When Texas legislator Scott Hochberg sought to ban probation for murder, he was able to get a bill passed preventing juries from recommending probation in murder cases. Judges can still, if prosecutors play along by agreeing not to have jury trials, put people on probation for murder.
If things had to change (there really was no good reason; Rep. Hochberg’s yearning to change the law was reportedly based on one probation decision by a jury with which the representative didn’t agree), this is the opposite of how they should have changed. The Texas Legislature has, once again, taken power out of the hands of the people (juries) and put it in the hands of bureaucrats (prosecutors and judges).
Justice is not something that can be defined by fiat. Justice is a personal moral judgment, and — except for parents trying to imbue their children with morals — no person is competent to tell another what justice is.
If you ask a judge to tell you what justice is, you’re not assured of getting justice. There’s some chance that you’ll get what that judge considers justice, and if you’re lucky it’ll be something you can live with, but there’s no reason to think that a judge has any more of a clue about justice than the man on the street. Judges (especially elected judges, and most especially those elected in partisan elections) aren’t generally selected based on their life experiences and wisdom. In fact, our elected judges are often young and callow, with no life experience beyond the halls of the District Attorney’s office.
Justice is not something that can be legislated. Legislatures are filled with politicians: crooks, addicts, and perverts who have been trying all their lives to prove that they are not crooks, addicts, and perverts by passing draconian laws against other crooks, addicts and perverts (I don’t have anything against crooks, addicts, and perverts; hypocrisy is by far the greater sin). Politicians are the last people we should be expecting to tell us what justice is.
Justice is certainly not susceptible to the paint-by-numbers approach taken by states using sentencing guidelines. No two crimes are identical, no two victims are identical, and no two offenders are identical. Sentencing guidelines may eliminate unwarranted disparities, but they create something far more insidious: unwarranted similarities. Sentencing guidelines promote consistency, but only of the foolish kind.
So, if judges, legislatures, and sentencing commissions are not competent to declare, “this is just!”, how do we achieve justice in the criminal courthouse? We can’t. Because justice is a personal moral judgment, nobody will ever make a justice-decision that everybody else agrees with. We talk about justice in the courthouse, but the very best we can hope for there is that the results thee reflect the community’s sense of justice. Since nobody will ever agree, “this is justice,” the best we can do is approximate, in each case, what the community might consider justice. And that’s why we let juries decide sentences.