concurring.
I write separately to emphasize the importance of a district judge’s decision-making role in sentencing criminal offenders. In this case, the Honorable Mark W. Bennett, Chief Judge, United States District Court for the Northern District of Iowa, is a very able and experienced judge. As the majority notes, he wrote an extensive opinion explaining in detail why this offender should have a substantial increase in sentence above the Guidelines range. His analysis is careful, thorough, and appropriate.
Chief Judge Bennett elected to sentence above the Guidelines and we approve because he exercised his discretion with care and diligence. Chief Judge Bennett has also sentenced below the Guidelines in careful appraisals of the offenders and the offenses as have other United States district judges. He has also interpreted ambiguous sentencing provisions in a fair and judicious way. See, e.g., United States v. Madrigal, 327 F.3d 738 (8th Cir.2003).
I write separately in this case to emphasize that Chief Judge Bennett is typical of the able, intelligent, and perceptive district judges who serve the federal judiciary and impose sentences on federal offenders. This court and every court ought to give due deference to the sentencing decisions of the district judge. However, the Sentencing Guidelines and other changes limit the discretion of the district judge. This does not mean that sentencing disparities have been eliminated or that injustice does *766not exist, because it does. What it has come to mean is that much of the discretion in sentencing decisions unfortunately falls to persons far less qualified to judge an offender than the district judge. While we say the district judge sentences the offender, in fact, the prosecutor, as I have shown in a number of opinions, often has more input into the sentence to be imposed than does the district judge. The sentencing process also can become mechanical when a probation officer figures out the mathematical aspects of what constitutes a sentence under the guidelines.
In his opinion, Chief Judge Bennett recognized the injustices of always sentencing under the Guidelines, as presently construed and administered by the federal courts and the appellate courts, and noted many cases, some from my dissenting or concurring opinions. Chief Judge Bennett wrote:
While the undersigned shares many of the views expressed by Senior Circuit Judge Myron H. Bright in several of his concurrences and dissents in which he condemns the harsh injustices that application [of] the Federal Sentencing Guidelines imposes, the court finds that this case presents an exception and that a departure is entirely justified by Flores’s demonstrated propensity for violence, his recidivist nature, and the need to protect society.
United States v. Mingo Flores, 223 F.Supp.2d 1016, 1034, n. 9 (N.D. Iowa2002).7
*767For a fair and proper sentencing procedure some discretion should be under the aegis of the sentencing judge. Recently (December 2002), the United States Sentencing Commission published a “Summary Report” on a survey of Article III judges. This summary is a component of the fifteen-year report on the United States Sentencing Commission’s legislative mandate. That report read in part:
Areas of Least Effectiveness in Meeting the Sentencing Goals
A plurality of both responding district and circuit court judges indicated that there were two areas in which the guidelines were less effective in achieving the purposes of sentencing:
— providing defendants with training, medical care, or treatment in the most effective manner, where rehabilitation was appropriate (Q5) and
—maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors (Q9).
Approximately 40 percent of responding district court judges, and slightly more responding circuit court judges, reported that few of their cases met these sentencing goals.
United States Sentencing Commission, Summary Report, at 2 (Dec.2002).
The federal guideline system has been the subject of comment by the American Law Institute8 in its report, Model Penal Code: Sentencing Report (April 2003):
Although the federal sentencing system is but one of 16 jurisdictions that currently operate with sentencing guidelines fashioned by a sentencing commission (with additional guideline reforms now in progress in several new jurisdictions), it is by far the best known and most criticized of all commission-guidelines structures. Michael Tonry has gone so far as to say that “[t]he guidelines developed by the U.S. Sentencing Commission ... are the most controversial and disliked sentencing reform initiative in U.S. history.” In contrast, state commission-guideline systems have enjoyed general acceptance and support among the lawyers and judges who regularly use them.
Id. at 115 (footnotes omitted). “The proposed Model Penal Code structure, and all state commission-guidelines structures, preserve far greater judicial sentencing discretion than the current federal system.” Id. at 116. American Law Institute drafters opted to replicate state rather than federal practice when it comes to matters of judicial discretion.
*768An already difficult situation has been made worse, by Congress’s recent passage of certain provisions in what is called the PROTECT Act of 2003, Pub.L. No. 108-21, 117 Stat. 650 (2003). This legislation includes provisions that sharply limit downward departure grounds for certain federal defendants, increase appellate court oversight of sentencing, and instruct the Sentencing Commission to take steps to reduce the overall number of downward departures. The PROTECT Act was not initiated by the Sentencing Commission. Morever, the enactment, as I understand it, took place without input from the Sentencing Commission, without its statistics, and without its consideration.
It is not my position to criticize Congress. I simply point out that this enactment will exacerbate the problems with the Guidelines by making it even more difficult for district judges to do justice under the law as circumstances warrant. We should take note of the fact that state legislatures and American Law Institute drafters have turned away from federal practice and opted for more effective sentencing structures, which give judges discretion as those persons best qualified to exercise it.
The passage of the PROTECT Act creates new and greater problems in federal sentencing. I quote from one federal judge who based his decision to resign from the bench upon this very problem:
Every sentence imposed affects a human life and, in most cases, the fives of several innocent family members who suffer as a result of a defendant’s incarceration. For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice.
When I took my oath of office 13 years ago I never thought that I would leave the federal bench. While I might have stayed on despite the inadequate pay, I no longer want to be part of our unjust criminal justice system.
Hon. John S. Martin, Jr., Let Judges Do Their Jobs, N.Y.Times, June 24, 2003, at A31.
I want to conclude by making a plea to the district judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines.
Let me say further that judges generally do not object to appropriate guidelines for sentencing decisions but the time has come for major reform in the system. I say in this concurring opinion, as I have said in other sentencing opinions that I have written, “Is anyone out there listening?” United States v. Alatorre, 207 F.3d 1078, 1080 (8th Cir.2000) (Bright, J., concurring).
. See, e.g., United States v. Sweesy, 272 F.3d 581, 583-84 (8th Cir.2001) (Bright, J., dissenting) (noting that "[¡judges should take into account that many guideline drug sentences are often heavier than is warranted by the nature of the crime. This is where a district judge’s discretion becomes important and where the judge often should take advantage of the provisions that permit reducing sentences under the guidelines.”); United States v. Jones, 145 F.3d 959, 966 (8th Cir.1998) (Bright, J., dissenting in part and concurring in part) (”The sentence of Jones, a man with the mind of a child, to thirty years of incarceration makes a mockery out of the phrase, 'Equal Justice Under the Law.' In this case, the lowest person on the totem pole, a mere street-level seller with an I.Q. of fifty-three received a heavier sentence than the mastermind of the conspiracy and the conspiracy’s primary drug supplier. What kind of system could produce such a result? This case provides yet another example of how rigid sentencing guidelines and the mandatory minimums associated with drug cases make an unfair 'criminal’ system.”) (footnote omitted); Montanye v. United States, 77 F.3d 226, 233 (8th Cir.1996) (Bright, J., dissenting) (“By any ordinary measure outside the guidelines, I would think this sentence would be considered draconian, unnecessarily harsh and unreasonable.”); United States v. Hiveley, 61 F.3d 1358, 1363, 1365 (8th Cir.1995) (Bright, J., concurring) ("[Ujnwise sentencing policies which put men and women in prison for years, not only ruin lives ... but also drain the American- taxpayers.... [It is] time to call a halt to the unnecessary and expensive cost of putting people in prison for a long time based on the mistaken notion that such an effort will win 'The War on Drugs' .... The public needs to know that unnecessary, harsh and unreasonable drug sentences serve to waste billions of dollars without doing much good for society. We have an unreasonable system.”); United States v. Smiley, 997 F.2d 475, 483 (8th Cir.1993) (Bright, J., dissenting) (suggesting that sentences imposed under the Guidelines where no rules of evidence apply and where sentencing judges often summarily approve probation officer recommendations seem to come from an Alice in Wonderland world where up is down and down is up); United States v. Galloway, 976 F.2d 414, 438 (8th Cir.1992) (Bright, J., dissenting) (comparing sentences imposed under the relevant conduct provisions of the Guidelines to an Alice in Wonderland world in which words lose their real meaning and down is up and up is down); United States v. England, 966 F.2d 403, 411 (8th Cir.1992) (Bright, J., concurring) ("In too many instances, the sentences directed by the guidelines waste the lives of men and women.... It is time for a re-evaluation and change.”); United States v. Simmons, 964 F.2d 763, 778 (8th Cir.1992) (Bright, J.) (commenting that *767"[t]his case and other drug convictions like it demonstrate that, under the Sentencing Guidelines, district judges are obligated to sentence first-time drug offenders to extremely long prison terms under evidence which is often haphazardly produced and considered without regard to traditional rules of evidence. The guidelines procedure has chosen to bypass adherence to rules of evidence which have developed over hundreds of years in the common law tradition to assure reliability in factfinding.”)
. The American Law Institute organized in 1923, consists of approximately 3000 judges, lawyers, and law teachers elected on the basis of professional achievement and demonstrated interest in the improvement of law. Among other things, the organization engages in activities to improve the law and instigates the study and drafting of model statutory formulations, such as the Model Penal Code, the Model Code of Evidence, and a proposed Federal Securities Code. The references in this concurring opinion are to a report of the American Law Institute on its newly drafted Model Penal Code on sentencing, released April 11, 2003.