To lack of regard for law is mainly due the existence of crime, for a
perfect respect for law would involve entire obedience to it. Yet crime
continues and from time to time breaks forth to such an extent as
to give ground for a popular impression that it is increasing out
of proportion to our growth as a nation. Now, while it may be fairly
questioned whether there is any actual increase of crime in the United
States, and while, on the contrary, observation would seem to show
an actual decrease, not only in crimes of violence, but in all major
crimes, there nevertheless exists to-day a widespread contempt for the
criminal law which, if it has not already stimulated a general increase
of criminal activity, is likely to do so in the future. This contempt
for the law is founded not only upon actual conditions, but also upon
belief in conditions erroneously supposed to exist, which is fostered by
current literature and by the sensational press.
Thus, as has already been pointed out, while it is popularly believed
that women are almost never convicted of crime, and particularly of
homicide, the fact is, at least in New York County, that a much greater
proportion of women charged with murder are convicted than of men
charged with the same offence. To read the newspapers one would suppose
that the mere fact that the defendant was a female instantly paralyzed
the minds of the jury and reduced them to a state of imbecility. The
inevitable result of this must be to encourage lawlessness among the
lower orders of women and to lead them to look upon arrest as a mere
formality without ultimate significance. The writer recalls trying for
murder a negress who had shot her lover not long after the discharge of
a notorious female defendant in a recent spectacular trial in New York.
When asked why she had killed him she replied:
"Oh, Nan Patterson did it and got off."
This is not offered as a reflection upon the failure of the jury
to reach a verdict in the Patterson case, but as an illuminating
illustration of the concrete and immediate effect of all actual or
supposed failures of justice.
A belief that the course of criminal justice is slow and uncertain, that
the chances are all in favor of the defendant, and that he has but
to resort to technicalities to secure not only indefinite delay but
generally ultimate freedom, breeds an indifference amounting almost to
arrogance among law-breakers, powerful and otherwise, and a painful yet
hopeless conviction among honest men that nothing can prevent the wicked
from flourishing. Honesty seems no longer even a good policy, and
the young business man resorts to sharp practices to get ahead of his
unscrupulous competitor. In some localities the uncertainty and delay
attendant upon the execution of the law is the alleged and maybe
the actual, cause of the community crime of lynching. Even where the
administration of justice is seen at its best many people who have been
wronged believe that there is so little likelihood that the offender
will after all be punished that the cheapest and easiest course is to
let the matter drop. All this gives aid and comfort to the powers of
darkness.
The widespread impression as to the uncertainty of the law is not
entirely a misapprehension. "We have long since passed the period when
it is possible to punish an innocent man. We are now struggling with the
problem whether it is any longer possible to punish the guilty." It is
a melancholy fact that at the present time "penal statutes and procedure
tend more to defeat and retard the ends of justice than to protect the
rights of the accused."
The subject of criminal-law reform is too extensive to be discussed
here even superficially, but historically the explanation of existing
conditions is simple enough. The present overgrown state of the criminal
law is the direct result of our exaggerated regard for personal liberty,
coupled with a wholesale adoption of the technicalities of English law
invented when only such technicalities could stand between the minor
offender and the barbarous punishments of a bygone age. We forget that
the community is composed of individuals, and we tend to disregard its
interests for those of any particular individual who happens to be a
prisoner at the bar. We revolted from England and incidentally from her
system of administering the criminal law, by which the defendant could
have no voice at his own trial, where practically every crime was
punishable with death, and where only the Crown could produce and
examine witnesses. Every one will have to agree that the English system
was very harsh and very unfair indeed. To-day it is better than ours,
simply because its errors have been systematically and wisely corrected,
without diminution in the national respect for law. When we devised our
own system we adopted those humane expedients for evading the law which
were only justified by the existing penalties attached to convictions
for crime,--and then discarded the penalties. We were through with
tyrants once and for all. The Crown had always been opposed to the
defendant and the Crown was a tyrant. We naturally turned with sympathy
towards the prisoner.
We gave him the right of appeal on all matters of law through all the
courts of our States, and even into the courts of the United States,
while we allowed the People no right of appeal at all. If the prisoner
was convicted he could go on and test the case all along the line,--if
he was acquitted the People had to rest satisfied. We stopped the mouth
of the judge and made it illegal for him to "sum up" the case or discuss
the facts to any extent. We clipped the wings of the prosecutor and
allowed him less latitude of expression than an English judge. Then we
gazed on the work of our intellects and said it was good. If an ignorant
jury acquitted a murderer under the eyes of a gagged and helpless judge,
we said that it was all right and that it was better that ninety-nine
guilty men should escape than that one innocent man should be convicted.
Yes, better for whom? If another murderer, about whose guilt the highest
court in one of the States said there was no possible doubt, secured
three new trials and was finally acquitted on the fourth, it merely
demonstrated how perfectly we safeguarded the rights of the individual.
The result is that we have unnecessarily fettered ourselves, have
furnished a multitude of technical avenues of escape to wrong-doers,
and have created a popular contempt for courts of justice, which shows
itself in the sentimental and careless verdicts of juries, in a lack
of public spirit, and in an indisposition to prosecute wrong-doers. In
addition, the impression sought to be conveyed by the yellow press
that our judiciary is corrupt and that money can buy anything--even
justice--leads the jury in many cases to feel that their presence is
merely a formal concession to an archaic procedure and that their oaths
have no real significance.
The community, the "People," have a sufficiently hard task to secure
justice at any criminal trial. On the one hand is the abstract
proposition that the law has been violated, on the other sits a human
being, ofttimes contrite, always an object of pity. He is presumed
innocent, he is to be given the benefit of every reasonable doubt. He
has the right to make his own powerful appeal to the jury and to have
the services of the best lawyer he can secure to sway their emotions
and their sympathies. If the prosecutor resorts to eloquence he is
stigmatized as "over-zealous" and as a "persecutor." If a plainly guilty
defendant be acquitted, not the trampled ideal of justice, but the
vision of a liberated prisoner rejoicing in his freedom hovers in the
talesman's dreams.
So far so good; we can afford to stand by a system which in the long run
has served us fairly well. But an occasional evil, an evil which when
it occurs is productive of great harm and serves to give color to the
popular opinion of criminal law, begins only when the lawyers have had
their opportunity for elocution. At the conclusion of the charge
the defendant's attorney proceeds to put the judge through what is
familiarly known as "a course of sprouts." He makes twenty or thirty
"requests to charge the jury" on the most abstract propositions of law
which his fertile mind can devise,--relevant or irrelevant, applicable
or inapplicable to the facts,--and the judge is compelled to decide
from the bench, without opportunity for reflection, questions which the
attorney has labored upon, perchance, for weeks. If he guesses wrong,
the lawyer "excepts" and the case may be reversed on appeal. This is not
a test of the defendant's guilt or innocence, but a test of the abstract
learning and quickness of the presiding judge.
It is generally believed that appellate courts are prone to reverse
criminal cases on purely technical grounds. Whether this belief be well
founded or ill, its wide acceptance as fact is fertile in bringing the
law into disrepute.* Justice to be effective must be not only sure but
swift. An "iron hand" cannot always compensate for a "leaden heel".
*Cf. "Criminal Law Reform," G.W. Alger, "The Outlook," June, 1907. Also
article having same title in "Moral Overstrain," by same author.
See also, by Hon. C.F. Amidon, "The Quest for Error and the doing of
Justice," 40 American Law Rev. 681, and article on same subject in "The
Outlook" for June, 1906.
It is probably true that in some of the States such a tendency exists
and may result in making the administration of justice a laughing stock,
but it is far from being so in States of the character of New York and
Massachusetts. The Appellate Division, First Department, and Court of
Appeals in New York are distinctly opposed to reversing criminal cases
on technical grounds and are prone to disregard trivial error where
the guilt of the defendant is clear. The writer can recall no recent
criminal case where the district attorney's office has felt aggrieved at
the action of the higher courts, and on the contrary believes that
their action is generally based on broad principles of public policy and
common-sense.
During the year 1905 the district attorney of New York County defended
forty-seven appeals from convictions in criminal cases in the Appellate
Division. Of these convictions only three were reversed. He defended
eighteen in the Court of Appeals, of which only two were reversed. One
of the writer's associates computed that he had secured, during a four
years' term of office, twenty-nine convictions in which appeals had been
taken. Of these but two were reversed, one of them immediately resulting
in the defendant's re-conviction for the same crime. The other is still
pending and the defendant awaiting his trial. Certainly there is little
in the actual figures to give color to the impression that the criminal
profits by mere technicalities on appeal,--at least in New York State.
In nine cases out of ten the reversal of a conviction in a criminal case
is due to the carelessness or inefficiency of the prosecuting officer or
trial judge and not to any inadequacy in our methods of procedure.
Yet the tenth case, the case where the criminal does beat the law by a
technicality, does more harm than can easily be estimated. That is the
one case everybody knows about, the one the papers descant upon, the one
that cheers the heart of the grafter and every criminal who can afford
to pay a lawyer.
Yet the evil influence of the reversal of a conviction on appeal,
however much it is to be deprecated, is as nothing compared with a
deliberate acquittal of a guilty defendant by a reckless, sentimental,
or lawless jury. Few can appreciate as does a prosecutor the actual,
practical and immediate effect of such a spectacle upon those who
witness it.
Two men were seen to enter an empty dwelling-house in the dead of night.
The alarm was given by a watchman near by, and a young police officer,
who had been but seven months on the force, bravely entered the black
and deserted building, searched it from roof to cellar, and found the
marauders locked in one of the rooms. He called upon them to open,
received no reply, yet without hesitation and without knowing what the
consequences to himself might be, smashed in the door and apprehended
the two men. One was found with a large bundle of skeleton keys in his
pocket and several candles, while a partially consumed candle lay
upon the floor. In the police court they pleaded guilty to a charge of
burglary, and were promptly indicted by the grand jury.
At the trial they claimed to have gone into the house to sleep, said
they had found the bunch of keys on the stairs, denied having the
candles at all or that they were in a room on the top story, and
asserted that they were in the entrance hall when arrested.
The story told by the defendants was so utterly ridiculous that one of
the two could not control a grin while giving his version of it on the
witness stand. The writer, who prosecuted the case, regarded the trial
as a mere formality and hardly felt that it was necessary to sum up the
evidence at all.
Imagine his surprise when an intelligent-looking jury acquitted both the
defendants after practically no deliberation. Both had offered to plead
guilty to a slightly lower degree of crime before the case was moved for
trial.
These two defendants, who were neither insane nor degenerates, consorted
with others in Bowery hotels and saloons,--incubators of crime. What
effect could such a performance have upon them and their friends save to
inculcate a belief that they were licensed to commit as many burglaries
as they chose? They had a practical demonstration that the law was "no
good" and the system a failure. If they could beat a case in which they
had already pleaded guilty, what could they not do where the evidence
was less obvious? They were henceforth immune. Who shall say how many
embryonic law-breakers took courage at the story and started upon an
experimental attempt at crime?
The news of such an acquittal must instantly have been carried to the
Tombs, where every other guilty prisoner took heart and prepared anew
his defence. Those about to plead guilty and throw themselves upon
the mercy of the court abandoned their honest purpose and devised some
perjury instead. Criminals almost persuaded that honesty was the best
policy changed their minds. The barometer of crime swung its needle from
"stormy" to "fair."
But apart from the law-breakers consider the effect of such a
miscarriage of justice upon a young, honest and zealous officer. First,
all his good work, his bravery, his conscientious effort at safeguarding
the sleeping public had been disregarded, tossed aside with a sneer,
and had gone for naught. The jury had stamped his story as a lie and
stigmatized him, by their action, as a perjurer. They had chosen two
professional criminals as better men. His whole conduct of the case
instead of being commended as meritorious had resulted in a solemn
public declaration that he was not worthy of credence and that he had
attempted wilfully to railroad to State's prison two innocent men. In
other words, that he ought to be there himself. What was the use of
trying to do good work any longer? He might just as well loiter in
an area on a barrel and smoke a furtive cigar when he ought to be
"on post." Perhaps he might better "stand in" with those who would
inevitably be preferred to him by a jury of their peers.
What must have been the effect on the court officers, the witnesses, the
defendants out on bail, the complainants, the spectators? That the whole
business was nonsense and rot! That the jury system was ridiculous. That
the jurymen were either crooks or fools. That the only people who were
not insulted and sneered at were the lawbreakers themselves. That if two
such rogues were to be set free all the other jailbirds might as well
be let go. That an honest man could whistle for his justice and might
better straightway put on his hat and go home. That the only way to
punish a criminal was to punish him yourself--kill him if you got the
chance or get the crowd to lynch him. That if a thief stole from you
the shrewdest thing to do was to induce him as a set-off to give you the
proceeds of his next thieving. That it was humiliating to live in a town
where a self-confessed rascal could snap his fingers at the law and go
unwhipped of justice.
The jury's action must have been due either to a wilful disregard of
their oath or an entire misconception of it. Assuming that the jury
deliberately declined to obey the law, the whole twelve elected
to become, and thereby did become, lawbreakers. They disqualified
themselves forever as talesmen. No prosecutor in his senses would move
a case before a jury which numbered any one of them. They had arraigned
themselves upon the side, and under the standard, of crime. They became
accessories after the fact. If on the other hand they misconceived the
purpose for which they were there the performance was a shocking example
of what is possible under present conditions.
Just as there are three general classes of wrongs, so there are three
general and varyingly effective forms of restraint against their
perpetration. First there is the moral control exerted by what is
ordinarily called conscience, secondly there is the restraint which
arises out of the apprehension that the commission of a tort will be
followed by a judgment for damages in a civil court, and lastly there
is the restraint imposed by the criminal law. All these play their part,
separately or in conjunction. For some men conscience is a sufficient
barrier to crime or to those acts which, while equally reprehensible,
are not technically criminal; for others the possibility of pecuniary
loss is enough to keep them in the straight and narrow way; but for a
large proportion of the community the fear of criminal prosecution,
with implied disgrace and ignominy, forfeiture of citizenship, and
confinement in a common jail is about the only conclusive reason for
doing unto others as they would the others should do unto them. Were
the criminal law done away with in our present state of civilization,
religion, ethics and civil procedure would be absolutely inefficacious
to prevent anarchy. It is as imperative to the ordinary citizen to know
that if he steals he will be locked up as it is for the child to know
that if he puts his hand into the fire it will be burned. The acquittal
of every thief breeds another, and the unpunished murder is an incentive
for a dozen similar homicides.
Crimes are either deliberate or the result of accident or impulse. The
last class may rise to a high degree of enormity, such as manslaughter,
but these crimes are rarely possible of restraint. The perpetrator
does not stop to consider, even if he be sober enough to think at all,
whether his act be moral, whether it will entail any civil liability, or
what will be its consequences, if it be a crime. So far as such acts
are concerned those who commit them are hardly criminals in the ordinary
sense, and no influence in the world is able to prevent them.
The question is how far these different kinds of restraint operate upon
the community as a whole in the prevention of deliberate crime. Clearly
the fear of pecuniary loss through actions brought to judgment in the
civil courts is practically nil. Most persons who set out to commit
crime have no bank account, the absence of one being generally what
leads them into a criminal career.
The writer has no intention of attempting to discuss or estimate the
efficacy of religion or ethics as restraining influences. A certain
limited proportion of the community would not commit crime under any
circumstances. It is enough for them that the act is forbidden by the
State even if it be not really wrong from their own personal point of
view. Side by side with these very good people are a very large number
who wear just as fashionable clothing, have the same friends, attend
the same churches, but who would commit almost any crime so long as they
were sure of not being caught. If we had no criminal law we should soon
discover who were the hypocrites.
But for an overwhelming majority of the community something more
practical than either religion, ethics, or philosophy is necessary to
keep them in order. They must be convinced that the transgressor will
surely be punished,--not some time, not next year or the year after, but
now. Not, moreover, that his way will be merely hard; but that he will
be put in stripes and made to break stones.
Hence the necessity for a vigorous and adequate criminal law and
procedure which shall command the respect and loyalty of the community,
administered by a fearless judiciary who will hold jurors to a rigid and
conscientious obedience to their oath.
There is nothing sacred about an archaic criminal procedure which in
some respects is less devised for the protection of the community than
for the exculpation of the guilty. The portals of liberty would not
fall down or the framers of the constitution turn in their graves if the
peremptory challenges allowed to both sides in the selection of a jury
were reduced to a reasonable number, or if persons found guilty of crime
after due process of law were compelled to stay in jail until their
appeals were decided, instead of walking the streets free as air under
a certificate of "reasonable doubt" issued by some judge who personally
knew nothing of the actual trial of the case. As things stand to-day, a
thief caught in the very act of picking a pocket in the night-time may
challenge arbitrarily the twenty most intelligent talesmen called to sit
as jurors in his case. Does such a practice make for justice? It is
even possible that the sacred bird of liberty would not scream if eleven
jurors, instead of twelve, were permitted to convict a defendant or set
him free, while the question of how far the right of appeal in criminal
cases might properly be limited or, in default of such limitation, how
far under certain conditions it might be correspondingly extended to the
community, is by no means purely academic.* It is also conceivable
that some means might be found to do away with the interminable
technicalities which can now be interposed on behalf of the accused to
prevent trials or the infliction of sentence after conviction.
* "Limitation of the Right of Appeal in Criminal Cases," by Nathan A.
Smythe, 17 Harvard Law Rev. 317 (1905).
Yet these considerations are of slight moment in contrast to that most
crying of all present abuses,--the domination of the court-room by the
press.* It is no fiction to say that in many cases the actual trial is
conducted in the columns of yellow journals and the defendant acquitted
or convicted purely in accordance with an "editorial policy." Judges,
jurors, and attorneys are caricatured and flouted. There is no evidence,
how ever incompetent, improper, or prejudicial to either side, excluded
by the judge in a court of criminal justice, that is not deliberately
thrust under the noses of the jury in flaring letters of red or purple
the moment they leave the court-room. The judge may charge one way in
accordance with the law of the land, while the editor charges the same
jury in double-leaded paragraphs with what "unwritten" law may best
suit the owner of his conscience and his pen. "Contempt of court" in
its original significance is something known today only to the reader of
text books.**
*Cf. "Sensational Journalism and the Law," in "Moral Overstrain," by
G.W. Alger.
**By the New York Penal Code section 143, an editor is only guilty of
contempt of court (a misdemeanor) if he publishes "a false or grossly
inaccurate report" of its proceedings. The most insidious, dangerous,
offensive and prejudicial matter spread broadcast by the daily press
does not relate to actual trials at all, but to matters entirely
outside the record, such as what certain witnesses of either side could
establish were they available, the "real" past and character of the
defendant, etc. The New York Courts, under the present statute, are
powerless to prevent this abuse. In Massachusetts half a dozen of our
principal editors and "special writers" would have been locked up long
ago to the betterment of the community and to the increase of respect
for our courts of justice.
Each State has its own particular problem to face, but ultimately the
question is a national one. Lack of respect for law is characteristic
of the American people as a whole. Until we acquire a vastly increased
sense of civic duty we should not complain that crime is increasing
or the law ineffective. It would be a most excellent thing for an
association of our leading citizens to interest itself in criminal-law
reform and demand and secure the passage of new and effective
legislation, but it would accomplish little if its individual members
continued to evade jury service and left their most important duty to
those least qualified by education or experience to perform.* It would
serve some of this class of reformers right, if one day, when after a
life-time of evasion, they perchance came to be tried by a jury of their
peers, they should find that among their twelve judges there was not one
who could read or write the English language with accuracy and that all
were ready to convict anybody because he lived in a brown-stone front.
*"The Citizen and the Jury," in "Moral Overstrain," by G.W. Alger.
Merchants, who in return for a larger possible restitution habitually
compound felonies by tacitly agreeing not to prosecute those who have
defrauded them, have no right to complain because juries acquit the
offenders whom they finally decide it to be worth their while to pursue.
The voter who has not the courage to insist that hypocritical laws
should be wiped from the statute books should express no surprise when
juries refuse to convict those who violate them. The man who perjures
himself to escape his taxes has no right to expect that his fellow
citizens are going to place a higher value upon an oath than he.