Justice Gorsuch concluded with the following in relevant part: Amicus next turns to the Double Jeopardy Clause, which permits a judge to look into a defendant’s past conduct to ask whether the government has charged a defendant for the same crime a second time. While the Double Jeopardy Clause protects a defendant by prohibiting a judge from even empaneling a jury when the defendant has already faced trial on the charged crime, the Fifth and Sixth Amendments’ jury trial rights provide a defendant with entirely complementary protections at a different stage of the proceedings by ensuring that, once a jury is lawfully empaneled, the government must prove beyond a rea sonable doubt to a unanimous jury the facts necessary to sustain the punishment it seeks.
Finally, amicus points to case law and statutes in four other States. But while this evidence may suggest that in a small number of jurisdictions, judges could find the existence, number, and dates of a defendant’s prior convictions, none of this provides a persuasive basis for revisiting this Court’s many precedents forbidding judges from doing more, let alone prove a longstanding tradition.
Amicus argues that leaving the occasions inquiry to juries would do more to prejudice than to protect defendants. That concern, like arguments about efficiency, cannot alter the demands of the Fifth and Sixth Amendments. Tools such as bifurcation in any event exist to address the prejudicial effect evidence about a defendant’s past crimes can have on a jury. The lower court’s decision is vacated and remanded.
A dissent was filed by Justice Kavanaugh. He was joined by Justices Alito and Jackson. In support of the dissent, it is difficult to imagine that there is a good argument against using the defendant’s own transcribed and sworn testimony as bases for finding the existence and dates of prior committed offenses. Requiring the empaneling of a jury to do so feels pointless and inefficient.
