 P. 2d, at 647-648. Before sen-*20fencing Ewing, the trial court took note of his entire criminal history, including the fact that he was on parole when he committed his latest offense. The court also heard arguments from defense counsel and a plea from Ewing himself.

In the end, the trial judge determined that the grand theft should remain a felony. The court also ruled that the four prior strikes for the three burglaries and the robbery in Long Beach should stand. As a newly convicted felon with two or more “serious” or “violent” felony convictions in his past, Ewing was sentenced under the three strikes law to 25 years to life.

The California Court of Appeal affirmed in an unpublished opinion. No. B143745 (Apr. 25, 2001). Relying on our decision in Rummel v. Estelle, 445 U. S. 263 (1980), the court rejected Ewing’s claim that his sentence was grossly disproportionate under the Eighth Amendment. Enhanced sentences under recidivist statutes like the three strikes law, the court reasoned, serve the “legitimate goal” of deterring and incapacitating repeat offenders. The Supreme Court of California denied Ewing’s petition for review, and we granted certiorari, 535 U. S. 969 (2002). We now affirm.

II

A

The Eighth Amendment, which forbids cruel and unusual punishments, contains a “narrow proportionality principle” that “applies to noncapital sentences.” Harmelin v. Michigan, 501 U. S. 957, 996-997 (1991) (Kennedy, J., concurring in part and concurring in judgment); cf. Weems v. United States, 217 U. S. 349, 371 (1910); Robinson v. California, 370 U. S. 660, 667 (1962) (applying the Eighth Amendment to the States via the Fourteenth Amendment). We have most recently addressed the proportionality principle as applied to terms of years in a series of cases beginning with Rummel v. Estelle, supra.

*21In Rummel, we held that it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of parole. Id., at 284-285. Like Ewing, Rummel was sentenced to a lengthy prison term under a recidivism statute. Rummel’s two prior offenses were a 1964 felony for “fraudulent use of a credit card to obtain $80 worth of goods or services,” and a 1969 felony conviction for “passing a forged check in the amount of $28.36.” Id., at 265. His triggering offense was a conviction for felony theft — “obtaining $120.75 by false pretenses.” Id., at 266.

This Court ruled that “[hjaving twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.” Id., at 284. The recidivism statute “is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State’s judgment as to whether to grant him parole.” Id., at 278. We noted that this Court “has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.” Id., at 271. But “[ojutside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Id., at 272. Although we stated that the proportionality principle “would . . . come into play in the extreme example ... if a legislature made overtime parking a felony punishable by life imprisonment,” id., at 274, n. 11, we held that “the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments,” id., at 285.

In Hutto v. Davis, 454 U. S. 370 (1982) (per curiam), the defendant was sentenced to two consecutive terms of 20 years in prison for possession with intent to distribute nine *22ounces of marijuana and distribution of marijuana. We held that such a sentence was constitutional: “In short, Rummel stands for the proposition that federal courts should be reluctant to review legislatively mandated terms of imprisonment, and that successful challenges to the proportionality of particular sentences should be exceedingly rare.” Id., at 374 (citations and internal quotation marks omitted).

Three years after Rummel, in Solem v. Helm, 463 U. S. 277, 279 (1983), we held that the Eighth Amendment prohibited “a life sentence without possibility of parole for a seventh nonviolent felony.” The triggering offense in Solem was “uttering a ‘no account’ check for $100.” Id., at 281. We specifically stated that the Eighth Amendment’s ban on cruel and unusual punishments “prohibits .. . sentences that are disproportionate to the crime committed,” and that the “constitutional principle of proportionality has been recognized explicitly in this Court for almost a century.” Id., at 284, 286. The Solem Court then explained that three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id., at 292.

Applying these factors in Solem, we struck down the defendant’s sentence of life without parole. We specifically noted the contrast between that sentence and the sentence in Rummel, pursuant to which the defendant was eligible for parole. 463 U. S., at 297; see also id., at 300 (“[T]he South Dakota commutation system is fundamentally different from the parole system that was before us in Rummel”). Indeed, we explicitly declined to overrule Rummel: “[Q]ur conclusion today is not inconsistent with Rummel v. Estelle.” 463 U. S., at 303, n. 32; see also id., at 288, n. 13 (“[O]ur decision *23is entirely consistent with this Court’s prior cases — including Rummel v. Estelle”).

Eight years after Solem, we grappled with the proportionality issue again in Harmelin. Harmelin was not a recidivism case, but rather involved a first-time offender convicted of possessing 672 grams of cocaine. He was sentenced to life in prison without possibility of parole. A majority of the Court rejected Harmelin’s claim that his sentence was so grossly disproportionate that it violated the Eighth Amendment. The Court, however, could not agree on why his proportionality argument failed. Justice Scalia, joined by The Chief Justice, wrote that the proportionality principle was “an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law.” 501 U. S. at 994. He would thus have declined to apply gross disproportionality principles except in reviewing capital sentences. Ibid.

Justice Kennedy,

joined by two other Members of the Court, concurred in part and concurred in the judgment. Justice Kennedy specifically recognized that “[t]he Eighth Amendment proportionality principle also applies to noncap-ital sentences.” Id., at 997. He then identified four principles of proportionality review — “the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors” — that “inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id., at 1001 (citing Solem, supra, at 288). Justice Kennedy’s concurrence also stated that Solem “did not mandate” comparative analysis “within and between jurisdictions.” 501 U. S., at 1004-1005.

The proportionality principles in our cases distilled in Justice Kennedy’s concurrence guide our application of the *24Eighth Amendment in the new context that we are called upon to consider.

B

For many years, most States have had laws providing for enhanced sentencing of repeat offenders. See, e. g., U. S. Dept. of Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing (1996). Yet between 1993 and 1995, three strikes laws effected a sea change in criminal sentencing throughout the Nation.1 These laws responded to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals. As one of the chief architects of California’s three strikes law has explained: “Three Strikes was intended to go beyond simply making sentences tougher. It was intended to be a focused effort to create a sentencing policy that would use the judicial system to reduce serious and violent crime.” Ardaiz, California’s Three Strikes Law: History, Expectations, Consequences, 32 McGeorge L. Rev. 1, 12 (2000) (hereinafter Ardaiz).

Throughout the States, legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety. Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding. Weems, 217 U. S., at 379; Gore v. United States, 357 U. S. 386, 393 *25(1958); Payne v. Tennessee, 501 U. S. 808, 824 (1991); Rummel, 445 U. S., at 274; Solem, 463 U. S., at 290; Harmelin, 501 U. S., at 998 (Kennedy, J., concurring in part and concurring in judgment).

Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution “does not mandate adoption of any one penological theory.” Id., at 999 (Kennedy, J., concurring in part and concurring in judgment). A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. See 1 W. LaFave & A. Scott, Substantive Criminal Law § 1.5, pp. 30-36 (1986) (explaining theories of punishment). Some or all of these justifications may play a role in a State’s sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.

When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that “States have a valid interest in deterring and segregating habitual criminals.” Parke v. Raley, 506 U. S. 20, 27 (1992); Oyler v. Boles, 368 U. S. 448, 451 (1962) (“[T]he constitutionality of the practice of inflicting severer criminal penalties . upon habitual offenders is no longer open to serious challenge”). Recidivism has long been recognized as a legitimate basis for increased punishment. See Almendarez-Torres v. United States, 523 U. S. 224, 230 (1998) (recidivism “is as typical a sentencing factor as one might imagine”); Witte v. United States, 515 U. S. 389, 400 (1995) (“In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense ... [is] ‘a stiffened penalty for the latest crime, which is considered to be an aggravated *26offense because a repetitive one’ ” (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948))).

California’s justification is no pretext. Recidivism is a serious public safety concern in California and throughout the Nation. According to a recent report, approximately 67 percent of former inmates released from state prisons were charged with at least one “serious” new crime within three years of their release. See U. S. Dept. of Justice, Bureau of Justice Statistics, P. Langan & D. Levin, Special Report: Recidivism of Prisoners Released in 1994, p. 1 (June 2002). In particular, released property offenders like Ewing had higher recidivism rates than those released after committing violent, drug, or public-order offenses. Id., at 8. Approximately 73 percent of the property offenders released in 1994 were arrested again within three years, compared to approximately 61 percent of the violent offenders, 62 percent of the public-order offenders, and 66 percent of the drug offenders. Ibid.

In 1996, when the Sacramento Bee studied 233 three strikes offenders in California, it found that they had an aggregate of 1,165 prior felony convictions, an average of 5 apiece. See Furillo, Three Strikes — The Verdict: Most Offenders Have Long Criminal Histories, Sacramento Bee, Mar. 31, 1996, p. A1. The prior convictions included 322 robberies and 262 burglaries. Ibid. About 84 percent of the 233 three strikes offenders had been convicted of at least one violent crime. Ibid. In all, they were responsible for 17 homicides, 7 attempted slayings, and 91 sexual assaults and child molestations. Ibid. The Sacramento Bee concluded, based on its investigation, that “[i]n the vast majority of the cases, regardless of the third strike, the [three strikes] law is snaring [the] long-term habitual offenders with multiple felony convictions . . ..” Ibid.

The State’s interest in deterring crime also lends some support to the three strikes law. We have long viewed both incapacitation and deterrence as rationales for recidivism *27statutes: “[A] recidivist statute[’s] . . . primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.” Rummel, supra, at 284. Four years after the passage of California’s three strikes law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25 percent. California Dept. of Justice, Office of the Attorney General, “Three Strikes and You’re Out” — Its Impact on the California Criminal Justice System After Four Years, p. 10 (1998). Even more dramatically:

“An unintended but positive consequence of ‘Three Strikes’ has been the impact on parolees leaving the state. More California parolees are now leaving the state than parolees from other jurisdictions entering California. This striking turnaround started in 1994. It was the first time more parolees left the state than entered since 1976. This trend has continued and in 1997 more than 1,000 net parolees left California.” Ibid.

See also Janiskee & Erler, Crime, Punishment, and Romero: An Analysis of the Case Against California’s Three Strikes Law, 39 Duquesne L. Rev. 43, 45-46 (2000) (“Prosecutors in Los Angeles routinely report that ‘felons tell them they are moving out of the state because they fear getting a second or third strike for a nonviolent offense’ ” (quoting Sanchez, A Movement Builds Against “Three Strikes” Law, Washington Post, Feb. 18, 2000, p. A3)).

To be sure, California’s three strikes law has sparked controversy. Critics have doubted the law’s wisdom, cost-efficiency, and effectiveness in reaching its goals. See, e. g., Zimring, Hawkins, & Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (2001); Vitiello, Three Strikes: Can We Return to Rationality? 87 J. Crim. *28L. & C. 395, 423 (1997). This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a “superlegisla-ture” to second-guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons “advance[s] the goals of [its] criminal justice system in any substantial way.” See Solem, 463 U. S., at 297, n. 22.

III

Against this backdrop, we consider Ewing’s claim that his three strikes sentence of 25 years to life is unconstitutionally disproportionate to his offense of “shoplifting three golf clubs.” Brief for Petitioner 6. We first address the gravity of the offense compared to the harshness of the penalty. At the threshold, we note that Ewing incorrectly frames the issue. The gravity of his offense was not merely “shoplifting three golf clubs.” Rather, Ewing was convicted of felony grand theft for- stealing nearly $1,200 worth of merchandise after previously having been convicted of at least two “violent” or “serious” felonies. Even standing alone, Ewing’s theft should not be taken lightly. His crime was certainly not “one of the most passive felonies a person could commit.” Solem, supra, at 296 (internal quotation marks omitted). To the contrary, the Supreme Court of California has noted the “seriousness” of grand theft in the context of proportionality review. See In re Lynch, 8 Cal. 3d 410, 432, n. 20, 503 P. 2d 921, 936, n. 20 (1972). Theft of $1,200 in property is a felony under federal law, 18 U. S. C. § 641, and in the vast majority of States. See App. B to Brief for Petitioner 21a.

That grand theft is a “wobbler” under California law is of no moment. Though California courts have discretion to reduce a felony grand theft charge to a misdemeanor, it remains a felony for all purposes “unless and until the trial *29court imposes a misdemeanor sentence.” In re Anderson, 69 Cal. 2d 618, 626, 447 P. 2d 117, 126 (1968) (Tobriner, J., concurring); see generally 1 B. Witkin & N. Epstein, California Criminal Law §73 (3d ed. 2000). “The purpose of the trial judge’s sentencing discretion” to downgrade certain felonies is to “impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon.” Anderson, supra, at 664-665, 447 P. 2d, at 152 (Tobriner, J., concurring). Under California law, the reduction is not based on the notion that a “wobbler” is “conceptually a misdemeanor.” Necochea v. Superior Court, 23 Cal. App. 3d 1012, 1016, 100 Cal. Rptr. 693, 695 (1972). Rather, it is “intended to extend misde-meanant treatment to a potential felon.” Ibid. In Ewing’s case, however, the trial judge justifiably exercised her discretion not to extend such lenient treatment given Ewing’s long criminal history.

In weighing the gravity of Ewing’s offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions. In imposing a three strikes sentence, the State’s interest is not merely punishing the offense of conviction, or the “triggering” offense: “[I]t is in addition the interest... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.” Rummel, 445 U. S., at 276; Solem, supra, at 296. To give full effect to the State’s choice of this legitimate penological goal, our proportionality review of Ewing’s sentence must take that goal into account.

Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and *30amply supported by his own long, serious criminal record.2 Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior “strikes” were serious felonies including robbery and three residential burglaries. To be sure, Ewing’s sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California “was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.” Rummel, supra, at 284. Ewing’s is not “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportion-ality.” Harmelin, 501 U. S., at 1005 (Kennedy, J., concurring in part and concurring in judgment).

We hold that Ewing’s sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on *31cruel and unusual punishments. The judgment of the California Court of Appeal is affirmed.

It is so ordered.

Justice Scalia,

concurring in the judgment.

In my opinion in Harmelin v. Michigan, 501 U. S. 957, 985 (1991), I concluded that the Eighth Amendment’s prohibition of “cruel and unusual punishments” was aimed at excluding only certain modes of punishment, and was hot a “guarantee against disproportionate sentences.” Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of Solem v. Helm, 463 U. S. 277 (1983) — that the Eighth Amendment contains a narrow proportionality principle — if I felt I could intelligently apply it. This case demonstrates why I cannot.

Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution. “[I]t becomes difficult even to speak intelligently of ‘proportionality,’ once deterrence and rehabilitation are given significant weight,” Harmelin, supra, at 989 — not to mention giving weight to the purpose of California’s three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that “the Constitution does not mandate adoption of any one penological theory,” and that a “sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation.” Ante, at 25 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess “the gravity of the offense compared to the harshness of the penalty,” ante, at 28; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the “first” step of the inquiry, ibid. Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a “proportionate” punishment for stealing three golf clubs), the *32plurality must then add an analysis to show that “Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons.” Ante, at 29.

Which indeed it is — though why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy.

Because I agree that petitioner’s sentence does not violate the Eighth Amendment’s prohibition against cruel and unusual punishments, I concur in the judgment.

Justice Thomas,

concurring in the judgment.

I agree with Justice Scalia’s view that the proportionality test announced in Solem v. Helm, 463 U. S. 277 (1983), is incapable of judicial application. Even were Solem’,s test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle. See Harmelin v. Michigan, 501 U. S. 957, 966-985 (1991) (opinion of Scalia, J.).

Because the plurality concludes that petitioner’s sentence does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments, I concur in the judgment.

Justice Stevens,

with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

Justice Breyer has cogently explained why the sentence imposed in this case is both cruel and unusual.1 The eoncur-*33rences prompt this separate writing to emphasize that proportionality review is not only capable of judicial application but also required by the Eighth Amendment.

“The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.” Atkins v. Virginia, 536 U. S. 304, 311 (2002); see also U. S. Const., Arndt. 8 (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”). Faithful to the Amendment’s text, this Court has held that the Constitution directs judges to apply their best judgment in determining the proportionality of fines, see, e. g., United States v. Bajakajian, 524 U. S. 321, 334-336 (1998), bail, see, e. g., Stack v. Boyle, 342 U. S. 1, 5 (1951), and other forms of punishment, including the imposition of a death sentence, see, e. g., Coker v. Georgia, 433 U. S. 584, 592 (1977). It “would be anomalous indeed” to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment. Solem v. Helm, 463 U. S. 277, 289 (1983). Rather, by broadly prohibiting excessive sanctions, the Eighth Amendment directs judges to exercise their wise judgment in assessing the proportionality of all forms of punishment.

The absence of a black-letter rule does not disable judges from exercising their discretion in construing the outer limits on sentencing authority that the Eighth Amendment imposes. After all, judges are “constantly called upon to draw . . . lines in a variety of contexts,” id., at 294, and to exercise their judgment to give meaning to the Constitution’s broadly phrased protections. For example, the Due Process Clause directs judges to employ proportionality re*34view in assessing the constitutionality of punitive damages awards on a case-by-case basis. See, e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559, 562 (1996). Also, although the Sixth Amendment guarantees criminal defendants the right to a speedy trial, the courts often are asked to determine on a case-by-case basis whether a particular delay is constitutionally permissible or not. See, e. g., Doggett v. United States, 505 U. S. 647 (1992).2

Throughout most of the Nation’s history — before guideline sentencing became so prevalent — federal and state trial judges imposed specific sentences pursuant to grants of authority that gave them uncabined discretion within broad ranges. See K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) (hereinafter Stith & Cabranes) (“From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion”); see also Mistretta v. United States, 488 U. S. 361, 364 (1989). It was not unheard of for a statute to authorize a sentence ranging from one year to life, for example. See, e. g., State v. Perley, 86 Me. 427, 30 A. 74, 75 (1894) (citing Maine statute that made robbery punishable by imprisonment for life or any term of years); In re Southard, 298 Mich. 75, 77, 298 N. W. 457 (1941) (“The offense of ‘robbery armed’ is punishable by imprisonment for life or any term *35of years”). In exercising their discretion, sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment — namely, deterrence, incapacitation, retribution, and rehabilitation. See Stith & Cabranes 14. Likewise, I think it clear that the Eighth Amendment’s prohibition of “cruel and unusual punishments” expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions. It is this broad proportionality principle that would preclude reliance on any of the justifications for punishment to support, for example, a life sentence for overtime parking. See Rummel v. Estelle, 445 U. S. 263, 274, n. 11 (1980).

Accordingly, I respectfully dissent.

Justice Breyer,

with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

The constitutional question is whether the “three strikes” sentence imposed by California upon repeat-offender Gary Ewing is “grossly disproportionate” to his crime. Ante, at 14, 30-31 (plurality opinion). The sentence amounts to a real prison term of at least 25 years. The sentence-triggering criminal conduct consists of the theft of three golf clubs priced at a total of $1,197. See ante, at 18. The offender has a criminal history that includes four felony convictions arising out of three separate burglaries (one armed). Ante, at 18-19. In Solem v. Helm, 463 U. S. 277 (1983), the Court found grossly disproportionate a somewhat longer sentence imposed on a recidivist offender for triggering criminal conduct that was somewhat less severe. In my view, the differences are not determinative, and the Court should reach the same ultimate conclusion here.

I

This Court’s precedent sets forth a framework for analyzing Ewing’s Eighth Amendment claim. The Eighth Amendment forbids, as “cruel and unusual punishments,” prison *36terms (including terms of years) that are “grossly disproportionate.” Solem, supra, at 303; see Lockyer v. Andrade, post, at 71. In applying the “gross disproportionality” principle, courts must keep in mind that “legislative policy” will primarily determine the appropriateness of a punishment’s “severity,” and hence defer to such legislative policy judgments. Gore v. United States, 357 U. S. 386, 393 (1958); see Harmelin v. Michigan, 501 U. S. 957, 998 (1991) (Kennedy, J., concurring in part and concurring in judgment); Solem, supra, at 289-290; Rummel v. Estelle, 445 U. S. 263, 274-276 (1980); Weems v. United States, 217 U. S. 349, 373 (1910). If courts properly respect those judgments, they will find that the sentence fails the test only in rare instances. Solem, supra, at 290, n. 16; Harmelin, supra, at 1004 (Kennedy, J., concurring in part and concurring in judgment); Rummel, supra, at 272 (“[Successful challenges to the proportionality of particular sentences have been exceedingly rare”). And they will only “‘rarely’” find it necessary to “‘engage in extended analysis’” before rejecting a claim that a sentence is “grossly disproportionate.” Harmelin, supra, at 1004 (Kennedy, J., concurring in part and concurring in judgment) (quoting Solem, supra, at 290, n. 16).

The plurality applies Justice Kennedy’s analytical framework in Harmelin, supra, at 1004-1005 (opinion concurring in part and concurring in judgment). Ante, at 23-24. And, for present purposes, I will consider Ewing’s Eighth Amendment claim on those terms. But see ante, at 32-33, n. 1 (Stevens, J., dissenting). To implement this approach, courts faced with a “gross disproportionality” claim must first make “a threshold comparison of the crime committed and the sentence imposed.” Harmelin, supra, at 1005 (Kennedy, J., concurring in part and concurring in judgment). If a claim crosses that threshold — itself a rare occurrence — then the court should compare the sentence at issue to other sentences “imposed on other criminals” in the same, or in other, jurisdictions. Solem, supra, at 290-291; *37Harmelin, 501 U. S., at 1005 (Kennedy, J., concurring in part and concurring in judgment). The comparative analysis will “validate” or invalidate “an initial judgment that a sentence is grossly disproportionate to a crime.” Ibid.

I recognize the warnings implicit in the Court’s frequent repetition of words such as “rare.” Nonetheless I believe that the case before us is a “rare” case — one in which a court can say with reasonable confidence that the punishment is “grossly disproportionate” to the crime.

II

Ewing’s claim crosses the gross disproportionality “threshold.” First, precedent makes clear that Ewing’s sentence raises a serious disproportionality question. Ewing is a recidivist. Hence the two cases most directly in point are those in which the Court considered the constitutionality of recidivist sentencing: Rummel and Solem. Ewing’s claim falls between these two cases. It is stronger than the claim presented in Rummel, where the Court upheld a recidivist’s sentence as constitutional. It is weaker than the claim presented in Solem, where the Court struck down a recidivist sentence as unconstitutional.

Three kinds of sentence-related characteristics define the relevant comparative spectrum: (a) the length of the prison term in real time, i. e., the time that the offender is likely actually to spend in prison; (b) the sentence-triggering criminal conduct, i. e., the offender’s actual behavior or other offense-related circumstances; and (c) the offender’s criminal history. See Rummel, supra, at 265-266, 269, 276, 278, 280-281 (using these factors); Solem, supra, at 290-303 (same). Cf. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, intro., n. 5 (Nov. 1987) (USSG) (empirical study of “summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports” leads to sentences based primarily upon (a) offense characteristics and (b) offender’s criminal record); see id., p. s. 3.

*38In Rummel, the Court held constitutional (a) a sentence of life imprisonment with parole available within 10 to 12 years, (b) for the offense of obtaining $120 by false pretenses, (c) committed by an offender with two prior felony convictions (involving small amounts of money). 445 U. S. 263; ante, at 21. In Solem, the Court held unconstitutional (a) a sentence of life imprisonment without parole, (b) for the crime of writing a $100 check on a nonexistent bank account, (c) committed by an offender with six prior felony convictions (including three for burglary). 463 U. S. 277; ante, at 22-23. Which of the three pertinent comparative factors made the constitutional difference?

The third factor, prior record, cannot explain the difference. The offender’s prior record was worse in Solem, where the Court found the sentence too long, than in Rum-mel, where the Court upheld the sentence. The second factor, offense conduct, cannot explain the difference. The nature of the triggering offense — viewed in terms of the actual monetary loss — in the two cases was about the same. The one critical factor that explains the difference in the outcome is the length of the likely prison term measured in real time. In Rummel, where the Court upheld the sentence, the state sentencing statute authorized parole for the offender, Rum-mel, after 10 or 12 years. 445 U. S., at 280; id., at 293 (Powell, J., dissenting). In Solem, where the Court struck down the sentence, the sentence required the offender, Helm, to spend the rest of his life in prison.

Now consider the present case. The third factor, offender characteristics — i. e., prior record — does not differ significantly here from that in Solem. Ewing’s prior record consists of four prior felony convictions (involving three burglaries, one with a knife) contrasted with Helm’s six prior felony convictions (including three burglaries, though none with weapons). The second factor, offense behavior, is worse than that in Solem, but only to a degree. It would be difficult to say that the actual behavior itself here (shop*39lifting) differs significantly from that at issue in Solem (passing a bad check) or in Rummel (obtaining money through false pretenses). Rather the difference lies in the value of the goods obtained. That difference, measured in terms of the most relevant feature (loss to the victim, i. e., wholesale value) and adjusted for the irrelevant feature of inflation, comes down (in 1979 values) to about $379 here compared with $100 in Solem, or (in 1973 values) to $232 here compared with $120.75 in Rummel. See USSG §2B1.1, comment., n. 2(A)(i) (Nov. 2002) (loss to victim properly measures value of goods unlawfully taken); U. S. Dept. of Labor, Bureau of Labor Statistics, Inflation and Consumer Spending, Inflation Calculator (Jan. 23, 2003), http://www.bls.gov (hereinafter Inflation Calculator). Alternatively, if one measures the inflation-adjusted value difference in terms of the golf clubs’ sticker price, it comes down to $505 here compared to $100 in Solem, or $309 here compared to $120.75 in Rummel. See Inflation Calculator.

The difference in length of the real prison term — the first, and critical, factor in Solem and Rummel — is considerably more important. Ewing’s sentence here amounts, in real terms, to at least 25 years without parole or good-time credits. That sentence is considerably shorter than Helm’s sentence in Solem, which amounted, in real terms, to life in prison. Nonetheless Ewing’s real prison term is more than twice as long as the term at issue in Rummel, which amounted, in real terms, to at least 10 or 12 years. And, Ewing’s sentence, unlike Rummel’s (but like Helm’s sentence in Solem), is long enough to consume the productive remainder of almost any offender’s life. (It means that Ewing himself, seriously ill when sentenced at age 38, will likely die in prison.)

The upshot is that the length of the real prison term — the factor that explains the Solem/Rummel difference in outcome — places Ewing closer to Solem than to Rummel, though the greater value of the golf clubs that Ewing stole *40moves Ewing’s case back slightly in Rummel’s direction. Overall, the comparison places Ewing’s sentence well within the twilight zone between Solem and Rummel — a zone where the argument for unconstitutionality is substantial, where the cases themselves cannot determine the constitutional outcome.

Second, Ewing’s sentence on its face imposes one of the most severe punishments available upon a recidivist who subsequently engaged in one of the less serious forms of criminal conduct. See infra, at 44-45. I do not deny the seriousness of shoplifting, which an amicus curiae tells us costs retailers in the range of $30 billion annually. Brief for California District Attorneys Association as Amicus Curiae 27. But consider that conduct in terms of the factors that this Court mentioned in Solem — the “harm caused or threatened to the victim or society,” the “absolute magnitude of the crime,” and the offender’s “culpability.” 463 U. S., at 292-293. In respect to all three criteria, the sentence-triggering behavior here ranks well toward the bottom of the criminal conduct scale.

The Solicitor General has urged us to consider three other criteria: the “frequency” of the crime’s commission, the “ease or difficulty of detection,” and “the degree to which the crime may be deterred by differing amounts of punishment.” Brief for United States as Amicus Curiae 24-25. When considered in terms of these criteria — or at least the latter two — the triggering conduct also ranks toward the bottom of the scale. Unlike, say, drug crimes, shoplifting often takes place in stores open to other customers whose presence, along with that of store employees or cameras, can help to detect the crime. Nor is there evidence presented here that the law enforcement community believes lengthy prison terms necessary adequately to deter shoplifting. To the contrary, well-publicized instances of shoplifting suggest that the offense is often punished without any prison sentence at all. On the other hand, shoplifting is a frequently com*41mitted crime; but “frequency,” standing alone, cannot make a critical difference. Otherwise traffic offenses would warrant even more serious punishment.

This ease, of course, involves shoplifting engaged in by a recidivist. One might argue that any crime committed by a recidivist is a serious crime potentially warranting a 25-year sentence. But this Court rejected that view in Solem, and in Harmelin, with the recognition that “no penalty is per se constitutional.” Solem, supra, at 290; Harmelin, 501 U. S., at 1001 (Kennedy, J., concurring in part and concurring in judgment). Our cases make clear that, in cases involving recidivist offenders, we must focus upon “the [offense] that triggers the life sentence,” with recidivism playing a “relevant,” but not necessarily determinative, role. Solem, supra, at 296, n. 21; see Witte v. United States, 515 U. S. 389, 402, 403 (1995) (the recidivist defendant is “punished only for the offense of conviction,” which “‘is considered to be an aggravated offense because a repetitive one’” (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948))). And here, as I have said, that offense is among the less serious, while the punishment is among the most serious. Cf. Rummel, 445 U. S., at 288 (Powell, J., dissenting) (overtime parking violation cannot trigger a life sentence even for a serious recidivist).

Third, some objective evidence suggests that many experienced judges would consider Ewing’s sentence disproportionately harsh. The United States Sentencing Commission (having based the federal Sentencing Guidelines primarily upon its review of how judges had actually sentenced offenders) does not include shoplifting (or similar theft-related offenses) among the crimes that might trigger especially long sentences for recidivists, see USSG §4B1.1 (Nov. 2002) (Guideline for sentencing “career offenders”); id., ch. 1, pt. A, intro., n. 5 (sentences based in part upon Commission’s review of “summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports”); see also *42infra, at 45, nor did Congress include such offenses among triggering crimes when it sought sentences “at or near the statutory maximum” for certain recidivists, S. Rep. No. 98-225, p. 175 (1983); 28 U. S. C. § 994(h) (requiring sentence “at or near the maximum” where triggering crime is crime of “violence” or drug related); 18 U. S. C. § 3559(c) (grand theft not among triggering or “strike” offenses under federal “three strikes” law); see infra, at 45-46. But see 28 U. S. C. § 994(i)(l) (requiring “a substantial term of imprisonment” for those who have “a history of two or more prior ... felony convictions”).

Taken together, these three circumstances make clear that Ewing’s “gross disproportionality” argument is a strong one. That being so, his claim must pass the “threshold” test. If it did not, what would be the function of the test? A threshold test must permit arguably unconstitutional sentences, not only actually unconstitutional sentences, to pass the threshold — at least where the arguments for unconstitutionality are unusually strong ones. A threshold test that blocked every ultimately invalid constitutional claim — even strong ones — would not be a threshold test but a determinative test. And, it would be a determinative test that failed to take account of highly pertinent sentencing information, namely, comparison with other sentences, Solem, supra, at 291-292, 298-300. Sentencing comparisons are particularly important because they provide proportionality review with objective content. By way of contrast, a threshold test makes the assessment of constitutionality highly subjective. And, of course, so to transform that threshold test would violate this Court’s earlier precedent. See 463 U. S., at 290, 291-292; Harmelin, supra, at 1000, 1005 (Kennedy, J., concurring in part and concurring in judgment).

> — l ► — <

Believing Ewing’s argument a strong one, sufficient to pass the threshold, I turn to the comparative analysis. A *43comparison of Ewing’s sentence with other sentences requires answers to two questions. First, how would other jurisdictions (or California at other times, i. e,, without the three strikes penalty) punish the same offense conduct? Second, upon what other conduct would other jurisdictions (or California) impose the same prison term? Moreover, since hypothetical punishment is beside the point, the relevant prison time, for comparative purposes, is real prison time, i. e., the time that an offender must actually serve.

Sentencing statutes often shed little light upon real prison time. That is because sentencing laws normally set maximum sentences, giving the sentencing judge discretion to choose an actual sentence within a broad range, and because many States provide good-time credits and parole, often permitting release after, say, one-third of the sentence has been served, see, e.g., Alaska Stat. § 33.20.010(a) (2000); Conn. Gen. Stat. § 18-7a (1998). Thus, the statutory maximum is rarely the sentence imposed, and the sentence imposed is rarely the sentence that is served. For the most part, the parties’ briefs discuss sentencing statutes. Nonetheless, that discussion, along with other readily available information, validates my initial belief that Ewing’s sentence, comparatively speaking, is extreme.

As to California itself, we know the following: First, between the end of World War II and 1994 (when California enacted the three strikes law, ante, at 15), no one like Ewing could have served more than 10 years in prison. We know that for certain because the maximum sentence for Ewing’s crime of conviction, grand theft, was for most of that period 10 years. Cal. Penal Code Ann. §§ 484, 489 (West 1970); see Cal. Dept. of Corrections, Offender Information Services, Administrative Services Division, Historical Data for Time Served by Male Felons Paroled from Institutions: 1945 Through 1981, p. 11 (1982) (Table 10) (hereinafter Historical Data for Time Served by California Felons), Lodging of Petitioner. From 1976 to 1994 (and currently, absent application *44of the three strikes penalty), a Ewing-type offender would have received a maximum sentence of four years. Cal. Penal Code Ann. §489 (West 1999), § 667.5(b) (West Supp. 2002). And we know that California’s “habitual offender” laws did not apply to grand theft. §§ 644(a), (b) (West 1970) (repealed 1977). We also know that the time that any offender actually served was likely far less than 10 years. This is because statistical data show that the median time actually served for grand theft (other than auto theft) was about two years, and 90 percent of all those convicted of that crime served less than three or four years. Historical Data for Time Served by California Felons 11 (Table 10).

Second, statistics suggest that recidivists of all sorts convicted during that same time period in California served a small fraction of Ewing’s real-time sentence. On average, recidivists served three to four additional (recidivist-related) years in prison, with 90 percent serving less than an additional real seven to eight years. Id., at 22 (Table 21).

Third, we know that California has reserved, and still reserves, Ewing-type prison time, i. e., at least 25 real years in prison, for criminals convicted of crimes far worse than was Ewing’s. Statistics for the years 1945 to 1981, for example, indicate that typical.(nonrecidivist) male first-degree murderers served between 10 and 15 real years in prison, with 90 percent of all such murderers serving less than 20 real years. Id., at 3 (Table 2). Moreover, California, which has moved toward a real-time sentencing system (where the statutory punishment approximates the time served), still punishes far less harshly those who have engaged in far more serious conduct. It imposes, for example, upon nonrecidi-vists guilty of arson causing great bodily injury a maximum sentence of nine years in prison, Cal. Penal Code Ann. § 451(a) (West 1999) (prison term of 5, 7, or 9 years for arson that causes great bodily injury); it imposes upon those guilty of voluntary manslaughter a maximum sentence of 11 years, § 193 (prison term of 3, 6, or 11 years for voluntary man*45slaughter). It reserves the sentence that it here imposes upon (former-burglar-now-golf-club-thief) Ewing for non-recidivist, first-degree murderers. See § 190(a) (West Supp. 2003) (sentence of 25 years to life for first-degree murder).

As to other jurisdictions, we know the following: The United States, bound by the federal Sentencing Guidelines, would impose upon a recidivist, such as Ewing, a sentence that, in any ordinary case, would not exceed 18 months in prison. USSG §2Bl.l(a) (Nov. 1999) (assuming a base offense level of 6, a criminal history of VI, and no mitigating or aggravating adjustments); id., ch. 5, pt. A, Sentencing Table. The Guidelines, based in part upon a study of some 40,000 actual federal sentences, see supra, at 37, 41, reserve a Ewing-type sentence for Ewing-type recidivists who currently commit such crimes as murder, §2A1.2; air piracy, §2A5.1; robbery (involving the discharge of a firearm, serious bodily injury, and about $1 million), §2B3.1; drug offenses involving more than, for example, 20 pounds of heroin, §2D1.1; aggravated theft of more than $100 million, § 2B1.1; and other .similar offenses. The Guidelines reserve 10 years of real prison time (with good time) — less than 40 percent of Ewing’s sentence — for Ewing-type recidivists who go on to commit, for instance, voluntary manslaughter, §2A1.3; aggravated assault with a firearm (causing serious bodily injury and motivated by money), §2A2.2; kidnaping, §2A4.1; residential burglary involving more than $5 million, §2B2.1; drug offenses involving at least one pound of cocaine, § 2D 1.1; and other similar offenses. Ewing also would not have been subject to the federal “three strikes” law, 18 U. S. C. § 3559(c), for which grand theft is not a triggering offense.

With three exceptions, see infra, at 46-47, we do not have before us information about actual time served by Ewing-type offenders in other States. We do know, however, that the law would make it legally impossible for a Ewing-type offender to serve more than 10 years in prison in 33 jurisdictions, as well as the federal courts, see Appendix, *46Part A, infra, more than 15 years in 4 other States, see Appendix, Part B, infra, and more than 20 years in 4 additional States, see Appendix, Part C, infra. In nine other States, the law might make it legally possible to impose a sentence of 25 years or more, see Appendix, Part D, infra — though that fact by itself, of course, does not mean that judges have actually done so. But see infra this page. I say “might” because the law in five of the nine last mentioned States restricts the sentencing judge’s ability to impose a term so long that, with parole, it would amount to at least 25 years of actual imprisonment. See Appendix, Part D, infra.

We also know that California, the United States, and other States supporting California in this case, despite every incentive to find someone else like Ewing who will have to serve, or who has actually served, a real prison term anywhere approaching that imposed upon Ewing, have come up with precisely three examples. Brief for United States as Amicus Curiae 28-29, n. 13. The Government points to Ex parte Howington, 622 So. 2d 896 (Ala. 1993), where an Alabama court sentenced an offender with three prior burglary convictions and two prior grand theft convictions to “life” for the theft of a tractor-trailer. The Government also points to State v. Heftel, 513 N. W. 2d 397 (S. D. 1994), where a South Dakota court sentenced an offender with seven prior felony convictions to 50 years’ imprisonment for theft. And the Government cites Sims v. State, 107 Nev. 438, 814 P. 2d 63 (1991), where a Nevada court sentenced a defendant with three prior felony convictions (including armed robbery) and nine misdemeanor convictions to life without parole for the theft of a purse and wallet containing $476.

The first of these cases, Howington, is beside the point, for the offender was eligible for parole after 10 years (as in Rummel), not 25 years (as here). Ala. Code §15-22-28(e) (West 1982). The second case, Heftel, is factually on point, but it is not legally on point, for the South Dakota courts did not consider the constitutionality of the sentence. 513 N. W. *472d, at 401. The third case, Sims, is on point both factually and legally, for the Nevada Supreme Court (by a vote of 3 to 2) found the sentence constitutional. I concede that example — a single instance of a similar sentence imposed outside the context of California’s three strikes law, out of a prison population now approaching two million individuals. U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Prison Statistics (Jan. 8, 2003), http://www.ojp.usdoj.gov/bjs/prisons.htm (available in Clerk of Court’s case file).

The upshot is that comparison of other sentencing practices, both in other jurisdictions and in California at other times (or in respect to other crimes), validates what an initial threshold examination suggested. Given the information available, given the state and federal parties’ ability to provide additional contrary data, and given their failure to do so, we can assume for constitutional purposes that the following statement is true: Outside the California three strikes context, Ewing’s recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree.

IV

This is not the end of the matter. California sentenced Ewing pursuant to its “three strikes” law. That law represents a deliberate effort to provide stricter punishments for recidivists. Cal. Penal Code Ann. § 667(b) (West 1999) (“It is the intent of the Legislature ... to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses”); ante, at 24. And, it is important to consider whether special criminal justice concerns related to California’s three strikes policy might justify including Ewing’s theft within the class of triggering criminal conduct (thereby imposing a severe punishment), even if Ewing’s sentence would otherwise seem disproportionately harsh. *48Cf. Harmelin, 501 U. S., at 998-999, 1001 (noting “the primacy of the legislature” in making sentencing policy).

I can find no such special criminal justice concerns that might justify this sentence. The most obvious potential justification for bringing Ewing’s theft within the ambit of the statute is administrative. California must draw some kind of workable line between conduct that will trigger, and con-' duct that will not trigger, a “three strikes” sentence. “But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere.” Pearce v. Commissioner, 315 U. S. 543, 558 (1942) (Frankfurter, J., dissenting). The statute’s administrative objective would seem to be one of separating more serious, from less serious, triggering criminal conduct. Yet the statute does not do that job particularly well.

The administrative line that the statute draws separates “felonies” from “misdemeanors.” See Brief for Respondent 6 (“The California statute relies, fundamentally, on traditional classifications of certain crimes as felonies”). Those words suggest a graduated difference in degree. But an examination of how California applies these labels in practice to criminal conduct suggests that the offenses do not necessarily reflect those differences. See United States v. Watson, 423 U. S. 411, 438-441 (1976) (Marshall, J., dissenting) (felony/misdemeanor distinction often reflects history, not logic); Rummel, 445 U. S., at 284 (“The most casual review of the various criminal justice systems now in force in the 50 States of the Union shows that the line dividing felony theft from petty larceny, a line usually based on the value of the property taken, varies markedly from one State to another”). Indeed, California uses those words in a way unrelated to the seriousness of offense conduct in a set of criminal statutes called “ ‘wobblers,’ ” see ante, at 16, one of which is at issue in this case.

Most “wobbler” statutes classify the same criminal conduct either as a felony or as a misdemeanor, depending upon *49the actual punishment imposed, Cal. Penal Code Ann. §§ 17(a), (b) (West 1999); ante, at 16-17, which in turn depends primarily upon whether “the rehabilitation of the convicted defendant” either does or does not “require” (or would or would not “be adversely affected by”) “incarceration in a state prison as a felon.” In re Anderson, 69 Cal. 2d 613, 664-665, 447 P. 2d 117, 152 (1968) (Tobriner, J., concurring in part and dissenting in part); ante, at 29. In such cases, the felony/misdemeanor classification turns primarily upon the nature of the offender, not the comparative seriousness of the offender’s conduct.

A subset of “wobbler” statutes, including the “petty theft with a prior” statute, Cal. Penal Code Ann. § 666 (West Supp. 2002), defining the crime in the companion case, Lockyer v. Andrade, post, p. 63, authorizes the treatment of otherwise misdemeanor conduct, see Cal. Penal Code Ann. § 490 (West 1999), as a felony only when the offender has previously committed a property crime. Again, the distinction turns upon characteristics of the offender, not the specific offense conduct at issue.

The result of importing this kind of distinction into California’s three strikes statute is a series of anomalies. One anomaly concerns the seriousness of the triggering behavior. “Wobbler” statutes cover a wide variety of criminal behavior, ranging from assault with a deadly weapon, §245, vehicular manslaughter, § 193(c)(1), and money laundering, § 186.10(a), to the defacement of property with graffiti, § 594(b)(2)(A) (West Supp. 2002), or stealing more than $100 worth of chickens, nuts, or avocados, § 487(b)(1)(A) (West Supp. 2003); § 489 (West 1999). Some of this behavior is obviously less serious, even if engaged in twice, than other criminal conduct that California statutes classify as pure misdemeanors, such as reckless driving, Cal. Veh. Code Ann. §23103 (West Supp. 2003); § 23104(a) (West 2000) (reckless driving causing bodily injury), the use of force or threat of force to interfere with another’s civil rights, Cal. Penal Code *50Ann. §422.6 (West 1999), selling poisoned alcohol, §347b, child neglect, § 270, and manufacturing or selling false government documents with the intent to conceal true citizenship, § 112(a) (West Supp. 2002).

Another anomaly concerns temporal order. An offender whose triggering crime is his third crime likely will not fall within the ambit of the three strikes statute provided that (a) his first crime was chicken theft worth more than $100, and (b) he subsequently graduated to more serious crimes, say, crimes of violence. That is because such chicken theft, when a first offense, will likely be considered a misdemeanor. A similar offender likely will fall within the scope of the three strikes statute, however, if such chicken theft was his third crime. That is because such chicken theft, as a third offense, will likely be treated as a felony.

A further anomaly concerns the offender’s criminal record. California’s “wobbler” “petty theft with a prior” statute, at issue in Lockyer v. Andrade, post, p. 63, classifies a petty theft as a “felony” if, but only if, the offender has a prior record that includes at least one conviction for certain theft-related offenses. Cal. Penal Code Ann. §666 (West Supp. 2002). Thus a violent criminal who has committed two violent offenses and then steals $200 will not fall within the ambit of the three strikes statute, for his prior record reveals no similar property crimes. A similar offender will fall within the scope of the three strikes statute, however, if that offender, instead of having committed two previous violent crimes, has committed one previous violent crime and one previous petty theft. (Ewing’s conduct would have brought him within the realm of the petty theft statute prior to 1976 but for inflation.)

At the same time, it is difficult to find any strong need to define the lower boundary as the State has done. The three strikes statute itself, when defining prior “strikes,” simply lists the kinds of serious criminal conduct that falls within the definition of a “strike.” § 667.5(c) (listing “violent” felon*51ies); § 1192.7(e) (West Supp. 2003) (listing “serious” felonies). There is no obvious reason why the statute could not enumerate, consistent with its purposes, the relevant triggering crimes. Given that possibility and given the anomalies that result from California’s chosen approach, I do not see how California can justify on administrative grounds a sentence as seriously disproportionate as Ewing’s. See Parts II and III, supra.

Neither do I see any other way in which inclusion of Ewing’s conduct (as a “triggering crime”) would further a significant criminal justice objective. One might argue that those who commit several property crimes should receive long terms of imprisonment in order to “incapacitate” them, i. e., to prevent them from committing further crimes in the future. But that is not the object of this particular three strikes statute. Rather, as the plurality says, California seeks “‘to reduce serious and violent crime.’” Ante, at 24 (quoting Ardaiz, California’s Three Strikes Law: History, Expectations, Consequences, 32 McGeorge L. Rev. 1 (2000) (emphasis added)). The statute’s definitions of both kinds of crime include crimes against the person, crimes that create danger of physical harm, and drug crimes. See, e. g., Cal. Penal Code Ann. § 667.5(c)(1) (West Supp. 2002), § 1192.7(c)(1) (West Supp. 2003) (murder or voluntary manslaughter); §667.5(c)(21) (West Supp. 2002), § 1192.7(c)(18) (West Supp. 2003) (first-degree burglary); § 1192.7(c)(24) (selling or giving or offering to sell or give heroin or cocaine to a minor). They do not include even serious crimes against property, such as obtaining large amounts of money, say, through theft, embezzlement, or fraud. Given the omission of vast categories of property crimes — including grand theft (unarmed)— from the “strike” definition, one cannot argue, on property-crime-related incapacitation grounds, for inclusion of Ewing’s crime among the triggers.

Nor do the remaining criminal law objectives seem relevant. No one argues for Ewing’s inclusion within the ambit *52of the three strikes statute on grounds of “retribution.” Cf. Vitiello, Three Strikes: Can We Return to Rationality? 87 J. Crim. L. & C. 395, 427 (1997) (California’s three strikes law, like other “[hjabitual offender statutes[, is] not retributive” because the term of imprisonment is “imposed without regard to the culpability of the offender or [the] degree of social harm caused by the offender’s behavior,” and “has little to do with the gravity of the offens[e]”). For reasons previously discussed, in terms of “deterrence,” Ewing’s 25-year term amounts to overkill. See Parts II and III, supra. And “rehabilitation” is obviously beside the point. The upshot is that, in my view, the State cannot find in its three strikes law a special criminal justice need sufficient to rescue a sentence that other relevant considerations indicate is unconstitutional.

V

Justice Scalia and Justice Thomas argue that we should not review for gross disproportionality a sentence to a term of years. Ante, at 81 (Scalia, J., concurring in judgment); ante, at 32 (Thomas, J., concurring in judgment). Otherwise, we make it too difficult for legislators and sentencing judges to. determine just when their sentencing laws and practices pass constitutional muster.

I concede that a bright-line rule would give legislators and sentencing judges more guidance. But application of the Eighth Amendment to a sentence of a term of years requires a case-by-ease approach. And, in my view, like that of the plurality, meaningful enforcement of the Eighth Amendment demands that application — even if only at sentencing’s outer bounds.

A case-by-case approach can nonetheless offer guidance through example. Ewing’s sentence is, at a minimum, 2 to 3 times the length of sentences that other jurisdictions would impose in similar circumstances. That sentence itself is sufficiently long to require a typical offender to spend virtually all the remainder of his active life in prison. These and the *53other factors that I have discussed, along with the questions that I have asked along the way, should help to identify “gross disproportionality” in a fairly objective way — at the outer bounds of sentencing.

In stun, even if I accept for present purposes the plurality’s analytical framework, Ewing’s sentence (life imprisonment with a minimum term of 25 years) is grossly disproportionate to the triggering offense conduct — stealing three golf clubs — Ewing’s recidivism notwithstanding.

For these reasons, I dissent.

APPENDIX TO OPINION OF BREYER, J.

A

Thirty-three jurisdictions, as well as the federal courts, have laws that would make it impossible to sentence a Ewing-type offender to more than 10 years in prison:1

Federal: 12 to 18 months. USSG §2B1.1 (Nov. 1999); id., ch. 5, pt. A, Sentencing Table.

Alaska: three to five years; presumptive term of three years. Alaska Stat. §§ 11.46.130(a)(1), (c), 12.55.125(e) (2000).

Arizona: four to six years; presumptive sentence of five years. Ariz. Rev. Stat. Ann. §§ 13-604(C), 13-1802(E) (West 2001).

Connecticut: 1 to 10 years. Conn. Gen. Stat. §§53a-35a(6), 53a-40(j), 53a-124(a)(2) (2001).

Delaware: not more than two years. Del. Code Ann., Tit. 11, § 840(d) (Supp. 2000); § 4205(b)(7) (1995). Recidivist offender penalty not applicable. See §4214; Buckingham v. State, 482 A. 2d 327 (Del. 1984).

District of Columbia: not more than 10 years. D. C. Code Ann. §22-3212(a) (West 2001). Recidivist offender penalty *54not applicable. See § 22-1804a(c)(2) (West 2001) (amended 2001).

Florida: not more than 10 years. Fla. Stat. Ann. §§775.084(l)(a), (4)(a)(3) (West 2000) (amended 2002); § 812.014(c)(1) (West 2000).

Georgia: 10 years. Ga. Code Ann. § 16-8-12(a)(1) (1996); § 17-10-7(a) (Supp. 1996).

Hawaii: 20 months. Haw. Rev. Stat. §§ 708-831(1)(b), 706-606.5(1)(a)(iv), (7)(a) (Supp. 2001).

Idaho: 1 to 14 years. Idaho Code §§ 18-2403, 18-2407(b)(1), 18-2408(2)(a) (1948-1997). Recidivist/habitual' offender penalty of five years to life in prison, §19-2514, likely not applicable. Idaho has a general rule that “ ‘convictions entered the same day or charged in the same information should count as a single conviction for purposes of establishing habitual offender status.’ ” State v. Harrington, 133 Idaho 563, 565, 990 P. 2d 144, 146 (App. 1999) (quoting State v. Brandt, 110 Idaho 341, 344, 715 P. 2d 1011, 1014 (App. 1986)). However, “the nature of the convictions in any given situation must be examined to make certain that [this] general rule is appropriate.” Ibid. In this case, Ewing’s prior felony convictions stemmed from acts committed at the same apartment complex, and three of the four felonies were committed within a day of each other; the fourth offense was committed five weeks earlier. See App. 6; Tr. 45-46 (Information, Case No. NA018343-01 (Cal. Super. Ct.) (available in Clerk of Court’s ease file)). A review of Idaho ease law suggests that this case is factually distinguishable from cases in which the Idaho courts have declined to adhere to the general rule. See, e. g., Brandt, supra, at 348, 344, 715 P. 2d, at 1013, 1014 (three separately charged property offenses involving three separate homes and different victims committed “during a two-month period”); State v. Mace, 133 Idaho 903, 907, 994 P. 2d 1066, 1070 (App. 2000) (unrelated crimes (grand theft and DU I) committed on different dates in different counties); State v. Smith, 116 Idaho 553, 560, 777 *55P. 2d 1226, 1233 (App. 1989) (separate and distinguishable crimes committed on different victims in different counties).

Illinois: two to five years. Ill. Comp. Stat., ch. 730, §5/ 5-8-1(a)(6) (Supp. 2001); ch. 720, § 5/16-1(b)(4). Recidivist offender penalty not applicable. § 5/33B-1(a) (2000).

Indiana: 18 months (with not more than 18 months added for aggravating circumstances). Ind. Code § 35-43-4-2(a) (1993); §35-50-2-7(a). Recidivist offender penalty not applicable. See § 35-50-2-8 (amended 2001).

Iowa: three to five years. Iowa Code Ann. §§714.2(2), 902.9(5) (West Supp. 2002); §902.8 (West 1994).

Kansas: 9 to 11 months. Kan. Stat. Ann. §§21-3701(b)(2), 21-4704(a) (1995). Recidivist offender penalty not applicable. See §21-4504(e)(3).

Kentucky: 5 to 10 years. Ky. Rev. Stat. Ann. § 514.030(2) (Lexis Supp. 2002); §§ 532.060(2)(c), (d), 532.080(2), (5) (Lexis 1999).

Maine: less than one year. Me. Rev. Stat. Ann., Tit. 17-A, §353 (West 1983); §362(4)(B) (West Supp. 2000) (amended 2001); §1252(2)(D) (West 1983 and Supp. 2002). Recidivist offender penalty not applicable. See § 1252(4-A) (West Supp. 2000) (amended 2001).

Massachusetts: not more than five years. Mass. Gen. Laws, ch. 266, §30(1) (West 2000). Recidivist offender penalty not applicable. See ch. 279, §25 (West 1998); Commonwealth v. Hall, 397 Mass. 466, 468, 492 N. E. 2d 84, 85 (1986).

Minnesota: not more than five years. Minn. Stat. § 609.52, subd. 3(3)(a) (2002). Recidivist offender penalty not applicable. See §609.1095, subd. 2.

Mississippi: not more than five years. Miss. Code Ann. § 97-17-41(1)(a) (Lexis 1973-2000). Recidivist offender penalty not applicable. See §99-19-81.

Nebraska: not more than five years. Neb. Rev. Stat. § 28-105(1) (2000 Cum. Supp.); §28-518(2) (1995). Recidivist offender penalty not applicable. See §29-2221(1).

*56New Jersey: Extended term of between 5 to 10 years (instead of three to five years, N. J. Stat. Ann. § 2C:43-6 (1995)), § 2C:43-7(a)(4) (Supp. 2002), whether offense is treated as theft, § 2C:20-2(b)(2)(a), or shoplifting, §§2C:20-ll(b), (c)(2), because, even if Ewing’s felonies are regarded as one predicate crime, Ewing has been separately convicted and sentenced for at least one other crime for which at least a 6-month sentence was authorized, §2C:44-3(a); §2C:44-4(c) (1995).

New Mexico: 30 months. N. M. Stat. Ann. §30-16-20(B)(3) (1994); §31-18-15(A)(6) (2000); §31-18-17(B) (2000) (amended 2002).

New York: three to four years. N. Y. Penal Law § 70.06(3)(e) (West 1998); §155.30 (West 1999).

North Carolina: 4 to 25 months (with exact sentencing range dependent on details of offender’s criminal history). N. C. Gen. Stat. §§ 15A-1340.14, 15A-1340.17(c), (d), 14-72(a) (2001). Recidivist offender penalty not applicable. See §§ 14-7.1, 14-7.6.

North Dakota: not more than 10 years. N. D. Cent. Code § 12.1-23-05(2)(a) (1997); §§ 12.1-32-09(1), (2)(c) (1997) (amended 2001).

Ohio: 6 to 12 months. Ohio Rev. Code Ann. §§ 2913.02(B)(2), 2929.14(A)(5) (West Supp. 2002). No general recidivist statute.

Oregon: not more than five years. Ore. Rev. Stat. §161.605 (1997); Ore. Rev. Stat. Ann. §§ 164.055(l)(a), (3) (Supp. 1998). No general recidivist statute.

Pennsylvania: not more than five years (if no more than one prior theft was “retail theft”); otherwise, not more than seven years. Pa. Stat. Ann., Tit. 18, §§ 1103(3), 1104(1) (Pur-don 1998); §§ 3903(b), 3929(b)(l)(iii)-(iv) (Purdon Supp. 2002); § 3921 (Purdon 1983). Recidivist offender penalty not applicable. See 42 Pa. Cons. Stat. § 9714(a)(1) (1998).

*57Rhode Island: not more than 10 years. R. I. Gen. Laws § 11-41-5(a) (2002). Recidivist offender penalty not applicable. See § 12-19-21(a).

South Carolina: not more than five years. S. C. Code Ann. §§ 16-13-30, 16-13-110(B)(2) (West 2001 Cum. Supp.). Recidivist offender penalty not applicable. See § 17-25-45.

Tennessee: four to eight years. Tenn. Code Ann. §§39-14-105(3), 40-35-106(a)(1), (c), 40-35-112(b)(4) (1997).

Utah: not more than five years. Utah Code Ann. § 76-3-203(3) (1999) (amended 2000); § 76-6-412(l)(b)(i) (1999). Recidivist offender penalty not applicable. See §76-3-203.5 (Supp. 2002).

Washington: not more than 14 months (with exact sentencing range dependent on details of offender score), Wash. Rev. Code §§ 9A.56.040(l)(a), (2) (2000); §§9.94A.510(1), 9.94A.515, 9.94A.525 (2003 Supp. Pamphlet); maximum sentence of five years, §§9A.56.040(l)(a), (2), 9A.20.021(l)(c) (2000). Recidivist offender penalty not applicable. See §§9.94A.030(27), (31) (2000); § 9.94A.570 (2003 Supp. Pamphlet).

Wyoming: not more than 10 years. Wyo. Stat. Ann. § 6-3-404(a)(i) (Michie 2001). Recidivist offender penalty not applicable. See § 6-10-201(a).

B

In four other States, a Ewing-type offender could not have received a sentence of more than 15 years in prison:

Colorado: 4 to 12 years for “extraordinary aggravating circumstances” (e. g., defendant on parole for another felony at the time of commission of the triggering offense). Colo. Rev. Stat. §§ 18-l-105(l)(a)(V)(A), 18-l-105(9)(a)(II), 18-4-401(2)(c) (2002). Recidivist offender penalty not applicable. See §§ 16-13-101(f)(1.5), (2) (2001).

Maryland: not more than 15 years. Md. Ann. Code, Art. 27, § 342(f)(1) (1996) (repealed 2002). Recidivist offender penalty not applicable. See § 643B.

*58New Hampshire: not more than 15 years. N. H. Stat. Ann. §§637:ll(I)(a), 651:2(II)(a) (West Supp. 2002). Recidivist offender penalty not applicable. See §651:6(I)(c).

Wisconsin: not more than 11 years (at the time of Ewing’s offense). Wis. Stat. Ann. § 939.50(3)(e) (West Supp. 2002); §§939.62(l)(b), (2), 943.20(3)(b) (West 1996) (amended 2001). Wisconsin subsequently amended the relevant statutes so that a Ewing-type offender would only be eligible for a sentence of up to three years. See §§ 939.51(3)(a), 943.20(3)(a), 939.62(l)(a) (West Supp. 2003). And effective February 1, 2003, such an offender is eligible for a sentence of only up to two years. See §§ 939.51(3)(a), 943.20(3)(a), 939.62(l)(a).

C

In four additional States, a Ewing-type offender could not have been sentenced to more than’20 years in prison:

Arkansas: 3 to 20 years. Ark. Code Ann. § 5-36-103(b)(2)(A) (1997); §§ 5-4-501(a)(2)(D), (e)(1) (1997) (amended 2001). Eligible for parole after serving one-third of the sentence. § 5-4-501 (1997); § 16-93-608 (1987).

Missouri: not more than 20 years. Mo. Rev. Stat. §558.016(7X3) (2000); § 570.030(3)(1) (2000) (amended 2002). Eligible for parole after 15 years at the latest. §558.011(4)(l)(c).

Texas: 2 to 20 years. Tex. Penal Code Ann. §§ 12.33(a), 12.35(c)(2)(A) (1994); §§ 12.42(a)(3), 31.03(e)(4)(D) (Supp. 2003). Eligible for parole after serving one-fourth of sentence. Tex. Govt. Code Ann. §508.145(f) (Supp. 2003).

Virginia: statutory range of 1 to 20 years (or less than 12 months at the discretion of the jury or court following bench trial), Va. Code Ann. § 18.2-95 (Supp. 2002), but discretionary sentencing guideline ranges established by the Virginia Sentencing Commission, §§ 17.1-805, 19.2-298.01 (2000), with a maximum of 6 years, 3 months, to 15 years, 7 months, see Virginia Criminal Sentencing Commission, Virginia Sentencing Guidelines Manual, Larceny — Section C Recommenda*59tion Table (6th ed. 2002) (with petitioner likely falling within the discretionary guideline range of 2 years, 1 month, to 5 years, 3 months, see Brief for Petitioner 33, n. 25). Recidivist offender penalty not applicable. See § 19.2-297.1 (2000).

D

In nine other States, the law might make it legally possible to impose a sentence of 25 years or more upon a Ewing-type offender. But in five of those nine States,2 the offender would be parole-eligible before 25 years:

Alabama: “life or any term of not less than 20 years.” Ala. Code § 13A-5-9(c)(2) (Lexis Supp. 2002); §§ 13A-8-3(a), (c) (1994). Eligible for parole after the lesser of one-third of the sentence or 10 years. § 15-22-28(e) (1995).

Louisiana: Louisiana courts could have imposed a sentence of life without the possibility of parole at the time of Ewing’s offense. La. Stat. Ann. §§ 14:67.10(B)(1), 14:2(4), (13)(y) (West Supp. 2003); §§ 15:529.1(A)(l)(b)(ii) and (c)(iMii) (West 1992) (amended 2001). Petitioner argues that, despite the statutory authority to impose such a sentence, Louisiana courts would have carefully scrutinized his life sentence, as they had in other cases involving recidivists charged with a nonviolent crime. Brief for Petitioner 35-36, n. 29; see Brief for Families Against Mandatory Minimums as Amicus Curiae 24-25, and n. 21; State v. Hayes, 98-1526, p. 4 (La. App. 6/25/99), 739 So. 2d 301, 303-304 (holding that a life sentence was impermissibly excessive for a defendant convicted of theft of over $1,000, who had a prior robbery conviction). But see Brief for Respondent 45-46, n. 12 (contesting petitioner’s argument). Louisiana has amended its recidivist statute to require that the triggering offense be a violent felony, and that the offender have at least two prior violent felony convictions to be eligible for a life sentence. La. Stat. *60Ann. § 15:529.l(A)(l)(b)(ii) (West Supp. 2003). Under current law, a Ewing-type offender would face a sentence of 6% to 20 years. §§ 14:67.10(B)(1), 15:529.1(A)(b)(i).

Michigan: “imprisonment for life or for a lesser term,” Mich. Comp. Laws Ann. §769.12(l)(a) (West 2000) (instead of “not more than 15 years,” §769.12(l)(b), as petitioner contends, see Brief for Petitioner 34, n. 26; Brief for Families Against Mandatory Mínimums as Amicus Curiae 16-17, n. 15, 22-23, n. 20), because the triggering offense is “punishable upon a first conviction by imprisonment for a maximum term of 5 years or more,” § 769.12(l)(a) (West 2000). The larceny for which Ewing was convicted was, under Michigan law, “a felony punishable by imprisonment for not more than 5 years.” § 750.356(3)(a) (West Supp. 2002). Eligible for parole following minimum term set by sentencing judge. §769.12(4) (West 2000).

Montana: 5 to 100 years. Mont. Code Ann. §45-6-301(7)(b) (1999); §§46-18-501, 46-18-502(1) (2001). A Ewing-type offender would not have been subject to a minimum term of 10 years in prison (as the State suggests, Brief for Respondent 44) because Ewing does not meet the requirements of §46-18-502(2) (must be a “persistent felony offender,” as defined in §46-18-501, at the time of the offender’s previous felony conviction). See Reply Brief for Petitioner 18, n. 14. Eligible for parole after one-fourth of the term. §46-23-201(2).

Nevada: “life without the possibility of parole,” or “life with the possibility of parole [after serving] 10 years,” or “a definite term of 25 years, with eligibility for parole [after serving] 10 years.” Nev. Rev. Stat. §§207.010(l)(b)(l)-{3) (1995).

Oklahoma: not less than 20 years (at the time of Ewing’s offense). Okla. Stat., Tit. 21, § 51.1(B) (West Supp. 2000) (amended in 2001 to four years to life, § 51.1(C) (West 2001)); § 1704 (West 1991) (amended 2001). Eligible for parole after serving one-third of sentence. Tit. 57, § 332.7(B) (West *612001). Thus, assuming a sentence to a term of years of up to 100 years (as in Montana, see supra, at 60), parole eligibility could arise as late as after 33 years.

South Dakota: maximum penalty of life imprisonment, with no minimum term. S. D. Codified Laws §22-7-8 (1998); §22-30A-17(l) (Supp. 2002). Eligible for parole after serving one-half of sentence. §24-15-5(3) (1998). Thus, assuming a sentence to a term of years of up to 100 years (as in Montana, see supra, at 60), parole eligibility could arise as late as after 50 years.

Vermont: “up to and including life,” Vt. Stat. Ann., Tit. 13, § 11 (1998), or not more than 10 years, §2501; State v. Angelucci, 137 Vt. 272, 289-290, 405 A. 2d 33, 42 (1979) (court has discretion to sentence habitual offender to the sentence that is specified for grand larceny alone). Eligible for parole after six months. Tit. 28, § 501 (2000) (amended 2001).

West Virginia: Petitioner contends that he would only have been subject to a misdemeanor sentence of not more than 60 days for shoplifting, W. Va. Code §§61-3A-1, 61-3A-3(a)(2) (2000); Brief for Petitioner 31, n. 19, 33-34, n. 25. However, a Ewing-type offender could have been charged with grand larceny, see State ex rel. Chadwell v. Duncil, 196 W. Va. 643, 647-648, 474 S. E. 2d 573, 577-578 (1996) (prosecutor has discretion to charge defendant with either shoplifting or grand larceny), a felony punishable by imprisonment in the state penitentiary for 1 to 10 years (or, at the discretion of the trial court, not more than 1 year in jail). §61-3-13(a). Under West Virginia’s habitual offender statute, a felon “twice before convicted ... of a crime punishable by confinement in a penitentiary.. . . shall be sentenced to . . . life [imprisonment],” § 61 — 11—18(c), with parole eligibility after 15 years, § 62-12-13(c). Amicus curiae on behalf of petitioner notes that, in light of existing state-law precedents, West Virginia courts “would not countenance a sentence of life without the possibility of parole for 25 years for shoplifting golf clubs.” Brief for Families Against Mandatory Mínimums as Amicus *62Curiae 25-26 (citing State v. Barker, 186 W. Va. 73, 74-75, 410 S. E. 2d 712, 713-714 (1991) (per curiam); and State v. Deal, 178 W. Va. 142, 146-147, 358 S. E. 2d 226, 230-231 (1987)). But see Brief for Respondent 45, n. 11 (contesting that argument).

*832OPINION OF THE COURT

[560 U.S. 52]

Justice Kennedy

delivered the opinion of the Court.

The issue before the Court is whether the Constitution permits a juvenile offender to be sentenced to life in prison

[560 U.S. 53]

without parole for a nonhomicide crime. The sentence was imposed by the State of Florida. Petitioner challenges the sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).

I

Petitioner is Terrance Jamar Graham. He was born on January 6, 1987. Graham’s parents were addicted to crack cocaine, and their drug use persisted in his early years. Graham was diagnosed with attention deficit hyperactivity disorder in elementary school. He began drinking alcohol and using tobacco at age 9 and smoked marijuana at age 13.

In July 2003, when Graham was age 16, he and three other school-age youths attempted to rob a barbeque restaurant in Jacksonville, Florida. One youth, who worked at the restaurant, left the back door unlocked just before closing time. Graham and another youth, wearing masks, entered through the unlocked door. Graham’s masked accomplice twice struck the restaurant manager in the back of the head with a metal bar. When the manager started yelling at the assailant and Graham, the two youths ran out and escaped in a car driven by the third accomplice. The restaurant manager required stitches for his head injury. No money was taken.

Graham was arrested for the robbery attempt. Under Florida law, it is within a prosecutor’s discretion whether to charge 16- and 17-year-olds as adults or juveniles for most felony crimes. Fla. Stat. § 985.227(1)(b) (2003) (subsequently renumbered at § 985.557(1)(b) (2007)). Graham’s prosecutor elected to charge Graham as an adult. The charges against Graham were armed burglary with assault or battery, a first-degree felony carrying a maximum penalty of life imprisonment without the possibility of parole, §§ 810.02(1)(b), (2)(a) (2003); and attempted armed robbery, a second-degree

[560 U.S. 54]

felony carrying a maximum penalty of 15 years’ imprisonment, §§ 812.13(2)(b), 777.04(1), (4)(a), 775.082(3)(c).

On December 18, 2003, Graham pleaded guilty to both charges under a plea agreement. Graham wrote a letter to the trial court. After reciting “this is my first and last time getting in trouble,” he continued, “I’ve decided to turn my life around.” App. 379-380. Graham said, “I made a promise to God and myself that if I get a second chance, I’m going to do whatever it takes to get to the [National Football League].” Id., at 380.

The trial court accepted the plea agreement. The court withheld adjudication of guilt as to both charges and sentenced Graham to concurrent 3-year terms of probation. Graham was required to spend the first 12 months of his probation in the county jail, but he received credit for the time he had served awaiting trial, and was released on June 25, 2004.

Less than six months later, on the night of December 2, 2004, Graham again was arrested. The State’s case *833was as follows: Earlier that evening, Graham participated in a home invasion robbery. His two accomplices were Meigo Bailey and Kirkland Lawrence, both 20-year-old men. According to the State, at 7 p.m. that night, Graham, Bailey, and Lawrence knocked on the door of the home where Carlos Rodriguez lived. Graham, followed by Bailey and Lawrence, forcibly entered the home and held a pistol to Rodriguez’s chest. For the next 30 minutes, the three held Rodriguez and another man, a friend of Rodriguez, at gunpoint while they ransacked the home searching for money. Before leaving, Graham and his accomplices barricaded Rodriguez and his friend inside a closet.

The State further alleged that Graham, Bailey, and Lawrence, later the same evening, attempted a second robbery, during which Bailey was shot. Graham, who had borrowed his father’s car, drove Bailey and Lawrence to the hospital and left them there. As Graham drove away, a police sergeant

[560 U.S. 55]

signaled him to stop. Graham continued at a high speed but crashed into a telephone pole. He tried to flee on foot but was apprehended. Three handguns were found in his car.

When detectives interviewed Graham, he denied involvement in the crimes. He said he encountered Bailey and Lawrence only after Bailey had been shot. One of the detectives told Graham that the victims of the home invasion had identified him. He asked Graham, “Aside from the two robberies tonight how many more were you involved in?” Graham responded, “Two to three before tonight.” Id., at 160. The night that Graham allegedly committed the robbery, he was 34 days short of his 18th birthday.

On December 13, 2004, Graham’s probation officer filed with the trial court an affidavit asserting that Graham had violated the conditions of his probation by possessing a firearm, committing crimes, and associating with persons engaged in criminal activity. The trial court held hearings on Graham’s violations about a year later, in December 2005 and January 2006. The judge who presided was not the same judge who had accepted Graham’s guilty plea to the earlier offenses.

Graham maintained that he had no involvement in the home invasion robbery; but, even after the court underscored that the admission could expose him to a life sentence on the earlier charges, he admitted violating probation conditions by fleeing. The State presented evidence related to the home invasion, including testimony from the victims. The trial court noted that Graham, in admitting his attempt to avoid arrest, had acknowledged violating his probation. The court further found that Graham had violated his probation by committing a home invasion robbery, by possessing a firearm, and by associating with persons engaged in criminal activity.

The trial court held a sentencing hearing. Under Florida law the minimum sentence Graham could receive absent a

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downward departure by the judge was 5 years’ imprisonment. The maximum was life imprisonment. Graham’s attorney requested the minimum nondeparture sentence of 5 years. A presentence report prepared by the Florida Department of Corrections recommended that Graham receive an even lower sentence—at most 4 years’ imprisonment. The State recommended that Graham receive 30 years on the armed burglary *834count and 15 years on the attempted armed robbery count.

After hearing Graham’s testimony, the trial court explained the sentence it was about to pronounce:

“Mr. Graham, as I look back on your case, yours is really candidly a sad situation. You had, as far as I can tell, you have quite a family structure. You had a lot of people who wanted to try and help you get your life turned around including the court system, and you had a judge who took the step to try and give you direction through his probation order to give you a chance to get back onto track. And at the time you seemed through your letters that that is exactly what you wanted to do. And I don’t know why it is that you threw your life away. I don’t know why.

“But you did, and that is what is so sad about this today is that you have actually been given a chance to get through this, the original charge, which were very serious charges to begin with. . . . The as a very serious charge.

“[I]n a very short period of time you were back before the Court on a violation of this probation, and then here you are two years later standing before me, literally the—facing a life sentence as to—up to life as to count 1 and up to 15 years as to count 2.

“And I don’t understand why you would be given such a great opportunity to do something with your life and

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why you would throw it away. The only thing that I can rationalize is that you decided that this is how you were going to lead your life and that there is nothing that we can do for you. And as the state pointed out, that this is an escalating pattern of criminal conduct on your part and that we can’t help you any further. We can’t do anything to deter you. This is the way you are going to lead your life, and I don’t know why you are going to. You’ve made that decision. I have no idea. But, evidently, that is what you decided to do.

“So then it becomes a focus, if I can’t do anything to help you, if I can’t do anything to get you back on the right path, then I have to start focusing on the community and trying to protect the community from your actions. And, unfortunately, that is where we are today is I don’t see where I can do anything to help you any further. You’ve evidently decided this is the direction you’re going to take in life, and it’s unfortunate that you made that choice.

“I have reviewed the statute. I don’t see where any further juvenile sanctions would be appropriate. I don’t see where any youthful offender sanctions would be appropriate. Given your escalating pattern of criminal conduct, it is apparent to the Court that you have decided that this is the way you are going to live your life and that the only thing I can do now is to try and protect the community from your actions.” Id., at 392-394.

The trial court found Graham guilty of the earlier armed burglary and attempted armed robbery charges. It sentenced him to the maximum sentence authorized by law on each charge: life imprisonment for the armed burglary and 15 years for the attempted armed robbery. Because *835Florida has abolished its parole system, see Fla. Stat. § 921.002(1)(e) (2003), a life sentence gives a defendant no possibility of release unless he is granted executive clemency

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Graham filed a motion in the trial court challenging his sentence under the Eighth Amendment. The motion was deemed denied after the trial court failed to rule on it within 60 days. The First District Court of Appeal of Florida affirmed, concluding that Graham’s sentence was not grossly disproportionate to his crimes. 982 So. 2d 43 (2008). The court took note of the seriousness of Graham’s offenses and their violent nature, as well as the fact that they “were not committed by a pre-teen, but a seventeen-year-old who was ultimately sentenced at the age of nineteen.” Id., at 52. The court concluded further that Graham was incapable of rehabilitation. Although Graham “was given an unheard of probationary sentence for a life felony, . . . wrote a letter expressing his remorse and promising to refrain from the commission of further crime, and . . . had a strong family structure to support him,” the court noted, he “rejected his second chance and chose to continue committing crimes at an escalating pace.” Ibid. The Florida Supreme Court denied review. 990 So. 2d 1058 (2008) (table).

We granted certiorari. 556 U.S. 1220, 129 S. Ct. 2157, 173 L. Ed. 2d 1155 (2009).

II

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ ” Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 382, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Burger, C. J., dissenting)).

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The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances. See, eg., Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). “[P]unishments of torture,” for example, “are forbidden.” Wilkerson v. Utah, 99 U.S. 130, 136, 25 L. Ed. 345 (1879). These cases underscore the essential principle that, under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes.

For the most part, however, the Court’s precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime. The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L. Ed. 793 (1910).

*836The Court’s cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.

In the first classification the Court considers all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive. Under this approach, the Court has held unconstitutional a life without parole sentence for the defendant’s seventh nonviolent felony, the crime of passing a worthless check. Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). In other cases, however, it has been difficult for the challenger to establish a lack of proportionality. A leading case is Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), in which the offender was sentenced under state law to life without parole for possessing a large quantity of cocaine. A closely divided Court upheld the sentence. The controlling opinion concluded that the Eighth Amendment contains a “narrow

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proportionality principle,” that “does not require strict proportionality between crime and sentence” but rather “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id., at 997, 1000-1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part and concurring in judgment). Again closely divided, the Court rejected a challenge to a sentence of 25 years to life for the theft of a few golf clubs under California’s so-called three-strikes recidivist sentencing scheme. Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003); see also Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The Court has also upheld a sentence of life with the possibility of parole for a defendant’s third nonviolent felony, the crime of obtaining money by false pretenses, Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980), and a sentence of 40 years for possession of marijuana with intent to distribute and distribution of marijuana, Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (per curiam).

The controlling opinion in Harme-lin explained its approach for determining whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime. A court must begin by comparing the gravity of the offense and the severity of the sentence. 501 U.S., at 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (opinion of Kennedy, J.). “[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality” the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. Ibid. If this comparative analysis “validate [s] an initial judgment that [the] sentence is grossly disproportionate,” the sentence is cruel and unusual. Ibid.

The second classification of cases has used categorical rules to define Eighth Amendment standards. The previous cases in this classification involved the death penalty. The classification in turn consists of two subsets, one considering the nature of the offense, the other considering the characteristics of the offender. With *837respect to the nature of the

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offense, the Court has concluded that capital punishment is impermissible for non-homicide crimes against individuals. Kennedy, 551 U.S., at 437-438, 128 S. Ct. 2641, 171 L. Ed. 2d 525; see also Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). In cases turning on the characteristics of the offender, the Court has adopted categorical rules prohibiting the death penalty for defendants who committed their crimes before the age of 18, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), or whose intellectual functioning is in a low range, Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). See also Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988).

In the cases adopting categorical rules the Court has taken the following approach. The Court first considers “objective indicia of society’s standards, as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Roper, supra, at 563, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Next, guided by “the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,” Kennedy, 554 U.S., at 421, 128 S. Ct. 2641, 171 L. Ed. 2d 525, the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. Roper, supra, at 564, 125 S. Ct. 1183, 161 L. Ed. 2d 1.

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved

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the categorical approach, specifically Atkins, Roper, and Kennedy.

Ill

A

The analysis begins with objective indicia of national consensus. “[T]he ‘clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.’ ” Atkins, supra, at 312, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (quoting Penry v. Lynaugh, 492 U.S. 302, 331, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989)). Six jurisdictions do not allow life without parole sentences for any juvenile offenders. See Appendix, infra, Part III. Seven jurisdictions permit life without parole for juvenile offenders, but only for homicide crimes. Id., Part II. Thirty-seven States as well as the District of Columbia permit sentences of life without parole for a juvenile nonhomicide offender in some circumstances. Id., Part I. Federal law also allows for the possibility of life without parole for offenders as young as 13. See, e.g., 18 U.S.C. §§ 2241 (2006 ed. and Supp. II), 5032 (2006 ed.). Relying on this *838metric, the State and its amici argue that there is no national consensus against the sentencing practice at issue.

This argument is incomplete and unavailing. “There are measures of consensus other than legislation.” Kennedy, supra, at 433, 128 S. Ct. 2641, 171 L. Ed. 2d 525. Actual sentencing practices are an important part of the Court’s inquiry into consensus. See Enmund, supra, at 794-796, 102 S. Ct. 3368, 73 L. Ed. 2d 1140; Thompson, supra, at 831-832, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (plurality opinion); Atkins, supra, at 316, 122 S. Ct. 2242, 153 L. Ed. 2d 335; Roper, supra, at 564-565, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Kennedy, supra, at 433-434, 128 S. Ct. 2641, 171 L. Ed. 2d 525. Here, an examination of actual sentencing practices in jurisdictions where the sentence in question is permitted by statute discloses a consensus against its use. Although these statutory schemes contain no explicit prohibition on sentences of life without parole for juvenile nonhomicide offenders, those sentences are most infrequent. According to a recent study, nationwide there are only 109 juvenile offenders serving sentences of life without

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parole for nonhomicide offenses. See P. Annino, D. Rasmussen, & C. Rice, Juvenile Life without Parole for Non-Homicide Offenses: Florida Compared to Nation 2 (Sept. 14, 2009) (hereinafter Annino).

The State contends that this study’s tally is inaccurate because it does not count juvenile offenders who were convicted of both a homicide and a nonhomicide offense, even when the offender received a life without parole sentence for the nonhomicide. See Brief for Respondent 34; Tr. of Oral Arg. in Sullivan v. Florida, O. T. 2009, No. 08-7621, pp. 28-31. This distinction is unpersuasive. Juvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide. It is difficult to say that a defendant who receives a life sentence on a nonhomicide offense but who was at the same time convicted of homicide is not in some sense being punished in part for the homicide when the judge makes the sentencing determination. The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.

Florida further criticizes this study because the authors were unable to obtain complete information on some States and because the study was not peer reviewed. See Brief for Respondent 40. The State does not, however, provide any data of its own. Although in the first instance it is for the litigants to provide data to aid the Court, we have been able to supplement the study’s findings. The study’s authors were not able to obtain a definitive tally for Nevada, Utah, or Virginia. See Annino 11-13. Our research shows that Nevada has five juvenile nonhomicide offenders serving life without parole sentences, Utah has none, and Virginia has eight. See Letter from Alejandra Livingston, Offender Management Division, Nevada Dept, of Corrections, to Supreme Court Library (Mar. 26, 2010) (available in Clerk of Court’s case file); Letter from Steve Gehrke, Utah Dept, of

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Corrections, to Supreme Court Library (Mar. 29, 2010) (same); Letter from Dr. Tama S. Celi, Virginia Dept, of Corrections, to Supreme Court Library (Mar. 30, 2010) (same). *839Finally, since the study was completed, a defendant in Oklahoma has apparently been sentenced to life without parole for a rape and stabbing he committed at the age of 16. See Stogsdill, Delaware County Teen Sentenced in Rape, Assault Case, Tulsa World, May 5, 2010, p. A12.

Thus, adding the individuals counted by the study to those we have been able to locate independently, there are 123 juvenile nonhomicide offenders serving life without parole sentences. A significant majority of those, 77 in total, are serving sentences imposed in Florida. Annino 2. The other 46 are imprisoned in just 10 States—California, Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina, and Virginia. Id., at 14; supra, at 63 and this page, 176 L. Ed. 2d, at 838-839; Letter from Thomas P. Hoey, Dept, of Corrections, Government of the District of Columbia, to Supreme Court Library (Mar. 31, 2010) (available in Clerk of Court’s case file); Letter from Judith Simon Garrett, U. S. Dept. of Justice, Federal Bureau of Prisons, to Supreme Court Library (Apr. 9, 2010) (same). Thus, only 11 jurisdictions nationwide in fact impose life without parole sentences on juvenile nonhomicide offenders—and most of those do so quite rarely— while 26 States, the District of Columbia, and the Federal Government do not impose them despite statutory authorization.*

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The numbers cited above reflect all current convicts in a jurisdiction’s penal system, regardless of when they were convicted. It becomes all the more clear how rare these sentences are, even within the jurisdictions that do sometimes impose them, when one considers that a juvenile sentenced to life without parole is likely to live in prison for decades. Thus, these statistics likely reflect nearly all juvenile nonhomicide offenders who have received a life without parole sentence stretching back many years. It is not certain that this opinion has identified every juvenile nonhomicide offender nationwide serving a life without parole sentence, for the statistics are not precise. The available data, nonetheless, are sufficient to demonstrate how rarely these sentences are imposed even if there are isolated cases that have not been included in the presentations of the parties or the analysis of the Court.

It must be acknowledged that in terms of absolute numbers juvenile life without parole sentences for non-homicides are more common than the sentencing practices at issue in some of this Court’s other Eighth Amendment cases. See, e.g., Enmund, 458 U.S., at 794, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (only six executions of non-triggerman felony murderers between 1954 and 1982), Atkins, 536 U.S., at 316, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (only five executions of mentally retarded defendants in 13-year period). This contrast can be instructive, however, if attention is first given to the base number of certain types of offenses. For example, in the year 2007 (the most recent year for which statis*840tics are available), a total of 13,480 persons, adult and juvenile, were arrested for homicide crimes. That same year, 57,600 juveniles were arrested for aggravated assault; 3,580 for forcible rape; 34,500 for robbery; 81,900 for burglary; 195,700 for drug offenses; and 7,200 for arson. See Dept, of Justice, Office of Juvenile Justice and Delinquency Prevention, Statistical Briefing Book, online at http:// ojjdp.ncjrs.org/ojstatbb/ (as visited May 14, 2010, and available in Clerk of Court’s case file). Although it is not certain how many of these numerous juvenile offenders were eligible for life without parole

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sentences, the comparison suggests that in proportion to the opportunities for its imposition, life without parole sentences for juveniles convicted of nonhomicide crimes is as rare as other sentencing practices found to be cruel and unusual.

The evidence of consensus is not undermined by the fact that many jurisdictions do not prohibit life without parole for juvenile nonhomicide offenders. The Court confronted a similar situation in Thompson, where a plurality concluded that the death penalty for offenders younger than 16 was unconstitutional. A number of States then allowed the juvenile death penalty if one considered the statutory scheme. As is the case here, those States authorized the transfer of some juvenile offenders to adult court; and at that point there was no statutory differentiation between adults and juveniles with respect to authorized penalties. The plurality concluded that the transfer laws show “that the States consider 15-year-olds to be old enough to be tried in criminal court for serious crimes (or too old to be dealt with effectively in juvenile court), but tells us nothing about the judgment these States have made regarding the appropriate punishment for such youthful offenders.” 487 U.S., at 826, n. 24, 108 S. Ct. 2687, 101 L. Ed. 2d 702. Justice O’Connor, concurring in the judgment, took a similar view. Id., at 850, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (“When a legislature provides for some 15-year-olds to be processed through the adult criminal justice system, and capital punishment is available for adults in that jurisdiction, the death penalty becomes at least theoretically applicable to such defendants. . . . [HJowever, it does not necessarily follow that the legislatures in those jurisdictions have deliberately concluded that it would be appropriate”).

The same reasoning obtains here. Many States have chosen to move away from juvenile court systems and to allow juveniles to be transferred to, or charged directly in, adult court under certain circumstances. Once in adult court, a juvenile offender may receive the same sentence as would be given to an adult offender, including a life without parole

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sentence. But the fact that transfer and direct charging laws make life without parole possible for some juvenile nonhomicide offenders does not justify a judgment that many States intended to subject such offenders to life without parole sentences.

For example, under Florida law a child of any age can be prosecuted as an adult for certain crimes and can be sentenced to life without parole. The State acknowledged at oral argument that even a 5-year-old, theoretically, could receive such a sentence under the letter of the law. See Tr. of Oral Arg. 36-37. All would concede this to be unrealistic, but the example underscores that the statutory eligibility of a juvenile offender for life without parole does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration. Similarly, the many States that allow life without parole *841for juvenile nonhomicide offenders but do not impose the punishment should not be treated as if they have expressed the view that the sentence is appropriate. The sentencing practice now under consideration is exceedingly rare. And “it is fair to say that a national consensus has developed against it.” Atkins, supra, at 316, 122 S. Ct. 2242, 153 L. Ed. 2d 335.

B

Community consensus, while “entitled to great weight,” is not itself determinative of whether a punishment is cruel and unusual. Kennedy, 554 U.S., at 434, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (internal quotation marks omitted). In accordance with the constitutional design, “the task of interpreting the Eighth Amendment remains our responsibility.” Roper, 543 U.S., at 575, 125 S. Ct. 1183, 161 L. Ed. 2d 1. The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. Id., at 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Kennedy, supra, at 438, 128 S. Ct. 2641, 171 L. Ed. 2d 525; cf. Solem, 463 U.S., at 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. Kennedy, supra, at

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441-446, 128 S. Ct. 2641, 171 L. Ed. 2d 525; Roper, supra, at 571-572, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Atkins, 536 U.S., at 318-320, 122 S. Ct. 2242, 153 L. Ed. 2d 335.

Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U.S., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1. As compared to adults, juveniles have a “ ‘lack of maturity and an underdeveloped sense of responsibility’ ”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.” Id., at 569-570, 125 S. Ct. 1183, 161 L. Ed. 2d 1. These salient characteristics mean that “ [i] t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.” Id., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Ajuvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (plurality opinion).

No recent data provide reason to reconsider the Court’s observations in Roper about the nature of juveniles. As petitioner’s amici point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence. See Brief for American Medical Association et al. 16-24; Brief for American Psychological Association et al. 22-27. Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character” than are the actions of adults. Roper, 543 U.S., at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1. It remains true that “[f|rom a moral standpoint it *842would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Ibid. These matters relate to the status of the offenders in question; and it is relevant to consider

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next the nature of the offenses to which this harsh penalty might apply.

The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. Kennedy, supra; Enmund, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140; Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987); Coker, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982. There is a line “between homicide and other serious violent offenses against the individual.” Kennedy, 554 U.S., at 438, 128 S. Ct. 2641, 171 L. Ed. 2d 525. Serious non-homicide crimes “may be devastating in their harm . . . but ‘in terms of moral depravity and of the injury to the person and to the public,’ . . . they cannot be compared to murder in their ‘severity and irrevocability.’ ” Ibid, (quoting Coker, 433 U.S., at 598, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (plurality opinion)). This is because “[l]ife is over for the victim of the murderer,” but for the victim of even a very serious nonhomicide crime, “life ... is not over and normally is not beyond repair.” Ibid, (plurality opinion). Although an offense like robbery or rape is “a serious crime deserving serious punishment,” Enmund, supra, at 797, 102 S. Ct. 3368, 73 L. Ed. 2d 1140, those crimes differ from homicide crimes in a moral sense.

It follows that, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis.

As for the punishment, life without parole is “the second most severe penalty permitted by law.” Harmelin, 501 U.S., at 1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part and concurring in judgment). It is true that a death sentence is “unique in its severity and irrevoca-bility,” Gregg v. Georgia, 428 U.S. 153, 187, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); yet life without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives

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the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence. Solem, 463 U.S., at 300-301, 103 S. Ct. 3001, 77 L. Ed. 2d 637. As one court observed in overturning a life without parole sentence for a juvenile defendant, this sentence “means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.” Naovarath v. State, 105 Nev. 525, 526, 779 P.2d 944 (1989).

The Court has recognized the severity of sentences that deny convicts the possibility of parole. In Rummel, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382, the Court rejected an Eighth Amendment challenge to a life sen*843tence for a defendant’s third nonviolent felony but stressed that the sentence gave the defendant the possibility of parole. Noting that “parole is an established variation on imprisonment of convicted criminals,” it was evident that an analysis of the petitioner’s sentence “could hardly ignore the possibility that he will not actually be imprisoned for the rest of his life.” Id., at 280-281, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (internal quotation marks omitted). And in Solem, the only previous case striking down a sentence for a term of years as grossly disproportionate, the defendant’s sentence was deemed “far more severe than the life sentence we considered in Rummel,” because it did not give the defendant the possibility of parole. 463 U.S., at 297, 103 S. Ct. 3001, 77 L. Ed. 2d 637.

Life without parole is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only. See Roper, supra, at 572, 125 S. Ct. 1183, 161 L. Ed. 2d 1; cf. Harmelin, supra, at 996, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (“In some cases . . . there will be negligible difference between life without parole and other sentences of imprisonment—for example, ... a lengthy term

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sentence without eligibility for parole, given to a 65-year-old man”). This reality cannot be ignored.

The penological justifications for the sentencing practice are also relevant to the analysis. Kennedy, supra, at 420, 128 S. Ct. 2641, 171 L. Ed. 2d 525; Roper, 543 U.S., at 571-572, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Atkins, 536 U.S., at 318-320, 122 S. Ct. 2242, 153 L. Ed. 2d 335. Criminal punishment can have different goals, and choosing among them is within a legislature’s discretion. See Harmelin, supra, at 999, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (opinion of Kennedy, J.) (“[T]he Eighth Amendment does not mandate adoption of any one peno-logical theory”). It does not follow, however, that the purposes and effects of penal sanctions are irrelevant to the determination of Eighth Amendment restrictions. A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense. With respect to life without parole for juvenile non-homicide offenders, none of the goals of penal sanctions that have been recognized as legitimate—retribution, deterrence, incapacitation, and rehabilitation, see Ewing, 538 U.S., at 25, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (plurality opinion)—provides an adequate justification.

Retribution is a legitimate reason to punish, but it cannot support the sentence at issue here. Society is entitled to impose severe sanctions on a juvenile nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense. But “ [t]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.” Tison, supra, at 149, 107 S. Ct. 1676, 95 L. Ed. 2d 127. And as Roper observed, “[w]hether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult.” 543 U.S., at 571, 125 S. Ct. *8441183, 161 L. Ed. 2d 1. The case becomes even weaker with respect to a juvenile who did not commit homicide. Roper found that “[r]etribution is not proportional if the law’s most severe penalty is imposed” on the juvenile murderer. Ibid. The considerations underlying that holding support as well the conclusion

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that retribution does not justify imposing the second most severe penalty on the less culpable juvenile nonhomicide offender.

Deterrence does not suffice to justify the sentence either. Roper noted that “the same characteristics that render juveniles less culpable than adults suggest. . . that juveniles will be less susceptible to deterrence.” Ibid. Because juveniles’ “lack of maturity and an underdeveloped sense of responsibility . . . often result in impetuous and ill-considered actions and decisions,” Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993), they are less likely to take a possible punishment into consideration when making decisions. This is particularly so when that punishment is rarely imposed. That the sentence deters in a few cases is perhaps plausible, but “[tjhis argument does not overcome other objections.” Kennedy, 554 U.S., at 441, 128 S. Ct. 2641, 171 L. Ed. 2d 525. Even if the punishment has some connection to a valid penological goal, it must be shown that the punishment is not grossly disproportionate in light of the justification offered. Here, in light of juvenile nonhomicide offenders’ diminished moral responsibility, any limited deterrent effect provided by life without parole is not enough to justify the sentence.

Incapacitation, a third legitimate reason for imprisonment, does not justify the life without parole sentence in question here. Recidivism is a serious risk to public safety, and so incapacitation is an important goal. See Ewing, supra, at 26, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (plurality opinion) (statistics show 67 percent of former inmates released from state prisons are charged with at least one serious new crime within three years). But while incapacitation may be a legitimate penological goal sufficient to justify life without parole in other contexts, it is inadequate to justify that punishment for juveniles who did not commit homicide. To justify life without parole on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible. The characteristics of juveniles make that

[560 U.S. 73]

judgment questionable. “It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, supra, at 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1. As one court concluded in a challenge to a life without parole sentence for a 14-year-old, “incorrigibility is inconsistent with youth.” Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. App. 1968).

Here one cannot dispute that this defendant posed an immediate risk, for he had committed, we can assume, serious crimes early in his term of supervised release and despite his own assurances of reform. Graham deserved to be separated from society for some time in order to prevent what the trial court described as an “escalating pattern of criminal conduct,” App. 394, but it does not follow that he would be a risk to society for the rest of his life. Even if the State’s *845judgment that Graham was incorrigible were later corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate because that judgment was made at the outset. A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity.

Finally there is rehabilitation, a penological goal that forms the basis of parole systems. See Solem, 463 U.S., at 300, 103 S. Ct. 3001, 77 L. Ed. 2d 637; Mistretta v. United States, 488 U.S. 361, 363, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989). The concept of rehabilitation is imprecise; and its utility and proper implementation are the subject of a substantial, dynamic field of inquiry and dialogue. See, e.g., Cullen & Gendreau, Assessing Correctional Rehabilitation: Policy, Practice, and Prospects, 3 Criminal Justice 2000, pp. 119-133 (2000) (describing scholarly debates regarding the effectiveness of rehabilitation over the last several decades). It is

[560 U.S. 74]

for legislatures to determine what rehabilitative techniques are appropriate and effective.

A sentence of life imprisonment without parole, however, cannot be justified by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited moral culpability. A State’s rejection of rehabilitation, moreover, goes beyond a mere expressive judgment. As one amicus notes, defendants serving life without parole sentences are often denied access to vocational training and other rehabilitative services that are available to other inmates. See Brief for Sentencing Project 11-13. For juvenile offenders, who are most in need of and receptive to rehabilitation, see Brief for J. Lawrence Aber et al. as Amici Curiae 28-31 (hereinafter Aber Brief), the absence of rehabilitative opportunities or treatment makes the disproportionality of the sentence all the more evident.

In sum, penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders. This determination; the limited culpability of juvenile nonhomicide offenders; and the severity of life without parole sentences all lead to the conclusion that the sentencing practice under consideration is cruel and unusual. This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” those who were below that age when the offense was committed may not be sentenced to

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life without parole for a nonhomicide crime. Roper, 543 U.S., at 574, 125 S. Ct. 1183, 161 L. Ed. 2d 1.

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, how*846ever, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.

C

Categorical rules tend to be imperfect, but one is necessary here. Two alternative approaches are not adequate to address the relevant constitutional concerns. First, the State argues that the laws of Florida and other States governing criminal procedure take sufficient account of the age of a juvenile offender. Here, Florida notes that under its law prosecutors are required to charge 16- and 17-year-old offenders as adults only for certain serious felonies; that prosecutors have discretion to charge those offenders as adults for other felonies; and that prosecutors may not charge nonrecidivist 16- and 17-year-old offenders as adults for misdemeanors. Brief for Respondent 54 (citing Fla. Stat. § 985.227 (2003)). The State also stresses that “in only the narrowest of circumstances” does Florida law impose no

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age limit whatsoever for prosecuting juveniles in adult court. Brief for Respondent 54.

Florida is correct to say that state laws requiring consideration of a defendant’s age in charging decisions are salutary. An offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed. Florida, like other States, has made substantial efforts to enact comprehensive rules governing the treatment of youthful offenders by its criminal justice system. See generally Fla. Stat. § 958 et seq. (2007).

The provisions the State notes are, nonetheless, by themselves insufficient to address the constitutional concerns at issue. Nothing in Florida’s laws prevents its courts from sentencing a juvenile nonhomicide offender to life without parole based on a subjective judgment that the defendant’s crimes demonstrate an “irretrievably depraved character.” Roper, supra, at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1. This is inconsistent with the Eighth Amendment. Specific cases are illustrative. In Graham’s case the sentencing judge decided to impose life without parole—a sentence greater than that requested by the prosecutor—for Graham’s armed burglary conviction. The judge did so because he concluded that Graham was incorrigible: “[Y]ou decided that this is how you were going to lead your life and that there is nothing that we can do for you. . . . We can’t do anything to deter you.” App. 394.

Another example comes from Sullivan v. Florida, No. 08-7621. Sullivan was argued the same day as this case, but the Court has now dismissed the *847writ of certiorari in Sullivan as improvidently granted. Post, p.181, 130 S. Ct. 2059, 176 L. Ed. 2d 919. The facts, however, demonstrate the flaws of Florida’s system. The petitioner, Joe Sullivan, was prosecuted as an adult for a sexual assault committed when he was 13 years old. Noting Sullivan’s past encounters with the law, the sentencing judge concluded that, although Sullivan had been “given opportunity after opportunity to upright himself and take advantage

[560 U.S. 77]

of the second and third chances he’s been given,” he had demonstrated himself to be unwilling to follow the law and needed to be kept away from society for the duration of his life. Brief for Respondent in Sullivan v. Florida, O. T. 2009, No. 08-7621, p. 6. The judge sentenced Sullivan to life without parole. As these examples make clear, existing state laws, allowing the imposition of these sentences based only on a discretionary, subjective judgment by a judge or jury that the offender is irredeemably depraved, are insufficient to prevent the possibility that the offender will receive a life without parole sentence for which he or she lacks the moral culpability.

Another possible approach would be to hold that the Eighth Amendment requires courts to take the offender’s age into consideration as part of a case-specific gross disproportion-ality inquiry, weighing it against the seriousness of the crime. This approach would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes. Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society.

The case-by-case approach to sentencing must, however, be confined by some boundaries. The dilemma of juvenile sentencing demonstrates this. For even if we were to assume that some juvenile nonhomicide offenders might have “sufficient psychological maturity, and at the same time dem-onstrat[e] sufficient depravity,” Roper, 543 U.S., at 572, 125 S. Ct. 1183, 161 L. Ed. 2d 1, to merit a life without parole sentence, it does not follow that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change. Roper rejected the argument that the Eighth Amendment required only that juries be told they must consider

[560 U.S. 78]

the defendant’s age as a mitigating factor in sentencing. The Court concluded that an “unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.” Id., at 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Here, as with the death penalty, “ [t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive” a sentence of life without parole for a nonhomicide crime “despite insufficient culpability.” Id., at 572-573, 125 S. Ct. 1183, 161 L. Ed. 2d 1.

Another problem with a case-by-case approach is that it does not take account of special difficulties encoun*848tered by counsel in juvenile representation. As some amici note, the features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work effectively with their lawyers to aid in their defense. Brief for NAACP Legal Defense & Educational Fund et al. as Amici Curiae 7-12; Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245, 272-273 (2005). Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel, seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. Aber Brief 35. These factors are likely to impair the quality of a juvenile defendant’s representation. Cf. Atkins, 536 U.S., at 320, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (“Mentally retarded defendants may be less able to give meaningful assistance to their counsel”). A categorical rule avoids the risk that, as a result of these difficulties, a court or jury will

[560 U.S. 79]

erroneously conclude that a particular juvenile is sufficiently culpable to deserve life without parole for a nonhomicide.

Finally, a categorical rule gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform. The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential. In Roper, that deprivation resulted from an execution that brought life to its end. Here, though by a different dynamic, the same concerns apply. Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave prison before life’s end has little incentive to become a responsible individual. In some prisons, moreover, the system itself becomes complicit in the lack of development. As noted above, see supra, at 74, 176 L. Ed. 2d, at 845, it is the policy in some prisons to withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration. A categorical rule against life without parole for juvenile nonhomi-cide offenders avoids the perverse consequence in which the lack of maturity that led to an offender’s crime is reinforced by the prison term.

Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.

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D

There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on *849juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over. This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But “ ‘ [t] he climate of international opinion concerning the acceptability of a particular punishment’ ” is also “ ‘not irrelevant.’” Enmund, 458 U.S., at 796, n. 22, 102 S. Ct. 3368, 73 L. Ed. 2d 1140. The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual. See, e.g., Roper, 543 U.S., at 575-578, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Atkins, supra, at 316-318, n. 21, 122 S. Ct. 2242, 153 L. Ed. 2d 335; Thompson, 487 U.S., at 830, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (plurality opinion); Enmund, supra, at 796-797, n. 22, 102 S. Ct. 3368, 73 L. Ed. 2d 1140; Coker, 433 U.S., at 596, n. 10, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (same); Trop, 356 U.S., at 102-103, 78 S. Ct. 590, 2 L. Ed. 2d 630 (same).

Today we continue that longstanding practice in noting the global consensus against the sentencing practice in question. A recent study concluded that only 11 nations authorize life without parole for juvenile offenders under any circumstances; and only 2 of them, the United States and Israel, ever impose the punishment in practice. See M. Leighton & C. de la Vega, Sentencing Our Children To Die in Prison: Global Law and Practice 4 (2007). An updated version of the study concluded that Israel’s “laws allow for parole review of juvenile offenders serving life terms,” but expressed reservations about how that parole review is implemented. De la Vega & Leighton, Sentencing Our Children To Die in Prison: Global Law and Practice, 42 U. S. F. L. Rev. 983, 1002-1003 (2008). But even if Israel is counted as allowing life without parole for juvenile offenders, that nation does not appear to impose that sentence for nonhomicide crimes; all of the seven Israeli prisoners whom commentators have identified as serving life sentences for juvenile crimes were

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convicted of homicide or attempted homicide. See Amnesty International, Human Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States 106, n. 322 (2005); Memorandum and Attachment from Ruth Levush, Law Library of Congress, to Supreme Court Library (Feb. 16, 2010) (available in Clerk of Court’s case file).

Thus, as petitioner contends and respondent does not contest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders. We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U. N. T. S. 3 (entered into force Sept. 2, 1990), ratified by every nation except the United States and Somalia, prohibits the imposition of “life imprisonment without possibility of release ... for offences committed by persons below eighteen years of age.” Brief for Petitioner 66; Brief for Amnesty International et al. 15-17. As we concluded in Roper with respect to the juvenile death penalty, “the United States now stands alone in a world that has turned its face against” life without parole for juvenile nonhomicide offenders. 543 U.S., at 577, 125 S. Ct. 1183, 161 L. Ed. 2d 1.

*850The State’s amici stress that no international legal agreement that is binding on the United States prohibits life without parole for juvenile offenders and thus urge us to ignore the international consensus. See Brief for Solidarity Center for Law and Justice et al. 14-16; Brief for Sixteen Members of United States House of Representatives 40-43. These arguments miss the mark. The question before us is not whether international law prohibits the United States from imposing the sentence at issue in this case. The question is whether that punishment is cruel and unusual. In that inquiry, “the overwhelming weight of international opinion against” life without parole for nonho-micide offenses committed by juveniles “provide [s] respected and significant confirmation for our own conclusions.” Roper, supra, at 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1.

[560 U.S. 82]

The debate between petitioner’s and respondent’s amici over whether there is a binding jus cogens norm against this sentencing practice is likewise of no import. See Brief for Amnesty International 10-23; Brief for Sixteen Members of United States House of Representatives 4-40. The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term. The judgment of the First District Court of Appeal of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

APPENDIX

I. JURISDICTIONS THAT PERMIT LIFE WITHOUT PAROLE FOR JUVENILE NONHOMICIDE OFFENDERS

Alabama Ala. Code § 12-15-203 (Supp. 2009); §§ 13A-3-3, 13A-5-9(c), 13A-6-61 (2005); § 13A-7-5 (Supp. 2009)

Arizona Ariz. Rev. Stat. Ann. §§ 13-501, 13-1423 (West 2010)

Arkansas Ark. Code § 9-27-318(b) (2009); § 5—4—501(c) (Supp. 2009)

California Cal. Penal Code Ann. § 667.7(a)(2) (West 1999); §1170.17 (West 2004)

Delaware Del. Code Ann., Tit. 10, § 1010 (Supp. 2008); id., Tit. 11, § 773(c) (2003)

District of Columbia D. C. Code § 16-2307 (2009 Supp. Pamphlet); § 22-3020 (Supp. 2007)

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Florida Fla. Stat. §§ 810.02, 921.002(1)(e), 985.557 (2007)

*851Georgia Georgia Code Ann. § 15-11-30.2 (2008); § 16-6-1(b) (2007)

Idaho Idaho Code § 18-6503 (Lexis 2005); §§ 19-2513, 20-509 (Lexis Supp. 2009)

Illinois Ill. Comp. Stat., ch. 705, §§ 405/5-805, 405/5-130 (West 2008); id., ch. 720, § 5/12—13(b)(3) (West 2008); id., ch. 730, § 5/3-3-3(d) (West 2008)

Indiana Ind. Code §§ 31-30-3-6(1), 35-50-2-8.5(a) (West 2004)

Iowa Iowa Code §§ 232.45(6), 709.2, 902.1 (2009)

Louisiana La. Child. Code Ann., Arts. 305, 857( A), (B) ( West Supp. 2010); La. Rev. Stat. Ann. § 14:44 (West 2007)

Maryland Md. Cts. & Jud. Proc. Code Ann. §§ 3—8A—03(d)(1), 3-8A-06(a)(2) (Lexis 2006); Md. Crim. Law Code Ann. §§ 3-303(d)(2), (3) (Lexis Supp. 2009)

Michigan Mich. Comp. Laws Ann. § 712A.4 (West 2002); § 750.520b(2)(c) (West Supp. 2009); § 769.1 (West 2000)

Minnesota Minn. Stat. §§ 260B.125(1), 609.3455(2) (2008)

Mississippi Miss. Code Ann. § 43-21-157 (2009); §§ 97-3-53, 99-19-81 (2007); § 99-19-83 (2006)

Missouri Mo. Rev. Stat. §§ 211.071, 558.018 (2000)

Nebraska Neb. Rev. Stat. §§ 28-105, 28-416(8)(a), 29-2204(1), (3), 43-247, 43-276 (2008)

Nevada Nev. Rev. Stat. §§ 62B.330, 200.366 (2009)

New Hampshire N. H. Rev. Stat. Ann. §§ 169-B:24, 628:1 (2007); §§ 632-A:2, 651:6 (Supp. 2009)

New York N. Y. Penal Law Ann. §§ 30.00, 60.06 (West 2009); § 490.55 (West 2008)

North Carolina N. C. Gen. Stat. Ann. §§ 7B-2200, 15A-1340.16B(a) (Lexis 2009)

North Dakota N. D. Cent. Code Ann. § 12.1-04-01 (Lexis 1997); § 12.1-20-03 (Lexis Supp. 2009); § 12.1-32-01 (Lexis 1997)

Ohio Ohio Rev. Code Ann. § 2152.10 (Lexis 2007); § 2907.02 (Lexis 2006); § 2971.03(A)(2) (2010 Lexis Supp. Pamphlet)

Oklahoma Okla. Stat., Tit. 10A, §§ 2-5-204, 2-5-205, 2-5-206 (2009 West Supp.); id., Tit. 21, § 1115 (2007 West Supp.)

Oregon Ore. Rev. Stat. §§ 137.707, 137.719(1) (2009)

Pennsylvania 42 Pa. Cons. Stat. § 6355(a) (2000); 18 id., § 3121(e)(2) (2008); 61 id., § 6137(a) (2009)

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Rhode Island R. I. Gen. Laws §§ 14-1-7, 14-1-7.1, 11-47-3.2 (Lexis 2002)

South Carolina S. C. Code Ann. § 63-19-1210 (2008 Supp. Pamphlet); § 16-11-311(B) (Westlaw 2009)

*852South Dakota S. D. Codified Laws § 26-11-3.1 (Supp. 2009); § 26—11-4 (2004); §§ 22-3-1, 22-6-1(2), (3) (2006); § 24-15-4 (2004); §§ 22-19-1, 22-22-1 (2006)

Tennessee Tenn. Code Ann. §§ 37-1-134, 40—35—120(g) (Westlaw 2010)

Utah Utah Code Ann. §§ 78A-6-602, 78A-6-703, 76-5-302 (Lexis 2008)

Virginia Va. Code Ann. §§ 16.1-269.1, 18.2-61, 53.1-151(B1) (2009)

Washington Wash. Rev. Code § 13.40.110 (2009 Supp.); §§ 9A.04.050, 9.94A.030(34), 9.94A.570 (2008)

West Virginia W. Va. Code Ann. § 49-5-10 (Lexis 2009); § 61-2-14a( a) (Lexis 2005)

Wisconsin Wis. Stat. §§ 938.18, 938.183 (2007-2008); § 939.62(2m)(c) (Westlaw 2005)

Wyoming Wyo. Stat. Ann. §§ 6-2-306(d), (e), 14-6-203 (2009)

Federal 18 U.S.C. § 2241 (2006 ed. and Supp. II); § 5032 (2006 ed.)

II. JURISDICTIONS THAT PERMIT LIFE WITHOUT PAROLE FOR JUVENILE OFFENDERS CONVICTED OF HOMICIDE CRIMES ONLY

Connecticut Conn. Gen. Stat. § 53a-35a (2009)

Hawaii Haw. Rev. Stat. § 571-22(d) (2006); § 706-656(1) (2008 Supp. Pamphlet)

Maine Me. Rev. Stat. Ann., Tit. 15, § 3101(4) (Supp. 2009); id., Tit. 17-a, § 1251 (2006)

Massachusetts Mass Gen. Laws ch. 119, § 74, id., ch. 265, § 2 (West 2008)

New Jersey N.J. Stat. Ann. § 2A:4A-26 (West Supp. 2009); § 2C:11-3(b)(2) (West Supp. 2009)

New Mexico N. M. Stat. Ann. §31-18-14 (Supp. 2009); § 31-18-15.2(A) (Westlaw 2010)

Vermont Vt. Stat. Ann., Tit. 33, § 5204 (2009 Cum. Supp.); id., Tit. 13, § 2303 (2009)

[560 U.S. 85]

III. JURISDICTIONS THAT FORBID LIFE WITHOUT PAROLE FOR JUVENILE OFFENDERS

Alaska Alaska Stat. § 12.55.015(g) (2008)

Colorado Colo. Rev. Stat. Ann. § 18-1.3-401(4)(b) (2009)

Kansas Kan. Stat. Ann. § 21-4622 (West 2007)

Kentucky Ky. Rev. Stat. Ann. § 640.040 (West 2008); Shepherd v. Commonwealth, 251 S.W.3d 309, 320-321 (Ky. 2008)

Montana Mont. Code Ann. § 46-18-222(1) (2009)

Texas Tex. Penal Code Ann. § 12.31 (West Supp. 2009)

*853SEPARATE OPINIONS

Justice Stevens,

with whom Justice Ginsburg and Justice Soto-mayor join, concurring.

In his dissenting opinion, Justice Thomas argues that today’s holding is not entirely consistent with the controlling opinions in Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003), Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003), Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), and Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). Post, at 102-105, 176 L. Ed. 2d, at 864-865. Given that “evolving standards of decency” have played a central role in our Eighth Amendment jurisprudence for at least a century, see Weems v. United States, 217 U.S. 349, 373-378, 30 S. Ct. 544, 54 L. Ed. 793 (1910), this argument suggests the dissenting opinions in those cases more accurately describe the law today than does Justice Thomas’ rigid interpretation of the Amendment. Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete, post, at 103-104, 176 L. Ed. 2d, at 864-865, and n. 2.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 100, 106, n. 3, 176 L. Ed. 2d, at 862, 866, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

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Chief Justice Roberts,

concurring in the judgment.

I agree with the Court that Terrance Graham’s sentence of life without parole violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Unlike the majority, however, I see no need to invent a new constitutional rule of dubious provenance in reaching that conclusion. Instead, my analysis is based on an application of this Court’s precedents, in particular (1) our cases requiring “narrow proportionality” review of noncapital sentences and (2) our conclusion in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), that juvenile offenders are generally less culpable than adults who commit the same crimes.

These cases expressly allow courts addressing allegations that a non-capital sentence violates the Eighth Amendment to consider the particular defendant and particular crime at issue. The standards for relief under these precedents are rigorous, and should be. But here Graham’s juvenile status—together with the nature of his criminal conduct and the extraordinarily severe punishment imposed—lead me to conclude that his sentence of life without parole is unconstitutional.

I

Our Court has struggled with whether and how to apply the Cruel and Unusual Punishments Clause to sentences for noncapital crimes. Some of my colleagues have raised serious and thoughtful questions about whether, as an original matter, the *854Constitution was understood to require any degree of proportionality between noncapital offenses and their corresponding punishments. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 962-994, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (principal opinion of Scalia, J.); post, at 99-100, 176 L. Ed. 2d, at 861-862, and n. 1 (Thomas, J., dissenting). Neither party here asks us to reexamine our precedents requiring such proportionality, however, and so I approach this case by trying to apply our past decisions to the facts at hand.

[560 U.S. 87]

A

Graham’s case arises at the intersection of two lines of Eighth Amendment precedent. The first consists of decisions holding that the Cruel and Unusual Punishments Clause embraces a “narrow proportionality principle” that we apply, on a case-by-case basis, when asked to review noncapi-tal sentences. Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) (internal quotation marks omitted); Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (plurality opinion); Harmelin, supra, at 996-997, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part and concurring in judgment). This “narrow proportionality principle” does not grant judges blanket authority to second-guess decisions made by legislatures or sentencing courts. On the contrary, a reviewing court will only “rarely” need “to engage in extended analysis to determine that a sentence is not constitutionally disproportionate,” Solem, supra, at 290, n. 16, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (emphasis added), and “successful challenges” to noncapital sentences will be all the more “exceedingly rare,” Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).

We have “not established a clear or consistent path for courts to follow” in applying the highly deferential “narrow proportionality” analysis. Lockyer, supra, at 72, 123 S. Ct. 1166, 155 L. Ed. 2d 144. We have, however, emphasized the primacy of the legislature in setting sentences, the variety of legitimate penological schemes, the state-by-state diversity protected by our federal system, and the requirement that review be guided by objective, rather than subjective, factors. Ewing, supra, at 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (plurality opinion); Harmelin, supra, at 998-1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (opinion of Kennedy, J.). Most importantly, however, we have explained that the Eighth Amendment “ ‘does not require strict proportionality between crime and sentence’ ”; rather, “ ‘it forbids only extreme sentences that are “grossly disproportionate” to the crime.’ ” Ewing, supra, at 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (plurality opinion) (quoting Harmelin, supra, at 1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (opinion of Kennedy, J.)).

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Our cases indicate that courts conducting “narrow proportionality” review should begin with a threshold inquiry that compares “the gravity of the offense and the harshness of the penalty.” Solem, 463 U.S., at 290-291, 103 S. Ct. 3001, 77 L. Ed. 2d 637. This analysis can consider a particular offender’s mental state and motive in committing the crime, the actual harm caused to his victim or to society by his conduct, and any prior criminal history. Id., at 292-294, 296-297, and n. 22, 103 S. Ct. 3001, 77 L. Ed. 2d 637 *855(considering motive, past criminal conduct, alcoholism, and propensity for violence of the particular defendant); see also Ewing, supra, at 28-30, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (plurality opinion) (examining defendant’s criminal history); Harmelin, 501 U.S., at 1001-1004, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (opinion of Kennedy, J.) (noting specific details of the particular crime of conviction).

Only in “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dispro-portionality,” id., at 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836, should courts proceed to an “intrajurisdictional” comparison of the sentence at issue with those imposed on other criminals in the same jurisdiction, and an “in-teijurisdictional” comparison with sentences imposed for the same crime in other jurisdictions, Solem, supra, at 291-292, 103 S. Ct. 3001, 77 L. Ed. 2d 637. If these subsequent comparisons confirm the inference of gross disproportionality, courts should invalidate the sentence as a violation of the Eighth Amendment.

B

The second line of precedent relevant to assessing Graham’s sentence consists of our cases acknowledging that juvenile offenders are generally—though not necessarily in every case—less morally culpable than adults who commit the same crimes. This insight animated our decision in Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988), in which we invalidated a capital sentence imposed on a juvenile who had committed his crime under the age of 16. More recently, in Roper, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1, we extended the prohibition on executions to those who committed their crimes before the age of 18.

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Both Thompson and Roper arose in the unique context of the death penalty, a punishment that our Court has recognized “must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ” 543 U.S., at 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (quoting Atkins v. Virginia, 536 U.S. 304, 319, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)). Roper’s prohibition on the juvenile death penalty followed from our conclusion that “[t]hree general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.” 543 U.S., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1. These differences are a lack of maturity and an underdeveloped sense of responsibility, a heightened susceptibility to negative influences and outside pressures, and the fact that the character of a juvenile is “more transitory” and “less fixed” than that of an adult. Id., at 569-570, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Together, these factors establish the “diminished culpability of juveniles,” id., at 571, 125 S. Ct. 1183, 161 L. Ed. 2d 1, and “render suspect any conclusion” that juveniles are among “the worst offenders” for whom the death penalty is reserved, id., at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1.

Today, the Court views Roper as providing the basis for a new categorical rule that juveniles may never receive a sentence of life without parole for nonhomicide crimes. I disagree. In Roper, the Court tailored its analysis of juvenile characteristics to the specific question whether juvenile offend*856ers could constitutionally be subject to capital punishment. Our answer that they could not be sentenced to death was based on the explicit conclusion that they “cannot with reliability be classified among the worst offenders.”Id., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (emphasis added).

This conclusion does not establish that juveniles can never be eligible for life without parole. A life sentence is of course far less severe than a death sentence, and we have never required that it be imposed only on the very worst offenders, as we have with capital punishment. Treating juvenile life sentences as analogous to capital punishment is at

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odds with our longstanding view that “the death penalty is different from other punishments in kind rather than degree.” Solem, supra, at 294, 103 S. Ct. 3001, 77 L. Ed. 2d 637. It is also at odds with Roper itself, which drew the line at capital punishment by blessing juvenile sentences that are “less severe than death” despite involving “forfeiture of some of the most basic liberties.” 543 U.S., at 573-574, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Indeed, Roper explicitly relied on the possible imposition of life without parole on some juvenile offenders. Id., at 572, 125 S. Ct. 1183, 161 L. Ed. 2d 1.

But the fact that Roper does not support a categorical rule barring life sentences for all juveniles does not mean that a criminal defendant’s age is irrelevant to those sentences. On the contrary, our cases establish that the “narrow proportionality” review applicable to noncapital cases itself takes the personal “culpability of the offender” into account in examining whether a given punishment is proportionate to the crime. Solem, supra, at 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637. There is no reason why an offender’s juvenile status should be excluded from the analysis. Indeed, given Roper’s conclusion that juveniles are typically less blameworthy than adults, 543 U.S., at 571, 125 S. Ct. 1183, 161 L. Ed. 2d 1, an offender’s juvenile status can play a central role in the inquiry.

Justice Thomas disagrees with even our limited reliance on Roper on the ground that the present case does not involve capital punishment. Post, at 121, 176 L. Ed. 2d, at 875 (dissenting opinion). That distinction is important—indeed, it underlies our rejection of the categorical rule declared by the Court. But Roper’s conclusion that juveniles are typically less culpable than adults has pertinence beyond capital cases, and rightly informs the case-specific inquiry I believe to be appropriate here.

In short, our existing precedent already provides a sufficient framework for assessing the concerns outlined by the majority. Not every juvenile receiving a life sentence will prevail under this approach. Not every juvenile should. But all will receive the protection that the Eighth Amendment requires.

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II

Applying the “narrow proportionality” framework to the particular facts of this case, I conclude that Graham’s sentence of life without parole violates the Eighth Amendment.*

A

I begin with the threshold inquiry *857comparing the gravity of Graham’s conduct to the harshness of his penalty. There is no question that the crime for which Graham received his life sentence—armed burglary of a nondomicile with an assault or battery—is “a serious crime deserving serious punishment.” Enmund v. Florida, 458 U.S. 782, 797, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). So too is the home invasion robbery that was the basis of Graham’s probation violation. But these crimes are certainly less serious than other crimes, such as murder or rape.

As for Graham’s degree of personal culpability, he committed the relevant offenses when he was a juvenile—a stage at which, Roper emphasized, one’s “culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.” 543 U.S., at 571, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Graham’s age places him in a significantly different category from the defendants in Rummel, Harmelin, and Ewing, all of whom committed their crimes as adults. Graham’s youth made

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him relatively more likely to engage in reckless and dangerous criminal activity than an adult; it also likely enhanced his susceptibility to peer pressure. See, e.g., Roper, supra, at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993); Eddings v. Oklahoma, 455 U.S. 104, 115-117, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). There is no reason to believe that Graham should be denied the general presumption of diminished culpability that Roper indicates should apply to juvenile offenders. If anything, Graham’s in-court statements—including his request for a second chance so that he could “do whatever it takes to get to the NFL”—underscore his immaturity. App. 380.

The fact that Graham committed the crimes that he did proves that he was dangerous and deserved to be punished. But it does not establish that he was particularly dangerous—at least relative to the murderers and rapists for whom the sentence of life without parole is typically reserved. On the contrary, his lack of prior criminal convictions, his youth and immaturity, and the difficult circumstances of his upbringing noted by the majority, ante, at 53, 176 L. Ed. 2d, at 832, all suggest that he was markedly less culpable than a typical adult who commits the same offenses.

Despite these considerations, the trial court sentenced Graham to life in prison without the possibility of parole. This is the second-harshest sentence available under our precedents for any crime, and the most severe sanction available for a nonho-micide offense. See Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008). Indeed, as the majority notes, Graham’s sentence far exceeded the punishment proposed by the Florida Department of Corrections (which suggested a sentence of four years, Brief for Petitioner 20), and the state prosecutors *858(who asked that he be sentenced to 30 years in prison for the armed burglary, App. 388). No one in Graham’s case other than the sentencing judge appears to have believed that Graham deserved to go to prison for life.

Based on the foregoing circumstances, I conclude that there is a strong inference that Graham’s sentence of life

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imprisonment without parole was grossly disproportionate in violation of the Eighth Amendment. I therefore proceed to the next steps of the proportionality analysis.

B

Both intrajurisdictional and inter-jurisdictional comparisons of Graham’s sentence confirm the threshold inference of disproportionality.

Graham’s sentence was far more severe than that imposed for similar violations of Florida law, even without taking juvenile status into account. For example, individuals who commit burglary or robbery offenses in Florida receive average sentences of less than 5 years and less than 10 years, respectively. Florida Dept, of Corrections, Annual Report FY 2007-2008: The Guidebook to Corrections in Florida 35. Unsurprisingly, Florida’s juvenile criminals receive similarly low sentences—typically less than five years for burglary and less than seven years for robbery. Id., at 36. Graham’s life without parole sentence was far more severe than the average sentence imposed on those convicted of murder or manslaughter, who typically receive under 25 years in prison. Id., at 35. As the Court explained in Solem, 463 U.S., at 291, 103 S. Ct. 3001, 77 L. Ed. 2d 637, “[i]f more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.”

Finally, the inference that Graham’s sentence is disproportionate is further validated by comparison to the sentences imposed in other domestic jurisdictions. As the majority opinion explains, Florida is an outlier in its willingness to impose sentences of life without parole on juveniles convicted of nonhomicide crimes. See ante, at 62-64, 176 L. Ed. 2d, at 837-839.

Ill

So much for Graham. But what about Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling

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bin in a remote landfill? See Musgrave, Cruel or Necessary? Life Terms for Youths Spur National Debate, Palm Beach Post, Oct. 15, 2009, p. 1A. Or Nathan Walker and Jakaris Taylor, the Florida juveniles who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son? See 3 Sentenced to Life for Gang Rape of Mother, Associated Press, Oct. 14, 2009. The fact that Graham cannot be sentenced to life without parole for his conduct says nothing whatever about these offenders, or others like them who commit nonhomicide crimes far more reprehensible than the conduct at issue here. The Court uses Graham’s case as a vehicle to proclaim a new constitutional rule— applicable well beyond the particular facts of Graham’s case—that a sentence of life without parole imposed on any juvenile for any nonhomicide offense is unconstitutional. This categorical conclusion is as unnecessary as it is unwise.

*859A holding this broad is unnecessary because the particular conduct and circumstances at issue in the case before us are not serious enough to justify Graham’s sentence. In reaching this conclusion, there is no need for the Court to decide whether that same sentence would be constitutional if imposed for other more heinous nonhomicide crimes.

A more restrained approach is especially appropriate in light of the Court’s apparent recognition that it is perfectly legitimate for a juvenile to receive a sentence of life without parole for committing murder. This means that there is nothing inherently unconstitutional about imposing sentences of life without parole on juvenile offenders; rather, the constitutionality of such sentences depends on the particular crimes for which they are imposed. But if the constitutionality of the sentence turns on the particular crime being punished, then the Court should limit its holding to the particular offenses that Graham committed here, and should decline to consider other hypothetical crimes not presented by this case.

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In any event, the Court’s categorical conclusion is also unwise. Most importantly, it ignores the fact that some nonhomicide crimes—like the ones committed by Milagro Cunningham, Nathan Walker, and Jakaris Taylor—are especially heinous or grotesque, and thus may be deserving of more severe punishment.

Those under 18 years old may as a general matter have “diminished” culpability relative to adults who commit the same crimes, Roper, 543 U.S., at 571, 125 S. Ct. 1183, 161 L. Ed. 2d 1, but that does not mean that their culpability is always insufficient to justify a life sentence. See generally Thompson, 487 U.S., at 853, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (O’Connor, J., concurring in judgment). It does not take a moral sense that is fully developed in every respect to know that beating and raping an 8-year-old girl and leaving her to die under 197 pounds of rocks is horribly wrong. The single fact of being 17 years old would not afford Cunningham protection against life without parole if the young girl had died—as Cunningham surely expected she would—so why should it do so when she miraculously survived his barbaric brutality?

The Court defends its categorical approach on the grounds that a “clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment.” Ante, at 74, 176 L. Ed. 2d, at 845. It argues that a case-by-case approach to proportionality review is constitutionally insufficient because courts might not be able “with sufficient accuracy [to] distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Ante, at 77, 176 L. Ed. 2d, at 847.

The Court is of course correct that judges will never have perfect foresight—or perfect wisdom—in making sentencing decisions. But this is true when they sentence adults no less than when they sentence juveniles. It is also true when they sentence juveniles who commit murder no less than when they sentence juveniles who commit other crimes.

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Our system depends upon sentencing judges applying their reasoned judgment to each case that comes before them. As we explained in Solem, the whole enterprise of propor*860tionality review is premised on the “justified” assumption that “courts are competent to judge the gravity of an offense, at least on a relative scale.” 463 U.S., at 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637. Indeed, “courts traditionally have made these judgments” by applying “generally accepted criteria” to analyze “the harm caused or threatened to the victim or society, and the culpability of the offender.” Id., at 292, 294, 103 S. Ct. 3001, 77 L. Ed. 2d 637.

Terrance Graham committed serious offenses, for which he deserves serious punishment. But he was only 16 years old, and under our Court’s precedents, his youth is one factor, among others, that should be considered in deciding whether his punishment was unconstitutionally excessive. In my view, Graham’s age— together with the nature of his criminal activity and the unusual severity of his sentence—tips the constitutional balance. I thus concur in the Court’s judgment that Graham’s sentence of life without parole violated the Eighth Amendment.

I would not, however, reach the same conclusion in every case involving a juvenile offender. Some crimes are so heinous, and some juvenile offenders so highly culpable, that a sentence of life without parole may be entirely justified under the Constitution. As we have said, “successful challenges” to noncapital sentences under the Eighth Amendment have been—and, in my view, should continue to be—“exceedingly rare.” Rummel, 445 U.S., at 272, 100 S. Ct. 1133, 63 L. Ed. 2d 382. But Graham’s sentence presents the exceptional case that our precedents have recognized will come along. We should grant Graham the relief to which he is entitled under the Eighth Amendment. The Court errs, however, in using this case as a vehicle for unsettling our established jurisprudence and fashioning a categorical rule applicable to far different cases.

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Justice Thomas,

with whom Justice Scalia joins, and with whom Justice Alito joins as to Parts I and III, dissenting.

The Court holds today that it is “grossly disproportionate” and hence unconstitutional for any judge or jury to impose a sentence of life without parole on an offender less than 18 years old, unless he has committed a homicide. Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and although it would not have offended the standards that prevailed at the founding, the Court insists that the standards of American society have evolved such that the Constitution now requires its prohibition.

The news of this evolution will, I think, come as a surprise to the American people. Congress, the District of Columbia, and 37 States allow judges and juries to consider this sentencing practice in juvenile nonhomi-cide cases, and those judges and juries have decided to use it in the very worst cases they have encountered.

The Court does not conclude that life without parole itself is a cruel and unusual punishment. It instead rejects the judgments of those legislatures, judges, and juries regarding what the Court describes as the “moral” question whether this sentence can ever be “proportiona[te]” when applied to the category of offenders at issue here. Ante, at 58, 59, 176 L. Ed. 2d, at 835-836 (internal quota*861tion marks omitted); ante, at 85, 176 L. Ed. 2d, at 853 (Stevens, J., concurring).

I am unwilling to assume that we, as Members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority.

I respectfully dissent.

I

The Court recounts the facts of Terrance Jamar Graham’s case in detail, so only a summary is necessary here. At age

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16 years and 6 months, Graham and two masked accomplices committed a burglary at a small Florida restaurant, during which one of Graham’s accomplices twice struck the restaurant manager on the head with a steel pipe when he refused to turn over money to the intruders. Graham was arrested and charged as an adult. He later pleaded guilty to two offenses, including armed burglary with assault or battery, an offense punishable by life imprisonment under Florida law. Fla. Stat. §§ 810.02(2)(a), (b) (2007). The trial court withheld adjudication on both counts, however, and sentenced Graham to probation, the first 12 months of which he spent in a county detention facility.

Graham reoffended just six months after his release. At a probation revocation hearing, a judge found by a preponderance of the evidence that, at age 17 years and 11 months, Graham invaded a home with two accomplices and held the homeowner at gunpoint for approximately 30 minutes while his accomplices ransacked the residence. As a result, the judge concluded that Graham had violated his probation and, after additional hearings, adjudicated Graham guilty on both counts arising from the restaurant robbery. The judge imposed the maximum sentence allowed by Florida law on the armed burglary count, life imprisonment without the possibility of parole.

Graham argues, and the Court holds, that this sentence violates the Eighth Amendment’s Cruel and Unusual Punishments Clause because a life-without-parole sentence is always “grossly disproportionate” when imposed on a person under 18 who commits any crime short of a homicide. Brief for Petitioner 24; ante, at 72, 176 L. Ed. 2d, at 844.

II

A

The Eighth Amendment, which applies to the States through the Fourteenth, provides that “[e]xcessive bail shall

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not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It is by now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous “ ‘methods of punishment,’” Harmelin v. Michigan, 501 U.S. 957, 979, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (opinion of Scalia, J.) (quoting Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Cal. L. Rev. 839, 842 (1969))—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted, Baze v. Rees, 553 U.S. 35, 99, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008) (Thomas, J., concurring in judgment). With one arguable exception, see Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910); Harmelin, supra, at 990-*862994, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (opinion of Scalia, J.) (discussing the scope and relevance of Weems’ holding), this Court applied the Clause with that understanding for nearly 170 years after the Eighth Amendment’s ratification.

More recently, however, the Court has held that the Clause authorizes it to proscribe not only methods of punishment that qualify as “cruel and unusual,” but also any punishment that the Court deems “grossly disproportionate” to the crime committed. Ante, at 58, 176 L. Ed. 2d, at 835 (internal quotation marks omitted). This latter interpretation is entirely the Court’s creation. As has been described elsewhere at length, there is virtually no indication that the Cruel and Unusual Punishments Clause originally was understood to require proportionality in sentencing. See Harmelin, 501 U.S., at 975-985, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (opinion of Scalia, J.). Here, it suffices to recall just two points. First, the Clause does not expressly refer to proportionality or invoke any synonym for that term, even though the Framers were familiar with the concept, as evidenced by several founding-era state constitutions that required (albeit without defining) proportional punishments. See id., at 977-978, 111 S. Ct. 2680, 115 L. Ed. 2d 836. In addition, the penal statute adopted by the First Congress demonstrates that proportionality in sentencing was not considered

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a constitutional command.1 See id., at 980-981, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (noting that the statute prescribed capital punishment for offenses ranging from “ ‘run filing] away with . . . goods or merchandise to the value of fifty dollars,’ ” to “murder on the high seas” (quoting 1 Stat. 114)); see also Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 348-349, 353 (1982) (explaining that crimes in the late 18th-century Colonies generally were punished either by fines, whipping, or public “shaming,” or by death, as intermediate sentencing options such as incarceration were not common).

The Court has nonetheless invoked proportionality to declare that capital punishment—though not unconstitutional per se—is categorically too harsh a penalty to apply to certain types of crimes and certain classes of offenders. See Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (plurality opinion) (rape of an adult woman); Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (rape of a child); Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) (felony murder in which the defendant participated in the felony but did not kill or intend to kill); *863 Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988) (plurality opinion) (juveniles

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under 16); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (juveniles under 18); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (mentally retarded offenders). In adopting these categorical proportionality rules, the Court intrudes upon areas that the Constitution reserves to other (state and federal) organs of government. The Eighth Amendment prohibits the government from inflicting a cruel and unusual method of punishment upon a defendant. Other constitutional provisions ensure the defendant’s right to fair process before any punishment is imposed. But, as members of today’s majority note, “[s]ociety changes,” ante, at 85, 176 L. Ed. 2d, at 853 (Stevens, J., concurring), and the Eighth Amendment leaves the unavoidably moral question of who “deserves” a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty, the prosecutors who seek it, and the judges and juries that impose it under circumstances they deem appropriate.

The Court has nonetheless adopted categorical rules that shield entire classes of offenses and offenders from the death penalty on the theory that “evolving standards of decency” require this result. Ante, at 58, 176 L. Ed. 2d, at 835 (internal quotation marks omitted). The Court has offered assurances that these standards can be reliably measured by “ ‘objective indicia’ ” of “national consensus,” such as state and federal legislation, jury behavior, and (surprisingly, given that we are talking about “national” consensus) international opinion. Ante, at 61, 176 L. Ed. 2d, at 837 (quoting Roper, supra, at 563, 125 S. Ct. 1183, 161 L. Ed. 2d 1); see also ante, at 62-67, 80-82, 176 L. Ed. 2d, at 837-841, 848-850. Yet even assuming that is true, the Framers did not provide for the constitutionality of a particular type of punishment to turn on a “snapshot of American public opinion” taken at the moment a case is decided. Roper, supra, at 629, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (Scalia, J., dissenting). By holding otherwise, the Court pretermits in all but one direction the evolution of the standards it describes, thus “calling a constitutional halt to what may well be a pendulum swing in social attitudes,” Thompson, supra, at 869, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (Scalia, J., dissenting), and “stunt[ing]

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legislative consideration” of new questions of penal policy as they emerge, Kennedy, supra, at 448, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (Alito, J., dissenting).

But the Court is not content to rely on snapshots of community consensus in any event. Ante, at 67, 176 L. Ed. 2d, at 841 (“Community consensus, while ‘entitled to great weight,’ is not itself determinative” (quoting Kennedy, supra, at 434, 128 S. Ct. 2641, 171 L. Ed. 2d 525)). Instead, it reserves the right to reject the evidence of consensus it finds whenever its own “independent judgment” points in a different direction. Ante, at 67, 176 L. Ed. 2d, at 841. The Court thus openly claims the power not only to approve or disapprove of democratic choices in penal policy based on evidence of how society’s standards have evolved, but also on the basis of the Court’s “independent” perception of how those standards should evolve, which depends on what the Court concedes is “ ‘ “necessarily ... a moral-*864judgment” ’ ” regarding the propriety of a given punishment in today’s society. Ante, at 58, 176 L. Ed. 2d, at 835 (quoting Kennedy, supra, at 419, 128 S. Ct. 2641, 171 L. Ed. 2d 525).

The categorical proportionality review the Court employs in capital cases thus lacks a principled foundation. The Court’s decision today is significant because it does not merely apply this standard—it remarkably expands its reach. For the first time in its history, the Court declares an entire class of offenders immune from a noncapital sentence using the categorical approach it previously reserved for death penalty cases alone.

B

Until today, the Court has based its categorical proportionality rulings on the notion that the Constitution gives special protection to capital defendants because the death penalty is a uniquely severe punishment that must be reserved for only those who are “most deserving of execution.” Atkins, supra, at 319, 122 S. Ct. 2242, 153 L. Ed. 2d 335; see Roper, supra, at 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). Of course, the Eighth Amendment itself makes no

[560 U.S. 103]

distinction between capital and noncapital sentencing, but the “ ‘bright line’ ” the Court drew between the two penalties has for many years served as the principal justification for the Court’s willingness to reject democratic choices regarding the death penalty. See Rummel v. Estelle, 445 U.S. 263, 275, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).

Today’s decision eviscerates that distinction. “Death is different” no longer. The Court now claims not only the power categorically to reserve the “most severe punishment” for those the Court thinks are “ ‘the most deserving of execution,’ ” Roper, supra, at 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (quoting Atkins, supra, at 319, 122 S. Ct. 2242, 153 L. Ed. 2d 335), but also to declare that “less culpable” persons are categorically exempt from the “second most severe penalty.” Ante, at 72, 176 L. Ed. 2d, at 844 (emphasis added). No reliable limiting principle remains to prevent the Court from immunizing any class of offenders from the law’s third, fourth, fifth, or fiftieth most severe penalties as well.

The Court’s departure from the “death is different” distinction is especially mystifying when one considers how long it has resisted crossing that divide. Indeed, for a time the Court declined to apply proportionality principles to noncapital sentences at all, emphasizing that “a sentence of death differs in kind from any sentence of imprisonment, no matter how long.” Rummel, 445 U.S., at 272, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (emphasis added). Based on that rationale, the Court found that the excessiveness of one prison term as compared to another was “properly within the province of legislatures, not courts,” id., at 275-276, 100 S. Ct. 1133, 63 L. Ed. 2d 382, precisely because it involved an “invariably . . . subjective determination, there being no clear way to make ‘any constitutional distinction between one term of years and a shorter or longer term of years,’ ” Hutto v. Davis, 454 U.S. 370, 373, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (per curiam) (quoting Rummel, supra, at 275, 100 S. Ct. 1133, 63 L. Ed. 2d 382; emphasis added).

Even when the Court broke from *865that understanding in its 5-to-4 decision in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) (striking

[560 U.S. 104]

down as “grossly disproportionate” a life-without-parole sentence imposed on a defendant for passing a worthless check), the Court did so only as applied to the facts of that case; it announced no categorical rule. Id., at 288, 303, 103 S. Ct. 3001, 77 L. Ed. 2d 637. Moreover, the Court soon cabined Solem’s rationale. The controlling opinion in the Court’s very next noncapital proportionality case emphasized that principles of federalism require substantial deference to legislative choices regarding the proper length of prison sentences. Harmelin, 501 U.S., at 999, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part and concurring in judgment) (“[M]arked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure”); id., at 1000, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (“[D]iffer-ing attitudes and perceptions of local conditions may yield different, yet rational, conclusions regarding the appropriate length of prison terms for particular crimes”). That opinion thus concluded that “successful challenges to the proportionality of [prison] sentences [would be] exceedingly rare.” Id., at 1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (internal quotation marks omitted).

They have been rare indeed. In the 28 years since Solem, the Court has considered just three such challenges and has rejected them all, see Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003); Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); Harmelin, supra, largely on the theory that criticisms of the “wisdom, cost-efficiency, and effectiveness” of term-of-years prison sentences are “appropriately directed at the legislature [s],” not the courts, Ewing, supra, at 27, 28, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (plurality opinion). The Court correctly notes that those decisions were “closely divided,” ante, at 59, 176 L. Ed. 2d, at 836, but so was Solem itself, and it is now fair to describe Solem as an outlier.2

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Remarkably, the Court today does more than return to Solem’s case-by-case proportionality standard for non-capital sentences; it hurtles past it to impose a categorical proportionality rule banning life-without-parole sentences not just in this case, but in every case involving a juvenile nonho-micide offender, no matter what the circumstances. Neither the Eighth Amendment nor the Court’s precedents justify this decision.

Ill

The Court asserts that categorical proportionality review is necessary here merely because Graham asks for *866a categorical rule, see ante, at 61, 176 L. Ed. 2d, at 837, and because the Court thinks clear lines are a good idea, see ante, at 75, 176 L. Ed. 2d, at 846. I find those factors wholly insufficient to justify the Court’s break from past practice. First, the Court fails to acknowledge that a petitioner seeking to exempt an entire category of offenders from a sentencing practice carries a much heavier burden than one seeking case-specific relief under Solem. Unlike the petitioner in Solem, Graham must establish not only that his own life-without-parole sentence is “grossly disproportionate,” but also that such a sentence is always grossly disproportionate whenever it is applied to a juvenile nonhomicide offender, no matter how heinous his crime. Cf. United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). Second, even applying the Court’s categorical “evolving standards” test, neither objective evidence of national consensus nor the notions of culpability on which the Court’s “independent judgment” relies can justify the categorical rule it declares here.

[560 U.S. 106]

A

According to the Court, proper Eighth Amendment analysis “begins with objective indicia of national consensus,”3 and “ [t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures,” ante, at 62, 176 L. Ed. 2d, at 837 (internal quotation marks omitted). As such, the analysis should end quickly, because a national “consensus” in favor of the Court’s result simply does not exist. The laws of all 50 States, the Federal Government, and the District of Columbia provide that juveniles over a certain age may be tried in adult court if charged with certain crimes.4 See ante, at 82-85, 176 L. Ed. 2d, at 850-852 (appendix to opinion of the Court). Forty-five States, the Federal Government, and the District of Columbia expose juvenile offenders charged

[560 U.S. 107]

in adult court to the very same range of punishments faced by adults charged with the same crimes. See ante, at 82-84, 176 L. Ed. 2d, at 850-852 (Part I). Eight of those States do not make life-without-parole sentences available for any nonhomicide of*867fender, regardless of age.5 All remaining jurisdictions—the Federal Government, the other 37 States, and the District—authorize life-without-parole sentences for certain nonhomi-cide offenses, and authorize the imposition of such sentences on persons under 18. See ibid. Only five States prohibit juvenile offenders from receiving a life-without-parole sentence that could be imposed on an adult convicted of the same crime.6

No plausible claim of a consensus against this sentencing practice can be made in light of this overwhelming legislative evidence. The sole fact that federal law authorizes this practice singlehandedly refutes the claim that our Nation finds it morally repugnant. The additional reality that 37 out of 50 States (a supermajority of 74%) permit the practice makes the claim utterly implausible. Not only is there no consensus against this penalty, there is a clear legislative consensus in favor of its availability.

Undaunted, however, the Court brushes this evidence aside as “incomplete and unavailing,” declaring that “ ‘[t]here

[560 U.S. 108]

are measures of consensus other than legislation.’ ” Ante, at 62, 176 L. Ed. 2d, at 838 (quoting Kennedy, 554 U.S., at 433, 128 S. Ct. 2641, 171 L. Ed. 2d 525). This is nothing short of stunning. Most importantly, federal civilian law approves this sentencing practice.7 And although the Court has never decided how many state laws are necessary to show consensus, the Court has never banished into constitutional exile a sentencing practice that the laws of a majority, let alone a supermajority, of States expressly permit.8

Moreover, the consistency and di*868rection of recent legislation—a factor the Court previously has relied upon when crafting categorical proportionality rules, see Atkins, 536 U.S., at 315-316, 122 S. Ct. 2242, 153 L. Ed. 2d 335; Roper, 543 U.S., at 565-566, 125 S. Ct. 1183, 161 L. Ed. 2d 1—underscores

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the consensus against the rule the Court announces here. In my view, the Court cannot point to a national consensus in favor of its rule without assuming a consensus in favor of the two penological points it later discusses: (1) Juveniles are always less culpable than similarly-situated adults, and (2) juveniles who commit nonhomicide crimes should always receive an opportunity to demonstrate rehabilitation through parole. Ante, at 68-69, 74-75, 176 L. Ed. 2d, at 841-842, 845-846. But legislative trends make that assumption untenable.

First, States over the past 20 years have consistently increased the severity of punishments for juvenile offenders. See 1999 DOJ National Report 89 (referring to the 1990’s as “a time of unprecedented change as State legislatures crackled] down on juvenile crime”); ibid, (noting that, during that period, “legislatures in 47 States and the District of Columbia enacted laws that made their juvenile justice systems more punitive,” principally by “ma[king] it easier to transfer juvenile offenders from the juvenile justice system to the [adult] criminal justice system”); id., at 104. This, in my view, reveals the States’ widespread agreement that juveniles can sometimes act with the same culpability as adults and that the law should permit judges and juries to consider adult sentences—including life without parole—in those rare and unfortunate cases. See Feld, Unmitigated Punishment: Adolescent Criminal Responsibility and LWOP Sentences, 10 J. Law & Family Studies 11, 69-70 (2007) (noting that life-without-parole sentences for juveniles have increased since the 1980’s); Amnesty International & Human Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States 2, 31 (2005) (same).

Second, legislatures have moved away from parole over the same period. Congress abolished parole for federal offenders in 1984 amid criticism that it was subject to “gamesmanship and cynicism,” Breyer, Federal Sentencing Guidelines Revisited, 11 Fed. Sentencing Rep. 180 (1999) (discussing the Sentencing Reform Act of 1984, 98 Stat.

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1987), and several States have followed suit, see T. Hughes, D. Wilson, & A. Beck, Dept, of Justice, Bureau of Justice Statistics, Trends in State Parole, 1990-2000, p. 1 (2001) (noting that, by the end of 2000, 16 States had abolished parole for all offenses, while another 4 States had abolished it for certain ones). In light of these developments, the argument that there is nationwide consensus that parole must be available to offenders less than 18 years old in every nonhomicide case simply fails.

B

The Court nonetheless dismisses existing legislation, pointing out that *869life-without-parole sentences are rarely imposed on juvenile nonhomi-cide offenders—124 times in recent memory9 by the Court’s calculation, spread out across 11 States.10 Ante, at 62-64, 176 L. Ed. 2d, at 837-839. Based on this rarity of use,

[560 U.S. 111]

the Court proclaims a consensus against the practice, implying that laws allowing it either reflect the consensus of a prior, less civilized time or are the work of legislatures tone-deaf to the moral values of their constituents that this Court claims to have easily discerned from afar. See ante, at 62, 176 L. Ed. 2d, at 837-838.

This logic strains credulity. It has been rejected before. Gregg v. Georgia, 428 U.S. 153, 182, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, [it] . . . may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases”). It should also be rejected here. That a punishment is rarely imposed demonstrates nothing more than a general consensus that it should be just that—rarely imposed. It is not proof that the punishment is one the Nation abhors.

The Court nonetheless insists that the 26 States that authorize this penalty, but are not presently incarcerating a juvenile nonhomicide offender on a life-without-parole sentence, cannot be counted as approving its use. The mere fact that the laws of a jurisdiction permit this penalty, the Court explains, “does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration.” Ante, at 67, 176 L. Ed. 2d, at 840.

But this misapplies the Court’s own evolving standards test. Under that test, “[i]t is not the burden of [a State] to establish a national consensus approving what their citizens have voted to do; rather, it is the ‘heavy burden’ of petitioners to establish a national consensus against it.” Stanford v. Kentucky, 492 U.S. 361, 373, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989) (quoting Gregg, supra, at 175, 182, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (joint opinion of Stewart, Powell, and Stevens, JJ.); some emphasis added, citation omitted). In light of this fact, the Court is wrong to equate a jurisdiction’s disuse of a

[560 U.S. 112]

legislatively authorized penalty with its moral opposition to it. The fact *870that the laws of a jurisdiction permit this sentencing practice demonstrates, at a minimum, that the citizens of that jurisdiction find tolerable the possibility that a jury of their peers could impose a life-without-parole sentence on a juvenile whose nonhomicide crime is sufficiently depraved.

The recent case of 16-year-old Keighton Budder illustrates this point. Just weeks before the release of this opinion, an Oklahoma jury sentenced Budder to life without parole after hearing evidence that he viciously attacked a 17-year-old girl who gave him a ride home from a party. See Stogsdill, Teen Gets Life Terms in Stabbing, Rape Case, Tulsa World, Apr. 2, 2010, p. A10; Stogsdill, Delaware County Teen Sentenced in Rape, Assault Case, Tulsa World, May 4, 2010, p. A12. Budder allegedly put the girl’s head “ ‘into a headlock and sliced her throat,’ ” raped her, stabbed her about 20 times, beat her, and pounded her face into the rocks alongside a dirt road. Teen Gets Life Terms in Stabbing, Rape Case, at A10. Miraculously, the victim survived. Ibid.

Budder’s crime was rare in its brutality. The sentence the jury imposed was also rare. According to the study relied upon by this Court, Oklahoma had no such offender in its prison system before Budder’s offense. P. An-nino, D. Rasmussen, & C. Rice, Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation 2, 14 (Sept. 14, 2009) (Table A). Without his conviction, therefore, the Court would have counted Oklahoma’s citizens as morally opposed to life-without-parole sentences for juvenile nonhomicide offenders.

Yet Oklahoma’s experience proves the inescapable flaw in that reasoning: Oklahoma citizens have enacted laws that allow Oklahoma juries to consider life-without-parole sentences in juvenile nonhomicide cases. Oklahoma juries invoke those laws rarely—in the unusual cases that they find exceptionally depraved. I cannot agree with the Court that

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Oklahoma citizens should be constitutionally disabled from using this sentencing practice merely because they have not done so more frequently. If anything, the rarity of this penalty’s use underscores just how judicious sentencing judges and juries across the country have been in invoking it.

This fact is entirely consistent with the Court’s intuition that juveniles generally are less culpable and more capable of growth than adults. See infra, at 116-118, 176 L. Ed. 2d, at 872-874. Graham’s own case provides another example. Graham was statutorily eligible for a life-without-parole sentence after his first crime. But the record indicates that the trial court did not give such a sentence serious consideration at Graham’s initial plea hearing. It was only after Graham subsequently violated his parole by invading a home at gunpoint that the maximum sentence was imposed.

In sum, the Court’s calculation that 123 juvenile nonhomicide life-without-parole sentences have been imposed nationwide in recent memory, even if accepted, hardly amounts to strong evidence that the sentencing practice offends our common sense of decency.11

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Finally, I cannot help but note that the statistics the Court finds inad*871equate to justify the penalty in this case are stronger than those supporting at least one other penalty this Court has upheld. Not long ago, this Court, joined by the author of today’s opinion, upheld the application of the death penalty against a 16-year-old, despite the fact that no such punishment had been carried out on a person of that age in this country in nearly 30 years. See Stanford, 492 U.S., at 374, 109 S. Ct. 2969, 106 L. Ed. 2d 306. Whatever the statistical frequency with which life-without-parole sentences have been imposed on juvenile nonhomicide offenders in the last 30 years, it is surely greater than zero.

In the end, however, objective factors such as legislation and the frequency of a penalty’s use are merely ornaments in the Court’s analysis, window dressing that accompanies its judicial fiat.12 By the Court’s own decree, “[c]ommunity

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consensus ... is not itself determinative.” Ante, at 67, 176 L. Ed. 2d, at 841. Only the independent moral judgment of this Court is sufficient to decide the question. See ibid.

C

Lacking any plausible claim to consensus, the Court shifts to the heart of its argument: its “independent judgment” that this sentencing practice does not “serv[e] legitimate penological goals.” Ibid. The Court begins that analysis *872with the obligatory preamble that “ ‘[t]he Eighth Amendment does not mandate adoption of any one peno-logical theory,’ ” ante, at 71, 176 L. Ed. 2d, at 843 (quoting Harmelin, 501 U.S., at 999, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part and concurring in judgment)), then promptly mandates the adoption of the theories the Court deems best.

First, the Court acknowledges that, at a minimum, the imposition of life-without-parole sentences on juvenile nonhomicide offenders serves two “legitimate” penological goals: incapacitation and deterrence. Ante, at 72-74, 176 L. Ed. 2d, at 844-845. By definition, such sentences serve the goal of incapacitation by ensuring that juvenile offenders who commit armed burglaries, or those who commit the types of grievous sex crimes described by The Chief Justice, no longer threaten their communities. See ante, at 93-94, 176 L. Ed. 2d, at 858-859 (opinion concurring in judgment). That should settle the matter, since the Court acknowledges

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that incapacitation is an “important” penological goal. Ante, at 72, 176 L. Ed. 2d, at 844. Yet, the Court finds this goal “inadequate” to justify the life-without-parole sentences here. Ibid. (emphasis added). A similar fate befalls deterrence. The Court acknowledges that such sentences will deter future juvenile offenders, at least to some degree, but rejects that peno-logical goal, not as illegitimate, but as insufficient. Ibid. (“[A]ny limited deterrent effect provided by life without parole is not enough to justify the sentence” (emphasis added)).

The Court looks more favorably on rehabilitation, but laments that life-without-parole sentences do little to promote this goal because they result in the offender’s permanent incarceration. Ante, at 74, 176 L. Ed. 2d, at 845. Of course, the Court recognizes that rehabilitation’s “utility and proper implementation” are subject to debate. Ante, at 73, 176 L. Ed. 2d, at 845. But that does not stop it from declaring that a legislature may not “forswea[r] . . . the rehabilitative ideal.” Ante, at 74, 176 L. Ed. 2d, at 845. In other words, the Eighth Amendment does not mandate “any one penological theory,” ante, at 71, 176 L. Ed. 2d, at 843 (internal quotation marks omitted), just one the Court approves.

Ultimately, however, the Court’s “independent judgment” and the proportionality rule itself center on retribution—the notion that a criminal sentence should be proportioned to “ ‘the personal culpability of the criminal offender.’” Ante, at 67, 71, 176 L. Ed. 2d, at 841, 843 (quoting Tison v. Arizona, 481 U.S. 137, 149, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987)). The Court finds that retributive purposes are not served here for two reasons.

1

First, quoting Roper, 543 U.S., at 569-570, 125 S. Ct. 1183, 161 L. Ed. 2d 1, the Court concludes that juveniles are less culpable than adults because, as compared to adults, they “have a ‘ “lack of maturity and an underdeveloped sense of responsibility,” ’ ” and “their characters are ‘not as well formed.’ ” Ante, at 68, 176 L. Ed. 2d, at 841. As a general matter, this statement is entirely consistent with the

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evidence recounted above that judges and juries impose the sentence at issue quite infrequently, despite legislative authorization to do so in many more cases. See Part III-B, supra. Our society tends to treat the average juvenile as less culpable than *873the average adult. But the question here does not involve the average juvenile. The question, instead, is whether the Constitution prohibits judges and juries from ever concluding that an offender under the age of 18 has demonstrated sufficient depravity and incorrigibility to warrant his permanent incarceration.

In holding that the Constitution imposes such a ban, the Court cites “developments in psychology and brain science” indicating that juvenile minds “continue to mature through late adolescence,” ante, at 68, 176 L. Ed. 2d, at 841 (citing Brief for American Medical Association et al. as Amici Curiae 16-24; Brief for American Psychological Association et al. as Amici Curiae 22-27 (hereinafter APA Brief)), and that juveniles are “more likely [than adults] to engage in risky behaviors,” id.., at 7. But even if such generalizations from social science were relevant to constitutional rule-making, the Court misstates the data on which it relies.

The Court equates the propensity of a fairly substantial number of youths to engage in “risky” or antisocial behaviors with the propensity of a much smaller group to commit violent crimes. Ante, at 76-79, 176 L. Ed. 2d, at 846-848. But research relied upon by the amici cited in the Court’s opinion differentiates between adolescents for whom antisocial behavior is a fleeting symptom and those for whom it is a lifelong pattern. See Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychological Rev. 674, 678 (1993) (cited in APA Brief 8, 17, 20) (distinguishing between adolescents who are “antisocial only during adolescence” and a smaller group who engage in antisocial behavior “at every life stage” despite “drift[ing] through successive systems aimed at curbing their deviance”). That research further suggests that the pattern of behavior in the

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latter group often sets in before 18. See Moffitt, supra, at 684 (“The well-documented resistance of antisocial personality disorder to treatments of all kinds seems to suggest that the life-course-persistent style is fixed sometime before age 18”). And, notably, it suggests that violence itself is evidence that an adolescent offender’s antisocial behavior is not transient. See Moffitt, A Review of Research on the Taxonomy of Life-Course Persistent Versus Adolescence-Limited Antisocial Behavior, in Taking Stock: the Status of Criminological Theory 277, 292-293 (F. Cullen, J. Wright, & K. Blevins eds. 2006) (observing that “life-course persistent” males “tended to specialize in serious offenses (carrying a hidden weapon, assault, robbery, violating court orders), whereas adolescence-limited” ones “specialized in non-serious offenses (theft less than $5, public drunkenness, giving false information on application forms, pirating computer software, etc.)”).

In sum, even if it were relevant, none of this psychological or sociological data is sufficient to support the Court’s “ ‘moral’ ” conclusion that youth defeats culpability in every case. Ante, at 68, 176 L. Ed. 2d, at 841-842 (quoting Roper, 543 U.S., at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1); see id., at 618, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (Scalia, J., dissenting); R. Epstein, The Case Against Adolescence 171 (2007) (reporting on a study of juvenile reasoning skills and concluding that “most teens are capable of conventional, adult-like moral reasoning”).

*874The Court responds that a categorical rule is nonetheless necessary to prevent the “ ‘unacceptable likelihood’ ” that a judge or jury, unduly swayed by “ ‘the brutality or coldblooded nature’ ” of a juvenile’s non-homicide crime, will sentence him to a life-without-parole sentence for which he possesses “ ‘insufficient culpability,’ ” ante, at 78, 176 L. Ed. 2d, at 847 (quoting Roper, supra, at 572-573, 125 S. Ct. 1183, 161 L. Ed. 2d 1). I find that justification entirely insufficient. The integrity of our criminal justice system depends on the ability of citizens to stand between the defendant and an outraged public and dispassionately determine his guilt and the proper amount of punishment based on the evidence

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presented. That process necessarily admits of human error. But so does the process of judging in which we engage. As between the two, I find far more “unacceptable” that this Court, swayed by studies reflecting the general tendencies of youth, decree that the people of this country are not fit to decide for themselves when the rare case requires different treatment.

2

That is especially so because, in the end, the Court does not even believe its pronouncements about the juvenile mind. If it did, the categorical rule it announces today would be most peculiar because it leaves intact state and federal laws that permit life-without-parole sentences for juveniles who commit homicides. See ante, at 68-69, 176 L. Ed. 2d, at 841-842. The Court thus acknowledges that there is nothing inherent in the psyche of a person less than 18 that prevents him from acquiring the moral agency necessary to warrant a life-without-parole sentence. Instead, the Court rejects overwhelming legislative consensus only on the question of which acts are sufficient to demonstrate that moral agency.

The Court is quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but insists that a 17-year-old who rapes an 8-year-old and leaves her for dead does not. See ibid.; cf. Ante, at 93-94, 176 L. Ed. 2d, at 858-859 (Roberts, C. J., concurring in judgment) (describing the crime of life-without-parole offender Milagro Cunningham). Thus, the Court’s conclusion that life-without-parole sentences are “grossly disproportionate” for juvenile nonhomicide offenders in fact has very little to do with its view of juveniles, and much more to do with its perception that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Ante, at 69, 176 L. Ed. 2d, at 842.

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That the Court is willing to impose such an exacting constraint on democratic sentencing choices based on such an untestable philosophical conclusion is remarkable. The question of what acts are “deserving” of what punishments is bound so tightly with questions of morality and social conditions as to make it, almost by definition, a question for legislative resolution. It is true that the Court previously has relied on the notion of proportionality in holding certain classes of offenses categorically exempt from capital punishment. See supra, at 100-101, 176 L. Ed. 2d, at 862-863. But never before today has the Court relied on its own view of just deserts to impose a categorical limit on the imposition of a lesser punishment. Its *875willingness to cross that well-established boundary raises the question whether any democratic choice regarding appropriate punishment is safe from the Court’s ever-expanding constitutional veto.

IV

Although The Chief Justice’s concurrence avoids the problems associated with expanding categorical proportionality review to noncapital cases, it employs noncapital proportionality analysis in a way that raises the same fundamental concern. Although I do not believe Solem merits stare decisis treatment, Graham’s claim cannot prevail even under that test (as it has been limited by the Court’s subsequent precedents). Solem instructs a court first to compare the “gravity” of an offender’s conduct to the “harshness of the penalty” to determine whether an “inference” of gross disproportionality exists. 463 U.S., at 290-291. Only in “the rare case” in which such an inference is present should the court proceed to the “objective” part of the inquiry—an intrajurisdictional and interjurisdictional comparison of the defendant’s sentence with others similarly situated. Harmelin, 501 U.S., at 1000, 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part).

[560 U.S. 121]

Under the Court’s precedents, I fail to see how an “inference” of gross disproportionality arises here. The concurrence notes several arguably mitigating facts—Graham’s “lack of prior criminal convictions, his youth and immaturity, and the difficult circumstances of his upbringing.” Ante, at 92, 176 L. Ed. 2d, at 857 (opinion of Roberts, C. J.). But the Court previously has upheld a life-without-parole sentence imposed on a first-time offender who committed a nonviolent drug crime. See Harmelin, supra, at1002-1004, 111 S. Ct. 2680, 115 L. Ed. 2d 836. Graham’s conviction for an actual violent felony is surely more severe than that offense. As for Graham’s age, it is true that Roper held juveniles categorically ineligible for capital punishment, but as the concurrence explains, Roper was based on the “explicit conclusion that [juveniles] ‘cannot with reliability be classified among the worst offenders’ it did “not establish that juveniles can never be eligible for life without parole.” Ante, at 89, 176 L. Ed. 2d, at 856 (opinion of Roberts, C. J.) (quoting Roper, 543 U.S., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1; emphasis added in opinion of Roberts, C. J.). In my view, Roper’s principles are thus not generally applicable outside the capital sentencing context. fender who committed a nonviolent drug crime. See Harmelin, supra, at

By holding otherwise, the concurrence relies on the same type of subjective judgment as the Court, only it restrains itself to a case-by-case rather than a categorical ruling. The concurrence is quite ready to hand Graham “the general presumption of diminished culpability” for juveniles, ante, at 92, 176 L. Ed. 2d, at 857, apparently because it believes that Graham’s armed burglary and home invasion crimes were “certainly less serious” than murder or rape, ante, at 91, 176 L. Ed. 2d, at 859. It recoils only from the prospect that the Court would extend the same presumption to a juvenile who commits a sex crime. See ante, at 94-95, 176 L. Ed. 2d, at 859.1 simply cannot accept that these subjective judgments of proportionality are ones the Eighth Amendment authorizes us to make.

The “objective” elements of the Solem test provide no additional support for the concurrence’s conclusion. The concurrence compares Graham’s *876sentence to “similar” sentences

[560 U.S. 122]

in Florida and concludes that Graham’s sentence was “far more severe.” Ante, at 93, 176 L. Ed. 2d, at 858 (Roberts, C. J., concurring in judgment). But strangely, the concurrence uses average sentences for burglary or robbery offenses as examples of “similar” offenses, even though it seems that a run-of-the-mill burglary or robbery is not at all similar to Graham’s criminal history, which includes a charge for armed burglary with assault, and a probation violation for invading a home at gunpoint.

And even if Graham’s sentence is higher than ones he might have received for an armed burglary with assault in other jurisdictions, see ibid., this hardly seems relevant if one takes seriously the principle that “ ‘[a]bsent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State,’ ” Harmelin, supra, at 1000, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (opinion of Kennedy, J.) (quoting Rummel, 445 U.S., at 282, 100 S. Ct. 1133, 63 L. Ed. 2d 382; emphasis added). Applying Solem, the Court has upheld a 25-years-to-life sentence for theft under California’s recidivist statute, despite the fact that the State and its amici could cite only “a single instance of a similar sentence imposed outside the context of California’s three strikes law, out of a prison population [then] approaching two million individuals.” Ewing, 538 U.S., at 47, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (Breyer, J., dissenting). It has also upheld a life-without-parole sentence for a first-time drug offender in Michigan charged with possessing 672 grams of cocaine despite the fact that only one other State would have authorized such a stiff penalty for a first-time drug offense, and even that State required a far greater quantity of cocaine (10 kilograms) to trigger the penalty. See Harmelin, supra, at 1026, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (White, J., dissenting). Graham’s sentence is certainly less rare than the sentences upheld in these cases, so his claim fails even under Solem.

[560 U.S. 123]

Both the Court and the concurrence claim their decisions to be narrow ones, but both invite a host of line-drawing problems to which courts must seek answers beyond the strictures of the Constitution. The Court holds that “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime,” but must provide the offender with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Ante, at 75, 176 L. Ed. 2d, at 845-846. But what, exactly, does such a “meaningful” opportunity entail? When must it occur? And what Eighth Amendment principles will govern review by the parole boards the Court now demands that States empanel? The Court provides no answers to these questions, which will no doubt embroil the courts for years.13

*877V

The ultimate question in this case is not whether a life-without-parole sentence “fits” the crime at issue here or the crimes of juvenile nonhomicide offenders more generally, but to whom the Constitution assigns that decision. The Florida Legislature has concluded that such sentences should be available for persons under 18 who commit certain crimes, and the trial judge in this case decided to impose that legislatively authorized sentence here. Because a life-without-parole prison sentence is not a “cruel and unusual” method

[560 U.S. 124]

of punishment under any standard, the Eighth Amendment gives this Court no authority to reject those judgments.

It would be unjustifiable for the Court to declare otherwise even if it could claim that a bare majority of state laws supported its independent moral view. The fact that the Court categorically prohibits life-without-parole sentences for juvenile nonho-micide offenders in the face of an overwhelming legislative majority in favor of leaving that sentencing option available under certain cases simply illustrates how far beyond any cognizable constitutional principle the Court has reached to ensure that its own sense of morality and retributive justice pre-empts that of the people and their representatives.

I agree with Justice Stevens that “[w]e learn, sometimes, from our mistakes.” Ante, at 85, 176 L. Ed. 2d, at 853 (concurring opinion). Perhaps one day the Court will learn from this one.

I respectfully dissent.

Justice Alito,

dissenting.

I join Parts I and III of Justice Thomas’ dissenting opinion. I write separately to make two points.

First, the Court holds only that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” Ante, at 74, 176 L. Ed. 2d, at 845 (emphasis added). Nothing in the Court’s opinion affects the imposition of a sentence to a term of years without the possibility of parole. Indeed, petitioner conceded at oral argument that a sentence of as much as 40 years without the possibility of parole “probably” would be constitutional. Tr. of Oral Arg. 6-7; see also ante, at 123, n. 13, 176 L. Ed. 2d, at 876 (Thomas, J., dissenting).

Second, the question whether petitioner’s sentence violates the narrow, as-applied proportionality principle that applies to noncapital sentences is not properly before us in this case. Although petitioner asserted an as-applied proportionality challenge to his sentence before the Florida courts, see 982 So. 2d 43, 51-53 (Fla. App. 2008), he did not include

[560 U.S. 125]

an as-applied claim in his petition for cer-tiorari or in his merits briefs before this Court. Instead, petitioner argued for only a categorical rule banning the imposition of life without parole on any juvenile convicted of a nonhomi-cide offense. Because petitioner abandoned his as-applied claim, I would not reach that issue. See this Court’s Rule 14.1(a); Yee v. Escondido, 503 U.S. 519, 534-538, 112 S. Ct. 1522, 118 L. Ed. 2d 153 (1992).

Judgment of the Court, and opinion of

Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stewart.

The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.

I

The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage. The evidence at the guilt trial established that on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida were picked up by Fred Simmons and Bob Moore. Their car broke down, but they continued north after Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, they picked up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 p. m. *159A short time later the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby.

On November 23, after reading about the shootings in an Atlanta newspaper, Weaver comunicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, the petitioner and Allen, while in Simmons’ car, were arrested in Asheville, N. C. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in the petitioner’s pocket. After receiving the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), and signing a written waiver of his rights, the petitioner signed a statement in which he admitted shooting, then robbing Simmons and Moore. He justified the slayings on grounds of self-defense. The next day, while being transferred to Lawrence-ville, Ga., the petitioner and Allen were taken to the scene of the shootings. Upon arriving there, Allen recounted the events leading to the slayings. His version of these events was as follows: After Simmons and Moore left the car, the petitioner stated that he intended to rob them. The petitioner then took his pistol in hand and positioned himself on the car to improve his aim. As Simmons and Moore came up an embankment toward the car, the petitioner fired three shots and the two men fell near a ditch. The petitioner, at close range, then fired a shot into the head of each. He robbed them of valuables and drove away with Allen.

A medical examiner testified that Simmons died from a bullet wound in the eye and that Moore died from bullet wounds in the cheek and in the back of the head. He further testified that both men had several bruises *160and abrasions about the face and head which probably were sustained either from the fall into the ditch or from being dragged or pushed along the embankment. Although Allen did not testify, a police detective recounted the substance of Allen’s statements about the slayings and indicated that directly after Allen had made these statements the petitioner had admitted that Allen’s account was accurate. The petitioner testified in his own defense. He confirmed that Allen had made the statements described by the detective, but denied their truth or ever having admitted to their accuracy. He indicated that he had shot Simmons and Moore because of fear and in self-defense, testifying they had attacked Allen and him, one wielding a pipe and the other a knife.1

The trial judge submitted the murder charges to the jury on both felony-murder and nonfelony-murder theories. He also instructed on the issue of self-defense but declined to instruct on manslaughter. He submitted the robbery case to the jury on both an armed-robbery theory and on the lesser included offense of robbery by intimidation. The jury found the petitioner guilty of two counts of armed robbery and two counts of murder.

At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner’s lawyer offered any additional evidence. Both counsel, however, made lengthy arguments dealing generally with the propriety of capital punishment under the circumstances and with the weight of the evidence of guilt. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. *161The judge further charged the jury that in determining what sentence was appropriate the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation.

Finally, the judge instructed the jury that it “would not be authorized to consider [imposing] the penalty of death” unless it first found beyond a reasonable doubt-one of these aggravating circumstances:

“One — That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of [Simmons and Moore].

“Two — That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.

“Three — The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they [sic] involved the depravity of [the] mind of the .defendant.” Tr. 476-477.

Finding the first and second of these circumstances, the jury returned verdicts of death on each count.

The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder. 233 Ga. 117, 210 S. E. 2d 659 (1974). After reviewing the trial transcript and the record, including the evidence, and comparing the evidence and sentence in similar cases in accordance with the requirements of Georgia law, the court concluded that, considering the nature of the crime and the defendant, the sentences of death had not resulted from prejudice or any other arbitrary factor and were not excessive or disproportionate to the penalty applied in similar cases.2 The death *162sentences imposed, for armed robbery, however, were vacated on the grounds that the death penalty had rarely been imposed in Georgia for that offense and that the jury improperly considered the murders as aggravating circumstances for the robberies after having considered the armed robberies as aggravating circumstances for the murders. Id., at 127, 210 S. E. 2d, at 667.

We granted the petitioner’s application for a writ of certiorari limited to his challenge to the imposition of the death sentences in this case as “cruel and unusual” punishment in violation of the Eighth and the Fourteenth Amendments. 423 U. S. 1082 (1976).

II

Before considering the issues presented it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty.3 The Georgia statute, as amended after our decision in Furman v. Georgia, 408 U. S. 238 (1972), retains the death penalty for six categories of crime: murder,4 kidnaping for ransom or where *163the victim is harmed, armed robbery,5 rape, treason, and aircraft hijacking.6 Ga. Code Ann. §§ 26-1101, 26-1311, 26-1902, 26-2001, 26-2201, 26-3301 (1972). The capital defendant’s guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial.

If trial is by jury, the trial judge is required to charge lesser included offenses when they are supported by any view of the evidence. Sims v. State, 203 Ga. 668, 47 S. E. 2d 862 (1948). See Linder v. State, 132 Ga. App. 624, 625, 208 S. E. 2d 630, 631 (1974). After a verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same in both bench and jury trials. At the hearing:

“[T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that *164only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge [or jury] shall also hear argument by the defendant or his counsel and the prosecuting attorney . . . regarding the punishment to be imposed.” §27-2503 (Supp. 1975).

The defendant is accorded substantial latitude as to the types of evidence that he may introduce. See Brown v. State, 235 Ga. 644, 647-650, 220 S. E. 2d 922, 925-926 (1975).7 Evidence considered during the guilt stage may be considered during the sentencing stage without being resubmitted. Eberheart v. State, 232 Ga. 247, 253, 206 S. E. 2d 12, 17 (1974).8

In the assessment of the appropriate sentence to be imposed the judge is also required to consider or to include in his instructions to the jury “any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of [10] statutory aggravating circumstances which may be supported by the evidence....” §27-2534.1 (b) (Supp. 1975). The scope of the non-statutory aggravating or mitigating circumstances is not delineated in the statute. Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances speci-*165fled in the statute.9 The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to *166impose that sentence. §26-3102 (Supp. 1975). If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found. § 27-2534.1 (c) (Supp. 1975). In jury cases, the trial judge is bound by the jury’s recommended sentence. §§ 26-3102, 27-2514 (Supp. 1975).

In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case. The court is directed to consider “the punishment as well as any errors enumerated by way of appeal,” and to determine:

“(1) Whether the sentence of death was imposed *167under the influence of passion, prejudice, or any other arbitrary factor, and

“(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 27.2534.1 (b), and

“(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” §27-2537 (Supp. 1975).

If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration. § 27-2537 (e) (Supp. 1975).10

A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. § 27-2537 (a) (Supp. 1975). The report is in the form of a 6%-page questionnaire, designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence. Included in the report are responses to detailed questions concerning the quality of the defendant’s representation, whether race played a role in the trial, and, whether, in the trial court’s judgment, there was any doubt about *168the defendant's guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel. Under its special review authority, the court may either affirm the death sentence or remand the case for resentencing. In cases in which the death sentence is affirmed there remains the possibility of executive clemency.11

Ill

We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. In Part IV of this opinion, we will consider the sentence of death imposed under the Georgia statutes at issue in this case.

The Court on a number of occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment.12 But until Furman v. Georgia, 408 U. S. 238 (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and *169unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15 We now hold that the punishment of death does not invariably violate the Constitution.

A

The history of the prohibition of “cruel and unusual” punishment already has been reviewed at length.16 The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif. L. Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. The *170American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing “tortures” and other “barbarous” methods of punishment.” Id., at 842.17

In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used to evaluate the mode of execution was its similarity to “torture” and other “barbarous” methods. See Wilkerson v. Utah, 99 U. S. 130, 136 (1879) (“[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . .”); In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve torture or a lingering death . . .”). See also Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 (1947) (second attempt at electrocution found not to violate *171Eighth Amendment, since failure of initial execution attempt was “an unforeseeable accident” and “[t]here [was] no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution”).

But the Court has not confined the prohibition embodied in the Eighth Amendment to “barbarous” methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The Court early recognized that “a principle to be vital must be capable of wider application than the mischief which gave it birth.” Weems v. United States, 217 U. S. 349, 373 (1910). Thus the Clause forbidding “cruel and unusual” punishments “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” Id., at 378. See also Furman v. Georgia, 408 U. S., at 429-430 (Powell, J., dissenting); Trop v. Dulles, 356 U. S. 86, 100-101 (1958) (plurality opinion).

In Weems the Court addressed the constitutionality of the Philippine punishment of cadena temporal for the crime of falsifying an official document. That punishment included imprisonment for at least 12 years and one day, in chains, at hard and painful labor; the loss of many basic civil rights; and subjection to lifetime surveillance. Although the Court acknowledged the possibility that “the cruelty of pain” may be present in the challenged punishment, 217 U. S., at 366, it did not rely on that factor, for it rejected the proposition that the Eighth Amendment reaches only punishments that are “inhuman and barbarous, torture and the like.” Id., at 368. Rather, the Court focused on the lack of proportion between the crime and the offense:

“Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice *172of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense.” Id., at 366-367.18

Later, in Trop v. Dulles, supra, the Court reviewed the constitutionality of the punishment of denationalization imposed upon a soldier who escaped from an Army stockade and became a deserter for one day. Although the concept of proportionality was not the basis of the holding, the plurality observed in dicta that “[fjines, imprisonment and even execution may be imposed depending upon the enormity of the crime.” 356 U. S., at 100. .

The substantive limits imposed by the Eighth Amendment on what can be made criminal and punished were discussed in Robinson v. California, 370 U. S. 660 (1962). The Court found unconstitutional a state statute that made the status of being addicted to a narcotic drug a criminal offense. It held, in effect, that it is “cruel and unusual” to impose any punishment at all for the mere status of addiction. The cruelty in the abstract of the actual sentence imposed was irrelevant: “Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold.” Id., at 667. Most recently, in Furman v. Georgia, supra, three Justices in separate concurring opinions found the Eighth Amendment applicable to procedures employed to select convicted defendants for the sentence of death.

It is clear from the foregoing precedents that the *173Eighth Amendment has not been regarded as a static concept. As Mr. Chief Justice Warren said, in an oft-quoted phrase, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, supra, at 101. See also Jackson v. Bishop, 404 P. 2d 571, 579 (CA8 1968). Cf. Robinson v. California, supra, at 666. Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, see infra, at 175-176, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.

But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.” Trop v. Dulles, supra, at 100 (plurality opinion). This means, at least, that the punishment not be “excessive.” When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into “excessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Furman v. Georgia, supra, at 392-393 (Burger, C. J., dissenting). See Wilkerson v. Utah, 99 U. S., at 136; Weems v. United States, supra, at 381. Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles, supra, at 100 (plurality opinion) (dictum); Weems v. United States, supra, at 367.

*174B

Of course, the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts. This does not mean that judges have no role to play, for the Eighth Amendment is a restraint upon the exercise of legislative power.

“Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not.” Furman v. Georgia, 408 U. S., at 313-314 (White, J., concurring).

See also id., at 433 (Powell, J., dissenting).19

But, while we have an obligation to insure that con*175stitutional bounds are not overreached, we may not act as judges as we might as legislators.

“Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.” Dennis v. United States, 341 U. S. 494, 525 (1951) (Frankfurter, J., concurring in affirmance of judgment).20

Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.

This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. “[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.” *176 Furman v. Georgia, supra, at 383 (Burger, C. J., dissenting) . The deference we owe to the decisions of the state legislatures under our federal system, 408 U. S., at 465-470 (Rehnquist, J., dissenting), is enhanced where the specification of punishments is concerned, for “these are peculiarly questions of legislative policy.” Gore v. United States, 357 U. S. 386, 393 (1958). Cf. Robinson v. California, 370 U. S., at 664-665; Trop v. Dulles, 356 U. S., at 103 (plurality opinion); In re Kemmler, 136 U. S., at 447. Caution is necessary lest this Court become, “under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility . . . throughout the country.” Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion). A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. See Furman v. Georgia, supra, at 461-462 (Powell, J., dissenting).

C

In the discussion to this point we have sought to identify the principles and considerations that guide a court in addressing an Eighth Amendment claim. We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question.

The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule *177imposed a mandatory death sentence on all convicted murderers. McGautha v. California, 402 U. S. 183, 197-198 (1971). And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. Id., at 199-200. See Woodson v. North Carolina, post, at 289-292.

It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. C. 9, 1 Stat. 112 (1790). The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . .

And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of “life, liberty, or property” without due process of law.

For nearly two centuries, this Court, repeatedly and *178often expressly, has recognized that capital punishment is not invalid per se. In Wilkerson v. Utah, 99 U. S., at 134-135, where the Court found no constitutional violation in inflicting death by public shooting, it said:

“Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment.”

Rejecting the contention that death by electrocution was “cruel and unusual,” the Court in In re Kemmler, supra, at 447, reiterated:

“[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”

Again, in Louisiana ex rel. Francis v. Resweber, 329 U. S., at 464, the Court remarked: “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” And in Trop v. Dulles, 356 U. S., at 99, Mr. Chief Justice Warren, for himself and three other Justices, wrote:

“Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.”

*179Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. The petitioners in those cases said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital punishment for any crime regardless of its depravity and impact on society. This view was accepted by two Justices.21 Three other Justices were unwilling to go so far; focusing on the procedures by which convicted defendants were selected for the death penalty rather than on the actual punishment inflicted, they joined in the conclusion that the statutes before the Court were constitutionally invalid.22

The petitioners in the capital cases before the Court today renew the "standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.

The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States23 have enacted new statutes that provide for the *180death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death.24 These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman primarily (i) by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence, or (ii) by .making the death penalty mandatory for specified crimes. But all of the post-Furman statutes make clear that capital punish*181ment itself has not been rejected by the elected representatives of the people.

In the only statewide referendum occurring since Fur-man and brought to our attention, the people of California adopted a constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California in People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert. denied, 406 U. S. 958 (1972), that the death penalty violated the California Constitution.25

The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. See Furman v. Georgia, 408 U. S., at 439-440 (Powell, J., dissenting). See generally Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1 (1966). The Court has said that “one of the most important functions any jury can perform in making ... a selection [between life imprisonment and death for a defendant convicted in a capital case] is to maintain a link between contemporary community values and the penal system.” Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15 (1968). It may be true that evolving standards have influenced juries in *182recent decades to be more discriminating in imposing the sentence of death.26 But the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases. See Furman v. Georgia, supra, at 388 (Burger, C. J., dissenting). Indeed, the actions of juries in many States since Furman are fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974 at least 254 persons had been sentenced to death since Furman,27 and by the end of March 1976, more than 460 persons were subject to death sentences.

As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment. Trop v. Dulles, 356 U. S., at 100 (plurality opinion). Although we cannot “invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of *183penology,’ Furman v. Georgia, supra, at 451 (Powell, J., dissenting), the sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah, 99 U. S., at 135-136; In re Kemmler, 136 U. S., at 447.

The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.28

In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct.29 This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.

“The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.” Furman v. Georgia, supra, at 308 (Stewart, J., concurring).

“Retribution is no longer the dominant objective of the criminal law,” Williams v. New York, 337 U. S. 241, 248 (1949), but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men. *184 Furman v. Georgia, 408 U. S., at 394-395 (Burger, C. J., dissenting); id., at 452-454 (Powell, J., dissenting); Powell v. Texas, 392 U. S., at 531 535-536 (plurality opinion). Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.30

Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate.31 The results *185simply have been inconclusive. As one opponent of capital punishment has said:

“[A]fter all possible inquiry, including the probing of all possible methods of inquiry, we do not know, and for systematic and easily visible reasons cannot know, what the truth about this 'deterrent’ effect may be ....

"The inescapable flaw is . . . that social conditions in any state are not constant through time, and that social conditions are not the same in any two states. If an effect were observed (and the observed effects, one way or another, are not large) then one could not at all tell whether any of this effect is attributable to the presence or absence of capital punishment. A 'scientific’ — that is to say, a soundly based — conclusion is simply impossible, and no methodological path out of this tangle suggests itself.” C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 25-26 (1974).

Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties,32 there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a signifi*186cant deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act.33 And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.34

The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. Furman v. Georgia, supra, at 403-405 (Burger, C. J., dissenting). Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent.

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature *187to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.

Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. Furman v. Georgia, 408 U. S., at 286-291 (Brennan, J., concurring); id., at 306 (Stewart, J., concurring). When a defendant’s life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. Powell v. Alabama, 287 U. S. 45, 71 (1932); Reid v. Covert, 354 U. S. 1, 77 (1957) (Harlan, J., concurring in result). But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender,35 we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.

We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.

IV

We now consider whether Georgia may impose the death penalty on the petitioner in this case.

*188A

While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. Mr. Justice White concluded that “the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” 408 U. S., at 313 (concurring). Indeed, the death sentences examined by the Court in Furman were “cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [capital crimes], many just as reprehensible as these, the petitioners [in Furman were] among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” Id., at 309-310 (Stewart, J., concurring).36

*189 Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner. We have long recognized that “[f]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937). See also Williams v. Oklahoma, 358 U. S. 576, 585 (1959); Williams v. New York, 337 U. S., at 247,37 Otherwise, “the system cannot function in a consistent and a rational manner.” American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.1 (a), Commentary, p. 201 (App. Draft 1968). See also President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 144 (1967); ALI, Model Penal Code § 7.07, Comment 1, pp. 52-53 (Tent. Draft No. 2, 1954).38

*190The cited studies assumed that the trial judge would be the sentencing authority. If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.

Jury sentencing has been considered desirable in capital cases in order “to maintain a link between contemporary community values and the penal system — a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’ ” 39 But it creates special problems. Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question.40 This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure — one in which the *191question of sentence is not considered until the determination of guilt has been made — is the best answer. The drafters of the Model Penal Code concluded:

“ [If a unitary proceeding is used] the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such for example as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. Trial lawyers understandably have little confidence in a solution that admits the evidence and trusts to an instruction to the jury that it should be considered only in determining the penalty and disregarded in assessing guilt.

. . The obvious solution ... is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but once guilt has been determined opening the record to the further information that is relevant to sentence. This is the analogue of the procedure in the ordinary case when capital punishment is not in issue; the court conducts a separate inquiry before imposing sentence.” ALI, Model Penal Code § 201.6, Comment 5, pp. 74 — 75 (Tent. Draft No. 9, 1959).

See also Spencer v. Texas, 385 U. S. 554, 567-569 (1967); Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶¶555, 574; Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1135-1136 (1953). When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifur*192cated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman, 41

But the provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures, § 1.1 (b), Commentary, pp. 46-47 (Approved Draft 1968); President's Commission on Law Enforcement and Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). To the extent that this problem is inherent in jury sentencing, it may not be totally cor-rectible. It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.

The idea that a jury should be given guidance in its *193decisionmaking is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law.42 See Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494, 498 (1931); Fed. Rule Civ. Proc. 51. When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.

While some have suggested that standards to guide a capital jury's sentencing deliberations are impossible to formulate,43 the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded “that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are presented in a concrete case." ALI, Model Penal Code § 201.6, Comment. 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis in original).44 While such standards are by *194necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be *195called capricious or arbitrary.45 Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman,46 for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns.47

*196B

We now turn to consideration of the constitutionality of Georgia’s capital-sentencing procedures. In the wake of Furman, Georgia amended its capital punishment statute, but chose not to narrow the scope of its murder provisions. See Part II, supra. Thus, now as before Fur-man, in Georgia “[a] person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” Ga. Code Ann., § 26-1101 (a) (1972). All persons convicted of murder “shall be punished by death or by imprisonment for life.” § 26-1101 (c) (1972).

Georgia did act, however, to narrow the class of murderers subject to capital punishment by specifying 10 *197statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed.48 In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. § 27-2534.1 (b) (Supp. 1975). The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, see § 27-2302 (Supp. 1975), but it must find a statutory aggravating circumstance before recommending a sentence of death.

These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do as Furman's jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime: Was it committed hr the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury’s attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e. g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime).49 As a result, while *198some jury discretion still exists, “the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.” Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974).