(concurring in the judgment):
While I concur in the affirmance of the conviction, and the remand for resen-tencing, I do not join in the opinions of Judge Bazelon (in which Judge Wright largely joins) or of Judge Wright.
1. I concur in remand for resentencing because the sentencing transcript makes it reasonably clear that the trial judge’s conclusion that the maximum 5-15 year term was appropriate for appellant’s robbery of a bus driver with a toy pistol when 18 years old in essence represented a response to the fact that defendant (falsely) asserted his innocence at trial and persisted in asserting his innocence in the course of his allocution. I base this conclusion on the sentencing transcript concerning both appellant 1 and his co-defendant Alston.2
A
*282It is not easy for me to define why I concur in a judgment of remand. There is a natural, and I believe sound, disposition to adjust sanctions when an offender admits his responsibility. This blends in with a readiness to accept the conclusion that such a person has the stuff that portends future improvement. I dare say that many judges, possibly the overwhelming majority, respond in this way, and I am not ready, at least as of this writing, to say that their approach is inadmissible. The wellsprings of human experience are known to every parent concerned with bringing up children, and who has invoked, consciously or not, Parson Weems’ account of George Washington and the cherry tree.
What we have before us is the difference of degree that amounts to a difference in kind. There is a line between responding favorably to an individual’s sincere expression of remorse, and reacting in a hostile way because of a personal belief in the guilt of one who maintains his innocence and seeks review of the judgment. There are elements in the present case that betoken reversible prejudice in my mind because of the nature of the proceeding and the judge’s comments (see swpra notes 1 and 2). Taking the matter as a whole I conclude that the sentence did not reflect an individuated judgment as to the balance of deterrence and rehabilitation applicable in appellant’s case so much as a broader approach of using a maximum sentence for a defendant who (falsely) asserts his innocence.3
Since that is a sentencing approach that in effect penalizes a defendant for preserving his right of appeal, it cannot be regarded as consistent with law, and the sentence must be vacated. Thomas v. United States, 368 F.2d 941 (5th Cir. 1966).
2. However, I limit my concurrence to that point. Chief Judge Bazelon has seen fit to expatiate on problems of validity in a system providing lighter sentences for defendants pleading guilty. His wide-ranging remarks are not only dictum, but obiter.
This is not one of those cases where a point needs making albeit technically dictum, because it is reasonably clear and the underlying principle is one that illuminates the territory of the holding. I do not pretend to have studied this matter either at the length or in the depth it merits. I am fortified in my resistance to acquiescence in the obiter dicta, on matters neither argued nor considered by the court as a whole, by the fact that the discourse of my brethren seems to me to depart significantly from the conclusions expressed in Standards Relating to Pleas of Guilty.4
This report of the distinguished Advisory Committee on the Criminal Trial,5 *283aided by a capable reporter, that has appeared as part of the American Bar Association Project on Minimum Standards for Criminal Justice, represents a measured reflection, and “intensive consideration” at numerous meetings over 18 months. That report sets forth in section 1.8:
1.8 Consideration of plea in final disposition.
(a) It is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty or nolo contendere when the interest of the public in the effective administration of criminal justice would thereby be served. Among the considerations which are appropriate in determining this question are:
(i) that the defendant by his plea has aided in ensuring the prompt and certain application of correctional measures to him;
(ii) that the defendant has acknowledged his guilt and shown a willingness to assume responsibility for his conduct;
(iii) that the concessions will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;
(iv) that the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;
(v) that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct;
(vi) that the defendant by his plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders.
(b) The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo con-tendere.
The Commentary following this black letter presentation reflects the careful analysis and attention given this difficult matter.
Certainly if a sentencing judge takes into account as a material, though not necessarily decisive, consideration the fact that a defendant “has acknowledged his guilt and shown a willingness to assume responsibility for his conduct” there is no sound objection to disclosure of this attitude. Judge Bazelon says that the making of such a general announcement cannot be approved for the same reasons that a court could not condone actual plea bargaining by a trial judge. With all respect this seems to me to exalt the form of logic over its substance, and to disregard common sense.
I do not deny that there are problems underlying leniency for those who acknowledge responsibility for guilt. The report released in 1967 by the President’s Commission on Law Enforcement and Administration of Justice ac*284knowledge the existence of such problems, and the dangers of crossing the line that penalizes a man for going to trial and appeal. Yet on balance it concludes that sound principles of judicial administration warrant continued use of a system of negotiated pleas, with remedy against perceived abuses lying along lines of enhanced disclosure rather than concealment of sentencing criteria.6
This matter was also discussed in the 1966 Report op the President’s Commission on Crime in the District op Columbia (D.C. Chime Report).7 That Commission stated that the data for the 1950-65 period, and specifically the 1964-65 year, show that offenders who pleaded guilty were more likely to receive a milder sentence than those who were tried. My own impression is that the underlying statistical data, which consisted of averages of sentences for all crimes lumped together, were too gross to permit discriminating evaluation. But in any event the Commission did not dismiss as frivolous or objectionable the point that sentencing could properly take into account the consideration that an offender demonstrates remorse. It rather was concerned that the primary stimulus to leniency in cases of guilty plea was a general motivation to expedite processing of the calendar, skimping the task of individuating punishment to the condition of the offender, and it observed that the mere existence of a plea of guilty does not establish reformative or rehabilitative potentiality.
I see no point in further recourse on my part to the literature. I have said enough, I think, to make it clear that the kind of territory traversed in Judge Bazelon’s opinion is not mapped best with philosophical obiter, but is better tracked either in the train of adversarial adjudication, after brief and argument, or in the broader survey that can be approached in the judicial branch only by recourse at least to all active circuit judges, meeting as the Judicial Council, or the active circuit and district judges assembled as the Executive Session of the circuit’s Judicial Conference.
3. I turn now to the subject of “plea bargaining” by the prosecutor. My objection here to Judge Bazelon’s recourse to obiter for a discourse is heightened by the fact that I see no indication that we are confronted with grievous conditions that impelled a reaching out in order to protect the fabric of administration of justice in the District of Columbia.
The prosecutor “is, in many courts, empowered or even required to make sentencing recommendations. . Much more often than not such recommendations are given great weight by judges.” 8 Whatever conditions may be elsewhere, the U. S. District Judges in the District of Columbia do not seek or receive any recommendations,by prosecutor as to sentences. A defendant who pleads guilty instead of going to trial does not even know which district judge will be assigned the matter for sentencing, since this is governed by a rotation plan instituted last year to avoid judge shopping, in accordance with a recommendation appearing in the D. C. Crime Report (at '389). I do not say this system is necessarily optimum, but certainly it avoids evils of plea bargaining identified in other localities.
Available data indicate that our jurisdiction is if anything particularly unlikely to be beset with undue pressure towards pleas of guilty. Current statistical data show that in our District Court criminal cases disposed of by plea are only 55% of the total disposed of by plea *285or trial.9 In all other U. S. district courts the percentage of dispositions is approximately 82% by plea.10 Possibly this District’s statistics are affected by the common law crimes prosecuted here by the United States Attorney, but I would be very much surprised if metropolitan prosecutors generally showed a lower percentage of guilty pleas. Again, I do not say that our condition is optimum. I merely say I see no indication here of an evil in our District that so cries out-for remedy as to impel obiter discussions without benefit of adversary briefs and argument, empirical analysis of local conditions, or overview of the Judicial Conference or Judicial Council.
As to the particular case there is no evidence of plea “bargaining” by either prosecutor or judge even as to eodefend-ant Alston who pleaded guilty. All that appears is that defense counsel advised Alston to plead guilty if he were in fact guilty because “his sentence would in all likelihood be lighter” (see supra, note 2) — a generalized consideration which seems to me unobjectionable.
4. From the viewpoint of theories of analytical and functional jurisprudence I think I can follow what is meant by the observation of Judge Bazelon that the standards used by the prosecutors in bargaining as to lesser offenses, or dismissal of counts, are “as much a part of the law as the rules applied in court.” But I certainly cannot follow to the conclusion that this reality makes the prosecutor’s approach subject to court review in the same way as other legal decisions. That is indeed a leap that may plunge into rather than across an abyss. The same logic would lead the courts into review of police decisions to use admonitions in some cases and make arrests in others.
It is realistic jurisprudence to recognize that the police and prosecutor have the power to make law, in a real sense. It is equally realistic to recognize that the case system and judicial method are not a felicitous vehicle for survey and improvement of the administration of these officials, at least when what is involved is not the action in a particular case, but the array of actions taken across the board.
I do not say that egregious instances of abuse of police and prosecutional discretion may not be subject to review on constitutional grounds, as in cases where racial discrimination is a governing principle of administration. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 68 S.Ct. 1064, 30 L.Ed. 220 (1886). Conceivably the development of doctrine as to the existence vel non of “voluntary” pleas conforming to Rule 11 of the Federal Rules *286of Criminal Procedure may lead to evolution of some judicial standards. But any extension of judicial doctrine along these or other lines for review of prospective actions should spring from actual cases and problems, should not be thrust forward in obiter expositions, but should await actual instances of ar-bitary prosecutorial actions brought before the court.
5. This, brings me again to the D. C. Crime Report, to see whether the President’s Commission, after investigation of the operation of the prosecutor’s office, observed and brought to our attention some crying evil which shrieks out for attention, without regard to the disabilities that generally attend obiter discussion. The Commission was aware of, indeed it emphasized, the reality that the de facto authority of the prosecutor’s authority to dismiss or reduce charges gives him considerable power, “more control over individual liberty and public safety than any other public official.”11 Because of the prosecutor’s "critical role in the administration of justice in the District of Columbia,” said the Commission, the “work of his office has been discussed in detail.”12
In its Evaluation of Prosecutive Discretion, we find first an emphasis on the importance of even-handed fairness in the prosecutor’s performance. “It is in the area of no papers and dismissals that thousands of District residents find the quality of justice.” And we find agreement by the Commission that in this respect the United States Attorney for the District of Columbia “has an exceptional record.13 The Commission recom*287mended some improvements — an increase in staffs and salaries for the prosecutor’s office; and a system of more instruction, guidance and review of young assistants. But there is not a whisper of a diagnosis that the substantial prosecutive discretion and authority analyzed by the Commission was plagued with ailments that would be aided by injection of judicial blood.
6. Insofar as Judge Wright’s opinion joins in Judge Bazelon’s, it is subject to the same comments. Where the opinions differ, Judge Wright’s may reflect a more realistic approach, but I hesitate to explore the point because of my basic conviction that we should not be engaged at this time in discourse in dicta on broad matters not focused by the trial record and the adversary process, and not made the subject of the overview available from discussion at the Judicial Council or Judicial Conference.
7. I had originally ended my opinion with what has gone before. On rereading I feel impelled to add a thought as to how I visualize the line for improvement of judicial administration.
Society’s interests in both justice and public order would be served by improvement of sentencing approach — general sentencing standards, procedures for application to specific cases, the optimum method of considering guilty pleas and no contests. Few would quarrel with that simple statement. Few would stand content with the often scattershot and contradictory techniques and judgments now in effect, with the permutations of different legislative provisions and acts of judicial discretion.
My objection to the opinions of my brethren today is not a negativistic shrinking from the problems. It rather reflects the conclusion that essentially we are faced with a problem for judicial administration rather than rules implemented by specific appellate case rulings.
It is not easy to know how the judiciary should proceed, and there are important underlying questions of policy that will require legislative attention.
Advisory sentencing councils were explored by the Executive Session of the Judicial Conference of this Circuit. The cognizant committee concluded that the proposal would consume time and effort that would impair the district court’s over-stretched ability to handle the mounting criminal case load.
In May 1967, oúr Conference accepted the committee’s recommendation that this circuit proceed instead by holding a sentencing institute. Authority was duly obtained from the United States Judicial Conference. On November 22 and 23, 1968, this circuit had the benefit of an excellent Sentencing Institute, planned and chaired by Judge Spotts-wood Robinson. There would be value, I think, in other sentencing institutes in due time.
Advisory sentencing councils may be ripe for reconsideration. The field is in flux and time has not stood still. The Sentencing Institute had the benefit of the views of Chief Judge Joseph C. Zavatt, advocating advisory sentencing councils and recounting the experience of the Eastern District of New York.
Since 1967 there have been changes in our District Court’s procedures, including the rotation of sentencing on guilty pleas. Wisdom may be garnered from the experience of the cadre of district judges specially assigned to the cases that arose from the ashes of the fires and looting of April 1968. Pains are being taken to move with utmost feasible dispatch in the processing of this bulge of prosecutions that skewed and threatened to undermine the criminal calendar. Yet the district judges concerned have rightly taken time to consult on common criteria for sentencing, informally rather than by formal councils, but none the less significantly.
Further analysis may also profit from the experience of the Court of General Sessions, which in May 1968 adopted *288a resolution authorizing advisory sentencing councils, on an optional basis, for the civil disorder cases.
Advisory sentencing councils are only one procedure. Other techniques can be developed. Some way can be devised to coordinate with the prosecutor’s role.
The approach, however, is best sought on a broad basis, with substantial consensus among the active circuit and district judges. This approach may be more slow than one would like, but I think it will be more sure and meaningful, in impact on offenders and prospective offenders, than the kind of appellate jurisprudence contemplated in the opinions of my brethren. I also think it is more likely to evolve effectively if the district judges focus together on their prime responsibility, at least under existing conditions, without the sense of being mandated and perhaps hampered by such a jurisprudence.14
. While the essential facts are summarized in Judge Bazelon’s opinion, the full sentencing transcript reenforces this conclusion. Scott produced the letter after hearing the trial judge say that the sentence imposed would be compatible with sentences imposed in other cases. “I have to think of those other men I imposed sentences of five to fifteen years, four to twelve, etc. What would they think if I gave him a light sentence?” (Tr. 10) “Now in view of his attitude and in view of the fact that he lied on the stand, * * * [t]he only thing I will recommend in this case is that he be sent to an institution where young offenders are confined so he might learn a trade and maybe in four or five years he might become a useful citizen.”
When the judge’s law clerk was called to the stand, he said: “I told [defense] counsel that I had heard you mention in court * * * that you are waiting for the day when someone would come into this court and say they were guilty at sentence, that when a jury finds a man guilty and it is clear a man is guilty they only do themselves a disservice by maintaining they are innocent, and consequently it has always been my opinion you view sentencing differently when someone admits guilt rather than maintaining innocent.” (Tr. 16-17)
The court’s confirmation ran (Tr. 18-20) : “I have said more than one time, I have said it in open court, it is a strange thing to me that a defendant who comes up after getting the benefit of good representation, trial before jury, the evidence being overwhelming as it is in this case, I hope sometime I hear some defendant say, ‘Judge, I am sorry, I am sorry for what I did.’ That is what I have in mind. * * * I didn’t tell [the clerk] or anyone else I would throw the book at [defendant] or anyone else if he didn’t come up to confess. * * * He has a perfect right to maintain his innocence from now to eternity if he wants to. I am doing what I think is right.”
. At the outset, the judge, in addressing Scott, noted as to Alston: “The other boy at least pleaded guilty after he heard the government’s evidence — threw the sponge in, so to speak — because he knew he didn’t have a chance.” (Tr. 7) Later Alston said he pleaded guilty “because I was scared and there was a crime that I didn’t do but if I had went on and kept on fighting the case then I would get a lot of time and I thought I’d get probation.” (Tr. 23) Alston’s counsel, from the Legal Aid Agency, testified that he told Alston the chances of acquittal were almost non-existent— “that if he were in fact guilty that he should enter a plea of guilty because, (1) I thought he should not lie in court, and (2) I thought that his sentence would in all likelihood be lighter if he entered a plea if he were guilty rather than go ahead with full trial. And after informing him of this he told me he wished to plead guilty.” (Tr. 24) Alston later sought to withdraw his plea, and said he had been “promised probation” by the police officer, and his lawyer; his lawyer flatly denied this. The court said: “I was going to be a little bit lenient with Alston this morning but in view of his attitude and in view of the fact that the Court feels he is deliberately lying to me. * * * I am not going to give him any consideration, frankly.” (Tr. 29)
. Comment may be appropriate concerning the judge’s remark (quoted supra, note 1) that considerations of equality dictate the same sentence given other defendants. While this consideration may have pertinence, it is of course subject to the overriding consideration that the sentencing discretion is given to the. trial judge precisely so that different sentences may be meted out to different offenders, though all are convicted of the same crime. There is a real inequality — notwithstanding the surface uniformity — in according the same disposition to persons different in essential characteristics, as was noted long ago by Aristotle, and more recently by the President’s Commission on Law Enforcement and Administration of Justice. See its report, The Challenge of Crime in a Free Society (Feb.1967) at 1 and 141.
. Report of the Advisory Committee on the Criminal Trial (Tentative Draft, February 1967). American Bar Association Project on Minimum Standards for Criminal Justice. This report was adopted by the House of Delegates, with minor amendments to §§ 2.1 and 3.3, in the February 19-20, 1968, meeting.
. Chairman: Associate Justice Walter V. Schaefer, Supreme Court of Illinois. Members: U.S. District Judge Leo Brewster (N.D.Texas) ; Prof. Livingston Hall, Harvard Law School; U.S. District Judge Walter E. Hoffman (E.D.Va.); Chief Justice Frank R. Kenison of New Hampshire; Messrs. Charles B. Murray of Washington, D. C. (former Director *283of the Legal Aid Agency for the District of Columbia); John M. Price, District Attorney, Sacramento County, California ; Frank G. Raichle, Buffalo, New York (former president, American College of Trial Lawyers) ; Earl T. Thomas, Jackson, Mississippi (former state circuit judge); and William F. Tompkins, Newark, New Jersey (former U.S. Assistant Attorney General).
. The Challenge of Crime in a Free Society, supra note 3, at 134-136.
. (Gov’t Printing Off. 1966) at p. 384 et seq.
. The Challenge of Chime in a Free Society, supra note 3, at 135.
. The percentage is obtained from 896/1610. The Data Provided by the Administrative Office of the United States Courts (Jan. 1969) show types of disposition for criminal defendants, excluding dismissals :
Convicted on plea or nolo 896
Acquitted by — court 93
—jury 139
Convicted by — court 27
—jury 455
Disposed of by trial 714
Total Í6Í0
. The percentage is obtained from 22055/26862. The Administrative Office data for fiscal 1968 show:
Convicted on plea of guilty or nolo contendere: 22,055
Acquitted by — court 484
—jury 704
Convicted by — court 1184
—jury 2435
Disposed of by trial 4,807
Total 26,862
. See D.C.Crime Report at 326:
“The prosecutor is ‘the pivot on which the administration of criminal justice * * * turns.’ Through his power to ‘no paper’ or dismiss cases he is the final arbiter in a wide range of criminal matters which never reach a judge or jury. Through his negotiation of pleas to lesser offenses he may limit the sentencing discretion of the court and ultimately determine the time within which correctional authorities can attempt to rehabilitate the accused. As a result he probably has more control over individual liberty and public safety than any other public official.”
In support the D.C.Crime Report cited: National Commission on Law Observance and Enforcement, Report on Prosecution, 11 (1931); Newman, Conviction, 4-5, 197-230 (1966); Note, Prosecutor’s Discretion, 103 U.Pa.L.Rev. 1057 (1955); Williams, Through the Looking Glass: The Office of the United States Attorney, 3 Prac.Law. 49 (1957); Moss, The Professional Prosecutor, 51 J. Crim.L., C. & P.S. 461, 463 (1960); Note, Guilty Plea Bargaining: Compromise by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964); Cates, Can We Ignore Laws? — Discretion Not to Prosecute, 14 Ala.L.Rev. 1, 6-8 (1961).
. D.C.Crime Report, at 326.
. See D.C.Crime Report, at 331-332: “Equally as important as prompt prosecution is the prosecutor’s exercise of discretion. It is in the area of no papers and dismissals that thousands of District residents find the quality of justice. It should, to the greatest extent possible, be even-handed and fair. While the Commission recognizes the desirability of prosecutive discretion as a means of individualizing justice, we believe that inexperienced prosecutors need more guidance. The lack of such supervision and more formalized criteria has contributed to “assistant shopping” and the unnecessary referral of cases between the grand jury and the Court of General Sessions.
“The measure of a prosecutor’s office is not entirely cases won, lost or not prosecuted. The office must conduct itself in a manner which enhances public confidence in the law and which plainly demonstrates a just system for moving against the offender and clearing the innocent. In this respect the United States Attorney’s office in the District of Columbia has an exceptional record. Renovation of its offices in the Court of General Sessions Division is one example; witnesses and others coming in contact with the judicial process no longer obtain an impression of indifference and carelessness because of poor physical facilities and congestion. New procedures for screening and reviewing the 14,000 citizens’ complaints, encouraged and supported by the United States Attorney, suggest the beginning of a long overdue effort to reserve the courts for important criminal matters and to channel to the *287proper agencies those essentially social problems associated with low-income urban life in the District of Columbia.”
. Compare Powell v. Texas, 392 U.S. 514, 536-537, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).