sentences, but they now at least know, much more than before, the real consequences of their actions." The guidelines also reduce disparities, particularly those based on race, which was a concern of some critics of the pre-guidelines system. O'Connor foresaw a "substantial constitutional tax" in applying the Apprendi rule to sentencing guidelines systems. She protested that the traditional sentencing factors would now have to be charged in the indictment and proved to a jury. Bifurcated proceedings may become commonplace in criminal trials, so that a jury might not improperly consider prior bad acts during the guilt phase but properly consider them when it comes time for sentencing. And under some guidelines schemes, such as the federal sentencing guidelines, some facts relevant to sentencing, such as perjury and obstruction of justice, cannot be known until the trial is underway. In any event, all relevant sentencing facts may not be known prior to trial, since prosecutors typically wait until after a guilty verdict is obtained before gathering a full history of the defendant and examining the pertinent facts of the crime in order to recommend a sentence. Finally, O'Connor disagreed with the majority's interpretation of the "statutory maximum" in a guidelines context. She believed that, despite the mandatory nature of the guidelines, the "statutory maximum" remained (for Blakely) 10 years. For O'Connor, mere formalism dictated the conclusion that the "statutory maximum" was the greatest sentence the judge could legally impose based on the facts found by the jury or admitted by the defendant, and formalism was not a virtue she felt was worth vindicating. Furthermore, the effects of the decision were not confined to Washington, for every system involving guidelines sentencing, including the federal system, were constitutionally suspect. Justice Breyer's dissent Justice Breyer envisioned three possible responses to the majority's decision. First, legislatures could prescribe exactly the same sentence for all possible variations of a crime — an automatic five-year sentence for all robberies, for instance. This system has the "intolerable" effect of imposing the same sentence on people who commit their crimes in vastly different ways. Prosecutors would end up with the real control over defendants' sentences, since prosecutors ultimately make the decisions regarding how to charge the case. Second, states could return to indeterminate sentencing, in which the authorized range of punishment for crimes is very broad. But such systems were criticized (rightly, in Breyer's view) for their excessive disparity