and unfairness. There would be less "reason" in an indeterminate sentencing system than in the guidelines system Washington had adopted. Third, the guidelines systems currently in force would remain, and the jury-trial requirement would be grafted onto them. Breyer predicted this could play out in one of two ways. First, legislatures might redefine crimes with highly specific detail — a robbery statute could enhance punishment based on the value of the goods taken, whether a gun was used, the seriousness of the threat used to obtain the goods, and so on. But the result of this system would be the same as the first option — prosecutors would end up with the discretion to determine the defendant's sentence by manipulating the charge. Second, two juries could be assembled for each criminal trial, one for the guilt phase and one for the penalty phase. But this approach would be costly, as the experience with bifurcated trials in capital cases has shown. Perhaps another solution would be to prescribe overly harsh sentences for crimes, and then define a list of mitigating factors, so that a judge could still retain the discretion to impose sentences (since the jury-trial requirement only applies to increases in the maximum sentence). But "political impediments" make vast revisions of any legislative scheme difficult to implement, and Breyer doubted that the mere fact that the Court ruled the Sixth Amendment demanded a legislative solution would impel many state legislatures to revamp their criminal codes in this way. Finally, Breyer argued that legislatures needed to retain the constitutional authority to make the labelling decision between an "element" of a crime and a "sentencing factor." Without the ability to do so, legislatures cannot create "sentencing systems that are consistent with, and indeed may help to advance, the Constitution's greater fairness goals." For Breyer, those greater fairness goals are achieved when a defendant's real conduct drives the sentence he receives. Constitutional obstacles that stand in the way of this goal detract from the overall fairness of the criminal justice system. Effect on subsequent jurisprudence Although the Court expressly stated that it was not addressing the constitutionality of the Federal Sentencing Guidelines, it was hard to resist the conclusion that the Guidelines as then constituted were in jeopardy in light of the tremendous similarity between the structure of the federal Guidelines and the Washington Guidelines at issue in Blakely. Six weeks after the