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 Virginia, as in many states, the criminal justice system has been influenced by the implementation of mandatory minimum sentences for certain offenses. These laws require judges to impose a predetermined minimum period of incarceration for specific crimes, most notably drug offenses, but also for certain gun, pornography, and economic crimes. This limits judicial discretion by setting a floor for sentencing. However, judges in Virginia still retain some discretion in sentencing 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 must still consider them and provide an explanation for any deviation from the suggested sentencing range, whether it is an upward or downward departure. This ensures that while judges have discretion, there is a degree of consistency and rationale in federal sentencing.