There was a time, before legislators reacted to Hollywood movies and began enacting sentencing guidelines and minimum mandatory laws, when Judges could be Judges instead of calculators.
There was a time when Judges like Ed Cowart, Tom Scott, Tom Carney, Herb Klein, David Tobin, were trusted with deciding a sentence. They presided over a case, or listened to the facts of a plea, and based on their legal experience, sentenced a defendant.
Then a few sentences got headlines, a few movies began to show criminals being released from prison and running amok in society, and everyone over-reacted and the legislature placed most of the sentencing power in the hands of a 25-30 year old prosecutor a few years removed from law school. Judges, many of who were practicing law for as long as many of the prosectors appearing before them were alive, were regulated to moderately paid calculators - sorting through the alphabet soup of minimum mandatory sentencing laws (HVO, HO, PERP, WTF, etc) the prosecution refused to waive, totaling points, and imposing sentences without regard to the particular facts of the case.
Rare is the case where a judge has any real discretion.
Rarer is the jurist with the guts to exercise that discretion.
It's easy to sentence a defendant to the maximum prison sentence. It doesn't make headlines in the Herald. Dog bites man.
It's hard to temper justice with mercy. To ignore the bloodlust of prosecutors after a hard fought trial and sentence a defendant to what he or she deserves (in that Judge's opinion) without the fear or the Herald or the dreaded "victim". Man bites dog.
When did "victims", most of whom are not lawyers, take over sentencing?
When politicians took over criminal law.
This is not to disparage the victim of a crime.
But victims are emotionally attached to what happened to them. They mostly cannot see justice, and just want vengeance. And criminal law is supposed to be about justice and not vengeance.
But walk through any criminal court these days and you frequently hear the refrain "The victim wants the MAX" as the prosecutor's explanation as to why they cannot offer a reasonable plea that everyone but the emotionally affected victim knows is correct.
Nobody (successfully) runs for office on the slogan "fair on crime."
Enter Judge Milt Hirsch. Faced with sentencing a 76 year old lawyer with prison, he instead issued a sentence that he thought fair or just.
Judge Hirsch's sentence might be right.
Or it might be wrong.
But on this point there can be no doubt- it's the sentence of a JUDGE. Not a coward. Not a prosecution lackey who's afraid of the Herald and kowtows to victims who are understandably and rightfully upset.
Tough decisions aren't always popular. But this is why we pay Judges those mediocre salaries: to do justice in the face of cries for vengeance.
Sometimes, as Winston Spencer Churchill observed, you need to fight even though you may not win:
“If you will not fight for right when you can easily win without blood shed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves.”
Better to do justice as a Judge, then perish a slave and lackey to prosecutors and negative media.
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