555 U.S. 160 (2009)
Between December 1996 and July 1997, Thomas Eugene Ice entered an apartment in the complex he managed on two occasions and sexually assaulted an 11-year-old girl.1
An Oregon jury convicted Ice of six crimes arising from these incidents. For each of the two incidents, the jury found him guilty of first-degree burglary for entering with the intent to commit sexual abuse, first-degree sexual assault for touching the victim’s vagina, and first-degree sexual assault for touching the victim’s breasts.2
At sentencing, the judge made findings pursuant to Oregon Revised Statutes section 137.123 that permitted the imposition of consecutive sentences.3 The judge found that the two burglaries constituted separate incidents, allowing consecutive sentences for the burglary convictions.4 The judge also found that each offense of touching the victim’s vagina met the statutory criteria, giving discretion to impose those sentences consecutive to the associated burglary sentences, and elected to do so.5 The court ordered the sentences for touching the victim’s breasts to run concurrently with the other sentences, resulting in a total sentence of 340 months’ imprisonment.6
Ice appealed his sentences, arguing that he had a Sixth Amendment right to have the jury find the facts that permitted consecutive sentences.7 The Oregon Court of Appeals affirmed the trial court’s judgment without opinion.8 The Oregon Supreme Court granted Ice’s petition for review and reversed the judgment by a vote of four to two.9
The United States Supreme Court granted certiorari to resolve the question presented.10
Whether, when a defendant has been tried and convicted of multiple offenses each involving discrete sentencing prescriptions, the Sixth Amendment mandates jury determination of any fact declared necessary to the imposition of consecutive rather than concurrent sentences?11
The Sixth Amendment jury-trial guarantee, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that any fact other than a prior conviction that increases the maximum punishment for a particular offense be submitted to the jury and proved beyond a reasonable doubt.12 This rule is limited to the offense-specific context. It does not extend to the traditional judicial function of determining whether sentences for multiple offenses run consecutively or concurrently.13
No. The sentencing judge's findings that the burglaries were separate incidents and that the vaginal-touching offenses showed a willingness to commit more than one offense and caused greater harm did not increase the statutory maximum for any single offense.14 These findings instead governed the administration of multiple sentences.15 Historically, judges at common law possessed unfettered discretion to impose consecutive sentences. The choice has long been the prerogative of state legislatures rather than juries.16
The decision respects state sovereignty over criminal justice administration. It does not encroach on the jury's traditional role at trial for a discrete offense.17
The Sixth Amendment does not mandate jury determination of facts necessary to impose consecutive sentences.18
Related opinions on this issue
Justice Scalia dissented on the ground that the Apprendi rule is clear and applies here.19 The judge's factual finding that the defendant caused separate harms was essential to imposing consecutive prison terms. This increased the total punishment beyond what the jury verdict alone authorized.20 He argued that there is no logical or historical basis for distinguishing facts that affect the sentence for one count from those that affect the total sentence through consecutive terms. Both increase the punishment the defendant receives.21 The majority's historical arguments were already rejected in Apprendi itself.22
Scalia emphasized that the jury must find any fact the law makes essential to the defendant's punishment, regardless of whether it affects the sentence on a single count or the aggregate term through consecutive sentencing.23 He rejected the majority's reliance on historical judicial discretion. The same arguments had been squarely rejected in Apprendi and its progeny.24