concurring.
I write separately to address two issues that our supreme court may confront in the event that one or more of the parties petition that court to review our decision. The first issue is whether Alaska should adopt the Teague retroactivity test as a matter of state law. The second issue is whether, under the Teague test, the right of jury trial announced in Blakely should be given retroactive application.
Should Alaska adopt the retroactivity test of Teague v. Lane?
Although the parties to the present appeals may be primarily interested in Part II of our decision (our resolution of the question *45of whether the Blakely right of jury trial will be applied retroactively), it is the question addressed in Part I-that is, the question of what law governs an appellate court's decision as to whether a new constitutional rule will be applied has a more lasting importance to our law and to the people of this state.
Within twenty to twenty-five years, essentially all of the defendants who received presumptive sentences under the pre-March 2005 version of our presumptive sentencing law will have served their sentences, and the issue of Blakely's retroactivity will then be of interest only to legal scholars. (Remember that Alaska retained indeterminate sentencing for the most serious felonies; the Blakely decision does not affect those longer sentences.) But with regard to the larger question of what law governs the retroactivity of new constitutional rules, the answer will affect the citizens of this state for the indefinite future, in many different contexts.
As explained in the majority opinion, the retroactivity test adopted by the United States Supreme Court in Teague v. Lane1 was not intended to bind the states. Rather, the Teague test was intended to limit the authority of the federal courts when state defendants seek to overturn their convictions in federal habeas corpus litigation.
Under Teague, if a state prisoner initiates federal habeas corpus litigation and attacks their conviction on the basis of a new rule of federal constitutional law, the federal courts must, in most instances, decline to reach the merits of the prisoner's claim (assuming that the state raises the Teague defense in a timely fashion). But Teague does not prohibit state courts from extending full or partial retroactivity to a new federal constitutional rule.
As the South Dakota Supreme Court explained in Cowell v. Leapley, 458 N.W.2d 514 (S.D.1990):
The Teague decision [defines the right of] habeas corpus ... granted [under] federal statutes.... [But] various states, including South Dakota, have created state rights of habeas corpus through [their own] statutes.... Each sovereign has the right to decide how it will allow access to this extraordinary remedy. The federal government controls how it permits access to the remedy in its courts, and South Dakota [decides how it] will provide access to habeas corpus in our courts.... [A] federal decision on what criteria [govern] retroactive application of constitutional law in a federal habeas corpus proceeding [is not] controlling on a retroactivity question in a state habeas corpus proceeding.
Cowell, 458 NW .2d at 517.
Nevertheless, several state supreme courts have concluded that they should adopt the Teague test as a matter of state law. Of course, one can not say that these courts were wrong, as a legal matter, to declare that the Teague retroactivity test was an accurate reflection of their state's law on this subject. But I believe that these courts were wrong, as a matter of policy, to adopt the Teague test.
The Teague retroactivity test was designed to be narrow-designed so that very few constitutional rulings will be applied retroactively. (To date, none has.) Justice O'Con-nor declared that the narrowness of the Teague test was based on two considerations: federal-state comity, and the societal interest in the finality of criminal judgements.2
"Federal-state comity" is a polite way of referring to the goal of avoiding the political difficulties that can be created when the federal government exercises authority over matters that might reasonably be viewed as being primarily state concerns. This goal has no bearing on the question of whether a state supreme court should grant or withhold retroactive application of new constitutional rules to defendants who were prosecuted and convicted under that state's law.
Society's interest in the finality of criminal judgements is, however, just as strong in state post-conviction litigation as it is in federal post-conviction litigation. To echo what Justice O'Connor said in Teague judges, *46prosecutors, and police officers "are understandably frustrated when they faithfully apply existing constitutional law only to have [an appellate] court discover ... new constitutional commands" in a later proceeding for post-conviction reliefs .3
Moreover, as this Court noted in @rinols v. State:
Society [as a whole] has a substantial interest in making sure that criminal litigation eventually reaches an end. All persons involved in the litigation-defendants, victims, families and friends, investigative agencies, as well as the public at large-have a right to expect that criminal cases will be finally resolved at some point. If prisoners are allowed to assert claims long after their trials, society runs the risk that re-trials may be ordered years after the event, when witnesses may no longer be available or their memories of the pertinent occurrences have been lost or diminished. In addition, piecemeal litigation of successive and often fruitless post-convietion claims poses a significant cost to the courts and the other components of the criminal justice system. As our supreme court recognized in Mervill v. State,
finality may be a crucial element [in the] effectiveness [of the criminal lawl. A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of [administering] justice that cannot but war with the effectiveness of the [law's] underlying substantive commands. Furthermore, . an endless reopening of convictions, with its continuing underlying implication that perhaps the defendant can escape from corrective sanctions after all, [is potentially inconsistent] with the aim of rehabilitating offenders.
Grinols, 10 P.8d 600, 605-06 (Alaska App. 2000).4
The Teague test is doubtless an effective way of preserving the finality of criminal judgements-hbecause, under the Teague test, hardly any constitutional ruling will qualify for retroactive application. But because the Teague test is so narrow-that is, because the federal courts will rarely, if ever, provide relief to a state prisoner who was convicted or sentenced under procedures that violate a later-announced rule of federal constitutional law-it is all the more important for state courts to weigh considerations of fairness as well as considerations of finality when deciding whether a new rule should be applied retroactively.
As the Tennessee Supreme Court said when it rejected the Teague test, a state court should attempt "to dispense justice in a manner more befitting state concerns, history, and jurisprudence". Meadows v. State, 849 S.W.2d 748, 754 (Tenn.1998). In other words, a state court should have the flexibility to apply new rules retroactively in situations where a retroactive application will best achieve justice-even when, because of principles of federal-state comity, the federal courts should abstain from the litigation.
Many of the courts that have adopted Teague as a matter of state law have missed this crucial point. These courts explain their decisions by asserting that there should not be two different tests for retroactivity, depending on whether a prisoner is litigating in federal court or state court. See, for example, the words of the Arizona Supreme Court in State v. Slemmer:
[DJiversity [in the rules governing retroac-tivity] would be mischievous and a disservice to principles of federalism. The law regarding retroactivity is complex enough without requiring counsel and trial judges to apply different retroactivity rules, depending on whether the substantive decision is grounded on state or federal constitutional principles-especially when many decisions are grounded on both.
170 Ariz. 174, 828 P.2d 41, 49 (1991).
But this is wrong: there should be different tests for retroactivity.
The Teague test is very restrictive because it is based, in large measure, on a policy that *47federal courts should be loathe to disrupt the finality of state court judgements. State courts, on the other hand, should have greater authority to re-examine their own state's judgements. They should not hamstring themselves by adopting a test that precludes retroactive relief in all but the most exceptional cases. Rather, as the Missouri Supreme Court said, state courts should employ a test that "permits [them] to consider the particular facts and legal issues relevant to the specific issue before [them]". State v. Whitfield, 107 S.W.3d 258, 267 (Mo.2008).
Moreover, because the federal courts are bound by Teague, state courts have effectively become the courts of last resort on the issue of whether new rules of federal constitutional law should be applied retroactively. State courts must therefore be free to do Justice in situations where a new rule should, in fairness, be applied retroactively, and where this can be done without significant disruption of the eriminal justice system.
I note that the Alaska Supreme Court has, on several occasions, extended either full or partial retroactive application to new rules of constitutional law in situations where the new rule would arguably (or even clearly) fail the Teague test. See State v. Semancik, 99 P.3d 538, 548 (Alaska 2004), Briggs v. Department of Public Safety, 782 P.2d 1078, 1080 n. 4 (Alaska 1987), Thessen v. State, 508 P.2d 1192, 1195 n. 15 (Alaska 1978), 5and Rutherford v. State, 486 P.2d 946, 952-55 (Alaska 1971). See also Koch v. State, 653 P.2d 664, 667 (Alaska App.1982), where this Court did the same.
If the Alaska Supreme Court were to adopt the Teague test as state law on the issue of retroactivity, the supreme court (and this Court) would be barred from ever again issuing such decisions. I believe that this would be contrary to the best interests of the law and the people of Alaska.
Should the "proof beyond a reasonable doubt" component of Blakely be applied retroactively under the Teague test?
Both Judge Coats (in his dissent) and Judge Stewart (in his concurrence) conclude that, if we were applying the Teague retroac-tivity test, the Blakely right of jury trial would fail to qualify for retroactive application. I reach the opposite conclusion.
As explained in this Court's main opinion, the right of jury trial announced in Blakely v. Washington has two components: (1) the right to demand that a jury (rather than a judge) decide the disputed issue of fact, and (2) the right to demand that the government prove the' disputed issue of fact beyond a reasonable doubt (as opposed to some lesser standard of proof).
The United States Supreme Court has already rejected the contention that Blakely's first component qualifies for retroactive application under the Teague test: Schriro v. Summertin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004).
The defendant in Summerlin was sentenced to death in violation of Apprendi-because a judge (rather than a jury) decided the issues of fact that determined whether he was subject to the death penalty. When Summerlin sought federal habeas corpus relief, the Supreme Court held that the identity of the fact-finder was not so crucial an element of the proceedings as to qualify for retroactivity under Teague, because there was no proof that findings of fact made by a jury are any more accurate than findings made by a judge. Id., 542 U.S. at 855-58, 124 S.Ct. at 2525-26.
On this narrow issue, the Supreme Court may well have been right. But, as explained in our majority opinion, the Supreme Court has repeatedly. emphasized that the importance of the right to jury: trial transcends whatever skills the jurors may bring to the fact-finding process. The jury is an institution that serves as a check on the executive and judicial authority of the government, and that preserves the participation and ultimate control of the community in matters of criminal justice. As Justice Scalia (the author of Summerlin) himself noted in Blakely, the right to jury trial
is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.... [The Constitu*48tion's guarantee of] jury trial is meant to censure [the people's ultimate] control in the judiciary. ... Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict. Without that restriction, the jury would not exercise the control that the Framers intended.
Blakely, 542 U.S. at 805-06, 124 S.Ct. at 2538-39 (citations omitted).
Moreover, the Summerlin Court did not consider whether the second Blakely component-the requirement of proof beyond a reasonable doubt-qualified for retroactive application under the Teague test. Arizona law required that death penalty factors be proved beyond a reasonable doubt. See Ring v. Arizona, 536 U.S. 584, 597, 122 S.Ct. 2428, 2437, 158 LEd.2d 556 (2002). Thus, the Supreme Court in Summerlin had no occasion to consider whether the requirement of proof beyond a reasonable doubt was "implicit in [our] concept of ordered liberty" 6 -whether it was a procedure so "fundamental [to thel fairness of [a] trial" 7 that, without it, "the likelihood of an accurate conviction is seriously diminished" .8
Just a few months ago, the Supreme Court granted certiorari on the issue of whether, because of the guarantee of proof beyond a reasonable doubt, Blakely meets the Teague test for retroactive application in federal ha-beas corpus litigation. See Burton v. Wad-dington, -- U.S. --, 126 S.Ct. 2852, 165 L.Ed.2d 278 (2006). (The petitioner, Burton, was sentenced under the same Washington determinate sentencing scheme that was at issue in Blakely.) Thus, we can expect the Supreme Court to resolve this legal issue by next summer.
In the meantime, however, my colleagues and I have done the best we could to discern the answer from existing law. Here is my analysis:
(a) Why I conclude that the right of jury trial recognized in Blakely is a "new" rule and a "procedural" rule for purposes of Teague
Under the test for retroactivity announced in Teague v. Lane, if a court decision announces a "new" constitutional rule, and if this rule is "procedural" rather than "substantive", the new rule generally will not be applied to defendants whose convictions became final before the rule was announced. Teague recognizes only two exceptions to this rule of non-retroactivity: (1) when the new constitutional rule restricts the authority of the government to criminalize "certain kinds of primary, private individual conduct", and (2) when the new constitutional rule "requires the observance of ... procedures that are implicit in the concept of ordered liberty". Teague, 489 U.S. at 307, 109 S.Ct. at 1078.
(Actually, as the Supreme Court later acknowledged in Schriro v. Summerlin, new rules that fall within the first Teague exception "are more accurately characterized as substantive rules [that are] not subject to [Teague's | bar".) 9
I conclude that Blakely created a "new" rule for purposes of the Teague test. As Justice O'Connor wrote in her concurring opinion in Wright v. West, "To determine what counts as a new rule, Teague requires courts to ask whether the rule ... can be meaningfully distinguished from [the rules] established by binding precedent at the time [the defendant's] state court conviction became final." (Emphasis added)10
Even though a newly announced rule may be described as "controlled" or "governed" by prior judicial decisions, this does not nee-essarily decide the issue of whether the rule is "new" for purposes of Teague As the Supreme Court explained in Butler v. McKel-lar,
[The fact that a court says that its decision is within the "logical compass" of *49an earlier decision, or indeed that it is "controlled" by a prior decision, is not conclusive for purposes of deciding whether the current decision is a "new rule" under Teague Courts frequently view their decisions as being "controlled" or "governed" by prior opinions even when [they are] aware of reasonable contrary conclusions reached by other courts.... [If] the outcome ... [was] susceptible [of] debate among reasonable minds ..., [the rule should be viewed as] a "new rule."
494 U.S. 407, 415, 110 S.Ct. 1212, 1217-18, 108 L.Ed.2d 847 (1990).
The decision in Blakely was clearly susceptible of reasonable debate, even after the Supreme Court's decision in Apprendi. In the four years between Apprendi and Blakety, many federal and state courts considered the issue of whether, in light of Apprendi, determinate sentencing schemes that hinged on judge-tried sentencing factors violated a defendant's right to trial by jury under the Sixth Amendment. Without exception, these federal and state courts upheld the determinate sentencing schemes against the Sixth Amendment challenge.
This fact essentially decides the question of whether Blakely announced a new rule. To paraphrase what the Supreme Court said on this subject in Beard v. Banks, even though the Sixth Amendment principle announced in Apprendi "could be thought to support" the decision in Blakely, "reasonable jurists differed [on] this point", and "reasonable jurists could have concluded that the [decision in Apprendi] did not compel [the decision in Blakely]".11 Accordingly, Blakety announced a "new" rule for purposes of Teague.
Additionally, I conclude that the Blakely rule is "procedural" rather than "substantive" for purposes of Teague.
As the Supreme Court explained in Schriro v. Summerlin; a rule is "substantive" rather than "procedural" for Teague purposes "if it alters the range of conduct or the class of persons that the law punishes". 542 U.S. at 858, 124 S.Ct. at 2528. "In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural." Id.
In Summerlin, the Supreme Court held that the rule announced in Ring v. Arizona-the rule that the Sixth Amendment is violated when a sentencing judge, sitting without a jury, finds an aggravating cireumstance that authorizes the imposition of the death penalty12-was a procedural rule for purposes of Teague.
[The] holding [in Ring ] did not alter the range of conduct Arizona law subjected to the death penalty. [Ring ] rested entirely on the Sixth Amendment's jury-trial guarantee, a provision that has nothing to do with the range of conduct a State may criminalize. Instead, Ring altered the range of permissible methods for determining whether a defendant's conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decision[-Jmaking authority in this fashion are prototypical procedural rules, a conclusion we have reached in numerous other contexts.
Summerlin, 542 U.S. at 358, 124 S.Ct. at 2523 (citations omitted).
The Supreme Court then rejected Sum-merlin's contention that since, under Ring, the death penalty sentencing factors had to be proved to a jury beyond a reasonable doubt, Ring effectively altered the definition of murder by declaring that these sentencing factors were "elements" of the crime-thus making Ring a "substantive" decision for purposes of the Teague retroactivity test. The Court explained that the expansion of the right to jury trial did not alter the elements of the underlying offense:
A decision that modifies the elements of an offense is normally substantive rather than procedural. New elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful or vice versa. [Citation omitted] But that is not what Ring did; the range of conduct punished by death in Arizona *50was the same before Ring as after. Ring held that, because Arizona's statutory ag-gravators restricted (as a matter of state law) the class of death-eligible defendants, those aggravators effectively were elements for federal constitutional purposes, and so were subject to the procedural requirements the Constitution attaches to trial of elements. 536 U.S., at 609, 122 S.Ct. 2428. This Court's holding that, because Arizona has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court's making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive. ~
Summerlin, 542 U.S. at 354, 124 S.Ct. at 2524 (emphasis in the original).
(This Court, too, recently rejected the contention that all facts which must be proved to a jury under Blakely must also be deemed elements of the underlying crime. See State v. Dague, 143 P.3d 988 (Alaska App.2006).)
Based on the Supreme Court's resolution of this issue in Summerlin (a decision that was handed down on the same day as Blakety ), I conclude that Blakely-like Ring-established a "procedural" rule.
(b) Although Blakely established a mew procedural rule, the Blakely guarantee of proof beyond a reasonable doubt qualifies for retroactive application «under the Teague test
For the reasons explained in the preceding section, I conclude that Blakely established a new procedural rule for purposes of the Teague test: This being so, Teague declares that Blakely should not be applied to defendants whose convictions became final before Blakely was announced, unless the Blakely rule falls within one of Teague's two exceptions.
Only one of those exceptions potentially applies here: the exception for rules that "require[ ] the observance of ... procedures that are implicit in the concept of ordered liberty" 13-rules which "improve the pre-ex-isting fact-finding procedures" to such an extent that their absence "implicatef(s] the fundamental fairness of [al trial" 14 by seriously diminishing "the likelihood of an aceu-rate conviction".15 The question, then, is whether Blakely's guarantee of proof beyond a reasonable doubt is such a rule.
Essentially every court, whether state or federal, that has considered the issue of whether Teague allows the retroactive application of Apprendi and Blakely has concluded that the answer is "no".
However, this apparently unanimous authority is not as convincing as it might appear. The court decisions holding that Ap-prendi and/or Blakely are not retroactive under the Teague test fall into three groups-and only one of these groups actually addresses the issue of whether Apprendi and/or Blakely should be applied retroactively because of the guarantee of proof beyond a reasonable doubt.
The first group comprises decisions from jurisdictions like Arizona-jurisdictions that did not have to deal with the "proof beyond a reasonable doubt" aspect of Apprendi and Blakely because governing state law already required that aggravating factors be proved beyond a reasonable doubt.
The second group comprises decisions that simply do not address the "proof beyond a reasonable doubt" aspect of the problem. Some of these courts omitted any discussion of this issue. Other courts noted the "proof beyond a reasonable doubt" component of Apprendi or Blakely, but then inexplicably failed to address this component in their Teague analysis. See, eg., United States v. Gentry, 482 F.3d 600, 605 (5th Cir.2005); Never Misses A Shot v. United States, 413 F.3d 781, 783-84 (8th Cir.2005), United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.2002); People v. Wengzinger, - P.3d , (Colo.App.2006), 2006 WL 1493802 at *6-*7.
*51What remains is a smaller group of cases that address the issue of "proof beyond a reasonable doubt" and expressly conclude that the Apprendi and Blakely guarantee of proof beyond a reasonable doubt is not a fundamental component of our criminal justice system.
On the face of it, this conclusion is shocking. The United States Supreme Court has repeatedly emphasized the central role of proof beyond a reasonable doubt in our society's system of criminal justice.
In In re Winship, 397 U.S. 858, 862-64, 90 8.Ct. 1068, 1071-78, 25 L.Ed.2d 368 (1970), the Supreme Court held that proof beyond a reasonable doubt was among the fundamental rights guaranteed by the due process clause of the Fourteenth Amendment. In other words, neither the federal government nor any state government has the authority to subject a citizen to criminal penalties based on a lesser standard of proof.
The Winship Court declared that the requirement of proof beyond a reasonable doubt is "basic in our law",16 that it is both "a requirement and a safeguard of due process of law",17 and that it is "[one of] the fundamental principles that are deemed essential for the protection of life and liberty".18 The Winship Court also declared that
use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072-78.
See also Sullivan v. Louisiana, 508 U.S. 275, 278, 118 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1998) (holding that the Sixth Amendment right to jury trial is violated when, even though a jury decides the defendant's case, the jury is allowed to base its decision on less than proof beyond a reasonable doubt).
Two years after its decision in Winship, the Supreme Court held that the due process requirement of proof beyond a reasonable doubt should be applied wholly retroactively-that is, even to defendants whose conviec-tions were final before Winship was announced. Ivan V. v. City of New York, 407 U.S. 208, 204-05, 92 S.Ct. 1951, 1952, 82 L.Ed.2d 659 (1972).
In Ivan V., the Supreme Court declared that it was obvious that "the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Win-ship was to overcome an aspect of the erimi-nal trial that [might] substantially impair[ ] [its] truth-finding function"-and that, for this reason, Winship must be given complete :retroactive effect despite good-faith reliance by state governments on the prior law, and regardless of the impact this retroactive application might have on the administration of justice. Id., 407 U.S. at 204-05, 92 S.Ct. at 1952.
It is true that Ivan V. was decided under the law of retroactivity as it existed before Teague v. Lane. But given what the Supreme Court said in Winship about the central and indispensable function of proof beyond a reasonable doubt in our system of eriminal justice, it is inconceivable that the result in Ivan V. would have been any different under the Teague test. The requirement of proof beyond a reasonable doubt in criminal cases is clearly a procedure that is "implicit in [our society's] concept of ordered liberty".19
So how is it, then, that a number of federal and state courts have concluded that, under the Teague test, they are not required to extend full retroactive application to the "proof beyond a reasonable doubt" component of Apprendi and Blakely?
*52The answer is found in passages like this one:
Apprendi is about sentencing only. For Apprendi concerns to come into play, a criminal defendant must already have been found guilty of the underlying crime. A defendant raising an Apprendi claim ... is simply complaining that he received a sentence in excess of the normal sentencing range, without the fact or facts necessary to permit such sentence having been proven to a jury beyond a reasonable doubt.... Thus an Apprendi violation does not mean that a defendant is imprisoned on "a charge never made ... and never heard by the jury." The most that can be said is that an Apprendi violation results in a defendant's imprisonment on a charge one element of which-the sentencing enhancement-was not proven to a jury beyond a reasonable doubt. The Supreme Court has already held that "failure to submit [an] element of" a crime to a jury may constitute harmless error[. See] Neder v. United States, 527 U.S. 1, 19-20, 119 S.Ct. 1827, 1839, 144 L.3d.2d 835, 58 (1999). . .. We decline to hold that an Ap-prendi violation comprises such constitutional "bedrock" as to require retroactive application ....
People v. De La Paz, 204 Ill.2d 426, 274 Ill. Dec. 897, 791 N.E.2d 489, 495-96 (2008).
And in passages like this one:
We do not believe that requiring the jury to make drug quantity determinations beyond a reasonable doubt will greatly af-feet the accuracy of convictions. Nor is this rule a bedrock procedural element. [The existence of a drug violation was established beyond a reasonable doubt. The alleged Apprendi error only concerns an enhancement of the defendant's sentence based on a drug quantity finding by the judge. Therefore, the accuracy of the underlying conviction is not at issue.
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[In addition], Sanchez-Cervantes' argument is flawed because not every extension of Winship is necessarily a watershed rule of criminal procedure. The rules announced in Winship and Mullaney [v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975),] were given retroactive effect because they were to "overcome an aspect of the criminal trial that substantial ly impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdiets[.]" The application of Apprendi only affects the enhancement of a defendant's sentence onee he or she has already been convicted beyond a reasonable doubt. Therefore, it does not rise to the level of importance of Winship or Mul-laney. Allowing the judge to determine the quantity of drugs for sentencing purposes does not impair the jury's ability to find the truth regarding whether the defendant possessed, distributed, or conspired to distribute some amount of drugs.
United States v. Sanchez-Cervantes, 282 F.3d 664, 669, 671 (9th Cir.2002).
In other words, the courts that have declined to extend retroactive effect to Appren-d and Blakely rely on the following reasoning: (1) When an issue of fact will determine whether the government has proved the elements of a crime, proof beyond a reasonable doubt is crucially important. But (2) when an issue of fact is merely a sentencing factor that will determine the defendant's maximum punishment, proof beyond a reasonable doubt is not so important. Thus, (8) even though Ivan V. holds that a defendant who has been convicted under a lesser standard of proof can obtain relief, no matter when the defendant's conviction was entered, a defendant whose maximum sentence has been increased under a lesser standard of proof is not entitled to relief if the defendant's conviction was already final when Apprendi and Blakely were decided.
That is to say, these courts have concluded that the due process guarantee of proof beyond a reasonable doubt is not so important when the factual issue being litigated affects only the authorized extent of the defendant's punishment-when the disputed fact is only a "sentencing factor" rather than an "element" of the offense.
I believe that this reasoning is flawed. The dichotomy that these courts rely on -the distinction between "elements" of a crime and "sentencing factors"-is the very dichot*53omy that the Supreme Court rejected in Apprendi, Blakely, and United States v. Booker.20
In Apprendi, Blakely, and Booker, the Supreme Court repeatedly declared that the distinction between "elements" and "sentencing factors" is irrelevant when assessing a defendant's Sixth Amendment right to jury trial-a right which, under Sullivan v. Louisiana, necessarily includes the right to demand proof beyond a reasonable doubt.21 Apprendi, Blakely, and Booker stand for the proposition that when the resolution of an issue of fact will determine the authorized extent of the defendant's punishment, the defendant is entitled to demand that this fact be proved beyond a reasonable doubt-regardless of whether, under state law, this issue of fact is labeled an "element" or a "sentencing factor".
This point is explained at length in this Court's recent decision in State v. Dague, 143 P.3d 988 (Alaska App.2006). To summarize that discussion:
The Supreme Court declared in Apprendi that the distinction between elements and sentencing factors "does not provide a principled basis" for deciding whether defendants are entitled to a jury trial on particular issues of fact.22 That is, the Court declared that the Sixth Amendment right to jury trial does not hinge on whether a particular issue of fact is properly labeled an "element" or a "sentencing factor". Instead, the Court adopted what it called a "functional" test: regardless of how a particular issue of fact is classified under state law, a defendant has a right to demand that this fact be decided by a jury, and a right to demand that the fact be proved beyond a reasonable doubt, if resolution of this issue of fact against the defendant will subject the defendant to a greater maximum punishment than would otherwise be authorized by a jury verdict that did not encompass this fact.23
As Justice Scalia put it in Blakely, the test is whether the defendant's sentence was authorized by "the jury's verdict alone" or, instead, the sentencing court "acquire[d] [its] authority only upon finding some additional fact" beyond those found by the jury.24
Justice Stevens returned to this theme-that the labels "sentencing factor" and "element" are irrelevant for Sixth Amendment purposes-in United States v. Booker.25 The key problem addressed in Apprendi and Blakely, Justice Stevens said, was the erosion of the jury's traditional role in determining a criminal defendant's level of guilt, as more and more states (and the federal government) adopted determinate sentencing schemes-sentencing schemes that gave judges the power to resolve the factual disputes that would determine the upper limit of the defendant's punishment:
It is quite true that[, under indeterminate sentencing schemes,] judges commonly determined facts justifying [their] choice of a heavier sentence.... [But in] 1986, [we] first recognized a new trend in the legislative regulation of sentencing[: sentencing laws under which] facts selected by legislatures ... not only authorized, or even mandated, heavier sentences than would otherwise have been imposed, but increased the range of sentences possible for the underlying crime. ...
The effect of the increasing emphasis on facts that enhanced [the permitted] sentencing ranges ... was to increase the judge's power and diminish that of the Jury. It became the judge, not the jury, that determined the upper limits of sentencing, and. the facts [that] determined [the sentencing range] were not required to be raised before trial or proved by more than a preponderance [of the evidence].
Booker, 543 U.S. at 286, 125 S.Ct. at 751 (citations omitted).
*54Justice Stevens explained that, given this development in sentencing law, “the Court was faced with the issue of preserving [the] ancient guarantee [of jury trial] under a new set of circumstances”:
The new sentencing practice forced the Court to address the question [of] how the right of jury trial could be preserved [so that it would continue to guarantee], in a meaningful way[,] . ¡. that the jury would still stand between the individual and the power of the government under the new sentencing regime.
Booker, 543 U.S. at 237,125 S.Ct. at 752. ■
The answer, as explained in Apprendi and Blakely, was to interpret the Sixth Amendment so as to guarantee a right of jury trial, and a right to demand proof beyond a reasonable doubt, on any issue of fact which, if proved, “increases the penalty for the [defendant’s] crime beyond the [otherwise] prescribed statutory maximum”.26
Justice Scalia summed up this jurisprudence in his concurring opinion in Ring v. Arizona: “[T]he fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.” Ring, 536 U.S. at 610,122 S.Ct. at 2444.
Apprendi, Blakely, and Booker are all premised on the constitutional precept that if the resolution of an issue of fact will subject a criminal defendant to an increased range of penalties, then regardless of what label the government might attach to this issue of fact, it is fundamentally unfair (for purposes of the due process clause of the Fourteenth Amendment) to allow this issue to be decided using a less rigorous standard of proof than “beyond a reasonable doubt”. ,
As I explained above, many courts have refused to extend retroactivity to Apprendi and Blakely because they concluded that a defendant’s right to demand proof beyond a reasonable doubt is somehow less important when the disputed issue goes “only” to the defendant’s range of sentences. This approach is fundamentally contrary to Appren-di and Blakely.
The flaw in these courts’ reasoning is demonstrated by the fact that even when issues of fact are labeled “elements” of a crime, these elements perform two functions. In some circumstances, the proof or absence of an ’ element will distinguish between defendants who should be declared innocent and those who should be declared guilty. But often, the proof or absence of an element will distinguish between defendants who should be found guilty of a lesser degree of crime and those who should be found guilty of a higher degree of crime.
In this latter circumstance, even though the disputed issue of fact may be called an “element”, it functions much like a sentencing factor. If the government fails to prove the disputed fact, the defendant will not be acquitted, but the defendant will face a lower range of penalties for the criminal conduct. If the government succeeds in proving the disputed fact, then the defendant will be found guilty of the higher degree of crime and will, as a consequence, face a higher •range of penalties.
. No one would suggest that, in such circumstances, a defendant’s right to proof beyond a reasonable doubt is somehow less important because, regardless of how the disputed element is decided, the defendant will properly be found guilty of some degree of crime.
But this, in essence, is the reasoning employed by the courts that have refused to extend retroactive application to Apprendi and Blakely. These courts have declared that the guarantee of proof beyond a reasonable doubt is less precious when the disputed issue of fact will not determine whether the defendant is guilty or innocent, but will instead determine only the defendant’s range of punishment. This analysis is fundamentally at odds with the Supreme Court’s decisions in Apprendi, Blakely, and Booker.
*55As Justice Stevens explained in Booker, the guarantee of jury trial-with its concomitant guarantee of proof beyond a reasonable doubt-was being eroded by the enactment of determinate sentencing schemes under which the jury's verdict at trial would subject the defendant to a limited range of sentences, and then the judge's decision at the sentencing hearing might subject the defendant to a much more severe penalty.
As noted in the majority opinion, a first felony offender convicted of first-degree sexual assault or first-degree sexual abuse of a minor faced a maximum sentence of 8 years' imprisonment under the pre-March 2005 version of Alaska's presumptive sentencing law-unless the State proved one or more aggravating factors at sentencing, in which case the defendant's maximum sentence became 40 years' imprisonment.27 Similarly, a first felony offender convicted of armed robbery faced a maximum sentence of either 5 or 7 years' imprisonment-unless the State proved one or more aggravating factors at sentencing, in which case the defendant's maximum sentence became 20 years' imprisonment.28
In other words, when it came down to assessing the defendant's actual jeopardy for a criminal offense, and the effect that a criminal conviction would have on the defendant's life and liberty, it was often more important for the defendant to prevail at the sentencing hearing than it was for the defendant to prevail at trial. Apprendi, Blakely, and Booker all stand for the proposition that it is fundamentally unfair to subject a defendant to such increases in punishment unless the factual issues that trigger the greater penalty are proved beyond a reasonable doubt.
Thus, the courts that have refused to extend retroactive application to Apprendi and Blakely are wrong when they declare that proof beyond a reasonable doubt is a crucial component of due process only when the issue being litigated is an element of the offense, and that proof beyond a reasonable doubt is not so important when the issue being litigated is "merely" a sentencing factor that determines the defendant's maximum penalty for the offense.
See the dissenting opinion of Judge O'Scannlain in Bockting v. Bayer, 418 F.3d 1055, 1057 n. 2 (9th Cir.2005): "Of course, Blakely relates to the accuracy of sentences, not underlying convictions. [But] I do not see how [this] difference can be material, ... when the point of Blakely and the entire line of jurisprudence stemming from Apprendi is precisely that sentencing factors must be treated as [the equivalent of] elements of a crime when they increase the defendant's maximum sentence." see how [this] difference can be material, ... when the point of Blakely and the entire line of jurisprudence stemming from Apprendi is precisely that sentencing factors must be treated as [the equivalent of] elements of a crime when they increase the defendant's maximum sentence."
It is true, as many courts have pointed out, that when the Teague decision describes the types of rules that fall within the retroactivity exception for "procedures that are implicit in the concept of ordered liberty", Teague paraphrases this exception as encompassing only rules that enforce "bedrock procedural elements [whose absence will] vitiate the fairness of a particular comviction ". 489 U.S. at 311, 109 S.Ct. at 1076 (emphasis added). The Teague decision also paraphrases this retroactivity exception as encompassing only rules which, if breached, will "seriously diminish[ 1" "the likelihood of an accurate conviction ". Id., 489 U.S. at 818, 109 S.Ct. at 1077 (emphasis added).
The courts that refuse to apply Apprendi and Blakely retroactively often rely on this language-in particular, the Supreme Court's references to "conviction"-to bolster their conclusion that proof beyond a reasonable doubt is not so important when the factual issues being litigated only affect the defendant's maximum sentence.
But the Supreme Court's references to a "conviction" were obviously not spoken with Apprendi and Blakely in mind-since Teague was decided eleven years before Apprendi. More importantly, even though the Supreme Court spoke of ensuring the fairness and accuracy of a "conviction", it appears that the Supreme Court was simply using the word "conviction" as a shorthand for the true rule: ensuring the fairness and accuracy of every factual determination required to establish *56the defendant's guilt and range of punishment.
Courts have traditionally used a similar shorthand when they describe the rule for determining whether a defendant is entitled to a new trial based on newly discovered evidence. For instance, both the Alaska Supreme Court and this Court have repeatedly stated that, in order to gain a new trial, the defendant must prove that the newly discovered evidence would "probably produce an acquittal".29
But this is not the true rule. Defendants are in fact entitled to a new trial if they show that the newly discovered evidence would probably affect the jury's verdict in any way favorable to the defendant-even if there is little chance that the jury would acquit the defendant altogether. See In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 519, 541 nn. 82-33, 855 P.2d 729, 739, 761 nn. 32-83 (1998) (phrasing the test as whether the new evidence "point[s] unerringly to innocence or reduced culpability"); Summerville v. Warden, State Prison, 229 Conn. 397, 641 A.2d 1356, 1375 (1994) (quoting the California Supreme Court's language in In re Clark with approval); Bellmore v. State, 602 N.E.2d 111, 121 (Ind.1992) (stating the test as whether the new evidence "would probably produce a different result"); State v. Vance, 714 N.W.2d 428, 444 (Minn.2006) (stating the test as whether "the evidence will probably result in either an acquittal or a more favorable result for the defendant"); Yorke v. State, 315 Md. 578, 556 A.2d 230, 2835 (1989) (stating the test as whether the new evidence would have "produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected").
In particular, courts will grant a new trial if the newly discovered evidence establishes a substantial probability that, even though the jury would have convicted the defendant, the jury would not have voted for the death penalty. State v. Herrera, 176 Ariz. 21, 859 P.2d 1831, 137 (1998); In re Clark, 5 Cal. 4th 750, 21 Cal.Rptr.2d 509, 541 nn. 82-883, 855 P.2d 729, 761 nn. 32-33 (1993); Miller v. State, 380 Md. 1, 848 A.2d 803, 808-09 (2004).
Just as the test for granting relief based on newly discovered evidence is not limited to evidence that would probably produce an "acquittal", the Teague exception for new rules that establish "procedures ... implicit in the concept of ordered liberty" must not be confined to procedures that ensure the fairness and validity of the defendant's "conviction". Rather, this exception encompasses all procedures that ensure the fairness and validity of judicial findings regarding the defendant's level of culpability-including the findings that will determine the defendant's maximum sentence.
This interpretation of Teague is confirmed by the Supreme Court's decision- in Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1998). The defendant in Gro-ham had been sentenced to death in Texas; he sought federal habeas corpus relief, arguing that Texas law improperly limited his ability to present mitigating information to the jury that ultimately decided to condemn him to death. The Supreme Court concluded that Graham was arguing for a "new rule"that is, a procedural right that was not clearly granted by the Court's prior decisions in this area. The Court then concluded that Graham's proposed rule did not meet the second Teague exception to the bar on retro-activity. [The Teague exception is limited to] such procedures [as] would be ... central to an accurate determination of innocence or guilt.... [Teague,] 489 U.S. at 318, 109 S.Ct. at 1077. We do not believe that denying Graham special jury instructions concerning his mitigating evidence of youth, family background, and positive character traits "seriously diminish{ed] the likelihood of obtaining an accurate determination" in his sentencing proceeding. Accordingly, we find the second Teague exception to be inapplicable . ...
[The Teague exception is limited to] such procedures [as] would be ... central to an accurate determination of innocence or guilt.... [Teague,] 489 U.S. at 318, 109 S.Ct. at 1077. We do not believe that denying Graham special jury instructions concerning his mitigating evidence of youth, family background, and positive character traits "seriously diminish{ed] the likelihood of obtaining an accurate determination" in his sentencing proceeding. Accordingly, we find the second Teague exception to be inapplicable . ...
Graham, 506 U.S. at 478, 118 S.Ct. at 908.
For present purposes, the important thing is not that the Supreme Court denied Gra*57ham relief. Rather, the important thing is how the Supreme Court handled Graham's claim. The Court did not tell Graham that his claim failed the Teague test because any potential flaw related only to the jury's decision to impose the death penalty, rather than to the jury's decision to convict Graham. Rather, the Supreme Court denied relief to Graham because the Court concluded that, even if Texas might have been required to let Graham present the mitigating evidence he wanted, the failure to honor this purported procedural right did not "seriously diminish[ ] the likelihood of obtaining an accurate determination in [Graham's ] sentencing proceeding." (Emphasis added)
Similarly, in Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 LEd.2d 442 (2004), even though the Supreme Court quoted Teague's language about ensuring the accuracy of a "conviction", Id., 542 U.S. at 352, 124 S.Ct. at 2528, the Court was in fact dealing with the fairness of a sentencing procedure. The factual issues being litigated in Summerlin would determine, not the defendant's guilt or innocence, but. rather whether the defendant would be subjected to capital punishment. Id., 542 U.S. at 350, 855-58, 124 S.Ct. at 2521, 2524-26.
In other words, the second Teague exception is not limited to rules that ensure the fundamental fairness and accuracy of a defendant's conviction. This exception also encompasses rules that establish procedures to ensure the fundamental fairness and aceura-cy of the findings of fact that determine the defendant's level of punishment.
For these reasons, I conclude that Teague allows retroactive application of rules of procedure that ensure the fundamental fairness of the judicial decision-making governed by Apprendi and Blakely-i.e., decisions regarding the facts that determine a defendant's maximum punishment. And the requirement of proof beyond a reasonable doubt is a rule that ensures the fundamental fairness of these decisions.
In this context, the "fairness" and "accuracy" of a decision means something different from the factual accuracy of that decision. As explained in this Court's majority opinion, the "accuracy" of a verdict in a criminal case does not necessarily mean that the verdict accurately reflects the true facts of the incident being litigated. Rather, as the Alaska Supreme Court explained in Shaw v. Department of Administration, 861 P.2d 566 (Alaska 19983), our law's insistence on the principle of proof beyond a reasonable doubt actually entails sacrificing the goal of accurate fact-finding in favor of a more important goal: the goal of precluding the government from inflicting criminal penalties on a defendant when there is a reasonable possibility that the defendant did not do the things that would make the defendant subject to those penalties. Id. at 571.
Thus, an "accurate" verdict in a criminal case is a verdict that preserves this latter principle: the principle that no eriminal penalty shall be inflicted in the absence of proof beyond a reasonable doubt of all the facts necessary to authorize that punishment.
In Ivan V. v. City of New York,30 the United States Supreme Court extended full retroactivity to the constitutional requirement that all facts necessary to establish the defendant's guilt be proved beyond a reasonable doubt. Now that Apprendi and Blakely have clarified that this same requirement of proof beyond a reasonable doubt applies equally to the facts that are necessary to establish the defendant's maximum punishment, I see no principled reason to refuse retroactive relief to defendants who were denied this right. It is fundamentally unfair to keep a defendant in prison for years-perhaps for decades-longer than the otherwise authorized presumptive term of imprisonment when the government has never proved the facts that authorized the longer sentence beyond a reasonable doubt.
I therefore conclude that Blakely must be accorded full retroactivity under the Teague test.
. 489 U.S. 288, 109 S.Ct. 1060, 103 LEd.2d 334 (1989).
. Teague, 489 U.S. at 308, 109 S.Ct. at 1074.
. Id., 489 U.S. at 310, 109 S.Ct. at 1075.
. Quoting Merrill v. State, 457 P.2d 231, 236 (Alaska 1969).
. Overruled on other grounds in State v. Dunlop, 721 P.2d 604 (Alaska 1986).
. Teague, 489 U.S. at 307, 109 S.Ct. at 1073.
. Id., 489 U.S. at 312, 109 S.Ct. at 1076.
. Id., 489 U.S. at 313, 109 S.Ct. at 1077.
. Schriro v. Summerlin, 542 U.S. 348, 352 & n. 4, 124 S.Ct. 2519, 2522 & n. 4, 159 LEd.2d 442 (2004).
. Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 2497, 120 LEd.2d 225 (1992) (O'Connor, J., concurring).
. Beard v. Banks, 542 U.S. 406, 416, 124 S.Ct. 2504, 2513, 159 L.Ed.2d 494 (2004).
. Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002).
. Teague, 489 U.S. at 307, 109 S.Ct. at 1073.
. Id., 489 U.S. at 312, 109 S.Ct. at 1076.
. Id., 489 U.S. at 330, 109 S.Ct. at 1086 (Brennan, J., dissenting).
. Id., 397 U.S. at 362, 90 S.Ct. at 1071.
. Id.
. Id., 397 U.S. at 362, 90 S.Ct. at 1072.
. Teague, 489 U.S. at 307, 109 S.Ct. at 1073.
. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (20035).
. Sullivan, 508 U.S. 275, 278, 113 S.C. 2078, 2081, 124 L.Ed.2d 182 (1993).
. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000).
. Id., 530 U.S. at 494, 120 S.Ct. at 2365.
. Blakely, 542 U.S. at 305, 124 S.Ct. at 2538.
. 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
. Booker, 543 U.S. at 231, 125 S.Ct. at 748 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63).
. Former AS 12.55.125(i) (pre-March 2005 version}.
. Former AS 12.55.125(c) (pre-March 2005 version).
. James v. State, 84 P.3d 404, 406 (Alaska 2004); Salinas v. State, 373 P.2d 512, 514 (Alaska 1962); Lewis v. State, 901 P.2d 448, 450 (Alaska App.1995); Charles v. State, 780 P.2d 377, 383 (Alaska App.1989).
. 407 U.S. 203, 204-05, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972).