Two years ago, the US Supreme Court struck down the federal sentencing guidelines system because it forced judges in some cases to increase a criminal's punishment based on information that had never been proved to a jury.
The Constitution says that every defendant has a right to a jury trial, and the high court ruled that such a mandatory sentencing system violates that right.
Instead of invalidating the entire guidelines system and leaving it to Congress to fix the problem, five justices agreed to craft a remedy to retain most of the guidelines. But the result has confused many judges across the country and caused federal appeals courts to rule in conflicting ways.
Tuesday, the high court is set to hear oral argument in two cases that analysts say may help clear up some of the confusion. The decision will be closely watched.
"We are talking about the rules that govern every federal case – 80,000 cases a year," says Marc Miller, a law professor and sentencing scholar at the University of Arizona College of Law.
In its 2005 decision, the Supreme Court ruled that the sentencing guidelines were no longer mandatory, only advisory. "The district courts, while not bound to apply the guidelines, must consult those guidelines and take them into account when sentencing," Justice Stephen Breyer, declared in a second part of that decision.
Justice Breyer didn't stop there. He and his four colleagues empowered the appeals courts to police this new sentencing system by examining whether sentencing judges were being unreasonable in the way they determined punishment.
In a dissent, Justice Antonin Scalia warned that Breyer's remedial action would "wreak havoc" in federal district and appeals courts. Although it is unclear exactly how much havoc has been wreaked, there is no doubt that many courts are struggling to interpret the decision.
At issue is how much weight judges should give to the guidelines now that they are only advisory?
On one side are those who argue that sentencing judges should be free to adopt or reject the guidelines on an equal footing with several other factors Congress has identified as important sentencing objectives. The key, they say, is that judges rely on reasoned judgment rather than a mechanical guidelines formula to mete out punishments.
On the other side are those who say the guidelines must be afforded an exalted status among sentencing factors since they represent the collective wisdom of the US Sentencing Commission created by Congress.
Five of the nation's 12 appeals courts have embraced the former approach, while seven have embraced the latter approach.
Specifically, the question is whether appeals court judges should award a presumption of reasonableness to any sentence imposed within the range of the guidelines.
Such an approach promotes clarity, stability, and uniformity in the sentencing nationwide, supporters say.
Critics say it erodes the advisory nature of the guidelines and judicial flexibility at sentencing, potentially raising the same constitutional objection that led to mandatory guidelines being struck down in 2005.
The two cases being heard Tuesday had been decided by appeals courts that award a presumption of reasonableness to sentences imposed within the guideline range.
One involves Victor Rita, a decorated combat veteran of the Vietnam and Gulf wars, who was convicted in North Carolina of making two false statements to federal agents about a parts kit he had purchased for a vintage battle rifle. Mr. Rita had no prior criminal history and there were no aggravating characteristics related to his background. But a pre-sentence report prepared under the federal sentencing guidelines classified Rita as an "accessory after the fact" to alleged import violations by the company that sold him the parts kit.
That classification – never presented to the jury at his trial – doubled his potential prison term from 15 to 33 months.
The judge sentenced Rita to 33 months in prison in accord with the guidelines. The Fourth US Circuit Court of Appeals upheld the sentence as presumptively reasonable since it was within the guidelines.
Rita's lawyers say the courts placed too much weight on the guidelines and never explained why other factors pointing to a lesser sentence were rejected.
The other case involves an example of a judge imposing a sentence that is less than half as long as the guidelines suggest.
Mario Claiborne pleaded guilty to distribution and possession of crack cocaine. He had evidence of a stable home life, no prior criminal history, and no one was threatened or injured during the crime. But the bag of crack cocaine weighed 5.03 grams. The extra 0.03 grams significantly increased his potential prison term.
Nonetheless, Mr. Claiborne's sentencing judge rejected the suggested guidelines sentence of 37 months and instead imposed a 15-month prison term.
Federal prosecutors appealed, and the Eighth US Circuit Court of Appeals reversed the sentence. The appeals court said that a guidelines sentence is "presumed reasonable" and that a sentencing judge who rejects the guidelines sentence must offer a compelling justification to warrant the difference between the higher and lower sentence.
The Bush administration is urging the court to declare that guidelines are entitled to a presumption of reasonableness.
"The guidelines are written and revised by an expert agency, with an intent to integrate [all other sentencing] factors and with input from Congress and sentencing judges across the country," writes US Solicitor General Paul Clement in his brief.
Lawyers for Claiborne and Rita say the sentencing judge should consider all the relevant sentencing factors and hand down a fair and just sentence. If the guidelines are truly advisory, a judge's sentence should be upheld, they say, even when it deviates from the guidelines.
The ruling is not likely to change dramatically the leniency or severity of most sentences, analysts say, but if the court rejects the presumption-of-reasonableness approach, it will probably trigger a somewhat greater variation of sentences.