Full opinion text
SENTENCING MEMORANDA YOUNG, Chief Judge. Power tends to corrupt and absolute power corrupts absolutely. Lord Acton 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 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. District Judge: Well, isn’t this the system we have today under the so-called “guidelines”? 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 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. Figure 1 says it all. 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,” a disproportionate number of these inmates being African American or Hispanic American. 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. As a result, by the mid-1980s roughly ninety percent of convictions in federal criminal cases were reached through plea bargains. 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, and later held constitutional by the Supreme Court of the United States, the Guidelines were intended to cabin in unwarranted judicial discretion in sentencing while retaining sufficient flexibility to ensure individualized, just sentences in every case. 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. Still, it was believed that a robust and independent judiciary could hold any excesses in check. 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” 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. In its place, the Guidelines introduced a concept known as “real offense sentencing,” based on an offender’s “relevant conduct.” 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. 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, 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. 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. Even more bizarre, federal criminal sentences may today be based on conduct of which an offender has been formally acquitted 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. The Department today has the power— and the incentive — to ratchet punishment up or down solely at its discretion. It does 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. 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 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. 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 — 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 than straight talk. Under the Guidelines, an offender is eligible for a discount on his sentence if he “accepts responsibility” for his crime. 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. 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 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. 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.” 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” and gather to itself the remaining aspects of sentencing discretion while 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. 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. But this appears to be sound and fury, signifying little. Charge bargaining continues in this District as before and Department attorneys seem to know little about the centralized permitting process Attorney General Ashcroft has implemented. 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). This notification need not be through the constitutional processes of a grand jury, simple written notification to the court and the defendant is sufficient. 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. 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. Even so, the discount for those who are “safety valve” eligible is not left to judicial discretion, but is prescribed by the Guidelines. 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. 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. 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 Department today is firmly in charge of the safety valve. It is activated when the Department wishes and withheld when it does not. 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. As Figure 2 makes clear, substantial assistance departures are substantially unprincipled. Utterly within the Department’s control, they are, by far, the major ground for downward departure from the Guidelines. 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 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, its potential racism, its moral bankruptcy, and its inability to produce uniformity given the diversity of individual circuit jurisprudence and legal culture, 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. 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, 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, 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. More serious, of course, is the constitutional command that the national law apply equally throughout the United States. Offenders are properly complaining of equal protection violations in view of the “here it applies, here it doesn’t” nature of the Guidelines. 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).” 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 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, statistics suggest its pervasiveness. Its likelihood increases due to the ever increasing disrepute of the entire Guidelines structure in the eyes of the judiciary. 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, 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, but the First Circuit accepted the Department’s all too facile explanation and failed to explore the issue. Again, charge bargaining coupled with prohibited fact bargaining drove the cruelly disparate sentences in United States v. Thurston, but the Court of Appeals again failed to detect it, focusing instead on the perceived inadequacies in the district court’s sentencing rationale. 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” 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, the judiciary’s actual performance after the Supreme Court had established their constitutionality 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.” 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. Indeed, to Congress’ apparent surprise, its own investigators point out that downward departures from the Guidelines are driven more by the Department than by any other source. 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. This is a shibboleth. The rules of evidence by their express terms do not apply to sentencing hearings. Instead, courts today must base their conclusions on a mishmash of data including blatantly self-serving hearsay largely served up by the Department. Courts have little chance independently to review this data (and soon they will have much less). Indeed, some data presented at sentencing hearings is so farfetched that the appellate court seems almost embarrassed to uphold reliance upon it. Yet it must do so, for in sentencing the traditional norms simply do not apply. We ought not pretend otherwise. 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, the right to cross examine (“the greatest legal engine invented for the discovery of truth”), and the right to compulsory process 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. 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, and “in effect, a mandatory minimum sentencing system.” As a practical, functional matter, district judges are today afforded no discretion to sentence outside the narrow “guideline” range. 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 Sixth Amendment right to trial by jury and the federal plea rate at 96.6% and rising, 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. 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. For increased accuracy, the District of Massachusetts keeps its own statistics on criminal trials. 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 are actual trials. If our experience is typical, the national statistics overstate the number of criminal trials by 31 percent. 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. 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,” he says. “If you can’t perpetrate those errors the law requires, then get off the bench.” 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, even though, in the vast majority of cases, none of this makes any difference today — and judges carefully read them as though it mattered. 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. At least one judge in this District goes so far as to require full eviden-tiary hearings for sentencing, more akin to traditional trials, 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. 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.” 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. Even the worst features of the Guidelines had been somewhat ameliorated by the Supreme Court’s decision in Koon v. United, States, which preserved a small modicum of discretion in the district court judiciary to depart from the Guidelines in appropriate circumstances. 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.” 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. 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.” Tragically, the premise of the Feeney Amendment is simply wrong. It is contradicted by Congress’s own study 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” does not square with the fact that his own attorneys were recommending most of them. 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 Departmental 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. 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 — prevented any downward departure after remand upon an alternate theory. 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,” at which time Representative Feeney introduced it and argued in its support. 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. “The purpose of the sentencing commission is to get away from the floor amendments and the sound bites,” he argued. After a twenty minute debate, the House adopted the Feeney Amendment 357-58. 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, only the propriety of the ultimate sentencing decision was to be reviewed de novo by the courts of appeals, and only the third level of reduction in sentence was to be shifted to the determination of the Department. The chief judge in each district court was made responsible for insuring compliance with the reporting requirements, and the Sentencing Commission was ordered to study downward departures, develop specific measures to prevent “abuse,” and “ensure that the incidence of downward departures is substantially reduced” in all cases, and report back to Congress. 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. Senator Hatch maintained that the amendment’s reach was far more modest. 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 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. Piggybacked onto the popular and necessary PROTECT Act, the Feeney Amendment passed 98 to 0 in the Senate and 400 to 24 in the House. The President signed the bill into law on April 30, 2003. 2. The Judicial Response Although the judicial response to the Feeney Amendment has been uniformly negative, 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 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, 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. 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.” 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. 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.” 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.” 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. 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. 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. 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 they did for the bad guys in Iraq, then make me the ace of spades.’ ” With all respect to the distinguished judge, here in the District of Massachusetts — save for the necessary security concerns involving individual offenders — we have voted to make the criminal sentencing processes as transparent and public as possible. To that end, contrary to Judicial Conference Policy, we generally make public the statement of reasons for any criminal sentence. We were among the first districts to include criminal proceedings on the federal judiciary’s national — • albeit sadly flawed — electronic database. 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. The most poignant example is found in United States v. Kirsch. 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. 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. 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 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, 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 and Ring v. Arizona. 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 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. 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. The only authority to the contrary is State v. Gould, a Kansas Supreme Court decision invalidating a state sentencing guidelines system that resembles the federal one. 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: whether a state legislature has the power to do by statute what the United States Sentencing Commission has done through promulgation of the Guidelines. 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 with In re Winship, 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.” 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.” 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. Second, it “is indispensable to command the respect and confidence of the community in applications of the criminal law.” 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.” 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.” 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, the law recognized two types of homicide — manslaughter and murder. Both required the killing in question to be unlawful and intentional, but only the latter required the additional element of malice aforethought. 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. 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.” 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 culpability,” 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.” 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,” 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. In Patterson v. New York, 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.” 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. It also noted that the affirmative defense constituted “a substantially expanded version of the older heat-of-passion concept,” 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.” 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. 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.” 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,” at least as between “elements” and “defenses.” 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,