# United States v. Green

> District Court, D. Massachusetts · June 18, 2004 · 346 F. Supp. 2d 259

URL: https://www.frixlaw.com/law-library/cases/2568795

## Case

- **Full name:** UNITED STATES of America, v. Richard GREEN, Defendant; United States of America, v. William Olivero, Jason Pacheco, Defendants; United States of America, v. Edward K. Mills, Defendant; United States of America, v. Jane Doe, Defendant
- **Court:** District Court, D. Massachusetts
- **Decided:** June 18, 2004
- **Citations:** 346 F. Supp. 2d 259; 2004 U.S. Dist. LEXIS 11292; 2004 WL 1381101
- **Precedential status:** Published
- **Opinion:** Opinion by Young
- **Judges:** Young
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by United States v. Green, 426 F.3d 64 (2005).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2568795

## How later opinions describe it (automated extraction)

- finding that Guidelines were unconstitutional before Blakely, based on the pre-Blakely decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)
- stating that government's denial that there was fact bargaining with respect to Olivero's role was "disingenuous”
- noting “swallowing the gun” tactic, in which prosecutor hides evidence from the sentencing judge if defendant pleads guilty but regurgitates it where the plea deal fell through said to be “flat-out illegal”
- discussing charge bargaining, fact bargaining, and other mechanisms of plea bargaining that contribute to disparate sentences and unfairness

## Opinion text

SENTENCING MEMORANDA
YOUNG, Chief Judge.
Power tends to corrupt and absolute power corrupts absolutely.
Lord Acton
3
If you put all the powers to prosecute, try, and execute a sentence in one person’s hands, that is the absolute antithesis of the checks and balances in the system of government that we have.
Lt. Cmdr. Charles Swift, U.S. Navy
4
INTRODUCTION
Here’s a not-so-hypothetical conversation between an eager and enthusiastic district judge and an experienced and reflective circuit judge.
District Judge: What would you think of a system that afforded those accused of crimes scrupulously fair trials over which wholly independent judges preside, but which turns those convicted over to the prosecutors for such punishment as they may determine?
Circuit Judge: Utterly unfair, of course. That would be even more “sinister” than the nightmare hypothetical regime that Justice Scalia described in
Monge v.
California.
5
District Judge: Well, isn’t this the system we have today under the so-called “guidelines”?
*264
Circuit Judge: Not at all. As we’ve been at pains to point out to you and your colleagues, the Sentencing Guidelines — while intricate — control federal sentencing and must be obeyed.
District Judge: I accept that. I have to. But what about the government?
Circuit Judge: Naturally they have to obey the guidelines.
District Judge: [Persisting] And if they don’t?
Circuit Judge: No, no, that way lies the Serbonian Bog. If the government can manipulate the guidelines to suit themselves, a defendant’s constitutional guarantees wouldn’t be worth much.
District Judge: Precisely.
That’s hypothetical. These sentencing memoranda deal with five criminals. Three insisted on their constitutionally guaranteed trial by jury. The two others pled guilty and cooperated. The most evil and violent is a gang leader who had much information to give. The least, a woman, had little to give but went on courageously to finger a major drug lord. This is reality.
Richard Green is a retail drug dealer preying on the inhabitants of one of Boston’s public housing projects. On two occasions he sold small quantities of crack cocaine (0.6 grams and 2.4 grams respectively) to an undercover informant. The government seeks to imprison him for 24 years.
William Olivero is a New York worker for a massive drug conspiracy whose kingpin (and major drug activity) are located in Massachusetts. Though not himself a dealer, Olivero has, on occasion, delivered kilogram quantities of cocaine and associated drug money for the kingpin. Olivero possesses a handgun. The kingpin has been sentenced to life imprisonment for his offenses. The government seeks to imprison Olivero for twenty-four to thirty years.
Jason Pacheco is a marijuana dealer who knew the kingpin, who on occasion purchased kilogram quantities of cocaine from the kingpin for his own account, and who once accommodated the kingpin by allowing his garage to be used for the brief storage and transshipment of a multi-kilo-gram quantity of cocaine. The government seeks to imprison him for twelve to fifteen years.
Edward K. Mills is a multiple murderer who led a vicious street gang. Eventually apprehended, he recognized the jig was up and cooperated with authorities. A gang leader himself, he had much information to give and his disclosures have led to the conviction of another murderer and the freeing of an individual wrongfully convicted of murder. The government seeks to imprison him for ten years.
“Jane Doe,” a pseudonym, is a young, single mother. A drug addict, she dealt cocaine to support her habit. Eventually apprehended, she too cooperated and testified in open court so that the government might secure the conviction of an important drug lord from her homeland. In light of her cooperation, the government recommends a short sentence. As an alien, however, the government proposes to deport her back to her homeland where, the government admits, she will almost certainly be killed, perhaps after torture.
To achieve its ends, the government routinely imposes a stiff penalty upon defendants who exercise their constitutional right to trial by jury. In the first of the
*265
instant eases, the government’s attempts to burden a citizen’s right to a jury of his peers exceeds all constitutional bounds. The second case involves repeated instances of illegal fact bargaining. The third involves enforcement of a bargain with a cold-blooded killer that the Court characterized as evincing “a moral code more suited to the alleys of Baghdad than the streets of Boston,” and the fourth reveals such callous indifference to innocent human life as would gag any fair minded observer. And this Court — stripped of any meaningful role in the sentencing of offenders who come before it — can do little more than explain what’s going on. That, at least, I will do.
PART ONE: STRAIGHT TALK ON FEDERAL SENTENCING
I. Federal Sentencing Policy — The Statutory Framework
A. The Department of Justice Is Addicted to Plea Bargaining
This is the essential key to an understanding of federal sentencing policy today — the Department is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen.
6
Figure 1 says it all.
7
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[[Image here]]
Moreover, “[i]f incarceration rates remain unchanged, 6.6% of U.S. residents born in 2001 will go to prison at some time during their lifetime,”
8
a disproportionate number
*267
of these inmates being African American or Hispanic American.
9
Simply to process the enormous number of convicts or soon-to-be convicts, the Department depends on plea bargaining as its life’s blood. Its budget planning reflects the number of indictments on average each additional assistant United States Attorney will produce, and its resources are deployed accordingly. Today, the Department’s entire efforts at law enforcement depend on plea bargaining as never before.
Plea bargaining is nothing new, of course. As Professor George Fisher has trenchantly observed:
Something more than 150 years ago, plea bargaining ... claimed but a tiny beachhead. Supported only by the desire of prosecutors to manage their crushing workloads and to gain an occasional effortless conviction, plea bargaining extended no further than the sentencing power of prosecutors.
Then, in the last quarter of the nineteenth century, judges found themselves confronted by an onslaught of new, and newly complex, civil suits brought on by the ravages of industrial machinery. They saw no choice but to make terms with the new order in the criminal courts. They embraced plea bargaining and turned their considerable sentencing power to its purpose. Sustained now by the two most powerful courtroom patrons [i.e., judges and prosecutors], plea bargaining swiftly became the dominant force in criminal procedure. It pushed aside the indeterminate sentence, and it supported those institutions, such as probation and the public defender, that aided its cause.
10
As a result, by the mid-1980s roughly ninety percent of convictions in federal criminal cases were reached through plea bargains.
11
B. Enter the Sentencing Guidelines
1. Overview
The sentencing system our society has adopted with respect to federal offenders is embodied in the United States Sentencing Guidelines (“Guidelines”). Adopted by large bipartisan majorities in both Houses of Congress,
12
and later held constitutional by the Supreme Court of the United
*268
States,
13
the Guidelines were intended to cabin in unwarranted judicial discretion in sentencing while retaining sufficient flexibility to ensure individualized, just sentences in every case.
14
At the time of the Guidelines’ passage, it was recognized that there would be a massive power shift from the judiciary to the executive as prosecuto-rial judgments became by far the major determinant of a defendant’s sentence.
15
Still, it was believed that a robust and independent judiciary could hold any excesses in check.
16
This latter expectation has proved utterly in vain. Against the centrally organized efforts of the Department to manipulate sentences and sentencing policy to achieve the perceived goals of law enforcement, the efforts of individual judges to control the whirlwind have been but a weak reed — unnoticed, derided, and largely rejected. As a result, the Sixth Amendment guarantee of trial by jury has been eroded as never before in the history of our nation, while the institutional judiciary complacently slips into forms of expression and modes of thought that unconsciously reinforce the Department agenda in a powerfully Orwellian way.
2. “Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines”
17
Is Actually Naught but the Department’s Theory of the Offense
In any indeterminate sentencing scheme, a judge must determine where, within the statutorily permissible range, to sentence an offender. When I first came to the state bench in Massachusetts, now a quarter century ago, there were a number of offenses (armed robbery was one) pursuant to which I was empowered to impose any sentence, ranging from straight probation to life imprisonment. To exercise this power wisely, I recall reading everything that I could about an offender and then sitting down privately with a probation officer and asking: “What do we know about this person?”
One object of the Guidelines was precisely to put an end to this unfettered exercise of discretion based on such an informal, off the record, and unguided discussion.
18
In its place, the Guidelines in
*269
troduced a concept known as “real offense sentencing,” based on an offender’s “relevant conduct.”
19
Pursuant to this approach — and in keeping with the goal of curbing judicial discretion — a judge must first determine the offender’s “relevant conduct” from materials formally placed before him primarily by the Department; then the judge must impose a sentence based on the offender’s “real offense,” without regard to the actual offense of conviction.
20
This, it was thought, would replicate — in a more controlled fashion — ■ the old, informal conference with the probation officer. It has not worked out that way.
First, the very formalism of the process has enhanced the Department’s ability to control the information flow to the judge. After all, unlike a civil litigant,
21
a criminal defendant has always been at an extreme disadvantage in federal court in discovering the weaknesses in the Department’s ease, and the Guidelines only exacerbate this vast disparity. Moreover, the Guidelines cut the judge off from informal interchange with experienced probation officers — interchange which I learned from my state court service not infrequently added nuance to the Department’s version of an offender’s history.
Second, the concept of “real offense” sentencing as practiced under the Guidelines not only affects where' — within the permissible range — an offender ought be sentenced, it frequently adjusts that range upward considerably. No state system— not one — has adopted this approach.
22
The result has been the routine sentencing of offenders on the basis of crimes with which they have never been charged, the commission of which they deny, without any evidence ever having been proffered against them.
23
Even more bizarre, federal criminal sentences may today be based on conduct of which an offender has been formally acquitted
24
The devolution of such enormous power on federal prosecutors has had an all-too-predictable result. While there may still be judicial limits on the outer boundaries of a prosecutor’s assertion of relevant conduct (as the case of Jason Pacheco discussed below, shows), none prevents a prosecutor from turning a blind eye on conduct otherwise relevant (as the case of William Olivero discussed below, shows). So it is that the phenomenon known as “fact bargaining” has come to flourish as never before in the federal courts.
25
The Department today has the power— and the incentive — to ratchet punishment up or down solely at its discretion. It does
*270
so most often to burden a defendant’s constitutional right to a jury trial and thus force a plea bargain. The result: In the District of Massachusetts, an individual who stands up to the Department and insists on a jury trial gets, upon conviction, a sentence 500 percent longer than a similarly situated defendant who pleads guilty and cooperates.
26
3. Enhanced Plea Bargaining Is Actually the Central Goal of the Guidelines
While reducing unwarranted disparity in the judicial treatment of offenders was touted as the “reform” which the Guidelines sought to work, the Department well recognized the advantage it would derive in marketing plea bargains
27
if judicial discretion in sentencing was sharply diminished. By candidly marginalizing the judicial role, it was thought that offenders would be more likely to plead guilty as they could know with greater certainty what to expect if they did.
28
There is truth in this observation. My own experience is that guilty offenders hope against hope for some especial leniency and, when that hope is dashed by defense counsel explaining that the Guidelines foreclose such result — if they do not fire the lawyer for being the bearer of bad tidings
29
— many will plead guilty to obtain the discount offered by the Department to induce a plea.
4. Acceptance of Responsibility
Like so much of our discourse about sentencing, we employ sophistry rather
*271
than straight talk.
30
Under the Guidelines, an offender is eligible for a discount on his sentence if he “accepts responsibility” for his crime.
31
Actually, this discount has nothing whatsoever to do with true acceptance of responsibility for one’s acts. If it did, the discount would be equally available to those who are convicted after trial and it is not.
32
What we mean by acceptance of responsibility is simply the discount offered for pleading guilty (earlier is better), thus saving the Department the trouble, expense, and uncertainty
33
of a jury trial. Indeed, so divorced is the concept from true acceptance of responsibility that even those who protest their innocence of some or all of the charges against them are routinely given the discount — but only if they’ll plead guilty.
34
There is nothing surprising about this discount save the Sentencing Commission’s sophomoric attempt to obscure what is going on. Indeed, this discount is, and always has been, the essence of the plea “bargain.”
35
The problem for the Department lies in the fact that the original Sentencing Commission made the discount relatively trivial compared to the draconian sentences it promulgated. This upset the calculations of the Department and the defense bar alike. The “acceptance” discount was all too confining for a Department dependant on a 90 percent plea bargain rate for its very operational existence. At the same time, the Department had to be “tough on crime,” so it could hardly ask the Sentencing Commission for a larger across-the-board discount and thus lower the sentencing ranges it had successfully obtained. Much of the institutional development of sentencing policy after the enactment of the Sentencing Reform Act can best be seen as the Department’s attempts to “break out of the Sentencing Guidelines corral”
36
and gather to itself the remaining aspects of sentencing discretion while
*272
denying those same aspects to the judiciary.
C. Today the Department Establishes the Sentence; the Federal Judge Simply Imposes It
As the constant institutional force in the development of sentencing policy, it is not surprising that the Department would frequently get its way. The startling, untold story is the extent to which the Department as a functional matter now can determine the sentence to be imposed upon those whom it accuses of crimes. Not surprisingly, it uses its vast powers to induce plea bargains, thus eviscerating the constitutional guarantee of trial by a jury of one’s peers. Most of its methods are “legal,” some are disfavored but winked at, one is flat-out illegal. All are routine. For the Department today, the Guidelines are hardly a constraint; their value lies in constraining an already marginalized district court judiciary.
How can the Department so confidently induce plea bargains? Let us count the ways:
1. Charge Bargaining
The most traditional of the Department’s bargaining chips is the ability to drop charges at will. This has always been the prerogative of the executive, and the Department has had extensive recourse to it. Indeed, in the District of Massachusetts the best available data indicates 65 charge bargains in the years 1998-2000.
37
The pressure is placed upon the defendant by bringing a multi-count indictment and then trading away charges or counts more difficult to prove in return for a guilty plea to other counts or lesser charges.
True, Attorney General Ashcroft has recently forbidden Departmental charge bargaining in no uncertain terms:
It is the policy of the Department of Justice that, in all federal criminal cases, federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case, except as authorized by an Assistant Attorney General, United States Attorney, or designated supervisory attorney in the limited circumstances described below. The most serious offense or offenses are those that generate the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence. A charge is not “readily provable” if the prosecutor has a good faith doubt, for legal or evidentiary reasons, as to the Government’s ability readily to prove a charge at trial. Thus, charges should not be filed simply to exert leverage to induce a plea. Once filed, the most serious readily provable charges may not be dismissed except to the extent permitted in Section B.
38
But this appears to be sound and fury, signifying little. Charge bargaining continues in this District as before
39
and Department attorneys seem to know little about the centralized permitting process Attorney General Ashcroft has implement
*273
ed.
40
2. Notification of Sentencing Enhancements
Certain criminal statutes permit enhanced sentences upon the Department’s notification to the court of a prior conviction before trial (or before sentencing after a plea).
41
This notification need not be through the constitutional processes of a grand jury,
42
simple written notification to the court and the defendant is sufficient.
43
Departmental attorneys are thus able to threaten to give such notice — therefore ratcheting up sentences in applicable cases — whenever an accused proves recalcitrant about copping a plea. Make no mistake — this happens.
44
3. The “Safety Valve”
Properly concerned about the rigidity of mandatory minimum sentences, Congress passed “safety valve” legislation designed to ameliorate unduly harsh sentences for first time offenders.
45
Even so, the discount for those who are “safety valve” eligible is not left to judicial discretion, but is prescribed by the Guidelines.
46
Although the legislation nowhere so specifies, as a practical matter, of course, the benefits of the “safety valve” are available only to those defendants who will forgo protections of the American jury, plead guilty, and place themselves in the Department’s hands. Here’s why:
First, the “safety valve” is available only to offenders who do not have more than one criminal history point under the Guidelines — typically first-time offenders.
47
Where the Department likes an offender due to his cooperation, even a series of criminal convictions can be collapsed into a “single” course of conduct, thus making the cooperative offender safety valve eligible.
Far more important, however is the safety valve requirement that the offender cooperate fully with the Department.
48
It is this requirement, of course, that secures the Department’s whip hand though, on its face, the safety valve looks like a judge-determined discount. This is because the Department necessarily must advise the court concerning the truthfulness and completeness of the offender’s proffer. Where the Department is dissatisfied — and tells the court the proffer is not fully truthful— it takes either investigatory resources not available to the court, or exhaustive hearings to establish the truth of the matter. Most courts, this one included, thus rarely go behind the Department’s representation, with the predictable result that the
*274
Department today is firmly in charge of the safety valve. It is activated when the Department wishes and withheld when it does not.
49
4. Substantial Assistance
Both 18 U.S.C. § 3553 (e) and U.S.S.G. § 5K1.1 permit downward departures for offenders who provide “substantial assistance” to law enforcement authorities. These are only available if the Department files a motion requesting them, and in cases where a statute provides for a mandatory minimum sentence, the Department can limit the extent of the downward departure by seeking a departure below the Guidelines range but not below the mandatory minimum sentence.
50
As Figure 2 makes clear, substantial assistance departures are substantially unprincipled.
51
[[Image here]]
Utterly within the Department’s control, they are, by far, the major ground for downward departure from the Guidelines.
52
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The sweeping extent of departures for substantial assistance demonstrates, as nothing else, that the Department today simply cannot enforce the laws without a huge volume of plea bargains, a large number of which turn on the Department’s ability to ignore the strictures of the Guidelines and -the mandatory minimum sentencing system by cutting, deals with offenders. Indeed, in many districts
53
an offender has only a random chance of receiving a sentence within the Guidelines due to the volume of substantial assistance departures
approved by the Department.
While commentators justly excoriate the substantial assistance discount for its vagaries,
54
its potential racism,
55
its moral bankruptcy,
56
and its inability to produce uniformity given the diversity of individual circuit jurisprudence and legal culture,
57
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the judicial response is muted, and the Department and the defense bar are silent. Judges rarely speak out since the substantial assistance departure allows justice appropriately to be done in many cases. Defense counsel are silent given that their unequivocal duty is toward the defendant getting a break.
58
The Department, of course, is silent because it has enjoyed overwhelming success with the Congress and the people in painting the entire judiciary as soft on crime, even though its own recommendations are the primary force driving down the sentences that are today imposed.
5. Ignoring the Guidelines — Officially
The list of inducements to plead laid out above is, however, insufficient for the Department. In judicial districts with unusually high volumes of drug and immigration offenses (primarily along our border with Mexico), the Department simply dispenses with the Guidelines altogether to secure more flexibility (and thus more pleas). These are the so-called “fast track” programs. While Attorney General Ashcroft has attempted to centralize and rein in these programs,
59
they still exist and there is every indication that they will continue to for the foreseeable future. As implemented, these programs constitute a wholesale jettisoning of the Guidelines in order to “move the business.” No wonder the Guidelines are held in such derision by the states,
60
when the much vaunted guideline “uniformity” (and the congressional command) does not even apply in Arizona, Southern California, New Mexico, and Southern and Western Texas.
61
More serious, of course, is the constitutional command that the national law apply equally throughout the United States.
62
Offenders are properly complaining of equal protection violations in view of the “here it ap
*277
plies, here it doesn’t” nature of the Guidelines.
63
6. Ignoring the Guidelines — Unofficially
Pursuant to Fed.R.Crim.P. 11(c)(1)(C), the Department properly may “agree [with the defendant] that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).”
64
Note the dynamic here established. Defense counsel favor binding plea agreements because the district judge has no discretion whatsoever, save to accept or reject the plea. Departmental attorneys may use them for a variety of reasons, among them to grant extraordinary benefits not accorded to other defendants tendering pleas
65
or, perhaps, to bend or twist the Guidelines. The district judge can stop this practice, of course, by refusing to accept the plea — but will he? Maybe not, if the agreed sentence accords with the judge’s personal sense of justice. After all, there will never be any appeal so the matter is beyond review. No downward departure will ever be reported, and the case will be resolved simply, finally, and completely. Does this happen? While the practice is hard to document,
66
statistics suggest its pervasiveness.
67
Its
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likelihood increases due to the ever increasing disrepute of the entire Guidelines structure in the eyes of the judiciary.
68
7. Ignoring the Guidelines — Fraudulently
The most repugnant of the Department’s tactics is to lie to the Court in order to induce a guilty plea. This is the process known as “fact bargaining.” It occurs when a departmental attorney “swallows the drugs” or “the gun” as the case may be, i.e., fails to report to the probation officer in rendering its descriptions of offense conduct (and then later fails to bring to the attention of the Court) relevant evidence that may affect the guidelines calculation in order to reduce that calculation to secure a disposition to which it and defense counsel have agreed.
This, of course, is flat-out illegal,
69
and Attorney General Ashcroft has prohibited it in no uncertain terms. This Court is unaware of any instance where the Attorney General has disciplined a Department attorney for engaging in the practice.
As the practice constitutes a direct fraud on the Court, it is difficult to uncover. Fact bargaining drove the disparate sentences in
United States v.
Rodriguez,
70
but the First Circuit accepted the Department’s all too facile explanation and failed to explore the issue.
71
Again, charge bargaining coupled with prohibited fact bargaining drove the cruelly disparate sentences in
United States v.
Thurston,
72
but the Court of Appeals again failed to detect
*279
it,
73
focusing instead on the perceived inadequacies in the district court’s sentencing rationale.
74
This Court has burdened an already strained probation office by ordering pre-plea pre-sentence reports in virtually every case as the best defense to illegal fact bargaining. The effort has borne fruit; William Olivero and Jason Pacheco, whose cases are discussed below, were potential victims of illegal fact bargaining.
All of these techniques, both legal and illegal, further the Department’s goal: securing plea bargains in the overwhelming number of cases in order to enforce the law at the cheapest possible cost and avoid the risks of having to expose the Department’s investigations to the neutral review of judges and juries. That these techniques are eviscerating the Sixth Amendment’s guarantee of a jury of the people seems rarely to occur to those who practice them and, if it does, it hardly seems important.
D. The Judicial Reaction: The “Lions Under the Throne”
75
Are Supine and Obedient, Settling for Sophistry and Symbolism.
Any discussion of sentencing policy in America today must consider the judicial reaction to the massive shift of power and discretion to the Department. In one respect — obedience to the Congressional mandate — that response is precisely what Congress and the American people expect. In two respects, however, the judicial response has been opaque, masking the realities in ways that obscure injustice with a veneer of pseudo-process and procedure.
1. Obedience
While the drumbeat of judicial opposition to the Guidelines has been extraordinarily vocal, widespread, and persistent,
76
the judiciary’s actual performance after the Supreme Court had established their constitutionality
77
has been faithfully to obey the will of Congress, applying the Guidelines as sensibly, consistently, and compassionately as their labyrinthine provisions will allow. As Judge Bruce Selya so aptly puts it, “when ... the legislative trumpet sounds clearly, courts are duty bound to honor the clarion call.”
78
Obedience to the constitutional expression of the Congressional will is the hallmark of the federal judiciary — a vital aspect of its professionalism and its role in our system of government. Whatever individual judges may think about the wisdom of the congressional choice, this obedience is as prevalent in the sentencing area as in any other area of judicial competence.
79
Indeed, to Congress’ apparent surprise, its
*280
own investigators point out that downward departures from the Guidelines are driven more by the Department than by any other source.
80
2. Sophistry
The judiciary is, however, considerably less than candid about how individual sentences are meted out. It seems to satisfy itself with rote incantations of labels that are meaningful and powerful to judges, lawyers, and, most importantly, the public, even when those labels no longer carry any descriptive force in explaining reality. By so doing, they run the risk of fooling themselves into a complacency that reduces their ability to address the quiet slide into oblivion of our precious right to trial by jury.
Consider just these four aspects of procedure and sentencing in federal courts today:
a. In Federal Sentencing Hearings, “Evidence” Is
Not
Evidence
Appellate courts are fond of noting that the district judge makes the crucial relevant conduct determination pursuant to the well known “preponderance of the evidence” standard.
81
This is a shibboleth. The rules of evidence by their express terms do not apply to sentencing hearings.
82
Instead, courts today must base their conclusions on a mishmash of data including blatantly self-serving hearsay largely served up by the Department.
83
Courts have little chance independently to review this data (and soon they will have much less).
84
Indeed, some data presented at sentencing hearings is so farfetched that the appellate court seems almost embarrassed to uphold reliance upon it.
85
Yet it must do so, for in sentencing the traditional norms simply do not apply. We ought not pretend otherwise.
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b. In Federal Sentencing Hearings, “Facts” Are
Not
Facts
Fact finding in a criminal case is grounded in the United States on constitutional bedrock. The right of confrontation of government witnesses,
86
the right to cross examine (“the greatest legal engine invented for the discovery of truth”),
87
and the right to compulsory process
88
are all designed to guarantee the integrity of the fact finding determination. In short, courts find facts based on evidence. Under the Guidelines, however, a criminal defendant is utterly stripped of these rights at sentencing, even though determinations there made may theoretically double or triple the sentence he receives upon the offense of conviction. When appellate courts speak of “facts” found during a sentencing hearing, therefore, they are guilty of far more than misnomer; they are evoking a constitutional process which they must know has no place in today’s federal sentencing.
89
c. Indeed, the Guidelines Are Today
Not
“Guidelines” at All
Following the Feeney Amendment (discussed in Part One, Section l.E below), the so-called Guidelines are not guidelines at all, but rather a complete criminal code, never enacted by the Congress,
90
and “in effect, a mandatory minimum sentencing system.”
91
As a practical, functional matter, district judges are today afforded no discretion to sentence outside the narrow “guideline” range.
92
To call our present federal sentencing structure a “guidelines” system suggests that the district judge still plays a central role. She does not. Other than determining the controlling sentencing factors (and these, of course, can easily be manipulated by the Department as discussed above), the district judge’s role today is purely mechanistic, applying arithmetically the sentencing factors derived from data largely (almost entirely) proffered by the Department. For these reasons, I have commenced routinely to call our sentencing structure the “so-called Sentencing Guidelines” or the “mechanistic approach to sentencing.” Simple honesty requires it.
d.Today, Many Federal Criminal “Trials” Are
Not
Trials at All
With the Department visiting drastic sanctions on those who exercise their
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Sixth Amendment right
93
to trial by jury and the federal plea rate at 96.6% and rising,
94
actual criminal trials are in steep decline. The statistics maintained by the Administrative Office of the United States Courts, however, seek to obscure this fact by recording as “trials” any hearing where evidence is received.
95
Thus, for federal court statistical purposes we count hearings on motions to suppress and even sentencing hearings where testimony is received as full blown “trials” even when they are nothing of the kind.
96
For increased accuracy, the District of Massachusetts keeps its own statistics on criminal trials.
97
While we have thus far collected less than one year’s statistics in one district, our records indicate that 69 percent of our “trials” here in Massachusetts
98
are actual trials. If our experience is typical, the national statistics overstate the number of criminal trials by 31 percent.
99
3. Symbolism
Judging is choice. Choice is power. Power is neither good nor evil, except as it is allocated and used.
Judging in a legal system is professional. Professionals, including judges, represent interests other than their own. One who accepts a professional role in a legal system accepts an obligation to confine the exercise of power within the limits of authority. For each professional role, the limits of authority are defined by law.
100
This is the classic formulation of the judicial office as expressed by my colleague, Judge Robert Keeton. Judge James Zagel addresses the same point more succinctly. “Don’t ignore the law,”
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he says.
101
“If you can’t perpetrate those errors the law requires, then get off the bench.”
102
Judges strive mightily to obey the law. They keep on striving long after that hallmark of judicial action — choice—has been wrested from them. So it is that probation , officers keep churning out detailed pre-sentence reports that describe the offender’s complete social and family history,
103
even though, in the vast majority of cases, none of this makes any difference today — and judges carefully read them as though it mattered.
104
So it is that judges engage in all manner of detailed sentencing hearings even though, in the end, they well know that they must, at minimum respectfully consider the Department’s wide-ranging proffer of data, even if it is utterly without formal evidentiary weight.
105
At least one judge in this District goes so far as to require full eviden-tiary hearings for sentencing, more akin to traditional trials,
106
but that is certainly not the norm. Finally, judges continue solemnly to impose sentence, look the offender in the eye, and explain their grounds even when all the details have been worked out between the Department and the defense attorney.
Most of this is sizzle, not steak; the trappings of judicial decisionmaking without its core reality.
107
Congress does not want to get rid of the symbolism of judicial sentencing, because that conveys to our people that there has been judgment, that there has been reflection, even when there has not.
Today, invocation of the traditional symbolism of sentencing when the underlying reality is so strikingly different has the perverse effect of unduly propping up a system that is “a massive exercise in hypocrisy.”
108
E. From Pinnacle to Nuisance: the Feeney Amendment
At this point, the Court needs to recount the saddest and most counterproductive episode in the evolution of federal sentencing doctrine — the passage of the Feeney Amendment.
109
Even the worst features of the Guidelines had been somewhat ameliorated by
*284
the Supreme Court’s decision in
Koon v. United, States,
110
which preserved a small modicum of discretion in the district court judiciary
111
to depart from the Guidelines in appropriate circumstances.
112
It thus could be said that, despite the sharply reduced role of the district court judge under the Guidelines, she was still at the pinnacle of the sentencing process as all plea bargaining had to take place “in her shadow.”
113
In early 2003, the Department and the leadership of the House Judiciary Committee set out to change this once and for all and further to enhance Departmental control over sentencing. The vehicle was a bill crafted by Jay Apperson, Chief Counsel to the House Judiciary Committee.
114
Its sponsor and principal spokesperson is Representative Thomas Feeney, hence the name the “Feeney Amendment.” The premise of the Feeney Amendment is simple: federal district judges, soft on crime, have disregarded the congressional mandate and made unwarranted departures downward from the Guidelines. Representative Feeney succinctly expressed this premise on the House floor, arguing that downward departures exceeded upward departures by a “33 to 1 ratio ... in order to basically help convicted defendants.”
115
Tragically, the premise of the Feeney Amendment is simply wrong. It is contradicted by Congress’s own study
116
and, what is more reprehensible, the Department well knows that the great majority of downward departures result from its own recommendations, made in order to secure more guilty pleas. Thus, Attorney General Ashcroft’s repeated paroxysms of outraged rhetoric that such downward departures are “illegal”
117
does not square with the fact that his own attorneys were recommending most of them.
118
1. The Legislation
The stark facts of the passage of the Feeney Amendment sadly demonstrate that today the district court judiciary is nothing more than a nuisance to the De
*285
partmental drive to control all aspects of sentencing. They are these:
Congress had before it a carefully crafted, bipartisan bill designed to afford better protections to child victims of kidnaping and sexual assault.
119
This bill contained the popular AMBER alert provisions supported by the law enforcement community.
As originally drafted, the Feeney Amendment severely restricted downward departures to a scant few specifically enumerated grounds, required judges to give specific reasons for downward departures, legislatively overruled
Koon
as to both matters of law and fact by subjecting downward departures to
de novo
review in the courts of appeals, conferred on the Department the right to determine whether an offender’s sentence ought be reduced for acceptance of responsibility, capped at three the judicial members of the seven person Sentencing Commission to further marginalize the judicial voice, and — apparently disgusted at the conduct of this Court
120
— prevented any downward departure after remand upon an alternate theory.
121
The amendment was “added to the PROTECT Act at the last minute and ... kept under wraps until just before [that] bill was scheduled to go to the House floor,”
122
at which time Representative Feeney introduced it and argued in its support.
123
Representative Robert Scott presciently observed that the amendment effectively turned the Guidelines into a scheme of mandatory minimum sentences and decried such drastic changes to federal sentencing policy without any hearings or markups.
124
“The purpose of the sentencing commission is to get away from the floor amendments and the sound bites,” he argued.
125
After a twenty minute debate, the House adopted the Feeney Amendment 357-58.
126
This last minute addition to the PROTECT Act next went to the House-Senate Conference Committee considering that act. The Conference Committee report tweaked the original version slightly.
The outright restriction on downward departures was limited to crimes against children and sex offenses,
127
only the propriety of the ultimate sentencing decision was to be reviewed
de novo
by the courts of appeals,
128
and only the third level of reduction in sentence was to be shifted to the determination of the Department.
129
The chief judge in each district court was made responsible for insuring compliance
*286
with the reporting requirements,
130
and the Sentencing Commission was ordered to study downward departures, develop specific measures to prevent “abuse,”
131
and “ensure that the incidence of downward departures is substantially reduced” in all cases, and report back to Congress.
132
The remaining provisions, applying to all criminal cases, were left substantially unchanged.
The Conference Committee Report modifying the Feeney Amendment engendered minimal discussion within the Congress. Senator Kennedy charged that the amendment was tantamount to enacting mandatory minimum sentences across the board.
133
Senator Hatch maintained that the amendment’s reach was far more modest.
134
Unchallenged — and unheeded— were Senator Kennedy’s observations as a principal drafter of the Sentencing Reform Act of 1984 that the Feeney Amendment fundamentally altered a supposedly “guidelines” structure
135
and Representative William Delahunt’s pointed reference to the fact that the Department itself had requested 79 percent of the nearly 20,000 downward departures granted in 2001.
136
Piggybacked onto the popular and necessary PROTECT Act, the Feeney Amendment passed 98 to 0 in the Senate
137
and 400 to 24 in the House.
138
The President signed the bill into law on April 30, 2003.
139
2. The Judicial Response
Although the judicial response to the Feeney Amendment has been uniformly negative,
140
it would add nothing to this opinion to rehearse it here. Since the proper sentencing of offenders is, however, an ongoing judicial obligation and central responsibility, it is important, before turning to constitutional analysis, to limn this Court’s institutional accommodations to
*287
the Congressional command. These can best be understood with reference to the disparate tacks being taken by other courts and judges.
a. Videotaping Sentencing Hearings
In
In re
Sentencing,
141
Judge Jack Weinstein ordered videotaping of all sentencing hearings due to the Feeney Amendment’s requirement that appellate courts conduct
de novo
review of a district court’s departure from the Guidelines.
142
Judge Weinstein found videotaping necessary to allow appellate courts the opportunity to see the actual individuals they are sentencing because to require the offender and various witnesses to appear again before the appellate court “would be too awkward and time consuming.”
143
In his opinion, Judge Weinstein noted:
The defendant’s words, his facial expressions and body language, the severity of any infirmity, the depth of his family’s reliance, or the feebleness of his build cannot be accurately conveyed by a cold record. Many defendants are ill educated and inarticulate. They do not have the intellectual capacity to articulate, as might a great novelist, what is in their hearts. They are, after all, mere people.
144
In short, videotaping each sentencing hearing will “capture, as much as it is possible to do so, the real world humanity that the district court judge confronts.”
145
Judge Weinstein rejected any notion that he was trying to be provocative in his order: “I’m trying to conform to the statute and assist the court of appeals in doing what it was required to do under the statute.”
146
These measures appear unnecessary in the First Circuit, where the Feeney Amendment has already been construed so as to continue to permit deferential appellate review to the “factual” conclusions drawn by district judges from the records before them during sentencing.
147
b. Sealing Court Documents
In response to the Feeney Amendment’s demand that Congress have access to court related documents, Judge Sterling Johnson, Jr. from the Eastern District of New York ordered the United State Probation Office to seal all presentencing reports, plea agreements, and any relevant sentencing documents of any case pending before him.
148
Furthermore, the Commission is the only party that can unseal the documents, for its eyes only — any other party must apply and receive an order from the Court to unseal the documents.
149
Judge Johnson acknowledges “his public flaunting of the [Feeney Amendment],” but simply stated, “ ‘if Congress wants to make a deck of cards for the judges like
*288
they did for the bad guys in Iraq, then make me the ace of spades.’ ”
150
With all respect to the distinguished judge, here in the District of Massachusetts — save for the necessary security concerns involving individual offenders
151
— we have voted to make the criminal sentencing processes as transparent and public as possible. To that end, contrary to Judicial Conference Policy,
152
we generally make public the statement of reasons for any criminal sentence.
153
We were among the first districts to include criminal proceedings on the federal judiciary’s national — • albeit sadly flawed — electronic database.
154
c. “I am not intimidated but I am obedient.”
Much has been said, and written, following the passage of the Feeney Amendment, concerning its intimidating effect on the federal judiciary.
155
The most poignant example is found in
United States v. Kirsch.
156
Judge Paul Magnuson of the District of Minnesota refused to grant a defendant’s motion for a downward departure, reasoning in part:
The Court believes that the day of the downward departure is past. Congress and the Attorney General have instituted policies designed to intimidate and threaten judges into refusing to depart downward, and those policies are working. If the Court were to depart, the Assistant U.S. Attorney would be required to report that departure to the U.S. Attorney, who would in turn be required to report to the Attorney General. The Attorney General would then report the departure to Congress, and Congress could call the undersigned to testify and attempt to justify the departure. This reporting requirement system accomplishes its goal: the Court is intimidated, and the Court is scared to depart. The reporting requirement has another, more invidious effect. Although the Court has a high regard for the Assistant U.S. Attorney who prosecuted this matter, there will be other cases in which the prosecutor will misuse his or her authority. Due to the requirement of reporting departures that is now in place, Courts are no longer able to stop that abuse of power.
*289
The reporting requirements will have a devastating effect on our system of justice which, for more than 200 years; has protected the rights of the citizens of this country as set forth in the Constitution. Our justice system depends on a fair and impartial judiciary that is free from intimidation from the other branches of government.
157
I know Judge Magnuson well. He is one of America’s foremost jurists, a longtime leader within the federal judiciary, and a mentor and exemplar of judicial independence to the judiciaries of many other nations. If he is “intimidated” and “scared,” we have come to a sorry pass.
I do not feel intimidated. The constitutional protections designed to insure an independent judiciary
158
seem adequate to the present day.' I am, however, obedient to the congressional will. The passage of the Feeney Amendment (with all its demeaning provisions and legislative history) by overwhelming majorities in both houses of the Congress manifests an inveterate hostility by the Congress to
any
downward departures from the so-called Sentencing Guidelines which the Department does not itself approve. Functionally, therefore, these so-called “Guidelines” have become ease discrete minimum mandatory sentences. So be it.
So long as Congress legislates within the broad parameters of the United States Constitution, this Court simply “works for” the Congress, explaining and giving life and effect to its mandates in individual cases. Obedient to the congressional will, therefore, I shall hereafter substitute, for the longstanding rule of lenity in interpreting criminal statutes what I will call a “rule of severity” in exercising my limited discretion as to the remaining permitted grounds for an “unguided” downward departure. I shall, accordingly, grant no “unguided” downward departures save upon the most clear and compelling grounds.
Congress has given unmistakable indication of its intent to legislate to the limits of its constitutional power. The only remaining questions, therefore, are constitutional ones.
F. Conclusion
By collaborating to substitute Department-driven bargaining for adjudication in determining guilt and sentencing,- all three branches of government — legislative, executive, and judicial — have severely corroded core constitutional values. The result is the sorry spectacle limned above. This is what passes for justice in the federal courts today.
It is not.
We can do so much better.
We should.
The Constitution of the United States commands it.
PART TWO: THE CONSTITUTIONAL MANDATE
The Court has described the reality of criminal sentencing under the Guidelines not merely to demonstrate that the current system represents unsound policy,
*290
but also to lay the foundation for a discussion of its failure to comply with the United States Constitution. The Court holds that the Guidelines system violates the constitutional rules announced in
Apprendi v. New
Jersey
159
and
Ring v. Arizona.
160
Although this conclusion does not depend on any empirical assertions, an understanding of how the Guidelines have worked in practice makes it easy to see that the concerns that animate these constitutional rulings are real, not hypothetical.
Moreover, the Guidelines raise other constitutional concerns, and although the Court does not reach these concerns at present, the “facts on the ground” show why it may be appropriate for courts to address them in the future. First of all, it may be that the empirical assumptions under which the Supreme Court upheld the Guidelines against a separation of powers challenge in
Mistretta v. United
States
161
are no longer valid, if indeed they ever were. Second, it may be that the regime produced by the Guidelines, taken together with other changes in federal law regarding aspects of the criminal process, ranging from investigation of crimes to collateral attack on criminal convictions, produces a collective violation of numerous constitutional provisions. Again, an examination of how these provisions operate in practice is necessary to explain why this may be so.
With that, the Court turns to its analysis of
Apprendi
and
Ring.
I. The Guidelines Violate
Apprendi
A. The Consensus View
It may seem well-settled at this point that the Guidelines do not violate
Appren-di,
at least so long as sentencing enhancements do not exceed the maximum sentence available under the statute defining the crime of conviction. All of the Courts of Appeals that have general jurisdiction over criminal matters, including the First Circuit, have held as much.
162
Each of them has reaffirmed this understanding since the Supreme Court decided
Ring
(June 24, 2002), although none of them appears to have considered the possibility that
Ring
might require a different result.
163
The only authority to the contrary
*291
is
State v.
Gould,
164
a Kansas Supreme Court decision invalidating a state sentencing guidelines system that resembles the federal one.
165
This Court has an obligation to follow First Circuit precedent, and, even if there were no First Circuit precedent on point, it would rarely be appropriate for this Court to take a position contrary to the unanimous view of all the other circuits. It does not appear to the Court, however, that the reasoning laid out below has ever been explored, much less rejected, by any federal appellate court in this country. When an appellate court rejects a constitutional challenge to a statute, it does not foreclose all future constitutional challenges. It does not even foreclose all future challenges based on the particular constitutional provision or precedent invoked. Rather, the court rejects a specific argument or arguments as to why the particular constitutional provision or precedent involved renders the statute unconstitutional. When appellate courts emphasize the limits of their constitutional holdings, they are merely making explicit what is always implicit.
Moreover, the Court has a duty to follow the relevant Supreme Court precedents, and those precedents compel the conclusions the Court reaches below. Of course, if the First Circuit had interpreted those precedents in a contrary manner, this Court would be bound to follow the First Circuit’s interpretation, no matter how strongly it might disagree. When the First Circuit has yet to address a particular argument based on those precedents, however, even if it has^ held that those precedents do not invalidate the Guidelines, the courts in this District may entertain such an argument. Obviously, in so doing, this Court must proceed with due regard for the considered view of the First Circuit and its sister circuits regarding related arguments.
B. The Limitations that
Apprendi
and Its Progeny Have Placed on Legislative Definition of Crimes
In determining what consequences
Ap-prendi
and
Ring
have for the Guidelines, the Court must begin by examining what limits the Constitution places on the power of Congress to marginalize the American jury. The Supreme Court is currently considering a similar question in the case of
Blakeley v.
Washington:
166
whether a state legislature has the power to do by statute what the United States Sentencing Commission has done through promulgation of the Guidelines.
167
As
the Court explains, Congress lacks the power to enact the substance of the Guidelines into law, and therefore lacks the power to delegate the enactment of the Guidelines to a governmental agency, even if it is located within the Judicial Branch.
1.
Pre-Apprendi
Case Law
Any explanation of how
Apprendi
and
Ring
apply to the Guidelines must begin with an understanding of earlier case law. The Court therefore begins its discussion
*292
with
In re Winship,
168
where the Supreme Court 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.”
169
As the Supreme Court explained: “The [reasonable doubt] 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.”
170
By'reducing'the risk that an individual will be convicted in error, use of the reasonable doubt standard serves three ends of surpassing importance. First, it protects individuals from unjustified deprivation of their liberty and imposition of the stigma that attaches to criminal convictions.
171
Second, it “is indispensable to command the respect and confidence of the community in applications of the criminal law.”
172
Third, it ensures that “every individual going about his ordinary affairs ha[s] confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.”
173
Since then, the Supreme Court has provided further clarification as tó what constitutes a “fact necessary to constitute the crime with which [an individual] is charged.”
174
The first important divide is between facts that constitute elements of a crime, which the government must prove beyond a reasonable doubt, and facts that constitute a defense to a crime, which a legislature can require a defendant to prove, typically by a preponderance of the evidence. The Supreme Court’s divergent responses to two similar statutory regimes for murder prosecutions demonstrate the principles that inform this inquiry.
Under the Maine approach that the Supreme Court invalidated in
Mullaney v. Wilbur,
175
the law recognized two types of homicide — manslaughter and murder.
176
Both required the killing in question to be unlawful and intentional, but only the latter required the additional element of malice aforethought.
177
Once the government proved beyond a reasonable doubt that a killing was unlawful and intentional, however, malice aforethought was to be conclusively presumed unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation.
178
The Supreme Court adopted Maine’s highest court’s interpretation of Maine law, wherein murder and manslaughter were punishment categories for the single crime of “felonious homicide.”
179
The Supreme Court then explained that Maine law “is concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpa
*293
bility,”
180
and pointed out that “if
Winship
were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect ... [by] redefining] the elements that constitute different crimes, and characterizing them as factors that bear solely on the extent of punishment.”
181
Because
“Winship
is concerned with substance rather than this kind of formalism[,] ... [and] requires an analysis that looks to the operation and effect of the law as applied and enforced by the state, and to the interests of both the State and the defendant as affected by the allocation of the burden of proof,”
182
the Supreme Court held that under Maine’s system, the absence of heat of passion upon sudden provocation would have to be proved by the government beyond a reasonable doubt.
183
In
Patterson v. New York,
184
however, the Supreme Court upheld the validity of the New York system, under which malice aforethought did not constitute an element of second-degree murder, but a defendant could have his conviction reduced to voluntary manslaughter if he proved the affirmative defense that he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.”
185
The Supreme Court emphasized that beyond intent to kill and causation, “[n]o further facts are either presumed or inferred in order to constitute the crime” of second-degree murder.
186
It also noted that the affirmative defense constituted “a substantially expanded version of the older heat-of-passion concept,”
187
and concluded that New York ought not have to choose between “abandoning [affirmative] defenses [within its criminal code] or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.”
188
It distinguished
Mulla-ney
on the grounds that unlike New York, Maine had decided that malice aforethought was a fact of sufficient importance to include it in the definition of murder, and that having done so, it had to prove that fact beyond a reasonable doubt.
189
Still, “there are obviously constitutional limits beyond which the States may not go” in “reallocating] burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes.”
190
It is difficult to see any practical difference between the statutes in
Mullaney
and
Patterson,
so it seems that, read together, they place few substantive limits on the power of legislatures to define “fact[s] necessary to constitute the crime with which [an individual] is charged,”
191
*294
at least as between “elements” and “defenses.”
192
Essentially, under these two cases courts will first determine whether, under the terms set by a State’s law, the legislature has complied with
Winship.
If the State passes that test, then the Court will determine, guided by history, tradition, and the common law, as well as some consideration of practical consequences, whether the State has gone “too far” in arranging its criminal law to evade
Win-ship.
193
The Supreme Court’s approach can best be 'understood as a response to two problems that arise with some frequency when determining what substantive limits the Constitution places on legislative power: the problem of circularity and the difficulty of creating judicially manageable standards. Much like the concepts of “property” and “contract,” “crime” is a creature of positive law, created by the state. It is difficult to determine whether a defense defined in a statute is in “essence” an element of a crime without making some reference to positive law, just as it is difficult to determine whether a regulation constitutes a taking of private property
194
or “impair[s] the Obligation of Contracts,”
195
without looking to the entitlements that the law of property and contract create.
196
Even when one relies on history, tradition, and the common law in evaluating the constitutionality of making a fact a “defense” rather than an element, it can be difficult to separate the familiar from the necessary, and the judicial mistakes typified by
Lochner v. New
York
197
advise one to use caution in asserting that a particular governmental action is beyond the reasonable bounds of legitimacy.
In areas where a circularity problem exists, or where the constitutional limitation is at best vague, it is often difficult to construct judicially manageable standards.
198
With respect to elements and
*295
defenses, history and tradition made clear that the Constitution permitted some facts to be treated as defenses, for which the defendant would bear the burden of proof, but there was little evidence of a particular principle guiding the division between elements and defenses, much less that such a principle was of a constitutional magnitude. Criminal law covers numerous areas of human experience, and is constantly evolving, making a single determinate test for “elementness” all the more elusive. As it has elsewhere, the Supreme Court has set down per se rules to enforce
Winship'''s
protections where it can, and has otherwise fallen back on vaguer standards that permit greater legislative latitude. The division between “elements” and “defenses” falls into this latter category.
In
McMillan v.
Pennsylvania>
199
the Supreme Court, “for the first time, coined the term ‘sentencing factor’ to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge.”
200
In
McMillan,
the Supreme Court upheld a Pennsylvania law that required imposition of a mandatory minimum sentence of five years if a sentencing judge found by a preponderance of the evidence that an individual convicted of one of certain enumerated felonies had “visibly possessed a firearm” while committing the offense.
201
In no case would this minimum sentence exceed the maximum sentence provided for the enumerated felonies.
202
The Supreme Court articulated and applied “a multifactor set of criteria for determining whether the
Winship
protections applied to bar such a system,”
203
emphasizing that constitutional limits existed on States’ ability to evade
Winship
by defining “true” elements as sentencing factors.
204
Specifically, the Supreme Court noted that “[t]he statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive [criminal] offense,” and that the petitioners would have a stronger argument if the finding “exposed them to greater or additional punishment.”
205
Having upheld the statute, the Supreme Court established that, unlike an element, a sentencing factor need not be proved beyond a reasonable doubt, and unlike an element or a defense, it need not be proved to a jury. The Supreme Court has since employed
McMillan’s
approach on several occasions to determine whether a particular fact should be treated as an element or a sentencing factor.
206
As with the division between “elements” and “defenses,” the Supreme Court chose to rely on a permissive and somewhat
*296
vague standard in ensuring that use of sentencing factors to limit the lower end of statutorily prescribed sentencing ranges complies with
Winship. McMillan
left open the possibility, however, that a different sort of rule might govern .situations where sentencing factors affected the upper end of sentencing ranges.
2.
Apprendi
and Its Progeny
In the landmark case of
Apprendi v. New Jersey,
the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
207
The Court considered this a consequence of the Due Process Clause of the Fourteenth Amendment, which prohibits any deprivation of liberty without due process of law, and of the Sixth Amendment, which guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
208
Apprendi
dealt with a New Jersey law that permitted a sentencing judge to enhance a convicted criminal’s sentence upon a finding by a preponderance of the evidence that the offense was committed with a racially biased purpose.
209
Apprendi had been convicted of two second-degree felonies, each of which had a sentencing range of five to ten years, and a third-degree felony which carried a three-to-five-year sentence that would run concurrently with the other two.
210
The trial judge found racial bias, and therefore imposed a twelve-year sentence on one of the second-degree felony counts.
211
Thus, for that sentence, the sentencing factor had led to a higher sentence than was permitted under the criminal statute defining the second-degree felony.
In holding that this regime was unconstitutional, the Supreme Court emphasized that “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”
212
The Supreme Court “agree[d] wholeheartedly with the New Jersey Supreme Court that merely because the state legislature placed its hate crime sentence ‘enhancer’ ‘within the sentencing provisions’ of the criminal code ‘does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense.’ ”
213
*297
The Supreme Court further clarified
Ap-prendi’s
meaning in
Ring v. Arizona,
which addressed the constitutionality of Arizona’s first-degree murder statute.
214
The statute provided that the offense “is punishable by death or life imprisonment as provided by § 13-703.”
215
Under the cross-referenced provision, once a jury found a defendant guilty of first-degree murder, the judge would hold a hearing and determine the presence or absence of enumerated aggravating and mitigating circumstances.
216
Only the judge would make this determination, and in order to impose the death penalty, the judge had to find beyond a reasonable doubt that at least one aggravating factor existed, with “no mitigating circumstances sufficiently substantial to call for leniency.”
217
As the Supreme Court described this regime, “Ring could not be sentenced to death,
the statutory maximum penalty
for first-degree murder, unless further findings were made.”
218
The Supreme Court held that Arizona’s death penalty regime violated the rule announced in
Apprendi.
219
Recalling
Ap-prendi’s
admonition that the inquiry was “one not of form, but of effect,” the Supreme Court stated the following rule: “If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.”
220
It also emphasized that its holding did not rest on the heightened protections that the Constitution affords in death penalty cases; rather, the point was that capital defendants should have the same protections that the
Apprendi
rule affords to all defendants.
221
In
Harris v. United States,
222
decided
*298
the same day as
Ring,
the Supreme Court confirmed the continuing viability of
McMillan
by upholding a statute that imposed a mandatory minimum sentence, below the prescribed statutory maximum, upon a sentencing judge’s finding by a preponderance of the evidence that a particular sentencing factor was present.
223
Justice Thomas, joined by three other members of the
Apprendi
majority — Justices Stevens, Souter, and Ginsburg — dissented, arguing that any fact the proof of which increases the maximum
or minimum
punishment must be proved to a jury beyond a reasonable doubt.
224
Justice Scalia, the fifth member of the
Apprendi
majority, “switched sides” in
Harris,
and, although he did not articulate his reasons for doing so at that time, the concurring opinions in
Apprendi
and
Ring
show why. In Justice Scalia’s
Apprendi
concurrence, he states that the right to jury trial “has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment
must
be found by the jury.”
225
The point is that “the criminal will never get
more
punishment than he bargained for when he did the crime, and his guilt of the crime (and hence the length of the sentence to which he is exposed) will be determined
beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens.”
226
Under Justice Scalia’s approach, the “sentence to which [a defendant] is exposed” is the maximum permissible sentence under the law, not the likely sentence that he would receive.
227
Moreover, Justice Scalia joined Parts I and II of Justice Thomas’s
Apprendi
concurrence, which argued that “the original understanding of which facts are elements was even broader than the rule that the Court adopts today,” and established “that a ‘crime’ includes every fact that is by law a basis for imposing or increasing punishment.”
228
Justice Scalia did not, however, join Part III of Justice Thomas’s concurrence, which urged overruling of
McMillan,
because “the fact triggering the mandatory minimum is part of ‘the punishment sought to be inflicted.’ ”
229
In other words, Justice Scalia agreed that any fact that in practice increases the maximum punishment (without reference to any “statutory maximum”) must be proved to a jury beyond a reasonable doubt, but disagreed that the same should be true of a fact that merely raises the minimum punishment.
230
*299
Taken together, the cases the Court has discussed stand for the following constitutional rule: “the elements of a crime are all facts necessary to impose the maximum punishment to which the defendant is subject.”
231
This is more expansive than the formulation actually stated in
Apprendi,
which only required proof to a jury beyond a reasonable doubt of “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum.”
232
It is hardly surprising that the
Apprendi
Court would articulate its rule in those terms, though, because the sentencing factor there being considered had precisely that effect. In
Ring,
however, the Supreme Court explicitly stated that death, not life imprisonment, was the prescribed statutory maximum sentence, yet that did not excuse Arizona from proving the facts necessary to impose the death sentence to a jury beyond a reasonable doubt. Thus,
Apprendi
and
Ring
require a court to determine the practical effect of a legal regime: if the finding of a fact increases the maximum punishment that a judge can impose by law, that fact must be proved to a jury beyond a reasonable doubt, regardless of what any statute defines as the “maximum punishment.”
Thus, the distinguishing factor on which the shifting majorities in these cases turn is not, as the courts of appeals have apparently assumed, the relation between a sentencing factor and a statutorily prescribed maximum punishment, but rather the practical reality of whether finding a fact increases the punishment to which a criminal defendant is exposed. It is the difference between the Scalia and Thomas concurrences in
Apprendi.
The plain language of
Ring
shows that the
Apprendi
inquiry looks to positive law not for the definition of the maximum available punishment, but rather for the real-life consequences of the finding of a fact. Justice Thomas’s
Harris
dissent and Justice Sca-lia’s
Apprendi
and
Ring
concurrences confirm that this is in fact the understanding of the majorities in
Apprendi
and
Ring,
and Justice Scalia’s concurrence in
Ap-' prendí
and his refusal to join Part III of Justice Thomas’s
Apprendi
concurrence show that his vote in
Harris
is consistent with this understanding. Justice Scalia joined the
Harris
majority not because the sentencing factor in question operated below the statutory maximum, but rather because it created a mandatory minimum without impacting the upper limit of available punishment.
It is a mistake to apply
Apprendi
as though it is as deferential to statutory definitions as the Supreme Court’s element/defense jurisprudence. The Supreme Court’s permissive approach to distinguishing between elements and defenses is in large part a result of the circularity and administrability problems this Court has already discussed. The distinction between elements and sentencing factors, however, suffers from neither difficulty. The historical and legal research of majorities in
Apprendi
and
Ring
has revealed a clear and principled distinction between elements and sentencing factors, based on the practical effect of finding a particular fact.
The element/defense and the element/sentencing factor inquiries that the Supreme Court has prescribed for the low
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er courts are only similar superficially. In each case, the court begins with the positive law in question to determine, how the state has characterized the -fact in question. . If the state characterizes the fact as a non-element (either a defense or a sentencing factor), the court then determines whether such treatment violates the Constitution. • In the .element/defense inquiry, as this Court has already explained, that second determination will in many cases be quite abstract, and deference to legislative decisions is appropriate. . In the element/sentencing factor inquiry, however, the second determination is based on the concrete consequences of finding the fact: does finding this fact increase the available punishment? Put another way, how much power over an individual does proof of this fact give to the state? If the state wants proof of a fact to give it more power over an individual’s liberty, it must submit that fact to a jury and prove it beyond a rea-sonablé doubt. If the state is willing to confíne the effect of proving the fact to lessening a judge’s discretion on the lower end of the sentencing range, or is satisfied with permitting the judge, in her discretion, to decide what effect it should have within the sentencing range, then it generally mhy treat the fact as a sentencing factor. 1 In this latter case, the state need only comply -With the permissive Standards in
Harris
and
McMillan.
Thus, although courts must generally defer to a legislature’s decision to characterize as a sentencing factor a fact that does not increase maximum punishment under the law, courts must not defer to a legislature’s definition of the “statutory maximum” punishment in deciding whether a fact that affects the upper range of punishment is an element.
233
In this latter case, the court merely looks to the positive law to determine the practical effect of finding a fact, and if as matter of law the finding of a fact allows the judge to inflict a greater punishment than she could inflict in the absence of such a finding, that fact is an element and must be proved to a jury beyond a reasonable doubt.
3. The Power of Congress and the Sentencing Commission io Create the Guidelines
Having clarified the nature and scope of the inquiry under
Apprendi
and
Ring,
the Court now considers whether, if Congress were to pass the substance of the Guidelines as a statute, that statute would comply with the Constitution. An examination of the practical effect of the Guidelines demonstrates that it would not. Indeed, the
Apprendi
dissenters stated that the Guidelines would be invalid if the majority’s rule really meant “that any fact (other than prior conviction) that has the effect,
in real terms,
of increasing the maximum punishment beyond an otherwise applicable range must be submitted to a jury and proved beyond a reasonable doubt.”
234
That is essentially how this Court interprets the
Apprendi
rule, and that is essentially the formulation that appears in
Ring.
The Guidelines create a grid of available punishments, with proof of facts regarding criminal history and relevant conduct permitting a court to move “up” through the grid and impose a higher sentence. Thus,
*301
when a criminal defendant is convicted of a crime, the facts on which that conviction was based, whether it was procured through jury trial, bench trial, or plea, only permit the judge to impose a sentence within the range prescribed in the “box” for the crime of conviction. Typically, the greatest punishment permitted within this box is something less than the “statutory maximum,” insofar as that term is understood to mean “the maximum punishment permitted under the statute defining punishment for the crime of conviction.”
As in the Arizona system invalidated in
Ring,
a court cannot impose a sentence higher than that permitted by the crime of conviction box without finding additional facts. To the extent a higher sentence is imposed based on proof of the fact of prior conviction, this complies with
Ring.
To the extent it is based on proof of any other fact, however, it runs afoul of
Ring.
(Obviously, there is no constitutional problem with those sentencing factors that move the court “down” the grid into a lower sentencing range.)
Aggravating sentencing factors under the Guidelines play a dual role; they operate to increase both the minimum and the maximum punishment that the court can impose. If the statutory Guidelines system merely used sentencing factors to impose increasing mandatory minimum punishments, but the “statutory maximum” sentence was potentially available to all individuals who were convicted of a particular crime, the statutory Guidelines would be constitutional, except in the unlikely event that the system ran afoul of
McMillan.
However, because the hypothetical statutory version of the actual Guidelines would permit different maximum punishments for individuals who commit the same crime, based on facts not proved to a jury beyond a reasonable doubt, they would be invalid under
Ring.
If Congress cannot impose a system like the Guidelines by statute, it cannot delegate the power to create such a system to an agency, even if that agency is located in the Judicial Branch.
235
It would make a mockery of the constitutional protections at issue if Congress could circumvent them by giving lawmaking power to an agency.
236
First, it is indisputable that Congress cannot give a governmental agency the power to do things that are, beyond the power of government generally.
237
Congress cannot grant an agency authority to make rules with the force of law that permit “unreasonable searches and seizures,”
238
infliction of “cruel and unusual punishments,”
239
or denial of “[t]he right of citizens of the United States to vote ... on account of race,”
240
for example.
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Congress also cannot delegate to an agency a power that Congress itself does not possess. Congress cannot make an agency or official “the Commander in Chief of the Army and Navy of the United States,”
241
because the power to act as Commander in Chief belongs to the President. Similarly, Congress cannot confer on an agency the power to “nominate, and by and with the Advice and Consent of the Senate, [to] appoint Ambassadors.”
242
Although Congress can create so-called Article I courts, it cannot go so far as effectively to confer Article III judicial power on such tribunals.
243
Nor can Congress give an agency the power to “issue Writs of Election to fill” vacancies that “happen in the Representation from any State,” as the power to issues such writs resides in “the Executive Authority” of the State in question, not in Congress.
244
As this Court has demonstrated, Congress does not have the power to impose a regime like the Guidelines. Although the Court does not reach the question, it may be that imposition of such a regime is beyond the power of government altogether.
245
In either case, Congress cannot give this power to the United States Sentencing Commission.
The Court’s holding would appear to conflict with
Mistretta v. United
States,
246
where by an 8-1 vote the Supreme Court upheld the Sentencing Reform Act and Congress’s delegation thereunder of power to the Sentencing Commission to enact the Guidelines.
Mistretta
was decided long before
Apprendi,
however, and it cannot be said that in 1989, the holding in
Ap-prendi
was in any way anticipated. As far as the
Mistretta
Court was concerned, Congress had power to enact the Guidelines in statutory form, and thus to delegate that responsibility to the Sentencing Commission.
The case law makes clear that congressional competence in an area is a necessary condition for delegation to the Judicial Branch of rulemaking power in that area. In
Sibbach v. Wilson & Co.,
247
the Supreme Court stated that “Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States.”
248
It
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has long been held that Congress has power to adopt necessary and proper measures, which would presumably include delegation of rulemaking power, to effect powers it has under the Constitution:
Congress [is authorized] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. The judicial department is invested with jurisdiction in certain specified cases, in all which it has power to render judgment.
That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by this clause, seems to be one of those plain propositions which reasoning cannot render plainer.
249
The
Mistretta
Court’s own characterization of rulemaking reinforces the understanding that Congress cannot delegate powers it does not have. “[RJulemaking power originates in the Legislative Branch and becomes an executive function only when delegated by the Legislature to the Executive Branch.”
250
In each of the examples of delegation of power to the judicial branch that
Mistretta
provides, Congress had delegated a power that it obviously possessed. There can be little doubt that Congress could promulgate rules of civil procedure, criminal procedure, or evidence if it wished, so creation of the Judicial Conference of the United States and the Rules Advisory Committees that it oversees is similarly appropriate.
251
Likewise, Congress has power to ensure that the Courts function efficiently and properly, so it can reasonably delegate responsibilities to that effect to the Judicial Conference and to the Administrative Office of the United States Courts.
252
It might be argued that delegation to the United States Sentencing Commission of power to promulgate the Guidelines is simply a necessary and proper means of ensuring that the Judicial Branch carries out a task assigned to it by statute. Congress has power tó pass criminal statutes, to assign ranges of punishment for violation of those statutes, and to prescribe factors that courts should consider in placing an individual’s sentence within that range. The Guidelines, the argument would go, simply ensure that the judiciary carries out that task in an effective and consistent manner.
This argument fails, however. The Sentencing Reform Act is only superficially similar to other acts that delegate rule-making authority. Ordinarily, an agency is given authority to “fill in the details” of a broadly worded statutory regime, in a way that Congress could do had it so chosen. If Congress tried to “fill in the details” of the legal regime created by the criminal law and the prescribed sentencing factors in the way the Guidelines do, however, it would run afoul of
Apprendi
and
Ring.
In this case, the price of “operation-alizing” the statutory regime through creation of the Guidelines is proof of certain facts to a jury beyond a reasonable doubt. The difference between delegations to the Securities and Exchange Commission and
*304
the United States Sentencing Commission is the difference between operationalization and circumvention.
It might also be argued, however, that because the courts, through a series of decisions, could create a body of case law essentially equivalent to the Guidelines, the accomplishment of the same end through a Judicial Branch agency would be similarly legitimate. The argument would proceed as follows: It is a function of the Judicial Branch to determine how to exercise its sentencing discretion consistently with the statutory regime. One way the courts could do this would be by assigning determinate limits to the sentences judges impose under particular circumstances. Taken together, these decisions could form a system exactly like the Guidelines. Thus, there could be Supreme Court case law dictating that a sentence outside the range of the appropriate box created by the case law would be an abuse of discretion. Creating a Judicial Branch agency to create a similar set of prescriptions regarding sentencing discretion would be no different than the obviously legitimate practice of allowing an Executive Branch agency to prescribe how the Executive Branch “shall take Care that [particular] Laws be faithfully executed.”
253
As an initial matter, it is not entirely clear that the Supreme Court could create such a system. If our criminal laws were still defined by the common law, rather than by statute, judicial definitions of elements, defenses, and sentencing factors would presumably not be immune from scrutiny under
Apprendi
and
Ring.
The appropriate nature and extent of such scrutiny would certainly raise many difficult questions.
254
The Court need not reach those questions, however, because even if the Supreme Court could effectively enact the Guidelines through precedent, it does not follow that the United States Sentencing Commission can enact them. The first thing to note is that, to the extent the Supreme Court’s power would be part of the judicial power, that power can be exercised only by Article III judges with tenure and salary protections.
Mistretta
itself suggested that the constitutionality of the Sentencing Reform Act would be more doubtful if the Sentencing Commission’s tasks involved an exercise of judicial pow-er
255
A comparison between Executive Branch agencies and Judicial Branch agencies reveals another reason why Supreme Court power to enact the Guidelines through precedent does not permit such power to be vested in the Sentencing Commission. In the Executive Branch, the constitutional protections against abusive conduct are similar for the highest official in that branch — the President — and lower officials. Apart from the Constitution and laws themselves, the primary checks on the President are democratic. If the President acts irresponsibly or unlawfully, he risks either a failure to achieve reelection or impeachment and conviction in the Leg
*305
islative Branch.
256
In the latter case, the President’s removal from office would typically reflect majoritarian sentiment; a majority of the most directly representative branch would have to agree that he should be removed; and two-thirds of the body that represents the constituent members of the Union would have to concur. In any case, impeachments are sufficiently rare that the electoral check is the primary one.
As for executive officials, although they are not elected, they are removable by the President, who as the only official in government elected by the entire nation, in some measure reflects the nation’s judgment. Even in instances where Congress places limitations on the President’s removal powers, as when Congress makes “independent agency” officials removable only for cause,
257
presidential removal remains more like an electoral repudiation than like impeachment — it is still the President who decides whether to seek removal, and whatever reasons the President asserts, his motivation will often be at least partly political. Like the President, executive officials may be removed from office through impeachment. To the extent that the Constitution’s division of authority within government reflects practical concerns about threats to individual liberty, it makes little constitutional difference whether Congress delegates rulemak-ing authority to the President or to an Executive Branch agency.
Things are quite different in the Judicial Branch, however. Although federal judges are subject to impeachment (again, a rarity), they are unelected and largely insulated from majoritarian pressure by tenure and salary protections. Judges are in fact the only officials in the federal government with tenure and salary protections, and it is obvious why. Protection from majoritarian pressures makes it more likely that judges will fairly decide cases in accordance with the Constitution and laws, even when such decisions may be politically unpopular. The Constitution provides important protections for disfavored minority groups and criminal defendants against the political majority, and a judge who must rely on a legislature to remain in office at a particular salary is less likely to enforce those protections. Although these special protections do not always apply to state judges, they are reflective of a historical understanding, shared by both federal and state judges, that judicial independence is a central feature of republican government.
Officials in the Sentencing Commission, however, are not like judges; the protections against abusive behavior are essentially the same as those for executive officials, at least for those in independent agencies. Even when a judge sits on the Sentencing Commission, his tenure as a commission member is governed the same way as that of an independent agency official. Members of the Sentencing Commission have neither life tenure nor salary protections, and are removable for cause,
258
like many independent agency officials. That may render them constitu
*306
tionally competent to engage in the sort of rulemaking that Executive Branch and independent agencies do, but the same cannot be said for rulemaking that substitutes for judicial decisionmaking.
To the extent that judges can place determinate limits on sentencing ranges in a way that Congress cannot, that power stems from the constitutional and historical differences between judges and officials in the political branches.
259
Congress cannot give an individual with all the characteristics of a political branch official this sort of judicial power by merely “locating” that official in the Judicial Branch. This would constitute the sort of legislative control of exercise of the judicial power that was forbidden in
United States v. Klein.
260
In the
Klein
case, the administrator of an estate sought to recover proceeds from the sale of property that government agents had seized from the deceased owner during the Civil War.
261
The administrator had won a judgment in the Court of Claims, under legislation permitting noncombatant rebel owners to bring such claims upon proof of loyalty.
262
The Court of Claims based its decision on an earlier Supreme Court decision holding that one who, like the decedent, had received a presidential pardon must be treated as loyal.
263
Pending appeal, Congress passed an act that rendered pardons inadmissible as evidence of loyalty, and that provided that acceptance, without written protest or disclaimer, of a pardon reciting that the claimant took part in or supported the rebellion would be conclusive proof of disloyalty.
264
The statute also required the Court of Claims and the Supreme Court to dismiss for want of jurisdiction any pending claims based on a pardon.
Id.
The Supreme Court held that the act Congress had passed pending appeal was unconstitutional. The Supreme Court first acknowledged that Congress “has complete control over the organization and existence of [the Court of Claims] and may confer or withhold the right of appeal from its decisions,” under Congress’s power to make exceptions to the Supreme Court’s appellate jurisdiction.
265
Here, however, Congress did not “intend to withhold appellate jurisdiction except as a means to an end[:] ... to deny to pardons granted by the President the effect which this court had adjudged them to have.”
266
Thus, “the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress.”
267
The effect was to permit one of the parties before the Supreme Court, the United States Government, to decide the case in its own favor, and to deny effect to the President’s pardon power.
268
In passing this statute, then, “Congress ha[d] inadvertently passed the limit
*307
which separates the legislative from the judicial power.”
269
The
Klein
case is susceptible of several interpretations, not all of them mutually exclusive, but it demonstrates why the Sentencing Commission cannot exercise what is effectively judicial power. The statute at issue in
Klein
did two things, each of which sheds light on the issue at hand. First, Congress used powers that it clearly has — -to create inferior tribunals, to define the contours of such tribunals’ jurisdiction, to make exceptions to the Supreme Court’s appellate jurisdiction, and to prescribe rules of evidence for the federal courts — to achieve unconstitutional ends. Congress’s power to pass laws necessary and proper to make the judiciary function properly and decide cases based on relevant statutes is thus constrained by other provisions of the Constitution.
270
Second, Congress gave the federal courts jurisdiction to hear a certain class of cases, but then, while those cases were pending, took two steps that effectively required decision for the government. The jurisdictional provisions would have the effect of dismissing cases where, under the prior rule, the claimant would have won. Congress was effectively exercising judicial power; it all but dictated the results in a class of cases (cases in which the government itself was a party, no less). Even if the United States Sentencing Commission is not a “junior-varsity congress,”
271
it is a political body, in the sense that its officials have neither the constitutional protections afforded to judges nor the sense of role that both state and federal judges have in this country, and it is exercising what is, in the first instance, legislative power. The Commission dictates to judges how to exercise their sentencing discretion upon finding particular facts, when the only reason that the Constitution permits such discretion in the first place is that no political body has prescribed how those facts will affect the maximum available punishment. To the effect that non-judges produce rules with the force of law, that is an exercise of legislative power subject to the strictures of
Apprendi
and
Ring.
4. Practical Consequences of
Ap-prendi
One might object that interpreting
Ap-prendi
and
Ring
to invalidate the Guidelines would have little practical effect, because Congress constitutionally could achieve the minimum mandatory sentencing aspects of the Guidelines through functionally equivalent means. The functional equivalence between the invalidated regime and the permissible one would in turn suggest that the Court’s judgment regarding the invalidity of the Guidelines is in error.
The dissenters in
Apprendi,
who predicted the possibility that the decision might undermine the constitutionality of the Guidelines, also argued that the majority’s rule had little meaning, because legislatures could enact functionally equivalent statutes that circumvented it.
272
The majority responded by noting the ways in which the statutory alternatives that the dissenters proffered would both differ in important ways from the statute in ques
*308
tion and would be more difficult to pass into law as a matter of democratic politics.
273
This Court can answer the “functional equivalence” argument here in the same manner that the
Apprendi
majority addressed it with regard to the New Jersey statutes in question. First, it does not seem that any constitutionally permissible system could function in a manner equivalent to the Guidelines. One alternative system would involve sentencing ranges similar to those currently defined in the federal criminal code, and sentencing factors that operated to impose a system of increasing mandatory minimum sentences. Unlike the Guidelines, this regime would potentially expose every criminal to the maximum statutory sentence. Another alternative system would also expose all defendants convicted under a statute to the same maximum sentence, but then style virtually all sentencing factors as mitigating factors that reduce the maximum available punishment. Assuming, perhaps heroically, that such a system would not run afoul of
McMillan, Patterson,
and
Mulla-ney,
the effect would be different from what happens under the Guidelines. Again, every individual convicted under the statute presumptively would be exposed to the maximum statutory sentence, and would have to prove that he did not brandish a weapon, that his acts were not racially motivated, and so on.
Other alternatives exist, but these two are sufficiently representative to make the Court’s second point: these systems might well be more difficult to enact into law than were the Guidelines. Citizens care about the criminal law in part because it determines under what circumstances and to what extent the state can take away a person’s life, liberty, or property. Assume, for example, that one of the alternative regimes discussed above applied to the drug laws, such that a person who possessed a gram of marijuana would presumptively be exposed to the same maximum punishment as a person who possessed a large quantity of cocaine. In a system where sentencing factors only impacted the bottom end of the sentencing range, citizens might well be unwilling to permit the government to treat the former infraction, of which over eleven percent of Americans aged twelve and older are guilty, as harshly as it treats the latter, which is decidedly less common.
274
Similar concerns about giving the government unwarranted power over individual liberty might well prevent passage of a regime where the minor marijuana user was presumptively exposed to the same maximum punishment as the serious cocaine user (and likely dealer), unless and until she could affirmatively prove that her crime was less serious than the latter’s. Even under the Guidelines regime, the Department cannot expose a drug criminal to the maximum available statutory sentence without proving particular facts about him.
Moreover, either of these regimes might run afoul of the moral sense of the community. The most cursory survey of state and federal criminal law reveals how widespread is the belief that punishment should be proportional to the crime. A statute that presumptively subjects individuals
*309
with substantially different levels of culpability to the same maximum sanction might well run afoul of that sense.
On this latter point, the alternatives to the Guidelines might in fact run up against two democratic barriers. The citizenry might refuse to elect a legislator who supported laws that defy community mores, and juries, who are made up of ordinary citizens, might not be willing to convict individuals accused under such laws. In this Court’s experience, juries take their charge seriously and seek faithfully .to apply the law to the facts presented at trial. Still, the Supreme Court has recognized “the jury’s historic function, in criminal trials, as a check against arbitrary or oppressive exercises of power by the Executive Branch,”
275
and there can be little doubt that jury nullification sometimes occurs, typically in response to a sense that a law is unjust or that applying it “correctly” in a particular case would be unjust.
276
For example, one study of 1950s jury trials compared jury verdicts to what the judge would have done: although generally the judge agreed with the jury 75.4% of the time, and in 16% of all cases the jury was more lenient than the judge would have been, in drunk driving cases the agreement rate was only 69%, and in 24% of drunk driving cases the jury was more lenient than the judge.
277
A likely explanation of this discrepancy is that jurors either disagreed that drunk driving should be criminalized or felt that the penalties were too severe.
278
Of course, the extent of these democratic checks on manipulation of the criminal law must remain a matter for speculation. The point is that it is perfectly understandable why the Constitution would exact a price when the legislature seeks to make the existence of a fact grounds for increased punishment. It may be that to avoid that price, citizens are willing to acquiesce in a system of criminal law that imposes the same maximum punishment for criminals with substantially differing levels of culpability. Still, this is a starker choice than would exist if the Guidelines were constitutional.
Apprendi
and
Ring
at least ensure that citizens will understand the true nature of the choice before them: our history and tradition recognize that only proof of a fact to a jury beyond a reasonable doubt can ensure that it is a reliable basis for increasing punishment, and the rule recognized in theses cases eliminates the temptation to treat any less rigorous process as sufficient.
II. Other Constitutional Concerns
A. Separation of Powers
In
Mistretta,
the Supreme Court squarely held that the Sentencing Reform Act did not violate the Constitution, but it is not clear whether the empirical assumptions on which that holding rested are true today. The Court merely expresses con
*310
cerns to be addressed in a future case, however, because it would be inappropriate to do more at this juncture. The Court has already taken a highly unusual step in determining the effect of
Apprendi
and
Ring
on the Guidelines, without meaningful briefing or argument from the parties in these cases. Although, as the Court will explain, that step is justified, the Court should go no further in deciding constitutional questions than is absolutely necessary to decide these cases.
279
The separation of powers question may well be closer than the
Apprendi
one, and it requires evaluation of empirical information that has not been presented to the Court in an adversary proceeding, and is hardly the stuff of judicial notice. Obviously decision of such a question would benefit considerably from briefing and argument as well.
The
Mistretta
Court stated that “had Congress decided to confer responsibility for promulgating sentencing guidelines on the Executive Branch, we might face the constitutional questions whether Congress unconstitutionally had assigned judicial responsibilities to the Executive or unconstitutionally had united the power to prosecute and the power to sentence within one Branch.”
280
This Court has described how, under the Guidelines, the Department has increasingly taken the dominant role in criminal sentencing. The Guidelines have given the Department increased bargaining leverage, dramatically increasing the rate of plea bargains, and the Department is in a position both to manipulate sentences through charge bargaining and to limit the flow of information relevant to sentencing to the judge. It may be that, taken together, the ways in which the Guidelines regime have transferred the power of sentencing to the Department add up to a joining of the power to prosecute and the power to sentence in one branch of government.
Although the separation of powers protects individual liberty, it does so indirectly by ensuring that no branch aggrandizes itself at the other branches’ expense or encroaches on another branch’s performance of its duties.
281
Thus, it would not necessarily violate the separation of powers if increasing prosecutorial power over sentencing were a result of judicial abdication, rather than of aggrandizement or encroachment by the political branches. Here, the judge theoretically has some power to assert her appropriate role in sentencing; with the defendant’s concurrence she can order a pre-plea pre-sen-tencing report and can reject any plea bargain.
282
Through the former, the judge
*311
can somewhat reduce the Department’s illegal fact bargaining. Through the latter, the court can limit distortion of the sentencing regime by effectively forcing a trial, or at least forcing a plea agreement that complies with the letter, if not the spirit, of the Guidelines. (Although the judge does not have much power to .influence the practice of charge bargaining, that is a problem that predated the Guidelines.) • .
Moreover, the transfer of bargaining power to the Department, and the tendency of that transfer to make plea bargains both more common and more likely to arise early in the criminal process, mean that district judges are increasingly losing the aid of their most potentially useful partners in finding the truth about facts relevant to sentencing: the defendants. Defense attorneys, who typically are either appointed or are overworked employees of
It may be, however, that it is not realistically possible for judges to use these powers to prevent the Department from exercising effective control over criminal sentencing. Given the charge bargaining and fact bargaining practices that the Guidelines facilitate and in which the Department clearly engages, a district judge has to order a pre-plea pre-sentencing report for every plea hearing that implicates a possible sentence above the base offense level. The judiciary simply lacks the resources to accomplish this nationally (although it is in this Court’s invariable practice), and, within constitutional limits, funding for the judicial branch is controlled by the political branches. the Public Defender’s Office, have incentives to cease their advocacy once a plea agreement is reached. Presumably, ■ if a defendant has entered into a plea agreement, she has no desire to provide a judge with information that might undermine that agreement and expose her to greater punishment.
The passage of the Feeney Amendment only adds to concerns about executive encroachment and aggrandizement, although it does not apply in these cases. At least one court has held that parts of the Fee-ney Amendment violate the separation of powers.
283
The Court hopes the courts in this District will soon have an opportunity to consider whether decreasing the number of judges on the Sentencing Commission, reducing the availability of downward departures, giving increasing control of sentencing to the Department (through increased control of downward departures for substantial assistance, for example), and creating reporting requirements for judges who depart downwards, have the effect .of aggrandizing the Executive and Legislative Branches or encroaching on the Judicial Branch.
B. The Combined Effect of Various Changes to the Criminal Process
Another question that ought perhaps be considered in a future case is whether, taken together, recent changes in virtually every aspect of our criminal processes violate the Constitution. It is well settled that several actions, none of which individually violates the Constitution, may do so collectively.
284
Similarly, a governmental
*312
action that is constitutional when it burdens one constitutional right may be unconstitutional when it burdens more than one constitutional right.
285
Over the last two decades, and particularly in the last ten years, the federal government has made dramatic changes at virtually every step of the criminal process, many of which burden one or more constitutional rights, and which may have a mutually reinforcing effect that violates one or more constitutional provisions.
286
The criminal process begins with governmental investigation, which is subject to the Fourth Amendment prohibition against unreasonable searches and seizures and the Fifth Amendment prohibition against compelled self-incrimination.
287
There can be no doubt that the USA PATRIOT Act
288
(“PATRIOT Act”) has dramatically expanded the investigatory powers of the federal government, and that expansion in turn potentially raises Fourth Amendment concerns.
289
*313
Once an investigation has led to a criminal indictment,
290
the Constitution guarantees the defendant “the right to a speedy and public trial” by an “impartial jury” of his peers, conducted in the state where the crime is alleged to have been committed, subject to the strictures of the Due Process Clause and the Double Jeopardy Clause, with the right “to be informed of the nature and cause of the allegation^] to be confronted with witnesses against himQ to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.”
291
The many rights attendant to criminal trials demonstrate the central importance that such trials have in ensuring that no person is wrongfully deprived of her life, liberty, or property, yet as the Court has described, the Guidelines have dramatically reduced the use of criminal trials, in part by placing a heavy punitive price on those who exercise their right to a jury trial. Whether the Guidelines system merely burdens the right to a jury trial or in fact violates it, it is cause for concern, particularly in light of the dramatic increase- in the Department’s investigative powers.
292
Once an. individual is convicted of a crime, certain constitutional protections attach to the sentencing process. The Guidelines obviously impact that process considerably. Given that an analysis of the collective effect of changes to the criminal process would be.necessary, only if the Court’s interpretation of
Apprendi
and
Ring
were incorrect, however,. it would be premature even to speculate as to whether the Guidelines would burden constitutional rights in the sentencing process under what a higher court determines is the correct interpretation of those decisions. Still, it should..be noted that giving an agency (such as the Sentencing Commission) enormous control over policy in an area as sensitive as the criminal law raises accountability concerns that should be considered in determining whether the federal criminal process as a whole complies with the Constitution. ,
After séntencing, should the defendant be sent to prison, he may challenge the lawfulness of his confinement through the
*314
writ of habeas corpus.
293
The Great Writ has proved an essential safeguard against legal and factual errors and miscarriages of justice in the criminal process. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
294
however, the availability of habeas review has been curtailed.
295
Although the constitutionality of the statute is not in serious doubt, it may be that the erosion of this safeguard increases the constitutional concerns that changes to earlier stages of the criminal process raise.
Obviously, the concerns the Court has already discussed in regard to the Feeney Amendment would be relevant to this analysis as well. In any case, all of these matters will have to be left for another day.
III. The Problem of Addressing Constitutional Questions Not Raised by the Parties
As a general matter, courts “do not reach for constitutional questions not raised by the parties.”
296
“The courts’ general refusal to consider arguments not raised by the parties ... is founded in part on the need to ensure that each party has fair notice of the arguments to which he must respond.”
297
Such refusal is even more appropriate where the issue to be considered is whether the Constitution invalidates a statute; courts are understandably reluctant to decide such questions.
298
As Thomas M. Cooley once said: “It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.”
299
Courts do occasionally decide questions not raised by the parties, however. If a court determines that it lacks subject matter jurisdiction, for example, it must dismiss or remand the case, regardless of whether any party raised the issue.
300
The Supreme Court has also sometimes reached constitutional questions not raised by the parties, perhaps most famously in
Eñe Railroad Co. v. Tompkins.
301
Usual
*315
ly, but not always, in such cases the Supreme Court will seek further briefing and argument from the parties.
302
The conflict between the Guidelines and the mandate of
Apprendi
and
Ring
first came to this Court’s attention when it encountered a February 2004 Note in the
Harvard Law Review
on the subject.
303
The Court was at that point nearly ready to issue its sentencing opinion in two of these cases, and the sentencing hearings in all of them had occurred some time before that. The Court reexamined the relevant precedent, and it became increasingly clear that the Court could not “conscientiously and with due regard to duty and official oath decline the responsibility” to apply
Apprendi
and
Ring
in its sentencing analysis.
Perhaps it would have been better immediately to have sought further briefing and argument from the parties, but the Department has already appealed two of the sentences here discussed, thus depriving this Court of jurisdiction to do ought but explain itself. A third has been transferred to another judge, and one is not yet ripe for sentencing. As to Jason Pacheco, the remaining defendant to be considered, such a course would involve additional months of delay, beyond the substantial delay that has already occurred, in informing him of his sentence and permitting him to be transferred to the facility where he will serve out the remainder of his sentence. Naturally, the parties will have an opportunity to raise such arguments as they may on appeal, likely with the benefit of the Supreme Court’s decision in
Blakeley v. Washington.
Had the Court not addressed these questions, the defendants would doubtless have raised them on habe-as review anyway, particularly if the Supreme Court decides
Blakeley
the way
Apprendi
and
Ring
suggest it must. Resolution of the questions the Court has addressed would therefore merely be delayed.
There are three aspects to the constitutional questions raised in this case that make the Court’s decision to address them appropriate. The first is that they involve individuals’ liberty and the moral force of the criminal law. If this Court’s analysis is correct, the Guidelines have deprived many if not most of the criminal defendants in the federal system of fundamental constitutional rights that protect them from arbitrary exercises of state power. Although the First Circuit has denied “that the
Apprendi
rule can be characterized as a watershed rule of criminal procedure,”
304
there can be little doubt that the requirement of proof beyond a reasonable doubt and the right to have a jury determine facts that expose a defendant to greater punishment are among the surest guarantees that an individual will not be deprived of her liberty in error. The magnitude of the liberty interests at stake and the need “to command the respect and confidence of the community in applications of the criminal law,”
305
compel the Court to confront the constitutional issues in these cases.
*316
Second, the jury is an institution of central importance in our system of government, and courts must jealously guard against encroachments on the jury’s province. It is the jury to which the founders of this nation turned to fill the role of impartial fact finder. Its primacy is guaranteed by the United States Constitution,
306
and the American jury system is our most vital day-to-day expression of direct democracy.
307
There is no other routine aspect of our civic existence today where citizens themselves are the government. Moreover, beyond involving citizens directly in one of the most fundamental processes of government, the jury system “injects community values into judicial decisions” and “allows equitable resolution of hard cases without setting a legal precedent.”
308
Moreover, jurors’ “very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye.”
309
In Massachusetts, Mme. Justice Abrams has summed up the jury’s enormous contribution as follows:
The jury system provides the most important means by which laymen can participate in and understand the legal system. “It makes them feel that they owe duties to society,
and that they have a share in its government
.... The jury system has for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense.”
310
Without juries, the pursuit of justice becomes increasingly archaic, with elite professionals talking to others, equally elite, in jargon the eloquence of which is in direct proportion to its unreality. Juries are the great leveling and democratizing element in the law. They give it its authority and generalized acceptance in ways that imposing buildings and sonorous openings cannot hope to match. Every step away from juries is a step which ultimately weakens the judiciary as the third branch of government.
311
The Court must therefore confront the issues raised by a regime that has taken just such a step.
The impact of the constitutional questions in these cases on juries suggests a third reason why it is appropriate to address those questions
sua sponte.
Despite the magnitude of the constitutional values at stake, for both criminal defendants and for the jury system, it is exceptionally difficult for a constitutional challenge to the Guidelines to emerge. Even if ordi
*317
nary citizens had standi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2568795. Public record. Not legal advice.