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 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 are required to impose 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 amount of time an individual must serve. However, judges in Wisconsin state courts still retain some discretion to consider the facts and circumstances of a case when determining sentences for crimes that do not carry mandatory minimums. 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 in Wisconsin must still consult these guidelines and provide reasons for any departures from the recommended sentencing range, whether the departure is upward or downward. This ensures a level of consistency and transparency in federal sentencing, while still allowing for judicial discretion based on the specifics of each case.