Here is a riddle for the average American: “When is a judge not a judge?” An important first step in solving a riddle is to define terms. What is a judge? Everyone, including a child, knows that a judge is a legal authority in charge of a court trial who determines a criminal’s punishment. A child may substitute “mom” or “dad” for “judge”—but they understand the concept.

A child found guilty by the local parental authority receives a consequence commensurate with the trespass. A 6-year-old child caught raiding the cookie jar before dinner must sit on a chair for five minutes, swinging his young legs in frustration. Imagine the child’s surprise when the parent informs the petty pilferer that sentencing guidelines now require two years on the chair.

A federal judge is not always a judge

The “believe-it-or-not” answer to the riddle is that the law does not allow judges to set punishment for criminals found guilty of certain crimes. The legislature, rather than the judicial system, established a menu called “minimum mandatory sentencing” to replace a judge’s opinion of appropriate punishment. Consistency in sentencing fairness would thus prevail and prove an effective deterrent to the hardened offenders committing society’s worst crimes—assuming they appreciated the opportunity to choose from a crime-and-punishment menu.

The problem was that the unknown (i.e., a particular judge’s mood on a given day in sentencing court”) seemed to be no less a deterrent than the law-by-menu approach. As time went on, the all-encompassing net of the rigid menu pulled in “children”—those first-time offenders deemed guilty if only by proximity, yet blown into prison for a lengthy term by the menu bomb.

Exceptions to minimum mandatory sentencing

In time, the sight of prisons bulging at the seams by mandatory incarcerations inspired enactment of exceptions to the menu-driven sentencing called “safety valves.” The safety valve exceptions allow a judge to impose a sentence below the minimum if five conditions apply to the defendant:

  • A minimal past criminal history record
  • No violence, weapon or threats used during the offense
  • Victim(s) of the crime received no serious injury or fatality
  • Not an organizer or leader of the offense
  • Honestly reveals all knowledge prior to sentencing

The President signed a law for reforms in current federal sentencing and prison practices on Dec. 21, 2018. This “First Step Act” makes a good start; however, critics view it as a patch where the criminal justice system needs new tires.

Those unfairly sentenced to harsh penalties have the right to seek experienced defense counsel. Mandatory sentence reduction may be available through safety valves set up for qualified defendants.