dissenting.
Petitioner Dennison, a 73-year-old man, committed an aggravated assault upon a neighborhood youth whom he suspected of stealing money from his house. After a trial at which the Commonwealth proved the elements of the offense of aggravated assault beyond a reasonable doubt, the trial judge imposed a sentence of imprisonment of 1172 to 23 months. Because he had concluded that Pennsylvania’s recently enacted Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982), was unconstitutional, the trial judge refused to impose the 5-year minimum sentence mandated by that Act whenever the Commonwealth proves —by a preponderance of the evidence — that the defendant “visibly possessed a firearm during the commission of the offense,” § 9712(b).
The judge presiding over Dennison’s trial, as well as the judges in the other three petitioners’ trials and the Superior Court Judges hearing the appeals, all concluded that visible possession of a firearm was an element of the offense. “ ‘Visibly possessed a firearm’ is inarguably language which refers to behavior which the legislature intended to prohibit.” App. to Pet. for Cert. A35. As a consequence, the prohibited conduct had to be established by proof beyond a reasonable doubt. The Pennsylvania Supreme Court agreed that visible possession of a firearm is conduct that the Pennsylvania General Assembly intended to prohibit, Commonwealth v. Wright, 508 Pa. 25, 42, 494 A. 2d 354, 363 (1985) (Larsen, J., concurring); id., at 49, 494 A. 2d, at 366 (concurring opinion joined by the majority opinion), and it recognized that evidence of such conduct would mandate a minimum sentence of imprisonment more than twice as severe as the maximum the trial judge would otherwise have imposed on petitioner Dennison, id., at 29, n. 1, 494 A. 2d, at 356, n. 1. But it nonetheless held that visible possession of a firearm was not an element of the offense because the Pennsylvania *96General Assembly had the foresight to declare in § 9712(b) that “Provisions of this section shall not be an element of the crime.”
It is common ground 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.” Patterson v. New York, 432 U. S. 197, 210 (1977). Today the Court holds that state legislatures may not only define the offense with which a criminal defendant is charged, but may also authoritatively determine that the conduct so described — i. e., the prohibited activity which subjects the defendant to criminal sanctions — is not an element of the crime which the Due Process Clause requires to be proved by the prosecution beyond a reasonable doubt. In my view, a state legislature may not dispense with the requirement of proof beyond a reasonable doubt for conduct that it targets for severe criminal penalties. Because the Pennsylvania statute challenged in this case describes conduct that the Pennsylvania Legislature obviously intended to prohibit, and because it mandates lengthy incarceration for the same, I believe that the conduct so described is an element of the criminal offense to which the proof beyond a reasonable doubt requirement applies.
Once a State defines a criminal offense, the Due Process Clause requires it to prove any component of the prohibited transaction that gives rise to both a special stigma and a special punishment beyond a reasonable doubt. This much has been evident at least since In re Winship, 397 U. S. 358 (1970). In that case, the Court “explicitly” held 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.” Id., at 364. In reasoning to this conclusion the Court reviewed the heritage of the rule that Justice Frankfurter characterized as “basic in our law and rightly one of the boasts of *97a free society,”1 and — of critical importance to the decision before us — explained the reasons that undergird the rule:
“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, [156 U. S. 432,] 453 [1895]. 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 [196], 205, 247 N. E. 2d [253], 259 [1969].
“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 that 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.” Id., at 363-364.
*98In re Winship thus took a purposive approach to the constitutional standard of proof: when the State threatens to stigmatize or incarcerate an individual for engaging in prohibited conduct, it may do so only if it proves the elements of the prohibited transaction beyond a reasonable doubt.2
It is true, as the Court points out, that “ ‘[t]he applicability of the reasonable-doubt standard . . . has always been dependent on how a State defines the offense that is charged in any given case.”’ See ante, at 85 (quoting Patterson v. New York, 432 U. S., at 211, n. 12). A State’s freedom in this regard, however, has always been understood to reflect the uncontroversial proposition that a State has power, subject of course to constitutional limits, to attach criminal penalties to a wide variety of objectionable transactions; when it does so, the prosecution need establish beyond a reasonable doubt only the constituent elements of the specified criminal transaction. Nothing in Patterson or any of its predecessors authorizes a State to decide for itself which of the ingredients of the prohibited transaction are “elements” that it must prove beyond a reasonable doubt at trial.
Indeed, contrary to the supposition of the majority, Patterson v. New York is entirely in keeping with the limit on state definitional power implied in Winship. Patterson was charged with second-degree murder, a crime which in New York included two elements: “‘intent to cause the death of another person’ ” and “ ‘causing] the death of such person or of a third person.’” 432 U. S., at 198 (quoting N. Y. Penal Law § 125.25 (McKinney 1975)). “Malice aforethought [was] not an element of the crime.” 432 U. S., at 198. Because *99“causing the death of another person with intent to do so,” id., at 205, was “an act which . . . the State may constitutionally criminalize and punish,” id., at 209; accord, id., at 208, and because New York in fact proscribed and punished that conduct, id., at 206, the Court upheld the State’s refusal to “prove beyond a reasonable doubt every fact, the existence or nonexistence of which it [was] willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment,” id., at 207 (emphasis added) — in that case, the affirmative defense of extreme emotional disturbance. The Court explained that “the Due Process Clause did not invalidate every instance of burdening the defendant with proving an exculpatory fact.” Id., at 203, n. 9 (emphasis added). “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.” Id., at 209 (emphasis added). Patterson thus clarified that the Due Process Clause requires proof beyond a reasonable doubt of conduct which exposes a criminal defendent to greater stigma or punishment, but does not likewise constrain state reductions of criminal penalties — even if such reductions are conditioned on a prosecutor’s failure to prove a fact by a preponderance of the evidence or on proof supplied by the criminal defendant.3
*100The distinction between aggravating and mitigating facts has been criticized as formalistic. But its ability to identify genuine constitutional threats depends on nothing more than the continued functioning of the democratic process. To appreciate the difference between aggravating and mitigating circumstances, it is important to remember that although States may reach the same destination either by criminalizing conduct and allowing an affirmative defense, or by prohibiting lesser conduct and enhancing the penalty, legislation proceeding along these two paths is very different even if it might theoretically achieve the same result. Consider, for example, a statute making presence “in any private or public place” a “felony punishable by up to five years imprisonment” and yet allowing “an affirmative defense for the defendant to prove, to a preponderance of the evidence, that he was not robbing a bank.” Dutile, The Burden of Proof in Crimi*101nal Cases: A Comment on the Mullaney-Patterson Doctrine, 55 Notre Dame Law. 380, 383 (1980). No democratically elected legislature would enact such a law, and if it did, a broad-based coalition of bankers and bank customers would soon see the legislation repealed.4 Nor is there a serious danger that a State will soon define murder to be the “mere physical contact between the defendant and the victim leading to the victim’s death, but then set up an affirmative defense leaving it to the defendant to prove that he acted without culpable mens rea” Patterson v. New York, 432 U. S., at 224, n. 8 (Powell, J., dissenting). No legislator would be willing to expose himself to the severe opprobrium and punishment meted out to murderers for an accidental stumble on the subway. For similar reasons, it can safely be assumed that a State will not “define all assaults as a single offense and then require the defendant to disprove the elements of aggravation.” Mullaney v. Wilbur, 421 U. S. 684, 699, *102n. 24 (1975). The very inconceivability of the hypothesized legislation — all of which has been sincerely offered to illustrate the dangers of permitting legislative mitigation of punishment in derogation of the requirement of proof beyond a reasonable doubt — is reason enough to feel secure that it will not command a majority of the electorate.5
It is not at all inconceivable, however, to fear that a State might subject those individuals convicted of engaging in antisocial conduct to further punishment for aggravating conduct not proved beyond a reasonable doubt. As this case demonstrates, a State may seek to enhance the deterrent effect of its law forbidding the use of firearms in the course of felonies by mandating a minimum sentence of imprisonment upon proof by a preponderance against those already convicted of specified crimes. But In re Winship and Patterson teach that a State may not advance the objectives of its criminal laws at the expense of the accurate factfinding owed to the criminally accused who suffer the risk of nonpersuasion.
It would demean the importance of the reasonable-doubt standard — indeed, it would demean the Constitution itself— if the substance of the standard could be avoided by nothing more than a legislative declaration that prohibited conduct is not an “element” of a crime. A legislative definition of an offense named “assault” could be broad enough to encompass every intentional infliction of harm by one person upon another, but surely the legislature could not provide that only that fact must be proved beyond a reasonable doubt and then specify a range of increased punishments if the prosecution could show by a preponderance of the evidence that the defendant robbed, raped, or killed his victim “during the commission of the offense.”
*103Appropriate respect for the rule of In re Winship requires that there be some constitutional limits on the power of a State to define the elements of criminal offenses. The high standard of proof is required because of the immense importance of the individual interest in avoiding both the loss of liberty and the stigma that results from a criminal conviction. It follows, I submit, that if a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a “fact necessary to constitute the crime” within the meaning of our holding in In re Winship.
Pennsylvania’s Mandatory Minimum Sentencing Act reflects a legislative determination that a defendant who “visibly possessed a firearm” during the commission of an aggravated assault is more blameworthy than a defendant who did not. A judicial finding that the defendant used a firearm in an aggravated assault places a greater stigma on the defendant’s name than a simple finding that he committed an aggravated assault. And not to be overlooked, such a finding with respect to petitioner Dennison automatically mandates a punishment that is more than twice as severe as the maximum punishment that the trial judge considered appropriate for his conduct.
It is true, as the Court points out, that the enhanced punishment is within the range that was authorized for any aggravated assault. That fact does not, however, minimize the significance of a finding of visible possession of a firearm whether attention is focused on the stigmatizing or punitive consequences of that finding. See Mullaney v. Wilbur, 421 U. S., at 697-698.6 The finding identifies conduct that the legislature specifically intended to prohibit and to punish by a *104special sanction. In my opinion the constitutional significance of the special sanction cannot be avoided by the cavalier observation that it merely “ups the ante” for the defendant. See ante, at 88, 89. No matter how culpable petitioner Dennison may be, the difference between IIV2 months and 5 years of incarceration merits a more principled justification than the luck of the draw.
I respectfully dissent.
Leland v. Oregon, 343 U. S. 790, 803 (1952) (Frankfurter, J., dissenting). Later in his opinion he noted that the “duty of the State of establishing every fact of the equation which adds up to a crime, and of establishing it to the satisfaction of a jury beyond a reasonable doubt is the decisive difference between criminal culpability and civil liability.” Id., at 805.
“The combination of stigma and loss of liberty involved in a conditional or absolute sentence of imprisonment sets that sanction apart from anything else the law imposes.” Packer, Mens Rea and the Supreme Court, 1962 S. Ct. Rev. 107, 150. The requirement that conduct subjecting an individual to a special stigma and a special punishment be proved beyond a reasonable doubt therefore casts no doubt on the constitutionality of criminal restitution ordered on a lesser standard of proof.
The Patterson Court also recognized other “constitutional limits beyond which the States may not go in this regard,” 432 U. S., at 210, citing Tot v. United States, 319 U. S. 463, 469 (1943), and other cases invalidating statutory presumptions. It was on the basis of these cases that Patterson distinguished the Maine statute struck down in Mullaney v. Wilbur, 421 U. S. 684 (1975). The Maine murder statute prescribed life imprisonment for “Whoever unlawfully kills a human being with malice aforethought,” Me. Rev. Stat. Ann., Tit. 17, § 2651 (1964) (emphasis added), and the trial judge had charged the jury that “ ‘malice aforethought is an essential and indispensable element of the crime of murder,’ ” 421 U. S., at 686 (quoting App. in No. 74-13, O. T. 1974, p. 40). ■ Likewise, the Government conceded that the federal enactment in Tot proscribed only receipt of firearms in interstate commerce. See Tot v. United States, 319 U. S., at *100466. Patterson clarified that Mullaney, like Tot, stood for the proposition that “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.” 432 U. S., at 215 (emphasis added). Cf. United States v. Romano, 382 U. S. 136, 138, 144 (1965). Thus, although Maine could have punished all unlawful, intentional killings with life imprisonment, just as Congress in Tot could have punished possession of a firearm by one convicted of a crime of violence, in neither case did the legislature do so. This explanation, although not entirely satisfactory, see State v. Lafferty, 309 A. 2d 647, 664-665 (Me. 1973); id., at 672-673 (Wernick, J., concurring), is consistent with the Maine Supreme Court’s explanation on direct appeal that state law presumed malice. See State v. Wilbur, 278 A. 2d 139, 145-146 (Me. 1971). The state court downplayed this presumption because “no burden is imposed upon defendant until the State has first convinced the jury beyond a reasonable doubt that defendant is guilty of a voluntary and intentional homicide,” at which point the issue “is no longer guilt or innocence of felonious homicide but rather the degree of the homicide.” Id., at 146. As we held in Mullaney, “[t]he safeguards of due process are not rendered unavailable 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.” 421 U. S., at 698. Accord, Specht v. Patterson, 386 U. S. 605, 608-611 (1967).
Cf. Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L. J. 165, 178 (1969) (“In the first statute, a legislature has deemed three factors germane to punishment: (a) presence of the individual; (b) the presence of narcotics in the house; and (c) the defendant’s knowledge. In the second statute, only two factors are deemed germane to whether an individual will be punished: (a) presence of the individual; (b) the presence of narcotics in the house. The electorate might approve of the passage of the first statute, but not the passage of the second. The fact that a legislature might pass the second statute does not mean that, given the political temperament of the state, the legislature would in fact have passed it. If the legislature nominally recognizes knowledge as germane (as it did in the first statute) and further, as the type of germane issue to be proved by the state, and then arranges its process so that most of those who lack knowledge are still sent to jail (as though the second statute had been passed), then those individuals are being punished for a crime which has never undergone the political cheeks guaranteed by representative government”); Note, The Constitutionality of Affirmative Defenses after Patterson v. New York, 78 Colum. L. Rev. 655, 667 (1978) (“[Ajlthough a state legislature might have decided to define an offense without the mitigating or exculpatory factor, there is no reason to suppose it would have done so, or given the political climate of the state, could have done so”).
See J. Ely, Democracy and Distrust 183 (1980) (“constitutional law appropriately exists for those situations where representative government cannot be trusted, not those where we know it can”). See also id., at 182-183.
It is likewise irrelevant that petitioners had first been convicted of predicate felonies. “Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.” Jackson v. Virginia, 443 U. S. 307, 323-324 (1979). See n. 3, supra.