What is the difference between a sentence enhancement fact and an element?
Nothing. If you don't believe me, note this quote from today's US Supreme Court decision:
This argument has two defects. First, it rests on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an "element" of the offense and one that is a "sentencing factor." See, e.g., 530 U. S., at 478; Ring, 536 U. S., at 605.
That's under the federal constitution.
Under the state constitution, the state would like you to think that the answer is murkier. There are a couple of notable differences between the two constitutions. The Oregon Supreme Court -- unlike SCOTUS -- has held that only offense-specific enhancement facts are elements under the Oregon Constitution. See St v. Wedge and the first half of St v. Ice.
Another difference is that there is no requirement, under the Oregon Constitution, that the enhancement fact increase the sentence beyond the presumptive maximum. State v. Wedge (holding that the gun minimum was an element, even though it didn't increase the statutory maximum beyond the 20 year sentence. This was before the guidelines.)
Even aside from those two distinctions, the state (as well as the COA) has insisted that there is still a meaningful distinction between "sentence enhancement facts" and "elements."
Simply put, this is a false premise. SCOTUS said as much today. And while the right to a jury trial under the Oregon Constitution has the aforementioned differences than the right contained in the US Constitution, when it comes to offense-specific findings, there is no meaningful difference between sentence enhancement facts and elements.
Why does this matter, since -- regardless of their label -- the factors/elements have to be proven to a jury? Right now, "sentence enhancements" such as "vulnerable victim" or "harm greater than typical" or other offense-specific aggravating factors are circumventing the protections of a grand jury. Often, the prosecutor is able to allege those aggravating factors just by checking a box, and as a result, defendants must defend against frivolous accusations that nevertheless carry severe consequences. Under the Oregon Constitution elements are supposed to be pleaded in the indictment, and as long as offense-specific elements are mislabeled "sentence enhancements" as though somehow they aren't actually elements, the state is getting away with undermining the constitutional rights that require Grand Jury findings of all elements.
I am moderately optimistic that we'll get an opinion from the Oregon Supreme Court by the end of the year that agrees with me. In the meantime, we'll have to subsist on the nuggets like the one we got from SCOTUS today.