Restitution, victim rights and judicial activism

Thanks to this post at Crime & Consequences, I see that earlier this week the California Supreme Court ruled in People v. Giordano, S138382 (Cal. Nov. 26, 2007) (available here), that a sentencing judge can order restitution to the spouse of a homicide victim for his or her future economic losses.  The majority opinion includes an effective overview of the evolution of the state’s restitution scheme.  And the lone dissenter, Justice Kennard, indirectly accuses the majority of inappropriate judicial activism based on their personal sympathies for the victim. Here is how the dissent begins:

The majority holds that in a criminal proceeding the sentencing court may order a defendant who has been convicted of a homicide crime to pay the deceased victim’s surviving spouse, as restitution, a portion of the estimated income that the deceased victim would likely have earned.  In the tragic circumstances of this case, that holding is certainly appealing. But the Legislature has established other methods by which a surviving spouse may obtain restitution for loss of economic support resulting from a homicide victim’s death — the surviving spouse may bring a civil wrongful death action (Code Civ. Proc., § 377.60) against the defendant or apply to the state Restitution Fund established for crime victims (Gov. Code, § 13950 et seq.).  A close review of the pertinent legislative scheme reveals several reasons to doubt that the Legislature has, in addition to these two clearly established methods for obtaining restitution for lost support, also authorized sentencing courts to include this category of loss in a direct restitution order.  It seems more likely that the Legislature reasonably decided that the criminal sentencing process is ill suited to making the often exceptionally complex damage calculations that are required.

Because I do not think the term “judicial activism” has any real meaning (and have been particularly troubled by its use as an epithet), I do think the California Supreme Court might be accused in this case of “making policy from the bench.”  Apart from the specific ruling here (which also merits comment), I wonder what commentors think about the concern that the Justice here are letting personal policy views color their legal analysis.