A first-time offender with no criminal history receives a three-year mandatory minimum sentence for drug possession because the amount crossed a legislative threshold. The judge calls it unjust but has no discretion. Another person convicted of violent assault receives six months because judicial discretion allowed consideration of rehabilitation prospects and mitigating circumstances. A restorative sentencing circle brings together offender, victim, and community members to craft a sentence focused on repair and accountability rather than incarceration. A victim watches their assailant receive what feels like a lenient sentence and questions whether the system takes their suffering seriously. Sentencing stands at the intersection of competing goals: punishing wrongdoing, deterring future crime, protecting public safety, rehabilitating offenders, and repairing harm. Whether judges should have broad discretion to craft individualized sentences or whether consistency requires legislated minimums and guidelines divides those who trust judicial wisdom from those who see it as the source of arbitrary injustice.
The Case Against Mandatory Minimums and for Judicial Discretion
Advocates argue that mandatory minimum sentences remove the ability to do justice in individual cases. No two offenses are truly identical. Personal circumstances, level of culpability, prospects for rehabilitation, and countless other factors affect what sentence is appropriate, yet mandatory minimums treat all cases reaching certain thresholds identically. A young person coerced into carrying drugs receives the same sentence as an experienced trafficker. Someone with substance addiction gets the same incarceration as someone profiting from others' addiction. From this view, mandatory minimums were political responses to public fear rather than evidence-based policy. They have not reduced crime, have contributed to mass incarceration particularly of marginalized populations, and prevent judges from considering Gladue factors for Indigenous offenders or other circumstances that affect culpability. Judicial discretion, while imperfect, allows sentences tailored to individual circumstances. Restorative approaches that involve victims, offenders, and communities in determining appropriate responses show better outcomes than prescriptive formulas. The solution is eliminating mandatory minimums, expanding judicial discretion, providing sentencing guidelines rather than rigid rules, and supporting alternatives like restorative justice circles that can craft responses impossible within traditional sentencing frameworks.
The Case for Consistency and Limits on Discretion
Others argue that unchecked judicial discretion produced the arbitrary sentencing that mandatory minimums were designed to fix. Without guidelines or minimums, similar cases received wildly different sentences based on which judge heard them. Some judges were lenient to the point of undermining consequences. Others imposed excessive sentences for relatively minor offenses. Mandatory minimums ensure that serious crimes receive serious consequences regardless of which courtroom handles them. They prevent judicial bias, whether conscious or unconscious, from producing disparate sentences based on defendant characteristics rather than offense severity. From this perspective, while mandatory minimums may occasionally produce harsh outcomes in unusual cases, the alternative of returning to completely discretionary sentencing creates more injustice overall. Moreover, restorative justice works for motivated participants with certain offenses but cannot replace traditional sentencing for serious violence, unwilling offenders, or cases where victims want formal consequences rather than circles and dialogue. Public confidence requires that sentences reflect offense seriousness and that similar crimes receive comparable punishment. The solution is not eliminating structure but refining it: sentencing guidelines that provide frameworks while allowing limited departure in truly exceptional cases, maintaining minimums for the most serious offenses, and using restorative approaches as supplements rather than replacements for traditional sentencing.
The Proportionality Problem
Sentencing should be proportionate to offense severity, yet determining proportionality is deeply subjective. Is three years for drug possession proportionate when five years is typical for assault causing bodily harm? Should property crimes receive sentences comparable to violence? How much weight should criminal history carry versus focusing on the current offense? Different judges, jurisdictions, and eras answer these questions differently, creating inconsistencies that undermine both deterrence and fairness. Mandatory minimums attempt to impose proportionality through legislation but often create new disproportionalities when thresholds treat vastly different conduct identically. Meanwhile, proportionality itself conflicts with other sentencing goals. A sentence proportionate to harm may be too short for effective rehabilitation or too long for someone unlikely to reoffend.
The Question
If mandatory minimum sentences prevent judges from considering individual circumstances, does that create injustice in specific cases even if it produces more consistency overall? Can judicial discretion craft appropriate sentences without reintroducing the arbitrary disparities that mandatory minimums were meant to eliminate? And when victims want to see harsh sentences while evidence suggests restorative approaches produce better outcomes, whose conception of justice should sentencing prioritize: those harmed by past crimes or potential future victims whom different approaches might better protect?