477 F.2d 375 (1973)

No. 596, Docket 72-1450.

[376] Robert L. Boehm, New York City (Morton Stavis, William M. Kunstler, Center for Constitutional Rights, Michael Rattner, David Scribner, New York City, of counsel), for plaintiffs-appellants.

Joel Lewittes, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for the State defendants-appellees.

T. Gorman Reilly, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for S. D. New York, Michael D. Hess, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee, H. Kenneth Schroeder, Jr.

Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

This appeal raises the question of whether the federal judiciary should, at the instance of victims, compel federal and state officials to investigate and prosecute persons who allegedly have violated certain federal and state criminal statutes. Plaintiffs in the purported class suit, which was commenced in the Southern District of New York against various state and federal officers, are certain present and former inmates of New York State's Attica Correctional Facility ("Attica"), the mother of an inmate who was killed when Attica was retaken after the inmate uprising in September 1971, and Arthur O. Eve, a New York State Assemblyman and member of the Subcommittee on Prisons.

They appeal from an order of the district court, Lloyd F. MacMahon, Judge, dismissing their complaint. We affirm.

The complaint alleges that before, during, and after the prisoner revolt at and subsequent recapture of Attica in September 1971, which resulted in the killing of 32 inmates and the wounding of many others, the defendants, including the Governor of New York, the State Commissioner of Correctional Services, the Executive Deputy Commissioner of the State Department of Correctional Services, the Superintendent at Attica, and certain State Police, Corrections Officers, and other officials, either committed, conspired to commit, or aided and abetted in the commission of various crimes against the complaining inmates and members of the class they seek to represent. It is charged that the inmates were intentionally subjected to cruel and inhuman treatment prior to the inmate riot, that State Police, Troopers, and Correction Officers (one of whom is named) intentionally killed some of the inmate victims without provocation during the recovery of Attica, that state officers (several of whom are named and whom the inmates claim they can identify) assaulted and beat prisoners after the prison had been successfully retaken and the prisoners had surrendered, see Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971), that personal property of the inmates was thereafter stolen or destroyed, and that medical assistance was maliciously denied to over 400 inmates wounded during the recovery of the prison.

The complaint further alleges that Robert E. Fischer, a Deputy State Attorney General specially appointed by the Governor to supersede the District Attorney of Wyoming County and, with a specially convened grand jury, to investigate crimes relating to the inmates' takeover of Attica and the resumption of control by the state authorities, see Inmates, supra at 16 and n. 3, "has not investigated, nor does he intend to investigate, any crimes committed by state [377] officers." Plaintiffs claim, moreover, that because Fischer was appointed by the Governor he cannot neutrally investigate the responsibility of the Governor and other state officers said to have conspired to commit the crimes alleged. It is also asserted that since Fischer is the sole state official currently authorized under state law to prosecute the offenses allegedly committed by the state officers, no one in the State of New York is investigating or prosecuting them.^[1]

With respect to the sole federal defendant,^[2] the United States Attorney for the Western District of New York, the complaint simply alleges that he has not arrested, investigated, or instituted prosecutions against any of the state officers accused of criminal violation of plaintiffs' federal civil rights, 18 U.S.C. §§ 241, 242, and he has thereby failed to carry out the duty placed upon him by 42 U.S.C. § 1987, discussed below.

As a remedy for the asserted failure of the defendants to prosecute violations of state and federal criminal laws, plaintiffs request relief in the nature of mandamus (1) against state officials, requiring the State of New York to submit a plan for the independent and impartial investigation and prosecution of the offenses charged against the named and unknown state officers, and insuring the appointment of an impartial state prosecutor and state judge to "prosecute the defendants forthwith," and (2) against the United States Attorney, requiring him to investigate, arrest and prosecute the same state officers for having committed the federal offenses defined by 18 U.S.C. §§ 241 and 242. The latter statutes punish, respectively, conspiracies against a citizen's free exercise or enjoyment of rights secured by the Constitution and laws of the United States, see United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and the willful subjection of any inhabitant, under color of law, to the deprivation of such rights or to different punishment or penalties on account of alienage, color, or race than are prescribed for the punishment of citizens, see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941).^[3]

Federal jurisdiction over the claim against the state defendants was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and over the claim against the United States Attorney on the mandamus statute. 28 U.S.C. § 1361. Venue in the Southern District of New York was predicated on 28 U.S.C. §§ 1391(b), 1392(a). The motions of the federal and state defendants to dismiss the complaint for failure to state claims upon which relief can be granted, Rule 12(b)(6), F.R.Civ.P., were granted by Judge MacMahon without opinion. We agree that the extraordinary relief sought cannot be granted in the situation here presented.

[378] Standing

At the outset, we must note that the Supreme Court's recent decision in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), to which the attention of the parties in this case was not drawn prior to argument, raises the preliminary question of whether plaintiffs have a sufficient "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to confer standing upon them to invoke the judicial process. In Linda R.S. the mother of an illegitimate child sought to attack as unconstitutionally discriminatory the application of a Texas criminal statute prohibiting the willful refusal of "any parent" to support his or her child on the ground that it was enforced by the state, as a result of state court interpretation of the statute, against married but not unmarried fathers. Holding that she lacked standing, the Supreme Court, in a majority opinion by Justice Marshall, observed:

"The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 752, 6 L.Ed.2d 989 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." 410 U.S. at 619, 93 S.Ct. at 1149.

The broad reach of this language would, at first blush, appear to preclude the plaintiffs here from seeking to contest the nonprosecution of third parties they accuse of criminal conduct. However, the present case is in some respects distinguishable from Linda R.S. Unlike the mother there the inmates here might be said to have sustained or be immediately in danger of sustaining direct personal injury as the result of nonenforcement of the criminal laws against the accused state officers. See 410 U.S. at 619, 93 S.Ct. 1146; Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). They allege that at least some of them suffered direct physical injury at the hands of those they seek to have prosecuted and that if the state officers accused of criminal conduct are not prosecuted, such conduct will continue.

Thus a more immediate and direct danger of injury resulting from nonenforcement is presented here than in Linda R.S., where the Court stressed that the only result of the relief sought by the illegitimate child's mother would be the jailing of the child's father, not the support of the child. Where a successful prosecution, however, would serve to deter the accused from harming the complainant rather than merely supply a penal inducement to perform a duty to provide assistance, the complaining person does show a more direct nexus between his personal interest in protection from harm and the prosecution. But in the present case this rationale in support of standing assumes that injunctive relief, which we conditionally authorized in Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 22-25, restraining physical abuse, torture, beatings or other forms of brutality, or threats of such conduct, is ineffective to protect the plaintiffs from harm.

It may also be argued that since 37 inmates have been indicted for crimes relating to the events at Attica in September 1971, without any indictment having been filed against any of the accused state officials, the complaint alleges a sufficient threat of selective and discriminatory prosecution of the plaintiff inmates to meet the standing requirements discussed in Linda R.S. v. Richard D., supra. On the other hand, [379] the challenge in the present case is not to any criminal statute, as construed, but to the failure of the prosecuting authorities to enforce the criminal laws against a particular group of individuals.

Thus in order to determine whether plaintiffs have standing to sue we would be required to resolve troublesome questions. However, we need not decide the issue of standing because we believe that even if they may properly present their claims for judicial resolution, they seek relief which cannot, in this case at least, be granted either against the state or federal prosecuting authorities.

The Insufficiency of the Complaint

(1) Claim Against the United States Attorney

With respect to the defendant United States Attorney, plaintiffs seek mandamus to compel him to investigate and institute prosecutions against state officers, most of whom are not identified, for alleged violations of 18 U.S.C. §§ 241 and 242. Federal mandamus is, of course, available only "to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. And the legislative history of § 1361 makes it clear that ordinarily the courts are "`not to direct or influence the exercise of discretion of the officer or agency in the making of the decision,'" United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). More particularly, federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made. E. g., Milliken v. Stone, 16 F.2d 981 (2d Cir.), cert. denied, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331 (1927); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y.1961); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359, rehearing denied, 384 U.S. 967, 86 S.Ct. 1584, 16 L.Ed.2d 679 (1966); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). See also Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir.1955); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967).

This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, see Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 24 (and cases there cited), serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.1963), affd. sub nom., Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965); Peek v. Mitchell, 419 F.2d 575 (6th Cir.1970).

The primary ground upon which this traditional judicial aversion to compelling prosecutions has been based is the separation of powers doctrine.

"Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere [380] with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." United States v. Cox, supra 342 F.2d at 171.

Accord, Pugach v. Klein, supra 193 F. Supp. at 634; Moses v. Kennedy, 219 F. Supp. at 764-765; Peek v. Mitchell, supra 419 F.2d at 577-578.

Although a leading commentator has criticized this broad view as unsound and incompatible with the normal function of the judiciary in reviewing for abuse or arbitrariness administrative acts that fall within the discretion of executive officers, K. C. Davis, Administrative Law Treatise § 28.16(4) at 982-990 (1970 Supp.), he has also recognized, as have most of the cases cited above, that the manifold imponderables which enter into the prosecutor's decision to prosecute or not to prosecute make the choice not readily amenable to judicial supervision.

In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming "superprosecutors." In the normal case of review of executive acts of discretion, the administrative record is open, public and reviewable on the basis of what it contains. The decision not to prosecute, on the other hand, may be based upon the insufficiency of the available evidence, in which event the secrecy of the grand jury and of the prosecutor's file may serve to protect the accused's reputation from public damage based upon insufficient, improper, or even malicious charges. In camera review would not be meaningful without access by the complaining party to the evidence before the grand jury or U.S. Attorney. Such interference with the normal operations of criminal investigations, in turn, based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted. Any person, merely by filing a complaint containing allegations in general terms (permitted by the Federal Rules) of unlawful failure to prosecute, could gain access to the prosecutor's file and the grand jury's minutes, notwithstanding the secrecy normally attaching to the latter by law. See Rule 6(e), F.R.Cr.P.

Nor is it clear what the judiciary's role of supervision should be were it to undertake such a review. At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong "test" case rather than pursue weaker cases? What collateral factors would be permissible bases for a decision not to prosecute, e. g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws? See generally, Schwartz, Federal Criminal Jurisdiction and Prosecutors' Discretion, 13 Law & Contemp.Prob. 64 (1948). With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court?

These difficult questions engender serious doubts as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court's decision to compel prosecution for the U.S. Attorney's decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, see Note, Discretion [381] to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297, 1310-12 (1965), would be unwise.

Plaintiffs urge, however, that Congress withdrew the normal prosecutorial discretion for the kind of conduct alleged here by providing in 42 U.S.C. § 1987^[4] that the United States Attorneys are "authorized and required . . . to institute prosecutions against all persons violating any of the provisions of [18 U.S.C. §§ 241, 242]" (emphasis supplied), and, therefore, that no barrier to a judicial directive to institute prosecutions remains. This contention must be rejected. The mandatory nature of the word "required" as it appears in § 1987 is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes. Similar mandatory language is contained in the general direction in 28 U.S.C. § 547(1) ("each United States attorney, . . . shall—(1) prosecute for all offenses against the United States; . . ." (emphasis supplied)) and in other statutes in particular areas of concern, e. g., 33 U.S.C. § 413 ("it shall be the duty of United States attorneys to vigorously prosecute all offenders" of certain provisions of the Rivers and Harbors Act when requested to do so by the appropriate officials). See also 45 U.S.C. § 152 (Tenth).

Such language has never been thought to preclude the exercise of prosecutorial discretion. See Bass Angler's Sportsman's Society v. Scholze Tannery, Inc., 329 F.Supp. 339, 345-346 (E.D.Tenn. 1971). Indeed the same contention made here was specifically rejected in Moses v. Kennedy, 219 F.Supp. 762, 765 (D.D.C.1963), aff'd. 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), where seven black residents and one white resident of Mississippi sought mandamus to compel the Attorney General of the United States and the Director of the F.B.I. to investigate, arrest, and prosecute certain individuals, including state and local law enforcement officers, for willfully depriving the plaintiffs of their civil rights. There the Court noted that "considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action." See also Peek v. Mitchell, supra.

Nor do we find the legislative history of § 1987 persuasive of an intent by Congress to depart so significantly from the normal assumption of executive discretion. In re Upchurch, 38 F. 25, 27 (C.C.N.C.1889), relied upon by plaintiffs, held only that a United States commissioner had the power under § 1987 to appoint a person other than the marshal, or one of his deputies, to execute process. It may well be that the legislative background of § 1987 would compel a reading that Congress intended that federal marshals have no choice but to execute warrants issued pursuant to that section, since it also provided for criminal penalties for those who refused to do so and for the appointment of other persons to execute warrants and make arrests. No such conclusion can persuasively be drawn with respect to the exercise by United States Attorneys of prosecutorial discretion, especially in the absence of any similar statutory deterrent [382] against their failure or refusal to prosecute. See Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L. J. 1297, 1306-07 and n. 46 (1965). Thus, we do not read § 1987 as stripping the United States Attorneys of their normal prosecutorial discretion for the civil rights crimes specified.

It therefore becomes unnecessary to decide whether, if Congress were by explicit direction and guidelines to remove all prosecutorial discretion with respect to certain crimes or in certain circumstances we would properly direct that a prosecution be undertaken. Cf. Powell v. Katzenbach, supra, 359 F.2d at 235; Note, supra at 1305.

(2) Claims Against the State Officials

With respect to the state defendants, plaintiffs also seek prosecution of named and unknown persons for the violation of state crimes. However, they have pointed to no statutory language even arguably creating any mandatory duty upon the state officials to bring such prosecutions. To the contrary, New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in the state courts. Hassan v. Magistrates Court, 20 Misc.2d 509, 191 N.Y.S.2d 238 (1959), appeal dismissed, 10 A.D.2d 908, 202 N.Y.S.2d 1002 (2d Dept.), leave to appeal denied, 8 N.Y.2d 750, 201 N.Y.S.2d 765, cert. denied, 364 U.S. 844, 81 S.Ct. 86, 5 L.Ed. 2d 68 (1960). Yet the federal district court is asked to compel state prosecutions and appoint an "impartial" state prosecutor and state judge to conduct them, as well as to require the submission of a plan for impartial investigation and prosecution of the alleged offenses, on the basis of 42 U.S.C. § 1983, in the context of a continuing grand jury investigation into criminal conduct connected with the Attica uprising, supra n. 1, and where the state itself on September 30, 1971, appointed a Special Commission on Attica which has now published its findings.^[5] The very elaborateness of the relief believed by plaintiffs to be required indicates the difficulties inherent in judicial supervision of prosecutions, federal or state, which render such a course inadvisable.

Plaintiffs point to language in our earlier opinion, Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2d Cir. 1971), to the effect that "the State has the duty to investigate and prosecute all persons, including inmates, who may have engaged in criminal conduct before, during and after the uprising." But the statement does not support their present demands. The existence of such a duty does not define its dimensions or imply that an alleged failure to perform the duty completely or equally, as between inmates and state officials, will support federal judicial supervision of state criminal prosecutions. The serious charge that the state's investigation is proceeding against inmates but not against state officers, if shown to be accurate, might lead the Governor to supplement or replace those presently in charge of the investigation or the state legislature to act. But the gravity of the allegation does not reduce the inherent judicial incapacity to supervise.

The only authority supporting the extraordinary relief requested here is the Seventh Circuit's recent decision in Littleton v. Berbling, 468 F.2d 389 (1972), cert. granted, 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973). There a class of black citizens of Cairo, Illinois, brought suit for damages and injunctive relief against a state prosecutor, an investigator for him, a magistrate and a state judge, charging that the defendants had "systematically applied the state criminal laws so as to discriminate against plaintiffs and their class on the basis of race, interfering thereby with the free exercise of their constitutional [383] rights." Id. at 392. They alleged a long history indicating a concerted pattern of officially sponsored racial discrimination. In reversing the district court's dismissal of the complaint, a divided panel concluded that a state judge, while not subject to suit for damages under § 1983, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), may be enjoined from unconstitutionally fixing bails and imposing sentences that discriminated sharply against black persons, and that the State Attorney's quasi-judicial immunity from suit for damages when performing his prosecutorial function, id. 468 F.2d at 410, "does not extend to complete freedom from injunction," id. at 411. Finding other possible remedies either unavailable or ineffective, the Court approved the possibility of some type of injunctive relief, not fully specified, but which might include a requirement of "periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints." Id. at 415.

However, the decision in Littleton is clearly distinguishable. There the claim, unlike that here, alleged a systematic and lengthy course of egregious racial discrimination in which black persons were denied equal access to and treatment by the state criminal justice system. Furthermore, the Court's decision does not appear to have compelled the institution of criminal prosecutions, which is the principal relief sought here. In short, we believe that Littleton should be strictly limited to its peculiar facts, as apparently did the Court itself. See id. at 415. To the extent that it may be construed as approving federal judicial review and supervision of the exercise of prosecutorial discretion and as compelling the institution of criminal proceedings, we do not share such an extension of its views.

The order of the district court is affirmed.

[1] The State has pointed out that the special Wyoming County grand jury has already handed down 37 sealed indictments and has not yet completed its investigation. On oral argument, however, the Assistant Attorney General observed that none of the indictments handed down thus far concerns any state officer and, of course, that there is no assurance that further indictments will be forthcoming.

[2] See note 3 infra.

[3] As originally filed, the complaint also sought a declaratory judgment against defendants Rockefeller, Oswald, Dunbar, Mancusi, and other defendants named in the complaint, declaring them to be "unfit to administer Attica Correctional Facility and the prison system of New York," and an order permanently enjoining these state officials from further administration of the prison system and placing the entire system, including the facility at Attica, into federal receivership. The United States Magistrate for the Western District of New York, Edmund Maxwell, was also named as a defendant in the complaint. Prior to the hearing on the motions to dismiss, however, plaintiffs consented to the dismissal of that portion of the complaint which requested such relief and to the dismissal of Maxwell as a defendant.

[4] 1987. Prosecution of violation of certain laws

"The United States attorneys, marshals, and deputy marshals, the commissioners appointed by the district and territorial courts, with power to arrest, imprison, or bail offenders, and every other officer who is especially empowered by the President, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of section 1990 of this title or of sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes, and to cause such persons to be arrested, and imprisoned or bailed, for trial before the court of the United States or the territorial court having cognizance of the offense."

Page 743

          Peter J. Adang, Albuquerque, N.M., for petitioner.

          Joseph J. Connolly, Washington, D.C., for respondent.

           Mr. Justice WHITE delivered the opinion of the Court.

          In 1959, petitioner was charged with kidnaping in violation of 18 U.S.C. § 1201(a).¹ Since the indictment charged that the victim of the kidnaping was not liberated unharmed, petitioner faced a maximum penalty of death if the verdict of the jury should so recommend. Petitioner, represented by competent counsel throughout, first elected to plead not guilty. Apparently because the trial judge was unwilling to try the case without a jury, petitioner made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, petitioner changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea.²

Page 744

Petitioner was sentenced to 50 years' imprisonment, later reduced to 30.

          In 1967, petitioner sought relief under 28 U.S.C. § 2255, claiming that his plea of guilty was not voluntarily given because § 1201(a) operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. It was also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure.³

Page 745

          After a hearing, the District Court for the District of New Mexico denied relief. According to the District Court's findings, petitioner's counsel did not put impermissible pressure on petitioner to plead guilty and no representations were made with respect to a reduced sentence or clemency. The court held that § 1201(a) was constitutional and found that petitioner decided to plead guilty when he learned that his codefendant was going to plead guilty: petitioner pleaded guilty 'by reason of other matters and not by reason of the statute' or because of any acts of the trial judge. The court concluded that 'the plea was voluntarily and knowingly made.'

          The Court of Appeals for the Tenth Circuit affirmed, determining that the District Court's findings were supported by substantial evidence and specifically approving the finding that petitioner's plea of guilty was voluntary. 404 F.2d 601 (1968). We granted certiorari, 395 U.S. 976, 89 S.Ct. 2146, 23 L.Ed.2d 764 (1969), to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court's decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). We affirm.

          In United States v. Jackson, supra, the defendants were indicted under § 1201(a). The District Court dismissed the § 1201(a) count of the indictment, holding

Page 746

the statute unconstitutional because it permitted imposition of the death sentence only upon a jury's recommendation and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court 'that the death penalty provision * * * imposes an impermissible burden upon the exercise of a constitutional right * * *.' 390 U.S., at 572, 88 S.Ct., at 1211. The problem was to determine 'whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury.' 390 U.S., at 581, 88 S.Ct., at 1216. The inevitable effect of the provision was said to be to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision 'needlessly penalize(d) the assertion of a constitutional right,' 390 U.S., at 583, 88 S.Ct., at 1217, and was therefore unconstitutional.

          Since the 'inevitable effect' of the death penalty provision of § 1201(a) was said by the Court to be the needless encouragement of pleas of guilty and waivers of jury trial, Brady contends that Jackson requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea. Petitioner, however, has read far too much into the Jackson opinion.

          The Court made it clear in Jackson that it was not holding § 1201(a) inherently coercive of guilty pleas: 'the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that

Page 747

every defendant who enters a guilty plea to a charge under the Act does so involuntarily.' 390 U.S., at 583, 88 S.Ct., at 1217. Cited in support of this statement, 390 U.S., at 583 n. 25, 88 S.Ct., at 1217, was Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967), where a plea of guilty (non vult) under a similar statute was sustained as voluntary in spite of the fact, as found by the District Court, that the defendant was greatly upset by the possibility of receiving the death penalty.

          Moreover, the Court in Jackson rejected a suggestion that the death penalty provision of § 1201(a) be saved by prohibiting in capital kidnaping cases all guilty pleas and jury waivers, 'however clear (the defendants') guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings.' '(T)hat jury waivers and guilty pleas may occasionally be rejected' was no ground for automatically rejecting all guilty pleas under the statute, for such a rule 'would rob the criminal process of much of its flexibility.' 390 U.S., at 584, 88 S.Ct., at 1218.

          Plainly, it seems to us, Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid wheth-involuntary or not. Jackson prohibits the imposition of the death penalty under § 1201(a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both 'voluntary' and 'intelligent.' See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711—1712, 23 L.Ed.2d 274 (1969).⁴

Page 748

          That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so—hence the minimum requirement that his plea be the voluntary expression of his own choice.⁵ But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.⁶ On neither score was Brady's plea of guilty invalid.

Page 749

          The trial judge in 1959 found the plea voluntary before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady's guilty plea.

          The voluntariness of Brady's plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948 (1954). One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty.⁷ But

Page 750

even if we assume that Brady would not have pleaded guilty except for the death penalty provision of § 1201(a), this assumption merely identifies the penalty provision as a 'but for' cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.

          The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction.

          Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty. Brady's claim is of a different sort: that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for

Page 751

the crime charged if a conviction is obtained after the State is put to its proof.

          Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations,⁸ as in Brady's case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.

            The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not

Page 752

constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages—the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof.⁹ It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty,¹⁰ a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.

          Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or

Page 753

the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.

          A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.

          Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be "free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." 168 U.S., at 542—543, 18 S.Ct., at 187. More recently, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.¹¹

Page 754

          Bram is not inconsistent with our holding that Brady's plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess. But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards.¹²

          Brady's situation bears no resemblance to Bram's. Brady first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to

Page 755

the requirements of the law with respect to guilty pleas. Brady's plea, unlike Bram's confession, was voluntary.

          The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:

          "(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).' 242 F.2d at page 115.'¹³

          Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.¹⁴

Page 756

          The record before us also supports the conclusion that Brady's plea was intelligently made. He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years. Brady was aware of precisely what he was doing when he admitted that he had kidnaped the victim and had not released her unharmed.

          It is true that Brady's counsel advised him that § 1201(a) empowered the jury to impose the death penalty and that nine years later in United States v. Jackson, supra, the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But these facts do not require us to set aside Brady's conviction.

          Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly

Page 757

sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant's lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.

          The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.

          This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are

Page 758

necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.

          Although Brady's plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made and we have no reason to doubt that his solemn admission of guilt was truthful.

          Affirmed.

          Mr. Justice BLACK, while adhering to his belief that United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, was wrongly decided, concurs in the judgment and in substantially all of the opinion in this case.

^{1. 'Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.'}

^2. Eight days after petitioner pleaded guilty, he was brought before the court for sentencing. At that time, the court questioned petitioner for a second time about the voluntariness of his plea:

'THE COURT: * * * Having read the presentence report and the statement you made to the probation officer, I want to be certain that you know what you are doing and you did know when you entered a plea of guilty the other day. Do you want to let that plea of guilty stand, or do you want to withdraw it and plead not guilty?

'DEFENDANT BRADY: I want to let that plea stand, sir.

'THE COURT: You understand that in doing that you are admitting and confessing the truth of the charge contained in the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right?

'DEFENDANT BRADY: Yes, your Honor.

'THE COURT: And you do do that?

'DEFENDANT BRADY: Yes, I do.

'THE COURT: You plead guilty to the charge?

'DEFENDANT BRADY: Yes, I do.' App. 29—30.

^3. When petitioner pleaded guilty, Rule 11 read as follows:

'A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.'

Rule 11 was amended in 1966 and now reads as follows:

'A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.'

In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), we held that a failure to comply with Rule 11 required that a defendant who had pleaded guilty be allowed to plead anew. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), we held that the McCarthy rule should apply only in cases where the guilty plea was accepted after April 2, 1969, the date of the McCarthy decision.

^4. The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6, infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. This Court has not yet passed on the question of the retroactivity of this new requirement.

^5. Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 965—966, 86 L.Ed. 1302 (1942); Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927).

^6. See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930).

Since an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney, this Court has scrutinized with special care pleas of guilty entered by defendants without the assistance of counsel and without a valid waiver of the right to counsel. See Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Von Moltke v. Gillies, 332 U.S. 708 and 727, 68 S.Ct. 316 and 325, 92 L.Ed. 309 (1948) (opinions of Black and Frankfurter, JJ.); Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945). Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. See White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968).

The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See nn. 3 and 4, supra.

^7. Such a possibility seems to have been rejected by the District Court in the § 2255 proceedings. That court found that 'the plea of guilty was made by the petitioner by reason of other matters and not by reason of the statute * * *.'

^8. We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady's case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty.

^9. For a more elaborate discussion of the factors that may justify a reduction in penalty upon a plea of guilty, see American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty § 1.8 and commentary, pp. 37—52 (Approved Draft 1968).

^10. It has been estimated that about 90%, and perhaps 95%, of all criminal convictions are by pleas of guilty; between 70% and 85% of all felony convictions are estimated to be by guilty plea. D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 3 and n. 1 (1966).

^11. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). See also Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Lynumn v. Illinois, 372 U.S. 528 (1963); Wilson v. United States, 162 U.S. 613, 622—623, 16 S.Ct. 895, 899—900, 40 L.Ed. 1090 (1896).

^12. 'The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege (against compelled self-incrimination). His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.' Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623 (1966).

^13. Shelton v. United States, 246 F.2d 571, 572 n. 2 (C.A.5th Cir. 1957) (en banc), rev'd on confession of error on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).

^14. Our conclusion in this regard seems to coincide with the conclusions of most of the lower federal courts that have considered whether a guilty plea to avoid a possible death penalty is involuntary. See United States ex rel. Brown v. LaVallee, 424 F.2d 457 (C.A.2d Cir. 1970); United States v. Thomas, 415 F.2d 1216 (C.A.9th Cir. 1969); Pindell v. United States, 296 F.Supp. 751 (D.C.Conn.1969); McFarland v. United States, 284 F.Supp. 969 (D.C.Md.1968), aff'd, No. 13,146 (C.A.4th Cir., May 1, 1969), cert. denied, 397 U.S. 1077, 90 S.Ct. 1525, 25 L.Ed.2d 811; Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967); Gilmore v. California, 364 F.2d 916 (C.A.9th Cir. 1966); Busby v. Holman, 356 F.2d 75 (C.A.5th Cir. 1966); Cooper v. Holman, 356 F.2d 82 (C.A.5th Cir.), cert. denied, 385 U.S. 855, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966); Godlock v. Ross, 259 F.Supp. 659 (D.C.E.D.N.C.1966); United States ex rel. Robinson v. Fay, 348 F.2d 705 (C.A.2d Cir. 1965), cert. denied, 382 U.S. 997, 86 S.Ct. 583, 15 L.Ed.2d 484 (1966); Overman v. United States, 281 F.2d 497 (C.A.6th Cir. 1960), cert. denied, 368 U.S. 993, 82 S.Ct. 612, 7 L.Ed.2d 530 (1962); Martin v. United States, 256 F.2d 345 (C.A.5th Cir.), cert. denied, 358 U.S. 921, 79 S.Ct. 294, 3 L.Ed.2d 240 (1958). But see Shaw v. United States, 299 F.Supp. 824 (D.C.S.D.Ga.1969); Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), restored to calendar for reargument, 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed.2d 682.

                            See 435 U.S. 918, 98 S.Ct. 1477.

Syllabus

            The Due Process Clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused reindicted on more serious charges on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged. Pp. 360-365.

            (a) "[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. Pp. 361-362.

            (b) Though to punish a person because he has done what the law allows violates due process, see North Carolina v. Pearce, 395 U.S. 711, 738, 89 S.Ct. 2072, 2082, 23 L.Ed.2d 656, there is no such element of punishment in the "give-and-take" of plea bargaining as long as the accused is free to accept or reject the prosecutor's offer. Pp. 362-364.

            (c) This Court has accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty, and in pursuing that course here the prosecutor did not exceed constitutional bounds. Pp. 364-365.

            547 F.2d 42, 6 Cir., reversed.

          Robert L. Chenoweth, Frankfort, Ky., for petitioner.

          J. Vincent Aprile II, Frankfort, Ky., for respondent.

Page 358

           Mr. Justice STEWART delivered the opinion of the Court.

          The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.

          The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky.Rev.Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the Commonwealth's Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and "save[d] the court the inconvenience and necessity of a trial," he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act,¹ then Ky.Rev.Stat. § 431.190 (1973) (repealed 1975), which would subject Hayes to a mandatory sentence of

Page 359

life imprisonment by reason of his two prior felony convictions.² Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the pros cutor was in possession of this evidence at the time of the original indictment, and that Hayes' refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.

          A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary. The Kentucky Court of Appeals rejected Hayes' constitutional objections to the enhanced sentence, holding in an unpublished opinion that imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been convicted,³ and that the prosecutor's decision to indict him as a habitual offender was a legitimate use of available leverage in the plea-bargaining process.

Page 360

          On Hayes' petition for a federal writ of habeas corpus, the United States District Court for the Eastern District of Kentucky agreed that there had been no constitutional violation in the sentence or the indictment procedure, and denied the writ.⁴ The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. Hayes v. Cowan, 547 F.2d 42. While recognizing "that plea bargaining now plays an important role in our criminal justice system," id., at 43, the appellate court thought that the prosecutor's conduct during the bargaining negotiations had violated the principles of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, which "protect[ed] defendants from the vindictive exercise of a prosecutor's discretion." 547 F.2d, at 44. Accordingly, the court ordered that Hayes be discharged "except for his confinement under a lawful sentence imposed solely for the crime of uttering a forged instrument." Id., at 45. We granted certiorari to consider a constitutional question of importance in the administration of criminal justice. 431 U.S. 953, 97 S.Ct. 2672, 53 L.Ed.2d 269.

          It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do o was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty.⁵ As a practical matter, in short, this

Page 361

case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.

          The Court of Appeals nonetheless drew a distinction between "concessions relating to prosecution under an existing indictment," and threats to bring more severe charges not contained in the original indictment—a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness.⁶ Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea.⁷ The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.

          We have recently had occasion to observe: "[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice sys-

Page 362

tem. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747, the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. Cf. Brady v. United States, supra, 397 U.S., at 751 n. 8, 90 S.Ct., at 1470. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.

          This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656, that the Due Process Clause of the Fourteenth Amendment "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a "realistic likelihood of 'vindictiveness.' " Blackledge v. Perry, 417 U.S., at 27, 94 S.Ct., at 2102.

          In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction—a situation "very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power." Parker v. North Carolina, 397 U.S. 790,

Page 363

809, 90 S.Ct. 1458, 1474, 1479, 25 L.Ed.2d 785 (opinion of Brennan, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, 94 S.Ct., at 2101-02.

            To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, 395 U.S., at 738, 89 S.Ct., at 2082 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is "patently unconstitutional." Chaffin v. Stynchcombe, supra, 412 U.S., at 32-33, n. 20, 93 S.Ct., at 1986. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. But in the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.

          Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra, 397 U.S., at 752, 90 S.Ct., at 1471. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S., at 758, 90 S.Ct., at 1474. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App. Draft 1968);

Page 364

Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Cf. Brady v. United States, supra, at 751, 90 S.Ct., at 1470; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

            While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable"—and permissible—"attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, supra, 412 U.S., at 31, 93 S.Ct., at 1985. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

          It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.⁸ Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446. To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion,

Page 365

may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. See Blackledge v. Allison, 431 U.S., at 76, 97 S.Ct., at 1630.

          There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.⁹ And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.

          Accordingly, the judgment of the Court of Appeals is

          Reversed.

           Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

          I feel that the Court, although purporting to rule narrowly (that is, on "the course of conduct engaged in by the prosecutor in this case," ante, this page), is departing from, or at least restricting, the principles established in North Carolina v.

Page 366

Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). If those decisions are sound and if those principles are salutary, as I must assume they are, they require, in my view, an affirmance, not a reversal, of the judgment of the Court of Appeals in the present case.

          In Pearce, as indeed the Court notes, ante, at 362, it was held that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S., at 725, 89 S.Ct., at 2080. Accordingly, if on the new trial, the sentence the defendant receives from the court is greater than that imposed after the first trial, it must be explained by reasons "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding," other than his having pursued the appeal or collateral remedy. Id., at 726, 89 S.Ct., at 2081. On the other hand, if the sentence is imposed by the jury and not by the court, if the jury is not aware of the original sentence, and if the second sentence is not otherwise shown to be a product of vindictiveness, Pearce has no application. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).

          Then later, in Perry, the Court applied the same principle to prosecutorial conduct where there was a "realistic likelihood of 'vindictiveness.' " 417 U.S., at 27, 94 S.Ct., at 2102. It held that the requirement of Fourteenth Amendment due process prevented a prosecutor's reindictment of a convicted misdemeanant on a felony charge after the defendant had exercised his right to appeal the misdemeanor conviction and thus to obtain a trial de novo. It noted the prosecution's "considerable stake" in discouraging the appeal. Ibid.

          The Court now says, however, that this concern with vindictiveness is of no import in the present case, despite the difference between five years in prison and a life sentence, because we are here concerned with plea bargaining where there is give-and-take negotiation, and where, it is said, ante,

Page 367

at 363, "there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Yet in this case vindictiveness is present to the same extent as it was thought to be in Pearce and in Perry ; the prosecutor here admitted, see ante, at 358 n. 1, that the sole reason for the new indictment was to discourage the respondent from exercising his right to a trial.¹ Even had such an admission not been made, when plea negotiations, conducted in the face of the less serious charge under the first indictment, fail, charging by a second indictment a more serious crime for the same conduct creates "a strong inference" of vindictiveness. As then Judge McCree aptly observed, in writing for a unanimous panel of the Sixth Circuit, the prosecutor initially "makes a discretionary determination that the interests of the state are served by not seeking more serious charges." Hayes v. Cowan, 547 F.2d 42, 44 (1976). I therefore do not understand why, as in Pearce, due process does not require that the prosecution justify its action on some basis other than discouraging respondent from the exercise of his right to a trial.

          Prosecutorial vindictiveness, it seems to me, in the present narrow context, is the fact against which the Due Process Clause ought to protect. I perceive little difference between vindictiveness after what the Court describes, ante, at 362, as the exercise of a "legal right to attack his original conviction,"

Page 368

and vindictiveness in the " 'give-and-take negotiation common in plea bargaining.' " Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself. The Court of Appeals rightly so held, and I would affirm the judgment.

          It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court's holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public.²

           Mr. Justice POWELL, dissenting.

          Although I agree with much of the Court's opinion, I am not satisfied that the result in this case is just or that the

Page 369

conduct of the plea bargaining met the requirements of due process.

          Respondent was charged with the uttering of a single forged check in the amount of $88.30. Under Kentucky law, this offense was punishable by a prison term of from 2 to 10 years, apparently without regard to the amount of the forgery. During the course of plea bargaining, the prosecutor offered respondent a sentence of five years in consideration of a guilty plea. I observe, at this point, that five years in prison for the offense charged hardly could be characterized as a generous offer. Apparently respondent viewed the offer in this light and declined to accept it; he protested that he was innocent and insisted on going to trial. Respondent adhered to this position even when the prosecutor advised that he would seek

Page 370

a new indictment under the State's Habitual Criminal Act which would subject respondent, if convicted, to a mandatory life sentence because of two prior felony convictions.

          The prosecutor's initial assessment of respondent's case led him to forgo an indictment under the habitual criminal statute. The circumstances of respondent's prior convictions are relevant to this assessment and to my view of the case. Respondent was 17 years old when he committed his first offense. He was charged with rape but pleaded guilty to the lesser included offense of "detaining a female." One of the other participants in the incident was sentenced to life imprisonment. Respondent was sent not to prison but to a reformatory where he served five years. Respondent's second offense was robbery. This time he was found guilty by a jury and was sentenced to five years in prison, but he was placed on probation and served no time. Although respondent's prior convictions brought him within the terms of the Habitual Criminal Act, the offenses themselves did not result in imprisonment; yet the addition of a conviction on a charge involving $88.30 subjected respondent to a mandatory sentence of imprisonment for life.¹ Persons convicted of rape and murder often are not punished so severely.

          No explanation appears in the record for the prosecutor's decision to escalate the charge against respondent other than respondent's refusal to plead guilty. The prosecutor has conceded that his purpose was to discourage respondent's assertion of constitutional rights, and the majority accepts this characterization of events. See ante, at 358 n. 1, 364.

          It seems to me that the question to be asked under the circumstances is whether the prosecutor reasonably might have charged respondent under the Habitual Criminal Act in the first place. The deference that courts properly accord the

Page 371

exercise of a prosecutor's discretion perhaps would foreclose judicial criticism if the prosecutor originally had sought an indictment under that Act, as unreasonable as it would have seemed.² But here the prosecutor evidently made a reasonable, responsible judgment not to subject an individual to a mandatory life sentence when his only new offense had societal implications as limited as those accompanying the uttering of a single $88 forged check and when the circumstances of his prior convictions confirmed the inappropriateness of applying the habitual criminal statute.³ I think it may be inferred that the prosecutor himself deemed it unreasonable and not in the public interest to put this defendant in jeopardy of a sentence of life imprisonment.

          There may be situations in which a prosecutor would be fully justified in seeking a fresh indictment for a more serious offense. The most plausible justification might be that it would have been reasonable and in the public interest initially

Page 372

to have charged the defendant with the greater offense. In most cases a court could not know why the harsher indictment was sought, and an inquiry into the prosecutor's motive would neither be indicated nor likely to be fruitful. In those cases, I would agree with the majority that the situation would not differ materially from one in which the higher charge was brought at the outset. See ante, at 360-361.

          But this is not such a case. Here, any inquiry into the prosecutor's purpose is made unnecessary by his candid acknowledgment that he threatened to procure and in fact procured the habitual criminal indictment because of respondent's insistence on exercising his constitutional rights. We have stated in unequivocal terms, in discussing United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that "Jackson and Pearce are clear and subsequent cases have not dulled their force: if the only objective of a state practice is to discourage the assertion of constitutional rights it is 'patently unconstitutional.' " Chaffin v. Stynchcombe, 412 U.S. 17, 32 n. 20, 93 S.Ct. 1977, 1986, 36 L.Ed.2d 714 (1973). And in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we drew a distinction between the situation there approved and the "situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty." Id., at 751 n. 8, 90 S.Ct., at 1470.

          The plea-bargaining process, as recognized by this Court, is essential to the functioning of the criminal-justice system. It normally affords genuine benefits to defendants as well as to society. And if the system is to work effectively, prosecutors must be accorded the widest discretion, within constitutional limits, in conducting bargaining. Cf. n. 2, supra. This is especially true when a defendant is represented by counsel and presumably is fully advised of his rights. Only in the most exceptional case should a court conclude that the scales of the bargaining are so unevenly balanced as to arouse suspicion. In this case, the prosecutor's actions denied respondent due

Page 373

process because their admitted purpose was to discourage and then to penalize with unique severity his exercise of constitutional rights. Implementation of a strategy calculated solely to deter the exercise of constitutional rights is not a constitutionally permissible exercise of discretion. I would affirm the opinion of the Court of Appeals on the facts of this case.

^{1. While cross-examining Hayes during the subsequent trial proceedings the prosecutor described the plea offer in the following language:}

"Isn't it a fact that I told you at that time [the initial bargaining session] if you did not intend to plead guilty to five years for this charge and . . . save the court the inconvenience and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions?" Tr. 194.

^2. At the time of Hayes' trial the statute provided that "[a]ny person convicted a . . . third time of felony . . . shall be confined in the penitentiary during his life." Ky.Rev.Stat. § 431.190 (1973) (repealed 1975). That statute has been replaced by Ky.Rev.Stat. § 532.080 (Supp. 1977) under which Hayes would have been sentenced to, at most, an indeterminate term of 10 to 20 years. § 532.080(6)(b). In addition, under the new statute a previous conviction is a basis for enhanced sentencing only if a prison term of one year or more was imposed, the sentence or probation was completed within five years of the present offense, and the offender was over the age of 18 when the offense was committed. At least one of Hayes' prior convictions did not meet these conditions. See n. 3, infra.

^3. According to his own testimony, Hayes had pleaded guilty in 1961, when he was 17 years old, to a charge of detaining a female, a lesser included offense of rape, and as a result had served five years in the state reformatory. In 1970 he had been convicted of robbery and sentenced to five years' imprisonment, but had been released on probation immediately.

^4. The opinion of the District Court is unreported.

^5. Compare United States ex rel. Williams v. McMann, 436 F.2d 103 (CA2), with United States v. Ruesga-Martinez, 534 F.2d 1367, 1370 (CA9). In citing these decisions we do not necessarily endorse them.

^6. "Although a prosecutor may in the course of plea negotiations offer a defendant concessions relating to prosecution under an existing indictment . . . he may not threaten a defendant with the consequence that more severe charges may be brought if he insists on going to trial. When a prosecutor obtains an indictment less severe than the facts known to him at the time might permit, he makes a discretionary determination that the interests of the state are served by not seeking more serious charges. . . . Accordingly, if after plea negotiations fail, he then procures an indictment charging a more serious crime, a strong inference is created that the only reason for the more serious charges is vindictiveness. Under these circumstances, the prosecutor should be required to justify his action." 547 F.2d, at 44-45.

^7. "In this case, a vindictive motive need not be inferred. The prosecutor has admitted it." Id., at 45.

^8. This case does not involve the constitutional implications of a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused, see ALI Model Code of Pre-Arraignment Procedure, Commentary to § 350.3, pp. 614-615 (1975), which might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider. Cf. Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747.

^9. This potential has led to many recommendations that the prosecutor's discretion should be controlled by means of either internal or external guidelines. See ALI Model Code of Pre-Arraignment Procedure for Criminal Justice §§ 350.3(2)-(3) (1975); ABA Project on Standards for Criminal Justice, The Prosecution Function §§ 2.5, 3.9 (App. Draft 1971); Abrahms, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L.Rev. 1 (1971).

^1. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), where the Court as a premise accepted plea bargaining as a legitimate practice, it nevertheless observed:

"We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty." Id., at 751 n. 8, 90 S.Ct., at 1470. See also Colon v. Hendry, 408 F.2d 864 (CA5 1969); United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); United States v. DeMarco, 401 F.Supp. 505 (C.D.Cal.1975), aff'd, 550 F.2d 1224 (CA9 1977), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 34 L.Ed.2d 85 (1977); United States v. Ruesga Martinez, 534 F.2d 1367, 1369 (CA9 1976).

^2. That prosecutors, without saying so, may sometimes bring charges more serious than they think appropriate for the ultimate disposition of a case, in order to gain bargaining leverage with a defendant, does not add support to today's decision, for this Court, in its approval of the advantages to be gained from plea negotiations, has never openly sanctioned such deliberate overcharging or taken such a cynical view of the bargaining process. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Normally, of course, it is impossible to show that this is what the prosecutor is doing, and the courts necessarily have deferred to the prosecutor's exercise of discretion in initial charging decisions.

Even if overcharging is to be sanctioned, there are strong reasons of fairness why the charges should be presented at the beginning of the bargaining process, rather than as a filliped threat at the end. First, it means that a prosecutor is required to reach a charging decision without

any knowledge of the particular defendant's willingness to plead guilty; hence the defendant who truly believes himself to be innocent, and wishes for that reason to go to trial, is not likely to be subject to quite such a devastating gamble since the prosecutor has fixed the incentives for the average case.

Second, it is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one. Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings of more serious indictments yet to come.

Finally, I would question whether it is fair to pressure defendants to plead guilty by threat of reindictment on an enhanced charge for the same conduct when the defendant has no way of knowing whether the prosecutor would indeed be entitled to bring him to trial on the enhanced charge. Here, though there is no dispute that respondent met the then-current definition of a habitual offender under Kentucky law, it is conceivable that a properly instructed Kentucky grand jury, in response to the same considerations that ultimately moved the Kentucky Legislature to amend the habitual offender statute, would have refused to subject respondent to such an onerous penalty for his forgery charge. There is no indication in the record that, once the new indictment was obtained, respondent was gi en another chance to plead guilty to the forged check charge in exchange for a five-year sentence.

^1. It is suggested that respondent will be eligible for parole consideration after serving 15 years.

^2. The majority suggests, ante, at 360-361, that this case cannot be distinguished from the case where the prosecutor initially obtains an indictment under an enhancement statute and later agrees to drop the enhancement charge in exchange for a guilty plea. I would agree that these two situations would be alike only if it were assumed that the hypothetical prosecutor's decision to charge under the enhancement statute was occasioned not by consideration of the public interest but by a strategy to discourage the defendant from exercising his constitutional rights. In theory, I would condemn both practices. In practice, the hypothetical situation is largely unreviewable. The majority's view confuses the propriety of a particular exercise of prosecutorial discretion with its unreviewability. In the instant case, however, we have no problem of proof.

^3. Indeed, the Kentucky Legislature subsequently determined that the habitual criminal statute under which respondent was convicted swept too broadly and did not identify adequately the kind of prior convictions that should trigger its application. At least one of respondent's two prior convictions would not satisfy the criteria of the revised statute; and the impact of the statute, when applied, has been reduced significantly in situations, like this one, where the third offense is relatively minor. See ante, at 359 n. 2.

[1046] Gale Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Linda M. Davison and Katherine Clark, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Charles R. Greenacre, Montrose, for defendant-appellant.

Opinion by Judge RULAND.

Defendant, Steven Patrick Adams, appeals from the trial court's order denying his motion to withdraw his guilty plea. We affirm.

Defendant, two other men, and a woman were in defendant's mobile home when one of the men was shot and killed with a pistol owned by defendant.

Defendant and the woman left and drove approximately 15 miles before telephoning the state patrol to report the shooting. In a taped conversation with the state patrol, defendant stated that he shot the victim while the victim was attempting a burglary. The woman, however, later advised officers that defendant shot the victim because of jealousy.

Defendant later gave two other versions of the shooting, one in which he claimed to have shot the victim in self-defense and one in which the woman allegedly shot the victim. Defendant's explanation for his first two statements was that he wanted to protect the woman. At some point, the woman was granted immunity by a prosecutor.

Defendant was charged with first degree murder, attempted first degree murder, assault in the second degree, and complicity as an accessory after the fact.

Even though defendant's monthly income exceeded the guidelines for appointment of free legal counsel, he completed an application and obtained letters from three private attorneys to prove that he could not pay for their services. Consequently, the county court appointed a private attorney to represent defendant.

Defendant was not satisfied with the services of private counsel. The court then appointed an attorney from the public defender's office who specializes in and has extensive experience in defending serious felony charges. A thorough investigation was conducted by an investigator for the public defender's office, and the case was set for a preliminary hearing.

Prior to the preliminary hearing, a written plea bargain was offered by the prosecution and ultimately accepted by defendant. As pertinent here, defendant agreed to plead guilty to the accessory charge in exchange for dismissal of the other charges and a sentence not to exceed four years. The sentence was to be served either in a community corrections facility or on probation.

The court approved the plea agreement. A providency hearing was conducted and, based upon the written plea agreement and defendant's responses to the court's inquiry, the court determined that the plea was voluntary. The court then scheduled a sentencing hearing.

During the course of the sentencing hearing, however, defendant determined that the court intended to sentence him to community corrections. Consequently, he protested and asked to withdraw his guilty plea. The court advised defendant to file a [1047] formal motion and informed him that his request would be then considered.

The court imposed a four-year sentence to a community corrections facility. Defendant later filed a formal motion to withdraw his plea and represented himself at the hearing on the motion. Defendant did not testify. Following presentation of other evidence and argument, the court entered a written order denying the motion.

I

Defendant contends that the trial court erred in failing to appoint an attorney to represent him at the hearing on his motion to vacate his plea. We disagree.

The initial burden to establish indigency is upon the defendant, and this burden requires defendant to establish the lack of funds, on a practical basis, to retain counsel. Nikander v. District Court, 711 P.2d 1260 (Colo.1986). In order to implement resolution of issues pertaining to appointment of counsel, the Chief Justice of the Colorado Supreme Court issued Directive 89-3 on October 19, 1989, establishing indigency guidelines.

As pertinent to this case, paragraph II A of the Directive provides:

1) All persons claiming to be indigent and asking for court appointed counsel must complete an application Form JDF208, signed under oath, which shall be reviewed by the court.

3) When the income of the person exceeds the eligibility guidelines, the court may, after conducting a hearing concerning the persons financial situation, find the person indigent ... Such finding shall not be made unless it is established that at least two attorneys will not provide legal services because the person is unable to pay their fee. (emphasis supplied)

Here, by letter, defendant initially requested appointment of counsel, specifying that he would not accept either the private attorney originally appointed to defend him or any attorneys in the public defender's office. The court promptly responded by letter advising defendant that it could not make an appointment based upon the letter alone. Enclosed with the letter, was an application form, and the court advised defendant that the application must be completed and returned.

However, the application form was not completed or returned. Instead, a few days later defendant contacted the court by telephone to discuss appointment of counsel. Defendant did not indicate his exact income in that conversation, but he confirmed that his income was over the guidelines. Nevertheless, he stated that he could not afford an attorney. The court encouraged defendant, at least, to discuss the case with an attorney to establish the cost for representation and then to seek qualification for partial indigency. Defendant failed to pursue this course of action as well.

On the date of the hearing, and prior to presentation of evidence, the court noted the correspondence and the contents of the telephone conversation. The court noted that defendant was present without counsel, and that defendant could proceed as he deemed appropriate. The court reminded defendant that the risk of proceeding without counsel was discussed in their telephone conversation, and defendant made no comment.

Under these circumstances, we are unable to conclude that defendant met his initial burden of establishing that, on a practical basis, he could not afford counsel. See Nikander v. District Court, supra.

Contrary to defendant's contention, and in light of the requirements contained in Directive 89-3, the court properly declined to rely upon defendant's unverified statements, made in his application for probation, as representing an accurate financial disclosure. Conversely, the fact that three attorneys declined to defend the homicide charges, on the basis of defendant's financial status approximately five months earlier, was not determinative of whether counsel could be obtained by defendant for purposes only of the hearing on his motion.

In addition, the record confirms that defendant was cognizant of and elected not [1048] to pursue the procedure for establishing a current need for free legal services. Finally, defendant does not controvert the court's statement on the record that he was advised of the risks of proceeding without counsel.

Under these circumstances, we find no error in the court's determination that defendant waived his right to counsel. See King v. People, 728 P.2d 1264 (Colo.1986).

II

Defendant next contends that the trial court erred in declining to set aside his plea. He reasons that he was coerced by defense counsel into accepting the plea disposition offered by the prosecution. We conclude that the trial court did not commit reversible error in denying defendant's motion.

Defendant carried the burden of establishing a "fair and just reason" for withdrawing his plea prior to imposition of sentence. People v. Gutierrez, 622 P.2d 547 (Colo.1981). And, to warrant the exercise of discretion favorable to a defendant concerning a change of plea, it must be shown that a defendant may have been influenced to enter a guilty plea when having a defense, or that defendant's plea was entered through fear, fraud, or official misrepresentation, or that the plea was made involuntarily for some reason. People v. Chavez, 730 P.2d 321 (Colo.1986). Finally, resolution of this issue is addressed to the sound discretion of the trial court, and we may not overturn its decision absent an abuse of that discretion. People v. Chippewa, 751 P.2d 607 (Colo.1988).

Here, defendant relies principally upon two tape recorded conversations he had with different attorneys from the public defender's office. One of the conversations was taped both by defendant and counsel. The conversation was the result of complaints made by defendant's parents to the public defender's office regarding defendant's legal representation. The second conversation was taped only by defendant, without disclosing to counsel that the conversation was being recorded. Apparently, because of a mechanical defect, only part of the conversation was recorded.

The transcripts reflect that counsel used strong and profane language in discussing defendant's failure to abide by counsel's admonition not to discuss the case with a critical witness (who recorded her conversation with defendant) and with law enforcement personnel. Similar language was used in discussing the prosecution's proffered plea bargain, the possibility that he would be convicted of first degree murder, the probability that defendant would receive a prison sentence for conviction of any of the charges if he did not accept the plea bargain, and the treatment defendant would receive in prison.

While the type of language used strikes us as inappropriate, the testimony of both attorneys stands unrebutted that this type of language was used by defendant. Moreover, it is uncontradicted that use of this language was necessary to assure that defendant understood their concerns about his view that he would be acquitted of all charges at trial.

Competent advice of counsel, albeit stated in strong language, does not constitute coercion standing alone. See Lunz v. Henderson, 533 F.2d 1322, (2d Cir.1976); Williams v. Chrans, 742 F.Supp. 472 (N.D.Ill.1990). And, the duty of defense counsel, after conducting a thorough investigation, is to discuss the case with complete candor and to offer the best estimate possible as to the outcome. See People v. Riley, 187 Colo. 262, 529 P.2d 1312 (1975).

A more difficult issue is posed by counsel's oft repeated predictions that defendant might be killed in prison, that he might "wish he were dead" after spending some time there, and that he would be sexually assaulted there. Defendant contends that these comments constitute a form of coercion which warrant setting aside the plea. We conclude to the contrary.

In addressing this contention, we first note that defendant, at one point, acknowledged in the recorded conversation that he [1049] did not doubt counsel's assessment that he was not "tough enough" for prison. We also note that counsel's testimony at the motion hearing was uncontroverted. He explained, in effect, that most suspects charged with first degree murder are held in some form of awe and are feared by other inmates. However, defendant had unspecified problems shortly after being taken into custody which were of great concern to counsel.

Finally, we note that defense counsel is not restricted to discussing the probable outcome of a case in discussing the propriety of a plea bargain. See 3 ABA, Standards for Criminal Justice, Standard 14-3.2 (2d ed. 1986).

Furthermore, even if we were to hold that these comments exceed the parameter of counsel's proper role of persuasion, we would, nevertheless, conclude that the trial court did not err in denying defendant's motion.

It is uncontroverted that defendant was represented by experienced and competent counsel. In the initial recorded conversation, counsel advised defendant that any decision to accept a plea bargain was solely his decision. Also, there is overwhelming record support for the proposition that acceptance of the plea bargain was in defendant's best interest, that his claimed defense to the accessory charge was specious, and that the probability of his receiving a prison sentence was very great if the bargain were rejected. Indeed, at the hearing on his motion, defendant, in effect, conceded that he was an accessory.

Still more persuasive to us is the record of the providency hearing itself. Before the hearing, and after discussing the proposed written plea with counsel, defendant signed a "petition to plead guilty" which explained, among other things, the effect of a guilty plea to the accessory charge, the plea bargain, and the rights being waived. The petition also confirmed that defendant was satisfied with his legal representation and that "no one has used any undue influence, threats or promises of leniency, favors or special consideration to get me to plead guilty against my will."

During the hearing, the court again explained the information set forth in the petition, and defendant confirmed, in his responses to questions from the court, that he understood the plea bargain, that he was satisfied with the services of counsel, and that he was not coerced to enter his plea. Conversely, there is ample record support for the court's finding that defendant was not promised probation. However, as noted, defendant did not request that his plea be changed until comments by the court, at the conclusion of the sentencing hearing, confirmed that the sentence would be to a community corrections facility.

Under these circumstances, we are unable to conclude that the trial court erred in denying defendant's motion.

The order is affirmed.

REED, J., concurs.

DUBOFSKY, J., dissents.

Judge DUBOFSKY dissenting.

I respectfully dissent.

In my view, the guilty plea was rendered involuntary by the repeated warnings of defendant's counsel that, if defendant was convicted after a trial and sentenced to the penitentiary, he would be repeatedly sodomized and then murdered.

A guilty plea must be entered voluntarily and with proper understanding. People v. Wells, 734 P.2d 655 (Colo.App.1986). A guilty plea is involuntary if it is induced by threats. People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973). Also, a plea may be rendered involuntary by mental as well as physical coercion. See Pickens v. United States, 427 F.2d 349 (5th Cir.1970).

A guilty plea is void if shown to be actuated by misleading statements of counsel. Heideman v. United States, 281 F.2d 805 (8th Cir.1960). Further, a guilty plea resulting from false advice from counsel as to the sentence that would be imposed may be set aside as having been unlawfully coerced. United States v. Simpson, 436 F.2d 162 (D.C.Cir.1970).

[1050] Absent explicit instructions from his client to the contrary, defense counsel should normally pursue the alternatives to a trial that exist within a case, i.e., dismissal, plea bargain. Furthermore, if counsel receives a plea offer from the district attorney, he is obligated to inform his client both of the offer and his opinion of it. In some cases, defense counsel may refrain from making a recommendation as to whether defendant should accept the plea bargain. In other situations, defense counsel may conclude that the defendant should accept the district attorney's plea offer.

Here, counsel concluded that the only viable choice for defendant was to accept the plea offer to accessory after the fact of murder. From this record, it appears there were compelling reasons for defense counsel to reach this conclusion and make the recommendation that he did.

Nevertheless, the decision to accept a plea offer belongs solely to the defendant. While counsel may make his position known to defendant in forceful, clear, and certain terms, he cannot cross the line and coerce a defendant into accepting a guilty plea. Cf. People v. Gies, 738 P.2d 398 (Colo.App.1987).

Here, counsel repeatedly told defendant that if he went to trial he would be convicted and sentenced to prison and that once in prison, he would be repeatedly sodomized and then murdered. Because I believe that these repeated "threats" about what defendant would face in prison rendered defendant's plea involuntary, I conclude that the trial court erred in not setting aside the plea.

I recognize that accurately informing the defendant of the potential hazards of incarceration is a legitimate and responsible act of counsel in advising his client about the implications of a plea or trial. But, here, defense counsel went far beyond merely informing defendant of the hazards of incarceration; he repeatedly and definitively predicted that defendant would be sexually assaulted and killed. These warnings went far beyond a legitimate informational advisement and recommendation and constituted threats and coercion.

Among counsel's remarks that were beyond the scope of appropriate advice are the following.

So you're not tough enough for prison. You're just not tough enough for prison. That's all there is to it. So that any prison sentence is most probably for you a death sentence or very close. Because things would happen to you in prison that would cause you to wish you were dead or want to kill yourself. So, that's why, you know, you have to understand the risks.

....

It is my opinion that in the two years or four years or whatever it is, awaiting for the appellate court to decide [your case] that you'll be dead. You won't make it through prison. Ok.

....

And it won't do you any good because you'll be dead or your [anus] will be the size of a dinner plate ... a jury can say `you know, I'm not convinced anyone of them is telling the truth, but I believe beyond a reasonable doubt that Steven Adams committed second degree murder.' Ok. Then you go to prison and you're dead.

....

The judge says you're going to prison and away you go. And you're dead. Because you're not tough enough or you're going to wish you were dead.

....

If we won appeal, you wouldn't be worth a s..t if you came out of it alive. Ok?

....

I will feel bad if you get convicted of accessory after the fact of manslaughter and go to prison and die, I will be able to say I told you so. Right?

Furthermore, there was another earlier conversation with another public defender in which similar representations concerning defendant's death were made.

[1051] Here, defendant was a young man, age 26, who had never been in the penitentiary and was dependent on the representations of his counsel to assess what prison would be like. In such circumstances, the "browbeating" indulged in by counsel went far beyond just advising defendant of the dangers within the institution and, indeed, in my view became coercive.

The majority appears to give great weight to the fact that at the time of his plea, defendant acknowledged the elements of the offense and stated his plea was voluntary. However, by pleading to the elements of the offense and indicating that he has not been coerced, defendant may have been merely providing the "right" answers to the trial court to effectuate the coerced plea. Certainly, this does not mean defendant has not been coerced. See People v. Cole, 39 Colo.App. 323, 570 P.2d 8 (1977), aff'd in part, rev'd in part, 195 Colo. 483, 584 P.2d 71 (1978). See also United States v. Cowin, 565 F.2d 548 (8th Cir.1977) and United States v. Tateo, 214 F.Supp. 560 (S.D.N.Y.1963).

If, as suggested by the majority, counsel's predictions of defendant's life in prison are not coercive because, inter alia, defense counsel accurately described defendant's future plight in the penitentiary, then a far graver problem is presented. If young men who have not been previously incarcerated face repeated sexual assaults and murder as part of their sentence to the penitentiary and, in an effort to avoid these assaults, enter guilty pleas to crimes they did not commit, then the constitutionality of the criminal justice system and the penal system are in doubt. Not only does the threat of criminal violence impermissibly coerce defendant in violation of his constitutional rights, but the operation of a penal system where such violence is rampant is also unconstitutional. See Ramos v. Lamm, 485 F.Supp. 122 (D.Colo.1979); McCray v. Sullivan, 509 F.2d 1332 (5th Cir.1975) (the Eighth Amendment may require a classification system which separates inmates according to offense and physically aggressive tendencies).

Finally, I believe it is of great significance that defendant moved to withdraw his guilty plea prior to being sentenced.

In my opinion, absent a showing of detrimental reliance by the district attorney in response to defendant's guilty plea, i.e., loss of witnesses or evidence, a defendant should be freely and liberally permitted to withdraw a guilty plea prior to sentencing. See United States v. King, 618 F.2d 550 (9th Cir.1980); United States v. Hamm, 659 F.2d 624 (5th Cir.1981).

A defendant has a constitutional right to have the prosecution prove each element of the offense beyond a reasonable doubt against him. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). And, an accused's exercise of that right by insisting upon a trial should be freely permitted, both for the benefit of the individual and for the viability of the criminal justice system itself.

Accordingly, I would reverse the judgment and remand for trial on all charges.

605 F.3d 625 (2010)

[627] William D. Schmidt, AFPD, argued, Bismarck, ND, Jeffrey L. Viken, Federal Public Defender, on the brief, for appellant.

David D. Hagler, AUSA, argued, Clare R. Hochhalter, AUSA, on the brief, Bismarck, ND, for appellee.

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

Dana Deegan pled guilty pursuant to a plea agreement to second-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153. The district court^[1] sentenced Deegan to 121 months' imprisonment, which was the bottom of the advisory guideline range. Deegan appeals the sentence, and we affirm.

I.

Deegan is a member of the Three Affiliated Tribes. On October 20, 1998, Deegan secretly gave birth to a baby boy in the bathroom of her home on the Fort Berthold Indian Reservation. The baby was alive and breathing when he was delivered. Deegan had kept her pregnancy hidden, and no other adult was present at the time of the delivery. Deegan's three other minor children were in the home, but they were unaware of the birth.

Approximately two hours after delivering her son, Deegan fed, cleaned, and dressed him, and then placed him in a basket. She then left the house with her three other children, intentionally leaving the baby alone without food, water, or a caregiver. Deegan did not return to her home for approximately two weeks. When she returned, she found the baby dead in the basket where she had left him. She put his remains in a suitcase, and deposited the suitcase in a rural ditch area near her residence.

On November 4, 1999, a man working on a fence line found the suitcase containing the baby's remains. He reported the discovery to law enforcement, and the Federal Bureau of Investigation ("FBI") commenced an investigation. In March 2004, Deegan voluntarily submitted a DNA sample to the FBI. Nearly three years later, in February 2007, the FBI completed mitochondrial DNA analysis on the Deegan sample and confirmed that Deegan was the mother of the deceased baby. When Deegan was interviewed by the FBI in late February 2007, she falsely claimed that the baby was stillborn. Interviewed a second time in May 2007, Deegan repeated the false story and provided a written statement to that effect.

Later during the May 2007 interview, however, Deegan admitted that her earlier statements were false and acknowledged that the baby had been born alive. She stated that she intentionally left him alone in her home, knowing that he would die. When asked why she did so, Deegan responded [628] that she was unable to care for a fourth child, neither she nor her common-law husband were employed, and her husband spent what little money they did have to purchase drugs.

On June 6, 2007, a grand jury returned a two-count indictment charging Deegan with first-degree murder and making false statements to the FBI. Deegan pled not guilty to both charges. On November 11, 2007, Deegan entered into a written plea agreement with the government, in which she agreed to plead guilty to one count of second-degree murder. In the factual portion of the agreement, Deegan acknowledged that the baby was born alive and breathing when she delivered him, and that she unlawfully and with malice aforethought caused his death by leaving him alone in the house for approximately two weeks. On November 30, 2007, the government filed an information charging Deegan with second-degree murder.

On December 10, 2007, Deegan pled guilty to second-degree murder. At the plea hearing, the district court noted that the sentencing guidelines in effect at the time of Deegan's offense provided for an advisory sentence of eight to ten years' imprisonment for second-degree murder. The court advised Deegan that based on "what little information" it had about the offense at the plea hearing, the court was "not comfortable" with a range of eight to ten years, because the terms of imprisonment for other defendants convicted of second-degree murder "were not even close to that range." The court remarked that there were a number of provisions in the advisory guidelines "that would justify an upward departure."

In an order filed on January 22, 2008, the court formally notified the parties that it was "contemplating an upward departure from the applicable Sentencing Guideline range," based on USSG § 5K2.8, which provides for an increased sentence where "the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim." The court expressed its view that Deegan's conduct "was unusually heinous, cruel, and brutal," but stated that it would await review of the presentence investigation report ("PSR"), psychological evaluations, and a review of relevant case law before making a final decision on sentencing.

Applying the 1997 sentencing guidelines in effect at the time of the offense, the PSR recommended an advisory sentencing range of 121 to 151 months' imprisonment, which corresponded to a total offense level of 32 and a criminal history category of I. The total offense level represented a base offense level of 33, USSG § 2A1.2 (1997), a two-level upward adjustment for knowledge of a vulnerable victim, id. § 3A1.1(b), and a three-level decrease for acceptance of responsibility, id. § 3E1.1(a), (b). Deegan objected to the two-level vulnerable-victim adjustment, arguing that there had been no factual finding that the infant was vulnerable, and that she had not admitted as much in the plea agreement.

Following preparation of the PSR, both parties submitted sentencing memoranda to the court. Deegan again objected to the two-level vulnerable-victim adjustment. She also urged the court to vary from the advisory guidelines and sentence her to probation or to a very short period of incarceration. She based her argument for leniency on what she described as her "psychological and emotional condition" at the time of the offense, her history as a victim of abuse, and the fact that she acted impulsively, among other reasons.

As support, she submitted a report prepared by Dr. Phillip Resnick, an expert in "neonaticide." "Neonaticide" is a term coined by Resnick to describe the killing of [629] an infant within the first twenty-four hours following birth. See Susan Hatters Friedman et al., Child Murder by Mothers: A Critical Analysis of the Current State of Knowledge and a Research Agenda, 162 Am. J. Psychiatry 1578, 1578 (2005). The report addressed what Resnick viewed as an "extraordinary number of mitigating circumstances," and expressed the opinion that a prison sentence was not necessary to deter other women from committing neonaticide. The report concluded that Deegan suffered from an extensive history of abuse throughout her childhood and as an adult, suffered from major depression and dissociation at the time of the homicide, acted impulsively in leaving her baby alone, presented a very low risk of reoffending, and did not merit a lengthy prison sentence, especially because other women convicted in state court of committing similar offenses were usually sentenced to no more than three years in prison.

At the sentencing hearing on May 18, 2008, the district court adopted the sentencing guideline calculation in the PSR. The court agreed with the probation office that the vulnerable-victim enhancement was warranted, and that Deegan's advisory range was 121 to 151 months' imprisonment. Finally, after calling Dr. Resnick to testify about his report and hearing arguments from counsel and testimony from Deegan herself, the court sentenced Deegan to 121 months' imprisonment.

On appeal, Deegan argues that the sentence of 121 months' imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan's brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard, United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008), which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). No objection was required to preserve Deegan's substantive claim that the sentence imposed is unreasonably long with regard to § 3553(a), United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.2007), but we review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

II.

A.

Deegan appears to raise four alleged procedural errors at sentencing. One is that the district court "failed on the record to engage in any meaningful discussion whatsoever of the § 3553(a) factors." The Supreme Court in Gall explained that a sentencing court "must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." 552 U.S. at 50, 128 S.Ct. 586. Deegan did not object to the adequacy of the district court's explanation or request any elaboration. On plain error review, we conclude that the explanation is not obviously inadequate.

As the Supreme Court has explained, "[t]he appropriateness of brevity or length, conciseness or detail, when to [630] write, what to say, depends upon circumstances." Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). "The law leaves much, in this respect, to the judge's own professional judgment." Id. "[A] district court is not required to provide a `full opinion in every case,' but must `set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.'" United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008) (quoting Rita, 551 U.S. at 356, 127 S.Ct. 2456). Sentencing courts need not "categorically rehearse the § 3553(a) factors on the record, as long as it is clear that the court considered those factors." United States v. Hernandez, 518 F.3d 613, 616 (8th Cir.2008). Nor have we required district courts to make specific findings on the record about each § 3553(a) factor. Perkins, 526 F.3d at 1110. "[A]ll that is generally required to satisfy the appellate court is evidence that the district court was aware of the relevant factors." Id.

The district court in this case said plenty to avoid an obvious shortcoming under a plain error standard of review. The court twice stated that it had "carefully considered" the § 3553(a) factors, even remarking that it had "spent many, many days and nights thinking about this case." The court listed nearly all of the § 3553(a) factors on the record. Dr. Resnick, the expert who reported on Deegan's psychological condition, structured his testimony at the sentencing hearing around many of the § 3553(a) factors, and cross-examination highlighted other statutory factors. The court heard all of this testimony and took it into account. The court read Resnick's written report, which was explicit in its reference to the § 3553(a) factors, "at least three times." The court twice stated that it had carefully reviewed the PSR, the parties' sentencing memoranda, the psychological evaluation of Deegan by another doctor, the many letters of support filed on her behalf, and the DVD presentation by her family. See United States v. Henson, 550 F.3d 739, 743 (8th Cir.2008) (observing that the presentence report contains extensive information regarding the factors under § 3553(a)).

In explaining why it chose a sentence of 121 months' imprisonment rather than a greater punishment, the court acknowledged that Deegan's life had not been "easy," and that it had been plagued with physical abuse and sexual abuse. Referring back to its statement at the plea hearing that it was likely to impose a sentence above the advisory range of eight to ten years, the court observed that Resnick's report and testimony were "helpful and insightful," and that the court had gained "far better insight" into the case after reviewing the report. The court told Deegan that it had "real compassion for [her] and [her] family and what [she had] gone through," including the fact that she had three children and that her brother had been murdered. The court said that it "underst[ood] why [Deegan] took the steps that she did in 1998," and that "under the circumstances," a sentence under the 2007 guidelines in effect at the time of sentencing, i.e., 19.5 to 24.5 years' imprisonment, would not have been fair.

But the court also thought a lesser sentence would not be sufficient, explaining that it must "ensure that justice is done," and that it could not "ignore the fact that there was an innocent life that was lost." The court remarked that justice in this case probably "lies between the extremes of public opinion," and that the advisory range of 121 to 151 months' imprisonment was reasonable for "a case of this nature."

This discussion is sufficient to permit meaningful appellate review and to ensure [631] the public that Deegan's case was given fair consideration. In the face of this record, which shows a district judge deliberating at length over a difficult case, and even changing his tentative conclusion between the plea hearing and the sentencing hearing, we cannot agree with our dissenting colleague that the district court "exercised no discretion." Post, at 659-60. Deegan has not established plain error that would require a remand for a more elaborate statement of reasons.

B.

Deegan also argues that the court procedurally erred by treating the advisory guidelines as mandatory. Gall, 552 U.S. at 51, 128 S.Ct. 586. This contention is based on an isolated statement by the district court at the sentencing hearing, to which Deegan lodged no objection:

In this case, the sentencing guidelines provide for a sentence range of 121 to 151 months. That's 10 to 12-and-a-half years. I'm required to impose those guidelines that were in effect in October of 1998. If the guidelines that were in effect today were imposed, your sentence would be in the range of 19-and-a-half to 24-and-a-half years.

(S. Tr. at 60) (emphasis added).

The court evidently misspoke when it used the word "impose" (rather than "consider"), because the record as a whole makes clear that the court understood its discretion to sentence outside the advisory guideline range. There is no reason to believe that the district court applied the guidelines as mandatory, and if Deegan had objected at sentencing to the word "impose," we are confident that the court would have corrected itself. Elsewhere, the court clearly explained that it was aware of its discretion to vary from the advisory guideline range:

I'm also familiar with the recent decisions from the United States Supreme Court in the cases of Gall and Kimbrough which have established that district court judges around the country in the federal system have discretion to impose nonguideline sentences or variances from the sentencing guidelines. And I'm equally aware of my authority and my discretion to impose a nonguideline sentence.

. . . .

. . . I'm aware of my discretion and authority to impose a nonguideline sentence or to depart from the guidelines. I have chosen in this case to impose a guideline sentence. I'm not going to exercise my discretion and depart and impose a nonguideline sentence because I believe that the sentencing range that's been provided for in the sentencing guidelines in this particular case is reasonable.

(S. Tr. 56, 58-59) (emphases added). On Deegan's contention that the district court treated the guidelines as mandatory, there is no plain error warranting relief.^[2]

C.

Deegan also contends that the district court committed procedural error by considering the advisory guideline range [632] that applied to Deegan's offense under the 2007 sentencing guidelines. Deegan committed the offense in 1998, and the court calculated her advisory range according to the 1997 guidelines, which were in effect at the time of the offense. The court apparently followed the rule that application of the guidelines in effect at the time of sentencing would violate the Ex Post Facto Clause, see United States v. Bell, 991 F.2d 1445 (8th Cir.1993); USSG § 1B1.11(b), although the endurance of that rule is an open question in this circuit after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), now that the guidelines are merely a starting point that a court must consult and take into account. See United States v. Anderson, 570 F.3d 1025, 1033 n. 7 (8th Cir.2009) (assuming, without deciding, that the Ex Post Facto Clause applies to a district court's application of the sentencing guidelines after Booker); compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006) (holding that use of the guidelines in effect at time of sentencing does not violate Ex Post Facto Clause after Booker), with United States v. Turner, 548 F.3d 1094, 1098-1101 (D.C.Cir.2008) (disagreeing with Demaree).

Although the court used the 1997 guidelines as the initial starting point, it also discussed the advisory range that would apply under the 2007 guidelines. The court observed that if Deegan had been sentenced under the 2007 guidelines, her advisory sentence would have been almost twice as long as the sentencing range under the 1997 guidelines. The court also noted that if Deegan had been convicted of voluntary manslaughter rather than second-degree murder, then her advisory range under the 2007 guidelines would be roughly the same range as the advisory range for second-degree murder under the 1997 guidelines. With this background, the court concluded:

I guess what I'm trying to say is that if we used guidelines today, the sentence would be double what you're currently looking at, and I don't think that's fair under the circumstances. But when I reflect upon what a voluntary manslaughter charge carries under the current guidelines and what second degree murder carries under the guidelines that existed in 1998, I believe that those are reasonable guidelines for a case of this nature.

Deegan did not object to the district court's reference to the 2007 guidelines, and we see no obvious error in the court's consideration of that information. Now that the guidelines are merely advisory, district courts are free to vary from the advisory range "based solely on policy considerations," Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (internal quotation omitted), or to sentence within the advisory range based on policy considerations. The 2007 guidelines simply represent another policy view — different from the view embodied in the 1997 guidelines — of the appropriate sentence under § 3553(a) for second-degree murder or voluntary manslaughter in a run-of-the-mine case. The court was free to consider that view as part of its analysis of the appropriate sentence for Deegan under § 3553(a). There was no plain procedural error.

D.

Deegan's remaining procedural argument is that the district court erred by assuming that the advisory guideline for second-degree murder was the product of empirical data and national experience. She points to this excerpt from the district court's comments at sentencing:

We have sentencing guidelines in the federal system that are designed to ensure [633] that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have. The sentencing guidelines have been in effect for almost 20 years, and they are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases. Every year there are hundreds of thousands of cases that — in which defendants are sentenced around the country, and the Sentencing Commission compiles all that data and they try to develop sentencing guidelines that are fair and are reasonable.

Deegan did not object to these comments at sentencing, and we see no obvious error that warrants relief.

Insofar as Deegan argues that the court procedurally erred by "selecting a sentence based on clearly erroneous facts," see Gall, 552 U.S. at 51, 128 S.Ct. 586, we disagree. The court's discussion of the guidelines was an accurate statement about the general purpose and methodology behind the sentencing guidelines. See generally USSG Ch. 1, Pt. A, intro. comment. The court never suggested that the Sentencing Commission based the guideline on an analysis of hundreds of thousands of "neonaticide" cases, or that Deegan's offense was a typical fact pattern for second-degree murder.

The district court may have believed that the second-degree murder guideline considered in Deegan's case was based on empirical data and national experience, but Deegan has not shown that this premise would have been incorrect. Citing United States v. Grant, No. 07-242, 2008 WL 2485610, at *4-5 (D.Neb. June 16, 2008), Deegan argues that amendments to the murder guidelines promulgated in 2002, 2004, 2006, and 2007 were not based on empirical data and national experience. But whatever the merits of that position, these amendments say nothing about how the Sentencing Commission established the 1997 guideline for second-degree murder, on which Deegan's advisory range was based.^[3]

Even with respect to the 1997 guideline, moreover, the district court simply treated the advisory guideline range as an initial starting point, while determining the final sentence after consideration of all of the § 3553(a) factors taken as a whole. There is no showing that an erroneous assumption about the underlying basis for the second-degree murder guideline drove the determination of Deegan's sentence.

In sum, Deegan has not identified an obvious procedural error at sentencing. The district court correctly calculated the advisory guideline range, allowed the parties [634] to present evidence and argument regarding the sentence to be imposed, recognized its discretion to impose a sentence outside the advisory range, considered all of the § 3553(a) factors, determined the final sentence based on those factors, and adequately explained its rationale.

III.

A.

We also conclude that Deegan's sentence at the bottom of the advisory guideline range is substantively reasonable. We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard, see Gall, 552 U.S. at 41, 128 S.Ct. 586, cognizant that "it will be the unusual case when we reverse a district court sentence — whether within, above, or below the applicable Guidelines range — as substantively unreasonable." United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc) (internal quotation omitted). While many critics of the mandatory federal sentencing system believed that the guidelines resulted in excessive terms of imprisonment, the post-Booker system is not a one-way ratchet in favor of leniency. A district judge who favors a tough sentence is entitled to the same degree of deference as a district judge who opts for a lesser punishment.

Where, as here, a sentence imposed is within the advisory guideline range, we typically accord it a presumption of reasonableness. See United States v. Harris, 493 F.3d 928, 932 (8th Cir.2007). The presumption "simply recognizes the real-world circumstance that when the judge's discretionary decision accords with the Commission's view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable." Rita, 551 U.S. at 350, 127 S.Ct. 2456. But even if we do not apply such a presumption here, on the view that Deegan's offense is not a "mine run" second-degree murder, the district court did not abuse its considerable discretion by selecting a sentence of 121 months' imprisonment.

The record in this case includes evidence in aggravation and mitigation. As the district court observed in its presentencing order, a court reasonably could view Deegan's offense as "unusually heinous, cruel, and brutal," and deserving of harsh punishment. She left a newborn baby alone in a basket in an empty house without food and water for two weeks until the child died. Deegan countered with testimony from an expert who believes, among other things, that women who commit "neonaticide" are unlikely to reoffend, and that harsh punishment of such an offender is unlikely to deter others from committing the same offense. Deegan also presented evidence of her troubled personal history and family circumstances, and of course we share our dissenting colleague's condemnation of violence against American Indian women.

Deegan's mitigating evidence convinced the district court that a sentence of more than ten years, which the court had contemplated at the time of the guilty plea, was greater than necessary to satisfy the statutory purposes of sentencing. But we are firm in our view that the district court did not abuse its discretion by refusing to impose a more lenient sentence. Whatever the deterrent effect of this sentence, general or specific, and whatever Deegan's personal history, the court was entitled to consider the need for the sentence imposed to "reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A). The district court was justified in saying that it could not "ignore the fact that there was [635] an innocent life that was lost," and that there was a "need to ensure that justice is done." The court believed that justice in this case "lies between the extremes of public opinion," and that may be so. There likely are those, like Deegan's expert, who believe that a term of imprisonment is unnecessary, and there may be others who feel that no term of imprisonment is too long for one who murders a helpless infant in this manner. We need only determine whether the district court's middle ground is a permissible choice. Applying a deferential abuse-of-discretion standard, we conclude that the sentence of 121 month's imprisonment is reasonable with regard to § 3553(a).

B.

Our dissenting colleague contends that Deegan's sentence is unreasonably long, and that we should direct the district court to impose a shorter term of imprisonment. We believe that such a disposition would be inconsistent with the substantial deference now owed to the judgments of the sentencing courts. Cf. United States v. Burns, 577 F.3d 887, 896 (8th Cir.2009) (en banc) (Bright, J., concurring) (asserting that Gall "puts the discretion at sentencing in the district court, just where it should be, with due regard for the guidelines and the statutes relating to the goals of sentencing. Appellate courts are not sentencing courts."). The guidelines are advisory only, and we "must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard." Gall, 552 U.S. at 41, 128 S.Ct. 586. The question is not whether the former mandatory guideline system would have called for a downward departure below the mandatory guideline range, cf. post, at 647-48, but whether the district court's sentence of 121 months' imprisonment is reasonable in light of the statutory considerations described in § 3553(a).

To support its conclusion that the district court's chosen sentence was unreasonably harsh, the dissent cites a case involving a student at North Dakota State University ("NDSU") who was prosecuted in North Dakota state court and sentenced to probation. The record of this case includes almost nothing about the NDSU case. Defense counsel stated that his summary, recounted by the dissent, post, at 657, was drawn from a newspaper article. The district court surely did not abuse its discretion by failing to conform Deegan's federal sentence to a North Dakota state court case about which no evidence was presented.

We disagree, moreover, with the dissent's contention that the district court should have considered the "disparity" between Deegan's sentence and the sentence that may have been imposed if Deegan, like the NDSU student, had been prosecuted in state court. Post, at 656-57, 657-58, 660-61. This argument contradicts the well-settled proposition that "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6), refers only to disparities among federal defendants. It would have been error for the district court to consider potential federal/state sentencing disparities under § 3553(a)(6). United States v. Jeremiah, 446 F.3d 805, 807-08 (8th Cir.2006) ("Unwarranted sentencing disparities among federal defendants remains the only consideration under § 3553(a)(6) — both before and after Booker."); United States v. Deitz, 991 F.2d 443, 447 (8th Cir.1993) ("If, at the time of sentencing, federal courts were to take into consideration a potential state sentence based upon similar state-charged offenses, [636] the Sentencing Commission's goal of imposing uniformity upon federal sentences for similarly situated defendants would be impeded, not furthered.").^[4]

* * *

For the foregoing reasons, we conclude that the district court did not commit plain procedural error, and the court's sentence of 121 months' imprisonment is not substantively unreasonable with regard to 18 U.S.C. § 3553(a). The judgment of the district court is affirmed.

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent.

This case concerns the crime of neonaticide, which is the killing of a newborn child on the first day of life. This crime is practically unknown in the federal courts. Neonaticide is a crime relating to family and domestic concerns and, thus, federal courts do not generally deal with these crimes. Indeed, excluding habeas cases, my research has disclosed only one other reported federal case discussing and deciding a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev'd and remanded to 327 Fed. Appx. 93 (10th Cir.2009).

In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen.^[5]

For reversal, the dissent relies on the following Supreme Court cases: Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d [637] 392 (1996), and the holdings in United States v. Alvizo-Trujillo, 521 F.3d 1015 (8th Cir.2008), and United States v. Greene, 513 F.3d 904 (8th Cir.2008). See also Kimbrough v. United States, 552 U.S. 85, 91, 96, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (discussing and commenting on sentencing procedure and stating the greatest respect to variance from guidelines when particular case is outside the "heartland").

I.

SUMMARY OF CONTENTIONS AND STANDARD OF REVIEW

A. Summary of Contentions

Ms. Deegan's crime consisted of a special sort of homicide called "neonaticide," well documented in medical and legal literature, which describes the conduct of a parent, ordinarily the mother, who is often suffering from depression or other mental illness causing the death of an infant child within twenty-four hours of birth.

First, Ms. Deegan's conduct as neonaticide does not now, nor has it ever, come within the "run-of-the-mine" guidelines for second-degree murder, the charge to which Ms. Deegan pleaded guilty. But the district court mistakenly believed that this case fell within the second-degree murder guidelines. Thus, the sentence imposed was procedurally gross error.

Second, the district court presumed that the guidelines were reasonable. This is plain error.

Third, because this case is outside the heartland of second-degree murder cases, the district court's 18 U.S.C. § 3553(a) analysis was flawed at its beginning, and this case required imposition of a sentence completely apart from the guidelines and under § 3553(a). This the district court did not do.

Fourth, analysis of the § 3553(a) factors demonstrates that Ms. Deegan's sentence is substantively unreasonable. The district court's approach to sentencing served to elevate a guidelines sentence above an individualized assessment of the facts and circumstances of this case. Each error compounded the next one and these mistakes require reversal and remand.

Finally, the failure to follow proper sentencing procedures and methodology led to a highly excessive sentence for Ms. Deegan. Her crime requires a different approach than taken by the district court and approved by the majority.

B. Standard of Review

I express my disagreement with the majority's application of plain error in reviewing this sentence. In my view, defense counsel preserved the errors argued on appeal.

The majority asserts:

On appeal, Deegan argues that the sentence of 121 months' imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan's brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard. United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008) which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial [638] proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

Maj. op. at 629.

Further, the majority reviews the following under the plain error standard: (a) the district court's failure to meaningfully discuss the § 3553(a) factors, id. at 629-30; (b) treating the advisory guidelines as mandatory, id. at 631; (c) procedural error by applying the 2007 Guidelines to the instant offense, id. at 632; and (d) applying the second-degree murder guidelines to "this type of crime." Id. at 632-33.

Comparing the sentencing transcript with Ms. Deegan's brief establishes that these errors were asserted in the district court and raised on appeal. At sentencing, defense counsel, in responding to the prosecutor's recommendation for a guideline sentence of 121 months, asserted that: (a) the guideline sentence was far greater than necessary (Sent. Tr. 46-47); (b) such a sentence was not warranted under the § 3553(a) factors (Sent. Tr. 46-52); (c) a guideline sentence would result in a sentencing disparity as compared to a neonaticide sentence imposed in a North Dakota state court (Sent. Tr. 50-53); and (d) a variance, a non-guideline sentence, should be imposed after proper consideration of the § 3553(a) factors (Sent. Tr. 55-56, 59). The district court clearly recognized the request of defense counsel when the court said, "The request in this case is for the imposition of a variance or a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a)." Sent. Tr. 56 (emphasis added).

The contentions raised on appeal, see Appellant's Brief at 19-24, that the sentence was "unreasonable," "greater than necessary," and that a guideline sentence should not apply to Ms. Deegan, were the same arguments raised before the district court.

Defense counsel should not need to say more to preserve error in a criminal sentence. Ms. Deegan requested a non-guideline sentence and stated reasons in support of that recommendation. When defense counsel asserted that the prosecutor's recommendation called for a sentence that was flawed and excessive, and requested a lesser sentence, the sentencing issue should be considered fully preserved. See Rita, 551 U.S. at 345 (error raised), 351, 127 S.Ct. 2456 (sentencing procedures discussed); but see United States v. Bain, 586 F.3d 634 (8th Cir.2009).

To state that matters raised by Ms. Deegan should be considered as plain error is incorrect. But in any event, the procedural and substantive mistakes here are great and require reversal under any standard of review-plain error or preserved error.^[6]

[639] As will be discussed more fully, the prosecutor mistakenly told the sentencing judge:

The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing.

Sent. Tr. 43 (emphasis added). The sentencing judge adopted and echoed that principle in imposing a guideline sentence of ten years and one month (121 months) imprisonment, echoing a resounding "yes" to this incorrect advice as the court said the guidelines are for people like you who "commit this type of crime with the same type of criminal history that you have." Sent. Tr. 59. And further adding, "I'm required to impose those guidelines. . . ." Id. Such statements imply more than a presumption that the guidelines apply to Ms. Deegan and constitute plain error. Thus, there exists plain error in sentencing procedure leading to an excessive, improper, and unfair sentence. See Alvizo-Trujillo, 521 F.3d at 1018.

II.

BACKGROUND

To understand the errors in sentencing, this case requires a full accounting of Ms. Deegan's life. All of the facts discussed below were before the district court at the sentencing hearing and were not disputed by the government.^[7]

A. Childhood Abuse

Ms. Deegan's life is marked by a history of extensive and cruel abuse. Her alcoholic father beat her on an almost daily basis and dominated every aspect of life in the Deegan family. Ms. Deegan reported having out-of-body experiences during the beatings, as if she was watching herself being assaulted from outside of her body. Some of the beatings were so severe that her father kept her home from school to avoid reports to Child Protective Services. She and her siblings were eventually removed from her parents' house due to the abuse, placed in a variety of foster homes, and periodically returned to her parents' house. While in foster care, Ms. Deegan was separated from her siblings where she experienced physical abuse from some of her foster family members. In conversation with Dr. Resnick, Ms. Deegan said, "I think I will be forgiven [by my maker]. I've lived my hell throughout my childhood." Add. 2, p. 12 (Resnick Report).

Ms. Deegan also suffered extensive and cruel sexual abuse. At five years of age, her father's drinking buddies began sexually abusing her. By age nine, five or six perpetrators had forced her to participate in oral, vaginal, and anal sex. One of the perpetrators held her head under water several times to make her submissive and threatened her so she would not disclose the abuse.^[8] At age eleven, the sexual [640] abuse ended when Ms. Deegan finally disclosed the abuse to her mother. Her father responded by beating her for being a "slut and allowing it to happen." Add. 2, p. 5 (Resnick Report).

Ms. Deegan spent much of her childhood caring for and protecting her six younger siblings. Her siblings reported that she frequently suffered physical abuse in their stead. As an adult the abuse continued and Ms. Deegan protected her siblings from her father's alcoholic, depressive, and abusive states. On one occasion, her father attacked her while she was pregnant with her second child. She jumped through a window to escape. Add. 2, p. 7 (Resnick Report).

B. Abuse from Shannon Hale

At age fifteen, Ms. Deegan began a relationship with Shannon Hale, the son of one of her foster parents. Mr. Hale continued the abuse. On one occasion, after Mr. Hale physically assaulted her, Ms. Deegan was admitted to a psychiatric hospital for thirty days to receive assistance for the domestic violence she had endured. She bore four children fathered by Mr. Hale, including the infant victim in this case.

After Ms. Deegan's third child was born, she became depressed. At this time in her life, Mr. Hale was physically abusing her two to three times per week, forcing her to have sexual intercourse with him, and refusing to care for their children.^[9] He was not present at any of the births or to take Ms. Deegan home after the deliveries of the children. Mr. Hale continued abusing Ms. Deegan throughout their relationship, including during her pregnancies. Prenatal care records document that two days before she delivered their third child, Mr. Hale choked her and threw her onto gravel, causing injuries that persisted for several months.^[10]

Despite the abuse, Ms. Deegan did not leave Mr. Hale permanently because he repeatedly assured her that he would reduce his drinking and stop abusing her. Ms. Deegan reported that she sometimes went to live with her parents when the abuse was most severe, but then her father would physically and verbally abuse her. Ms. Deegan also explained that she did not feel that she could leave Mr. Hale because of her relationship with his mother. Ms. Deegan reported that Mr. Hale's mother "seemed to make things okay," caused her to feel safe, and encouraged her to stay with Mr. Hale for the children's sake. Ms. Deegan feared that if she left Mr. Hale, his mother, a prominent member of the Indian community, would acquire custody [641] of her children.^[11]

When Ms. Deegan learned she was pregnant with a fourth child (the child victim), she did not believe she was really pregnant. Ms. Deegan reported she had not developed a plan for coping with the birth of a fourth child because she had put the pregnancy out of her mind. She had previously suffered three miscarriages. She reported feeling so depressed that she could barely take care of herself and her three children.

Ms. Deegan's state of despair and depression was not merely the result of the physical, verbal, and sexual abuse she suffered. Ms. Deegan lived in extreme poverty and isolation. Both Ms. Deegan and Mr. Hale were unemployed. Ms. Deegan sustained herself and her family on food stamps and whatever money she could acquire to provide food for her young children: ages one, two, and five. When Ms. Deegan obtained any money, Mr. Hale took it and bought methamphetamine.

Dr. Resnick explained why Ms. Deegan stayed with Mr. Hale before the homicide of her fourth child:

1) Ms. Deegan was raised in a home in which she saw her father repeatedly beat her mother. This aberrant model of marriage was all she knew.

2) Ms. Deegan feared that if she left Shannon Hale she would lose her relationship with the Hale family.... Irene Hale encouraged her to stay with Shannon so her children would have a father.

3) Ms. Deegan had virtually no financial resources. Shannon Hale used any available money for his alcohol and methamphetamine addiction. Irene Hale at least made sure that Ms. Deegan had groceries so she could feed her daughters and herself.

4) Based on Ms. Deegan's foster care experience, she knew that leaving one family situation sometimes resulted in a worse situation rather than an improvement.

5) As is common in men who batter their wives, Shannon Hale told Ms. Deegan that he would not assault her again and promised to control his drinking and use of illegal drugs.

6) Ms. Deegan did not have a viable alternative to staying with Shannon Hale. If she took her daughters to live in her parental home, she and her daughters would be subjected to physical and emotional abuse by her father. No shelter for battered women was available in her area.

7) Ms. Deegan was fearful that if she left Shannon, Irene Hale, who enjoyed an excellent reputation in the community, would take her daughters away from her.... Caring for her three daughters was the most important thing in her life. She feared that if Shannon Hale attempted to raise her three young daughters, they would not be safe because of his methamphetamine addiction and his demonstrated propensity for physical abuse.

[642] 8) Ms. Deegan feared that if she sought counseling for her marital problems, she might lose her daughters' custody.

9) On the prior occasions when Ms. Deegan sought help from individuals and institutions, they failed to assist or protect her.

Add. 2, p. 20-21 (Resnick Report).

C. The Birth Circumstances

On October 20, 1998, at twenty-five years of age, alone in her mobile home with her three children, Ms. Deegan went into labor with her fourth child. She endured the labor alone, did not tell anyone she was in labor, and delivered the child herself. She reported not feeling anything physically from the labor and that she had assisted the infant to breathe when he was born. Ms. Deegan cleaned, diapered, and fed her child. She then put clothes on him, placed him in a basket, and left him in the home alone. When asked why she left her child in the home alone, she replied:

I couldn't take anymore. I couldn't handle it. I had everything on my shoulders. I couldn't even help myself. I had nobody to help me. I had no job, no nothing. I had all my babies to care for, a welfare mom. I had the feeling of being worthless. What could I do? I was overwhelmed and depressed. I didn't want to live through any of it anymore. I didn't want to be there anymore, as a spouse, as a mother, as a daughter.

Add. 2, p. 11 (Resnick Report).^[12] Ms. Deegan returned to her home approximately two weeks later. Ms. Deegan put her son's body in a suitcase and placed the suitcase in a ditch near her home. The body was discovered approximately one year later.

With an understanding of the background of Ms. Deegan and the circumstances surrounding the infant's death, I turn to a discussion of neonaticide.

III.

NEONATICIDE

Forty-three years ago, psychiatrist Dr. Phillip Resnick became interested in the topic of parents causing the death of their children. He has written nearly 100 articles, several on neonaticide and infanticide, and frequently presents and lectures on this subject. Every year he teaches a course on neonaticide for the American Psychiatric Association. He is considered the foremost neonaticide expert in this country.

As defined by Dr. Resnick:

[N]eonaticide is simply the killing of a newborn infant on the first day of life. It's actually a term that I coined in an article I wrote in 1969 where I was distinguishing that type of killing of a baby, which has very different characteristics, from the killing of a baby who is older or a child. And so neonaticide has universally been accepted now as a [643] particular phenomenon when the baby is killed the first day of life.

Sent. Tr. 16.

Dr. Resnick and other scholars explain the circumstances that lead to this tragic crime. Such a mother is often in an overwhelming state of desperation at the time of her infant's birth and lacks adequate resources to mentally handle the situation of delivering a child.^[13] She often conceals and denies her pregnancy, lacks insight into the situation, shows poor judgment, is cognitively immature with limited intelligence, and lacks sufficient coping skills.^[14] "[The] commonly reported profile [of a homicidal mother] describes a woman usually in her twenties, who grew up or currently lives in poverty, is under-educated, has a history of abuse (both physical and sexual), remains isolated from social supports, has depressive and suicidal tendencies, and is usually experiencing rejection by a male lover at the time of the murders."^[15]

"Although the majority of women who commit neonaticide do not have any longterm psychological pathologies, it is likely that often they experience abnormal mental functioning during their pregnancies."^[16] "During a homicidal episode, therefore, a mother may view a child as a mere extension of herself rather than as a separate being. A mother's suicidal inclinations may often transform into filial homicide. In other words, killing her children may be much like killing herself."^[17]

In preparing to testify, Dr. Resnick conducted a six-hour interview of Ms. Deegan and reviewed the relevant FBI, medical, psychiatric, and school records. He diagnosed Ms. Deegan with suffering or having suffered from the following three psychiatric disorders:

Major Depressive Disorder, recurrent, severe, without psychotic features at the time of the homicide, now in partial remission.

....

Posttraumatic Stress Disorder, chronic. This diagnosis is supported by Ms. Deegan's history of exposure to multiple traumatic events as a child of physical and sexual abuse. At the time she had intense feelings of helplessness, horror, and the fear of dying....

Dysthymic Disorder

This diagnosis is based on the fact that during Ms. Deegan's childhood she had a depressed mood for most of the day for more days than not for several years. Her depression was manifested by overeating, insomnia, low self esteem, and feelings of hopelessness.

Add. 2, p. 13 (Resnick Report). Dr. Resnick explained that at the time Ms. Deegan delivered her infant, she was severely depressed, overwhelmed by the state of her life, and "simply did not have the psychological resources to care for a fourth child." Sent. Tr. 36.

Dr. Resnick further testified that women who commit neonaticide are unable to cope with the pregnancy and endure great pain [644] at the expense of keeping the child's birth a secret:

[Such women] are willing to put themselves through a great deal of anguish. They often will deliver the baby with no anesthesia, no pain relief, no emotional support. They'll stifle their screams, and that is how intensely important it is for them not to have their family, who may be in the house, actually know that they're pregnant and having a baby.

Sent. Tr. 33.

The manner in which Ms. Deegan delivered her child conforms with other women's acts of neonaticide. Ms. Deegan gave birth to the infant in the shower and kept the birth a secret. She coped with the pain of childbirth by dissociating.^[18] Dr. Resnick explained that just as Ms. Deegan had endured sexual assaults as a child by having out-of-body experiences, she used dissociation to separate herself from the intense pain of delivering the infant.

Dr. Resnick also addressed Ms. Deegan's belief that she was not pregnant. Dr. Resnick explained that, as is common in cases of neonaticide, Ms. Deegan neither planned for the killing of the infant or for the caring of the infant. As he succinctly stated, "They just put it out of their minds." Sent. Tr. 28-29. Dr. Resnick further testified that in Ms. Deegan's case, it was particularly easy for her to convince herself that she was not pregnant because she had previously miscarried three times and had experienced regular menstrual spotting during her prior pregnancies. Dr. Resnick explained that even though Ms. Deegan may have known she was pregnant, she may have made the assumption that she might miscarry or just did not accept that she was truly pregnant.

Dr. Resnick also testified that the manner in which Ms. Deegan carried out the neonaticide indicated that it was an impulsive act. He explained, unlike one who hides evidence of a crime, Ms. Deegan left her infant in a place where he "might have been discovered and she would be caught." Sent. Tr. 29.^[19] Dr. Resnick explained that such conduct is not what one would expect from someone who is planning to take another's life and seeks to "get away with it." Sent. Tr. 29. He further explained that despite her psychological inability to cope with raising the child, Ms. Deegan still sought to keep the infant close to her home because of her emotional attachment to him.^[20] Dr. Resnick reasoned, "had it been other circumstances, [Ms. Deegan] would have cherished the baby." Sent. Tr. 30.

Finally, Dr. Resnick testified that Ms. Deegan did not have a significant support system from her family and community. She lived in a mobile home in a rural area of North Dakota. She lacked the financial resources to leave her abusive and troubled family life. Ms. Deegan did not have outreach services with which she could have received assistance, nor were there shelters for victims of domestic violence. At the time of her actions, North Dakota did not yet have a Safe Haven Law, whereby parents could bring a child for which they felt unable to provide care.^[21] Further, individuals and institutions had [645] consistently failed Ms. Deegan when she needed help.

It is apparent from Ms. Deegan's background and the expert testimony in this case that every adverse factor that may play some role in neonaticide was suffered to an advanced degree by Ms. Deegan. As the dissent shows below, the district court made two critical errors in evaluating the record. First, the court thought the guidelines applied to this case. Second, the court recognized this testimony but failed to properly apply this important evidence in imposing its sentence.

IV.

REVIEW OF SENTENCING

A. Inapplicability of second-degree murder guidelines

Ms. Deegan's crime of neonaticide was a unique sort of homicide and completely unlike the usual and ordinary killings that constitute second-degree murder under federal law. As I have already observed, federal courts do not ordinarily deal with these types of cases, which may be grist for the mills of state courts. Only because this neonaticide occurred on an Indian reservation does this case become one of federal jurisdiction. There exists no basis in the statements of the Sentencing Commission or in reviewing federal appellate second-degree murder cases to conclude that the crime of neonaticide comes within the federal second-degree murder sentencing guidelines.

First, consider the Sentencing Reform Act of 1984 and the goals of the United States Sentencing Commission. It is axiomatic that the Sentencing Reform Act, through the imposition of mandatory guidelines, worked a sea-change in federal sentencing. But even then, Congress recognized that the goals of certainty and uniformity must in some instances yield to unique circumstances:

These provisions introduce a totally new and comprehensive sentencing system that is based upon a coherent philosophy. They rely upon detailed guidelines for sentencing similarly situated offenders in order to provide for a greater certainty and uniformity in sentencing.

S.Rep. No. 98-225, at 38, reprinted in 1984 U.S.C.C.A.N. 3182, 3221 (emphasis added). Likewise, the Sentencing Commission instructs that:

The sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range.

U.S.S.G. ch.1, pt. A, intro cmt. n. 2 (1997) (emphasis added). Thus both Congress and the Commission contemplated that not every crime would fall within the ambit of the guidelines.

The presentence report is lamentable in this regard. Despite the seemingly obvious fact that neonaticide is an unusual crime in federal court, the presentence report makes no mention that this is an "atypical" case. Even more distressing, the presentence report fails to indicate much in the way of the abusive circumstances Ms. Deegan faced during her childhood and at the time she gave birth to the infant victim. These circumstances, detailed so graphically in this dissent, were simply not a part of the presentence report, which asserted that no factors warranted departure from the guidelines.

Far worse than the omissions from the presentence report were the prosecutor's statements at sentencing, which lack any basis in fact or law, about the applicability of the guidelines to Ms. Deegan's conduct. At sentencing, Ms. Deegan's counsel requested [646] a non-guideline sentence. But the prosecutor mistakenly informed the district court that the Sentencing Commission took this type of crime into consideration in adopting the guidelines for second-degree murder:

MR. HOCHHALTER: Yes, Your Honor. Your Honor, the United States Sentencing Commission was in existence back as early as the late eighties and certainly at the time of this event, and certainly at the time of events across the country where, as Dr. Resnick has pointed out, this has been occurring for many years. The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing.

Sent. Tr. 42-43 (emphasis added). After this statement, defense counsel again urged, to no avail, that a guideline sentence was far greater than necessary.

Despite defense counsel's request, the district court determined—entirely without precedent—that the guidelines apply to "this type" of crime and that it believed application of the guidelines was "reasonable." The court stated:

Well, I have carefully reviewed the presentence report, and I adopt the factual findings and the sentencing guideline calculations spelled out in that presentence report that establish that this offense carries a total adjusted offense level of 32, a criminal history category of 1.

....

We have sentencing guidelines in the federal system that are designed to ensure that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have. The sentencing guidelines have been in effect for almost 20 years, and they are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases. Every year there are hundreds of thousands of cases that—in which defendants are sentenced around the country, and the Sentencing Commission compiles all that data and they try to develop sentencing guidelines that are fair and are reasonable.

In this case the sentencing guidelines provide for a sentence range of 121 to 151 months. That's 10 to 12-and-a-half years. I'm required to impose those guidelines that were in effect in October of 1998.

....

Pursuant to the Sentencing Reform Act of 1984, it's my judgment, Ms. Deegan, that you shall be committed to the custody of the Bureau of Prisons to be imprisoned for a period of 121 months. I am agreeing with the Government's recommendation in this case and adhering to the guidelines because I believe that they are reasonable.

Sent. Tr. 55, 59, 60-61 (emphasis added). Notwithstanding the district court's belief, no basis exists to place neonaticide within the mine-run guidelines for second-degree murder.

The foundation statements for application of the sentencing guidelines in this case amounted to error of great proportions. Once Dr. Resnick's report became known, a modicum of research by any of the persons engaged in the sentencing process would have easily disclosed that the guidelines did not contemplate crimes such [647] as Ms. Deegan's.^[22] An obligation to inform the judge of the applicable sentencing procedures and law rested on the prosecutor.

In the seminal case of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),^[23] the Court explained that the then-mandatory guidelines carve out a "heartland" of typical cases and the Court provided an approach for delineating which cases fall within that heartland. Koon concerned the well-publicized conduct of Los Angeles police clubbing an arrestee, Rodney King, with their police batons. Id. at 86-87, 116 S.Ct. 2035. In Koon, the applicable guidelines called for a sentencing range of 70 to 87 months' imprisonment for the convicted police officers. Id. at 89, 116 S.Ct. 2035. The district court granted a downward departure for several reasons, which the Ninth Circuit rejected. United States v. Koon, 34 F.3d 1416 (9th Cir.1994). The police officers petitioned for certiorari to the United States Supreme Court. Koon, 518 U.S. at 91, 116 S.Ct. 2035.

In the process of reviewing the sentence, the Court explained the difference between ordinary or typical guideline cases and the "unusual" one:

A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.

....

The Commission intends the sentencing courts to treat each guideline as carving out a `heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

....

The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not "adequately taken into consideration," and factors that may make a case atypical provide potential bases for departure.

Id. at 92-94, 116 S.Ct. 2035 (internal citations omitted) (emphasis added).

The Supreme Court noted that because of Mr. King's provocative behavior, the guidelines should not apply. Id. at 105, 116 S.Ct. 2035. The Court quoted the district court's analysis of heartland cases:

However, the convicted offenses fall under the same Guideline Sections that would apply to a jailor, correctional officer, police officer or other state agent who intentionally used a dangerous weapon to assault an inmate, without legitimate cause to initiate a use of force.

[648] The two situations are clearly different. Police officers are always armed with `dangerous weapons' and may legitimately employ those weapons to administer reasonable force. Where an officer's initial use of force is provoked and lawful, the line between a legal arrest and an unlawful deprivation of civil rights within the aggravated assault Guideline is relatively thin. The stringent aggravated assault Guideline, along with its upward adjustments for use of a deadly weapon and bodily injury, contemplates a range of offenses involving deliberate and unprovoked assaultive conduct. The Guidelines do not adequately account for the differences between such `heartland' offenses and the case at hand.

Id. at 102-03, 116 S.Ct. 2035 (quoting United States v. Koon, 833 F.Supp. 769, 787 (C.D.Cal.1993)).

Applying this rationale, whether Ms. Deegan's conduct fell outside the heartland and therefore was not contemplated by the sentencing guidelines depends on whether her conduct significantly differed from the norm. "The norm" is certainly not what we have here-an American Indian woman so beset by the serious problems in her life she cannot cope with another child, cannot think with logic, and believes she has no alternative but to run away and abandon her newborn child. Tragic yes, typical no!

Is that just this writer's assumption? What is in and what is out of the heartland? To determine whether the Commission contemplated neonaticide by a mother in its guidelines for second-degree murder, this writer inquired of the Sentencing Commission. The response from Glenn Schmitt, Director of the Office of Research and Data for the United States Sentencing Commission, is of great interest:^[24]

We reviewed 157,000 federal criminal cases sentenced since June 2006 (the date when our records became stored electronically, which enables us to review them more quickly than when they were stored off-site in paper). We found 605 cases in which the guideline providing for the highest punishment as either murder (2A1.1), 2nd degree murder (2A1.2), voluntary manslaughter (2A1.3), or involuntary manslaughter (2A1.4). Of these, the offender was a woman in 51 cases. We've gone back into each of the 51 cases and reviewed them in light of your inquiry.

....

In only one case did we find facts that meet the definition of neonaticide. In that case a 26-year-old mother gave birth to a child (her fourth) at home. She cleaned him, diapered[] him[,] dressed him, and fed him. She then placed him in a basket and left eh [sic] house with her other three children leaving the baby alone for two weeks. She testified that she knew the baby would die. When she returned and found him dead, she placed him in a suitcase and placed the suitcase in a ditch near her residence on an Indian reservation where it was discovered.

... As you can see from this analysis, cases like this are exceedingly rare in the federal system....

Mr. Schmitt's letter reflects that the Sentencing Commission was unable to locate another case of neonaticide besides the present case, which it described. Similarly, my research of non-habeas, federal appellate second-degree murder cases from [649] 1975 to the present discloses only one other clear case of neonaticide, with a drastically lesser sentence than that imposed on Ms. Deegan.^[25]

Further, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), makes clear that the district court erred in imposing a guideline sentence. In Rita, the Court reaffirmed that the Sentencing Commission intended for the guidelines to apply to the typical case but not to cases outside the "heartland." See Rita, 551 U.S. at 351, 127 S.Ct. 2456 ("[The judge] may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the `heartland' to which the Commission intends individual Guidelines to apply, USSG § 5K2.0[.]"). As the Court further explained, in a run of the mine case, the "Guidelines [ ] seek to embody the § 3553(a) considerations, both in principle and in practice." Id. at 350, 127 S.Ct. 2456. Therefore, "[a]n individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission's judgment in general." Id.

Rita establishes that no neonaticide case was considered in developing the guidelines. The Court in Rita stated that the Commission employed an empirical approach when developing the guidelines by examining tens of thousands of sentences. Id. at 349, 127 S.Ct. 2456. The paucity of reported federal cases illustrates that neonaticide cases were not included in the sampling. Thus, a neonaticide case clearly falls outside the "heartland" for second-degree murder sentences. Moreover, because neonaticide is not accounted for by the guidelines, a guideline sentence is not "a decision that is fully consistent with the Commission's judgment in general." See id. at 350, 127 S.Ct. 2456.

When the prosecutor asserted, "[t]he United States believes that the Sentencing Commission took into account these types of events," Sent. Tr. 43, it is obvious that he had done no legal or other research on the matter. Yes, the Sentencing Commission examined second-degree murder cases when it formulated the guidelines for that offense. But that certainly does not mean the Commission contemplated neonaticide when formulating a sentencing range for second-degree murder offenses.

The prosecutor's incorrect statement became an error of law when the judge agreed that a guideline sentence needed to be applied. The judge believed that the guideline sentence in this particular case was "reasonable" because "[the guidelines] are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases." Sent. Tr. 59. The judge stated that the guidelines apply "for people that commit this type of crime with the same type of criminal history that you [Ms. Deegan] have." Id. (emphasis added). But this conclusion is wrong.

[650] In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Court affirmed the sentencing principles described in Rita.^[26] The Court made clear that a district court should begin all sentencing proceedings by correctly calculating the applicable guidelines range and that the guidelines apply in "mine run" cases. Gall, 552 U.S. at 40, 49, 128 S.Ct. 586. This case falls so far from the heartland of guideline sentencing that it is a complete stranger to crimes ordinarily charged and considered as second-degree murder. As such, the district court significantly erred in sentencing when it concluded that the guidelines provided a "reasonable" sentence for neonaticide.

The inapplicability of the second-degree murder guidelines to this case requires reversal and remand. The district court should not have applied a guideline sentence because this is not a "mine run" case. Instead, the district court should have focused significant attention on the § 3553(a) factors. As detailed in the following section, Rita explains that the appropriateness of a district court's § 3553(a) analysis depends on the circumstances of the case. 551 U.S. at 356, 127 S.Ct. 2456. The circumstances here require a detailed and thorough analysis of the statutory sentencing factors, which the sentencing judge failed to do.

The majority reasons that Ms. Deegan's sentence is proper even if the case is not a run-of-the-mine case. Maj. op. at 634. That approach is wrong. Ms. Deegan's crime is not a run-of-the-mine case. The district court erred at the first step of the sentencing procedure. See Rita, 551 U.S. at 350-51, 127 S.Ct. 2456. Based on Rita and Gall, the district court erred in sentencing Ms. Deegan, and her sentence must be vacated.

B. Presumption of Reasonableness

The district court stated it was "required" to impose the guidelines that were in effect in 1998. Sent. Tr. 59. This amounts to a presumption and more that the guideline is reasonable. The further comment, "I am agreeing with the Government's recommendation in this case and adhering to the guidelines because I believe that they are reasonable[,]" in effect presumed the guidelines sentence was reasonable. Sent. Tr. 61. Such an approach is plain error in this circuit. See Alvizo-Trujillo, 521 F.3d at 1018 (stating that language that such a presumption applies is "a significant procedural error"); Greene, 513 F.3d at 907.

Rita makes clear that "[i]n determining the merits of these arguments [that the guidelines should not apply], the sentencing court does not enjoy the benefit of a legal presumption that the guidelines sentence should apply." 551 U.S. at 351, 127 S.Ct. 2456 (emphasis added). Further, as stated in Greene, the district court's mandate is not to impose a "reasonable" sentence, but "to impose `a sentence sufficient, but not greater than necessary, to comply with the purposes' of § 3553(a)(2)." 513 F.3d at 907 (quoting United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006)).

C. Section 3553(a)

I dissent from the majority's conclusion that the district court did not err in considering the 18 U.S.C. § 3553(a) factors.

[651] In discussing sentencing procedure, the Court in Rita observed that the sentencing court must give reasons for the sentence "in the typical case." 551 U.S. at 356-57, 127 S.Ct. 2456. Importantly, the Court adds:

The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.

....

In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.... Circumstances may well make clear that the judge rests his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical.

Id.

As explained, Ms. Deegan's crime was not "the typical case." Therefore, the district court could not just rely upon the Sentencing Commission's reasoning that the guideline sentence is a proper one. Instead, the district court needed to consider all of the § 3553(a) factors and make an individualized assessment based on the facts presented. Gall, 552 U.S. at 49-50, 128 S.Ct. 586.

The § 3553(a) factors include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

....

(5) any pertinent policy statement—

....

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). With respect to § 3553(a), the sentencing judge made these comments at the sentencing hearing:

The request in this case is for the imposition of a variance or a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a). And I am very familiar with each and every one of those sentencing factors that I'm required to consider in every case. And believe me, I've carefully considered them in this case.

....

In this case I have spent considerable time reflecting not only on the presentence report, but on the sentencing memorandums of the parties. I've carefully [652] reviewed Dr. Peterson's psychological evaluation that I ordered. I've carefully reviewed Dr. Resnick's report. I've read it over at least three times. I've read every letter that was submitted in this case, letters of support. I have reviewed the DVD that was shown here in the courtroom several times. I've considered the testimony of Dr. Resnick today and the arguments of counsel.

And I was very impressed with Dr. Resnick's report and his testimony here today. To me it was helpful and insightful, and I have real respect for his opinions. He has—he's a nationally renowned specialist who has testified in some of the most famous cases that we have experienced here in the United States. And his report was a very reasonable, insightful report, and I have far better insight into what went on in this case after reviewing Dr. Resnick's report than I ever had at the time that I took a change of plea from Ms. Deegan.

And I certainly have a much better understanding today as to all the contributing factors and stressors that existed in her life back in 1998. And I know that you haven't had an easy life, Ms. Deegan. I know that it was plagued with physical abuse and sexual abuse, both at the hands of your father and the hands of the father of your children.

....

And believe me, I have real compassion for you and your family and what you have gone through....

But I also need to ensure that justice is done, and I don't know if anybody knows what justice is in this case. I reflected upon Mr. Hochhalter's [the prosecutor's] comment in his brief that justice lies between the extremes of public opinion, and that's probably a pretty fair assessment of where things lie in this case.

But after careful review of this entire record, I have in this case—and I'm aware of my discretion and authority to impose a nonguideline sentence or to depart from the guidelines. I have chosen in this case to impose a guideline sentence. I'm not going to exercise my discretion and depart and impose a nonguideline sentence because I believe that the sentence range that's been provided for in the sentencing guidelines in this particular case is reasonable....

Sent. Tr. 56-59.

The majority finds this a satisfactory analysis of the § 3553(a) factors. I do not. The district court demonstrates familiarity with the sentencing record, but offers no analysis of the record as it relates to the statutory factors.

To be sure, the district court states, "I have carefully considered all of the factors." But this statement does not constitute an "explanation" for why a ten-year sentence is sufficient but not greater than necessary. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (stating a failure to "adequately explain" a chosen sentence is significant procedural error). A "statement of reasons" explaining a particular sentence is not equivalent to stating "I have considered all of the factors." As explained in Rita, "[i]n the present context [§ 3553(a) analysis], a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." 551 U.S. at 356, 127 S.Ct. 2456.^[27] [653] In my view, the district court never justified its sentence under § 3553(a). It becomes so very plain that the district court made the choice of a guideline sentence. However, it must follow that if the guidelines do not apply to Ms. Deegan's non-heartland crime, the court needed to explain its sentence with respect to every factor under § 3553(a) in order to arrive at a proper sentence. The district court's "reasons" for imposing this sentence are wholly inadequate.

The district court states, "I cannot ignore the fact that there was an innocent life that was lost, but believe me, I understand why you took the steps that you did...." Sent. Tr. 60. This seems to be a "reason" for the sentence. But every neonaticide causes the death of a newborn child. That statement alone cannot justify this ten-year sentence.

The district court states, "I don't know if anybody knows what justice is in this case," but justice is reflected by the brief of the prosecutor that "justice lies between the extremes of public opinion...." Sent. Tr. 58. Wrong! Public opinion should not factor into a sentence. The factors are those in section 3553(a). Public opinion is not disclosed by the record in this case.

The district court states it was "obligated to apply the [1998] guidelines," and also noted that if it applied the 2008 Guidelines in effect at the time of sentencing, Ms. Deegan's sentence "would be in the range of 19-and-a-half to 24-and-a-half years." Sent. Tr. 55, 59-60. Wrong! The faulty underlying premise of both comments is that the guidelines contemplated neonaticide.^[28]

The other "reason" offered by the district court for its sentence is the belief that a guideline sentence is reasonable. This is simply not supported by the law. As previously discussed, this is not a mine-run case to which the second-degree murder guidelines apply. In other words, the district court could not simply "rest[] his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence...." Rita, 551 U.S. at 357, 127 S.Ct. 2456. Unfortunately, the district court did exactly that in sentencing Ms. Deegan.

But even more erroneous, in finding the guidelines "reasonable," the district court stood sentencing procedure on its head. As explained in Greene, a district court's job is not to impose a "reasonable" sentence. 513 F.3d at 907. The district court's job is to impose a sentence sufficient but not greater than necessary to comply with the purposes of § 3553(a). Id. Reasonableness is the appellate standard of review in judging whether a district court has accomplished that task. Id. Analysis of the § 3553(a) factors demonstrates the unreasonableness of Ms. Deegan's ten-year sentence.

1. Circumstances of the offense and characteristics of the defendant

This dissent amply describes the nature and circumstances of the offense and the history and characteristics of the defendant. This factor favors leniency. The district court never explained how the nature and circumstances of the offense and history and characteristics of Ms. Deegan supported its determination that a ten-year [654] sentence was sufficient but not greater than necessary.

2. Deterrence and recidivism

As to deterrence, Dr. Resnick testified that incarcerating Ms. Deegan would not likely deter other individuals from committing neonaticide. He explained that deterrence was unlikely for several reasons, including:

[T]hat since Ms. Deegan's crime, safe haven laws have been passed in all 50 states, and now if a woman feels overwhelmed by a baby, whether she's a teenager or whatever, she can drop that baby off at a hospital or a police station, no questions asked, and not have to kill the baby. And there have been more than a thousand drop-offs since those laws have begun to be passed in 1999.

Secondly, when a women [sic] commits neonaticide, most of the cases it is a teenager. Actually, the mean age for neonaticide in the United States is age 19, and most of these young women are... willing to put themselves through a great deal of anguish.

....

And women who are willing to put themselves through that I don't think are going to be significantly influenced by whether someone is sentenced to ten years or two years or probation.

Sent. Tr. 33-34.

As to recidivism of Ms. Deegan, Dr. Resnick stated:

Ms. Deegan presents an extremely low risk that she would commit any further conduct which was criminal in nature. With regard to harming a future baby, that's a nonissue because Ms. Deegan has had a tubal ligation. She's not going to have any more babies.

With regard to other criminal conduct, Ms. Deegan has been a law-abiding citizen her entire life, has no juvenile offenses, no adult offenses, not an alcohol or drug abuser, which is associated with criminality, has shown considerable remorse for what she has done, and is no longer in the desperate situation that she was in October 1998, where she was abused, overwhelmed, did not feel that she could care for the baby, didn't feel she could keep her babies—her three existing children safe if she was overwhelmed with another baby.

And the one follow-up study which has been done in women who have killed newborn children shows that most of them go on to marry and be good mothers, and that suggests that this is a crime which is based upon circumstances as opposed to bad character in the perpetrator.

And in Ms. Deegan's case, we have an example of where she has already in the nine years between the act and being brought to trial, has already demonstrated the quality of being a good mother, so rather than have to prognosticate, we have a nine-year period where we can show that she has got her life together, been a good mother, and not been a risk to the community.

Sent. Tr. 31-32. Dr. Resnick added:

[In spite of the abuse to Ms. Deegan], she has been a devoted, caring mother and made every effort to protect her children, raise her children to be good citizens so that—you know, there are occasions when there's what's called a cycle of violence where children who are abused go on to abuse their children. Not all mothers do that, but some do, and Ms. Deegan has taken a protective role and made sure that her children are well cared for.

Sent. Tr. 32.

As this testimony shows, the evidence before the district court overwhelmingly [655] established that incarcerating Ms. Deegan would not deter others from committing neonaticide and that Ms. Deegan would not commit future crimes.

As with the first sentencing factor, the district court never addressed what role deterrence and recidivism played in its ten-year sentence. Thus appellate review seems limited to noting that (1) this factor favors leniency; and (2) the district court never expressly discussed this factor.

3. Seriousness of offense

Of course neonaticide is a serious offense-as is any offense causing loss of life. Dr. Resnick provided some interesting background as to how other governments look at neonaticide.

There are 26 countries that have a particular law called an infanticide statute. This exists in Canada. It exists in England. It exists in Australia. And these countries have recognized that a woman taking a young baby is sometimes due to psychiatric factors, and finding them guilty of murder just does not comport with their sense of justice. So the persons found guilty of infanticide, rather than murder, have the equivalent sentence of voluntary manslaughter, rather than murder. And in England, most of these women who are found guilty of infanticide are placed on probation. They're not considered a danger to the community.

Sent. Tr. 30.

Despite all of the reasons given by defense counsel, the prosecutor and court's sole reason (besides reliance on the guidelines) for imposing a ten-year prison sentence was the tragic death of the infant. While it is tragic that a life was lost, that is the nature of any neonaticide. That alone is not sufficient to justify this sentence.

4. Family ties

While the guidelines do not ordinarily consider matters such as family ties, such a consideration is permissible under § 3553(a). Rita, 551 U.S. at 364-65, 127 S.Ct. 2456 (Stevens, J., concurring). The defense presented and the court received as evidence a DVD relating to the Deegan family. In that presentation, Ms. Deegan's younger sister related that Ms. Deegan protected her small siblings against the vicious abuses which their father sought to inflict.

Also Ms. Deegan's children exhibited their Native Indian regalia made by Ms. Deegan. The youngest child described Ms. Deegan as smart, pretty, and elegant.

In her allocution, Ms. Deegan spoke of her children's needs for her:

I've written a letter I'd like to read to you. [Judge], with respect to the Court, my family and my community, I am humbly addressing you today asking for a downward departure from the sentencing guidelines, not for my own sake, but for the sake of my daughters. They are at the age where they need me most now. I have spent my life trying to protect them from all [ ] that I had to endure. They need me to guide them, to love them and help them get through this difficult time, and to continue to help them grow to be grown good women.

Sent. Tr. 54.

Instead of the prosecutor acknowledging that the children's needs can play a role in reducing a federal sentence, he justified the guideline sentence saying, "[T]he punishment that comes to those siblings as well comes at the hand of the defendant. Basically her choice is what has caused all of this." Sent. Tr. 53. With respect to these comments, I offer this observation as to the laying of blame. There is plenty of [656] blame to go around. Ms. Deegan's father is dead. But what blame should be placed on Mr. Hale who did not support the children he fathered and consistently abused Ms. Deegan? And what about the failures of society to assist Ms. Deegan in her travail?

When it comes to blame, Dr. Resnick's report needs to be recalled:

a) When Ms. Deegan reported being the victim of sexual abuse to her mother at age 11, she reasonably expected protection from further abuse. Instead, she received a beating from her father for "whoring."

b) After being removed from her parents by the Child Protective Service, Ms. Deegan reasonably expected protection from further abuse. Instead, she was later returned to her parents and suffered further physical abuse from her father. Furthermore, while in some foster homes, she was physically abused.

c) When Ms. Deegan became a foster daughter to Irene Hale, she reasonably expected to be safe from physical abuse. Instead, she was physically abused by Irene's son, Shannon Hale.

d) When Ms. Deegan participated in joint therapy sessions with Shannon Hale in his substance abuse treatment, she reasonably expected Shannon's behavior to improve. Instead, Shannon beat her for "running her mouth."

e) When Ms. Deegan filed for a restraining order against Shannon Hale, she reasonably expected protection. Instead, a court officer took Shannon home to their trailer drunk.

Add. 2, p. 21 (Resnick Report).

Indeed, the great improvement in lifestyle by Ms. Deegan after escaping her abusive home meant a better life for her family. Did the prosecutor or the district court give any weight to that accomplishment? No! Yet that factor lends strong support to a lenient prison sentence. See Gall, 552 U.S. at 59, 128 S.Ct. 586 (stating that the district court gave this factor "great weight").

5. Promoting respect for the law and avoiding disparity

A district court should consider whether a sentence promotes respect for the law and consider the need to avoid unwarranted disparity among defendants who have been found guilty of similar conduct. 18 U.S.C. § 3553(a)(2)(A) and (a)(6).

The sentencing record reveals that defense counsel informed the court of another neonaticide crime in the State of North Dakota, but committed by a young woman, off the Indian reservation and, thus, subject to North Dakota state laws. As the defense counsel described the case:

There was an NDSU student who gave birth to a child, wrapped the baby up, stuck the child under a bed, and then ultimately disposed of the child, very similar kinds of situations here. That person got three years probation. Now, granted, certainly there are always differences in every case, but my point, Your Honor, is that if this had happened perhaps off the reservation, the consequences or at least the potential consequences are significant. And in disparity situations. I don't think you can operate in a vacuum, that you're dealing simply with disparities in the federal system. I think you have to look at what goes on.

Sent. Tr. 51.

The prosecutor stated:

Your Honor, just to clarify, I think counsel suggested that [the][ ] case in Cass County was three years probation. [657] I'm wondering if it was three years prison term that was the sentence in that case. I'm not positive, but I believe it was a prison term.

Sent. Tr. 52-53.

Also, Dr. Resnick informed the court that women who plead guilty to neonaticide are "infrequently sentenced to more than three years in prison." Add. 2, p. 24 (Resnick Report). These are all state sentences and, as observed by the majority, ordinarily state sentences are not germane to showing disparities in sentencing.

But here, we ought to consider the difference in sentence between (1) Ms. Deegan, a woman living in North Dakota and generally subject to state and tribal laws, except as to some aspects of federal law because of her residency on an Indian reservation, and (2) a North Dakota woman who committed a neonaticide crime off the reservation.

As the court said in Gall, quoting with approval the reasoning of the district court:

the unique facts of Gall's situation provide support for the District Judge's conclusion that, in Gall's case, "a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing."

Gall, 552 U.S. at 54, 128 S.Ct. 586 (citations omitted).

This statement echoes the situation here. What respect should be given to federal criminal law which imposed a harsh punishment for this woman's crime on the reservation, when compared to the lenient sentence upon a woman off the reservation for this special crime of neonaticide? I submit that the sentence here promotes disrespect for the law and the judicial system.^[29]

In this regard, a letter from Ms. Deegan's sister to the court before sentencing becomes relevant and significant:

Our family has endured depression, anxiety, and post-traumatic stress disorder [PTSD]. Our childhood home was a war zone; there were some good times of laughter and love, but one never knew when an attack of rage and violence was about to happen.

Our family has taken great lengths to reconcile the pain and scars that have been left on our souls. Understanding the intergenerational historical trauma of our American Indian Grandfathers and Grandmothers that came before us, has helped my family to forgive and love our father, knowing that he too suffered. Non-Indian people may not easily internalize this sense of loss and powerlessness so deeply ingrained by American Indian people still today. The cultural deprivations and discriminations of our people merely because of our heritage has contributed to the psychological deficits that Dana, at that particular low time in her life, was unable to overcome. I fear that these same cultural factors may also contribute to harsher penalties of an already oppressed woman.

....

She was then as she is now, only trying to survive while caring for her daughters. She has spent her adult life trying to protect her children from a life she had to endure. If Dana is sentenced to prison, it is yet another tragedy, this [658] time in the name of justice, that her daughters will be victims too.

R. at 29 (attachment to Defendant's Sentencing Memorandum, sealed in the district court) (emphasis added).

Reading this letter should give us all pause. How many of us can really comprehend the misery of Ms. Deegan's situation as described in this record? None of these matters made any difference to the district court when sentencing under the guidelines. I ask what respect should be given to this guideline sentence?

The sentence here is unjust, excessive, and treats a woman on the reservation disparately with a woman off the reservation. Does this disparity not indicate another example of unfair treatment of an American Indian living on a reservation?

In summary, with respect to § 3553(a) the district court committed several errors. The district court believed the that the guidelines were "reasonable" and that they applied to Ms. Deegan. Wrong! This is not a mine run case.

The district court's § 3553(a) analysis was wholly insufficient considering the circumstances of this case. The statute and the Supreme Court require a statement of reasons, which in this case was not satisfied by the district court's statement that it "considered" the statutory factors.

The district court expressly relied on the Commission's view of an appropriate sentence, but the Commission never considered neonaticide. Examination of the record in light of the § 3553(a) factors shows the substantive unreasonableness of Ms. Deegan's sentence.

Finally, the district court never explained how this ten-year sentence comports with the most crucial aspect of sentencing: that a sentence be sufficient, but not greater than necessary to comply with the purposes of § 3553(a). Instead, the court imposed an almost mechanical sentence based on its erroneous view that the guidelines applied to "this type of crime."

D. Guideline Sentence as Virtually Mandatory

The reader may wonder how an experienced prosecutor and a well-regarded district judge could err so grievously in the imposition of this sentence. Justice Souter's separate opinion in Rita may suggest the answer:

What works on appeal determines what works at trial, and if the Sentencing Commission's views are as weighty as the Court says they are, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the unorthodox factfinding necessary to justify a sentence outside the Guidelines range.

Rita, 551 U.S. at 391, 127 S.Ct. 2456 (Souter, J., dissenting) (citations omitted).^[30] Moreover, as Justice Stevens commented, "I am not blind to the fact that, as a practical matter, many federal judges continued to treat the Guidelines as virtually mandatory after our decision in Booker." Id. at 366, 127 S.Ct. 2456 (Stevens, J., concurring).

I ask isn't that precisely describing the sentencing procedure and comments here?

The majority stresses discretion by the district court. Maj. op. at 634-35. But the sentencing judge did not exercise his discretion. He merely adopted the recommendation of the prosecutor for a guideline [659] sentence. Rather than consider the specific facts and circumstances in this case, the district court imposed a guideline sentence. This court addressed the limits of "discretion" in the pre-guideline case of Woosley v. United States, 478 F.2d 139 (8th Cir.1973) (en banc).

Woosley arose thirty-seven years ago when appellate courts almost never reviewed the district court sentence. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The relevant facts are as follows. A sincere and religiously motivated member of Jehovah's Witnesses had refused a conscientious objector classification in the Selective Service draft and had refused to report for induction. 478 F.2d at 140. The sentencing judge in Woosley recognized the defendant "as a fine young man." Id. However, the judge gave him the maximum sentence under the law (five years) pursuant to the judge's policy of always imposing the maximum penalty to men who refused induction into the military. See id. at 140, 143. That sort of sentence was imposed regardless of the underlying circumstances as to each defendant.

The Woosley court said, "we deal with a predetermined sentence resting upon a policy followed by the trial judge.... A mechanical approach to sentencing [that] plainly conflicts with the sentencing guidelines announced by the Supreme Court...." 478 F.2d at 143 (emphasis added) (citation omitted).

Here, rather than looking at the law espoused by the Supreme Court and truly considering what sentence was sufficient but not greater than necessary, the court imposed the guideline sentence. It blindly followed the government's belief "that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines...." Sent. Tr. 43. Interestingly, the district court observed that Ms. Deegan's life had not been easy and he expressed compassion for what she had gone through. But the judge disregarded the specific circumstances of her crime and imposed the guideline sentence. This case was out of the "heartland" and did not fall within the guidelines sentence structure. Despite that, the district court failed to exercise its discretion in imposing a sentence.

In Woosley, the court observed that the great majority of individuals committing a similar crime received probation, not a jail sentence. 478 F.2d at 147. Here the judge gave no consideration to the plea for a lenient sentence, even though that matter was brought to his attention by defense counsel and Dr. Resnick. The sentence in this case manifests a gross abuse of discretion.

The Woosley en banc court concluded the opinion with this language, which I suggest is very pertinent to this case:

We find it difficult to conceive of a situation offering more compelling circumstances to justify leniency than that in the instant case.

....

The broad and unreviewable discretion possessed by federal district courts in matters of sentencing does not extend to the meting out of punishment manifestly disproportionate to the nature of the crime and the character of the criminal.

Id. at 147-48. Although in a different time and relating to a different crime, the two cases have parallels.

Yes, this judge stands by the view that district courts should exercise discretion in sentencing. But that discretion is not unfettered. United States v. Burns, 577 F.3d 887, 897 (8th Cir.2009) (en banc) (Bright, J., concurring). The record here makes clear that the district judge exercised [660] no discretion but merely agreed with and adopted the government's recommendation and applied the guideline sentence. This amounted to grievous, gross error.

V.

REMEDY

A simple remand for resentencing will not do. This neonaticide crime is a novel one in the federal courts. As I have noted, I have never seen a crime as completely out of the "heartland" as this one. As such, this court should provide the district court with guidance. In Woosley, the circuit court remanded the sentence to the district court with special instructions, including one for the court to consider "changed family circumstances which may disclose additional considerations dictating leniency of treatment." 478 F.2d at 148. Moreover, pending disposition of the en banc appeal, this court released Woosley from prison on his personal recognizance. Id. at 140 n. 2.

In Ms. Deegan's circumstances, I suggest that (1) she be immediately released from prison pending disposition of this appeal and resentencing; (2) the district court reconsider the creation of a sentencing disparity between two North Dakota women who both committed neonaticide; and (3) the district court consider imposing a new sentence to time served in prison.

Regardless of the above suggestion, what judicial or societal harm can come from a remand? The process of remanding for resentencing goes on every day in the federal courts.

VI.

CONCLUSION

Ms. Deegan's case cries out for justice and a reversal. The guideline sentence for second-degree murder does not apply to her crime of neonaticide. Ms. Deegan has suffered enough. I will not put my imprimatur on this harsh sentence, which reeks with error in the sentencing process. Ms. Deegan has suffered immense cruelty at the hands of her father, his male friends, and the father of her children. Now her lifetime of travail becomes magnified by an unjust and improper prison sentence. Her sentence of ten years' incarceration rests on a misreading or ignorance of the law.

For almost the first time in a federal appeal, this court addresses the fairness of a sentence imposed on a woman on the Indian reservation whose prior life has been a "hell" and where the punishment ignores the needs of her children, who were the objects of her protection in committing a tragic crime.

In essence, the issue in this case is whether the district court imposed a sentence under § 3553(a). The majority says it did. Maj. op. at 633-34. I believe the answer is a resounding No! The problem with the majority's analysis is that the very words of the actors in the sentencing process seem to disagree.^[31]

In mine run cases, the guidelines account for § 3553(a), see Rita, 551 U.S. at 350-51, 127 S.Ct. 2456, which lessens the need for extensive discussion of the § 3553(a) factors. The Sentencing Commission never incorporated the § 3553(a) factors into a guideline that applies to the [661] crime of neonaticide; thus Ms. Deegan's guideline sentence cannot embody the § 3553(a) factors. Because the sentencing court could not properly rely on the guidelines, Ms. Deegan's sentence required a full analysis of these statutory sentencing factors.

The majority relies on mine run cases for the proposition that district court judges need not say much about the sentencing factors. See Maj. op. at 629-30 (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (mine run perjury, obstruction of justice, making false statements); United States v. Robinson, 516 F.3d 716 (8th Cir.2008) (mine run conspiracy to commit bribery); United States v. Hernandez, 518 F.3d 613 (8th Cir.2008) (mine run possession of methamphetamine with intent to distribute); United States v. Perkins, 526 F.3d 1107 (8th Cir.2008) (mine run revocation of supervised release); United States v. Henson, 550 F.3d 739 (8th Cir.2008) (mine run felon in possession)). But Ms. Deegan's case is not a mine run case. This court should not sanction this guideline sentence nor the cursory discussion of the § 3553(a) factors.

The majority relies on the district court's presentence order to conclude that a court "could" reasonably view Ms. Deegan's offense as "unusually heinous, cruel, and brutal." Maj. op. at 634. According to the majority, this characterization of Ms. Deegan's actions demonstrates the substantive reasonableness of her sentence. But the district court ultimately rejected the characterization on which the majority relies. The "heinous, cruel, and brutal" language in the district court's presentence order simply recites U.S.S.G. § 5K2.8, on which the district court contemplated, but rejected, a sentencing departure. See Maj. op. at 628-29. Importantly, the presentence order contemplating the departure was issued before the district court or any participants in the sentencing process knew any substantial amount of information about Ms. Deegan's background and about neonaticide. The majority's revival of "heinous, cruel, and brutal" does not reflect the views of the district court, nor those of a leading expert on neonaticide, and I strongly dispute that characterization of Ms. Deegan.

The majority criticizes the dissent for comparing Ms. Deegan's case to that of another North Dakota neonaticide. Maj. op. at 635-36. The majority asserts that almost nothing is known about the other North Dakota neonaticide that was committed by an NDSU student. True, the details underlying her crime are not part of the sentencing record. But a comparison of these women's circumstances from the record, in light of Dr. Resnick's discussion of the § 3553(a) factors as related to neonaticide, strongly indicates that Ms. Deegan is entitled to a lenient sentence, similar to that of the NDSU student. And if the information before the judge and the testimony of Dr. Resnick was insufficient, it should have been a red flag to investigate further to determine whether the circumstances of the NDSU case were comparable to those of Ms. Deegan.

In any event, what we do know about the other North Dakota neonaticide supports overturning Ms. Deegan's harsh sentence. Both women committed neonaticide. Both did so in North Dakota. But Ms. Deegan committed her crime on a reservation and landed in federal court. Dr. Resnick reported that most women receive sentences of not longer than three years' incarceration, see Add. 2, p. 24 (Resnick Report), and the NDSU student received three years' probation. On this record, there is no just reason for the sentencing [662] disparity between these two women. As I previously asked, what respect should be given to federal criminal law which imposed a harsh punishment for Ms. Deegan's crime committed on the reservation, when compared to the lenient sentence upon a woman off the reservation? Might an informed observer say: just another injustice by the United States which Indians must suffer.

The comparison of these two cases relates not to whether a federal court should rely on state sentences, but is an issue of unfairness and injustice to an Indian woman living on a reservation as compared to a woman not living on a reservation. The majority may say different laws apply. The difference here rests not on the law, but on the mistakes and misjudgment by a federal court as shown by the record.

I firmly believe that in these United States, through its courts or otherwise, Ms. Deegan will receive Equal Justice Under the Law.

This case also lifts the curtain on the terrible abuse suffered by Ms. Deegan as a young child and young woman on the Fort Berthold Indian Reservation in North Dakota. Unfortunately, her suffering is not an isolated instance. The pervasive and terrible abuse of women and children occurs on every Indian reservation in this country. I address that matter in the Appendix to this dissenting opinion.

APPENDIX TO DISSENT

LIFTING THE CURTAIN ON ASSAULTS AGAINST WOMEN AND CHILDREN IN INDIAN COUNTRY

In the dissent, I raise the question: where were the government and social agencies during the many instances of physical, verbal, and sexual abuse suffered by Ms. Deegan as a child and young adult, as well as her younger sisters and mother?

This dissent in part has examined the root cause, abuse after abuse after abuse suffered by Ms. Deegan, that underlies the tragic death of the infant victim. Is that abuse isolated to the Fort Berthold Indian Reservation or symptomatic of an existing situation in all of Indian country?

Coincidentally, in examining the background of assault and abuse in this case, a revealing and pertinent article about violence and sexual assault in Indian country appeared in a popular legal publication. The article entitled, Strange Justice in Indian Country, appeared in the National Law Journal of September 28, 2009. It reads in part:

Conditions in this obscure country, as reported by sources ranging from Amnesty International to a U.S. Senate committee, are appalling. One in three women will be raped in her lifetime. Half the reported murders and 72% of child sex crimes are never prosecuted. Ninety percent of sexual assaults on native women are committed by men from the dominant ethnic groups. The nation's highest courts regularly reverse convictions based solely on the defendant's race.

This country is not Sudan, Rwanda or Kosovo during ethnic cleansing. Rather, this is the state of law enforcement today on the 310 Indian reservations that are home to nearly a million Native American citizens of the United States.

"Indian Country"—the federal government's name for the 54 million acres of reservation lands in the United States—is larger than Minnesota or Utah. The layers of social ills on most reservations—alcohol and drug abuse, unemployment, malnutrition and chronic disease—are a well-documented national shame. But the failure of the U.S. government to provide equal legal protection [663] to victims of serious crimes, who happen to be Native American, is just bizarre.

....

The treatment of native peoples is one of the darkest chapters in American history. Although nothing can be done to change that history, extending basic legal protections to residents of Indian country, equal to those enjoyed by their fellow citizens, is a modest goal.

As the dissent notes, the abuse and beatings perpetrated upon Ms. Deegan as a child and young woman by her father, his friends, Mr. Hale, and others, although known by some officials of tribal institutions, were never investigated, prosecuted, nor the subject of correction. Ms. Deegan as an Indian woman does not stand alone as a victim of abuse.

Violence against American Indian women is a pervasive problem. Federal government studies consistently show that American Indian women are more likely to be subject to sexual violence than other women in the United States.^[32] In fact, American Indian women are more than two-and-a-half times more likely to be raped or sexually assaulted than other women.^[33] More than one out of every three American Indian women will be raped during their lifetime.^[34]

American Indian women are not only more likely to be raped and sexually assaulted, but are also more likely to suffer a higher degree of additional physical violence during those assaults. While 30 percent of the general population of United States women report suffering physical injuries in addition to a rape, 50 percent of American Indian women report such injuries.^[35] American Indian women are also more likely to be a victim of a rape with a weapon.^[36] While 11 percent of all reported rapes involve the use of a weapon, 34 percent of female American Indian rapes involve a weapon.^[37]

Notably, survivors of such brutal rapes and assaults suffer physically, emotionally, and spiritually.^[38] American Indian women who have been sexually assaulted report higher rates of depression, alcoholism, drug abuse, and suicidal ideation.^[39]

In addition to pervasive and damaging sexual violence, American Indians are more likely to be victims of all violent crimes than any other race.^[40] In fact, American Indians experience a per capita [664] rate of violence twice that of other United States residents.^[41] The same is true for American Indian women, who are over two times more likely to be victims of violence.^[42]

American Indian children are often victims of abuse. One American Indian child out of 30 is subject to abuse or neglect.^[43] American Indian children are approximately twice as likely to be victims of child abuse than the general population of children.^[44]

Sadly, violence and abuse on Indian reservations are likely greater than depicted in these statistics. It is widely-accepted that reports of abuse and violence on Indian reservations are under reported.^[45] Although "[v]iolence against women is one of the most pervasive human rights abuses[,][i]t is also one of the most hidden."^[46] "Most Indian women do not report such crimes because of the belief that nothing will be done."^[47]

Pictures occasionally speak louder than words. The attached illustration^[48] depicts a young American Indian girl in native dance regalia and emphasizes to the reader the importance of protecting "the integral parts of [Indian] life."^[49] The high risks of violence to which American Indian women and children are exposed to on their reservations requires urgent action by federal agencies, tribal personnel, and other social services, and they should do all in their power to stop this terrible and continuing abuse.

I conclude with this comment. The violence against women and children on Indian reservations is a national scandal. It must be addressed not only as a criminal matter but as a societal concern. If the violence against Ms. Deegan had been stopped, even as late as her association with Mr. Hale, and, if she had been given moral and societal assistance in raising the three children in her family, this crime of neonaticide might never have occurred. The deterrence to such a crime, as here, will not be attained by imposing a harsh punishment on Ms. Deegan. The problems of preventing assault and abuse against women and children in Indian country need illumination, and immediate steps must be taken to stop this terrible and wrongful conduct.

[665]

[1] The Honorable Daniel L. Hovland, Chief Judge, United States District Court for the District of North Dakota.

[2] We disagree with the dissent that the district court's description of the chosen sentence as "reasonable" demonstrates that the court applied an impermissible presumption of reasonableness to the advisory guideline sentence, post, at 650, or that the court misunderstood its duty under § 3553(a) to select a sentence that is "sufficient, but not greater than necessary" to comply with the purposes of § 3553(a)(2). Post, at 653. As in United States v. Vaughn, 519 F.3d 802, 805 (8th Cir. 2008), where the sentencing court said it was to impose a "reasonable sentence," there is no plain error, because the record as a whole shows that the court followed the proper procedure under Gall.

[3] In its Fifteen Year Report, the Commission explained that murder was one of the offenses for which the original Commission, "either on its own initiative or in response to congressional actions, established guideline ranges that were significantly more severe than past practice." See U.S. Sentencing Comm'n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 47 (2004). The report further observed that for violent crimes, "the Commission was careful to ensure that average sentences . . . at least remained at current levels, and it raised them where the Commission was convinced that they were inadequate." Id. at 68. It explained that "[f]or murder and aggravated assault, the Commission felt that past sentences were inadequate since these crimes generally involved actual, as opposed to threatened, violence." Id. Nothing in these statements is inconsistent with an assumption that the second-degree murder guideline was based on empirical data and national experience, although the data and experience may have led the Commission to conclude that the average sentence should be increased.

[4] Even if two different sentences had been imposed in federal court, moreover, one district judge has no obligation after Booker to follow the decision of another district judge. Cf. post, at 649 & n. 25. District judges now are permitted to apply their own policy views when determining what punishment is sufficient for a particular offense under 18 U.S.C. § 3553(a), Spears v. United States, ___ U.S. ___, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (per curiam); Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and there inevitably will be some disparity in the sentencing of similarly-situated offenders. Booker, 543 U.S. at 263, 125 S.Ct. 738 ("We cannot and do not claim that use of a `reasonableness' standard will provide the uniformity that Congress originally sought to secure.").

[5] As a federal judge, I had never heard of the term "neonaticide" nor encountered a case of neonaticide until this case. From reading the record, I daresay the same lack of knowledge existed in the district court personnel until neonaticide was explained by Dr. Phillip Resnick. The defense counsel, William D. Schmidt of Bismarck, North Dakota, an assistant public defender, should be commended for his research on the subject and in bringing Dr. Resnick to testify about neonaticide.

This judge has read and reviewed several hundred federal sentencing cases. Of those, the procedure and sentence here is among the most grossly wrong and unfair that I have ever encountered. The result: a harsh, discriminate, and improper sentence upon an American Indian woman living on a reservation. The conduct of the district court in this case and the majority's affirmance violates every sentencing principle enunciated by the Supreme Court after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

This one of a kind sentence by a federal sentencing judge, not a state judge as would be the usual case, occurred only by reason of the defendant's residence on an Indian reservation in North Dakota. I justify the length of this dissent on the basis that every aspect of the sentencing procedure and the substance of the sentence deserves careful examination. This federal court on appeal should not approve a prison sentence for this reservation crime which this judge believes is unfair and improper under the law and facts.

[6] The dissent recognizes that in the usual case where the crime is in the heartland of the guidelines, the claim that the court did not fully consider the § 3553(a) factors will be plain error unless the defendant objects to the sentencing judge's analysis of the § 3553(a) factors. See, e.g., United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008); Alvizo-Trujillo, 521 F.3d at 1018. But here we have a distinctly different situation. This crime did not fit the guideline because it was outside the heartland. The request by defense counsel here was for "a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a)." Sent. Tr. 56. Moreover, the circumstances here squarely come within 18 U.S.C. § 3553(b)(1), which states that "[i]n the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in [§ 3553] subsection (a)(2)."

Thus, when Ms. Deegan requested a non-guideline sentence, and the sentencing judge denied the request and imposed a guideline sentence, nothing further needed to be said to preserve the error. The failure to sentence completely outside the guidelines, in light of the record here, should be reviewed as preserved error.

[7] Dr. Resnick, the expert who examined Ms. Deegan, testified that he had reviewed FBI reports, family and medical records, and an interview with Mr. Hale and had not found any major contradictions. In other words, the supporting documents in the case "substantiated Ms. Deegan's version of what had gone on in her life." Sent. Tr. 16.

[8] In today's world we speak of similar conduct as a form of torture-water boarding. The abuse this child suffered is almost beyond imagination.

[9] FBI reports support Ms. Deegan's account of the extensive abuse she suffered. Mr. Hale acknowledged in an interview with the FBI that he had physically, emotionally, and verbally abused Ms. Deegan on a regular basis. Mr. Hale further acknowledged that he was a bad husband, Ms. Deegan was a good woman, and Ms. Deegan had done a good job raising their children without his assistance.

[10] Ms. Deegan's medical records document this injury:

7/29/97: Twenty-four year old patient comes in to evaluate injuries sustained in an altercation with her boyfriend last night. She is 37 weeks pregnant. She wishes to press charges. Her boyfriend was inebriated. Her boyfriend was with another woman. A brutal fight ensued ending up with the patient being thrown out on the gravel with her left leg extended at a considerable angle and this caused a major injury we are now inspecting. The pregnancy seems to be unaffected. Diagnosis: Multiple contusions and abrasions. Hip ligament strain left, moderately severe. (She had her baby two days later.)

Add. 2, p. 16 (Resnick Report).

[11] Greek mythology, as related by Homer in the Odyssey, tells the tale of Scylla and Charybdis and provides an apt metaphor of Ms. Deegan's dire circumstances. The story relates that two sea monsters, Scylla and Charybdis, guarded the Strait of Messina between Sicily and Calabria in Italy and gave sailors inescapable threats-pass close to Scylla and be eaten by the monster, or veer to the other side closer to Charybdis and be sucked in and destroyed by a whirlpool. S.H., Butcher and A. Lang, The Odyssey of Homer 199-200 (MacMillan & Co. 1922) (1879). In today's vernacular, Ms. Deegan's choice was between a "Rock and a Hard Place."

[12] Essentially, Ms. Deegan gave the same characterization of the circumstances to the FBI:

Deegan stated that Shannon Hale was drinking heavily and using large amounts of drugs including methamphetamine. He was frequently gone for days or weeks at a time. Neither Deegan nor Hale were working, and she was having difficulty finding money to feed her children. What little money she did manage to find, Hale would take and use for drugs. Deegan essentially was the sole provider and care giver for herself and her three children. She felt that having another child to care for was more than she could handle. So, she left Baby Doe alone to die because she felt she could not care for another child under the circumstances.

Add. 2, p. 17 (Resnick Report).

[13] See Drescher-Burke, K., Krall, J., and Penick, A., Discarded infants and neonaticide: A review of the literature, Berkeley, CA: National Abandoned Infants Assistance Resource Center, University of California at Berkeley, 4-5 (2004).

[14] Id.

[15] See Janet Ford, Note, Susan Smith and Other Homicidal Mothers—In Search of the Punishment that Fits the Crime, 3 Cardozo Women's L.J. 521, 538 (1996).

[16] See Drescher-Burke, et al., supra note 9, at 5.

[17] See Ford, supra note 11, at 538.

[18] Dissociation is "like an out-of-body experience" wherein the integrative functions of the mind are dissociated from perception and experience. Sent. Tr. 35.

[19] Ms. Deegan left the infant fifty yards from her home.

[20] When questioned as to why she placed the infant so close to her home, Ms. Deegan replied, "I wanted the baby close to me and I did not want to let him go." Add. 2, p. 12 (Resnick Report).

[21] North Dakota enacted a Safe Haven Law in 2001. See N.D.C.C. § 50-25.1-15.

[22] The majority claims, "The [district] court never suggested that the Sentencing Commission based the guideline on an analysis of hundreds of thousands of `neonaticide' cases, or that Deegan's offense was a typical fact pattern for second-degree murder." Maj. op. at 633. The record does not support such an interpretation. I emphasize again the district court's statement: "We have sentencing guidelines in the federal system that are designed to ensure that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have." Sent. Tr. 59 (emphasis added).

[23] Koon was superseded on other grounds by statute. See 18 U.S.C. § 3742(e) (providing for de novo review of departures). See also Rita, 551 U.S. at 361, 127 S.Ct. 2456 (Stevens, J., concurring). But of course, de novo review no longer applies after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

[24] This December 8, 2008, letter is on file in this writer's office. This writer provided copies to the panel.

[25] I briefly mentioned the Tom case in my introduction. In Tom, on appeal after reversal and remand in United States v. Tom, 494 F.3d 1277 (10th Cir.2007), the Tenth Circuit affirmed a variance from the second-degree murder guideline range of 168-210 months to 70 months' imprisonment for a boyfriend who assisted in the killing of his 15-year-old girlfriend's son. 327 Fed.Appx. at 94. This teenager gave birth in the bathroom of her mother's trailer on the Navajo Reservation, pleaded guilty to first-degree murder, and was sentenced to 44 months' probation. 327 Fed.Appx. at 99. It is worthy of special note that this crime was committed on an Indian reservation and the defendants were sentenced in a federal district court.

[26] In describing Rita, the Court in Gall stated, "we held that when a district judge's discretionary decision in a particular case accords with the sentence the United States Sentencing Commission deems appropriate `in the mine run of cases,' the court of appeals may presume that the sentence is reasonable." 552 U.S. at 40, 128 S.Ct. 586 (quoting Rita, 551 U.S. at 351, 127 S.Ct. 2456).

[27] I recognize that § 3553(a) does not "insist" upon a full opinion in every case, Rita, 551 U.S. at 356, 127 S.Ct. 2456, but in a case like this, which presents circumstances far outside the ballpark of normal cases, see Rita, 551 U.S. at 365, 127 S.Ct. 2456 (Stevens, J., concurring), the district court's explanation for imposing a ten-year sentence is insufficient. Here we have unstated "considerations" but almost nothing more.

[28] Furthermore, applying the guidelines in effect at the time of sentencing may be unconstitutional. See Maj. op. at 631-32.

[29] See Carol A. Brook, Racial Disparity Under the Federal Sentencing Guidelines, 35 Litigation, 15, 19 (Fall 2008) (explaining that sentencing policies that contribute to unwarranted disparity affect the efficaciousness of the goals of the criminal justice system).

[30] See also Brook, supra note 29, at 18 ("[T]he gravitational pull of the guidelines remains strong.").

[31] The probation officer said that no factors warranted a departure. Rev. PSR ¶ 63 ("None"); see also supra at 18-19. The prosecutor said "a guideline sentence is the right choice." Sent. Tr. 53; see also supra at 19. The district court said "I'm required to impose those [1998] guidelines ... I am agreeing with the Government's recommendation... and adhering to the guidelines because I believe that they are reasonable." Sent. Tr. 59, 61; see also supra at 19-20. But the guidelines do not apply to neonaticide.

[32] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).

[33] Id.; see also Amy Radon, Tribal Jurisdiction and Domestic Violence: The Need for Non-Indian Accountability on the Reservation, 37 U. Mich. J.L. Reform 1275, 1280-81 (2004) ("[F]or every 1,000 American Indian females, 23.2 were victims of intimate violence. This rate of victimization was nearly double that of African Americans (11.2 for every 1,000), triple that of whites (8.1 per 1,000), and twelve times the victimization rate of Asian Americans (1.9 per 1,000).").

[34] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).

[35] Id. at 5.

[36] Sarah Deer, Sovereignty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law, 38 Suffolk U.L.Rev. 455, 457 (2005).

[37] Id.

[38] Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 Kan. J.L. & Pub. Pol'y 121, 123 (2004).

[39] Id. at 124.

[40] U.S. Dep't of Justice, American Indians and Crime, v (Dec.2004).

[41] Id. at iv.

[42] Id. at v.

[43] U.S. Dep't of Justice, American Indians and Crime, 15 (1999).

[44] Id.

[45] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).

[46] Id. at 1.

[47] Id. at 2 (quoting Juana Majel, National Congress of American Indians, and Karen Artichoker, Cangleska, Inc.-Sacred Circle). As this report explains, "interviews with survivors, activists and support workers across the USA suggest that available statistics greatly underestimate the severity of the problem. In the Standing Rock Sioux Reservation, for example, many of the women who agreed to be interviewed could not think of any Native women within their community who had not been subjected to sexual violence." Id.

[48] Reproduced with the permission of the State Historical Society of North Dakota and its publication, North Dakota History: Journal of the Northern Plains, Vol. 69, front cover (2002).

[49] Id. at back cover.

Page 597

        Arthur K. Wachtel, San Francisco, CA, argued the case for the appellant and was on the briefs. Maitreya Badami was also on the briefs.

        Kelley Brooke Snyder, U.S. Department of Justice, Washington, DC, argued the case for the appellee and was on the briefs. Kevin Ryan, United States Attorney, and Hannah Horsley and Anne-Christine Massullo, Assistant United States Attorneys, were also on the briefs.

        Elizabeth M. Falk, Office of the Federal Public Defender, San Francisco, CA, argued the case for amicus curiae Federal Public Defender for the Northern District of California and was on the briefs. Barry J. Portman, Federal Public Defender, was also on the briefs.

Page 598

        Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CR-01-00454-VRW.

        Before: O'SCANNLAIN, SILER, JR.,^* and HAWKINS, Circuit Judges.

        O'SCANNLAIN, Circuit Judge:

        We must decide the legality of a supervised release condition that requires a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment."

        Shawn Gementera pilfered letters from several mailboxes along San Francisco's Fulton Street on May 21, 2001. A police officer who observed the episode immediately detained Gementera and his partner in crime, Andrew Choi, who had been stuffing the stolen letters into his jacket as Gementera anxiously kept watch. After indictment, Gementera entered a plea agreement pursuant to which he pled guilty to mail theft, see 18 U.S.C. § 1708, and the government dismissed a second count of receiving a stolen U.S. Treasury check. See 18 U.S.C. § 641.

        The offense was not Gementera's first encounter with the law. Though only twenty-four years old at the time, Gementera's criminal history was lengthy for a man of his relative youth, and it was growing steadily more serious. At age nineteen, he was convicted of misdemeanor criminal mischief. He was twice convicted at age twenty of driving with a suspended license. At age twenty-two, a domestic dispute led to convictions for driving with a suspended license and for failing to provide proof of financial responsibility. By twenty-four, the conviction was misdemeanor battery. Other arrests and citations listed in the Presentence Investigation Report included possession of drug paraphernalia, additional driving offenses (most of which involved driving on a license suspended for his failure to take chemical tests), and, soon after his twenty-fifth birthday, taking a vehicle without the owner's consent.

        On February 25, 2003, Judge Vaughn Walker of the United States District Court for the Northern District of California sentenced Gementera. The U.S. Sentencing Guidelines range was two to eight months incarceration; Judge Walker sentenced Gementera to the lower bound of the range, imposing two months incarceration and three years supervised release.¹ He also imposed conditions of supervised release.

        One such condition required Gementera to "perform 100 hours of community service," to consist of "standing in front of a postal facility in the city and county of San Francisco with a sandwich board which in large letters declares: `I stole mail. This is my punishment.'"² Gementera later filed a motion to correct the sentence by

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removing the sandwich board condition. See Fed.R.Crim.P. 35(a).

        Judge Walker modified the sentence after inviting both parties to present "an alternative form or forms of public service that would better comport with the aims of the court." In lieu of the 100-hour signboard requirement, the district court imposed a four-part special condition in its stead. Three new terms, proposed jointly by counsel, mandated that the defendant observe postal patrons visiting the "lost or missing mail" window, write letters of apology to any identifiable victims of his crime, and deliver several lectures at a local school.³ It also included a scaled-down version of the signboard requirement:

        The defendant shall perform 1 day of 8 total hours of community service during which time he shall either (i) wear a two-sided sandwich board-style sign or (ii) carry a large two-sided sign stating, "I stole mail; this is my punishment," in front of a San Francisco postal facility identified by the probation officer. For the safety of defendant and general public, the postal facility designated shall be one that employs one or more security guards. Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.

        On March 4, 2003, the court denied the Rule 35 motion and amended the sentence as described above. Gementera timely appealed.⁴

        We first address Gementera's argument that the eight-hour sandwich

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board condition violates the Sentencing Reform Act.⁵ See 18 U.S.C. § 3583(d).

        The Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating that such conditions serve legitimate objectives. In addition to "any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20)," the statute explicitly authorizes the court to impose "any other condition it considers to be appropriate." 18 U.S.C. § 3583(d)(emphasis added). Such special conditions, however, may only be imposed "to the extent that such condition —

        (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

        (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

        (3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)";

        18 U.S.C. 3583(d). Thus, to comply with this requirement, any condition must be "reasonably related" to "the nature and circumstances of the offense and the history and characteristics of the defendant." See 18 U.S.C. 3553(a)(1). Moreover, it must be both "reasonably related" to and "involve no greater deprivation of liberty than is reasonably necessary" to "afford adequate deterrence to criminal conduct," see id. at 3553(a)(2)(B), "protect the public from further crimes of the defendant," see id. at 3553(a)(2)(C), and "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." See id. at 3553(a)(2)(D).⁶ Accordingly, the three legitimate statutory purposes of deterrence, protection of the public, and rehabilitation frame our analysis. E.g., United States v. Rearden, 349 F.3d 608, 618 (9th Cir.2003); United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.2003).⁷

        Within these bounds, we have recognized the flexibility and considerable discretion the district courts exercise to impose conditions of supervised release, up to and including limits upon the exercise of

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fundamental rights. See 18 U.S.C. § 3583(d) (granting authority to impose "any other condition it considers to be appropriate"); United States v. Hurt, 345 F.3d 1033, 1036 (9th Cir.2003) ("[T]he district court ... has wide discretion to act in the interest of the defendant and the public."); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) ("The sentencing judge has broad discretion in setting probation conditions, including restricting fundamental rights."). This reflects, in part, their greater knowledge of and experience with the particular offenders before them. We have, for example, upheld conditions barring possession of sexually stimulating material, United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998), contact with minors, id., association or membership in "motorcycle clubs," Bolinger, 940 F.2d at 480, and access to the internet, Rearden, 349 F.3d at 620.

        Of course, the district court's discretion, while broad, is limited — most significantly here, by the statute's requirement that any condition reasonably relate to a legitimate statutory purpose.⁸ "This test is applied in a two-step process; first, this court must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes." United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.1988). Gementera's appeal implicates both steps of the analysis.

        Gementera first urges that the condition was imposed for an impermissible purpose of humiliation. See 18 U.S.C. § 3553(a). He points to certain remarks of the district court at the first sentencing hearing:

        [H]e needs to understand the disapproval that society has for this kind of conduct, and that's the idea behind the humiliation. And it should be humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail.

        According to Gementera, these remarks, among others, indicate that the district court viewed humiliation as an end in itself and the condition's purpose.

        Reading the record in context, however, we cannot but conclude that the district court's stated rationale aligned with permissible statutory objectives. At the second sentencing hearing, when the sentence was amended to what is now before us, the court explained: "[U]ltimately, the objective here is, one, to deter criminal conduct, and, number two, to rehabilitate the offender so that after he has paid his punishment, he does not reoffend, and a public expiation of having offended is, or at least it should be, rehabilitating in its effect." Although, in general, criminal punishment "is or at least should be humiliating," the court emphasized that "[h]umiliation is not the point." The court's

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written order similarly stresses that the court's goal was not "to subject defendant to humiliation for humiliation's sake, but rather to create a situation in which the public exposure of defendant's crime and the public exposure of defendant to the victims of his crime" will serve the purposes of "the rehabilitation of the defendant and the protection of the public."

        The court expressed particular concern that the defendant did not fully understand the gravity of his offense. Mail theft is an anonymous crime and, by "bring[ing] home to defendant that his conduct has palpable significance to real people within his community," the court aimed to break the defendant of the illusion that his theft was victimless or not serious. In short, it explained:

        While humiliation may well be — indeed likely will be — a feature of defendant's experience in standing before a post office with such a sign, the humiliation or shame he experiences should serve the salutary purpose of bringing defendant in close touch with the real significance of the crime he has acknowledged committing. Such an experience should have a specific rehabilitative effect on defendant that could not be accomplished by other means, certainly not by a more extended term of imprisonment.

        Moreover, "[i]t will also have a deterrent effect on both this defendant and others who might not otherwise have been made aware of the real legal consequences of engaging in mail theft."

        Read in its entirety, the record unambiguously establishes that the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public. See 18 U.S.C. § 3553(a); see generally United States v. Clark, 918 F.2d 843, 848 (9th Cir.1990) (affirming public apology condition when "[t]he record supports the conclusion that the judge imposed the requirement of a public apology for rehabilitation."), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir.1998) (en banc). We find no error in the condition's purpose.

        Assuming the court articulated a legitimate purpose, Gementera asserts, under the second prong of our test, see Terrigno, 838 F.2d at 374, that humiliation or so-called "shaming" conditions are not "reasonably related" to rehabilitation. In support, he cites our general statements that conditions must be reasonably related to the statutory objectives, see Consuelo-Gonzalez, 521 F.2d at 262 ("[E]ven though the trial judge has very broad discretion in fixing the terms and conditions of probation, such terms must be reasonably related to the purposes of the Act."), several state court decisions,⁹ and several law review

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articles that were not presented to the district court.

        In evaluating probation and supervised release conditions, we have emphasized that the "reasonable relation" test is necessarily a "very flexible standard," and that such flexibility is necessary because of "our uncertainty about how rehabilitation is accomplished." Id. at 264. While our knowledge of rehabilitation is limited, we have nonetheless explicitly held that "a public apology may serve a rehabilitative purpose." Clark, 918 F.2d at 846; see also Gollaher v. United States, 419 F.2d 520, 530 (9th Cir.1969) ("It is almost axiomatic that the first step toward rehabilitation of an offender is the offender's recognition that he was at fault."). Of course, for Gementera to prevail, introducing mere uncertainty about whether the condition aids rehabilitation does not suffice; rather, he must persuade us that the condition's supposed relationship to rehabilitation is unreasonable.

        We considered a similar question in Clark, a case involving two police officers convicted of perjury in a civil rights lawsuit they brought against their department. Clark, 918 F.2d at 844. In a deposition, the officers lied about a past episode in which they had falsely phoned in sick while actually en route to a vacation. As a probation condition, the court required them to publish a detailed apology in the local newspaper and in the police department newsletter. Id. at 845. Though they challenged the condition based upon the First Amendment, we applied the same test applicable here, concluding that "[b]ecause

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the probation condition was reasonably related to the permissible end of rehabilitation, requiring it was not an abuse of discretion." Id. at 848.

        Both Clark and Gementera involve defendants who seemingly failed to confront their wrongdoing, and the defendants in each case faced public expiation and apology. In Clark, the defendants had neither admitted guilt nor taken responsibility for their actions. Id. at 848. Here, by contrast, the defendant pled guilty. His plea decision is unremarkable, though, given that he had been apprehended red-handed. Reflecting upon the defendant's criminal history, the court expressed concern that he did not fully understand the consequences of his continued criminality, and had not truly accepted responsibility.¹⁰ The court explained:

        [T]his is a young man who needs to be brought face-to-face with the consequences of his conduct. He's going down the wrong path in life. At age 24, committing this kind of an offense, he's already in a criminal history category 4, two-thirds of the way up the criminal history scale. He needs a wake-up call.

        The court also determined that Gementera needed to be educated about the seriousness of mail crimes in particular, given that they might appear to be victimless:

        One of the features of Mr. Gementera's offense is that he, unlike some offenders did not, by the very nature of this offense, come face-to-face with his victims. He needs to be shown that stealing mail has victims; that there are people who depend upon the integrity and security of the mail in very important ways and that a crime of the kind that he committed abuses that trust which people place in the mail. He needs to see that there are people who count on the mails and integrity of the mails. How else can he be made to realize that than by coming face-to-face with people who use the postal service? That's the idea.

        As with Clark, the district court concluded that public acknowledgment of one's offense — beyond the formal yet sterile plea in a cloistered courtroom — was necessary to his rehabilitation.

        It is true, of course, that much uncertainty exists as to how rehabilitation is best accomplished. See Consuelo-Gonzalez, 521 F.2d at 264. Were that picture clearer, our criminal justice system would be vastly different, and substantially improved. By one estimate, two-thirds of the 640,000 state and federal inmates who will be released in 2004 will return to prison within a few years. The Price of Prisons, N.Y. Times, June 26, 2004, at A26. See Bureau of Justice Statistics, Dep't of Justice, Recidivism of Prisoners Released in 1994 (2002) (finding 67.5% recidivism rate among study population of 300,000 prisoners released in 1994). The cost to humanity of our ignorance in these matters is staggering.

        Gementera and amicus contend that shaming conditions cannot be rehabilitative because such conditions necessarily cause the offender to withdraw from society or otherwise inflict psychological damage, and they would erect a per se bar against such conditions.¹¹ See Toni Massaro, Shame, Culture, and American Criminal Law, 89

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Mich. L.Rev. 1880, 1920-21 (1991) ("When it works, it redefines a person in a negative, often irreversible way" and the "psychological core" it affects cannot thereafter be rebuilt.); see generally June Price Tagney et al., Relation of Shame and Guilt to Constructive Versus Destructive Responses to Anger Across the Lifespan, 70 J. Psych. & Soc. Psych. 797-98 (1996); June Price Tagney et al., Shamed into Anger? The Relation of Shame and Guilt to Anger and Self-Reported Aggression, 62 J. Psych & Soc. Psych. 669-675 (1992). Though the district court had no scientific evidence before it, as Gementera complains, we do not insist upon such evidence in our deferential review.¹² Moreover, the fact is that a vigorous, multifaceted, scholarly debate on shaming sanctions' efficacy, desirability, and underlying rationales continues within the academy. See, e.g., Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & Econ. 365, 371 (1999) (urging use of stigmatic punishments for white-collar criminals); Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L.Rev. 733, 738-39 (1998); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591 (1996) (arguing that shaming sanctions reinforce public norms against criminality). By no means is this conversation one-sided.

        Criminal offenses, and the penalties that accompany them, nearly always cause shame and embarrassment. United States v. Koon, 34 F.3d 1416, 1454 (9th Cir.1994) ("Virtually all individuals who are convicted of serious crimes suffer humiliation and shame, and many may be ostracized by their communities."). Indeed, the mere fact of conviction, without which state-sponsored rehabilitation efforts do not commence, is stigmatic. The fact that a condition causes shame or embarrassment does not automatically render a condition objectionable; rather, such feelings generally signal the defendant's acknowledgment of his wrongdoing. See Webster's Ninth New Collegiate Dictionary 1081 (1986) (defining shame as "a painful emotion caused by consciousness of guilt, shortcoming, or impropriety"); see also Gollaher, 419 F.2d at 530. We have recognized that "the societal consequences that

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flow from a criminal conviction are virtually unlimited," and the tendency to cause shame is insufficient to extinguish a condition's rehabilitative promise, at least insofar as required for our flexible reasonable relation test. Koon, 34 F.3d at 1454.

        While the district court's sandwich board condition was somewhat crude, and by itself could entail risk of social withdrawal and stigmatization, it was coupled with more socially useful provisions, including lecturing at a high school and writing apologies, that might loosely be understood to promote the offender's social reintegration. See Note, Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law, 116 Harv. L.Rev. 2186 (2003) (proposing how shaming sanctions may be structured to promote social reintegration most effectively); John Braithwaite, Crime, Shame and Reintegration 55 (1989) ("The crucial distinction is between shaming that is reintegrative and shaming that is disintegrative (stigmatization). Reintegrative shaming means that expressions of community disapproval, which may range from mild rebuke to degradation ceremonies, are followed by gestures of reacceptance into the community of law-abiding citizens."). We see this factor as highly significant. In short, here we consider not a stand-alone condition intended solely to humiliate, but rather a comprehensive set of provisions that expose the defendant to social disapprobation, but that also then provide an opportunity for Gementera to repair his relationship with society — first by seeking its forgiveness and then by making, as a member of the community, an independent contribution to the moral formation of its youth.¹³ These provisions,¹⁴ tailored to the specific needs of the offender,¹⁵ counsel in favor of concluding that the condition passes the threshold of being reasonably related to rehabilitation.

        Finally, we are aware that lengthier imprisonment was an alternative available to

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the court. The court, however, reasoned that rehabilitation would be better achieved by a shorter sentence, coupled with the additional conditions: "It would seem to me that he's better off with a taste of prison, rather than a longer prison sentence, and some form of condition of release that brings him face-to-face with the consequences of his crime." The judge's reasoning that rehabilitation would better be served by means other than extended incarceration and punishment is plainly reasonable, see Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591, 653 n. 89 ("[I]t became clear by the middle of the [19th] century that imprisonment was ill suited to rehabilitation...." (internal citations omitted)), particularly in light of the significant economic disadvantages that attach to prolonged imprisonment. See generally Jeffrey Kling, Bruce Western, & David Weiman, Labor Market Consequences of Incarceration, 47 Crime & Delinquency 410-27 (2001) (reviewing the literature); Jeffrey Grogger, The Effect of Arrests on the Employment and Earnings of Young Men, 110 Quarterly J. Economics 51-72 (1995) (finding that incarcerative sentences have substantial effects on earnings in comparison with parole).

        Accordingly, we hold that the condition imposed upon Gementera reasonably related to the legitimate statutory objective of rehabilitation.¹⁶ In so holding, we are careful not to articulate a principle broader than that presented by the facts of this case. With care and specificity, the district court outlined a sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant's rehabilitation and amendment of life than would a lengthier term of incarceration. By contrast, a per se rule that the mandatory public airing of one's offense can never assist an offender to reassume his duty of obedience to the law would impose a narrow penological orthodoxy not contemplated by the Guidelines' express approval of "any other condition [the district court] considers to be appropriate." 18 U.S.C. § 3583(d).

        Gementera also urges that the sandwich board condition violates the Constitution. Claims with respect to the First, Fifth, Eighth, and Fourteenth Amendments are presented.

        Amicus argues that the condition violates the First, Fifth, Eighth and Fourteenth Amendments. Gementera bases his appeal solely upon the Eighth Amendment, and the government contends that the additional constitutional arguments presented by the amicus have been waived.

        "Generally, we do not consider on appeal an issue raised only by an amicus." Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.1993). The court has considered arguments of a jurisdictional nature raised only by amici, Stone v. San Francisco, 968 F.2d 850, 855 (9th Cir.1992) ("Issues touching on federalism and comity may be considered sua sponte."), and it has addressed purely legal questions when the parties express an intent to adopt the arguments as their own. United States v. Van Winrow, 951 F.2d 1069, 1072 (9th Cir.1991) ("Because [litigant] states in his brief that he wishes to adopt [amicus'] arguments as

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his own, and because they present pure issues of law, we will consider them here."). See also Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 719(9th Cir.2003) ("In the absence of exceptional circumstances, which are not present here, we do not address issues raised only in an amicus brief."); Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 (9th Cir.1998) (declining to address issue raised by amicus for first time on appeal when the appellee did not adopt the amicus' argument in its brief). Gementera did not adopt amicus' constitutional arguments on appeal. Though the government urged in its reply brief that these arguments had been waived, Gementera again declined to incorporate the arguments or otherwise address the waiver argument in its own reply. Accordingly, we decline to address the First, Fifth and Fourteenth Amendment claims.

        We turn then to the Eighth Amendment, which forbids the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. "The basic concept underlying the Eighth Amendment was nothing less than the dignity of man." Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (finding denationalization of military deserters cruel and unusual). Consistent with human dignity, the state must exercise its power to punish "within the limits of civilized standards." Id.

        A particular punishment violates the Eighth Amendment if it constitutes one of "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted." Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Shaming sanctions of far greater severity were common in the colonial era, see, e.g., Smith v. Doe, 538 U.S. 84, 97-98, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Lawrence Friedman, Crime and Punishment in American History 38 (1993), and the parties do not quarrel on this point.

        The Amendment's prohibition extends beyond those practices deemed barbarous in the 18th century, however. See Stanford v. Kentucky, 492 U.S. 361, 369-70, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). "[T]he words of the Amendment are not precise, and [] their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S. at 100-01, 78 S.Ct. 590; id. at 100, 78 S.Ct. 590 ("Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect."). In assessing what standards have so evolved, we look "to those of modern American society as a whole," Stanford, 492 U.S. at 369, 109 S.Ct. 2969, relying upon "objective factors to the maximum possible extent," Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion), rather than "our own conceptions of decency." Stanford, 492 U.S. at 369, 109 S.Ct. 2969.

        The parties have offered no evidence whatsoever, aside from bare assertion, that shaming sanctions violate contemporary standards of decency. But the occasional imposition of such sanctions is hardly unusual, particularly in our state courts. See, e.g., Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L.Rev. 733, 734 (1998) (describing proliferation of unorthodox and creative shaming punishments); infra at note 18. Aside from a

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single case presenting concerns not at issue here,¹⁷ we are aware of no case holding that contemporary shaming sanctions violate our Constitution's prohibition against cruel and unusual punishment.¹⁸

        We do, however, note that Blanton v. N. Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), is instructive, if only indirectly. In Blanton, the Court considered whether a Nevada DUI defendant

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was entitled to a jury trial pursuant to the Sixth Amendment. The inquiry into whether the offense constituted a petty crime not subject to the Sixth Amendment trial provision required the Court to evaluate the severity of the maximum authorized penalty. Id. at 541, 109 S.Ct. 1289. The statute provided a maximum sentence of six months or, alternatively, forty-eight hours of community service while dressed in distinctive garb identifying the defendant as a DUI offender, payment of a $200-$1000 fine, loss of driving license, and attendance at an alcohol abuse course. Id. at 539-40, 109 S.Ct. 1289. The Court wrote:

        We are also unpersuaded by the fact that, instead of a prison sentence, a DUI offender may be ordered to perform 48 hours of community service dressed in clothing identifying him as a DUI offender. Even assuming the outfit is the source of some embarrassment during the 48-hour period, such a penalty will be less embarrassing and less onerous than six months in jail.

        Id. at 544, 109 S.Ct. 1289; but see id. at 544 n. 10 ("We are hampered in our review of the clothing requirement because the record from the state courts contains neither a description of the clothing nor any details as to where and when it must be worn."). Just as the Court concluded that 48 hours of service dressed in distinctive DUI garb was less onerous than six months imprisonment, it would stretch reason to conclude that eight hours with a signboard, in lieu of incarceration, constitutes constitutionally cruel and unusual punishment.

        In the absence of any evidence to the contrary, and particularly in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction before us exceeds the bounds of "civilized standards" or other "evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S. at 100-01, 78 S.Ct. 590.

        AFFIRMED.

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Notes:

* The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.

1. The court explained that, while it would have been strongly inclined to impose home confinement had Gementera's criminal history been better, the court felt that "given the unpromising road that the defendant has been following, that he needs to have a taste of federal custody, to be sure a brief one, but he needs to understand that if he continues on the course that he has set for himself at his age he's going to be facing a lot more serious charges in the future."

2. At sentencing, the judge addressed Gementera: "[W]e've also discussed the fact that you need to be reminded in a very graphic way of exactly what the crime you committed means to society. That is, the idea of you standing out in front of a post office with a board labeling you as somebody who has stolen mail." Gementera replied, "If that's the case, I would stand in front of a post office with a board as my penalty for the crime that I did commit. And as long as I can get home detention so I can get my family back together, get back on track and rehabilitation myself." After the court imposed incarceration, rather than home detention, Gementera's counsel asked that the 100 hours be changed to "up to 100 hours at the discretion of the probation officer." That request was denied. Though the court had acknowledged explicitly that the condition would cause humiliation, Gementera did not challenge the condition's legality nor did he ask the court to explain or elaborate its purpose at the first hearing.

3. The first three parts of the four-part special condition mandated:

        a. The defendant shall, at the direction of the probation officers, spend 4 days of 8 total hours each at a postal facility where there is a lost and found window, observing postal patrons who visit that window to inquire about lost or missing mail;

        b. The defendant shall, with the assistance of counsel, carefully examine all Rule 16 discovery materials in the possession of the United States to determine the identity of all ascertainable victims of the defendant's crime; having identified those persons, the defendant shall compose and address a personal letter to each of these persons individually expressing defendant's remorse for the specific conduct that harmed that person; the defendant shall provide each such victim with the address of his counsel, through whom any victim who wishes to contact the defendant directly may do so.

        c. The defendant shall deliver three educational lectures at three San Francisco high schools, to be identified by the probation officer and under the probation officer's direction, in which the defendant shall describe the crime he has committed, express his remorse for his criminal conduct and articulate to the students in attendance how his conviction and sentence have affected his life and future plans.

4. Gementera was ordered to surrender on March 31, 2003. On March 12, 2003, prior to his surrender, Gementera was arrested for possession of stolen mail, for which he was convicted and received a twenty-four month sentence.

5. The court generally reviews supervised release conditions for abuse of discretion, see United States v. Williams, 356 F.3d 1045, 1052 (9th Cir.2004), though we review de novo the interpretation of the Sentencing Guidelines, see United States v. Garcia, 323 F.3d 1161, 1164 (9th Cir.2003), and "[w]hether the sentence imposed was `illegal,'" see United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986), for example, by exceeding "the permissible statutory penalty for the crime [] or [by being] in violation of the Constitution." United States v. Johnson, 988 F.2d 941, 943 (9th Cir.1993).

6. Any condition must also be consistent with the Sentencing Commission's policy statements. See 18 U.S.C. § 3583(d); 28 U.S.C. § 994(a). The parties have not raised arguments with respect to this requirement.

7. Though the statutory authorities underlying conditions of probation and supervised release are distinct, compare 18 U.S.C. § 3583(authorizing supervised release conditions) with 18 U.S.C. § 3563(authorizing probation conditions), the court's supervised release jurisprudence has often relied upon authority from the probation context. See, e.g., United States v. Hurt, 345 F.3d 1033, 1035 (9th Cir.2003); United States v. Pinjuv, 218 F.3d 1125, 1131 (9th Cir.2000); United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir.1998). In that context, the court probes the extent to which probation conditions serve the "dual objectives of rehabilitation and public safety." See United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.1975) (en banc).

8. Gementera points to several cases in which our sister circuits found that conditions did not reasonably relate. See United States v. Abrar, 58 F.3d 43 (2d Cir.1995) (repayment of unrelated debts); United States v. Prendergast, 979 F.2d 1289 (8th Cir.1992) (abstinence from alcohol for wire fraud conviction); United States v. Smith, 972 F.2d 960, 961-62 (8th Cir.1992) (not siring children except by wife for a narcotics conviction); Fiore v. United States, 696 F.2d 205, 208-10 (2d Cir.1982) (making reparations for crime to which only a co-defendant had pled guilty). He also cites Springer v. United States, 148 F.2d 411, 415-16 (9th Cir.1945), in which this court vacated a condition that a convicted draft-dodger donate a pint of blood to the Red Cross. Id. In each of these cases, however, the condition was unrelated to the nature and substance of the offense. Here, there is no reasonable dispute that the signboard declaration is related to the offense.

9. In People v. Hackler, 13 Cal.App.4th 1049, 16 Cal.Rptr.2d 681 (Cal.Ct.App.1993), a California court vacated a condition requiring a defendant during his first year of probation to wear a t-shirt whenever he was outside his home. The t-shirt read, "My record plus two-six packs equal four years," and on the back, "I am on felony probation for theft." Noting with disapproval the trial court's stated intention of "going back to some extent to the era of stocks" and transforming the defendant into "a Hester Prin [sic]," id. at 1058, 16 Cal.Rptr.2d 681, the court held that the t-shirt could not serve the rehabilitative purpose because it would render the defendant unemployable. By contrast, Gementera's condition was sharply limited temporally (eight hours) and spatially (one post office in a large city), eliminating any risk that its effects would similarly spill over into all aspects of the defendant's life. Indeed, the district court's imposition of the condition in lieu of lengthier incarceration enables Gementera to enter the private labor market.

        People v. Johnson, 174 Ill.App.3d 812, 124 Ill.Dec. 252, 528 N.E.2d 1360 (1988), involved a condition that a DWI offender publish a newspaper advertisement with apology and mug shot. Interpreting the state supervision law as intended "to aid the defendant in rehabilitation and in avoiding future violations," and for no other purpose, the court held that the publication requirement "possibly, adds public ridicule as a condition" of supervision and could inflict psychological harm that disserves the goal of rehabilitation. Id. at 1362 (noting that the Illinois statute does not "refer to deterrent to others"). Relying on the fact that defendant was a young lady and a good student with no prior criminal record, had injured no one, and otherwise had no alcohol or drug problem, it found the condition impermissible, given the perceived mental health risk. Id. By contrast, we have specifically held that mandatory public apology may be rehabilitative. Clark, 918 F.2d at 848 ("[A] public apology may serve a rehabilitative purpose."). Moreover, the condition specifically provided that the signboard requirement would be withdrawn if the defendant showed that the condition would inflict psychological harm.

        The defendant's third case, People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 655 N.E.2d 146 (1995), also involved a probation condition imposed upon a DWI offender. If he regained driving privileges, the offender was required to affix a fluorescent sign to his license plate, stating "CONVICTED DWI". Id. at 147. The court imposed the condition under a catch-all provision of the New York law authorizing "any other conditions reasonably related to his [or her] rehabilitation." Id. at 148 (quoting New York Penal Laws § 65.10[2][l]). Under the New York statute, rehabilitation "in the sense of that word that distinguishes it from the societal goals of punishment or deterrence" was the "singular focus of the statute." Id. at 149. Because the condition's "true design was not to advance defendant's rehabilitation, but rather to `warn the public' of the threat presented by his presence behind the wheel," id. at 149, the court voided the condition. Id. at 159, 631 N.Y.S.2d 105, 655 N.E.2d 146; see also id. at 149 ("[P]ublic disclosure of a person's crime, and the attendant humiliation and public disgrace, has historically been regarded strictly as a form of punishment." (internal citations omitted)). In contrast to the New York scheme, the district court made plain the rehabilitative purpose of the condition. We also note that in the federal system, unlike the New York system, rehabilitation is not the sole legitimate objective. See 18 U.S.C. §§ 3583(d), 3553(a).

10. Gementera's post-sentencing, pre-surrender conviction for possession of stolen mail confirms the reasonableness of the district court's observation in this respect. For that conviction, Gementera was sentenced to twenty-four months imprisonment.

11. Even if shaming conditions were sometimes rehabilitative, Gementera also urges that the condition would be psychologically damaging in his specific case, given his "lack of coping skills, his substance abuse, and his unresolved personal issues with his father." Better than public expiation, he contended, would be mandatory substance abuse counseling and vocational training. First, we note that the district court did require Gementera to undergo substance abuse counseling and vocational training. Second, the record establishes that the district court fairly considered Gementera's claims that he was somehow particularly vulnerable to the consequences of his crime being publicly exposed. At the hearing, the court asked defense counsel, "is there some feature of his personality that makes him particularly vulnerable that you can substantiate?" The attorney replied, "I can't offer anything but my own personal observations and anecdotal observation based on my almost one-year representation of the defendant and his reaction and his family's reaction to what occurred in court." While not persuaded by the attorney's untutored lay psychological evidence, the district court nonetheless inserted a provision into the condition providing an avenue for Gementera to present more reliable evidence of psychological harm:

        Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.

        No such substantiation was presented. By the terms of the condition, if there were any such evidence, Gementera faces no bar to his presenting it.

12. Nor did the district court have any evidence to the contrary. By not citing these scholarly articles until this appeal, Gementera failed to provide the district court any opportunity to assess their potential value.

13. The dissent faults our analysis for looking beyond the signboard clause to other provisions of the four-part condition. [Dissent at 612.] Our purpose is not, as the dissent characterizes it, to suggest that an improper condition may be cured merely by setting it alongside proper conditions. Rather, our obligation is to assess whether an individual provision reasonably relates to the purpose of rehabilitation. Where that provision is part of an integrated rehabilitative scheme, we see no bar to looking at other aspects of the scheme in evaluating the purpose and reasonableness of the individual provision at issue. By acting in concert with others, a provision may reasonably relate to rehabilitation, even though the relation existed primarily by virtue of its interaction with complementary provisions in an integrated program. A boot camp, for example, that operates by "breaking participants down" before "building them up again" is not rendered impermissible merely because the first step, standing alone, might be impermissible. Similarly, a program that emphasizes an offenders' separation from the community of law-abiding citizens, in order to generate contrition and an authentic desire to rejoin that community, need not be evaluated without reference to the program's affirmative provisions to reconcile the offender with the community and eventually to reintegrate him into it.

14. We do not pass here on the more difficult case of the district court's original 100-hour condition, which lacked significant reintegrative aspects.

15. We do acknowledge that one purpose of the Sentencing Guidelines was to promote greater uniformity in federal sentencing, and that permitting certain conditions of supervised release, as imposed here, may lead to less regularized sentences. As described above, however, we have previously upheld a diverse array of conditions of supervised release, as contemplated by the statute's authorization of "any other condition [the district court] considers to be appropriate." 18 U.S.C. § 3583(d).

16. In view of this holding, we do not reach the separate issue of whether the condition reasonably relates to the objectives of deterrence and protection of the public.

17. Gementera points to Williams v. State, 234 Ga.App. 37, 505 S.E.2d 816 (1998), in which a defendant convicted of soliciting sodomy was ordered to walk for ten days, between 7 p.m. and 11 p.m. each day, along that portion of the street where the solicitation occurred, holding a large sign stating, "BEWARE HIGH CRIME AREA." The police were to be notified in advance in order to monitor his performance and provide an appropriate level of safety. Id. at 817. While the court commended the trial judge for his "initiative" in developing a "new and creative form of sentencing which might very well have a positive effect on [the defendant] and be beneficial to the public," and explained that shaming punishments are not forbidden, it nonetheless found that the condition exposed the defendant to a constitutionally impermissible danger. Id. at 818.

        The Georgia court relied upon language from DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (rejecting claim against county social services department for failing to protect child from private violence by his father), in which the Supreme Court held: "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200, 109 S.Ct. 998. The Court explained:

        The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.

        Id. at 200, 109 S.Ct. 998. The condition in Gementera does not expose the defendant to any significant risk of danger. By contrast with Williams, the Gementera signboard is worn during eight hours of daylight during the business day, not at night; in front of a United States Post Office, not a "high crime" neighborhood where criminal solicitation occurs; and the sign's message does not provoke violence by threatening the criminal livelihood of those who illegally trade sex in a red light district, as the Williams sign might. Moreover, the district court in Gementera explicitly included a provision allowing for withdrawal of the condition upon a showing that the condition would impose a safety risk upon the defendant. Gementera made no such showing.

18. Numerous state courts have rejected Eighth Amendment challenges to shaming sanctions. See, e.g., People v. Letterlough, 205 A.D.2d 803, 804, 613 N.Y.S.2d 687 (N.Y.App.Div.1994) ("CONVICTED DWI" sign on license plate); Ballenger v. State, 210 Ga.App. 627, 436 S.E.2d 793 (1993) (fluorescent pink DUI bracelet); Lindsay v. State, 606 So.2d 652, 656-57 (Fla.App.1992) (DUI advertisement in newspaper); Goldschmitt v. State, 490 So.2d 123, 125 (Fla.App.1986) ("Convicted DUI — Restricted License" bumper sticker); cf. People v. McDowell, 59 Cal.App.3d 807, 812-13, 130 Cal.Rptr. 839 (Cal.App.1976) (tap shoes for purse thief who used tennis shoes to approach his victims quietly and flee swiftly). See also Developments in Law: Alternatives to Incarceration, 111 HARV. L. REV.1944, 1953 (1998) ("Eighth Amendment challenges have also failed to overturn shaming conditions, despite arguments that `modern scarlet-letter probation conditions constitute punishment in and of themselves' and that certain shaming conditions impose psychological cruelty while yielding no better results than conventional punishments."); id. at 1953, 130 Cal.Rptr. 839 ("Courts have simply adopted the reasoning that shaming is not cruel or unusual when the alternative is imprisonment."); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591, 646 n. 226 (1996) ("Although the doctrine is exceedingly indeterminate, it seems fairly obvious that shaming penalties are not `cruel and unusual' for purposes of the Eighth Amendment, particularly when the alternative is imprisonment.").

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        HAWKINS, Circuit Judge, dissenting:

        Conditions of supervised release must be reasonably related to and "involve no greater deprivation of liberty than is reasonably necessary" to deter criminal conduct, protect the public, and rehabilitate the offender. See 18 U.S.C. §§ 3553(a)(1)-(2); 3583(d)(2); United States v. Williams, 356 F.3d 1045, 1056 (9th Cir.2004). Clearly, the shaming punishment ¹ at issue in this case was intended to humiliate Gementera. And that is all it will do. Any attempt to classify the goal of the punishment as anything other than humiliation would be disingenuous.² Because humiliation is not one of the three proper goals under the Sentencing Reform Act,³ I

Page 611

would hold that the district court abused its discretion in imposing the condition.

        There is precious little federal authority on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom. Some state courts have reviewed such sentences and the results have been mixed.

        People v. Hackler, 13 Cal.App.4th 1049, 16 Cal.Rptr.2d 681, 686-87 (1993), involved a condition that required a shoplifting offender to wear a court-provided t-shirt whenever he left the house that read: "My record plus two six-packs equals four years" on the front and "I am on felony probation for theft" on the back. Applying a state sentencing regime similar to the federal guidelines — authorizing the imposition of reasonable conditions of probation to foster rehabilitation and to protect public safety — the court struck down the condition. Id. at 686, 13 Cal.App.4th 1049. The court held that the relationship between the required conduct (wearing the t-shirt) and the defendant's crime (stealing beer) was so incidental that it was not reasonable and that the true intent behind the condition was to expose Hackler to "public ridicule and humiliation" and not "to foster rehabilitation." Id. at 686-87, 13 Cal.App.4th 1049.

        As in Hackler's case, the purpose behind the sandwich board condition was not to rehabilitate Gementera, but rather to turn him into a modern day Hester Prynne.⁴ This sort of condition is simply improper under the Sentencing Reform Act. See also Springer v. United States, 148 F.2d 411, 415-16(9th Cir.1945) (invalidating a condition that a convicted draft dodger donate a pint of blood to the Red Cross).

        Ballenger v. State, 210 Ga.App. 627, 436 S.E.2d 793 (1993), approved a condition that a convicted drunk driver wear a fluorescent pink identification bracelet identifying him as such. By my lights, the dissent in Ballenger is far more persuasive. Concluding that the purpose of the condition was clearly to humiliate, Judge Blackburn argued that "a rationale of rehabilitation may not be used to vest ... authority[to prescribe this type of punishment] in the judiciary." Id. at 795-96 (Blackburn, J. dissenting).

        Just as in Hackler and Ballenger, the true intention in this case was to humiliate Gementera, not to rehabilitate him or to deter him from future wrongdoing. When the district court initially imposed the sandwich board condition, the judge explained that Gementera should have to suffer the "humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail." Subsequently, Gementera filed a motion to correct the sentence by having the sandwich board condition removed. He urged that humiliation was not a legitimate objective of punishment or release conditions. Only at the hearing on Gementera's motion did the district court change its characterization of the shaming punishment, remarking that the punishment was one of deterrence and rehabilitation and not merely humiliation.

        Although the majority opinion initially seems to accept the district court's retroactive justification for the punishment, it later as much as concedes that the sandwich board condition amounted to a shaming punishment. Admitting that the condition was "crude" and "could entail risk of social withdrawal and stigmatization," the

Page 612

majority nonetheless finds the condition acceptable because it was "coupled with more socially useful provisions." [Op. at 606] Put another way, the majority says that it is not considering "a stand-alone condition intended soley to humiliate, but rather a comprehensive set of conditions." [Op. at 606] But the majority cites to no provision in the Sentencing Reform Act and to no case law indicating that conditions on supervised release should be reviewed as a set and not individually, or that humiliation somehow ceases to be humiliation when combined with other punishment. Cf. United States v. Eyler, 67 F.3d 1386, 1393-94 (9th Cir.1995) ("Any discretionary condition must meet each of the three broad conditions set forth in [the Sentencing Reform Act]." (emphasis added)). The majority's position seems to be that even if one condition of a sentence manifestly violates the Sentencing Act, it can be cured by coupling the provision with other, proper ones. When such a novel proposition is put forward and no case law is cited to support it, there is usually a reason. At the end of the day, we are charged with evaluating a condition whose primary purpose is to humiliate, and that condition should simply not be upheld.

        Although I believe that the sandwich board condition violates the Sentencing Reform Act and we should reverse the district court for that reason, I also believe that this is simply bad policy. A fair measure of a civilized society is how its institutions behave in the space between what it may have the power to do and what it should do. The shaming component of the sentence in this case fails that test. "When one shames another person, the goal is to degrade the object of shame, to place him lower in the chain of being, to dehumanize him."⁵

        To affirm the imposition of such punishments recalls a time in our history when pillories and stocks were the order of the day. To sanction such use of power runs the very great risk that by doing so we instill "a sense of disrespect for the criminal justice system" itself. Ballenger, 436 S.E.2d at 796 (Blackburn, J. dissenting).

        I would vacate the sentence and remand for re-sentencing, instructing the district court that public humiliation or shaming has no proper place in our system of justice.

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Notes:

1. One scholar has defined a "shaming" punishment as "marked by two features: first, there is an attempt to debase, degrade, or humiliate the offender; and second, the degradation occurs before the public eye, often but not always with the aid of the public." Dan Markel, Are Shaming Punshments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L.Rev. 2157, 2178 (Nov.2001). This condition — requiring Gementera to wear a sandwich board outside a public post office declaring his crime — clearly qualifies as a "shaming" punishment.

2. The district judge was forthright in his statement regarding why he imposed the condition: "[Gementera] needs to understand the disapproval that society has for this kind of conduct, and that's the idea behind the humiliation."

3. The three goals are deterrence, rehabilitation, and protection of the public. 18 U.S.C. §§ 3553(a)(2).

4. See Hawthorne, The Scarlet Letter; Hackler, 16 Cal.Rptr.2d at 686.

5. Markel, supra note 1 at 2179.

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15 Neb. App. 764

Jon Bruning, Attorney General, Jeffrey J. Lux, Special Assistant Attorney General, and Paul B. Schaub, Cheyenne County Attorney, for appellant.

Clarence E. Mock, of Johnson & Mock, and Donald J.B. Miller, of Matzke, Mattoon & Miller, for appellee.

INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.

SIEVERS, Judge.

INTRODUCTION

Richard W. Thompson pled no contest to two counts of sexual assault of a child, and the district court for Cheyenne County sentenced Thompson to 5 years' intensive supervised probation on each count, to run consecutively. The State of Nebraska appeals the sentences imposed on Thompson as excessively lenient. The first impression issue presented by this case is Thompson's claim that the State, by agreeing to "remain silent" at sentencing, has waived its right to appeal the district court's sentences as excessively lenient. We conclude that the State did not waive its right to appeal, and therefore, we address the merits of the State's contention on appeal that the sentences are excessively lenient.

FACTUAL BACKGROUND

On October 31, 2005, Thompson was charged with count I, sexual assault of a child; count II, sexual assault of a child; and count III, first degree sexual assault. Thompson was arraigned on November 8 and entered a plea of not guilty. Thereafter, a plea agreement was reached. Thompson's counsel put the plea agreement on the record, stating: "Thompson is prepared to enter a no contest plea to counts I and II, in exchange count III is going to be dismissed and at the time of sentencing the county attorney is going to remain silent." The Cheyenne County Attorney affirmed that such was the plea agreement by the simple statement, "That's right." And, upon inquiry by the court as to whether such was "your agreement," Thompson responded affirmatively on the record. Thompson pled no contest to the two counts of sexual assault of a child, a factual basis was provided on the record, and the trial court accepted the plea and scheduled the sentencing hearing. We shall discuss the details of the crimes in our discussion of the sentences in the analysis section of our opinion.

On May 23, 2006, a sentencing hearing was held. When the court asked if there was any evidence or recommendations to present, the State said that there was "no argument from the State." The State noted that this was "part of [the plea] agreement." The district court then sentenced Thompson as stated above, and the State has timely appealed.

ASSIGNMENT OF ERROR

The State contends that the district court abused its discretion by imposing excessively lenient sentences upon Thompson.

STANDARD OF REVIEW

Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion. State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.

ANALYSIS

Did State Waive Appellate Sentence Review by Agreeing to Remain Silent at Sentencing?

We begin with Thompson's assertions that the State, by complaining on appeal that his sentences were excessively lenient after agreeing to stand silent at the sentencing hearing, is in violation of the parties' plea agreement and that "[t]his Court should enforce the plea agreement between Thompson and the State by dismissing this appeal." Brief for appellee at 9.

It is well established that plea bargaining is an essential component of the administration of justice. See, Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." State v. Gonzalez-Faguaga, 266 Neb. at 77, 662 N.W.2d at 588, quoting Santobello v. New York, supra. There is no assertion that the prosecution did not live up to its agreement to "remain silent" at the time of sentencing. The State is given a statutory right to appeal a sentence as excessively lenient pursuant to Neb. Rev. Stat. § 29-2320 (Cum. Supp. 2006). Section 29-2320 provides that the prosecuting attorney in a felony case may appeal the sentence imposed "if such attorney reasonably believes, based on all of the facts and circumstances of the particular case, that the sentence is excessively lenient."

Our research has not revealed any Nebraska precedent addressing Thompson's argument that the State, after agreeing to remain silent at a defendant's sentencing hearing as part of a plea bargain, waives its right to appeal as excessively lenient a sentence which is within the statutory parameters. Thompson and the concurrence cite the following three cases from other jurisdictions to support the claim of waiver: Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); People v. Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993); and State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988). We find these cases to be distinguishable, unpersuasive, or both.

In Fruehan, the defendant entered a guilty plea under a plea bargain in which the Commonwealth of Pennsylvania (the Commonwealth) agreed to stand mute with respect to the sentence to be imposed. After the sentence was imposed, the Commonwealth petitioned the trial court to reconsider the sentence, alleging that such sentence was excessively lenient. The Fruehan court noted: "The issue of first impression in this appeal is whether the Commonwealth should be allowed to appeal the discretionary aspects of a sentence after it agreed as part of a negotiated plea agreement to stand mute with respect to the sentence to be imposed by the trial court." 384 Pa. Super. at 157, 557 A.2d at 1093. The court first observed that "the sentence imposed by the trial court is within the limits authorized by the legislature and is not illegal" and noted that "the only attack which the Commonwealth has leveled against the sentence is that it represented an abuse of the sentencing court's discretion." Id. We note that under the applicable Pennsylvania statute, the [a]llowance of an appeal from the discretionary aspects of sentencing may be granted at the discretion of the [appellate court] where there appears to be a substantial question that an inappropriate sentence has been imposed." Id. at 158, 557 A.2d at 1093. However, in Nebraska, the State's appeal is a matter of right, whereas in Pennsylvania, the appellate court has discretion whether to even consider the appeal.

The Fruehan court further noted: "In determining whether a particular plea agreement has been breached, we look to `what the parties to this plea agreement reasonably understood to be the terms of the agreement." Id. at 160, 557 A.2d at 1094, quoting Paradiso v. United States, 689 F.2d 28 (2d Cir. 1982). Ultimately, the Fruehan court found that "to allow the Commonwealth's appeal would be to permit it to breach its plea agreement and deprive the defendant of the benefits thereof." Id. at 157, 557 A.2d at 1093. The court specifically noted:

[W]e have no difficulty in determining that the Commonwealth's post-sentencing motion was contrary to "what the parties to [the] plea agreement reasonably understood to be the terms of the agreement." The Commonwealth had agreed to "stand mute" with respect to the sentence to be imposed; it could not consistently therewith move post-sentencing to have the [trial] court modify its sentence by changing a sentence of probation to a sentence of incarceration. That the request was made post-sentencing does not minimize the breach. A sentence is not final until the right of review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982).

The Commonwealth cannot consistently with its agreement seek to effect a harsher sentence by using the back door of post-sentence review. To permit the Commonwealth in the instant case to importune the sentencing court postsentencing to increase the sentence which it imposed would be to permit the Commonwealth to deprive the defendant-appellee of his bargain.... The Commonwealth agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement.

Com. v. Fruehan, 384 Pa. Super. 156, 160-61, 557 A.2d 1093, 1095 (1989). Thus, in Fruehan, the discretionary appeal that the prosecution sought was "disallowed." Id. at 161, 557 A.2d at 1095. In Fruehan, the Commonwealth was found to have breached the plea agreement by a postsentence request of the sentencing court to increase the sentence. No such breach at the trial court level is involved in the present case, and making such a request of the sentencing court is a fundamentally different matter than the exercise of the State's statutorily granted right to have an appellate court—a different and higher court—review a sentence for an abuse of discretion. As a result, we find Fruehan to be distinguishable.

In People v Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993), the defendant pled guilty pursuant to a plea agreement. As part of the agreement, the prosecution agreed to take no position on the defendant's request for a sentence below the mandatory minimum. However, at the sentencing hearing, the prosecution argued that there were no substantial and compelling reasons for the court to depart from the mandatory minimum sentence. It is obvious that in Arriaga, a breach of the plea agreement by the prosecution occurred at the trial level, but as said, no such breach is present here.

The trial court in Arriaga concluded that the defendant had presented substantial and compelling reasons to depart from the mandatory minimum sentence, and the prosecution appealed, alleging that the trial court abused its discretion in its findings. However, the Arriaga court declined to reach that issue on appeal. The court, finding the rationale set forth in Fruehan to be persuasive, noted: "The prosecution in this case promised to take no position on the proposed sentencing departure. Although it is entitled to appeal from an unlawful sentence, the sentence imposed here was not unlawful. The trial court had discretion to depart from the statutory mandatory minimum sentence." Arriaga, 199 Mich. App. at 169, 501 N.W.2d at 201. Thus, the court "refuse[d] to condone the breach [of the plea agreement] by evaluating the trial court's discretion in sentencing [the] defendant as it did." Id. at 169, 501 N.W.2d at 202. Therefore, the court in Arriaga simply held the prosecution to its agreement—a holding with which we have no disagreement. Because of a materially different procedural background, as well as an obvious breach of the plea agreement in the trial court, Arriaga is not persuasive authority on the issue before us.

In State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988), the prosecution promised in a plea agreement not to invoke the provisions of its habitual criminal act and to recommend that the sentences on three counts of theft and two counts of burglary run concurrently. The prosecution complied with the agreement, which would have yielded a total sentence of 3 to 10 year's imprisonment on all counts, but the trial court imposed a total sentence of 6 to 20 years' imprisonment on all counts. The defendant moved to modify the sentence in the trial court. At the hearing on such motion, when asked for its view on the motion, the prosecution referred to a Kansas "Reception and Diagnostic Center" report as "not what you would call a good report" and then concluded: "It does not appear that a modification is in order." Id. at 63, 765 P.2d at 1115. The trial court denied the modification. On appeal, the Kansas Supreme Court stated that "a plea agreement which is silent as to post-sentence hearings is ambiguous." Id. at 68, 765 P.2d at 1119. The Kansas Supreme Court, after finding the plea agreement ambiguous, reasoned that "[w]here a statute is ambiguous, we require that it be strictly construed in favor of the accused." Id. at 69, 765 P.2d at 1120, citing State v. Magness, 240 Kan. 719, 732 P.2d 747 (1987). The court said it found no compelling reason to adopt a different rule in interpreting ambiguous plea agreements. In our view, such conclusion throws aside any number of basic contractual principles that logically are applicable, given that plea agreements are contracts. See State v. Howe, 2 Neb. App. 766, 514 N.W.2d 356 (1994) (finding that plea bargain is contract). One such basic principle which the Wills decision would obviously negate is that a court is not free to rewrite a contract or to speculate as to terms of the contract which the parties have not seen fit to include. Honda Cars of Bellevue v. American Honda Motor Co., 261 Neb. 923, 628 N.W.2d 661 (2001).

The Kansas court in Wills, supra, concluded that the defendant was entitled to have his motion to modify his sentence reheard by a different trial judge and that at the hearing, the prosecution would be bound by the plea agreement. In summary, not only is Wills procedurally and factually different than the instant case, the court in Wills finds an ambiguity regarding appeal when such was not mentioned. Wills simply holds that the prosecution must live up to its plea agreement— a broad principle which is unassailable but which is not determinative in the present case, given the Kansas court's finding of ambiguity which is not present in the plea agreement before us. Thus, Wills is not persuasive authority in this case.

Given the general principle that courts are not to rewrite contracts to include what the parties did not, we find that what the plea agreement between Thompson and the State did not say is of the greatest import in resolving this issue when we note the general principle that the waiver of the right to appeal must be express and unambiguous. U.S. v. Hendrickson, 22 F.3d 170 (7th Cir. 1994) (rejecting defendant's claim that government's appeal of sentence was breach of plea agreement on grounds of waiver and estoppel, when language of plea agreement did not demonstrate intent by either Hendrickson or government to waive right to appeal sentence imposed by district court). See, also, U.S. v. Wiggins, 905 F.2d 51 (4th Cir. 1990). Furthermore, the U.S. Court of Appeals for the Eighth Circuit in U.S. v. Pepper, 412 F.3d 995, 997 (8th Cir. 2005), decided that the language of the plea agreement in that case was not "a waiver of appellate rights, which typically employs more precise terms like 'waiver' and 'appeal." Accordingly, in the instant case, agreeing to "remain silent at sentencing" does not clearly and unambiguously give up the State's statutory right to seek appellate review.

The simple and straightforward agreement of the prosecutor to remain silent at the time of sentencing does not in any way implicate, explicitly or implicitly, the prosecutor's statutory right to seek appellate review of a sentence that he or she believes is excessively lenient. Obviously, making such a waiver part of a plea agreement is a matter of the addition of an additional sentence or two to the agreement, be it oral or written. But we simply cannot manufacture a waiver of this important appellate right possessed by the State from language as straightforward and unambiguous as this plea agreement. With all due respect to our concurring colleague, we submit that Thompson's approach would create a waiver from thin air when none was expressed or even implied. The effect of such a position is that a prosecutor who agrees only to stand silent or mute at sentencing has somehow blithely agreed to accept whatever sentence the sentencing judge hands down—no matter how inappropriate it might be in a particular case for a particular defendant—even though the sentence is within statutory parameters. In so holding, we bear in mind that Nebraska sentencing statutes provide a broad range of sentencing options in order to tailor sentences to the crime, the criminal, and societal interests.

Perhaps the most logical and clearly reasoned decision supporting our view is found in U.S. v. Anderson, 921 F.2d 335 (1st Cir. 1990), although it involves a written plea agreement detailing the charges to which James Dean Anderson would plead. In Anderson, the written plea agreement provided that the government would urge the trial court to apply the mandatory sentence of at least 15 years on each of several firearms possession counts under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1988). The court dealt with two arguments from Anderson as to why the government was foreclosed from its appeal of the sentences imposed by the district court. The second argument advanced by Anderson was that the government had waived its right to appeal by not explicitly referencing that right in the agreement, contending that whereas Anderson insisted on including language in the written agreement reserving his right to appeal the sentences imposed, the government made no such reservation and therefore waived recourse to a higher court. Because Anderson is so pertinent to our reasoning in this case, we quote at considerable length from the opinion of the U.S. Court of Appeals for the First Circuit as follows:

It seems to us that this argument stands logic on its ear. It is black letter law that plea agreements, "though part and parcel of criminal jurisprudence, are subject to contract-law standards in certain respects." [U.S.] v. Hogan, 862 F.2d 386, 388 (1st Cir.1988); see also United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir. 1985) ("plea agreements are subject to contract law principles insofar as their application will insure the defendant what is reasonably due him"). Consistent with contract-law principles, we look to the language of the document, focusing squarely within its four corners. See Hogan, 862 F.2d at 388. In this case, such scrutiny reveals an utter absence of any language conditioning defendant's plea on the government's waiver of appellate rights. To be sure, Anderson—citing the contract-law canon that any ambiguity will be construed against the drafter—contends that such a condition should be inferred from the absence of language anent the government's right to appeal. But this is a bootstrap argument, conjuring up an ambiguity where none legitimately exists.

On its face, the terms of the [plea agreement] are clear enough: the government promises to drop the "firearms transportation" charge in exchange for defendant's admission of guilt on the two "firearms possession" charges. If defendant had wanted to condition his plea on the conferral of an incremental benefit—the prosecution's agreement to forgo its right to appeal any sentence imposed—he could have insisted that such a term be made part of the [plea agreement]. He did not do so. Under the circumstances, we find no reason to grant him after the fact the benefit of a condition he failed to negotiate before the fact. To read the [plea agreement], ex silentio, to include a waiver by the government of its right of appeal would give defendant more than is reasonably due. See, e.g., United States v. Fentress, 792 F.2d 461, 464 (4th Cir.1986) ("While the government must be held to the promises it made [in a plea agreement], it will not be bound to those it did not make.").

We believe it would open Pandora's jar to adopt so freeform an interpretation of plea bargains as Anderson urges. The Court has cautioned in connection with plea agreements that it is error for an appellate court "to imply as a matter of law a term which the parties themselves did not agree upon." United States v. Benchimol, 471 U.S. 453, 456, 105 S.Ct. 2103, 2105, 85 L.Ed.2d 462 (1985) (per curiam). Under traditional contract principles, we should take an opposite tack, treating a plea agreement as a fully integrated contract and enforcing it according to its tenor, unfestooned with covenants the parties did not see fit to mention.

U.S. v. Anderson, 921 F.2d 335, 337-38 (1st Cir. 1990).

In the present case, the very simple and basic plea agreement, albeit oral but on the record, was not festooned with a waiver of the State's right of appellate review. There is such a substantial and longstanding body of Nebraska jurisprudence according substantial discretion to the sentencing judge that citation of authority is superfluous. But, if that discretion is to be unfettered and "unexaminable" discretion, the State's waiver of its right of appellate review must actually be part of the agreement rather than judicially created from a plea agreement that fails to even mention such a condition. In short, we enforce the agreement that was made rather than expand it by judicial fiat, and we hold that the State did not waive its statutory right to appellate review of the trial court's sentences.

Sentences.

We cannot pretend to be unaware that the sentences imposed, in conjunction with certain comments made by the trial judge at sentencing, created a brief nationwide firestorm of critical publicity. After a complete review of the record, particularly the presentence investigation report (PSI), we find that the sentences were not an abuse of the trial judge's discretion, and we therefore affirm the district court's sentences for the reasons that follow.

When the State appeals from a sentence, contending that it is excessively lenient, an appellate court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has been an abuse of discretion by the sentencing court. State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996). In State v. Jallen, 218 Neb. 882, 359 N.W.2d 816 (1984), the court held that the same scope of review applies in the lenient sentence context as in the excessive sentence context. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. See State v. Irons, 254 Neb. 18, 574 N.W.2d 144 (1998). In cases such as this, we do not review the sentence de novo and the standard is not what sentence we would have imposed. See State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).

The State attacks the sentences on a variety of grounds, although we do not detail nor dissect all arguments advanced in their lengthy brief. The State's principal arguments, summarized, appear to be that (1) the trial judge's comments evidence consideration of an improper factor—Thompson's physical stature, (2) Thompson is a sexual predator who "groomed" his victim, (3) Thompson is at risk to reoffend, (4) Thompson is an abuser of his girlfriend and did not complete the counseling he was to get to avoid prosecution for that offense, and (5) Thompson is unrepentant.

Sentencing Judge's Comments.

After listening to comments from defense counsel at the sentencing hearing, the district judge commented as follows before imposing the probationary sentences:

What you have done is absolutely inexcusable. Absolutely wrong. You will never have any idea of how deeply you have harmed this child. You are an adult. You betrayed the trust and you betrayed it not only at a psychological but a physical level .... You've earned your way to prison. So, I'm sitting here thinking this guy has earned his way to prison but then I look at you and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think of what might happen to you in prison because I don't think you'll do well in prison.... I was relieved to know that the people who evaluated you — you are a sex offender, okay. You did this and you did it to a child. That means that at some level you have a sexual preference to children. That doesn't make you a hunter, the predator that we hear about on [television] all the time. I was very relieved to know that you do not fit in that category of human being because that gives me more leeway to not send you to prison. But you need to understand I am going to try to put together some kind of order that will keep you out of prison. But you need to understand that if you don't follow it right to the "T" I have to put you in prison. If you can't structure your behavior so that you are safe and other people are safe out in the community then I have to structure it with prison.

Neb. Rev. Stat. § 29-2322 (Reissue 1995) states in relevant part:

[T]he appellate court, upon a review of the record, shall determine whether the sentence imposed is excessively lenient, having regard for:

(1) The nature and circumstances of the offense;

(2) The history and characteristics of the defendant;

(3) The need for the sentence imposed:

(a) To afford adequate deterrence to criminal conduct;

(b) To protect the public from further crimes of the defendant;

(c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and

(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and

(4) Any other matters appearing in the record which the appellate court deems pertinent.

Neb. Rev. Stat. § 29-2261(3) (Cum. Supp. 2006) provides that "[t]he presentence investigation and report shall include ... the offender's ... physical and mental condition ...." And, § 29-2322(2) mandates consideration of the "characteristics of the defendant." Therefore, the State's proposition that the trial court improperly considered Thompson's physical stature, or that we cannot, is simply incorrect given this statutory language. Additionally, a sentencing judge has broad discretion as to the source and type of information, including personal observations, which may be used as assistance in determining the kind and extent of the punishment to be imposed. State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).

Thompson stands 5 feet 2 inches tall and weighs 125 to 130 pounds. Thompson's size and how that "physical condition" will affect him in a prison setting is a relevant consideration. However, given other matters found in the PSI, which matters we will detail shortly, we have no doubt that Thompson's physical stature, although specifically mentioned, was but a minor point in the trial court's sentencing decision. However, before turning to the PSI, we note that because probation rather than imprisonment was imposed, Neb. Rev. Stat. § 29-2260 (Reissue 1995) is implicated. Section 29-2260 provides in pertinent part:

[T]he court may withhold sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of the offender, the court finds that imprisonment of the offender is necessary for protection of the public because:

(a) The risk is substantial that during the period of probation the offender will engage in additional criminal conduct;

(b) The offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or

(c) A lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for law.

(3) The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of withholding sentence of imprisonment:

(a) The crime neither caused nor threatened serious harm;

(b) The offender did not contemplate that his or her crime would cause or threaten serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse or justify the crime, though failing to establish a defense;

(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate the victim of his or her crime for the damage or injury the victim sustained;

(g) The offender has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the crime;

(h) The crime was the result of circumstances unlikely to recur;

(i) The character and attitudes of the offender indicate that he or she is unlikely to commit another crime;

(j) The offender is likely to respond affirmatively to probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

Clearly, our considerations found in § 29-2322, when addressing an excessively lenient sentence appeal, and the trial court's considerations found in § 29-2260, when withholding imprisonment and imposing probation, overlap. That said, we have considered the PSI in light of the considerations in both statutes. We now set forth the most important information found in the comprehensive PSI. But, at the outset, we recognize that parts of the PSI support probationary sentences while other aspects of the PSI suggest that incarceration is appropriate. In other words, this sentencing decision, like many such judicial decisions, is not formulaic, nor is it simply a matter of doctrine. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992).

Thompson was born out of wedlock in Sidney, Nebraska, on July 10, 1955. He never knew his father and had no siblings. His mother never married and died in late 2005 at the age of 80. Thompson described a good and loving relationship with his mother and said that her passing was extremely hard on him. Thompson is a high school graduate, but according to testing, he has less than average intelligence. He has been employed throughout his life since age 17, and his employer at the time of the PSI indicated that if Thompson was not incarcerated, he would retain his employment with them. He was earning approximately $1,100 per month.

Before these convictions, Thompson had two convictions in the 1980's for driving under the influence, but no conviction since 1988 for even so much as a traffic ticket. In April 2005, as a result of a domestic altercation between Thompson and the woman with whom he was living, C.G., he was charged with third degree assault and cruelty toward a child, but he was not prosecuted on the condition that he seek counseling and abide by the counselor's recommendations. The record indicates that during this domestic altercation, Thompson pushed C.G., causing her to fall and sustain a bruise; shook his fist at her; and pushed C.G.'s daughter when she tried to intervene. While the State argues that Thompson's failure to complete this required counseling militates against probation in this case, the record shows that he contacted a counselor and had four sessions with the counselor before the current situation arose in October 2005.

The victim in this case, E.G., was the daughter of C.G., the woman who began dating Thompson and subsequently lived with him upon moving to Sidney with her two children in April 2004. E.G. was 12 years old at the time she, her younger brother, and her mother began living with Thompson. E.G. reported six occasions of sexual contact by Thompson between July 2005 and September of that year, when the living arrangement between Thompson, C.G., and her children ended.

E.G. recounted that Thompson rubbed her vaginal area outside of her clothing on two occasions and that during one such occasion, he attempted to briefly penetrate her digitally, but he stopped when she asked him to stop. There were three occasions recounted by E.G. when Thompson, who was clothed, laid on top of her and rubbed against her genital area through her clothes. E.G. recounted that on two of those occasions, Thompson kissed her breasts. Thompson also kissed E.G. on the mouth a number of times. E.G. did not describe any attempt at penile penetration. E.G. described Thompson as gentle and said that he did not threaten her in any way. She also described these encounters as being very brief in duration and stated that such ended when he voluntarily stopped and left. No ejaculation was reported by E.G. When taken in for questioning by police, Thompson was highly emotional, was crying, and ultimately admitted the core of the allegations to the officer.

E.G. completed a victim impact statement in which she recounted the following:

I don't trust men. I worry about what they want to do to me. I'm afraid to live with mom and her new boyfriend because of what [Thompson] did to me.

... I worry about other kids knowing what [Thompson] did to me. This makes me feel different.

....

... I think [Thompson] should go to prison so he doesn't do it to any other girls.

A licensed mental health professional who saw E.G.—although we cannot discern from the PSI the nature, length, or frequency of any therapy—also completed a victim impact statement form, on which she stated:

[E.G.] does not trust her own judgment. This is directly related to [Thompson's] gradual grooming and seduction of [E.G., who] truly believed [Thompson] cared about her and would not harm her or do anything that was wrong. [E.G.] is also having a multitude of social problems that stem from her feelings of being different now that this has happened. She is still suffering from feelings of shame, embarrassment and guilt that will take a great deal of time to work through. [E.G.] was horrifically used, abused and betrayed by this man and will continue to need extensive therapy to help her recover from this tragic violation. He not only violated her physically but emotionally and spiritually.

This therapist also offered the following opinions to the trial court on the victim impact statement form:

I think that [Thompson] should be sentenced to 10 years in prison. I realize that this is his first offense that he has been arrested for but I have every reason to believe that this is not the first time that he has molested a child.

After listening in great detail to the seduction and molestation of [E.G.,] I have no doubt that [Thompson] has molested other children in the past. If he is not held accountable for this he will continue to molest other girls. But rest assured he will get better at it.

Other than this statement, there is absolutely no evidence to support the conclusion that Thompson has victimized any other child or adult female, and the claim that he purposefully "groomed" E.G. is contradicted by others involved in the presentence evaluation of Thompson.

The psychologist who performed a mental status examination of Thompson which included the "Minnesota Multiphasic Personality Inventory" considered Thompson's results to be valid. The psychologist stated as follows regarding the result of such testing:

Persons with [Thompson's] profile are often seen as rather dependent and often unable or unwilling to meet their own needs but instead looking for others to do so. A history of repressed hostility and anger is common in this profile type. Denial is usually the defense mechanism of choice. A difficulty in treatment of individuals with this profile type is getting them to accept responsibility for their own behavior. The profile indicates that [Thompson] is likely to be suspicious of others, overly sensitive to rejection, impulsive, and lacking in insight. The profile does not indicate that [Thompson] is presently suffering from psychotic disorder or thinking impairment. He is likely to keep to himself and have difficulty establishing and maintaining relationships. This profile does not show a high potential for substance abuse/alcohol addiction.

....

... [Thompson's] tendency is to act without thinking in a rather immature reaction style. He does not appear to meet criteria for pedophilia. The present offense appears to be one more of impulse control and lack of judgment and does not appear to include any violence or "grooming". There are no known previous sexual offenses with adults or children. It is noted that the victim in this case is post pubescent. Testing shows [Thompson] to be rather immature and self-centered, but he does not show indications of psychopathy or psychosis. Sexual offenders with this profile are usually best managed by requiring no unsupervised contact with vulnerable potential victims, requirement of lack of use of drugs and alcohol to prevent further diminishment of judgment, and long term probation/parole oversight to ensure compliance. He can be characterized as an immature/opportunistic offender rather than an aggressive offender. Ongoing counseling services may be of benefit to this individual if he is able to work through his denial.... As noted in the diagnostic impression this patient does not appear to meet criteria for classification as a sexual psychopath, sexual predator, or similar classifications.

As part of the probation officer's investigation, the probation officer administered the "Sexual Adjustment Inventory" (SAI) to Thompson. Pertinent scores and comments from the SAI report are as follows:

SEXUAL ADJUSTMENT SCALE:LOW RISK RANGE RISK PERCENTILE:8

This person's score on the Sexual Adjustment Scale is in the Low Risk (zero to 39th percentile) range. This response pattern indicates a rather normal and generally satisfactory sexual adjustment....

CHILD MOLEST SCALE:PROBLEM RISK RANGE RISK PERCENTILE:73

This offender's response pattern on the Child Molest Scale is in the Problem Risk (70 to 89th percentile) range. Problematic child molest behavioral (pedophilia) indicators are present. Review court-related records carefully for prior sex-related offenses or convictions....

SEXUAL ASSAULT SCALE:MEDIUM RISK RANGE RISK PERCENTILE:69

This person's score on the Sexual Assault (Rape) Scale is in the Medium Risk (40 to 69th percentile) range. Some indicators of sex-related anger, hostility and aggression are evident. However, an established pattern of sexual assaultive behavior is not present....

INCEST SCALE:LOW RISK RANGE RISK PERCENTILE:0

This individual's score on the Incest Scale is in the Low Risk (zero to 39th percentile) range. Low risk scorers reveal few, if any, indicators of incestuous behavior.

EXHIBITIONISM SCALE:LOW RISK RANGE RISK PERCENTILE:0

This person's response pattern on the Exhibitionism Scale is in the Low Risk (zero to 39th percentile) range. Low risk range scorers typically do not expose their sex organs to unsuspecting persons. This is a Low risk exhibitionism profile.

The SAI report also contains scores and comments for an alcohol scale, a drug scale, a violence scale, and an antisocial scale. Thompson's risk percentiles were classified as low in all four of these categories with scores of 6, 0, 8, and 0, respectively. Significantly, the antisocial scale and its accompanying comments provide in part:

ANTISOCIAL SCALE:LOW RISK RANGE RISK PERCENTILE:0

Few, if any, indicators of repeated lying, deceit, or chronic inability to conform to society are present. A moral or ethical blunting is not evident. This person is capable of affection, sympathy and remorse. Low risk usually is not associated with antisocial tendencies. Indeed, low risk is characterized by responsibility, emotional stability and capability of maintaining significant relationships and loyalties.

Within the PSI is Thompson's handwritten statement that contains his admission of wrongdoing and his acknowledgment that he hurt E.G. as well as family and friends. It contains a number of assertions that he will never repeat this mistake. The State argues that his letter is overly focused on his own pain and suffering from these events rather than on that of his victim. There is certainly an element of that in his letter. For example, he stated:

I know that I will never ever do something like this again [be]cause what it has done to me mentally and how bad it has hurt me, and it isn't worth the pain to go through it again because I have suffered in my mind and hurt so much that I know I would not do it again.

However, his letter expresses his remorse and acknowledges that he hurt E.G. For example, he wrote: "And knowing that I have also hurt [E.G.] too because the way she loved me as her dad[d]y ...."

Finally, we quote in part the "Summary/Evaluation" section of the report by the district probation officer:

With regards to the sentence in this case, it does not appear a term of imprisonment at the Nebraska Correctional Complex would be required, rather [Thompson] may benefit from services that could be provided during a term of Intensive Supervised Probation (ISP). In addition to the standard terms of ISP, this officer would ask the Court that specific conditions of probation be included. [Thompson] should be ordered to complete a letter of apology to the victim and her family. Additional conditions would include [Thompson's] being prohibited from becoming involved in a relationship with someone who has young children or with someone who is around and/or caring for young children. A condition of probation that prohibits [Thompson] from purchasing or being in possession of pornographic material would also be recommended.

We now turn to § 29-2260, which provides that the trial court may withhold a sentence of imprisonment unless, having regard for the nature and circumstances of the crime as well as the history, character, and condition of the offender, the court finds that imprisonment is necessary for protection of the public because (1) there is a substantial risk that during the period of probation, the offender will engage in additional criminal conduct; (2) the offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or (3) a lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for the law.

The first of the three factors addresses whether there is a substantial risk that during the period of probation the offender will engage in additional criminal conduct. In this regard, the only assertion that Thompson will reoffend is that made by E.G.'s counselor, but she has had no contact with Thompson and her information comes solely from the victim. In contrast, the psychologist who evaluated Thompson found no evidence of violence or grooming and found no known previous sexual offenses with either adults or children. The psychologist concluded that Thompson is not a pedophile, but, rather, that Thompson's offenses in this case stem from poor judgment and a lack of impulse control. The psychologist unequivocally stated that Thompson does not meet the criteria for classification "as a sexual psychopath, sexual predator, or similar classifications." Additionally, Thompson's score on the SAI indicates "a rather normal and generally satisfactory sexual adjustment." While the SAI indicates some risk for child molestation, Thompson's SAI shows that he is at low risk for incest, exhibitionism, alcohol problems, drug problems, and violence and that he does not show any antisocial tendencies. The SAI also found that Thompson is capable of affection, sympathy, remorse, responsibility, and emotional stability.

The second factor under § 29-2260 is that the offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility. The PSI reveals and the probation officer specifically recommends that intensive supervised probation, not incarceration, is appropriate in this case. There is no showing in the PSI that the assistance Thompson needs is most effectively provided at a correctional facility.

The third factor addresses whether a lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for the law. Of the statutory considerations to withhold imprisonment, this is obviously the most subjective. Clearly, the victim and her counselor seek imprisonment, and we assume that they would hold the view that anything less than imprisonment depreciates the seriousness of Thompson's crimes and promotes disrespect for the law. However, the statute requires consideration of the history, character, and condition of the offender, which, when summarized, reveals a person of low to average intelligence who has been a law-abiding citizen, other than two youthful driving while intoxicated convictions and the current conviction, and a person who has remained employed and has had meaningful relationships with his mother, extended family, friends, and his employer. In short, while Thompson's molestation of E.G. has clearly been hurtful and harmful to her, he is not a person who has led an irresponsible life; nor does the PSI suggest that at his core, he is an inherently bad, evil, or dangerous person. He did, however, commit horrific acts violating a young girl's trust and affection for him.

While there is a temptation on a visceral level to conclude that anything less than incarceration depreciates the seriousness of crimes of this sort, it is the function of the sentencing judge, in the first instance, to evaluate the crime and the offender. Our appellate review for an abuse of discretion also includes consideration of the crime and the offender. It has long been recognized that a sentence should fit the offender and not merely the crime. See Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). As stated by the Nebraska Supreme Court in State v. Harrison, 255 Neb. 990, 1005, 588 N.W.2d 556, 565 (1999):

Indeed, this court has repeatedly recognized the importance of probation to our system of criminal justice, stating that " "[a] sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary."...'" State v. Javins, 199 Neb. 38, 40-41, 255 N.W.2d 872, 874 (1977), quoting State v. Shonkwiler, 187 Neb. 747, 194 N.W.2d 172 (1972). Thus, "justice" may certainly be served by a sentence of probation. Whether justice is so served is a matter that is, in the first instance, properly left to the trial court.

Section 29-2260(3) contains considerations which shall be accorded weight in favor of withholding a sentence of imprisonment, including, inter alia, whether the crime neither caused nor threatened serious harm, whether the offender acted under strong provocation, whether substantial grounds were present tending to excuse or justify the crime, and whether the victim induced or facilitated the commission of the crime. The record does not support a conclusion that any of these factors are present, which conclusion would militate in favor of withholding imprisonment, and thus, the probationary sentences are not justified by these factors. But the inquiry does not end here.

With respect to our obligation upon review of a sentence claimed to be excessively lenient, we are to have regard for the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence imposed to afford adequate deterrence to criminal conduct, to protect the public from the defendant, and to reflect the seriousness of the offense and provide just punishment as well as to provide the defendant with needed correctional treatment in the most effective manner. See § 29-2322. We have already discussed these factors at various points in our analysis, except we have not examined in any detail the sentences imposed, beyond simply stating that they are two 5-year terms of intensive supervised probation, to run consecutively. It is important to detail some of the requirements of Thompson's probationary sentences so that the reader knows that it is not simply a "get out of jail free card."

Under the terms of Thompson's probation, he must be employed or attend school and he must avoid contact with persons having criminal records. He cannot leave Cheyenne County without the permission of his probation officer. He must abstain from the use and possession of alcohol and submit, upon request of his probation officer, to a chemical test of his blood, breath, or urine. He cannot associate with anyone who possesses firearms. He must serve up to 180 days of electronic monitoring. He is subject to a curfew set by his probation officer. He cannot frequent premises specializing in the sale or consumption of alcohol. He shall enroll in and successfully complete counseling for sexual behavior, as directed by his probation officer. He shall write an apology to his victim. He shall never be unsupervised when a person under the age of 18 is present. He cannot have a dating relationship with anyone who has children under the age of 18 or who cares for children under such age, nor can he live with anyone under the age of 18. He shall not possess any pornography and shall have no computer access in his home. Finally, Thompson is to serve 30 days in the Cheyenne County jail, which was to begin January 1, 2007, and serve another 30 days beginning on January 1 of each year that he is on probation, although such imprisonment may be waived by his probation officer. If Thompson violates the terms of his probation—which is not only supervised, but strict and demanding—he is subject to the filing of a motion to revoke his probation and be sentenced anew. Thompson has agreed to each and every one of these conditions of his probation.

CONCLUSION

The PSI that was in the hands of the district judge before imposition of these sentences contains abundant and logical justification for ordering probation—the terms of which are strict and demanding—rather than incarceration. After our review of the crimes, the sentences, and the information in the PSI, we have no hesitancy in saying that the sentences are not an abuse of discretion and, therefore, are not excessively lenient.

We have taken great care for a specific reason to detail information in the PSI, which information has not been, and would not otherwise be, available to the public and media. Our reason for doing so is to illustrate that if the sentencing judge went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI which clearly justified the probationary sentences she imposed. Such failure caused the trial judge's brief mention of Thompson's small physical stature to become the focus of attention, when in reality it was but a minor point. Of far greater consequence is the fact that the examination by a clinical psychologist and the results of the SAI all strongly indicate that Thompson is neither a pedophile nor a sexual predator, but, rather, that his crimes stemmed from poor judgment and a lack of impulse control. Of equal importance is the fact that the probation officer recommended the sentences imposed by the trial judge. By saying this, we by no means minimize the seriousness of the crimes or the pain and damage which Thompsonon has inflicted upon his victim. Nonetheless, the PSI reveals that he is unlikely to reoffend—and the terms of his probationary program are strictly structured to ensure that this does not happen—and he was told in no uncertain terms that he would be treated harshly if he fails probation.

Because the trial judge did not abuse her discretion in sentencing Thompson, we affirm.

AFFIRMED.

Appellant.

INBODY, Chief Judge, concurring.

I respectfully concur with the result reached by the majority; however, I write separately because I reach this result for different reasons than those of the majority.

The State alleges that the sentences imposed upon Thompson by the district court were excessively lenient. In support of this allegation, the State contends that the district court abused its discretion when it considered impermissible, irrelevant, and inappropriate factors iimposing its sentences, such factors as Thompson's physical size and "his ability to 'cope' with other inmates in prison." Brief for appellant at 20. Conversely, Thompson asserts that the State, by complaining that his sentences were excessively lenient after agreeing to stand silent at the sentencing hearing, is in violation of the parties' plea agreement, and asserts that "[t]his Court should enforce the plea agreement between Thompson and the State by dismissing this appeal." Brief for appellee at 9.

It is well established that plea bargaining is an essential component of the administration of justice. See, Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). The benefits to be derived from plea bargaining, however, presuppose fairness in securing agreement between an accused and a prosecutor. Id. Thus, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Id.

A plea bargain is a contract, the terms of which necessarily must be interpreted in light of the parties' reasonable expectations. The resolution of each case depends upon the essence of the particular agreement and the government's conduct relating to its obligations in that case. State v. Alba, 13 Neb. App. 519, 697 N.W.2d 295 (2005).

My research has not revealed any Nebraska cases directly on point with the issue of whether the State waives its right to appeal a discretionary sentence as excessively lenient when it agrees to stand silent at the defendant's sentencing hearing as part of a plea bargain. In support of Thompson's proposition that the State waived its right to appeal his sentences as excessively lenient, he cites three cases from other jurisdictions: Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); People v. Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993); and State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988). Out of these three cases, I believe that Fruehan presents the factual situation most similar to that seen in the instant case.

In Fruehan, the court indicated that "[t]he issue of first impression in this appeal is whether the Commonwealth should be allowed to appeal the discretionary aspects of a sentence after it agreed as part of a negotiated plea agreement to stand mute with respect to the sentence to be imposed by the trial court." 384 Pa. Super. at 157, 557 A.2d at 1093. The court, noting that "the sentence imposed by the trial court is within the limits authorized by the legislature and is not illegal," provided that, similar to our case, "the only attack which the Commonwealth has leveled against the sentence is that it represented an abuse of the sentencing court's discretion." Id.

The court noted that "a plea agreement by the Commonwealth to make no sentencing recommendation does not preclude it from correcting misinformation presented to the court by the defendant" and that it does not "prevent the Commonwealth from resisting a post-sentencing request by a defendant to reduce the sentence imposed by the court." Id. at 159, 557 A.2d at 1094. However, the court further noted that "[i]n determining whether a particular plea agreement has been breached, we look to 'what the parties to this plea agreement reasonably understood to be the terms of the agreement." Id. at 160, 557 A.2d at 1094, quoting Paradiso v. United States, 689 F.2d 28 (2d Cir. 1982).

In the end, the Fruehan court found that "to allow the Commonwealth's appeal would be to permit it to breach its plea agreement and deprive the defendant of the benefits thereof." Id. at 157, 557 A.2d at 1093. The court further provided:

[W]e have no difficulty in determining that the Commonwealth's post-sentencing motion was contrary to "what the parties to [the] plea agreement reasonably understood to be the terms of the agreement." The Commonwealth had agreed to "stand mute" with respect to the sentence to be imposed; it could not consistently therewith move post-sentencing to have the [trial] court modify its sentence by changing a sentence of probation to a sentence of incarceration. That the request was made post-sentencing does not minimize the breach. A sentence is not final until the right of review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982).

The Commonwealth cannot consistently with its agreement seek to effect a harsher sentence by using the back door of post-sentence review. To permit the Commonwealth in the instant case to importune the sentencing court postsentencing to increase the sentence which it imposed would be to permit the Commonwealth to deprive the defendant-appellee of his bargain. The trial court, understandably, declined to consider the Commonwealth's petition. If this Court were to allow the Commonwealth's appeal and thereafter conclude that the defendant-appellee should be resentenced, we, too, would thereby condone the Commonwealth's breach of its plea agreement and aid in depriving appellee of the benefits of his agreement. In that event, the Commonwealth would have been allowed to say, in effect, that only a sentence of imprisonment was satisfactory. We decline to permit this. The Commonwealth agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement.

Com. v. Fruehan, 384 Pa. Super. 156, at 160-61, 557 A.2d 1093, 1095 (1989).

In People v Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993), as part of a plea agreement, the prosecution agreed to take no position on the defendant's request for a sentence below the mandatory minimum. However, at the sentencing hearing, the prosecution argued that there were no substantial and compelling reasons for the court to depart from the mandatory minimum sentence. The trial court concluded that due to the plea agreement, the prosecution could take no position regarding the defendant's sentencing request. The trial court concluded that the defendant had presented substantial and compelling reasons to depart from the mandatory minimum sentence.

On appeal, the prosecution alleged that the trial court abused its discretion in its findings. However, the Arriaga court declined to reach that issue on appeal. The court, citing Fruehan, noted: "The prosecution in this case promised to take no position on the proposed sentencing departure. Although it is entitled to appeal from an unlawful sentence, the sentence imposed here was not unlawful. The trial court had discretion to depart from the statutory mandatory minimum sentence." Arriaga, 199 Mich. App. at 169, 501 N.W.2d at 201. Thus, the court "refuse[d] to condone the breach [of the plea agreement] by evaluating the trial court's discretion in sentencing [the] defendant as it did." Id. at 169, 501 N.W.2d at 202.

In State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988), as part of a plea agreement, the prosecution promised, in part, to recommend that the sentences imposed upon the defendant run concurrently. The trial court chose not to follow the prosecution's recommendation and imposed consecutive sentences upon the defendant. The defendant then filed a motion to modify the sentence imposed, and at the hearing on such motion, the prosecution noted: "It does not appear that a modification is in order." Id. at 63, 765 P.2d at 1115. The defendant's motion to modify was denied. The defendant then sought to withdraw his guilty plea, contending that the prosecution had violated the defendant's due process rights by failing to comply with the terms of the plea agreement. The motion was overruled.

The Wills court framed the issue as this: "Ms the [prosecution] bound by the plea agreement at the hearing on [the] defendant's motion to modify the sentence?" Id. The court noted that "[t]he issue of whether the prosecution may deviate from the terms of the plea agreement during post-sentence proceedings" was an issue of first impression in Kansas. Id. at 66, 765 P.2d at 1117. In its consideration of the issue, the court stated: "[I]t is reasonable to expect continuing prosecutorial adherence to the [plea] agreement: a prosecutor's commitment to a specified sentence recommendation would be of little value if the government's tongue is to be freed at a later, related proceeding." Wills, 244 Kan. at 68, 765 P.2d at 1119.

Ultimately, the Wills court concluded that "the [prosecution's] promise to make favorable sentence recommendations binds the [prosecution] at the subsequent hearing on the defendant's motion to modify sentence, absent language in the plea agreement limiting the [prosecution's] promise to the original sentencing hearing." Id. at 69-70, 765 P.2d at 1120. The court found that absent language in the plea agreement to the contrary, "the defendant would reasonably expect the [prosecution] to be bound by its promise at all hearings which affect the determination of his sentence." Id. at 69, 765 P.2d at 1119-20.

In the instant case, the State suggests that a trial court abuses its discretion by imposing a sentence based on impermissible considerations or mistaken rationale. See State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998). This certainly is true. However, in an effort to buttress its argument regarding Thompson's sentences, the State also suggests that the sentences were illegal. The State points out language from People v Arriaga, 199 Mich. App. 166, 169, 501 N.W.2d 200, 201 (1993), in which the court noted that the prosecution was "entitled to appeal from an unlawful sentence." However, the sentences imposed in the instant case were not unlawful or illegal. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible statutory penalty for the crime. U. S. v. Greatwalker, 285 F.3d 727 (8th Cir. 2002); State v. Alba, 13 Neb. App. 519, 697 N.W.2d 295 (2005).

The majority finds that Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); Arriaga, supra; and State v. Wills,244 Kan. 62, 765 P.2d 1114 (1988), are all distinguishable from this case. However, in my opinion, U.S. v. Anderson, 921 F.2d 335 (1st Cir. 1990), cited by the majority as "the most logical and clearly reasoned decision supporting our view," is also factually distinguishable from our case. The First Circuit Court of Appeals found that the sentence imposed in Anderson was in violation of the law. The sentences in the instant case were within the statutory limits for the crimes committed by Thompson, and they were neither unlawful nor illegal. Rather, the issue is whether the sentences were an abuse of the trial court's discretion, and in my opinion, we need not reach the issue of whether or not the district court abused its discretion when sentencing Thompson.

After reviewing each of the aforementioned cases, it appears to me that in the plea agreement in the instant case, the State agreed to submit to the trial court's discretion by agreeing to stand silent regarding Thompson's sentences. The situation is not unlike that seen in Fruehan, where the court noted that the Commonwealth "agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement." 384 Pa. Super. at 161, 557 A.2d at 1095. As previously mentioned, there are factual distinctions between our case and Fruehan. However, in my opinion, with regard to the actual questions presented in these cases, these are distinctions with no real differences. Despite the factual distinctions, I find the reasoning employed by the Fruehan court to be persuasive. To permit the State in the instant case to appeal Thompson's sentences as excessively lenient and to allege that the trial court abused its discretion, after the State submitted to the court's discretion, would be to permit the State to deprive Thompson of the benefit of his bargain and would defeat his reasonable expectations of the plea agreement.

Therefore, I would find that the State should not be allowed to complain about the discretionary aspects of sentences imposed when it bargained away the right to take a position on the sentences in the first place, and I would hold that the State has waived its right to appeal the discretionary aspects of Thompson's sentences. Since Thompson's sentences were neither illegal nor unlawful, I would affirm the judgment of the district court on these grounds, rather than on those expressed by the majority.