with whom Judge WALD, Judge HARRY T. EDWARDS, and Judge SENTELLE join, dissenting:
The trial judge, with commendable candor, made crystal clear why Mr. Jones had six months added to his sentence. The judge stated:
Because ... the case did go to trial, I am going to add an additional six months to the guideline sentence that I intend to impose.... I am articulating this so that anybody that wishes to take it to the ... Court of Appeals may do so.... 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 13 (emphasis added).
For reasons that I do not understand, my colleagues in the majority insist on mischar-acterizing what the district judge actually did. They insist that the district judge did not increase Mr. Jones’ sentence because of his failure to plead guilty, but rather gave him less of the benefit allowable for acceptance of responsibility. As I discuss below, this may be a distinction without a difference when it comes to the constitutional obligations of a sentencing judge. But in any case, that is not what the trial judge did. He said he was punishing Mr. Jones for going to trial; he did not claim he was withholding leniency. It is as if the majority wants to deny the trial judge the opportunity to get the very guidance that he sought.
If this were some private party seeking an advisory opinion, the majority’s reluctance would be understandable. But this is an Article Three trial judge calling for the validation or invalidation of the basis on which he sentenced a defendant in a criminal case. We ought not fudge on such an important decision.
Ironically, this Court, in the vacated majority panel opinion in this case, unhesitatingly recognized that the six months represented “extra” time. United States v. Jones, 973 F.2d 928, 933 (D.C.Cir.1992), vacated in part, reh’g, en banc, granted, 980 F.2d 746 (D.C.Cir.1992). Obviously, nothing has (or could have) changed in the trial judge’s sentencing rationale since the ease was heard the first time. We do a disservice to our own district court, and to everyone who considers this case, when we leave dangling the important question as to whether a trial judge can lay on extra time for going to trial.
It is clearly unconstitutional for a trial judge to increase the sentence of a defendant because he chose to go to trial rather than plead guilty. The Supreme Court has stated, “To punish a person because he has done what the lav/ plainly allows him to do is a due process violation of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 367, 363, 98 S.Ct. 663, 668, 64 L.Ed.2d 604 (1978). “In a series of cases beginning with North Carolina v. Pearce [395 U.S. 711, 23 L.Ed.2d *1481656] 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).
In light of this fundamental principle, it is unsurprising that this circuit has previously found differential sentencing to be unconstitutional. 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). In Scott, Judge Bazelon eloquently explained why sentencing practices like the one under review in this case unacceptably undermine . the trial judge’s role as an impartial arbiter in the criminal justice system.
It is also worth noting that every other circuit to address the issue has confidently agreed 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 to plead guilty. 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) (“The ‘[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.” (quoting United States v. Araujo, 539 F.2d 287, 291— 92 (2nd Cir.1976))); 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) (“[I]t 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) (“[W]here 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.1982), cert. denied 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982) (“[T]he sentencing court may not present the defendant with a choice between admitting his guilt and enduring a harsher sentence for failing to do so.”)
These cases, until today unchallenged, recognize the unique role of the judge in the criminal justice system. Unlike the advocate-prosecutor and the policy-making legislature, the judge is a constitutional referee in the criminal case. It is not surprising, therefore, that the Supreme Court has been much more permissive as to the ability of the players other than the judge to plea-bargain, to horse-trade, to create incentives and disincentives for the way in which a criminal defendant plays his constitutional cards. For example, in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court allowed a prosecutor to reindict a defendant under a habitual offender statute carrying a mandatory life sentence after the defendant refused to plead to lesser charges carrying a range of two-to-ten years. In United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Court upheld a similar action by a prosecutor who charged a defendant with a felony after he had refused to plead guilty to a misdemeanor charge and demanded a jury trial. The Court held that there was no presumption of vindictiveness in such a situation. Id. at 384, 102 S.Ct. at 2494.
In Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978), the Court held that legislatures may encourage the entry of guilty pleas by promulgating statutory *1482schemes that permit judges to. reduce sentences for defendants who plead guilty. In that case, the Court upheld a New Jersey law that required a life sentence for first degree murder when the defendant went to trial, but permitted the judge to impose a lower sentence if he pleaded non vult or nolo contendré. Significantly, the Court likened the situation in Corbitt to cases involving plea bargaining by prosecutors, observing “[tjhere is no difference of constitutional significance between Bordenkircher and this case.” Id. at 221, 99 S.Ct. at 498. As suggested by Justice Stewart in his concurrence, by relying on the plea bargaining cases, the majority implicitly equated the roles of the state legislature and the prosecutor in the criminal justice system. Id. .at 227-28, 99 S.Ct. at 501-02 (Stewart, J., concurring). The majority recognized that both legislatures and prosecutors may legitimately encourage guilty pleas and facilitate plea bargaining.
The Court, however, has never suggested that sentencing judges may, on their own initiative and without statutory authority, promote guilty pleas by increasing the sentences of defendants who insist on going to trial. In Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the Court permitted a judge to impose a greater sentence after trial than he had imposed following a guilty plea that the defendant successfully challenged, but only because the judge acquired additional sentencing information during trial that led him to be less lenient. Id. at 801, 109 S.Ct. at 2205-06. As the circuits have unanimously acknowledged, when a judge increases a defendant’s sentence specifically because he pleaded guilty, the constitutional concerns are serious.
Why should prosecutors and legislatures be permitted to use the threat of greater sentences to discourage defendants from going to trial, whereas judges cannot do the same? As I mentioned above, the answer lies in the different functions that these governmental actors play in our system of justice. One distinction between them is the degree of power they possess in relation to defendants. When prosecutors and defendants engage in plea negotiations, they “arguably possess relatively equal bargaining power.” Bordenkircher v. Hayes, 434 U.S. at 362, 98 S.Ct. at 667. This equality is rooted in their “mutuality of advantage;” each party has reasons for wanting to avoid trial. Id. at 363, 98 S.Ct. at 668.
The power distribution between defendants and sentencing judges is much more uneven. In Scott, this Court noted the “unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison.” Scott v. United States, 419 F.2d at 273 (quoting United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 254 (S.D.N.Y.1966)). In upholding the prosecutor’s role in plea bargaining, the Supreme Court has emphasized the “give-and-take negotiation” between parties with similar bargaining power. Bordenkircher v. Hayes, 434 U.S. at 362, 98 S.Ct. at 667. It is hard to see the analogy between the judge’s role in sentencing and the prosecutor’s role in plea bargaining. By the time a case reaches the sentencing stage, the trial is over and the defendant has been found guilty. What does he have left to offer the judge in exchange for mercy? Differential sentencing does not appear to be a bargain made on equal terms. Instead, it looks much more like the “unilateral imposition of a penalty upon a defendant who has chosen to exercise a legal right” that the Bordenkircher Court explicitly rejected as unconstitutional. 434 U.S. at 362, 98 S.Ct. at 667.
There is also a critical difference between the prosecutor’s role as an advocate for the government’s position and the judge’s role as an impartial arbiter and protector of the defendant’s rights. This contrast has been repeatedly recognized in various contexts. For example, the Supreme Court has consistently held that it is not necessarily unconstitutional for a statute to offer financial incentives to a prosecutor for successful prosecutions, even though similar incentives would automatically disqualify a judge.
The rigid requirements ... designed for officials performing judicial or quasi-judicial functions, are not applicable to those acting in a prosecutorial ... capacity.... Prosecutors need not be entirely “neutral and detached[.]” In an adversary system, they are necessarily permitted to be zeal*1483ous in their enforcement of the law.... [T]he strict requirements of neutrality cannot be the same for administrative prosecutors as for judges, whose duty it is to make the final decision and whose impartiality serves as the ultimate guarantee of a fair and meaningful proceeding in our constitutional regime.
Marshall v. Jerrico, Inc., 446 U.S. 238, 248-50, 100 S.Ct. 1610, 1616-17, 64 L.Ed.2d 182 (1980) (citation omitted).
A judge has a duty not only to remain impartial, but also actively to guard the defendant’s constitutional rights. He steps outside his proper role when he piles extra time on a defendant for exercising his right to a trial, no matter how compelling the government’s countervailing interest in conserving resources may be. “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.” Scott v. United States, 419 F.2d at 273.
Like the contrast between prosecutors and judges, the distinction between the political function of legislatures and the neutral and protective role of judges reaches back to the origins of American legal history. Legislatures, like prosecutors, are not required to adopt a neutral stance on the issue of guilty pleas. They are policymaking bodies, not impartial arbiters. In the name of efficiency, legislatures are permitted to pass laws that encourage defendants to plead guilty rather than demand a trial. Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978).
These laws may grant to judges some discretion in deciding whether to impose lesser sentences on defendants who plead guilty. Id. Because the judges’ authority to do so is ultimately rooted in the legislature’s determination to favor guilty pleas, however, the judges may participate in such a scheme without being seen as the source of a policy to discourage trials. On the other hand, when, as in this case, a judge without legislative authorization, guided and restrained by nothing more than his own whims and policy preferences, punishes a defendant for declining to plead guilty, he treads outside the proper function of the judicial office.
In the present case, the district judge plainly lacked statutory authorization to increase Mr. Jones’ sentence in response to his failure to plead guilty. The Sentencing Guidelines (1990 version) permit a sentencing judge to reduce a defendant’s offense level by two points if the defendant demonstrates an acceptance of responsibility for his criminal conduct. U.S.S.G. § 3E1.1. A guilty plea is one factor that the judge may consider in deciding whether the defendant in fact accepted responsibility for the purposes of this section. See id., Application Note 3. However, nowhere do the Guidelines authorize the sentencing judge, after granting the two-point reduction, to consider a defendant’s choice to go to trial when he sets the actual sentence within the appropriate guideline range. When the district judge “added” six months to Mr. Jones’ sentence because he did not plead guilty, he was doing so entirely on his own initiative, and was thus overstepping the limits our criminal justice system imposes on the actions of judges.
As I have intimated throughout this opinion, the district judge’s actions were likely improper even if he did precisely what the majority contends he did. In other words, it probably does not matter whether the judge was enhancing Mr. Jones’ punishment or denying him leniency. The judge was not permitted to do either if he did so explicitly and exclusively because of Mr. Jones’ refusal to plead guilty. In the absence of statutory authorization, a judge transgresses his proper function when he in any way varies the sentence he imposes based on whether the defendant has asserted his constitutional right to trial. While in some contexts, such as plea bargaining, the distinction between punishment and denial of leniency may have some real weight, see Corbitt v. New Jersey, 439 U.S. at 223-24, 99 S.Ct. at 499-500, any attempt to discern a meaningful difference between them in the context of a sentencing hearing can only induce vertigo.
But in any event, that is not the problem that the district court sent to us for analysis. The district judge clearly stated that he wished to know whether he could eonstitu-*1484tionally “add” six months to Mr. Jones’ sentence because Jones insisted on taking the case to trial. We should answer with a vigorous “no” rather than with the fudge the majority provides. I dissent.