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 West Virginia, as in other states, the criminal justice system has historically granted judges the discretion to consider a wide range of factors when determining sentences for convicted defendants. However, both federal law and some state statutes have introduced mandatory minimum sentences for certain offenses, which limit judicial discretion by setting fixed penalties that must be imposed for specific crimes. These crimes often include drug offenses, as well as certain gun, pornography, and economic crimes. At the federal level, the Federal Sentencing Guidelines provide a framework for sentencing consistency across the federal court system. While these guidelines are advisory rather than mandatory, federal judges are required to consider them and must justify any deviations from the recommended sentencing range, whether the deviation is an upward or downward departure. West Virginia state courts must also adhere to any applicable state statutes that prescribe mandatory minimum sentences for particular offenses.