Opinion

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.

I understand why the Court holds that the reasoning of Apprendi v. New Jersey, 530 U. S. 466 (2000), is irreconcilable with Walton v. Arizona, 497 U. S. 639 (1990). Yet in choosing which to overrule, I would choose Apprendi, not Walton.

I continue to believe, for the reasons I articulated in my dissent in Apprendi, that the decision in Apprendi was a serious mistake. As I argued in that dissent, Apprendi's rule that any fact that increases the maximum penalty must be treated as an element of the crime is not required by the Constitution, by history, or by our prior cases. See 530 U. S., at 524-552. Indeed, the rule directly contradicts several of our prior cases. See id., at 531-539 (explaining that the rule conflicts with Patterson v. New York, 432 U. S. 197 (1977), Almendarez-Torres v. United States, 523 U. S. 224 (1998), and Walton, supra). And it ignores the "significant history in this country of... discretionary sentencing by judges." 530 U. S., at 544 (O'CONNOR, J., dissenting). The Court has failed, both in Apprendi and in the decision announced today, to "offer any meaningful justification for deviating from years of cases both suggesting and holding that application of the 'increase in the maximum penalty' rule is not required by the Constitution." Id., at 539.

Not only was the decision in Apprendi unjustified in my view, but it has also had a severely destabilizing effect on our criminal justice system. I predicted in my dissent that the decision would "unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or in part on the authority of [Apprendi]." Id., at 551. As of May 31, 2002, less than two years after Apprendi was announced, the United States Courts of Appeals had decided approximately 1,802 criminal appeals in which defendants challenged their sentences, and in some cases even their convictions, under Apprendi. 1 These federal appeals are likely only the tip of the iceberg, as federal criminal prosecutions represent a tiny fraction of the total number of criminal prosecutions nationwide. See ibid. (O'CONNOR, J., dissenting) ("In 1998... federal criminal prosecutions represented only about 0.4% of the total number of criminal prosecutions in federal and state courts"). The number of second or successive habeas corpus petitions filed in the federal courts also increased by 77% in 2001, a phenomenon the Administrative Office of the United States Courts attributes to prisoners bringing Apprendi claims. Administrative Office of the U. S. Courts, 2001 Judicial Business 17. This Court has been similarly overwhelmed by the aftershocks of Apprendi. A survey of the petitions for certiorari we received in the past year indicates that 18% raised Apprendi-related claims. 2 It is simply beyond dispute that Apprendi threw countless criminal sentences into doubt and thereby caused an enormous increase in the workload of an already overburdened judiciary.

The decision today is only going to add to these already serious effects. The Court effectively declares five States' capital sentencing schemes unconstitutional. See ante, at 608, n. 6 (identifying Colorado, Idaho, Montana, and Nebraska as having sentencing schemes like Arizona's). There are 168 prisoners on death row in these States, Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc., Death Row U. S. A. (Spring 2002), each of whom is now likely to challenge his or her death sentence. I believe many of these challenges will ultimately be unsuccessful, either because the prisoners will be unable to satisfy the standards of harmless error or plain error review, or because, having completed their direct appeals, they will be barred from taking advantage of to day's holding on federal collateral review. See 28 U. S. C. §§ 2244(b)(2)(A), 2254(d)(1); Teague v. Lane, 489 U. S. 288 (1989). Nonetheless, the need to evaluate these claims will greatly burden the courts in these five States. In addition, I fear that the prisoners on death row in Alabama, Delaware, Florida, and Indiana, which the Court identifies as having hybrid sentencing schemes in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determination, see ante, at 608, n. 6, may also seize on to day's decision to challenge their sentences. There are 629 prisoners on death row in these States. Criminal Justice Project, supra.

By expanding on Apprendi, the Court today exacerbates the harm done in that case. Consistent with my dissent, I would overrule Apprendi rather than Walton.

Notes

1 This data was obtained from a Westlaw search conducted May 31, 2002, in the United States Courts of Appeals database using the following search terms: "'Apprendi v. New Jersey' & Title['U.S.' or 'United States']." 2 Specific counts are on file with the Clerk of the Court.