The tension between the State and the Judiciary may never be better demonstrated than over this issue. As designed, the State writes and codifies laws and regulations. The Judiciary are to implement the State’s positions but with the leeway of interpretation and more broad based considerations regarding the umbrella of constitutions, human rights and sometimes the application of general judicial principles and the accepted rules of evidence and precedent law.
The people, through election and petition, identify issues, desired actions, and outcomes which those elected then enact into law. The courts apply these laws and may interpret their application as they hear cases argued by both prosecution and defence. Neither side gets to hold absolute sway but often the party least heard is the electorate, the folks our legal system is designed to serve and protect, particularly in matters of criminal law.
Ask the lay public, in general conversation, about their trust and certainty in the system that serves and protects. Those never encountering the system may have an ambivalence that in general principal believes in the rule of law and of necessity agrees that it must be working. A majority of those needing a resolution of service and protection from the system would not so agreeably vote that the system works. Instead they would report a system incapable of making the differences that meet the definition of public safety and justice.
We now have a judiciary and legal counsels kicking out prosecutions entirely on an expectation of speedy trials unmet, and throwing the fault almost entirely on governments for failures to fund the system. Keep in mind that this system of courts and justice hold seriously their requirement of independent rule and procedure setting, arms length operation, and non-interference by governments. A serious question may be posed as to who holds the majority share of a now dysfunctional system because governments don’t operate our court systems. More importantly they frequently struggle to have legislations intent implemented by keep your hands off our turf legalists.
Most of the world we might count as similar in foundation and societal order find themselves in the same legal quagmire. The hair splitting of precedent law, the rights of all accused but none harmed, technology and evidentiary rules, the gamesmanship and procedural obstructions that carry no real prosecution or defence function but simply exist as tactic, and the bargaining and barter entered into as efficiencies, but are really the brass ring grabbed by system savvy accused and counsel. This is the same brass ring generally unavailable to those who have no experience and expertise in massaging the system.
The social contracts necessary to live together are the rules that make life functional for individuals in their daily lives. They are the ones that write these contracts. The government, the concentrated essence of the people, codifies these contracts in law and regulation. The courts implement these laws. The courts are not the arbiters of social policy implemented under the guise of judicial interpretation.
The adoption of a few global initiatives: human rights, gender equality, discrimination and the freedom of people rather than the dictates of government and ideology have proliferated as though everyone is thoroughly versed, knowledgeable and capable of applying their judgement to implementations and violations in the world. In this narrowness, people are demanding that all authority must bend a knee before these new gods.
Mandatory minimums are a response to a system not working. They are a signal that people require safety and resolution. They are a requirement that cautions and warnings should be heeded because consequences are almost never negotiable by the grieved and harmed parties; and therefore should not be negotiable with the party causing the harm just because your life may have disadvantages and you choose to ignore cautions.
The unfairness is not in those insisting that contracts cannot be ignored, broken and abused to the hazard of many. The unfairness is those who insist that the consequences of contracts must be nullified as the only path to a loving, caring, inclusive society.