These posts are a great example of why it is necessary for our government to have the system of checks and balances in place that it does. The Legislative and Judicial branches are able to keep each branch "honest", so to speak.
Many times judges are criticized for issuing a sentence the public thinks is too light, or because an acquittal is the verdict in a high profile case. But the public that blasts "activist judges" often, I think, reaches a verdict based on their perceptions (largely arrived at based on media coverage and pre-conceived notions of justice) as opposed to any access they would have had to the evidence, or their knowledge of law.
While I agree that many legislators at the federal level have a knowledge of the law, or are lawyers themselves, most crimes are state ones, and state legislators are much more often laymen. Mine, for example, is an apple orchardist with no legal experience. Nice guy and all, just not the one I would want in the position of tying the hands of a judge with actual, long term legal experience. I just find legislative bodies to be much more reactionary than judges, because they have to be accountable to the popular will whether or not that will is rational or well informed.
I understand your point, I just think we're coming at this issue from different angles.
With all due respect to #3 and #4; most legislators are lawyers and trained in the law; in fact in most jurisdictions; judges are former legislators. Understandably, they have the same prejudices, and are not dealing with individuals. This is why most criminal statutes prescribe a range of sentences or fines, or both. Most read, "a term of not more than x years, or a fine of not more than y dollars." In rare instances for particularly odious crimes, such as common law burglary or murder, there is a minimum sentence. Even then, the judge normally has the authority to suspend all or part of that sentence. Although I have serious problems with the three strikes rule, which I think is abusive; I much prefer the collective judgment of a legislative body elected by the people to determine the range of punishment than a single judge. There is so much disparity in the way judges view crimes, one is basically playing poker with the judicial system, dependent upon the judge he draws to hear his case. Judicial restraint must be left to someone other than the judge himself.
The "Three Strikes" law is a good example of how legislatures have overstepped their bounds in mandatory sentencing. While baseball is a popular and well understood analogy for the masses, and help get politicians re-elected, it is an arbitrary number that is not backed in sociological research. We select and elect judges to do just that: judge. When we remove their discretion, the chances for injustice in each case go up dramatically. I'm not a fan of the legislature regulating judicial discretion in a courtroom any more than I am a fan of their regulating teacher discretion in a classroom. Judges and teachers are the trained, experienced professionals, I say we should let them do their jobs.
I disagree with Post #2. I do not think that the human element can ever be taken out of criminal sentencing. Legislatures can base their decisions on prejudice just as much judges can. Moreover, legislatures are not looking at individual cases of actual people. Instead, they are basing their laws on abstractions and those do not always match up well with reality.
Judges may be prone to bias, but so are legislators. At least judges are trained in the law and are familiar with each particular case. This will allow them to hand down sentences that are more just than cookie cutter sentences set by legislators.
This is a highly charged question capable of a number of interpretations. It is necessary, I think, for there to be some parameters in sentencing which should be binding on judges. Judges are human beings, and have their own bias, points of view, etc. One judge may think a defendant needs only a mild sentence (a moderate fine) whereas another may feel that severe punishment (lengthy jail time) is more appropriate for the same offense. As for the three strike law, this is a matter of legislative intent. It has perhaps been abused, and many judges have felt their hands tied. Even so, no judge should be allowed to substitute his judgement for that of the legislature other than if he determines that the statute is violative of the state or federal constitution. The remedy for an unfair or unjust three strikes law lies with the legislature, not with the bench.
I'm going to agree with Larry. The problem is the disparity of "constituencies". Legislators listen to the voting public. Judges being insulated from the electorate listen to defendant's and their families because those are the individuals who are in court. Most criminal cases are disposed of by guilty pleas and the victims are never present. There is a complacency in courtrooms. Judge shopping, routine crimes, everyone has an excuse, the defendants family is crying, the defendant's children need support, on and on. Policy on sentencing belongs with the legislature. Within that policy the judges have their discretion.