CRIMINAL PROCEDURE
The American system of criminal procedure rests on the principle
that the government should decide on the propriety of beginning
all prosecutions, and then should bring and maintain, at its own
expense, such as it may deem proper.
The first step ordinarily is the filing by an informing officer
of a written complaint in the office of some court or with some
magistrate, upon which a warrant of arrest issues as of course.
In some jurisdictions original informations in a trial court, as
distinguished from indictments, can only be filed by leave of
court first obtained. Such is the rule in the courts of the
United States.[Footnote: United States _v._ Smith, 40
Federal Reporter, 755.]
There is no such preliminary consultation with judicial officers
as characterizes European criminal procedure. The prosecuting
officer assumes the entire responsibility of initiating the
prosecution and of giving it the particular form that it may
assume. He commonly acts only on such matters as are officially
brought to his attention by constables or other officers of
police. It is rare that the party injured by an offense
complains to him personally. Hence many of the lesser offences
go unpunished, particularly in large cities, because the police
fail to report them, on account of favoritism or corruption.
The warrant refers to the complaint for its support. Between
them, the offense charged, the person accused, and the thing to
be done by the officer who is to make service must be
particularly stated. "General warrants," that is, warrants of
arrest or seizure, not specifying the person who is to be
arrested, nor the particular place where the seizure is to be
made, are expressly forbidden by the fourth amendment of the
Constitution of the United States as respects federal courts, and
as respects those of the States, are generally prohibited by
their Constitutions.
Any private individual may, by night or day, arrest without
warrant one whom he sees committing a felony or a breach of the
peace or running off with goods which he has stolen. If he knows
that a felony has been committed and has reasonable grounds for
suspecting that it was the act of a certain person, he may arrest
the latter, although without personal knowledge of his guilt.
A sheriff, constable, or other peace officer may arrest without
warrant any one whom he has reasonable ground for suspecting to
be guilty of a felony, although it may turn out that no such
felony was ever committed. For any ordinary misdemeanor he could
not, at common law, arrest without a warrant, unless he
personally witnessed the wrongful act or was near enough to hear
sounds indicating what was being done.
In practice, officers of local police arrest freely on mere
suspicion and with no personal knowledge either that any offense
has been committed or that, if any, the person taken in charge
was connected with it. The only risk which they run is of an
action for damages, and that is slight. If one were brought and
they showed that they acted in good faith and not wholly without
cause, the amount recovered would probably be very small, and in
any case it would be difficult to collect a judgment against one
of them, as they are generally men of small means.
In some of the original States a justice of the peace or higher
magistrate, in whose actual presence certain misdemeanors were
committed, could deal with the offender summarily and sentence
him to a fine without any written complaint or warrant. This was
a survival of colonial conceptions of the majesty of official
station, and the statutes justifying the practice soon became
practically obsolete.
It is one of the distinguishing features of the English system of
criminal procedure that any private individual can initiate a
criminal prosecution, and that prosecutions are generally
instituted in that manner. In doing so, he exercises a right
belonging to every member of the general public, and the
proceeding is, in that point of view, a public one.[Footnote: See
Maitland, "Justice and Police," 141.] At common law there were
but two guaranties against thus bringing forward frivolous or
malicious accusations. The complainant was obliged to verify his
charge by oath, and he was liable to a civil action if the
defendant was acquitted and it appeared that there was no
reasonable ground for the prosecution.
In some of our States, also, if any private individual files a
complaint under oath before a proper magistrate accusing another
of a properly specified offense, a warrant of arrest may issue.
In many there are statutes authorizing _qui tam_ actions to
be brought by any one. These are actions to recover a statutory
penalty prescribed for some wrongful act in the nature of a
misdemeanor. The term _qui tam_ comes from the Latin terms
of the old English writ used for such proceedings, in which the
plaintiff describes himself as one _qui tam pro domino rege
quam pro seipso in hoc parte sequitur_. The plaintiff is
styled "a common informer," and his action is for the joint
benefit of himself and of the State, or of some other public
corporation or officers designated by the statute. He is
sometimes given an option to sue in the form of a civil action,
or by an information and the use of criminal process. In
proceedings of the latter description a warrant issues upon which
the defendant is liable to arrest.[Footnote: Canfield _v._
Mitchell, 43 Conn. Reports, 169.] The action may, under some
statutes, be brought in the name of the government, though by and
at the cost of the informer. In such case, unless it is
otherwise provided, he retains the exclusive management of the
cause as fully as if he appeared as the sole plaintiff on the
face of the record. If the plaintiff obtains judgment, and
collects the penalty, he must pay half of it over to the
government. If he fails, he is personally liable to the
defendant for the taxable costs of the action. Under such a
statute, a public prosecuting officer can sue for the entire
penalty, whenever no action has been brought by a private
individual.
The tendency of modern American legislation is toward placing the
collection of penalties for misdemeanors wholly in the hands of
public officers. The _qui tam_ action is certainly a cheap
mode of enforcing laws, and one likely to be pressed to a prompt
issue. As observed by the late Judge Deady, "prosecutions
conducted by such means compare with the ordinary methods as the
enterprising privateer does to the slow-going public
vessel."[Footnote: United States _v._ Griswold, 24 Federal
Reporter, 361; 30 _id_., 762.] But they appeal to sordid
motives and are liable to abuse. One who is exposed to such a
suit often gets a friend to bring it, in order to forestall
proceedings by others or by the State, and with a view to
delaying or defeating the collection of the penalty. These
considerations induced Parliament to restrict the remedy in
England as early as the reign of Henry VII, and have proved of
equal force in course of time in the United States.
Justices of the peace and local municipal courts of criminal
jurisdiction are generally given power to deal finally with a few
petty offenses, subject to a right of appeal to a court where a
jury trial can be had. As to all others, their function is, when
the warrant of arrest has been executed, to inquire whether there
is probable cause for holding the defendant to answer to the
charge which has been made against him in a higher court, and if
they find that such cause exists, to order him to give sufficient
security that he will appear before it for trial. The question
is not whether the evidence satisfies them of his guilt, but
simply whether it is sufficient, in their judgment, to make it
proper to send him where the charge can be more thoroughly
investigated by those who have the right to condemn or to acquit.
In making this inquiry, they hear both sides, if the defendant
has any testimony to offer. In most States he is now a competent
witness in his own behalf, provided he desires to testify.
He cannot be interrogated in any court or before any magistrate
without his consent. This is a weakness in the American system
of criminal procedure. Under the English system of prosecutions
by private persons, there are greater objections to subjecting an
accused person to an examination, and it can now only be had by
his consent.[Footnote: Maitland, "Justice and Police," 129.] The
certainty in England also that criminal prosecutions may in any
case be subjected to the power of a public officer by the
interposition of the Attorney-General or the Director of Public
Prosecutions makes it more important to safeguard a defendant who
may be arraigned for a political offense, and whose prosecution
may be inspired by reasons of a partisan nature. The magistrates
upon whom the task of conducting or superintending the
examination would naturally fall are also largely both
representative of class interests and unlearned in the law.
In the United States local prosecutors are often of a different
party from that which controls the State or the United States.
They have no close connection with those administering the
general affairs of the government. They hold office for fixed
terms, not dependent on any shifting of parliamentary majorities
or change of ministry. Committing magistrates are in a similar
position. They are also in many cases trained lawyers. If our
Constitutions could be so modified or so construed as to allow
them to ask the accused the questions that the sheriff who makes
the arrest or the reporter who hurries after him to the jail is
sure to ask, there are many reasons for believing that it would
oftener prove a safeguard to innocence than an occasion for
extorted and perhaps inconsiderate or misunderstood admissions.
And be that as it may, it would certainly lead up to important
clues, and frequently bring out admissions that were both
unquestionably true and necessary to establish guilt.
The fifth amendment to the Constitution of the United States, and
similar provisions in the various State Constitutions, preclude,
so long as they stand, any radical reform in this direction.
They speak for a policy that was necessary under the political
conditions preceding the American Revolution, but which is out of
harmony with those now existing in the United States. The
interests of society are greater than those of any individual,
and yet it is with us the State that is deprived in public
prosecutions of an equal chance with the accused. While burdened
with the necessity of proving his guilt beyond a reasonable
doubt, it cannot, according to the prevailing judicial opinion in
this country, so much as ask him at any stage of the prosecution
where he was at the time when the crime charged was committed.
The terms of our Constitutions are not such as necessarily to
demand the construction which has been generally given them by
the courts. They have been commonly interpreted with a view to
making them as helpful as possible to the accused.[Footnote: Boyd
_v._ United States, 116 U. S. Reports, 616.] Provisions
against compelling him to testify have been treated as if they
forbade requesting him to testify. They would seem, on
principle, quite compatible with a procedure under which the
committing magistrates should in every case ask the defendant
when first brought before them whether he desires to make a
statement, telling him at the same time that he can decline if he
chooses. Should he then make one, it should be written down at
length in his own words, read over to him for his assent or
correction, and properly attested. Many a guilty man is now
acquitted whose conviction could have been secured on what such a
paper would have disclosed or have given a clue to ascertaining.
Such an inquiry has long been the English practice.
The hearing before the committing magistrate, if any contest is
made, generally does not take place until some time after the
arrest. Each party is apt to wish time to prepare for it.
Meanwhile, the defendant can generally claim the privilege of
release on bail, unless the crime be capital and the
circumstances strongly point to his guilt. Here our practice
differs from that of an English court of inquiry. While there
bail must be allowed in case of misdemeanors and may be in case
of felonies; the amount required is frequently so large as to be
prohibitory.[Footnote: Maitland, "Justice and Police," 131.]
The essence of bail is that the prisoner should enter into an
obligation, together with one or more others of pecuniary
responsibility as his sureties, to appear whenever he may be
called for in the course of the pending proceeding, on pain of
forfeiting a certain sum of money. All our Constitutions forbid
the taking of excessive bail. The sum should be large enough to
give a reasonable assurance that he will not allow it to be
forfeited. In fixing the amount, which in each case is left to
the good judgment of the officer before whom it is taken, special
regard should be had to the gravity of the offense, the nature of
the punishment in case of conviction, and the means of the
defendant or his friends. If too large an amount is demanded,
the defendant can get relief on a writ of _habeas corpus_
issued by some superior judge.
This privilege of bail in most States extends to, or at the
discretion of the court may be allowed at, any stage of a cause,
not capital, even after a final judgment and sentence, provided
an appeal has been allowed with a stay of execution.
Bail is given orally or in writing, according to the practice of
the particular State. When given orally, it is termed a
recognizance. This is entered into by the personal appearance of
those who are to assume the obligation before a proper magistrate
or clerk of court, and their due acknowledgment before him that
they do assume it. He makes a brief minute of the fact at the
time, from which at any subsequent time he can make up a full
record in due form. When bail is given in writing, the
obligation is prepared in behalf of the government and executed
by the parties to it.
Whoever gives bail as surety for another is by that very fact
given a kind of legal control over him. He can take him into
actual manual custody without any warrant, and against his will,
for the purpose of returning him to court and surrendering him to
the sheriff. This right is a common law right, arising from the
contract of suretyship, and is not bounded by State lines. If
the principal absconds from the State, the surety can have him
followed and brought back without any warrant of arrest.
The amount of the bail, should it be forfeited, is payable either
to the government or to some other representative of the public
interests, as may be prescribed by statute. If the sureties have
any equitable claim to relief by a reduction of the amount, there
is often given by statute or judicial practice a right to the
court in which the obligation was given or before which its
enforcement is sought to grant a reduction from the sum which
would otherwise be due upon it.
When a committing magistrate requires the defendant to give bail
to appear in a higher court, and he does not give it, he will be
committed to jail to await his trial there. In this court he is
sometimes tried on the complaint upon which he was originally
arrested: oftener a new accusation is prepared. This may be
either an information or an indictment.
At common law, no one could be tried for a felony unless a grand
jury were first satisfied that there was good ground for it. The
grand jury consisted of not more than twenty-four inhabitants of
the county, and in practice never of more than twenty-three,
summoned for that purpose to attend at the opening of a term of
court. To authorize a prosecution the assent of twelve of them
was required. They heard only the case for the prosecution, and
heard it in secret, after having been publicly charged by the
court as to the nature of the business which would be brought
before them. The court appointed one of them to act as their
foreman, and he reported back their conclusions in writing, and
in one or the other of two forms--by presentment or indictment.
A presentment was a presentation, on their own motion, of an
accusation against one or more persons. They were the official
representatives of the public before the court, and it might well
be that offenses had occurred, and become matters of common
notoriety, prosecutions for which no one cared or dared to bring.
Such a proceeding was comparatively rare.
The common course was to pass only on such written accusations as
others might submit to their consideration. These were called
bills of indictment. If the grand jury believed that there were
sufficient grounds for upholding any of them, their foreman
endorsed it as "A true bill," and it then became an indictment.
If, on the other hand, they rejected a bill of indictment as
unfounded, the foreman indorsed it as "Not a true bill," or with
the Latin term "_Ignoramus_," and this was the end of it.
The organization and functions of the American grand jury are
similar, except that here we have prosecuting attorneys to
procure the presence of the necessary witnesses and direct the
course of their examination. In the Federal courts almost all
criminal accusations, great or small, are, and by the fifth
amendment to the Constitution of the United States all charges of
infamous crimes must be, prosecuted by presentment or indictment.
In most of the States the intervention of a grand jury is
requisite only in case of serious offenses; in some only in
capital cases. It is obvious that it is less needed here than in
England, since here it is not within the power of any private
individual to institute criminal proceedings against another at
his own will, but they are brought by a public officer
commissioned for that very purpose and acting under the grave
sense of responsibility which such authority is quite sure to
carry with it. The grand jury, however, has its plain uses
wherever political feeling leads to public disorder. It has
also, since the Civil War, been found an effective restraint in
some of the Southern States, whether for good or ill, upon
prosecutions for violations of certain laws of the United States,
brought against members of a community in which those laws were
regarded with general disfavor.
Prosecutions by information are those not founded on a
presentment or indictment. The information is a written
accusation filed in court by the prosecuting officer. In certain
classes of cases, the leave of the court must be first asked in
some jurisdictions. It is not necessary that it be supported by
any previous statement or complaint under oath. The officer who
prepares it acts under an oath of office, and that is deemed
sufficient to give probability to whatever charges he may make.
If the defendant has already been bound over by a committing
magistrate, such an information may take the place of the
original complaint on which the arrest was made. If he has not
yet been arrested, or if he was arrested and discharged by such a
magistrate, the filing of an information is accompanied by a
request for the issue of a warrant for his arrest from the court.
Such a paper is called a bench warrant, and is granted whenever
necessary, whether upon a presentment, indictment, or
information.
An information may be amended by leave of the court at any time.
A presentment or indictment cannot be. They, when returned to
court, are the work of the grand jury, and they end its work. An
amendment of a legal process can logically be made only by the
hand which originally prepared it. This rule leads to the escape
of many a criminal. If prosecuted by indictment, the case
against him must be substantially proved--in whole or part--as
there stated, or he goes free. Prosecuting officers therefore
naturally prefer to proceed upon information whenever the law
permits it.
The intervention of a grand jury is also often the necessary
cause of a delay alike prejudicial to the State and to the
prisoner. It can only be called in when a court is in session,
by which it can be instructed as to its duties and to which it is
to report its doings. Months often elapse in every year when no
such court is in session. For this reason, in case of a poor man
under arrest on a charge of crime, who cannot furnish bail, it
would often be much better for him were his liability to be
brought to trial to be settled promptly by a single examining
magistrate. At the hearing in that case also he has a right to
be present and to be heard. Before a grand jury he has no such
right.
In most States, the great majority of indictments are against
those who have already been committed on a magistrate's warrant
to answer to the charge, should an indictment be found. The
accused thus has two chances of escape before he can be put on
trial for the charge against him: one by a discharge ordered by
the committing magistrate, and one by the refusal of the grand
jury to return "a true bill." A grand jury is more apt to throw
out a charge as groundless than a single magistrate. He feels
the full weight of undivided responsibility. If he err by
discharging the prisoner, he knows that it may let a guilty man
go free, untried. If he err by committing him for trial, he
knows that, if innocent, the jury are quite sure to acquit him.
He acts also in public. The whole community knows or may know
the proofs before him, and will hold him to account accordingly.
On the other hand, in the grand jury room all is secret. The
prosecuting attorney, if admitted, does not remain while the
jurors are deliberating over their decision. No one outside
knows who may vote for and who against the return of an
indictment. Every opportunity is thus afforded for personal
friendship for the accused or business connection with him to
have its influence. Judges know this, and in their charge often
emphasize the importance and gravity of the duty to be performed.
In 1903, the prosecuting officer in one of the small counties in
Kentucky had prepared indictments against several men of some
local prominence for arson and bribery. A special grand jury was
summoned to act upon them. There was reason to expect some
reluctance on the part of several. Of the witnesses for the
State some were no less reluctant. There was great public
excitement in the court town. One witness came there over ninety
miles by rail hidden, for fear of his life, in a closed chest in
the car of an express company. The grand jury were told by the
court that they must make their inquiry a thorough one and indict
without fear or favor every person in the county who ought to be
indicted. "If," the judge added, "the evidence calls for
indictments and you don't make them, they will be made anyway.
If you do not do your full duty, I will do mine by assembling
another grand jury." They did theirs under these stirring
injunctions, and the indictments were promptly found.
After the indictment or information comes the arraignment. This
is bringing the defendant before the court and, after the charge
made against him has been read, directing him to plead to it.
Before the plea is entered, if he has no counsel, he is asked if
he desires the aid of one, and if he responds that he does (or
should he not, if the court thinks he ought to have counsel),
some lawyer will be assigned to that duty. Some of the younger
members of the bar who are present are generally desirous of
being so assigned to defend those who have no means to employ
such assistance. The court ordinarily makes the assignment from
among their number, but in grave cases often appoints lawyers of
greater experience and reputation. No one who is so assigned is
at liberty to decline without showing good cause for excuse. A
small fee is often allowed by statute in such cases from the
public treasury. Statutes are also common providing that
witnesses for the defense may be summoned at the cost of the
government, if the defendant satisfies the court that their
testimony will be material, and that he is unable to meet this
expense.
In the federal courts, in capital cases, the defendant must be
furnished with a copy of the indictment and a list of the jurors
summoned to court and of the government witnesses, at least two
days before the trial.
Whether impanelling the jury for the trial of a case is a long or
short process will depend largely on the intelligence and
firmness of the judge who holds the court. Each side can
challenge a certain number of the jurors in attendance without
stating any reasons for it, as well as any and every one of them
for cause shown. If a juror has formed an opinion as to the
guilt of the accused so definite as to amount to a settled
prejudice against him, he is incompetent. In grave cases the
prisoner's counsel will often seek to examine every juror whose
name is drawn at great length as to whether he has such an
opinion. A capable judge will keep such an inquiry within close
limits.
In 1824, an indictment for murder was found in Kentucky against a
son of the Governor. The case was one which excited great public
interest, and was talked over from one end of the State to the
other. The result was that when the trial came on it was found
impossible, term after term, to make up a jury of men who, from
what they had heard or read, had not formed what the defense
claimed and the court thought to be a sufficiently firm opinion
as to the guilt or innocence of the accused to justify their
exclusion. The legislature was finally appealed to for relief
and passed a statute that an opinion formed from mere rumor
should not be a ground of challenge. The case was then, in 1827,
taken up for the ninth time, but with the same result, whereupon
the defendant's father gave him a pardon, on the ground that "the
prospect of obtaining a jury is entirely hopeless," and that he
had "no doubt of his being innocent of the foul
charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII,
336.]
When a capital case is coming on, great pains will often be taken
by the prisoner's counsel to ascertain the characteristics and
disposition toward his client of each of the jurors who have been
summoned to court. This has sometimes been carried to the extent
of trickery, particularly in some of the Southern States. Agents
have been sent over the county to see every man capable of jury
service. There is some ostensible reason given for the call. He
is perhaps asked to buy a photograph of the accused; perhaps to
contribute to a fund to provide him with counsel. This naturally
leads to some expression of opinion in regards to the charge made
against him, and if the man thus "interviewed" should be
afterwards offered as a juror, he is challenged or not challenged
according to the information so obtained.
In every criminal case the defendant's guilt must be proved
beyond a reasonable doubt. A mere preponderance of evidence is
not enough. In other respects the rules of evidence are
applicable which obtain in civil cases.
If a verdict of Not Guilty is returned, the court orders the
discharge of the prisoner, as a matter of course, unless
provision has been made by statute for an appeal by the State for
errors of law committed on the trial. No such appeal can be
allowed for the purpose of obtaining a new trial on the ground
that the jury came to a wrong conclusion on the facts. This
would be to put the defendant twice in jeopardy, which our
Constitutions generally forbid. Even under the practice
prevailing in the Philippine Islands, where they have no juries,
and an appeal to a higher court for a new trial on the merits has
always been allowed to either party in a criminal case, as a
matter of right, this rule is held to apply.[Footnote: Kepner
_v._ United States, 195 U. S. Reports, 100.]
If the verdict is one of Guilty, the sentence is pronounced by
the judge. He generally has a broad discretion as to the extent
and nature of the punishment. For many offenses, either fine or
imprisonment or both may be imposed, according to his best
judgment. For most, when imprisonment is ordered, it may be for
a term such as he may prescribe within certain limits, as, for
instance, from one to five years. In a number of States of late
years the judge is permitted in such a case to sentence for not
less than one year, and it is left to some administrative board
to determine later how much, if any, longer the confinement shall
last, in view of the circumstances of the offense, the character
of the prisoner, and his conduct since his sentence.
A considerable and increasing group of penologists is pressing
upon our legislatures the extension of the principle of the
"indeterminate sentence" by removing the limit of a
_minimum_ term. It is doubtful if such a change would
satisfy the constitutional requirement of a trial by jury. That
in its nature involves a trial before a judge and a sentence
imposed by the court upon the verdict. Can that be deemed a
judicial sentence to imprisonment which is a sentence to
imprisonment during the pleasure of certain administrative
officials? Judgments are to ascertain justice. To do this they
must be themselves certain. In a purely indeterminate sentence
there is no certainty until it has been made certain by the
subsequent action of the administrative authorities. It may turn
out to be imprisonment for life, and the advocates of this mode
of action frankly say that such ought to be the disposition of
all incorrigible and habitual criminals. If so, ought not the
fate to be meted out to them by judicial authority? Can anything
less than that be considered as due process of law?
An experienced and able judge seldom makes any serious error in
grading the punishment of offenders who have been tried before
him. The sentence is not pronounced until they have been fully
heard as to all circumstances of extenuation, nor until the
government has been heard both as to these and as to any
circumstances of aggravation. The sentence, if the offense be a
grave one, cannot be pronounced except in the presence of the
convicted man. He has an opportunity for the last word.
Judges who are neither able nor experienced frequently impose
sentences too light or too severe. We have too many such judges
in the United States. The real remedy for the evil is to choose
better ones. As between judges and boards of prison officers or
of public charities, the judge always has the great advantage of
having tried the case and heard the witnesses. He ought
therefore to be best able to fix the term of punishment.
The punishment to which one can be sentenced on a conviction of
crime is now generally limited to fine or imprisonment. For
graver offenses both may be inflicted: for murder, and in some
States for a very few other crimes the penalty is death. The
policy of the older States long was to require those whose
offenses were directed against property to make good the loss of
the injured party. Whipping was also often added, and it was
formerly a common mode of punishment throughout the country for
all minor offenses. Every colony used it. It was authorized by
the original Act of Congress in 1790 on the subject of crimes,
and was not abolished for the courts of the United States until
1839. It was provided for in the early statutes of most of the
States, and in some still is. Until 1830, it was the only mode
of corporal punishment allowed in Connecticut for the general
crime of theft. For boys it is often the only punishment that
can properly be administered. To fine them is to punish others.
To imprison them is, in nine cases out of ten, to degrade them
beyond recall. Virginia, in 1898, reverted to it as an
alternative to fine or imprisonment in the case of boys under
sixteen, provided the consent of his father or guardian be first
given. Such a statute seems absolutely unobjectionable from any
standpoint. It is often asserted that whipping is a degrading
and inhuman invasion of the sanctity of the person. To shut a
man up in jail against his will is a worse invasion. But as
against neither is the person of a criminal convict sacred. He
has justly forfeited his right to be treated like a good citizen.
Whether whipping is a degradation or not must depend much on the
place of its infliction. The old way in this country, as in
England, was to inflict it in public. This puts the convict to
unnecessary shame. Let him be whipped in private, and his only
real degradation will be from his crime. So inhumanity is
needless. A moderate whipping only should be allowed. That is
far more humane to most men than a term of jail; that is, it
detracts less from their manhood than the long slavery of
confinement.
Of late years there has been a decided movement in the United
States toward a return to the penalty of whipping for atrocious
cases of assault or offenses by boys.[Footnote: See Paper on
"Whipping and Castration as Punishments for Crime," _Yale Law
Journal_, Vol. VIII, 371, and President Roosevelt's Message to
Congress in December, 1904.] It is probable that it will find
more favor hereafter in the South as a punishment for negroes.
Most of their criminals are of that race. The jails have no
great terrors for them. They find them the only ground where
they can mingle with their white fellow-citizens on terms of
social equality. But they are sensitive to physical pain. A
flogging they dread just as a boy dreads a whipping from his
father, because it hurts. The South may have been held back from
applying this remedy in part from the apprehension that it might
be considered as reinstating the methods of slavery. No such
criticism could fairly be made. Confinement in jail is
involuntary servitude, and involuntary servitude is slavery.
Whipping is a substitute for it: it saves from slavery.
In several of the Southern States, instead of imprisonment,
ordinary offenders are set at work in the open air, either on
convict farms, or in chain gangs on the highway, or in the
construction of railroads or similar works. This plan prevails
in Georgia and Arkansas to such an extent that very few are
confined in the penitentiary. The convicts in these States are
mainly negroes. When, as has been at times permitted, they have
been turned over to private employers to work in this manner for
wages paid to the State, many of the abuses of slavery have
reappeared, and public sentiment is becoming decidedly adverse to
the allowance of such contracts for convict labor. Similar
objections do not lie in their employment on State farms, and in
North Carolina and Texas this has been tried with considerable
success.[Footnote: See "Bulletin de la Commission Penetentiaire
Internationale," 5th series, II, 179.]
Special courts have been organized, or special sessions of
existing courts directed, for the disposition of prosecutions
against children in several of the States and in the District of
Columbia during the past few years. The judge holding such a
"Juvenile Court" or "Children's Court" is expected to deal with
those brought before him rather in a paternal fashion. An
officer is generally provided, known as a Probation Officer, to
whom the custody of the accused is largely committed both before
and after trial. He is to inquire into each case and represent
the defense at the hearing. In case of conviction, the child
can, on his advice, be released on probation, or the sentence can
be suspended.
For errors of law committed by the judge in the course of the
trial the defendant commonly has a right of appeal. Until 1891
this was not true in the federal courts, and a man convicted and
sentenced there under an erroneous view of the law and in
disregard of any of his rights had no remedy, even in a capital
case. It was so in Delaware until 1897.
In some States there is a right of appeal in favor of the
government as well as of the defendant for errors of law, and
this even after a jury trial ending in a verdict of acquittal.
It is there held that the common constitutional provision that no
man shall be put twice in jeopardy of life or limb is not
contravened by the allowance of such a remedy. The writ of error
is a stage in the original prosecution. One acquitted of crime
is deemed not to be put out of jeopardy unless he has been
acquitted according to the forms of law, and after a trial
conducted according to the rules of law. What these rules are,
in case of dispute between the government and the accused, must
be determined by such proceedings in the cause as the legislature
may deem best adapted to ascertain them in an authoritative
manner. Such a mode may properly be furnished by allowing a
resort to a higher court, and a resort in favor of either
party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30
Atlantic Reporter, 1110; 48 American State Reports, 202; Kent,
_J_., in People _v._ Olcott, 2 Day's Reports, 507,
note.] In other States such a review, in favor of the
government, of the conduct of the cause is only supported when
the exceptions taken are founded on what may have preceded the
trial.[Footnote: People _v._ Webb, 38 California Reports,
467.] This distinction is approved by the Supreme Court of the
United States.[Footnote: Kepner _v._ United States, 195
United States Reports, 100, 130.]
For errors in conclusions of fact the defendant, in certain
cases, has a remedy on a petition for a new trial, but in no case
can the State ask for one. This is true even though the trial
was not had to a jury.
There is no doubt that new trials are too often granted in the
United States in favor of those who have been convicted of crime.
Particularly is this true when they are ordered because of some
irregularity of procedure or slip in the admission or exclusion
of evidence. A verdict, whether in a civil or criminal case,
should stand, notwithstanding it was preceded by erroneous
rulings or omissions of due form, unless the court of review can
see that substantial injustice may on that account have been
done.[Footnote: See Paper on "New Trials for Erroneous Rulings
upon Evidence," by Professor J. H. Wigmore, in the _Columbia
Law Review_ for November, 1903.] To release a convicted
criminal for error in mere technicalities not really affecting
the question of his guilt tends to make the people lose faith in
their courts and resort to lynch law as a surer and swifter mode
of punishment.
Appeals in criminal causes are, however, much rarer and also much
less often successful than is generally supposed. About eleven
thousand persons were convicted of felonies in the County Courts
of New York during the five years from 1898 to 1902, inclusive of
each, and of these less than nine in a thousand pursued an
appeal, not a third of whom secured a judgment of
reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_
for March, 1904.] In Massachusetts, about a hundred thousand
criminal prosecutions are annually brought, and the appeals to
the Supreme Judicial Court from sentences of conviction rarely
exceed twenty to twenty-five in number, and upon these in each of
the years 1902 and 1903 only two new trials were
granted.[Footnote: _Law Notes_ for December, 1904.]
A comparison of the number of those put to death in the United
States for crime by the courts, and on a charge of crime by a
mob, for the past three years shows these results:
Executed by
Judicial Sentence. Lynched. Total.
1901 118 125 243
1902 144 96 240
1903 123 125 248
A large majority of those lynched were negroes, and met their
fate in the South. It is extremely difficult to secure a
conviction of those who take part in such acts of violence. They
commit the crime of murder, and the penalty is so heavy that
their fellow-citizens are unwilling to subject them to it. The
offenses with which the men whom they kill are charged are also
generally of a nature which make them peculiarly offensive to the
community. Many are negroes charged with the rape of a white
woman, to whom it would be intensely disagreeable to testify
against them. Not a few are men under sentence of death, who it
is feared may escape or delay punishment by an appeal.
Such considerations cannot excuse, but present some slight
palliation for those acts of mob violence by which the people of
the United States are so often disgraced. It may be added that
out of the Southern States they are quite rare, and in the
Northeastern States substantially unknown. Of the one hundred
and four lynchings in 1903, only twelve occurred in the North or
West.
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