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 Massachusetts, as in other states, the criminal justice system has experienced a tension between judicial discretion and mandatory minimum sentencing laws. Mandatory minimum sentences are fixed prison terms prescribed by law for certain offenses, which judges are compelled to impose regardless of the individual circumstances of a case. These laws are often applied to drug offenses, as well as specific gun, pornography, and economic crimes. While mandatory minimums limit judicial discretion, judges in Massachusetts can still consider the facts and circumstances of a case in situations where mandatory minimums do not apply. At the federal level, the Federal Sentencing Guidelines provide a framework for sentencing, which judges must consider but are not absolutely bound to follow. Judges must consult these guidelines when determining sentences and must explain their reasoning for deviating from them, whether imposing a harsher (upward departure) or more lenient (downward departure) sentence than the Guidelines suggest. It's important to note that the Supreme Court's decision in United States v. Booker rendered the Federal Sentencing Guidelines advisory rather than mandatory, thus restoring a degree of judicial discretion at the federal level.