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 Delaware, as in many states, the criminal justice system has experienced a shift from traditional discretionary sentencing to a more structured system due to the implementation of mandatory minimum sentences for certain offenses. These mandatory minimums require judges to impose a predetermined minimum sentence for specific crimes, particularly drug offenses, as well as some gun, pornography, and economic crimes. This limits judicial discretion by setting a floor for the length of imprisonment. However, judges in Delaware state courts still retain some discretion for offenses that do not carry mandatory minimums and can consider various factors related to the offense and the offender's background. At the federal level, the Federal Sentencing Guidelines provide a framework for sentencing in federal courts. While these guidelines are advisory rather than mandatory following the U.S. Supreme Court's decision in United States v. Booker (2005), federal judges must still consult these guidelines and take them into account when sentencing. If a federal judge chooses to depart from the guidelines, they must provide an explanation for either an upward or downward departure. It's important to note that while Delaware state law governs crimes under state jurisdiction, federal laws and guidelines apply to offenses prosecuted in federal court.