dissenting.
The defendant in this case, Darius Moss, is now serving a sentence of 360 months (30 years) for conspiring to possess crack cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In fact, the statutory maximum for this offense, in Mr. Moss’s circumstances, is 20 years. The United States has conceded, see ante at 996, that the sentence imposed violates the Constitution. This Court agrees. See ibid. Yet, the sentence is left in place, and Mr. Moss will serve ten years more than the Constitution allows. I cannot accept this state of affairs, and I therefore respectfully dissent.
I.
In my view, the new rule of law announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), falls within the “watershed exception” to the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). A rule that qualifies under this exception “must not only improve accuracy [of the trial and conviction], but also alter our understanding of the bedrock procedural elements *1004essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (internal quotation marks and quoted cases omitted). Apprendi meets these qualifications. It raises the standard for determining factors that subject a criminal defendant to a higher term of imprisonment from a preponderance of the evidence to beyond a reasonable doubt, thereby increasing accuracy. It also requires such factors to be submitted to a jury, thereby enforcing a defendant’s constitutional right to trial by jury. Similarly, the requirement that every element of a crime, defined as eveiy fact that increases the statutory maximum, be charged in the indictment improves the accuracy of the fact-finding process, because it reduces the risk that an innocent person might be convicted of a more serious crime, or that a guilty person might be punished more severely than the law allows.
The language used by the Supreme Court itself in Apprendi is telling. The Court stated: “At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without ‘due process of law,’ Arndt. 14, and the guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’ Arndt. 6.” 120 S.Ct. at 2355. The Court described the state procedure before it, wherein a factor that increased the statutory maximum of an offense was decided by the judge, as “an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system,” id. at 2366. The Court further recognized that the reasonable-doubt standard was at stake. This standard, as stated in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), “plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The 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.” Id. at 363, 90 S.Ct. 1068 (quoted case omitted).
To me, this signals the Supreme Court’s own understanding that Apprendi recognizes bedrock procedures that are implicit in the concept of ordered liberty and that touch on the fundamental fairness of the trial. Indeed, four Justices almost explicitly endorsed a Teague exception for Ap-prendi claims by stating, “[tjoday, in what will surely be remembered as a watershed change in constitutional law, the Court imposes as a constitutional rule the principle it first identified in Jones.” 120 S.Ct. at 2380 (O’Connor, J., dissenting). No doubt it is true that civilized systems of justice exist in which judges, not juries, decide criminal cases. But the Anglo-American tradition is otherwise. Every element of a criminal offense must be submitted to and found by a jury beyond a reasonable doubt. I find it regrettable that this Court feels free to minimize the hard-won right of trial by jury.
The Court makes the point that the “new rule announced [in Apprendi ] floats and flows with the tide of legislative pronouncements.” Ante, at 1000. There is a sense in which this is true. It is certainly the case that legislatures, in this instance Congress, define the elements of crimes, and that these definitions are, at least to some degree, subject to change. This principle, however, is not without limits. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), is a good example. In that case, the Supreme Court invalidated a Maine statute that presumed that a defendant who acted with an intent to kill possessed the “malice aforethought” necessary to constitute murder under state *1005law. The statute purported to place on the defendant the burden of proving that he had acted, for example, in the heat of passion, so that he would be guilty of manslaughter instead of murder. The Supreme Court rejected the argument that the due-process and jury-trial protections expressed in Winship could be circumvented in this way. A state may not evade the right of trial by jury merely by “rede-fin[ing] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.” Mullaney, 421 U.S. at 698, 95 S.Ct. 1881. Thus, there are clearly some limits on Congress’s ability to redefine elements of crimes so as to increase the punishment on the basis of judge-found facts. What these limits may be it is not necessary to explore in the present case. It suffices to say that the Apprendi rule does not subsist completely at the mercy of any and all congressional efforts to confine the right of jury trial only to some elements of crimes.
In addition, I question the Court’s statement that an Apprendi violation is not a structural error requiring per se reversal. The Supreme Court, in Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), has held that it is not always reversible error to fail to submit to a jury an essential element of a criminal charge. If, for example, no reasonable jury could have found against the prosecution with respect to this element, the error can be treated as harmless. The same thing, however, cannot be said of the other part of the Apprendi principle' — that every element of a crime must be charged in an indictment (if the crime is federal). As far as I am aware, no case has ever held that the omission of an element of a crime from an indictment can be harmless error. In such cases, we do not ask whether a jury would have found that element on the evidence submitted to it, or, indeed, whether the grand jury would have returned an indictment including that element if it had been asked to do so. Rather, an indictment that omits an element of a crime is structurally deficient and provides no lawful basis for bringing anyone to trial. Failure to include an essential element in a federal indictment warrants relief even if the government later proves the omitted element at trial. See United States v. Zangger, 848 F.2d 923, 925 (8th Cir.1988); United States v. Camp, 541 F.2d 737, 740 (8th Cir.1976).
II.
The Court also holds that Mr. Moss faces a procedural hurdle because he did not raise his Apprendi claim on direct appeal. The government relies on the rule stated in Bousley v. United States, 523 U.S. 614, 621-22, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoted cases omitted), that collateral review
is an extraordinary remedy and ‘will not be allowed to do service for an appeal.’ ... Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’
I believe that this is an instance where a claim’s legal basis was “not reasonably available to counsel,” thereby establishing cause for failing to raise it on direct appeal. Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), quoted in Bousley, 523 U.S. at 622, 118 S.Ct. 1604. As explained by the Court in Reed v. Ross, such “cause” arises where a new constitutional rule overturns “a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Id. at 17, 104 S.Ct. 2901 (quoting United States v. Johnson, *1006457 U.S. 537, 551, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). This is precisely the situation before us.
The rule announced in Apprendi was a departure from long accepted procedures. The dissenting opinion characterizes the holding as follows:
In its opinion, the Court marshals virtually no authority to support its extraordinary rule. Indeed, it is remarkable that the Court cannot identify a single instance, in the over 200 years since the ratification of the Bill of Rights, that our Court has applied, as a constitutional requirement, the rule it announces today.
120 S.Ct. at 2381. With this in mind, it cannot be fairly argued that an Apprendi claim was “reasonably available” to counsel at the time of Mr. Moss’s appeal. Thus the failure to raise the Apprendi claim on direct appeal is excusable. Our Court today, citing other courts of appeals, questions the vitality of Reed, but the Supreme Court itself has reaffirmed Reed as recently as 1998. Bousley, supra, 523 U.S. at 622, 118 S.Ct. 1604. In Reed, the novelty of a claim was held to excuse a lawyer’s failure to raise it on direct appeal. It is ironic that the claim thus preserved from procedural default was a claim under Win-ship and Mullaney that a criminal defendant had been deprived of due process by an instruction that failed to require the prosecution to bear the burden of persuasion with respect to each element of a crime.