concurring in part and dissenting in part:
I am tempted to say that for all the reasons my colleagues advance in support of their opinion, I dissent. I refer to their remarkable conclusion that it was proper for the judge to increase Mr. Jones’s sentence because he chose to exercise his constitutional right to trial rather than acknowledging his guilt in advance and sparing everyone the bother. What disturbs me also is that this is almost a contrived case. The district court added six months to a 120 month sentence simply to raise the question that my colleagues leap to decide.
There is no dispute among us that the trial judge properly admitted the disputed evidence and testimony. I disagree vigorously, however, that a defendant must pay for exercising his constitutional right to trial. By endorsing a practice that has been deemed unconstitutional by every other circuit to consider it, and by overruling a series of carefully reasoned cases from our own court, my colleagues have created a circuit split of the most dramatic kind. They have done so by finding in a long line of Supreme Court cases a “tension” that no other circuit has detected, and that the Court itself has denied. And they have casually denied the distinction between prosecutors and judges that the Supreme Court and the other circuits have found crucial. In an area calling for great delicacy, my colleagues have proceeded vigorously to exacerbate an unnecessary constitutional conflict that the trial judge went out of his way to create:
I would like to know whether or not there is some constitutional error I commit by recognizing that the case was taken to trial, albeit a matter of constitutional right to take the case to trial, rather than acknowledging in advance the guilt that was obviously supported by the proof.
Sentencing Transcript at 12-13.
Before today, this circuit and every other circuit to address the issue had confidently concluded that it is improper for a. trial judge, on his own initiative, to impose a harsher sentence on a defendant who chooses to exercise his constitutional right to trial rather than pleading guilty. See Scott v. United States, 419 F.2d 264, 269 (D.C.Cir.1969) (judge’s statement that “[i]f you had pleaded guilty to this offense I might have been more lenient with you” places “clearly impermissible” price tag on the right to fair trial); United States v. Crocker, 788 F.2d 802, 809 & n. 3 (1st Cir.1986) (“The judge’s remarks on how the presentation of a frivolous case and the ensuing waste of judicial resources could be factors in determining the sentence to be imposed are sufficient to establish that there was a reasonable likelihood of vindictiveness”); United States v. Hutchings, 757 F.2d 11, 14 (2d Cir.1985), cert denied 472 U.S. 1031, 105 S.Ct. 3511, 87 L.Ed.2d 640 (1985) (“ ‘augmentation of sentence’ based on a defendant’s decision to ‘stand on [his] right to put the Government to its proof rather than plead guilty’ is clearly improper”); United States v. Wright, 533 F.2d 214, 216 (5th Cir.1976) (“a trial court may not pressure defendants, who have been found guilty following a trial by jury, to confess their guilt prior to the imposition of sentence”); United States v. Frost, 914 F.2d 756, 774 (6th Cir.1990) (“it is improper for a district judge to penalize a defendant for exercising his constitutional right to plead not guilty and go to trial, no matter how overwhelming the evidence of his guilt”); Hess v. United States, 496 F.2d 936, 938 (8th Cir.1974) (“This circuit has joined a host of other courts in recognizing that whether a defendant exercises his right to trial by jury to determine his guilt or innocence must have no bearing on the sentence imposed”); United States v. Monroe, 943 F.2d 1007, 1018 (9th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1585, 118 L.Ed.2d 304 (1992) (“where a disparity in sentences suggests that a defendant who pleaded not guilty was being penalized for exercising his constitutional right to a trial, the reasons for the disparity must appear in the record”); United States v. Roe, 670 F.2d 956, 973 (11th Cir.), cert. denied 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982) (“the sentencing court may not present the defendant with a choice between admitting his guilt and enduring a harsher sentence for failing to do so”). Cf. United *940States v. Heubel, 864 F.2d 1104, 1111 (3d Cir.1989) (sentencing court may not use defendant’s failure to waive Fifth Amendment privilege against self-incrimination “as negative evidence to penalize” him in deciding appropriate sentence).*
Deciding a case contrary to a unanimous consensus among the circuits is heady business, but the reasons my colleagues offer are unusually unpersuasive. They claim to have discovered a “tension” that no other circuit has detected between the Supreme Court’s early cases forbidding retaliatory sentences by judges, and its later cases permitting plea bargaining by prosecutors; as a result, they conclude dismissively that the law of this circuit “can lay no claim to our loyalty,” and that “we can ignore” the opinions of our sister circuits. Maj.Op. at 935-36. But there is a reason no other circuit has detected the tension: the Supreme Court explicitly denies it. In a long line of cases, the Court has emphasized that while prosecutors may provide incentives for guilty pleas in the course of plea bargains, judges may not “unilaterally” impose penalties on defendants who have exercised their right to trial.
Although my colleagues detect an “in-consisten[cy] that must be reconcile^]” in the line of seminal cases that began with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and ended with Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Supreme Court and every other circuit have emphasized the consistency. “To punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’ ” Id. at 363, 98 S.Ct. at 668. “In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes, the Court has recognized this basic — and itself uncontroversial — principle.” United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982).
The “inconsistency” that my colleagues imagine flows from the fact that they characterize the cases at a sweeping level of generality, and ignore the Court’s careful distinctions between different state actors (judges, juries, and prosecutors) and the different contexts in which they act (before, during, and after trial). These distinctions have been critical to all the Supreme Court and circuit decisions involving plea bargaining and sentencing discretion.
My colleagues read Pearce and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), to “suggest that all practices tending to deter the exercise of a right to trial or appeal by attaching a risk of heavier punishment constitute forbidden ‘vindictiveness,’ ” and then conclude that this “broad reading” is inconsistent with Bordenkircher. In fact, the holding of the early cases was far narrower, and Bordenkircher explicitly denies the tension.
Pearce focused on the danger that sentencing judges would punish defendants for having successfully attacked their first convictions, and held that “due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” 395 U.S. at 725, 89 S.Ct. at 2080. Blackledge held that “[t]he lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of vindictiveness.” 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). Unlike juries, “which could hardly have any motivation to discourage defendants from taking appeals,” prosecutors (like judges) have a considerable stake in discouraging appeals for retaliatory reasons. Id. at 27-28, 94 S.Ct. at 2102-03.
In Bordenkircher, the Court considered for the first time an allegation of vindictiveness on the part of a prosecutor during plea bargaining, rather than a prosecutor after trial (Blackledge) or a judge during sentencing {Pearce). The Court held that the due process clause did not prohibit a prosecutor from carrying out a threat, made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged. In finding no due process violation, the Borden-kircher Court distinguished Pearce and Blackledge:
*941In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation ‘very different from the give-and-take .negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.’
434 U.S. at 362, 98 S.Ct. at 667 (citation omitted).
Explicitly reaffirming Pearce, Jackson, and Blackledge, the Court emphasized that “in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” Id. at 363, 98 S.Ct. at 667. Its narrow conclusion:
We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of foregoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment. Id. at 365, 98 S.Ct. at 669 (emphasis added).
In United States v. Goodwin, the Court reaffirmed the narrow Bordenkircher holding, and reviewed all of its careful efforts to distinguish Pearce and Blackledge by emphasizing the different motives of prosecutors and judges before, during, and after sentencing. 457 U.S. 368, 377-78, 102 S.Ct. 2485, 2491-92, 73 L.Ed.2d 74 (1982).
My colleagues, in a single, conclusory sentence at the end of their opinion, dismiss as “formalistic” the distinction between prosecutors before trial and judges after trial that the Supreme Court has repeatedly identified as constitutionally crucial. Maj. Op. at 939-40. This is the extent of their analysis. They invoke Bor-denkircher and Goodwin for the sweeping proposition that “the interests of preserving prosecutorial and judicial resources” might allow inducements for guilty pleas to be provided unilaterally by a judge rather than through bargaining, by a prosecutor. Maj.Op. at 934. But this turns the plea bargaining cases on their head. None of the factors that the Bordenkircher or Goodwin Courts found decisive in approving plea bargaining — namely “give-and-take negotiation ... between the prosecution and defense, which arguably possess relatively equal bargaining power,” 434 U.S. at 362, 98 S.Ct. at 667 — are present when a judge unilaterally imposes a heavier sentence on a defendant who has refused to plead guilty. It is hard to see the analogy between the judicial role in sentencing and the prosecutor’s role in plea bargaining. What is the judge giving? The constitutional right to trial? On the contrary, this looks much more like the “unilateral imposition of a penalty upon a defendant who has chosen to exercise a legal right” which the Bordenkircher and Goodwin courts explicitly rejected as unconstitutional. Id.
Before today, this circuit had no trouble recognizing the constitutional difference between judges and prosecutors. The most sensitive discussion of thé difference occurs in Scott v. United States, 419 F.2d 264 (D.C.Cir.1969), which my colleagues overrule without examining its reasoning on the grounds that it “predates the more important Supreme Court cases on plea bargaining.” Maj.Op. at 936. In fact, the reasoning of Scott is fully consistent with the reasoning of the later Supreme Court cases. Scott’s emphasis on the relative bargaining power of judges, prosecutors, and defendants anticipates the similar discussion in Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 667:
[Wjhatever the propriety of plea bargaining between prosecutors and defendants, the peculiarly sensitive position of the trial judge renders involuntary any guilty plea induced by commitment from the bench.... [Tjhe ‘unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison’ ... demand[ ] that the judge not become a participant in the bargaining process.
419 F.2d at 273 (citation omitted).
And Scott’s emphasis on the fact that judges who induce guilty pleas may lose *942their appearance of impartiality anticipates Goodwin’s presumption of invalidity when there is a “realistic likelihood of ‘vindictiveness,’ ” 457 U.S. at 384, 102 S.Ct. at 2494:
If inducements are to be offered for guilty pleas, there are strong reasons why the court should not be the party to offer them. The trial judge may sacrifice his ability to preside impartially at trial by becoming too involved with pretrial negotiations. Even if he does not, it may so appear to the defendant. It is important not only that a trial be fair in fact, but also that the defendant believe that justice has been done. The accused may fairly doubt this if he thinks the judge begrudges him the exercise of his right to trial.
419 F.2d at 273; see also United States v. Crocker, 788 F.2d 802, 809 n. 3 (1st Cir.1986) (“the Court’s warning that it thought the defendant might be ‘imposing upon the time and resources of the Court,’ and that it would take this fact into account at sentencing, might cause the defendant to question the judge’s impartiality”).
My colleagues acknowledge that judges who warn of the consequences of going to trial may appear vindictive rather than impartial, Maj. Op. at 936 n. 3. But they follow this with the purely conclusory statement that “Supreme Court precedents plainly do not invalidate sentencing differentials aimed at encouraging guilty pleas.” Maj. Op. at 935.
Since Scott discusses the difference between plea bargaining by prosecutors and differential sentencing by judges at great length, I find it peculiar that my colleagues overrule it on the grounds that it fails to consider the difference. But the other reasons they offer for overruling Scott are even more unconvincing. First, they suggest that the case banned “any judicial consideration of the defendant’s choice between plea and trial,” Maj. Op. at 936. In fact, Scott emphasized the constitutional difference between a trial judge “participating” in the plea bargaining process and a judge merely “ratifying” an agreement already reached between the accused and the prosecutor. 419 F.2d at 275. Second, they suggest Scott is inconsistent with Blackledge’s conclusion that the prosecutor is at least as likely a source of vindictiveness as a judge, Maj. Op. at 936, quoting 417 U.S. at 27, 94 S.Ct. at 2102. In fact, Blackledge says nothing about the relative vindictiveness of judges and prosecutors, but merely stresses that both have an incentive to discourage appeals after conviction. In any event, the Scott and Blackledge distinction between judges and prosecutors is precisely what my colleagues ignore.
Finally, my colleagues suggest that Scott is inconsistent with Roberts v. United States, which upheld judicial consideration of the defendant’s failure to cooperate with the government. Maj. Op. at 935-36, quoting 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980). The relevance of this case escapes me. The Roberts Court stressed that there was no fear of retaliation, or burden on the defendant’s Fifth Amendment right, because the government questioning to which he failed to respond was not aimed at incriminating him. 445 U.S. at 562, 100 S.Ct. at 1365 (Brennan, J., concurring). No circuit has ever invoked Roberts to question the black-letter rule that a sentencing court may not use a defendant’s failure to waive his fifth amendment privilege against self incrimination “as negative evidence to penalize” him in deciding appropriate sentence. See, e.g. States v. Heubel, 864 F.2d at 1111.
But there is no point in continuing to object to my colleagues’ characterization of the cases. The linchpin of their opinion is the inconsistency they detect between the Supreme Court’s plea bargaining cases and its cases barring vindictive sentencing. Once that tension is denied, as the Supreme Court has denied it, then the unanimous judgment of our sister circuits must be respected rather than ignored.
Although I am unpersuaded by my colleague’s treatment of the plea bargaining cases, I acknowledge that one Supreme Court decision initially gave me more pause: Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). Corbitt upheld a New Jersey statute re*943quiring a life sentence for first degree murder when a defendant went to trial, but permitted the judge to impose a lower sentence if the defendant pleaded nolo. I see clear differences, however, between Cor-bitt and our case. Although Corbitt held that a state legislature may encourage guilty pleas by offering substantial benefits in return for the plea, id. at 219, 99 S.Ct. at 497, the opinion does not suggest that a trial judge could offer the same benefits on his own initiative, without explicit statutory authorization. On the contrary, in Corbitt, the constitutionality of the policy turned on the fact that it was endorsed by the legislature, rather than imposed on the initiative of the judge. The Court detected “no element of retaliation or vindictiveness,” id. at 223, 99 S.Ct. at 499 — and thus reaffirmed rather than questioned the essential focus of Pearce.
The fact that legislatures — setting forth clear, generally applicable, and prospective procedures — are much less likely than judges to be acting vindictively against individual defendants satisfies me that there is no serious tension between Corbitt and Pearce. By the same logic, it is clearly permissible for Congress, through the Sentencing Commission Guidelines, to direct a judge to consider acceptance of responsibility as a factor in sentencing, but impermissible for the judge on his own initiative to increase the sentence of a defendant who refuses to plead guilty. My colleagues’ only response is that judges retain some discretion in the schemes approved by Cor-bitt and Congress, Maj. Op. at 937-38; but this begs the constitutional question. As the Corbitt Court noted, judges retain wide discretion under most plea bargaining schemes to accept or reject the prosecutor’s recommendation, and to impose a variety of punishments. 439 U.S. at 224 n. 14, 99 S.Ct. at 500 n. 14. But the Court found it decisive that the discretion authorized by the New Jersey Legislature, like “plea bargaining by state prosecutors[,j operates by virtue of state law.” Id. In the scheme my colleague’s approve, by contrast, the judge is guided and restrained by nothing more than his own whims and policy preferences.
The Corbitt Court, finally, suggested another distinction between legislatures and judges that calls into question my colleagues’ central premise. Because of the presumption that citizens know the law, there was no suggestion that Mr. Corbitt “was not well counseled or that he misunderstood the choices that were placed before him.” Id. at 225, 99 S.Ct. at 500. As in Bordenkircher, “the State did not trespass on the defendant’s rights ‘so long as the accused [was] free to accept or reject’ the choice presented to him by the State.” Id. (citation omitted). In this case, by contrast, Mr. Jones was not free to accept or reject the choices presented by the state, because no choices were presented. The prosecutor refused to plea bargain with Mr. Jones, and the district court surprised everyone by announcing its novel policy of differential sentencing at the end of the trial, after it was too late to have any influence on Mr. Jones’s decision to plead guilty. Furthermore, while defendants are presumed to know the law (codified in prospective statutes of general applicability), they cannot be presumed to know the sentencing predilections of individual judges. In short, the empirical foundation of my colleagues’ conclusion — that differential sentencing by judges will, in fact, induce defendants to plead guilty — is flawed, and the sentencing policy is not only unconstitutional but illogical.
At the end of their opinion, my colleagues move casually from their initial position — that the state’s interest in conserving resources permits plea bargaining between prosecutors and defendants — to a far more radical position — that the same interests require judges, on their own initiative, to impose heavier sentences on defendants who are denied the opportunity to bargain in the first place. Maj. Op. at 938. The consequences of the conclusion are sweeping. It suggests that every trial judge must balance, as an element of the sentence, the cost of using up judicial resources against the value of the constitutional right to trial. And I cannot accept my colleagues’s startling suggestion that the interest in “conserving prosecutorial and judicial resources ... can be pursued only if trial judges engage in differential sentencing.” Id. (emphasis added). The *944prosecutor’s promise of a minimum sentence in exchange for a guilty plea, and the possibility that a judge will impose a higher sentence based on information that is revealed at trial, see, e.g. Alabama v. Smith, 490 U.S. 794, 801, 109 S.Ct. 2201, 2205, 104 L.Ed.2d 865 (1989), is enough to make the plea bargaining attractive to risk-averse defendants.
So this is the novelty of my colleagues’ opinion: they dismiss as “formalistic” the distinction between judges and prosecutors that the Supreme Court and every other circuit have found crucial. And although the Court has forbidden only sentencing disincentives unilaterally imposed by judges after trial, not those that result from bargaining with prosecutors before trial, my colleagues refer disparagingly to a “triad of decisions, now nearly twenty years old [which] might seem to draw in question any sentencing practice that disfavored the decision to go to trial.” Maj. Op. at 933 (emphasis added). I was not aware that Supreme Court decisions have a twenty year shelf-life, or that subordinate courts have any business modernizing venerable precedents by identifying tensions that the Supreme Court and every other circuit have explicitly denied. Until the Supreme Court itself chooses to revisit its precedents, I would join the unanimous judgment of our sister circuits and follow the law of the land. I dissent.
Before: MIKVA, Chief Judge; WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.ORDER
Oct. 22, 1992.
Appellant’s Suggestion For Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service voted in favor of the suggestion on the question of the sentence imposed upon appellant. Upon consideration of the foregoing it is
ORDERED, by the Court en banc, that appellant’s suggestion is granted. The aforementioned issue will be considered and decided by the court sitting en banc.
It is FURTHER ORDERED, by the Court en banc, that the judgment of the Court filed herein on August 14, 1992 is vacated insofar as it pertains to appellant’s sentence.
A future order will govern further proceedings.