Sentencing: Mandatory and Mandatory Minimum Sentences

Mandatory sentences differ from determinate or guidelines sentences because they include no range of years, however narrow, within which a judge has discretion to set a prison sentence. Upon conviction, the judge is required to set the exact sentence enunciated in the law. This can be a prison term required for committing a particular offense, or it may be an "add on" term of years appended to a normally determined prison term. An example of the former type of mandatory minimum is the common three-strikes law, in which a third felony conviction means that the "three time loser" will automatically be imprisoned for life. State laws vary significantly as to which offenses count as "strikes" and whether parole from a life term is permissible (Clark, Austin, and Henry). An example of an "add-on," or enhancement of the base sentence, is a requirement that a person who has used a gun to commit a felony will receive a prison term for the "predicate" felony, and then have an extra year of prison time added for use of the firearm. Another type of law regarded as mandatory sentencing requires each offender to serve a set percentage—usually 85 percent to 100 percent—of whatever prison term the judge imposed under the existing sentencing law (Ostrom et al.).

The concept of mandatory minima usually refers to prison terms, with the "minimum" understood as referring to months or years of incarceration. However, the approach can also be seen in laws that forbid judges to grant probation, and/or which mandate jail terms. An example is a law from the Northern Territory of Australia requiring judges to send juveniles to jail, forbidding probation or any alternative correctional program, upon conviction for any felony. In March 2000, a report from the United Nations Human Rights Commission stated that mandatory jailing of juveniles violates the Convention on the Rights of the Child. The United States has not signed these international treaties and is thus not bound by them, nor by legal standards in most developed nations, which regard mandatory sentencing as a violation of due process or as punishment disproportionate to the crime.