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 Wisconsin, as in other states, the criminal justice system has experienced a tension between judicial discretion and mandatory minimum sentencing laws. While judges traditionally had the authority to consider a wide range of factors when determining sentences, mandatory minimums require them to impose fixed sentences for certain offenses, particularly drug-related crimes. These laws limit a judge's ability to tailor sentences based on the individual circumstances of a case. However, at the federal level, the Federal Sentencing Guidelines provide a framework for sentencing uniformity across the federal court system. Although these guidelines are advisory rather than mandatory following the U.S. Supreme Court decision in United States v. Booker (2005), judges are still required to consult them and justify any deviations. In Wisconsin, judges must balance the application of state statutes, which may include mandatory minimums, with their discretion to ensure sentences are proportionate to the offense and individual circumstances of the defendant.