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 require judges to impose predetermined sentences for specific crimes, particularly drug offenses, as well as some gun, pornography, and economic crimes, limiting judicial discretion. However, Montana does not follow the Federal Sentencing Guidelines, as those apply to federal courts. While the Federal Sentencing Guidelines are advisory rather than mandatory following the U.S. Supreme Court's decision in United States v. Booker (2005), federal judges must still consider them and provide reasons for deviating from the suggested range. In Montana state courts, judges are bound by state statutes that may prescribe mandatory minimum sentences for certain offenses but otherwise have discretion to consider various factors when determining a sentence within the statutory range. When a mandatory minimum sentence is applicable, the judge must impose at least the minimum sentence prescribed by law.