from the presumptive sentence. The judge must indicate which aggravating factors (factors indicating the 
offender or offense is worse than other similar crimes) or mitigating factors (factors indicating the offender 
or offense is less serious than other similar crimes). The Sentencing Reform Act of 1984 (18 U.S. C.A. §§ 
3551 et. seq. 28 U.S.C.A. §§991-998) first established federal sentencing guidelines. The Act applied to all 
crimes committed after November 1, 1987, and its purpose was “to establish sentencing policies and practices 
for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines 
prescribing the appropriate sentences for offenders convicted of federal crimes.” Scheb, at 681. It created 
the United States Sentencing Guideline Commission and gave it the authority to create the guidelines. The 
Commission dramatically reduced the discretion of federal judges by establishing a narrow sentencing range 
and required that judges who departed from the ranges state in writing their reason for doing so. The Act 
also established an appellate review of federal sentences and abolished the U.S. Parole Commission. 
Most states have adopted some version of sentencing guidelines, from the very simple to the very complex, 
and many states restrict their guidelines to felonies. Although limiting judicial discretion, state sentencing 
guideline schemes all allow some wiggle room if the judge finds that the case differs from the run of the 
mill case. In a series of cases, the Court has found that federal and state sentencing guidelines schemes that 
do not require the jury to make findings of aggravating factors which justify a harsher sentence imposed 
by the judge violate the defendant’s right to a jury trial (found in the Sixth Amendment). See, Apprendi 
v. New Jersey, 530 U.S. 466 (2000); United States v. Booker-United States v. Fanfan, 543 U.S. 220 (2005); 
Blakeley v. Washington, 542 U.S. 296 (2004). Accordingly, some of the sentencing guideline schemes have 
been invalidated and some modified. 
“There is still considerable uncertainty about the efficacy of sentencing guidelines. There is evidence 
that they have reduced sentencing disparities but they clearly have not eliminated this problem altogether. 
There is also concern that sentencing guidelines have promoted higher incarceration rates and have thus 
contributed to the problem of prison overcrowding. It is fair to say that to be successful, sentencing 
guidelines must be accompanied by policies designed to effectively manage prison populations.” 
1 
Controversial Issue: Mandatory Minimum Sentences 
Legislative enactments, ballot measures, initiatives, and referendums have resulted in mandatory 
minimum sentences schemes in which offenders who commit certain crimes must be sentenced to prison 
terms for minimum periods. Mandatory minimum sentences take precedence over but do not completely 
replace, whatever other statutory or administrative sentencing guidelines may be in place. It is possible for 
a judge to impose a sentence that exceeds the mandatory minimum on an offender who, because of his or 
her extensive criminal history or particular brutality of the crime, warrants a particularly harsh guideline 
sentence. 
Mandatory minimum sentences are a type of determinate sentence. Most mandatory minimum sentences 
are for violent offenses or those involving the use of firearms. Federal law also mandates minimum prison 
terms for serious drug crimes prosecuted in federal courts. For example, a person charged with possession 
1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 683). Belmont, CA: Cengage. 
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