477 U.S. 79 (1986)
The Pennsylvania legislature adopted the Mandatory Minimum Sentencing Act in 1982.1 The statute applies to persons convicted of enumerated felonies including third-degree murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault, and kidnapping.2
Under the Act a sentencing judge must impose a minimum term of five years' imprisonment upon finding by a preponderance of the evidence that the defendant visibly possessed a firearm during commission of the offense.3 The judge considers trial evidence plus any additional evidence offered by the parties at the sentencing hearing.4 The Act does not increase the statutory maximum penalty for the underlying felony.5
Petitioner McMillan was convicted by jury of aggravated assault after shooting his victim in the right buttock during an argument over a debt.6 Petitioner Peterson was convicted after a bench trial of voluntary manslaughter after shooting and killing her husband.7 Petitioner Dennison was convicted after a bench trial of aggravated assault after shooting and seriously wounding an acquaintance.8 Petitioner Smalls was convicted after a bench trial of robbery after holding up a seafood store at gunpoint.9 In each case the Commonwealth provided notice before sentencing that it would seek application of the Act.10
The four sentencing judges each held the Act unconstitutional and imposed sentences below the five-year minimum.11 The Commonwealth appealed all four cases to the Supreme Court of Pennsylvania, which consolidated them and upheld the statute.12 The United States Supreme Court granted certiorari to review the constitutional challenges.13
Whether Pennsylvania's Mandatory Minimum Sentencing Act violates the Due Process Clause of the Fourteenth Amendment by permitting a sentencing judge to find visible possession of a firearm by a preponderance of the evidence?14
Under Patterson v. New York the Due Process Clause requires the prosecution to prove beyond a reasonable doubt every fact included in the definition of the offense as the legislature has chosen to define it.15 Sentencing factors that neither alter the maximum penalty nor create a separate offense may be established by a preponderance of the evidence.16
No. The Pennsylvania legislature expressly declared that visible possession of a firearm shall not be an element of the enumerated felonies and instead functions solely as a sentencing factor that becomes relevant only after conviction.17 Section 9712 neither redefines the underlying crimes nor authorizes any sentence beyond the statutory maximum already available for those felonies.18 In the present cases the Commonwealth first secured convictions of McMillan for aggravated assault, Peterson for voluntary manslaughter, Dennison for aggravated assault, and Smalls for robbery, each proved beyond a reasonable doubt, before any sentencing hearing addressed visible possession.19 Because the Act merely limits the sentencing court's discretion within the preexisting range and creates no presumption of guilt, it respects the constitutional limits recognized in Patterson.20
The Act does not violate the Due Process Clause of the Fourteenth Amendment.21
Related opinions on this issue
Joined by Justice Brennan And Justice Blackmun
Justice Marshall agrees with Justice Stevens that whether a particular fact constitutes an element of a criminal offense under In re Winship must be decided by the Court and cannot be abdicated to the States.22 He notes that deference to the Pennsylvania Legislature's statement that visible possession is not an element is wholly inappropriate because a State could otherwise undermine the interests Winship sought to protect.23 He would not rely on the formalistic distinction between aggravating and mitigating facts.24
He concurs that when a State attaches special stigma and special punishment to a specific component of a prohibited transaction that component must be proved beyond a reasonable doubt.25
Justice Stevens dissents on the ground that a state legislature may not dispense with the requirement of proof beyond a reasonable doubt for conduct it targets for severe criminal penalties.26 He maintains that once a State defines a criminal offense the Due Process Clause requires proof beyond a reasonable doubt of any component that gives rise to both special stigma and special punishment.27 In his view Pennsylvania's statute describes conduct the legislature obviously intended to prohibit and therefore visible possession must be treated as a fact necessary to constitute the crime within the meaning of Winship.28
Whether the Act violates the Sixth Amendment right to jury trial by assigning the visible possession determination to the sentencing judge rather than the jury?29
The Sixth Amendment guarantees a jury trial on the elements of the offense but does not confer a right to jury sentencing even when the sentence depends on specific factual findings.30
No. Once the Court determines that visible possession of a firearm is a sentencing consideration rather than an element of any offense the Sixth Amendment inquiry ends.31 Petitioners McMillan Peterson Dennison and Smalls each received a jury or bench trial that established guilt of the underlying felony beyond a reasonable doubt.32 The subsequent judicial finding at sentencing does not implicate the jury-trial right because it merely guides the exercise of discretion within the range already authorized by the conviction.33
The Act does not violate the Sixth Amendment right to a jury trial.34
Whether due process requires that visible possession of a firearm be proved by clear and convincing evidence rather than by a preponderance of the evidence under the Act?35
No. Sentencing courts have long found facts without any prescribed burden of proof and Pennsylvania's choice to assign the preponderance standard to the visible-possession determination falls within that tradition.38 The Act applies only after a valid conviction obtained under the reasonable-doubt standard and the risk of error on the straightforward issue of visible possession is comparatively slight.39 Petitioners concede that the scheme would be constitutional if the legislature had merely directed courts to consider visible possession.40 The due-process calculus does not change merely because the legislature has supplied additional guidance in the form of a mandatory minimum.41
Due process does not require clear and convincing evidence for the visible-possession finding.42