It has been reported that Martha Stewart will announce – perhaps as early as this week – her decision to surrender for imprisonment. She would do so to protect the shareholders and employees of her company from the economic consequences of continued uncertainty as to her fate. As a practical matter this means that she will serve out her prison term before the issues on her appeal – assuming she presses the appeal – are resolved.

The issues on appeal are by no means trivial. Her case raises several questions that are not only meritorious but of substantial importance to the criminal justice system. One is the constitutionality of the Federal Sentencing Guidelines.

The Federal Sentencing Guidelines were promulgated by the United States Sentencing Commission pursuant to congressional mandate. The point of the guidelines was to reduce disparities in sentencing by limiting the discretion of federal judges. In accordance with that idea, the guidelines impose a strict sentencing formula that federal judges are required to apply.

Since the guidelines came into effect, they have been attacked for a variety of reasons, but the most important revolves around the question of who is the proper authority to determine the facts that are the predicate for sentencing.

As the guidelines now stand, the length of a defendant’s sentence may be dictated by findings of fact that were never submitted to the jury – and that, according to several courts and many scholars of constitutional law, violates a defendant’s right, as guaranteed under the Sixth Amendment, to a trial by jury.

The way this works is that after the sentencing judge has identified the “base line offense” committed by the defendant, the judge is then instructed by the guidelines to adjust the offense level upwards based on a number of factors, including, among others, the defendant’s role in the crime, the treatment of the victim, the amount of loss, and whether the defendant obstructed justice during the course of the trial or after. In considering these circumstances, it is of no importance whether the facts relevant to these circumstances were ever charged in the indictment, reviewed by the jury, or proved beyond a reasonable doubt.

Those courts and scholars who challenge the guidelines argue, in essence, that the length of a defendant’s sentence should be based exclusively on facts found by the jury and that if the defendant’s sentence is increased owing to additional facts as determined by a judge and not the jury, the sentence is unconstitutional. What then is the constitutional justification behind such a rule?

It is argued, in essence, that those who wrote the Constitution were concerned with establishing the jury as a check on the power of judges and created this check in the text of the Sixth Amendment, instituting a right to a trial by jury.

As Justice Scalia, writing for the Supreme Court in a recent decision, Blakely v. Washington, striking down the sentencing guidelines of the state of Washington, opined: “There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. [E]very defendant has the right to insist that the prosecutor prove to a jury all facts legally relevant to the punishment.” Citing John Adams, as well as Letter XV by the Federal Farmer, Justice Scalia argued that “just as suffrage ensure the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”

Given the Supreme Court’s decision in Blakely and the number of lower courts that have held the federal guidelines violative of the Sixth Amendment, it was not entirely surprising that last month the Supreme Court agreed to hear two cases, U.S. v. Booker and U.S. v. Fanton, challenging the constitutionality of the guidelines. This brings us back to Stewart, who was sentenced under the guidelines. If the Supreme Court overturns the guidelines, Stewart would be in a position to return to the judge in her case and request a new sentence. That sentence could well be reduced to house arrest or less.

But all of that would be moot if, as is likely, Stewart has surrendered and served her time. That is not justice. That is the opposite of justice. There is, however, one branch of government that is not restrained by the sentencing guidelines and that has the power to grant Stewart relief. The Constitution grants the president the right to grant pardons and those pardons can be conferred regardless of whether the person has served their time or even been convicted.

Mr. Rips, who was a law clerk to Justice Brennan, practiced law in New York. His book “The Face of a Naked Lady: An Omaha Family Mystery,” will be published in the spring of 2005 by Houghton Mifflin.