Mr. Justice Brennan

delivered the opinion of the Court.

Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage at “which a determination is made as to *359whether a juvenile is a ‘delinquent’ as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution.” In re Gault, 387 U. S. 1, 13 (1967). Gault decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding, the Due Process Clause does require application during the adjudicatory hearing of “ ‘the essentials of due process and fair treatment.’ ” Id., at 30. This case presents the single, narrow question whether proof beyond a reasonable doubt is among the “essentials of due process and fair treatment” required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.1

Section 712 of the New York Family Court Act defines a juvenile delinquent as “a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime.” During a 1967 adjudicatory hearing, conducted pursuant to § 742 of the Act, a judge in New York Family Court *360found that appellant, then a 12-year-old boy, had entered a locker and stolen $112 from a woman’s pocketbook. The petition which charged appellant with delinquency alleged that his act, “if done by an adult, would constitute the crime or crimes of Larceny.” The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant’s contention that such proof was required by the Fourteenth Amendment. The judge relied instead on § 744 (b) of the New York Family Court Act which provides that “[a]ny determination at the conclusion of [an adjudicatory] hearing that a [juvenile] did an act or acts must be based on a preponderance of the evidence.”2 During a subsequent dispositional hearing, appellant was ordered placed in a training school for an initial period of 18 months, subject to annual extensions of his commitment until his 18th birthday — six years in appellant’s case. The Appellate Division of the New York Supreme Court, First Judicial Department, affirmed without opinion, 30 App. Div. 2d 781, 291 N. Y. S. 2d 1005 (1968). The New York Court of Appeals then affirmed by a four-to-three vote, expressly sustaining the constitutionality of § 744 (b), 24 N. Y. 2d 196, 247 N. E. 2d 253 (1969).3 *361We noted probable jurisdiction, 396 U. S. 885 (1969). We reverse.

I

The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. 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). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does “reflect a profound judgment about the *362way in which law should be enforced and justice administered.” Duncan v. Louisiana, 391 U. S. 145, 155 (1968).

Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, Miles v. United States, 103 E. S. 304, 312 (1881); Davis v. United States, 160 U. S. 469, 488 (1895); Holt v. United States, 218 U. S. 245, 253 (1910); Wilson v. United States, 232 U. S. 563, 569-570 (1914); Brinegar v. United States, 338 U. S. 160, 174 (1949); Leland v. Oregon, 343 U. S. 790, 795 (1952); Holland v. United States, 348 U. S. 121, 138 (1954); Speiser v. Randall, 357 U. S. 513, 525-526 (1958). Cf. Coffin v. United States, 156 U. S. 432 (1895). Mr. Justice Frankfurter stated that “[i]t is the duty of the Government to establish . . . guilt beyond a reasonable doubt. This notion — basic in our law and rightly one of the boasts of a free society — is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.' ” Leland v. Oregon, supra, at 802-803 (dissenting opinion). In a similar vein, the Court said in Brinegar v. United States, supra, at 174, that “[g]uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.” Davis v. United States, supra, at 488, stated that the requirement is implicit in “constitutions . . . [which] recognize the fundamental principles that are deemed essential for the protection of life and liberty.” In Davis a murder conviction was *363reversed because the trial judge instructed the jury that it was their duty to convict when the evidence was equally balanced regarding the sanity of the accused. This Court said: “On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime. ... No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them ... is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.” Id., at 484, 493.

The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, “a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.” 24 N. Y. 2d, at 205, 247 N. E. 2d, at 259.

The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society *364that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 525-526: “There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.” To this end, the reasonable-doubt standard is indispensable, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.” Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967).

Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold 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.

*365II

We turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand y, extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. We do not find convincing the contrary arguments of thé New York Court of Appeals. Gault rendered untenable much of the reasoning relied upon by that court to sustain the constitutionality of § 744(b). The Court of Appeals indicated that a delinquency adjudication “is not a ‘conviction’ (§781); that it affects no right or privilege, including the right to hold public office or to obtain a license (§ 782); and a cloak of protective confidentiality is thrown around all the proceedings (§§ 783-784).” 24 N. Y. 2d, at 200, 247 N. E. 2d, at 255-256. The court said further: “The delinquency status is not made a crime; and the proceedings are not criminal. There is, hence, no deprivation of due process in the statutory provision [challenged by appellant] . . . .” 24 N. Y. 2d, at 203, 247 N. E. 2d, at 257. In effect the Court of Appeals distinguished the proceedings in question here from a criminal prosecution by use of what Gault called the “ ‘civil’ label-of-convenience which has been attached to juvenile proceedings.” 387 U. S., at 50. But Gault expressly rejected that distinction as a reason for holding the Due Process Clause inapplicable to a juvenile proceeding. 387 U. S., at 50-51. The Court of Appeals also attempted to justify the preponderance standard on the related ground that juvenile proceedings are designed “not to punish, but to save the child.” 24 N. Y. 2d, at 197, 247 N. E. 2d, at 254. Again, however, Gault expressly rejected this justification. 387 U. S., at 27. We made clear in that decision that civil labels and good *366intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for "[a] proceeding where the issue is whether the child will be found to be 'delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.” Id., at 36.

Nor do we perceive any merit in the argument that to afford juveniles the protection of proof beyond a reasonable doubt would risk destruction of beneficial aspects of the juvenile process.4 Use of the reasonable-doubt standard during the adjudicatory hearing will not disturb New York’s policies that a finding that a child has violated a criminal law does not constitute a criminal conviction, that such a finding does not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the factfinding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child’s social history and for his individualized treatment will remain unimpaired. Similarly, there will be no effect on the pro*367cedures distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing.

The Court of Appeals observed that “a child’s best interest is not necessarily, or even probably, promoted if he wins in the particular inquiry which may bring him to the juvenile court.” 24 N. Y. 2d, at 199, 247 N. E. 2d, at 255. It is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention. But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law5 and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.

We conclude, as we concluded regarding the essential due process safeguards applied in Gault, that the observance of the standard of proof beyond a reasonable doubt “will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.” Gault, supra, at 21.

Finally, we reject the Court of Appeals’ suggestion that there is, in any event, only a “tenuous difference” between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge’s ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge’s action evidences the accuracy of the observation of commentators that “the preponderance test is susceptible to the misinter*368pretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.” Dorsen & Rezneck, supra, at 26-27.6

Ill

In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault — notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, “that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process . . . the case against him must be proved beyond a reasonable doubt.” 24 N. Y. 2d, at 207, 247 N. E. 2d, at 260.

Reversed.

Mr. Justice Harlan,

concurring.

No one, I daresay, would contend that state juvenile court trials are subject to no federal constitutional limitations. Differences have existed, however, among the members of this Court as to what constitutional protections do apply. See In re Gault, 387 U. S. 1 (1967).

*369The present case draws in question the validity of a New York statute that permits a determination of juvenile delinquency, founded on a charge of criminal conduct, to be made on a standard of proof that is less rigorous than that which would obtain had the accused been tried for the same conduct in an ordinary criminal case. While I am in full agreement that this statutory provision offends the requirement of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment, I am constrained to add something to what my Brother Brennan has written for the Court, lest the true nature of the constitutional problem presented become obscured or the impact on state juvenile court systems of what the Court holds today be exaggerated.

I

Professor Wigmore, in discussing the various attempts by courts to define how convinced one must be to be convinced beyond a reasonable doubt, wryly observed: “The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly ... a sound method of self-analysis for one's belief,” 9 J. Wigmore, Evidence 325 (3d ed. 1940)1

Notwithstanding Professor Wigmore’s skepticism, we have before us a case where the choice of the standard of proof has made a difference: the juvenile court judge below forthrightly acknowledged that he believed by a preponderance of the evidence, but was not convinced beyond a reasonable doubt, that appellant stole $112 from the complainant’s pocketbook. Moreover, even though the labels used for alternative standards of proof are *370vague and not a very sure guide to decisionmaking, the choice of the standard for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.2

To explain why I think this so, I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the factfinder can acquire is a belief of what probably happened. The intensity of this belief — the degree to which a factfinder is convinced that a given act actually occurred — can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases “preponderance of the evidence” and “proof beyond a reasonable doubt” are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.

A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction *371of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff's favor. The criminal analogue would be the acquittal of a guilty man.

The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.

When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly,3 it simply requires the trier of fact “to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party *372who has the burden to persuade the [judge] of the fact’s existence.” 4

In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U. S. 513, 525-526 (1958):

“There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.”

In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness,5 requires a more stringent standard for criminal trials than for ordinary civil litigation.

*373II

When one assesses the consequences of an erroneous factual determination in a juvenile delinquency proceeding in which a youth is accused of a crime, I think it must be concluded that, while the consequences are *374not identical to those in a criminal case, the differences will not support a distinction in the standard of proof. First, and of paramount importance, a factual error here, as in a criminal case, exposes the accused to a complete loss of his personal liberty through a state-imposed confinement away from his home, family, and friends. And, second, a delinquency determination, to some extent at least, stigmatizes a youth in that it is by definition bottomed on a finding that the accused committed a crime.6 Although there are no doubt costs to society (and possibly even to the youth himself) in letting a guilty youth go free, I think here, as in a criminal case, it is far worse to declare an innocent youth a delinquent. I therefore agree that a juvenile court judge should be no less convinced of the factual conclusion that the accused committed the criminal act with which he is charged than would be required in a criminal trial.

Ill

I wish to emphasize, as I did in my separate opinion in Gault, 387 U. S. 1, 65, that there is no automatic con*375gruence between the procedural requirements imposed by due process in a criminal case, and those imposed by due process in juvenile cases.7 It is of great importance, in my view, that procedural- strictures not be constitutionally imposed that jeopardize “the essential elements of the State’s purpose” in creating juvenile courts, id,., at 72. In this regard, I think it worth emphasizing that the requirement of proof beyond a reasonable doubt that a juvenile committed a criminal act before he is found to be a delinquent does not (1) interfere with the worthy goal of rehabilitating the juvenile, (2) make any significant difference in the extent to which a youth is stigmatized as a “criminal” because he has been found to be a delinquent, or (3) burden the juvenile courts with a procedural requirement that will make juvenile adjudications significantly more time consuming, or rigid. Today’s decision simply requires a juvenile court judge to be more confident in his belief that the youth did the act with which he has been charged.

With these observations, I join the Court’s opinion, subject only to the constitutional reservations expressed in my opinion in Gault.

Mr. Chief Justice Burger,

with whom Mr. Justice Stewart joins,

dissenting.

The Court’s opinion today rests entirely on the assumption that all juvenile proceedings are “criminal prosecutions,” hence subject to constitutional limitations. This derives from earlier holdings, which, like today’s *376holding, were steps eroding the differences between juvenile courts and traditional criminal courts. The original concept of the juvenile court system was to provide a benevolent and less formal means than criminal courts could provide for dealing with the special and often sensitive problems of youthful offenders. Since I see no constitutional requirement of due process sufficient to overcome the legislative judgment of the States in this area, I dissent from further strait-jacketing of an already overly restricted system. What the juvenile court system needs is not more but less of the trappings of legal procedure and judicial formalism; the juvenile court system requires breathing room and flexibility in order to survive, if it can survive the repeated assaults from this Court.

Much of the judicial attitude manifested by the Court’s opinion today and earlier holdings in this field is really a protest against inadequate juvenile court staffs and facilities; we “burn down the stable to get rid of the mice.” The lack of support and the distressing growth of juvenile crime have combined to make for a literal breakdown in many if not most juvenile courts. Constitutional problems were not seen while those courts functioned in an atmosphere where juvenile judges were not crushed with an avalanche of cases.

My hope is that today’s decision will not spell the end of a generously conceived program of compassionate treatment intended to mitigate the rigors and trauma of exposing youthful offenders to a traditional criminal court; each step we take turns the clock back to the pre-juvenile-court era. I cannot regard it as a manifestation of progress to transform juvenile courts into criminal courts, which is what we are well on the way to accomplishing. We can only hope the legislative response will not reflect our own by having these courts abolished.

*377Mr. Justice Black,

dissenting.

The majority states that “many opinions of this Court indicate that it has long been assumed that proof of. a criminal charge beyond a reasonable doubt is constitutionally required.” Ante, at 362. I have joined in some of those opinions, as well as the dissenting opinion of Mr. Justice Frankfurter in Leland v. Oregon, 343 U. S. 790, 802 (1952). The Court has never clearly held, however, that proof beyond a reasonable doubt is either expressly or impliedly commanded by any provision of the Constitution. The Bill of Rights, which in my view is made fully applicable to the States by the Fourteenth Amendment, see Adamson v. California, 332 U. S. 46, 71-75 (1947) (dissenting opinion), does by express language provide for, among other things, a right to counsel in criminal trials, a right to indictment, and the right of a defendant to be informed of the nature of the charges against him.1 And in two places the Constitution provides for trial by jury,2 but nowhere in that document is there any statement that conviction of crime requires proof of guilt beyond a reasonable doubt. The Constitution thus goes into some detail to spell out what kind of trial a defendant charged with crime should have, and I believe the Court has no power to add to or subtract from the procedures set forth by the Founders. I realize that it is far easier to substitute individual judges’ ideas of “fairness” for the fairness prescribed by the Constitution, but I shall not at any time surrender my belief that that document itself should be our guide, not our own concept of what is fair, decent, and fight. That this old “shock-the-conscience” test is what the Court is relying on, rather than the words of the Constitution, *378is clearly enough revealed by the reference of the majority to “fair treatment” and to the statement by the dissenting judges in the New York Court of Appeals that failure to require proof beyond a reasonable doubt amounts to a “lack of fundamental fairness.” Ante, at 359, 363. As I have said time and time again, I prefer to put my faith in the words of the written Constitution itself rather than to rely on the shifting, day-to-day standards of fairness of individual judges.

I

Our Constitution provides that no person shall be “deprived of life, liberty, or property, without due process of law.”3 The four words — due process of law — have been the center of substantial legal debate over the years. See Chambers v. Florida, 309 U. S. 227, 235-236, and n. 8 (1940). Some might think that the words themselves are vague. But any possible ambiguity disappears when the phrase is viewed in the light of history and the accepted meaning of those words prior to and at the time our Constitution was written.

“Due process of law” was originally used as a shorthand expression for governmental proceedings according to the “law of the land” as it existed at the time of those proceedings. ■ Both phrases are derived from the laws of England and have traditionally been regarded as meaning the same thing. The Magna Carta provided that:

“No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise *379destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land.” 4

Later English statutes reinforced and confirmed these basic freedoms. In 1350 a statute declared that “it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land . ...”5 Four years later another statute provided “[t]hat no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.” 6 And in 1363 it was provided “that no man be taken or imprisoned, nor put out of his freehold, without process of law.” 7

Drawing on these and other sources, Lord Coke, in 1642, concluded that “due process of law” was synonymous with the phrase “by law of the land.” 8 One of the earliest cases in this Court to involve the interpretation of the Due Process Clause of the Fifth Amendment declared that “[t]he words, 'due process of law,’ were undoubtedly intended to convey the same meaning as the words 'by the law of the land’ in Magna Charta.” Murray’s Lessee v. Hoboken Land & Improv. Co., 18 How. 272, 276 (1856).

While it is thus unmistakably clear that “due process of law” means according to “the law of the land,” this Court has not consistently defined what “the law of the *380land” means and in my view members of this Court frequently continue to misconceive the correct interpretation of that phrase. In Murray’s Lessee, supra, Mr. Justice Curtis, speaking for the Court, stated:

“The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,’ by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled 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 276-277.9

Later in Twining v. New Jersey, 211 U. S. 78 (1908), Mr. Justice Moody, again speaking for the Court, reaffirmed that “due process of law” meant “by law of the *381land,” but he went on to modify Mr. Justice Curtis’ definition of the phrase. He stated:

“First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and 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. . . .

“Second. It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straight-jacket, only to be unloosed by constitutional amendment. . . .

“Third. But, consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government.” Id., at 100-101.10

In those words is found the kernel of the “natural law due process” notion by which this Court frees itself from the limits of a written Constitution and sets itself loose to declare any law unconstitutional that “shocks its conscience,” deprives a person of “fundamental fairness,” or violates the principles “implicit in the concept of *382ordered liberty.” See Rochin v. California, 342 U. S. 165, 172 (1952); Palko v. Connecticut, 302 U. S. 319, 325 (1937). While this approach has been frequently used in deciding so-called “procedural” questions, it has evolved into a device as easily invoked to declare invalid “substantive” laws that sufficiently shock the consciences of at least five members of this Court. See, e. g., Lochner v. New York, 198 U. S. 45 (1905); Coppage v. Kansas, 236 U. S. 1 (1915); Burns Baking Co. v. Bryan, 264 U. S. 504 (1924); Griswold v. Connecticut, 381 U. S. 479 (1965). I have set forth at length in prior opinions my own views that this concept is completely at odds with the basic principle that our Government is one of limited powers and that such an arrogation of unlimited authority by the judiciary cannot be supported by the language or the history of any provision of the Constitution. See, e. g., Adamson v. California, 332 U. S. 46, 68 (1947) (dissenting opinion); Griswold v. Connecticut, supra, at 507 (1965) (dissenting opinion).

In my view both Mr. Justice Curtis and Mr. Justice Moody gave “due process of law” an unjustifiably broad interpretation. For me the only correct meaning of that phrase is that our Government must proceed according to the “law of the land” — that is, according to written constitutional and statutory provisions as interpreted by court decisions. The Due Process Clause, in both the Fifth and Fourteenth Amendments, in and of itself does not add to those provisions, but in effect states that our governments are governments of law and constitutionally bound to act only according to law.11 To some that view may seem a degrading and niggardly view of what is undoubtedly a fundamental part of our basic freedoms. *383But that criticism fails to note the historical importance of our Constitution and the virtual revolution in the history of the government of nations that was achieved by forming a government that from the beginning had its limits of power set forth in one written document that *384also made it abundantly clear that all governmental actions affecting life, liberty, and property were to be according to law.

For years our ancestors had struggled in an attempt to bring England under one written constitution, consolidating in one place all the threads of the fundamental law of that nation. They almost succeeded in that attempt,12 but it was not until after the American Revolution that men were able to achieve that long-sought goal. But the struggle had not been simply to put all the constitutional law in one document, it was also to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power. Our ancestors’ ancestors had known the tyranny of the kings and the rule of man and it was, in my view, in order to insure against such actions that the Founders wrote into our own Magna Carta the fundamental principle of the rule of law, as expressed in the historically meaningful phrase “due process of law.” The many decisions of this Court that have found in that phrase a blanket authority to govern the country according to the views of at least five members of this institution have ignored the essential meaning of the very words they invoke. When this Court assumes for itself the power to declare any law — state or federal — unconstitutional because it offends the majority’s own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the “law of the land” and instead becomes one governed ultimately by the “law of the judges.”

It can be, and has been, argued that when this Court strikes down a legislative act because it offends the idea of “fundamental fairness,” it furthers the basic thrust of our Bill of Rights by protecting individual freedom. *385But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people — the right of each man to participate in the self-government of his society. Our Federal Government was set up as one of limited powers, but it was also given broad power to do all that was “necessary and proper” to carry out its basic purpose of governing the Nation, so long as those powers were not exercised contrary to the limitations set forth in the Constitution. And the States, to the extent they are not restrained by the provisions in that document, were to be left free to govern themselves in accordance with their own views of fairness and decency. Any legislature presumably passes a law because it thinks the end result will help more than hinder and will thus further the liberty of the society as a whole. The people, through their elected representatives, may of course be wrong in making those determinations, but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights. The liberty of government by the people, in my opinion, should never be denied by this Court except when the decision of the people as stated in laws passed by their chosen representatives, conflicts with the express or necessarily implied commands of our Constitution.

II

I admit a strong, persuasive argument can be made for a standard of proof beyond a reasonable doubt in criminal cases — and the majority has made that argument well — but it is not for me as a judge to say for that reason that Congress or the States are without constitutional power to establish another standard that the Constitution does not otherwise forbid. It is quite true that proof beyond a reasonable doubt has long been required in federal criminal trials. It is also true that *386this requirement is almost universally found in the governing laws of the States. And as long as a particular jurisdiction requires proof beyond a reasonable doubt, then the Due Process Clause commands that every trial in that jurisdiction must adhere to that standard. See Turner v. United States, 396 U. S. 398, 430 (1970) (Black, J., dissenting). But when, as here, a State through its duly constituted legislative branch decides to apply a different standard, then that standard, unless it is otherwise unconstitutional, must be applied to insure that persons are treated according to the “law of the land.” The State of New York has made such a decision, and in my view nothing in the Due Process Clause invalidates it.

Mr. Justice Powell

delivered the opinion of the Court.

The State of Maine requires a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to *685manslaughter. We must decide whether this rule comports with the due process requirement, as defined in In re Winship, 397 U. S. 358, 364 (1970), that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

I

In June 1966 a jury found respondent Stillman E. Wilbur, Jr., guilty of murder. The case against him rested on his own pretrial statement and on circumstantial evidence showing that he fatally assaulted Claude Hebert in the latter’s hotel room. Respondent’s statement, introduced by the prosecution, claimed that he had attacked Hebert in a frenzy provoked by Hebert’s homosexual advance. The defense offered no evidence, but argued that the homicide was not unlawful since respondent lacked criminal intent. Alternatively, Wilbur’s counsel asserted that at most the homicide was manslaughter rather than murder, since it occurred in the heat of passion provoked by the homosexual assault.

The trial court instructed the jury that Maine law recognizes two kinds of homicide, murder and manslaughter, and that these offenses are not subdivided into different degrees. The common elements of both are that the homicide be unlawful — i. e., neither justifiable • nor excusable1 — and that it be intentional.2 The prosecution is required to prove these elements by proof beyond a reasonable doubt, and only if they are *686so proved is the jury to consider the distinction between murder and manslaughter.

In view of the evidence the trial court drew particular attention to the difference between murder and manslaughter. After reading the statutory definitions of both offenses,3 the court charged that “malice aforethought is an essential and indispensable element of the crime of murder,” App. 40, without which the homicide would be manslaughter. The iurv was further instructed, however, that if the prosecution established that the homicide was both intentional jand unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.4 The' court emphasized that “malice aforethought *687and heat of passion on sudden provocation are two inconsistent things,” id., at 62; thus, byjproving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter. The court then concluded its charge with elaborate definitions of “heat of passion”5 and “sudden provocation.”6

After retiring to consider its verdict, the jury twice returned to request further instruction. It first sought reinstruction on the doctrine of implied malice aforethought, and later on the definition of “heat of passion.” Shortly after the second reinstruction, the jury found respondent guilty of murder. »

Respondent appealed to the Maine Supreme Judicial Court, arguing that he had been denied due ..process be-1 cause he was reqiliFed’TcT negate the element of malice; ^forethought by proving that he had acted in the hqat’ ..of passion on sudden provocation. He claimed that under Maine law malice aforethought was an essential element of the crime of murder — indeed that it was the sole element distinguishing murder from manslaughter, Respondent contended, therefore, that this Court’s decisión in Winship requires the prosecution to prove the existence of that element beyond a reasonable doubt.

*688The Maine Supreme Judicial Court rejected this contention,7 holding that in Maine Jhürd'ér and manslaughter are nofclistinct crimes but, rather, different degrees of the single generic offense of felonious homicide. State v. Wilbur, 278 A. 2d 139 (1971). The court further stated that for more than a century it repeatedly had held that the prosecution could rest on a presumption of implied malice aforethought and require the defendant to prove that he had acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. With respect to Winship, which was decided aftér respondent’s trial,8 the court noted that it did not anticipate the application of the Winship principle to a factor such as the heat of passion on sudden provocation.

Respondent next successfully petitioned for a writ of habeas corpus in Federal District Court. Wilbur v. Robbins, 349 F. Supp. 149 (Me. 1972). The District Court ruled that under the Maine statutes murder and manslaughter are distinct offenses, not different degrees of a single offense. The court further held that “[mjalice aforethought is made the distinguishing element of the offense of murder, and it is expressly excluded as an element of the offense of manslaughter.” Id., at 153. Thus, the District Court concluded. Winship requires the prosecution . to prom,malice__ aforethought beyond a reasonable doubt; it cannot rely on a presumption of implied malice, which requires the defendant to prove that he acted in the heat of passion on sudden provocation.

*689The Court of Appeals for the First Circuit affirmed, subscribing in general to the District Court’s analysis and construction of Maine law. 473 F. 2d 943 (1973). Although recognizing that “within broad limits a state court must be the one to interpret its own laws,” the court nevertheless ruled that “a totally unsupportable construction which leads to an invasion of constitutional due process is a federal matter.” Id., at 945. The Court of Appeals equated malice aforethought with “premeditation,” id., at 947, and concluded that Winship requires the prosecution to prove this fact beyond a reasonable doubt.

Followingjhis decision, the Maine Supreme Judicial Court decided the casé of State v. Lafferty, 309 A. 2d 647 (1973), in which it sharply disputed the First Circuit’s view that it was entitled to make an independent determination of Maine law. The Maine court also reaffirmed its earlier opinion that murder and manslaughter are punishment categories of the single offense of felonious homicide. . Accordingly, if the prosecution, proves a felonious homicide the burden shifts to the defendant to prove that he acted in the heat of passion on sudden provocation in order to receive the lesser penalty prescribed for manslaughter.9

In view of the Lafferty decision we granted certiorari in this case and remanded to the Court of Appeals for reconsideration. 414 U. S. 1139 (1974). On *690remand, that court again applied Winship, this time to the Maine law as construed by the Maine Supreme Judicial Court. 496 F. 2d 1303 (1974). Looking to the “substance” of that law, the court found thatthe presence or absence of the heat of passiorucm ..sudden-provocation results in significant differences in the t)enalties...and stigma attaching to conviction. For these reasons. the Court of Appeals held that the principles enunciated in Winship control, and that to establish murder, the, prosecution must prove beyond a reasonable doubt that the defendant did not act in the. heat of passion on sudden provocation.

Because of the importance of the issues presented, we again granted certiorari. 419 U. S. 823 (1974). We now affirm.

II

We reject at the outset respondent’s position that we follow the analysis of the District Court and the initial opinion of the First Circuit, both of which held that murder and manslaughter are distinct crimes in Maine, and that malice aforethought is a fact essential to the former and absent in the latter. Respondent argues that the Maine Supreme Judicial Court’s construction of state law should not be deemed binding on this Court since it marks a radical departure from prior law,10 leads to in*691ternally inconsistent results, and is a transparent effort to circumvent Winship. This Court, however, repeatedly has held that state courts are the ultimate expositors of state law, see, e. g., Murdock v. City of Memphis, 20 Wall. 590 (1875); Winters v. New York, 333 U. S. 507 (1948), and that we are bound by their constructions except in extreme circumstances not present here.11 Accordingly, we accept as binding the Maine Supreme Judicial Court’s construction of state homicide law.

Ill

The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder'— i. e., by life imprisonment — unless the defendant proves *692by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter — i. e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. The issue is whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process.

A

Our analysis may be illuminated if this issue is placed in historical context.12 At early common law only those homicides committed in the enforcement of justice were considered justifiable; all others were deemed unlawful and were punished by death. Gradually, however, the severity of the common-law punishment for homicide abated. Between the 13th and 16th centuries the class of justifiable homicides expanded to include, for example, accidental homicides and those committed in self-defense. Concurrently, the widespread use of capital punishment was ameliorated further by extension of the ecclesiastic jurisdiction. Almost any person able to read was eligible for “benefit of clergy,” a procedural device that effected a transfer from the secular to the ecclesiastic jurisdiction. And under ecclesiastic law a person who committed an unlawful homicide was not executed; instead he received a one-year sentence, had his thumb branded and was required to forfeit his goods. At the turn of the 16th century, English rulers, concerned with the accretion of ecclesiastic- jurisdiction at the expense of the secular, enacted a series of statutes eliminating the benefit of *693clergy in all cases of “murder of malice prepensed.”13 Unlawful homicides that were committed without such malice were designated “manslaughter,” and their perpetrators remained eligible for the benefit of clergy.

Even after ecclesiastic jurisdiction was eliminated for all secular offenses the distinction between murder and manslaughter persisted. It was said that “manslaughter, when voluntary,[14] arises from the sudden heat of the passions, murder from the wickedness of the heart.” 4 W. Blackstone, Commentaries *190. Malice aforethought was designated as the element that distinguished the two crimes, but it was recognized that such malice could be implied by law as well as proved by evidence. Absent proof that an unlawful homicide resulted from “sudden and sufficiently violent provocation,” the homicide was “presumed to be malicious.”15 Id., at *201. In view of this presumption, the early English authorities, relying on the case of The King v. Oneby, 92 Eng. Rep. 465 (K. B. 1727), held that once the prosecution proved that the accused had committed the homicide, it was “incumbent upon the prisoner to make out, to the satisfaction of the court and jury” “all. .. circumstances of justification, excuse, or alleviation.” 4 W. Blackstone, Commentaries *694*201. See M. Foster, Crown Law 255 (1762). Thus, at common law the burden of proving heat of passion on sudden provocation appears to have rested on the defendant.16

In this country the concept of malice aforethought took on two distinct meanings: in some jurisdictions it came to signify a substantive element of intent, requiring the prosecution to prove that the defendant intended to kill or to inflict great bodily harm; in other jurisdictions it remained a policy presumption, indicating only that absent proof to the contrary a homicide was presumed not to have occurred in the heat of passion. See State v. Rollins, 295 A. 2d 914, 918-919 (Me. 1972). See generally Perkins, A Re-Examination of Malice Aforethought, 43 Yale L. J. 537, 548-549, 566-568 (1934).17 In a landmark case, Commonwealth v. York, 50 Mass. 93 (1845), Chief Justice Shaw of the Massachusetts Supreme Judicial Court held that the defendant was required to negate malice aforethought by proving by a pre*695ponderance of the evidence that he acted in the heat of passion.18 Initially, York was adopted in Maine19 as well as in several other jurisdictions.20 In 1895, however, in *696the context of deciding a question of federal criminal procedure, this Court explicitly considered and unanimously rejected the general approach articulated in York. Davis v. United States, 160 U. S. 469.21 And, in the past half century, the large majority of States have abandoned York and now require the prosecution to prove the absence of the heat of passion on sudden provocation beyond a reasonable doubt. See W. LaFave & A. Scott, Handbook on Criminal Law 539-540 (1972).22

This historical review establishes two important points. First, the fact at issue here — the presence or absence of the heat of passion on sudden provocation — has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. And, second, the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact. See generally Fletcher, supra, n. 16; H. Packer, The Limits of the Criminal Sanction 137-139 (1968).

B

Petitioners, the warden of the Maine Prison and the State., of Maine, argue that despite these considerations *697 Winship should not be extended to the present case. They note that as a formal matter the absence of the heat of passion on sudden provocation is not a “fact necessary to”constitute the crime” of felonious homicide ipMaine. In re Winship, 397 U. S., at 364 (emphasis supplied). This distinction is relevant, according to petitioners, because in TTms/wp the fact's at issue were essential to establish criminality in the first instance, whereas the fact in question here does not come into play until the)jury already has determined that the defendant is guilty and may be punished at least for manslaughter. In this situation, petitioners maintain, the defendant’s critical interests in liberty and reputation are no longer of paramount concern since, irrespective of the presence or absence of the heat of passion on sudden provocation, he is likely to lose his liberty and certain to be stigmatized,23 In short, petitioners would limit IT whip to those facts which, if not proved,. would wholly exonerate the defendant

This analysis fails to recognize that the criminal law of Maine, like that of other jurisdictions, is concerned not only with guilt or innocence in the abstract but also *698with the degree of criminal culpability. Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor. Because the former are less “blameworth[y],” State v. Lafferty, 309 A. 2d, at 671, 673 (concurring opinion), they are subject to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates the interests found critical in Wins hip.

The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty. The fact remains that the consequences resulting from, a verdict of murder, as compared with a verdict of manslaughter, differ significantly. Indeed, when viewed in terms oLthe-potential differencg in restrictions of personal liberty attendant to each conviction, the distinction established by Maine between murder and manslaughter may be of greater importance than the difference between guilt, or..innocence for many lesser crimes.

Moreover, 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 without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment. An extreme example of this approach can be fashioned from the law challenged in this case. Maine divides the single generic offense of felonious homicide into three distinct punishment categories — murder, voluntary manslaughter, and involuntary manslaughter. Only the first two of these categories require that the homicidal act either be *699intentional or the result of criminally reckless conduct. See State v. Lafferty, supra, at 670-672 (concurring opinion). But under Maine law these facts of intent are not general elements of the crime of felonious homicide. See Brief for Petitioners 10 n. 5. Instead, they bear only on the appropriate punishment category. Thus, if petitioners’ argument were accepted, Maine could impose a life sentence for any felonious homicide — even one that traditionally might be considered involuntary manslaughter — unless the defendant was able to prove that his act was neither intentional nor criminally reckless.24

Winship is concerned with substance rather than this kind of formalism.25 The rationale of that case requires an analysis that looks to the “operation and effect of the law as applied and enforced by the State,” St. Louis S. W. R. Co. v. Arkansas, 235 U. S. 350, 362 (1914), and to the interests of both the State and the defendant as affected by the allocation of the burden of proof.

In Winship the Court emphasized the societal interests in the reliability of jury verdicts:26

“The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal *700prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction....

“Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” 397 U. S., at 363, 364.

These interests are implicated to a greater degree in this case than they were in Winship itself. Petitioner there faced an 18-month sentence, with a maximum possible extension of an additional four and one-half years, id., at 360, whereas respondent here faces a differential in sentencing ranging from a nominal fine to a mandatory life sentence. Both the stigma to the defendant ■ and the community’s confidence in the administration of the criminal law are also of greater consequence in this case,27 since the adjudication of delinquency involved in Winship was “benevolent” in intention, seeking to provide i “a generously conceived program of compassionate treat- / ment.” Id., at 376 (Burger, C. J., dissenting).

Not only are the interests underlying Winship implicated to..,*^ greater degree in this case, but in one respect the protection afforded those interests is less here. In Winship the ultimate burden of persuasion remained with the prosecution, although the standard had been reduced to proof by a fair preponderance of the evidence. *701In this case, by contrast, the State has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous murder_conviction. Such a result directly contravenes~the principle articulated in Speiser v. Randall, 357 U. S. 513, 525-526 (1958):

“[Wjhere one party has at stake an interest of transcending value — as a criminal defendant his liberty — th[e] margin of error is reduced as to him by the process of placing on the [prosecution] the burden ... of persuading the factfinder at the conclusion of the trial....”

See also In re Winship, 397 U. S., at 370-372 (Harlan, J., concurring).

C

It has been suggested, State v. Wilbur, 278 A. 2d, at 145, that because of the difficulties in negating an argument that the homicide was committed in the heat of passion the burden of proving this fact should rest on the defendant. No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.

Indeed, the Maine Supreme Judicial Court itself acknowledged that most States require the prosecution to prove the absence of passion beyond a reasonable doubt. Id., at 146.28 Moreover, the difficulty of meeting such an *702exacting burden is mitigated in Maine where the fact at issue is largely an “objective, rather than a subjective, behavioral criterion.” State v. Rollins, 295 A. 2d, at 920. In this respect, proving that the defendant did not act in the heat of passion on sudden provocation is similar to proving any other element of intent; it may be established by adducing evidence of the factual circumstances( surrounding the commission of the homicide. And al-\ though intent is typically considered a fact peculiarly J within the knowledge of the defendant, this does not, as j, the Court has long recognized, justify shifting the burden ¡i to him. See Tot v. United States, 319 U. S. 463, 469 (1943); Leary v. United States, 395 U. S. 6, 45 (1969).

Nor is the requirement of proving a negative unique in our system of criminal jurisprudence.29 Maine itself requires the prosecution to prove the absence of self-defense beyond a reasonable doubt. See State v. Millett, 273 A. 2d 504 (1971).30 Satisfying this burden imposes an obligation that, in all practical effect, is identical to the burden involved in negating the heat of passion on sudden provocation. Thus, we discern no unique hard- \ ship on the prosecution that would justify requiring the f defendant to carry the burden of proving a fact so critical { to criminal culpability.31

*703IV

Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser *704crime of manslaughter. In re Winship, 397 U. S., at 372 (concurring opinion). We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case. Accordingly, the judgment below is

Affirmed.

Mr. Justice Rehnquist,

with whom The Chief Justice joins, concurring.

While I join in the Court’s opinion, the somewhat peculiar posture of the case as it comes to us leads me to add these observations.

Respondent made no objection to the trial court’s instruction respecting the burden of proof on the issue of whether he had acted in the heat of passion on sudden provocation. Nonetheless, on his appeal to the Supreme Judicial Court of Maine, that court considered his objection to the charge on its merits and held the charge to be a correct statement of Maine law. It neither made any point of respondent’s failure to object to the instruction in the trial court,* nor did it give any consideration to the doctrine long approved by this Court that the *705instructions to the jury are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926); Cupp v. Naughten, 414 U. S. 141, 147 (1973). It likewise expressed no view on whether, even though the instruction might have amounted to constitutional error, that error could have been harmless. Chapman v. California, 386 U. S. 18 (1967). Its reason for not treating the possibility that the error was harmless may have been because, as this Court’s opinion points out, ante, at 687, the jury came back in the midst of its deliberations and requested further instructions on the doctrine of implied malice aforethought and the definition of “heat of passion.”

The case which has now reached us through the route of federal habeas corpus, therefore, is a highly unusual one which does present the abstract question of law isolated by the Supreme Judicial Court of Maine and now decided here.

I agree with the Court that In re Winship, 397 U. S. 358 (1970), does require that the prosecution prove beyond a reasonable doubt every element which constitutes the crime charged against_a defendant. T see nb~mcdnsistehcyrb“etween that holding and the holding of Leland v. Oregon, 343 U. S. 790 (1952). In the latter case this Court held that there was no constitutional requirement that the State shoulder the burden of proving the sanity of the defendant.

The Court noted in Leland that the issue of insanity as a defense to a criminal charge was considered by the jury only after it had found that all elements of the offense, including the mens rea, if any, required by state law, had been proved beyond a reasonable doubt. Id., at 792, 795. Although as the state court’s instructions in Leland recognized, id., at 794-795, evidence relevant *706to insanity as defined by state law may also be relevant to whether the required mens rea was present, the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime. For this reason, Oregon’s placement of the burden of proof of insanity on Leland, unlike Maine’s redefinition of homicide in the instant case, did not effect an unconstitutional shift in the State’s traditional burden of proof beyond a reasonable doubt of all necessary elements of the offense. Id., at 795. Both the Court’s opinion and the concurring opinion of Mr. Justice Harlan in In re Winship, supra, stress the importance of proof beyond a reasonable doubt in a criminal case as “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” 397 U. S., at 372 (Harlan, J., concurring). Having once met that rigorous burden of proof that, for example, in a case such as this, the defendant not only killed a fellow human being, but did it with malice aforethought, the State could quite consistently with such a constitutional principle conclude that a defendant who sought to establish the defense of insanity, and thereby escape any punishment whatever for a heinous crime, should bear the laboring oar on such an issue.

*198Mr. Justice White

delivered the opinion of the Court.

The question here is the constitutionality under the Fourteenth Amendment’s Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law.

I

After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his father-in-law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head.

Patterson was charged with second-degree murder. In New York there are two elements of this crime: (1) “intent to cause the death of another person”; and (2) “caus[ing] the death of such person or of a third person.” N. Y. Penal Law § 125.25 (McKinney 1975) ,1 Malice aforethought is not an element of the crime. In addition, the State permits a person accused of murder to raise an affirmative defense that he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” 2

*199New York also recognizes the crime of manslaughter. A person is guilty of manslaughter if he intentionally kills another person “under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance.”3 Appellant confessed before trial to killing Northrup, but at trial he raised the defense of extreme emotional disturbance.4

The jury was instructed as to the elements of the crime of murder. Focusing on the element of intent, the trial court charged:

“Before you, considering all of the evidence, can convict this defendant or anyone of murder, you must believe and decide that the People have established beyond a reasonable doubt that he intended, in firing the gun, to kill *200either the victim himself or some other human being. . . .

“Always remember that you must not expect or require the defendant to prove to your satisfaction that his acts were done without the intent to kill. Whatever proof he may have attempted, however far he may have gone in an effort to convince you of his innocence or guiltlessness, he is not obliged, he is not obligated to prove anything. It is always the People's burden to prove bis guilt, and to prove that he intended to kill in this instance beyond a reasonable doubt.” App. A70-A71.5

The jury was further instructed, consistently with New York law, that the defendant had the burden of proving his affirmative defense by a preponderance of the evidence. The jury was told that if it found beyond a reasonable doubt that appellant had intentionally killed Northrup but that appellant had demonstrated by a preponderance of the evidence that he had acted under the influence of extreme emotional disturbance, it had to find appellant guilty of manslaughter instead of murder.

The jury found appellant guilty of murder. Judgment was entered on the verdict, and the Appellate Division affirmed. While appeal to the New York Court of Appeals was pending, this Court decided Mullaney v. Wilbur, 421 U. S. 684 (1975), in which the Court declared Maine’s murder statute unconstitutional. Under the Maine statute, a person accused of murder could rebut the statutory presumption that he com*201mitted the offense with “malice aforethought” by proving that he acted in the heat of passion on sudden provocation. The Court held that this scheme improperly shifted the burden of persuasion from the prosecutor to the defendant and was therefore a violation of due process. In the Court of Appeals appellant urged that New York’s murder statute is functionally equivalent to the one struck down in Mullaney and that therefore his conviction should be reversed.6

The Court of Appeals rejected appellant’s argument, holding that the New York murder statute is consistent with due process. 39 N. Y. 2d 288, 347 N. E. 2d 898 (1976). The Court distinguished Mullaney on the ground that the New York statute involved no shifting of the burden to the defendant to disprove any fact essential to the offense charged since the New York affirmative defense of extreme emotional disturbance bears no direct relationship to any element of murder. This appeal ensued, and we noted probable jurisdiction. 429 U.S. 813 (1976). We affirm.

II

It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U. S. 128, 134 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally “within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,” and its decision in this regard is not subject to proscription *202under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Speiser v. Randall, 357 U. S. 513, 523 (1958); Leland v. Oregon, 343 U. S. 790, 798 (1952); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).

In determining whether New York’s allocation to the defendant of proving the mitigating circumstances of severe emotional disturbance is consistent with due process, it is therefore relevant to note that this defense is a considerably expanded version of the common-law defense of heat of passion on sudden provocation and that at common law the burden of proving the latter, as well as other affirmative defenses — indeed, “all... circumstances of justification, excuse or alleviation” — rested on the defendant. 4 W. Blackstone, Commentaries *201; M. Foster, Crown Law 255 (1762); Mullaney v. Wilbur, supra, at 693-694.7 This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified. Commonwealth v. York, 50 Mass. 93 (1845).8

In 1895 the common-law view was abandoned with respect to the insanity defense in federal prosecutions. Davis v. United States, 160 U. S. 469 (1895). This ruling had wide impact on the practice in the federal courts with respect to the burden of proving various affirmative defenses, and the prose*203cution in a majority of jurisdictions in this country sooner or later came to shoulder the burden of proving the sanity of the accused and of disproving the facts constituting other affirmative defenses, including provocation. Davis was not a constitutional ruling, however, as Leland v. Oregon, supra, made clear.9

*204At issue in Leland v. Oregon was the constitutionality under the Due Process Clause of the Oregon rule that the defense of insanity must be proved by the defendant beyond a reasonable doubt. Noting that Davis “obviously establish [ed] no constitutional doctrine,” 343 U. S., at 797, the Court refused to strike down the Oregon scheme, saying that the burden of proving all elements of the crime beyond reasonable doubt, including the elements of premeditation and deliberation, was placed on the State under Oregon procedures and remained there throughout the trial. To convict, the jury was required to find each element of the crime beyond a reasonable doubt, based on all the evidence, including the evidence going to the issue of insanity. Only then was the jury “to consider separately the issue of legal sanity per se . . . .” Id., at 795. This practice did not offend the Due Process Clause even though among the 20 States then placing the burden of proving his insanity on the defendant, Oregon was alone in requiring him to convince the jury beyond a reasonable doubt.

In 1970, the Court declared 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.” In re Winship, 397 U. S. *205358, 364 (1970). Five years later, in Mullaney v. Wilbur, 421 U. S. 684 (1975), the Court further announced that under the Maine law of homicide, the burden could not constitutionally be placed on the defendant of proving by a preponderance of the evidence that the killing had occurred in the heat of passion on sudden provocation. The Chief Justice and Me. Justice Rehnquist, concurring, expressed their understanding that the Mullaney decision did not call into question the ruling in Leland v. Oregon, supra, with respect to the proof of insanity.

Subsequéntly, the Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, 429 U. S. 877 (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence. The claim in this Court was that Leland had been overruled by Winship and Mullaney. We dismissed the appeal as not presenting a substantial federal question. Cf. Hicks v. Miranda, 422 U. S. 332, 344 (1975).

Ill

We cannot conclude that Patterson’s conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute, which represents a recent revision of the state criminal code, as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred *206in order to constitute the crime. The statute does provide an affirmative defense — that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation — which, if proved by a preponderance of the evidence, would reduce the crime to manslaughter, an offense defined in a separate section of the statute. It is plain enough that if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances.

Here, the jury was instructed in accordance with the statute, and the guilty verdict confirms that the State successfully carried its burden of proving the facts of the crime beyond a reasonable doubt. Nothing in the evidence, including any evidence that might have been offered with respect to Patterson’s mental state at the time of the crime, raised a reasonable doubt about his guilt as a murderer; and clearly the evidence failed to convince the jury that Patterson’s affirmative defense had been made out. It seems to us that the State satisfied the mandate of Winship that it prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [Patterson was] charged.” 397 U. S., at 364.

In convicting Patterson under its murder statute, New York did no more than Leland and Rivera permitted it to do without violating the Due Process Clause. Under those cases, once the facts constituting a crime are established beyond a reasonable doubt, based on all the evidence including the evidence of the defendant’s mental state, the State may refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of the evidence.

The New York law on extreme emotional disturbance follows this pattern. This affirmative defense, which the Court of Appeals described as permitting “the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them,” 39 N. Y. 2d, at 302, 347 N. E. 2d, at 907, *207does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland and Rivera, New York has not violated the Due Process Clause, and Patterson’s conviction must be sustained.

We are unwilling to reconsider Leland and Rivera. But even if we were to hold that a State must prove sanity to convict once that fact is put in issue, it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment. Here, in revising its criminal code, New York provided the affirmative defense of extreme emotional disturbance, a substantially expanded version of the older heat-of-passion concept; but it was willing to do so only if the facts making out the defense were established by the defendant with sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult and that too many persons deserving treatment as murderers would escape that punishment if the evidence need merely raise a reasonable doubt about the defendant’s emotional state. It has been said that the new criminal code of New York contains some 25 affirmative defenses which exculpate or mitigate but which must be established by the defendant to be operative.10 The Due Process Clause, as we see it, does not *208put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.

The requirement of proof beyond a reasonable doubt in a criminal case is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” Winship, 397 U. S., at 372 (Harlan, J., concurring). The social cost of placing the burden on the prosecution to prove guilt beyond a reasonable doubt is thus an increased risk that the guilty will go free. While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits; and Mr. Justice Harlan’s aphorism provides little guidance for determining what those limits are. Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail.

It is said that the common-law rule permits a State to *209punish one as a murderer when it is as likely as not that he acted in the heat of passion or under severe emotional distress and when, if he did, he is guilty only of manslaughter. But this has always been the case in those jurisdictions adhering to the traditional rule. It is also very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here. But in each instance of a murder conviction under the present law, New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate.11

*210We 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. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

This view may 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. But there are obviously constitutional limits beyond which the States may not go in this regard. “[I]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Rfg. Co., 241 U. S. 79, 86 (1916). The legislature cannot “validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.” Tot v. United States, 319 U. S. 463, 469 (1943). See also Speiser v. Randall, 357 U. S., at 523-525. Morrison v. California, 291 U. S. 82 (1934), also makes the point with sufficient clarity.

*211Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond a reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution's burden that a new constitutional rule was required.12 This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses — for whatever reasons — mean that those States that strike a different balance are in violation of the Constitution.13

*212IY

It is urged that Mullaney v. Wilbur necessarily invalidates Patterson’s conviction.. In Mullaney the charge was murder,14 which the Maine statute defined as the unlawful killing of a human being “with malice aforethought, either express or implied.” The trial court instructed the jury that the words “malice aforethought” were most important because “malice *213aforethought is an essential and indispensable element of the crime of murder.” Malice, as the statute indicated and as the court instructed, could be implied and was to be implied from “any deliberate, cruel act committed by one person against another suddenly ... or without a considerable provocation,” in which event an intentional killing was murder unless by a preponderance of the evidence it was shown that the act was committed “in the heat of passion, on sudden provocation.” The instructions emphasized that “ 'malice aforethought and heat of passion on sudden provocation are two inconsistent things’; thus, by proving the latter the defendant would negate the former.” 421 U. S., at 686-687 (citation omitted).

Wilbur’s conviction, which followed, was affirmed. The Maine Supreme Judicial Court held that murder and manslaughter were varying degrees of the crime of felonious homicide and that the presumption of malice arising from the unlawful killing was a mere policy presumption operating to cast on the defendant the burden of proving provocation if he was to be found guilty of manslaughter rather than murder — a burden which the Maine law had allocated to him at least since the mid-1800’s.

The Court of Appeals for the First Circuit then ordered that a writ of habeas corpus issue, holding that the presumption unconstitutionally shifted to the defendant the burden of proof with respect to an essential element of the crime. The Maine Supreme Judicial Court disputed this interpretation of Maine law in State v. Lafferty, 309 A. 2d 647 (1973), declaring that malice aforethought, in the sense of premeditation, was not an element of the crime of murder and that the federal court had erroneously equated the presumption of malice with a presumption of premeditation.

“Maine law does not rely on a presumption of 'premeditation’ (as Wilbur v. Mullaney assumed) to prove an essential element of unlawful homicide punishable as murder. *214Proof beyond a reasonable doubt of 'malice aforethought’ (in the sense of 'premeditation’) is not essential to conviction. . . . [T]he failure of the State to prove 'premeditation’ in this context is not fatal to such a prosecution because, by legal definition under Maine law, a killing becomes unlawful and punishable as 'murder’ on proof of 'any deliberate, cruel act, committed by one person against another, suddenly without any, or without a considerable provocation.’ State v. Neal, 37 Me. 468, 470 (1854). Neal has been frequently cited with approval by our Court.” Id., at 664-665. (Emphasis added; footnote omitted.)

When the judgment of the First Circuit was vacated for reconsideration in the light of Lafferty, that court reaffirmed its view that Wilbur’s conviction was unconstitutional. This Court, accepting the Maine court’s interpretation of the Maine law, unanimously agreed with the Court of Appeals that Wilbur’s due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat ,of passion upon sudden provocation.

Mullaney’s holding, it is argued, is that the State may not permit the blameworthiness of an act 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 case may be, beyond a reasonable doubt.15 In our view, *215the Mullaney holding should not be so broadly read. The concurrence of two Justices in Mullaney was necessarily contrary to such a reading; and a majority of the Court refused to so understand and apply Mullaney when Rivera was dismissed for want of a substantial federal question.

Mullaney surely held 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. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.

It was unnecessary to go further in Mullaney. The Maine Supreme Judicial Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, “suddenly without any, or without a considerable provocation.” State v. Lafferty, supra, at 665. Premeditation was not within the definition of murder; but *216malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i. e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship.

As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. The judgment of the New York Court of Appeals is

Affirmed.

Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Powell,

with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

In the name of preserving legislative flexibility, the Court today drains In re Winship, 397 U. S. 358 (1970), of much of its vitality. Legislatures do require broad discretion in the drafting of criminal laws, but the Court surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence.

I

An understanding of the import of today’s decision requires a comparison of the statutes at issue here with the statutes and practices of Maine struck down by a unanimous Court just two years ago in Mullaney v. Wilbur, 421 U. S. 684 (1975).

A

Maine’s homicide laws embodied the common-law distinctions along with the colorful common-law language. Murder *217was defined in the statute as the unlawful killing of a human being “with malice aforethought, either express or implied.” Manslaughter was a killing “in the heat of passion, on sudden provocation, without express or implied malice aforethought.” Id., at 686, and n. 3. Although “express malice” at one point may have had its own significant independent meaning, see Perkins, A Re-Examination of Malice Aforethought, 43 Yale L. J. 537, 546-552 (1934), in practice a finding that the killing was committed with malice aforethought had come to mean simply that heat of passion was absent. Indeed, the trial court in Mullaney expressly charged the jury that “malice aforethought and heat of passion on sudden provocation are two inconsistent things.” 421 U. S., at 686-687. And the Maine Supreme Judicial Court had held that instructions concerning express malice (in the sense of premeditation) were unnecessary. The only inquiry for the jury in deciding whether a homicide amounted to murder or manslaughter was the inquiry into heat of passion on sudden provocation. State v. Lafferty, 309 A. 2d 647, 664-665 (Me. 1973). See 421 U. S., at 686 n. 4.

Our holding in Mullaney found no constitutional defect in these statutory provisions. Rather, the defect in Maine practice lay in its allocation of the burden of persuasion with respect to the crucial factor distinguishing murder from manslaughter. In Maine, juries were instructed that if the prosecution proved that the homicide was both intentional and unlawful, the crime was to be considered murder unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. Only if the defendant carried this burden would the offense be reduced to manslaughter.

New York’s present homicide laws had their genesis in lingering dissatisfaction with certain aspects of the common-law framework that this Court confronted in Mullaney. Critics charged that the archaic language tended to obscure the fac*218tors of real importance in the jury’s decision. Also, only a limited range of aggravations would lead to mitigation under the common-law formula, usually only those resulting from direct provocation by the victim himself. It was thought that actors whose emotions were stirred by other forms of outrageous conduct, even conduct by someone other than the ultimate victim, also should be punished as manslaughterers rather than murderers. Moreover, the common-law formula was generally applied with rather strict objectivity. Only provocations that might cause the hypothetical reasonable man to lose control could be considered. And even provocations of that sort were inadequate to reduce the crime to manslaughter if enough time had passed for the reasonable man’s passions to cool, regardless of whether the actor’s own thermometer had registered any decline. See generally W. LaFave & A. Scott, Criminal Law 528-530, 539-540, 571-582 (1972); Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum. L. Rev. 1425, 1446 (1968); ALI, Model Penal Code § 201.3, Comment (Tent. Draft No. 9, 1959); Perkins, supra. Cf. B. Cardozo, Law and Literature and Other Essays 99-101 (1931).

The American Law Institute took the lead in moving to remedy these difficulties. As part of its commendable undertaking to prepare a Model Penal Code, it endeavored to bring modern insights to bear on the law of homicide. The result was a proposal to replace “heat of passion” with the moderately broader concept of “extreme mental or emotional disturbance.” The proposal first appeared in a tentative draft published in 1959, and it was accepted by the Institute and included as § 210.3 of the 1962 Proposed Official Draft.

At about this time the New York Legislature undertook the preparation of a new criminal code, and the Revised Penal Law of 1967 was the ultimate result. The new code adopted virtually word for word the ALI formula for distinguishing murder from manslaughter. N. Y. Penal Law §§ 125.20 (2), *219125.25 (l)(a) (McKinney 1975).1 Under current New York law,2 those who kill intentionally are guilty of murder. But there is an affirmative defense left open to a defendant: If his act was committed “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse,” the crime is reduced to manslaughter. The supposed defects of a formulation like Maine’s have been removed. Some of the rigid objectivity of the common law is relieved, since reasonableness is to be determined “from the viewpoint of a person in the defendant’s situation under the circum*220stances as the defendant believed them to be.” § 125.25 (1) (a). The New York law also permits mitigation when emotional disturbance results from situations other than direct provocation by the victim. And the last traces of confusing archaic language have been removed. There is no mention of malice aforethought, no attempt to give a name to the state of mind that exists when extreme emotional disturbance is not present. The statute is framed in lean prose modeled after the ALI approach, giving operative descriptions of the crucial factors rather than attempting to attach the classical labels.

Despite these changes, the major factor that distinguishes murder from manslaughter in New York — “extreme emotional disturbance” — is undeniably the modern equivalent of “heat of passion.” The ALI drafters made this abundantly clear. They were not rejecting the notion that some of those who kill in an emotional outburst deserve lesser punishment; they were merely refining the concept to relieve some of the problems with the classical formulation. See ALI, Model Penal Code, § 201.3, Comment, pp. 46-48 (Tent. Draft No. 9, 1959). The New York drafters left no doubt about their reliance on the ALI work. See 39 N. Y. 2d 288, 300-301, 347 N. E. 2d 898, 906 (1976). Both the majority and the dissenters in the New York Court of Appeals agreed that extreme emotional disturbance is simply “a new formulation” for the traditional language of heat of passion. Id., at 301, 347 N. E. 2d, at 906; id., at 312, 347 N. E. 2d, at 913-914 (Cooke, J., dissenting).

But in one important respect the New York drafters chose to parallel Maine’s practice precisely, departing markedly from the ALI recommendation. Under the Model Penal Code the prosecution must prove the. absence of emotional disturbance beyond a reasonable doubt once the issue is properly raised. See ALI, Model Penal Code §§ 1.12, 210.3 (Proposed Official Draft 1962); id., § 1.13, Comment, pp. 108-118 (Tent'. Draft No. 4, 1955). In New York, however, extreme emotional disturbance constitutes an affirmative defense rather *221than a simple defense. Consequently the defendant bears not only the burden of production on this issue; he has the burden of persuasion as well. N.' Y. Penal Law § 25.00 (McKinney 1975).

B

Mullaney held invalid Maine’s requirement that the defendant prove heat of passion. The Court today, without disavowing the unanimous holding of Mullaney, approves New York’s requirement that the defendant prove extreme emotional disturbance. The Court manages to run a constitutional boundary line through the barely visible space that separates Maine’s law from New York’s. It does so on the basis of distinctions in language that are formalistic rather than substantive.

This result is achieved by a narrowly literal parsing of the holding in Winship: “[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.” 397 U. S., at 364. The only “facts” necessary to constitute a crime are said to be those that appear on the face of the statute as a part of the definition of the crime.3 Maine’s statute was invalid, the Court reasons, because it “defined [murder] as the unlawful killing of a human being 'with malice aforethought, either express or implied.’ ” Ante, at 212. “[MJalice,” the Court reiterates, “in the sense of the absence of provocation, was part of the definition of that crime.” Ante, at 216. Winship was violated only because this “fact” — malice—was “presumed” unless the defendant persuaded the jury otherwise by showing that he acted in the heat of passion.4 New York, in form presuming *222no affirmative “fact” against Patterson,5 and blessed with a statute drafted in the leaner language of the 20th century, escapes constitutional scrutiny unscathed even though the effect on the defendant of New York’s placement of the burden of persuasion is exactly the same as Maine’s. See 39 N. Y. 2d, at 312-313, 347 N. E. 2d, at 913-914 (Cooke, J., dissenting).

This explanation of the Mullaney holding bears little re*223semblance to the basic rationale of that decision.6 But this is not the cause of greatest concern. The test the Court today establishes allows a legislature to shift, virtually at will, the-burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense.7

Perhaps the Court’s interpretation of Winship is consistent with the letter of the holding in that case. But little of the spirit survives. Indeed, the Court scarcely could distinguish this case from Mullaney without closing its eyes to the constitutional values for which Winship stands. As Mr. Justice Harlan observed in Winship, “& standard of proof represents an attempt to instruct the factfinder concerning the degree of *224confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” 397 U. S., at 370 (concurring opinion). See Speiser v. Randall, 357 U. S. 513, 525-526 (1958). Explaining Mul-laney, the Court says today, in effect, that society demands full confidence before a Maine factfinder determines that heat of passion is missing — a demand so insistent that this Court invoked the Constitution to enforce it over the contrary decision by the State. But we are told that society is willing to tolerate far less confidence in New York’s factual determination of precisely the same functional issue. One must ask what possibly could explain this difference in societal demands. According to the Court, it is because Maine happened to attach a name — “malice aforethought” — to the absence of heat of passion, whereas New York refrained from giving a name to the absence of extreme emotional disturbance. See 39 N. Y. 2d, at 313, 347 N. E. 2d, at 914 (Cooke, J., dissenting).

With all respect, this type of constitutional adjudication is indefensibly formalistic. A limited but significant check on possible abuses in the criminal law now becomes an exercise in arid formalities. What Winship and Mullaney had sought to teach about the limits a free society places on its procedures to safeguard the liberty of its citizens becomes a rather simplistic lesson in statutory draftsmanship. Nothing in the Court’s opinion prevents a legislature from applying this new learning to many of the classical elements of the crimes it punishes.8 It would be preferable, if the Court has found *225reason to reject the rationale of Winship and Mullaney, simply and straightforwardly to overrule those precedents.

The Court understandably manifests some uneasiness that its formalistic approach will give legislatures too much latitude in shifting the burden of persuasion. And so it issues a warning-that “there are obviously constitutional limits beyond which the States may not go in this regard.” Ante, at 210; The Court thereby concedes that legislative abuses may occur and that they must be curbed by the judicial branch. But if the State is careful to conform to the drafting formulas articulated today, the constitutional limits are anything but “obvious.” This decision simply leaves us without a conceptual framework for distinguishing abuses from legitimate legislative adjustments of the burden of persuasion in criminal cases.9

II

It is unnecessary for the Court to retreat to a formalistic test for applying Winship. Careful attention to the Mullaney decision reveals the principles that should control in this and like cases. Winship held that the prosecution must bear the burden of proving beyond a reasonable doubt “ ‘the existence of every fact necessary to constitute the crime charged.’ ” 397 U. S., at 363, quoting Davis v. United States, 160 U. S. 469, 493 (1895). In Mullaney we concluded that heat of passion was one of the “facts” described in Winship — that is, a *226factor as to which the prosecution must bear the burden of persuasion beyond a reasonable doubt. 421 U. S., at 704. We reached that result only after making two careful inquiries. First, we noted that the presence or absence of heat of passion made a substantial difference in punishment of the offender and in the stigma associated with the conviction. Id., at 697-701. Second, we reviewed the history, in England and this country, of the factor at issue. Id., at 692-696. Central to the holding in Mullaney was our conclusion that heat of passion “has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide.” Id., at 696.

Implicit in these two inquiries are the principles that should govern this case. The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. But a substantial difference in punishment alone is not enough. It also must be shown that in the Anglo-American legal tradition 10 the factor in question historically has held that level of importance.11 If either branch *227of the test is not met, then the legislature retains its traditional authority over matters of proof. But to permit a shift in the burden of persuasion when both branches of this test are satisfied would invite the undermining of the presumption of innocence, “that bedrock 'axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ ” In re Winship, 397 U. S., at 363, quoting from Coffin v. United States, 156 U. S. 432, 453 (1895). See Cool v. United States, 409 U. S. 100, 104 (1972); Ivan V. v. City of New York, 407 U. S. 203, 204 (1972); Lego v. Twomey, 404 U. S. 477, 486-487 (1972); Morissette v. United States, 342 U. S. 246, 275 (1952); Bailey v. Alabama, 219 U. S. 219, 236 (1911); Davis v. United States, supra. This is not a test that rests on empty form, for “Winship is concerned with substance rather than . . . formalism.” Mullaney v. Wilbur, 421 U. S., at 699.

I hardly need add that New York’s provisions allocating the burden of persuasion as to “extreme emotional disturbance” are unconstitutional when judged by these standards. “Extreme emotional disturbance” is, as the Court of Appeals recognized, the direct descendant of the “heat of passion” factor considered at length in Mullaney. I recognize, of course, that the differences between Maine and New York law are not unimportant to the defendant; there is a somewhat broader opportunity for mitigation. But none of those distinctions is relevant here. The presence or absence of extreme emotional disturbance makes a critical difference in punishment and stigma, and throughout our history the resolution of this issue of fact, although expressed in somewhat different terms, has distinguished manslaughter from murder. See 4 W. Blackstone, Commentaries *190-193, 198-201.

Ill

The Court beats its retreat from Winship apparently because of a concern that otherwise the federal judiciary will in-*228trade too far into substantive choices concerning the content of a State’s criminal law.12 The concern is legitimate, see generally Powell v. Texas, 392 U. S. 514, 533-534 (1968) (plurality opinion); Leland v. Oregon, 343 U. S. 790, 803 (1952)' (Frankfurter, J., dissenting), but misplaced. Winship and Mullaney are no more than what they purport to be: decisions addressing the procedural requirements that States must meet to comply with due process. They are not outposts for policing the substantive boundaries of the criminal law.

The Winship/Mullaney test identifies those factors of such importance, historically, in determining punishment and stigma that the Constitution forbids shifting to the defendant the burden of persuasion when such a factor is at issue. Win-ship and Mullaney specify only the procedure that is required when a State elects to use such a factor as part of its substantive criminal law. They do not say that the State must elect to use it. For example, where a State has chosen to retain the traditional distinction between murder and manslaughter, as have New York and Maine, the burden of persuasion must remain on the prosecution with respect to the distinguishing factor, in view of its decisive historical importance. But nothing in Mullaney or Winship precludes a State from'abolishing the distinction between murder and manslaughter and treating all unjustifiable homicide as murder.13 In this sig*229nificant respect, neither Winship nor Mullaney eliminates the substantive flexibility that should remain in legislative hands.

Moreover, it is unlikely that more than a few factors — although important ones — for which a shift in the burden of persuasion seriously would be considered will come within the Mullaney holding. With some exceptions, then, the State has the authority “to recognize a factor that mitigates the degree of criminality or punishment” without having “to prove its nonexistence in each case in which the fact is put in issue.” Ante, at 209. New ameliorative affirmative defenses,14 about *230which the Court expresses concern, generally remain undisturbed by the holdings in Winship and Mullaney — and need not be disturbed by a sound holding reversing Patterson’s conviction.15

Furthermore, as we indicated in Mullaney, 421 U. S., at 701-702, n. 28, even as to those factors upon which the prosecution must bear the burden of persuasion, the State retains an important procedural device to avoid jury confusion and prevent the prosecution from being unduly hampered. The State normally may shift to the defendant the burden of production,16 that is, the burden of going forward with sufficient *231evidence “to justify [a reasonable] doubt upon the issue.” 17 ALI, Model Penal Code § 1.13, Comment, p. 110 (Tent. Draft No. 4, 1955). If the defendant’s evidence does not cross this threshold, the issue — be it malice, extreme emotional disturbance, self-defense, or whatever — will not be submitted to the jury.18 See Sansone v. United States, 380 U. S. 343, 349 (1965); Stevenson v. United States, 162 U. S. 313, 314-316 (1896). Ever since this Court’s decision in Davis v. United States, 160 U. S. 469 (1895), federal prosecutors have borne the burden of persuasion with respect to factors like insanity, self-defense, and malice or provocation, once the defendant has carried this burden of production. See, e. g., Blake v. United States, 407 F. 2d 908, 910-911 (CA5 1969) (en banc) (insanity); Frank v. United States, 42 F. 2d 623, 629 (CA9 1930) (self-defense); United States v. Alexander, 152 U. S. App. D. C. 371, 389-395, 471 F. 2d 923, 941-947, cert. denied sub nom. Murdock v. United States, 409 U. S. 1044 (1972) (provocation). I know of no indication that this *232practice has proven a noticeable handicap to effective law enforcement.19

To be sure, there will be many instances when the Winship/ Mullaney test as I perceive it will be more difficult to apply than the Court’s formula. Where I see the need for a careful and discriminating review of history, the Court finds a bright-line standard that can be applied with a quick glance at the face of the statute. But this facile test invites tinkering with the procedural safeguards of the presumption of innocence, an invitation to disregard the principles of Winship that I would not extend.