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 Montana, as in other states, the criminal justice system has experienced a shift from traditional discretionary sentencing to a more structured approach due to the implementation of mandatory minimum sentences for certain offenses. These mandatory minimums are predetermined sentences that judges must impose for specific crimes, particularly drug offenses, and certain types of gun, pornography, and economic crimes. While these laws limit judicial discretion, judges in Montana still consider the facts and circumstances of each case within the constraints of these statutes. At the federal level, the Federal Sentencing Guidelines provide a framework for sentencing in the federal court system. Although these guidelines are advisory rather than mandatory, federal judges in Montana must consider them and provide an explanation if they choose to depart from the recommended sentencing range, whether imposing a harsher (upward departure) or more lenient (downward departure) sentence. This ensures a level of consistency in federal sentencing while still allowing for judicial discretion based on the specifics of a case.