Criminal justice systems in the United States—in both state and federal courts—traditionally allowed judges to consider all of the facts and circumstances of a case to determine a convicted defendant’s appropriate sentence. But the United States Congress and many state legislatures have passed laws that force judges to give fixed jail or prison terms (mandatory minimum sentences) to persons convicted of certain crimes—often drug offenses, but also certain gun, pornography, and economic crimes.

For example, the Federal Sentencing Guidelines are non-binding rules that provide a uniform sentencing policy for defendants convicted of crimes in the United States federal court system. The Federal Sentencing Guidelines are not mandatory, but judges must consider them when determining a criminal defendant’s sentence—and when a judge exercises discretion and departs from the Guidelines, the judge must explain what factors warranted the increased or decreased sentence—known as an upward departure or a downward departure.

In Colorado, as in other states, the criminal justice system has experienced a tension between judicial discretion and mandatory minimum sentencing laws. Mandatory minimums require judges to impose a predetermined minimum sentence for certain offenses, particularly drug-related crimes, as well as specific gun, pornography, and economic offenses. These laws limit a judge's ability to consider the unique circumstances of each case when determining a sentence. However, the Federal Sentencing Guidelines, which apply to defendants in the federal court system, offer a framework for sentencing that judges are not strictly bound to follow. While the guidelines aim to ensure consistency in federal sentencing, judges in Colorado's federal courts must consider them but are allowed to deviate from the recommended range. When doing so, they must provide an explanation for either an upward or downward departure from the guidelines. This system attempts to balance the uniformity of sentences with the need for judicial discretion based on the individual facts of a case.