CHANGING THE GRAND JURY INTO A BUREAU OF CRIMINAL EXPERTS
A New Classification of Criminals
There has been a growing feeling on the part of judges, lawyers and
others who are directly concerned in the practice of law in our criminal
Courts, not only in this county, but in many parts of the land, that the
grand jury system has become so antiquated and ineffective in its
practical workings, that it should be abolished and a more modern system
put in its place.
In this city at various times during the past few years several of our
General Sessions judges, notably Judges Foster, Rosalsky and others,
when charging grand juries at the opening of terms, have warned that
body against finding indictments against individuals unless they are
grounded on legal evidence. Such labors simply put the county to a
needless expense and the unfortunate defendants to much inconvenience.
And even the past year almost every Presiding Judge of General Sessions
when charging the grand jury at the beginning of the term has taken
pains to inform the body that under no circumstances must they find
indictments against persons charged with crime except on legal evidence.
Judge Warren W. Foster, one of the best and fairest of our criminal
judges, is especially outspoken against this habit of finding
indictments against persons charged with crime on illegal evidence. On a
recent occasion Judge Foster took occasion to thank the grand jury for
the caution they exercised during the month in refusing to indict
persons except on sufficient grounds.
In charging another Grand Jury the Judge said in part:
“A friend of mine who has served frequently on the Grand Jury, and who
is a prominent business man in this city, said to me: ‘The more I see of
grand juries the more I think it is an antiquated humbug. It is but clay
in the hands of the District Attorney to indict whomsoever he wants to
and to dismiss any charge he wants to dismiss.’”
“A great many people believe that the Grand Jury is a panacea for all
the ills of our body politic. If the Police Department is short of men
go to the Grand Jury. If we want a new Court House go to the Grand Jury
and if we can’t compel them to build one file a presentment on the
subject. The Grand Jury’s duty is clearly defined, and you are not to
find indictments except on evidence properly presented to you.”
All this shows that there is considerable feeling abroad against the
Grand Jury system and some of our best thinkers believe it should be
abolished and something more modern put in its place.
More than once I have sat in Part I, General Sessions, and have watched
the Grand Jury file into court, and hand to the Judge on an average from
ten to thirty indictments, which was the work of a morning sitting,
consisting of about two hours.
Sometimes the morning has been spent in finding only five indictments,
but as a rule the work is rushed and only a few minutes given to each
case. There is no law as to how much time the Grand Jury shall spend on
each case. While I have been amazed at the rapidity of their work, I
have been more astonished at the superficial character of the work. It
will be readily seen that the Grand Jury has not the time in two hours
to examine even five complaints and do justice to each defendant, much
less thirty, especially when we remember that these indictments are to
brand with crime certain ones for life.
We have no complaint against the Grand Jury. They are usually an
intelligent and upright body of men. But when they are in consultation
with the District Attorney they simply do what he tells them, without
knowing whether their acts are just or not.
That this reform of the Code of Criminal Procedure may be productive of
much good I would recommend,
1. _The abolition of the Grand Jury as an antiquated system._
I admit that the suggestion is somewhat radical, but for that matter all
reforms are radical that overthrow old systems, and are as a rule
bitterly opposed by conservative people.
The body known as the Grand Jury has come down to us through many
generations. But it may be well to know that the Grand Jury system is
not an absolute necessity. At the present moment it is nothing less than
_the appendix vermiformus_ of the District Attorney’s office. And as it
needs heroic treatment, it should be abolished without delay. The remedy
is excision.
In some countries, for example, like Scotland, there is no Grand Jury.
The work of preparing indictments against lawbreakers is done by a paid
official called the Procurator-Fiscal. He and his assistants make a
thorough investigation of every person against whom criminal charges are
laid, and if found that there is just cause for such action the accused
is then proceeded against in the criminal courts. If not, that is the
end of it and the county is spared the expense of further litigation.
In various States, grand juries are usually made up of rich men—owners
of real estate and persons of large means and business interests.
Whatever else the Grand Jury is, it certainly is not a representative
body. The poor man, no matter how good or intelligent he may be, is not
allowed to sit with them, nor has he any say in their deliberations.
They are composed of active or retired but wealthy business men, and
apparently have no real sympathy with the common people. Some Grand
Juries were ready to indict labor leaders, no doubt at the request of
the District Attorney, but when the case against the ice grafters came
up, Judge Rosalsky had to call special attention before anything was
done. But this should not be. Independent of the action of the District
Attorney, they might have indicted many of the rich thieves that stole
millions from the street railroads of New York, and without the aid of
the District Attorney they might have indicted several rich Insurance
grafters and took pains to see that they were sent to jail for stealing
the people’s money. Such action would have commended the Grand Jury to
the people. During the McClellan administration some of his own probers
have shown that many Tammany office holders have stolen thousands, if
not millions of dollars from the city. But neither Mr. McClellan nor Mr.
Jerome have taken sweet counsel together to send the grafters to jail.
The Grand Jury could have made an original investigation without the aid
of the District Attorney and indicted them one and all for grand
larceny. It would have looked better if Mr. Jerome had refused to allow
any of his assistants to be made Magistrates by the Mayor. In all this
the people have wondered why the Public Prosecutor did not send the
grafters to jail.
That in the interest of justice the Grand Jury should be abolished and
the work it does at present given to a Board of Criminal Experts with
enlarged powers. I also affirm that the Grand Jury is no more necessary
to the administration of the criminal law in our day than the feudal
barons of ten centuries ago or that a canal boat should take the place
of our Hudson River steamboats.
At the present moment the District Attorney stands at the door of the
Grand Jury room. He holds the key and practically controls it. The Grand
Jury spends about two hours a day attending to whatever public business
the District Attorney lays before them.
In some states any one suspected of a crime may go before the Grand Jury
and present his side of the case. In this state it is not the practice.
In a large number of cases men have been indicted without their
knowledge, and were compelled to fight for their rights in the Courts,
so as to be free from the stain that rested on them. In New York County
if the District Attorney sees fit he may permit a single Policeman or
other person, to go before the Grand Jury and give a one-sided opinion
as to the guilt of some person charged with crime, although he may not
possess one particle of legal evidence. If the Grand Jury were
abolished, a Board of criminal experts could make a thorough
investigation of all charges brought against people, and in all
likelihood would give them an opportunity to be heard in their own
behalf before they were branded as felons. And this is only right.
Only a few years ago the editor of a small monthly paper in this city
was promptly indicted by the Grand Jury for libel for exposing the
rascality of Insurance grafters, a work which Governor Hughes has since
done legally before the Assembly Investigating Committee. At the time we
mention when the insurance grafters were cut to the heart by the
trenchant articles that exposed their conduct to public scorn, they went
before the Grand Jury and charged this Insurance man with libel. They
were permitted to tell a one-sided story to the Grand Jury, so as to
silence this critic. Of course he was not allowed to make any reply till
after he was brought into Court and branded as a felon. The indictment
was afterwards quashed and he received some damages.
And this is but a fair sample of how hundreds of men have been ruined by
such unjust methods. In this case the Grand Jury simply did what they
were told to do by the District Attorney, he having been wrongly
informed by the insurance grafters.
Board of Criminal Experts
Under a paid Board of Criminal Experts, sitting daily from 10 a. m. till
5 p. m., and who are there to investigate, sift and go to the bottom of
things generally, the rich and the poor would have a better chance of
receiving justice meted out to them.
A very common opinion, which is gaining ground every day, and which is
in some respects true, is that big criminals go unpunished, while others
who are lawfully convicted of crime command such influence with the
courts or high political powers that they are able to obtain their
freedom by parole or pardon or get off with a very light sentence.
Others, after being lawfully convicted, are able to cheat the prison,
provided they have money to fight their case in the higher courts and
thus obtain a new trial which in the end means an acquittal. All this
tends to bring contempt on our courts and occasionally invites the
people to take the law into their own hands. We have too many
indictments to-day and too few convictions. Millions of dollars of the
people’s money are often wasted on cases where there is no chance of
conviction. The courts are cumbered with hundreds of cases of men and
women that should never have been indicted.
A study of the statistics of convictions in proportion to the number of
arrests and of convictions in proportion to defective indictments which
have to be set aside, and, finally, the proportion of the convicted that
finally go to prison, would prove most interesting.
When Mr. Jerome became District Attorney of New York County on the first
of January, 1902, there were 640 untried indictments awaiting action at
his hands. During his first four years in office he laid before the
Grand Jury 20,228 complaints, but they granted only 15,937 indictments.
As a result 4,291 complaints were thrown out of Court without any trial.
Then of the 15,937 cases that went to trial, 6,150 were acquitted for
lack of evidence and other technical reasons, making a grand total of
10,641 cases that were nullified by the Courts for want of legal
evidence to convict.
Of the 9,787 so-called convictions, only about a third were convicted
after a trial, the other defendants accepted pleas to lower offences,
and given that alternative simply because the District Attorney feared
that if they went to trial he would be unable to convict them.
In the Report of the Chief Clerk of the District Attorney’s Office,
which is brought down to the close of 1908, there is no mention of the
number of indictments secured by the Grand Jury last year, but it must
have been three times the number of the convictions, which was 7,877 and
then we must remember that by far the larger number of convictions were
secured by giving the prisoner a plea to a lesser offence. As a rule
when the Public Prosecutor permits a man to take a lower plea it shows
that the case against him is poor.
There is no way to ascertain the number of innocent persons indicted,
but if my judgment is correct the total is not small. How could it be
otherwise, when the Grand Jury goes through its business in such a
hurry. It should be observed also that the Grand Jurors themselves are
not competent authorities in criminal law, and when efficiency in the
work of prosecution is measured rather by the total number of persons
indicted than by the percentage of those sent to prison, the weakness of
the system becomes apparent.
The fault does not lie with the Grand Jury or with the District
Attorney; it is with the system. The Grand Jury simply does as did other
grand juries and the District Attorney does as did his predecessors.
To show that the Grand Jury as now constituted is unqualified to find
indictments in a large number of crimes, I need only mention three cases
which must have cost the County of New York in the neighborhood of
millions of dollars, which if they had come originally before a Board of
Criminal Experts, certainly never would have gone to trial on the weak
indictments that sent all of the three defendants to the Death House.
The first was that of Maria Barberi, who was convicted of the murder of
her sweetheart, Dominico Catalonica, July, 1895.
Catalonica had greatly wronged this woman, and then refused to marry
her. While suffering under great mental excitement, after she found
herself ruined and disgraced, and forever cast aside, she killed him.
Although insane when she committed the deed, she nevertheless was tried
and convicted and sentenced to the Electric Chair, but the Court of
Appeals gave her a new trial. When all the facts came out at the second
trial, she was justly acquitted.
The second case was that of Roland B. Molineux. He was indicted for the
murder of Mrs. Adams in 1899. A board of trained experts, having two
lawyers and physicians never would have convicted him, as there was no
legal evidence to convict him of such a crime. He was convicted mainly
on the evidence of _paid_ handwriting experts. Doubtless, a hundred
other persons might have been indicted for the same offense. At the
second trial he was acquitted.
The third case was that of Albert T. Patrick, who was jointly indicted
with Jones for the murder of William M. Rice. This is said to have been
one of the strangest criminal cases that ever was tried in a Court of
Justice. Nothing was done until Jones turned State’s evidence; then he
said that he killed Millionaire Rice at the suggestion of Patrick, with
chloroform. Patrick was convicted of murder in the first degree, and
Jones allowed to go scot free. Since then, nine hundred reputable
physicians have come forward and said in a petition to Governor Higgins
for a pardon that Rice could not have been killed with chloroform. After
being four years in the Death House, the Governor commuted Patrick’s
sentence to life imprisonment.
If Patrick’s case had been carefully examined by a Board of Criminal
Experts, he never would have been indicted, and the county would have
been saved a vast amount of money, and needless trouble.
My plan is that a Board of Criminal Experts be organized and assume all
the present powers of the Grand Jury, and in addition, classify all
criminals; this board to consist of five persons—two experienced
lawyers, two physicians or alienists and one business man. These five
men should pass upon criminal matters, and when they find an indictment,
give the proper classification to the accused.
How I Would Classify Criminals
As far as we know, there is no systematic classification of criminals in
any State. For the sake of facilitating the work of the courts and
saving much time, we would recommend the following classification, which
is entirely original, never having seen anything like it before:
It is under four general heads, viz.:
(1) The insane, (2) the mental and industrial illiterate, (3) the born
criminal, and (4) the victim of circumstances. I have not used the word
dependent in this classification, as it is too indefinite. An insane
person or a pauper or a cripple may be dependent according to some
classifiers. I prefer to use my own division under the four heads into
which all criminals may readily be placed.
If this Board of Experts finds that the accused is or was really insane
or mentally unbalanced when the crime was committed, it should recommend
to the Court without delay, so as to save time and expense, that the
person be sent to an asylum or sanitarium for treatment, and kept there
until entirely cured.
In case the prisoner recovers his sanity, he should be returned and
re-examined by the Board. They have all the records before them, and all
the facts in his case, and after considering them carefully, could
recommend his discharge, or, if they think best, put him on trial.
Second: If the Board finds that the wrongdoer belongs to the second
class; that he is illiterate and has no trade, or that he is a lazy and
good for nothing idler, preying upon his fellow men for a living, or
that he is tainted with some physical malady, or is suffering from
tubercular trouble, epilepsy, dipsomania, or indeed, any progressive
disorder, then the Board can recommend to the Court that such a one is a
fit subject for Elmira Reformatory, or some other institution of a
similar character, where he will receive mental, moral and industrial
training, besides medical treatment, and be discharged only when cured
of his delusions, and fit afterward to live as an honest and law-abiding
citizen. There are hundreds of industrial and mental illiterates that
pass through our courts every year—young men who never learned a trade,
and can hardly write their own names. The only way to save them from
criminal lives is to educate them, and turn them out of prison when
cured. It is a waste of time and money to send such persons to State
prison or penitentiary, as more than 50 per cent. return again, after a
brief season of liberty, confirmed criminals. Many of our prisons
receive yearly as high as 82 per cent. of first offenders who have no
trade.
Third: It is a well known fact that more than half our criminal
population are recidivists or backsliders in crime. A great wrong is
committed on the community when we send a criminal away for a definite
period, and afterward turn him loose upon the community. If the offender
is known as a rounder, or habitual criminal, by all means send him to a
prison colony and keep him there for the remainder of his life, or till
cured. Our criminal population grows yearly, and we are compelled to
build new prisons and reformatories, simply because our penalogical
ideas are impracticable, if not archaic. Not only are we making no
progress, but some kinds of crime are alarmingly on the increase.
I do not regard the habitual criminal as beyond the hope of reformation.
I believe there is a tender chord in his heart that can be touched, if
we go about it in the right way.
But it is an outrage to turn such a man out of prison or penitentiary,
after a limited term of confinement, without a home to go to, or a place
to work. If they know him, they will not receive him, nor give him
employment. And the police will arrest him on sight as a suspicious
character, and railroad him back to prison. The State should provide
employment, and a home for such a person until he gets on his feet
again, or keep him in jail.
The fourth and last mentioned in this classification is the criminal of
circumstances. This man may have snatched a pocketbook from the hand of
a lady, or stolen a loaf of bread when his wife was sick at home, and
his children crying for food. Such a person should not be branded as a
criminal. He should be paroled on his good behavior. To send such a
person to prison is simply to make a criminal of him.
Our State has been in the business of punishing criminals for more than
a hundred years, during which time millions of dollars have been wasted.
Let us try classification, then endeavor to cure criminals or restrain
them till they are fit to associate with the law-abiding people of the
Nation. This is real prison reform.
I think that such a Board of Criminal Experts as suggested here would
have fewer indictments, but more convictions. And we would need fewer
jails and Courts of Justice. We would save the taxpayers millions of
dollars yearly, but immeasurably more important than all these, we would
come nearer to doing justice to all men, and the rights of the people
would be more justly safeguarded than they are to-day.
(Since I first recommended the abolition of the Grand Jury in an
article of mine that appeared in the New York Press of March,
1906, and later in Van Norden’s Magazine, to whom I give due
credit, other reformers have spoken on the same subject, but
have made no mention of the one who first called attention to
the matter, which is manifestly unfair.)
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