The amount of learning requisite10 to preside with efficiency at an ordinary criminal trial is comparatively small, and provided the judge be honest, impartial, possessed11 of common-sense and what is known as "backbone," neither prosecutor nor de[Pg 179]fendant's counsel need, as a rule, complain, but the trouble, time, courage and discrimination necessary adequately to determine what punishment should be meted12 out to a particular offender13 for a given offence cannot well be overestimated15. It is not a difficult matter to preside with dignity at a trial, preserve order, exclude hearsay16 testimony17, apply the other simple rules of evidence that are ordinarily involved in a case of assault, larceny18, burglary or homicide, and instruct a jury as to "reasonable doubt," "good reputation" and the "presumption19 of innocence20" in words of one syllable21. We may fairly assume that it is no harder for the ordinary judge to try a man for picking a pocket than it is to dress himself in the morning. It must in time become automatic if not almost sub-conscious. He could probably do it in his sleep. Most petty criminal cases "try themselves." The trouble begins when the same judge is compelled to decide whether the convict shall be sent to the Elmira Reformatory (where he may reasonably expect to be discharged in fourteen months) or to State's prison for twenty years.
Let us consider first the conduct of the judge during the trial itself. Theoretically it is his duty, at least in most States of the union, simply to declare the law governing the case and to rule impartially22 upon the questions of evidence presented. He is supposed to give no hint of his own opinion as to whether or not the defendant should be convicted and to refrain from any marshalling of the facts claimed to have been proven by either side in such a way as to influence the verdict of the jury. In England he may and generally does "sum up" the case; in America such a course would usually be a[Pg 180] ground for reversal, his function being limited to an abstract discussion of the law involved, with little reference to the facts save in so far as it may be necessary for purposes of illustrating23 the way in which the jury shall apply it. He is supposed to sit upon his dais serenely24, indifferent as to whether a murderer be convicted or acquitted25, whether an inexperienced assistant district attorney be "trounced" by an astute27 criminal lawyer with a couple of generations of trial experience, or, on the other hand, a bulldozing prosecutor bedevil a miserable28 prisoner, defended by an ignorant and untutored counsel, into State's prison,—provided either be done within the strict rules of evidence and proper court behavior.
This may be all very well in theory,—but it is very far from what is either followed in practice or, to speak frankly29, desirable. What the people want in our criminal courts is, of course, a "fair trial," but they want a "fair trial" that results in the acquittal of the innocent and the conviction of the guilty,—so long as he is convicted by what they deem fair means. The people do not expect a judge to be more than human. Did he appear as indifferent to results as theory might seem to require the jury would quickly infer that the case was of slight importance and their action a matter of utter indifference31 to the court. Juries need to be kept in order and made to behave themselves, and, if judges did not from time to time exert a disciplinary influence, would easily run wild and become hopelessly demoralized. It is almost impossible to overestimate14 the awe32 with which the ordinary juryman regards the judge presiding at a criminal trial.[Pg 181] He may have a supreme33 contempt for his personality or private conduct, but once let the judicial34 ermine enshroud the individual and he sees only the judge,—the personification of the law, the autocrat35 of the court-room, the "boss" of the particular "job" upon which he is temporarily employed. He knows nothing of the abstract theory of the situation. He wants to do well as a juryman and believes, quite naturally, that an improper36 verdict will be visited by the judicial wrath37 and a just one be acknowledged by a look of benignant commendation. If he thought the judge did not care he would take little interest in the business himself, and the apprehension38 of the court's approval or disapproval39 is an ever-present factor in keeping him doing conscientious40 work,—quite as important in its results as his own lightly murmured oath as a juror.
The judge, in addition to his theoretic duties, is in effect the individual who must keep the gang at work and see that every one of them earns his two dollars a day. If he appeared to them to be star-gazing or studying Epictetus they would soon rest on their shovels41. Many juries take their cue from the court, laughing when he laughs, and frowning when he frowns, and instinctively42, however much he may admonish43 them to the contrary, trying to determine from his manner and charge what his own impression of the case may be.
Now, a judge who has sat for ten or fifteen years on the criminal bench is usually keener to detect a liar44 or see through a "faked" defence than any twelve men drawn45 indiscriminately from different walks of business activity. A timely question from him may demolish46 a perjured47 explanation which, but[Pg 182] for his interference, would have acquitted a guilty criminal. Theoretically it is none of his business. Practically it is. An inexperienced prosecutor may be so inadequate49 to the task of coping with some old war-horse of a lawyer that save for the assistance of the court a rascal would be turned loose upon the community; or, turn about, a stupid lawyer may convict his own client if not prevented by a considerate presiding justice. Theoretically the judge must let the parties fight it out by themselves. In point of fact it is his business to even things up. The old country judge was not so far wrong when on being assigned to the criminal term of the Supreme Court in New York City he said to the prosecutor:
"Mr. District Attorney, I reckon that, between us, we shall let no innocent man be convicted,—and no guilty man escape."
Practically this expresses in a nutshell the popular idea of what a criminal judge is for, and it is certainly the idea which pervades50 the minds of the jury. Nothing can eradicate51 it. It is a fact,—an existing condition, which the court must inevitably52 take into consideration in determining his course of conduct upon the bench. By this it is not meant that a judge should be either counsel for the defendant or district attorney, nor that he should force his ideas upon the jury, but simply that to be effective he must be more than a nonentity53, a mere54 law book, or an ornament55, must guide the course of the trial, and, in default of its being done by the counsel on either side, test by his questions the truth or falsity of the testimony. More than this, he should in his charge indicate the tests which the jury should apply[Pg 183] to the various phases of the evidence and, while not influencing them upon the questions of fact which they are to determine, should nevertheless so elucidate56 their task that they may be guided in their deliberations and not go astray among the tangled57 underbrush of an adroit58 counsellor's "requests to charge."
The writer has endeavored in the preceding paragraphs to set forth59 briefly60 the theoretical function of the judge as opposed to his proper practical function if he is to be of any value in the actual administration of criminal justice. One more step is necessary, namely, to comment on the actual conduct of some judges who from natural disposition61 or a conscientious purpose to "do justice" are inclined to usurp62 the function of the jury and practically to direct either an acquittal or a conviction.
Under our prevailing63 doctrines64 the court has no right to influence the jury on the facts in the slightest degree, and indeed most judges expressly direct the jury to disregard absolutely any idea they may have obtained of what the court's opinion may be. This, in the face of the balance of the charge, must often seem paradoxical to the talesman, for few judges entirely66 succeed in concealing67 their own views of the case, however hard they may honestly try to do so.
It is quite as foreign to the spirit of our institutions for a judge to interfere48 with the jury on questions of fact as for a jury to arrogate68 to itself the decision of points of law. The system is designed to do "justice" by means of its several parts working harmoniously69 together, but neither part "working justice" by itself. If the judge arrogate the[Pg 184] jury's function, the jury becomes superfluous70. This is not the intent of the Constitution. There is no real trial by jury when the judge decides the whole matter, and it would be far more dangerous for a single man to act as arbiter71 of the defendant's fate than for twelve. Yet more or less consciously there is often a tendency upon the part of the criminal bench to lend itself to the success of one party or the other, however positively72 it may declare and direct to the contrary. The actual amount of suggestion needed to give the jury an effective hint is infinitesimal. The almost imperceptible accentuation of a word, the slightest lifting of an eyebrow73, and a verdict has been determined74—by the judge.
Now a printed record on appeal fails utterly75 to disclose the tone of the voice or the stage effects of a judge's charge. A distinguished76 member of the bench, now long since deceased, was accustomed to deliver charges so drastic that a defendant charged with a serious offence rarely, if ever, escaped. Upon appeal absolutely no exception could be taken to his remarks, yet nothing more unfair could be conceived of. The record would show that the judge had charged:
"If you believe the defendant's testimony you will of course acquit26 him. He is presumed to be innocent until the contrary is proved. If you have any reasonable doubt as to his guilt30 you must give him the benefit of it. On the other hand, if you accept the testimony offered by the People you may and will convict him."
Now, nothing on its face would seem to be fairer. What the jury actually heard was:
"If [scornfully] you believe the defendant's testi[Pg 185]mony you will of course acquit him. He is presumed [with a shrug77 of the shoulders] to be innocent until the contrary is proved. If you have [another shrug] any reasonable doubt as to his guilt you must give him the benefit of it. On the other hand, if you accept the testimony offered in behalf of the People you may and will convict him!" [The last few words in tones of thunder.]
Sometimes a judge becomes known as a "convicting" judge, although, perhaps, at the same time as a learned one. This usually occurs where a man of pronounced opinions with the advocate's temperament78 is elevated to the bench. Very likely by inclination79 he is a "prosecutor," with strong prejudices against law-breakers and bitterly intolerant of technicalities. The powers that prey80 may cower81 inert82 in their dens83 of darkness knowing full well that if one of them be haled before this Jeffries he will pay the uttermost penalty. Yet the spectacle of such a judge does not increase the public respect for law, and juries sometimes revolt and acquit out of sheer resentment85 at such dictation. But happily these men are of the past, and the more enlightened sentiment of to-day would frown as much upon a "hanging" judge as upon a jelly-backed wearer of the gown who was afraid of the displeasure of some politician if a "heeler" were convicted and who ruled systematically86 against the people because they had no appeal and could take no exceptions to his conduct.
Nothing strikes so sharply at our conception of liberty as the failure of criminal justice, and the conviction of a defendant not legally proven guilty or the acquittal of an influential87 criminal has a more[Pg 186] disastrous88 effect upon the body politic8 than ten thousand bales of anarchistic89 propaganda. The partisan90 judge, who makes up his mind to convict or acquit if he can, may be right nine times out of ten, but the other time he commits an outrage91. The judicial temperament is a jewel above all price. The writer recalls a certain case of a variety subject at the time to great public condemnation92, where the judge before the indictment93 was moved for trial, inquired casually94 of the clerk what the defendant was charged with. When he learned the nature of the accusation95 he exclaimed audibly:
"Ha! He's one of those ——s, is he? Well, I'll try this case." And he did. Unfortunately judges often "try" cases, either for the defendant or against him.
Nothing is more unfortunate for the judicial equilibrium96 than the fact that the prosecution97 has no right of appeal in the event of a verdict of acquittal. The judge may persistently98 prevent the district attorney from putting questions which are both competent and proper and rule flatly against him on the most obvious points of law without any redress99 on the part of the people. A weak judge will take no chances on being reversed and will pursue this course, while at the same time he is allowing every latitude100 to defendant's counsel and is ruling in his favor in defiance101 of the established doctrines of law.
A criminal lawyer of great adroitness102, learning and probity103, after he had concluded an argument of the most utter absurdity104 to which the presiding judge had listened with much attention and apparent consideration, frankly stated to the writer:
[Pg 187]
"You think my argument was nonsense? Well, you are quite right, it was. But no proposition of law is too far-fetched or ridiculous to be advanced in behalf of a defendant without some prospect105 of success in our criminal courts." The lawyer in question will undoubtedly106 recognize his dictum in these pages.
The attitude and disposition of the various judges becomes speedily known among the members of what is popularly known as the "criminal bar," and heroic efforts (often successful) are made to bring certain cases before the "right" judge.
"Do you think I'd try the Smith case before ——?" one will say. "Not on your life!"
In similar fashion lawyers retained by complainants will seek to have their cases put on the calendar of such and such a judge.
"Put it before ——," they will say. "He's hell on larceny!"
Some judges are supposed to be more lenient107 in the matter of sentences than their brothers of the bench, but the writer, after six years of observation, believes this to be a fiction. They are all lenient,—entirely too much so.
Much of the impression among criminal lawyers that they will fare worse at the hands of one member of the judiciary than another is due to the obvious fact that some judges are by reason of their training better suited to sit in certain classes of cases than others. One may have had an exhaustive experience in commercial matters and thus be better qualified108 to pass upon the questions of law involved therein. Another may have heard many complicated cases involving expert testimony, etc.,[Pg 188] etc. Of course as a rule the less well equipped a judge is to hear a certain kind of case the more apt he will be to listen to ill-founded argument on the law or the facts. No insurance swindler would want to be tried before an expert on insurance law. He would very naturally prefer a judge whose experiences had converged109 upon assault and battery. It must be admitted that occasionally a judge is to be found who seems to feel that every complainant who has lost money in a commercial transaction has no standing110 in the criminal courts but must be relegated111 to civil tribunals. This is but another way of saying that such a judge does not believe that the criminal law is meant to cover cases where there has been fraud in commercial transactions. This is hardly to be wondered at considering the present ineffectiveness of our statutes112 governing such classes of crime.
The writer recalls prosecuting113 such a case before a certain judge who, after hearing some rather complicated evidence in regard to certain written instruments, called abruptly114 for the defendant. The latter took the stand, and the judge inquired with a smile:
"You didn't intend to cheat this man, did you?"
"Certainly not!" cried the defendant.
"Gentlemen of the jury!" said the judge. "This is not the kind of case that should be brought before a jury at all. This court is not the place to collect civil debts. I instruct you to acquit."
Learning wisdom by experience, the writer moved the case of the co-defendant for trial before another judge and convicted him, although he was, if anything, less guilty than the first. He was sentenced to a substantial term in State's prison.
[Pg 189]
As a rule, however, little fault can be found with the conduct of our judges at criminal jury trials. In some instances it may seem to one side or the other that a judge shows bias115, but these cases are comparatively few and seldom result in any actual miscarriage116 of justice. If some judges are inclined to rule against the People upon doubtful questions of law, this in the long run has at least the beneficial effect of reducing the number of cases reversed upon appeal. The judges are almost invariably courteous117, long-suffering, and given to allowing the greatest latitude to each side in getting its evidence before the jury. In addition they are practical men of common-sense, most of them of long and profitable experience, and experts in the rapid disposition of business.
Let us now turn to the other and no less important function of the judge,—the imposition of sentence. It is a platitude118 that the chief failing of modern criminal justice is the inequality of punishment. It may well be and often is the case that in one branch of the General Sessions a prisoner is being released upon "parole" under a "suspended" sentence at the precise moment that some other and no more guilty defendant in another branch of the same court is being sentenced to prison for three, five or even ten years at hard labor119.
That most able and practical of English criminal judges, Sir Henry Hawkins, has this to say in his reminiscences in the matter of sentences of convicted persons:
"The want of even an approach to uniformity in criminal sentences is no doubt a very serious matter, and is due, not to any defect in the criminal law[Pg 190] (much as I think that might be improved in many respects), but is owing to the great diversity of opinion, and therefore of action, which not unnaturally120 exists among criminal judges....
"The result of this state of things is extremely unsatisfactory, and the most glaring irregularities, diversity and variety of sentences are daily brought to our notice, the same offence committed under similar circumstances being visited by one judge with a long term of penal84 servitude, by another with simple imprisonment121, with nothing appreciable122 to account for the difference.
"In one or the other of these sentences discretion must have been erroneously exercised.... Experience, however, has told us that the profoundest lawyers are not always the best administrators124 of the criminal law...."
Sir Henry likewise speaks of the great intellectual difficulty of a conscientious English judge in trying to determine for himself the amount of punishment he should inflict125 in any given case. The English bench occupies an altitude practically unknown in this country. Access to it is far less easy than with us, and the personal, familiar, and off-hand method of communication between the judge and the bar, not to mention interested outside parties, witnesses, and relatives of the defendant, in vogue126 in our trial courts would hardly be viewed there with favor. It is the wholesale127 attempted interference with the action of the judges in our criminal courts that imparts a flavor of indecision and arbitrariness to so many scenes upon a sentence day. It is not unheard of to see a prisoner actually at the bar awaiting sentence while the judge[Pg 191] upon the bench holds a sort of open levee, free to all comers, in which the prisoner's lawyer, his wife, the officer who made the arrest, the complainant, and the district attorney (and sometimes others who have far less claim to be heard) endeavor to bring the judge to their own particular way of thinking, and harangue128 him and each other in tones by no means always either deferential129 or amicable130. Meanwhile the judge who will permit any such performance sits with an expression of exasperated131 indecision, and usually finally ends the matter by "remanding" the prisoner for further investigation132. Such scenes are calculated to bring the administration of justice into contempt. Snap-shot judgments133 formed in the midst of an altercation134 may be unfair to the defendant and frequently are so to the People. A judge who tries to please everybody ends by pleasing nobody and makes a farce135 of justice. The administration of the criminal law is not a pleasing matter nor is it conducted for the purpose of pleasing the various parties. The judge is there to attend to his own business and make his own decisions. The writer once heard a judge inflict sentence in the following manner:
"Your counsel says sentence ought to be suspended upon you. The district attorney says you ought to get five years in State's prison. Well, I'll split the difference and send you to the Elmira Reformatory."
The sentence may have been the result of a conscientious and careful attempt upon the part of the judge to decide the question, but the phraseology in which it was couched will hardly commend itself as a standard.
[Pg 192]
A thousand indefinite factors enter into the determination of the exact amount of punishment to be meted out to an offender, and relatively136 trivial circumstances may eventually decide whether the stroke of the judge's pen in his sentence book shall swerve137 from a "three" into a "five." Assuming that the judge have the rectitude of a granite138 monolith and be impervious139 to influence of every sort, he is nevertheless compelled when inflicting140 sentence to depend in large measure upon "hearsay" testimony and evidence that could not possibly be admitted upon actual trial. He seeks to find out if he can what the past record and reputation of the defendant have been, and in so doing often is forced to rely almost entirely upon the word of the officer who originally made the arrest. If the latter be vindictive141 he can easily convey the impression that the defendant is a man of the worst possible character who has hitherto had the luck to escape being caught. In most cases the prisoner has little opportunity to traverse these vague and generally unheard allegations. Again it often happens that he has been previously142 arrested. This fact is of course excluded upon the trial for his present crime upon the common-sense doctrine65 that the fact of his former arrest of itself proves nothing whatever as to his guilt or innocence of the charge upon which he was thus arrested. When, however, he comes up for sentence it is frequently considered by the court, no matter what the subsequent disposition of the case against him may have been, on the general assumption that "where there is so much smoke there is generally a little fire." If he has actually been convicted before, the fact weighs heavily against him.
[Pg 193]
Almost anything may be presented for the consideration of the judge, however remote its connection with the crime of which the defendant has been convicted, and either as militating for or against the prisoner. Affidavits143, letters, newspaper clippings and memoranda144 are submitted tending to show that he is of either good or bad character, has had a reputable or a disreputable past, has or has not committed or attempted to commit other crimes, or is or is not likely to "reform." Often these may have a good deal of weight, but the persons who present them are almost never sworn or placed upon the witness-stand or the defendant or prosecutor given a chance to cross-examine them as to their accuracy.
The mere attitude of complainants, obviously an entirely immaterial matter, is also often a considerable factor in determining how the prisoner shall be disposed of. If they are vindictive and anxious to "make an example" of the offender it may happen that they will persuade the judge honestly to believe that a heavy sentence should be inflicted145, whereas if they are sorry for the prisoner and his family and are willing to "give him another chance," and intercede146 strongly for him, the judge may "suspend sentence" upon the same man. Now the attitude of the parties wronged is largely determined by the character and disposition of the parties themselves, and of course in many cases has no relation whatever to the real rights of the case. For example, a half-drunken laborer147 lacking the money to buy liquor may wander into an area and cut away a strip of copper148 water-spout belonging to some old lady. He sells it for a few cents and then is arrested and is convicted of petty larceny. No one has any par[Pg 194]ticular interest in the case and the old lady comes into court and begs for the defendant's "parole." He has hitherto led a decent life and the judge lets him go. Now, if the same man, instead of stealing a piece of pipe out of an area, finds himself in the vicinity of a freight yard and cabbages a piece of iron belonging to a railroad company, he is no sooner convicted than the attorneys for the company swarm149 about the judge demanding that "this wholesale pillage150 of corporation property" be put an end to, that an example be made of such thieves, and insisting that it is an important case where a severe sentence should be inflicted. The judge cannot be blamed if his mind is, to a certain extent, affected151 by the representations of these gentlemen and he may easily give the defendant six months or a year in the penitentiary152. The moral guilt of the prisoner is precisely153 the same and so will be the significance of his punishment so far as its serving as a deterrent154 to himself or to others is concerned.
Another instance is where a young clerk in a banking155, express, or insurance office is caught pilfering156. He has, to be sure, violated the trust reposed157 in him, but if the officers of the company are disposed to intercede in his behalf and express the belief that he "has learned his lesson" it is probable that they can persuade the judge to give the boy another chance, whereas if their attitude were otherwise he would, and perhaps very properly, be sent to Elmira or to State's prison. It thus, in many cases, lies within the power of the lawyer for a defendant, if he be assiduous, persuasive158, or have influence which can be exerted upon the complainant in the case, to lessen159 materially the sentence of his client, who with[Pg 195]out his services would perhaps receive the maximum of punishment. The poor or friendless prisoner, who cannot pay for able or indefatigable160 counsel, inevitably suffers in consequence, for his defence to punishment after trial cannot be adequately presented. His guilt is the same.
Another matter, frequently entirely fortuitous, which yet may affect the question of punishment, is the fact of restitution161. Where a prisoner has been guilty of embezzlement162 or theft and afterwards returns the money it is almost inevitably taken into consideration when sentence is imposed. Naturally it is apt to affect the attitude of the complainant in the highest degree. Now, if the offender be merely foolish, he very probably has spent the money he has stolen in gambling163 or feasting, while if he be shrewd and cunning he has laid it by until he can accumulate enough to go to South America. In the latter case he can be made to disgorge; in the former he cannot, and is often far worse off when he comes to be sentenced than if he had been more criminally minded.
From what has been said the reader should not infer that the majority of sentences are excessive. In point of fact the leniency164 of most of our judges is surprising, and when they err123 it is invariably upon the side of mercy.[35] The sentences actually inflicted are often so short that they must seem to the average layman165 almost trivial, and the number of cases in which sentence is "suspended" and the offender paroled in the custody166 of the Prison Association is almost seventy-five per cent of the total number of first convictions.
The reasons for this leniency are varied167. Pri[Pg 196]marily it is because the judge realizes that it is not so much the length of imprisonment as the fact that the defendant is imprisoned168 at all that, in the majority of cases, acts as a deterrent upon that particular offender and upon those to whom his conviction is calculated to serve as an example; secondarily, it is due to the sentimental169 attitude of society towards criminals of all varieties; and, lastly, to an appreciation170 of the unfortunate inequality of punishment, and the difficulty in adequately and justly determining what weight should be given to hearsay evidence as to the convict's past history. In some instances leniency may arise from other and less creditable sources, such as sheer cowardice171 in defying influence, political or otherwise, the desire to curry172 popular favor in the hope of subsequent preferment in office, or possibly from the hope that if a light sentence is inflicted the case will not be appealed and the conviction reversed. This dread173 of reversal in the case of some judges amounts almost to hysteria, and there are well-known instances in which judges in the criminal courts have stood heroically by the district attorney and the People with the result that some scoundrel of great political influence has been convicted, and have then completely nullified the effect of their good conduct by weakly suspending sentence or by inflicting one so slight as to arouse the amusement and contempt of even the defendant himself.
The ultimate object of the proper administration of criminal justice is to sustain and increase the general respect for law. If it result in a lessened174 regard for law by engendering175 a belief that its officers are weak, cowardly, venal176, or ineffective, it is a[Pg 197] failure. The adjuration177 therefore to avoid even the appearance of evil applies strongly to all members of the bench. Nothing conduces more to lawlessness than a popular impression that criminal judges are incapable178, "easy," or are subject to influence. A judge who, it is supposed, can be "reached," is an incentive179 to crime. Now it is highly improbable that any judge is ever "reached." Our judges are honorable men. But once let an impression to the contrary get abroad among criminals and the same result follows as if the judge were actually "crooked180." If a judge is supposed to be amenable181 to influence, the criminal will assume that his own particular pull will be effective.
As an illustration, let us suppose that one of a band or "gang" of young toughs has been apprehended182 in making a vicious assault which might well have resulted in murder. Perhaps he has been paid fifty or a hundred dollars to "knock out" (kill) his victim. He receives a fair trial and is convicted. He deserves all he can get—ten years. Instead he is sent to the Elmira Reformatory. The rest of the gang, with their hangers-on, amounting in number very likely to forty or fifty youths and men, are immediately convinced either that they have been able to influence the judge through their political friends or that he and his associates are "easy." "Going to Elmira" is nothing in their eyes; and the conviction of their comrade results in no deterrent effect upon them whatever. He becomes a clever hero. Any one of them is ready to undertake the same job at the same price. If his conviction be reversed and he be set at liberty they conclude that in addition the authorities are incapable and that[Pg 198] they can "beat the case" any time they happen to be caught. The effect of an important conviction reversed in its effect upon lawless sentiment cannot be overestimated.
A sense of judicial propriety183 is one of the most to be desired qualities in a judge. The slightest suspicion that he is giving ear to voices from behind the dais nullifies his effectiveness and destroys popular respect for the law which he may perhaps in fact enforce with ability and justice. The sight of a politician emerging from a judge's chambers184 may baselessly destroy the latter's influence for good. Actual infractions of judicial propriety should be visited with the utmost severity. Prescott speaks of the jealousy185 of the Aztecs of the integrity of their bench:
"To receive presents or a bribe186, to be guilty of collusion in any way with a suitor, was punished in a judge with death. Who or what tribunal decided187 as to his guilt does not appear. In Tezcuco this was done by the rest of the court. But the king presided over that body. The Tezcucan prince, Nezahua Epilli, who rarely tempered justice with mercy, put one judge to death for taking a bribe, and another for determining suits in his own house,—a capital offence, also, by law." Perhaps this was going too far.
"The judges of the higher tribunals," he continues, "were maintained from the produce of a part of the crown lands, reserved for the purpose. They, as well as the supreme judge, held their offices for life. The proceedings188 in the courts were conducted with decency190 and order. The judges wore an appropriate dress, and attended to business both parts of the day, dining always, for the sake of despatch191, in[Pg 199] an apartment of the same building where they held their session; a method of proceeding189 much commended by the Spanish chroniclers, to whom despatch was not very familiar in their own tribunals."
We can appreciate to a considerable extent the emotions of the Spanish chroniclers. Judges often dine together, but not always for the sake of despatch. The writer has no hesitation192 in affirming that disregard of the comfort and time of jurors and witnesses is the most obvious fault of certain of them. Some judges occasionally adjourn193 court from one until two and make their own appearance any time before three. It is small consolation to a juror nervously194 distracted by waiting to find that the judge expects conscientiously195 to make up the time thus lost by keeping the jury at work until five. In most instances, however, the judges are more punctual and business-like than the jurors and counsel who appear before them.
Some judges occasionally seem to feel that the benefit of the "reasonable doubt" to which a prisoner is entitled before the jury remains196 with and should be given to him even after conviction. This sometimes manifests itself in the extraordinary phenomenon of a defendant who has stood trial and perjured himself in his own behalf receiving a less severe sentence than his co-defendant who has pleaded guilty and saved the county the expense and labor of a trial. There was once a case where this occurred in which two of the perpetrators of a brutal197 robbery pleaded guilty and received seven years apiece, while their "side-partner," after being convicted before a jury, was given five years by another judge. It was not in this case, but an earlier one,[Pg 200] in which a judge, obviously on the theory of reasonable doubt, addressed the prisoner substantially as follows:
"Young man, you have been convicted by a jury of your peers after a fair trial. Your offence is a heinous198 one. You took the stand and perjured yourself, asserting your innocence. I might inflict a severe punishment. Still, under all the circumstances, and in view of your claim that you are not guilty, I will suspend sentence."
The reader should not and will not assume that these instances of unequal punishment and erratic199 clemency200 are set forth for the purpose of illustrating the usual course of justice. They are the exception, not the rule. That they sometimes occur cannot be denied. They should never occur. They are probably due frequently to utter weariness on the part of the judge, coupled with the realization201 that it is sometimes practically a human impossibility to get at the true inwardness of a case or know what to do. Seemingly arbitrary sentences on close observation are sometimes found to be erratic only in the language in which they are phrased,—not in the amount of the punishment. The table on the opposite page shows, the writer believes, that the average sentences imposed in the various classes of crime bear a remarkably202 sound relation to one another.
Could, however, the separate sentences be examined, an astonishing and lamentable203 inequality would be discovered,—an inequality which is an actual injustice204, but an injustice which cannot be prevented under our present system. Unless all offences should be tried before a single judge of unvarying disposition and physical condition abso[Pg 201]lute equality could not be secured. Where they are tried before four or five different judges there will be four or five different and constantly varying factors which must be multiplied into the constants shown by the record. Some judges regard certain crimes as more detestable than others do, and some judges see greater possibilities of reformation in any given criminal than others. Some are more affected by the immorality205, as distinguished from the illegality, of a given crime than others, and certain judges will take into consideration features of the case that would be entirely disregarded by their associates.
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Classified list of the number of persons convicted, and the average term imposed for each particular crime during the year 1907 in New York County.
MALES
Years Months Years Months
Abduction 4 32 .. 8 ..
Abandonment 2 4 .. 2 ..
Assault, 1st degree 4 27 1 6 9
" 2d degree 48 161 7 3 4
Bigamy 6 20 10 3 6
Burglary, 1st degree 5 94 7 18 11
" 2d degree 30 187 5 6 3
" 3d degree 120 385 2 3 2
Carrying burglar's tools 6 23 4 3 11
Election law 8 26 1 3 3
Extortion 6 14 6 2 5
Felony (N.C.) 2 12 .. 6 ..
" 2d degree 13 63 2 4 10
" 3d degree 3 10 3 3 5
Grand larceny, 1st degree 38 209 8 5 6
" " 2d degree 146 478 .. 3 3
Kidnapping 3 44 1 14 8
Maiming 1 2 .. 2 ..
Manslaughter, 1st degree 11 165 1 15 ..
" 2d degree 3 30 9 10 3
Murder, 1st degree 3 Sentenced to be executed
" 2d degree 13 260 See note 20 ..
Attempted murder, 1st degree 1 24 6 24 6
" 2d degree 10 80 6 8 ..
Receiving stolen goods 11 42 .. 3 10
Robbery, 1st degree 23 245 7 10 8
" 2d degree 6 59 2 9 10
Seduction 1 4 9 4 9
Sodomy 3 29 1 9 8
Total 550 2,845 7 5 2
Note.—In preparing the above table, the maximum terms of all indeterminate sentences are computed213, except in convictions of murder in the second degree, in which the minimum terms of twenty years are used. (Section 187. Penal Code.)
[Pg 202]
STATE PRISON—FEMALES
Offence No. Terms of Sentences Average Term Each Person
Years Months Years Months
Assault, 2d degree 5 13 10 2 9
Grand larceny, 1st degree 7 40 3 5 9
" " 2d degree 7 23 8 3 4
Manslaughter, 1st degree 1 7 5 7 5
" 2d degree 1 13 6 13 6
Receiving stolen goods 1 5 .. 5 ..
Robbery, 1st degree 1 3 6 3 6
Total 23 107 2 4 8
This divergency of mental attitude accounts in part for the great curse of the inequality of sentences. Two cases suggest themselves vividly214 as examples.
A conductor on a surface car took the place of the motorman and carelessly ran into a wagon215, throwing out the driver, who died in consequence. He was convicted of manslaughter in the second degree and sentenced to ten years in State's prison.
Another defendant who had killed a woman by cutting her throat and hacking216 her up with a razor was convicted of the first degree of the same crime and sentenced to the Elmira Reformatory. Both defendants217 were of approximately the same age. In[Pg 203] each case the particular sentence seemed just and fair to the judge who presided at the trial. It was conscientiously imposed. Yet the thing speaks for itself.
It has sometimes been suggested that all sentences should be imposed by all the judges sitting en banc. While this would entail218 great labor and expense it would undoubtedly, if it were practicable, do much to obviate219 the present unfortunate condition. Assuming that four judges composed this sentencing board, the vote of the justice who had presided at the trial might, by virtue220 of his greater familiarity with the facts, be given a weight equal to that of the other three combined. Had the two sentences just named been imposed by such a board it is far from probable that they would have been inflicted in the same terms.
An effort has been made in the preceding pages to set forth some of the failings of criminal justice on the part of the court which seem open to honest criticism. The members of the bench themselves would be the last to minimize the injustice of the inequality of sentences which under our present system seems inevitable221, and are continually endeavoring to remedy it so far as possible. They also recognize the fact that it is often difficult, if not out of the question, to preserve in the face of overwhelming evidence an imperturbable222 serenity223 of demeanor224 when the fact of the defendant's guilt is clear and the details of his crime are revolting to every moral sense, and they are equally ready to acknowledge that on occasion they may inadvertently disclose their impression that while they may "let a case go to the jury," the defendant should be acquitted.[Pg 204] Judges are, after all, but men, and to err is human. But there is hardly a judge upon the bench who does not conscientiously strive to perform his duties in such a way that justice may be secured in the manner provided by the Constitution,—by leaving the jury untrammelled in their function of determining upon the sworn evidence in the case the guilt or innocence of the defendant. Finally it should be said that it is not the weak but the strong judge that is most apt to transgress225 in this direction, and that it is the strong judge who is most likely to serve the best interests of the community. For the weak judge there is no place in the administration of criminal justice. His presence upon the bench is an incentive to crime and a reproach to his fellows.
FOOTNOTES:
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1
defendant
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| n.被告；adj.处于被告地位的 | |
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discretion
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| n.谨慎；随意处理 | |
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rev
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| v.发动机旋转，加快速度 | |
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perfectly
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| adv.完美地，无可非议地，彻底地 | |
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impartial
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| adj.(in,to)公正的，无偏见的 | |
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consolation
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| n.安慰，慰问 | |
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prosecutor
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| n.起诉人；检察官，公诉人 | |
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politic
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| adj.有智虑的；精明的；v.从政 | |
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rascal
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| n.流氓；不诚实的人 | |
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requisite
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| adj.需要的，必不可少的；n.必需品 | |
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possessed
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| adj.疯狂的；拥有的，占有的 | |
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meted
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| v.（对某人）施以，给予（处罚等）( mete的过去式和过去分词 ) | |
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offender
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| n.冒犯者，违反者，犯罪者 | |
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overestimate
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| v.估计过高，过高评价 | |
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overestimated
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| 对（数量）估计过高，对…作过高的评价( overestimate的过去式和过去分词 ) | |
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hearsay
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| n.谣传，风闻 | |
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testimony
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| n.证词；见证，证明 | |
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larceny
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| n.盗窃（罪） | |
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presumption
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| n.推测，可能性，冒昧，放肆，[法律]推定 | |
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innocence
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| n.无罪；天真；无害 | |
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syllable
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| n.音节；vt.分音节 | |
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impartially
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| adv.公平地，无私地 | |
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illustrating
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| 给…加插图( illustrate的现在分词 )； 说明； 表明； （用示例、图画等）说明 | |
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serenely
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| adv.安详地，宁静地，平静地 | |
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acquitted
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| 宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现 | |
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acquit
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| vt.宣判无罪；(oneself)使(自己)表现出 | |
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27
astute
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| adj.机敏的，精明的 | |
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miserable
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| adj.悲惨的，痛苦的；可怜的，糟糕的 | |
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frankly
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| adv.坦白地，直率地；坦率地说 | |
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30
guilt
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| n.犯罪；内疚；过失，罪责 | |
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indifference
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| n.不感兴趣，不关心，冷淡，不在乎 | |
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32
awe
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| n.敬畏，惊惧；vt.使敬畏，使惊惧 | |
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supreme
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| adj.极度的，最重要的；至高的，最高的 | |
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judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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autocrat
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| n.独裁者；专横的人 | |
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improper
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| adj.不适当的，不合适的，不正确的，不合礼仪的 | |
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wrath
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| n.愤怒，愤慨，暴怒 | |
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38
apprehension
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| n.理解，领悟；逮捕，拘捕；忧虑 | |
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disapproval
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| n.反对，不赞成 | |
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40
conscientious
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| adj.审慎正直的，认真的，本着良心的 | |
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41
shovels
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| n.铲子( shovel的名词复数 )；锹；推土机、挖土机等的)铲；铲形部份v.铲子( shovel的第三人称单数 )；锹；推土机、挖土机等的)铲；铲形部份 | |
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42
instinctively
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| adv.本能地 | |
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43
admonish
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| v.训戒；警告；劝告 | |
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44
liar
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| n.说谎的人 | |
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drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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46
demolish
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| v.拆毁(建筑物等)，推翻(计划、制度等) | |
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47
perjured
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| adj.伪证的，犯伪证罪的v.发假誓，作伪证( perjure的过去式和过去分词 ) | |
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interfere
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| v.(in)干涉，干预；(with)妨碍，打扰 | |
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49
inadequate
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| adj.(for,to)不充足的，不适当的 | |
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50
pervades
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| v.遍及，弥漫( pervade的第三人称单数 ) | |
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51
eradicate
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| v.根除，消灭，杜绝 | |
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52
inevitably
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| adv.不可避免地；必然发生地 | |
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53
nonentity
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| n.无足轻重的人 | |
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54
mere
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| adj.纯粹的；仅仅，只不过 | |
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55
ornament
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| v.装饰，美化；n.装饰，装饰物 | |
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56
elucidate
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| v.阐明，说明 | |
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57
tangled
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| adj. 纠缠的，紊乱的 动词tangle的过去式和过去分词 | |
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58
adroit
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| adj.熟练的，灵巧的 | |
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59
forth
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| adv.向前；向外，往外 | |
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60
briefly
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| adv.简单地，简短地 | |
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61
disposition
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| n.性情，性格；意向，倾向；排列，部署 | |
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62
usurp
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| vt.篡夺，霸占；vi.篡位 | |
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63
prevailing
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| adj.盛行的；占优势的；主要的 | |
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64
doctrines
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| n.教条( doctrine的名词复数 )；教义；学说；（政府政策的）正式声明 | |
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doctrine
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| n.教义；主义；学说 | |
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66
entirely
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| ad.全部地，完整地；完全地，彻底地 | |
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67
concealing
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| v.隐藏，隐瞒，遮住( conceal的现在分词 ) | |
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68
arrogate
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| v.冒称具有...权利，霸占 | |
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69
harmoniously
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| 和谐地，调和地 | |
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70
superfluous
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| adj.过多的，过剩的，多余的 | |
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71
arbiter
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| n.仲裁人，公断人 | |
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72
positively
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| adv.明确地，断然，坚决地；实在，确实 | |
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73
eyebrow
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| n.眉毛，眉 | |
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74
determined
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| adj.坚定的；有决心的 | |
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75
utterly
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| adv.完全地，绝对地 | |
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76
distinguished
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| adj.卓越的，杰出的，著名的 | |
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77
shrug
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| v.耸肩(表示怀疑、冷漠、不知等) | |
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78
temperament
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| n.气质，性格，性情 | |
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79
inclination
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| n.倾斜；点头；弯腰；斜坡；倾度；倾向；爱好 | |
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80
prey
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| n.被掠食者，牺牲者，掠食；v.捕食，掠夺，折磨 | |
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81
cower
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| v.畏缩，退缩，抖缩 | |
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82
inert
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| adj.无活动能力的，惰性的；迟钝的 | |
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83
dens
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| n.牙齿，齿状部分；兽窝( den的名词复数 )；窝点；休息室；书斋 | |
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84
penal
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| adj.刑罚的；刑法上的 | |
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85
resentment
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| n.怨愤，忿恨 | |
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86
systematically
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| adv.有系统地 | |
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87
influential
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| adj.有影响的，有权势的 | |
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disastrous
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| adj.灾难性的，造成灾害的；极坏的，很糟的 | |
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anarchistic
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| 无政府主义的 | |
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partisan
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| adj.党派性的；游击队的；n.游击队员；党徒 | |
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91
outrage
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| n.暴行，侮辱，愤怒；vt.凌辱，激怒 | |
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92
condemnation
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| n.谴责; 定罪 | |
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93
indictment
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| n.起诉；诉状 | |
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casually
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| adv.漠不关心地，无动于衷地，不负责任地 | |
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95
accusation
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| n.控告，指责，谴责 | |
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96
equilibrium
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| n.平衡，均衡，相称，均势，平静 | |
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97
prosecution
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| n.起诉，告发，检举，执行，经营 | |
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persistently
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| ad.坚持地；固执地 | |
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99
redress
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| n.赔偿，救济，矫正；v.纠正，匡正，革除 | |
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100
latitude
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| n.纬度，行动或言论的自由(范围)，(pl.)地区 | |
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101
defiance
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| n.挑战，挑衅，蔑视，违抗 | |
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102
adroitness
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103
probity
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| n.刚直；廉洁，正直 | |
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104
absurdity
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| n.荒谬，愚蠢；谬论 | |
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105
prospect
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| n.前景，前途；景色，视野 | |
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undoubtedly
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| adv.确实地，无疑地 | |
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lenient
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| adj.宽大的，仁慈的 | |
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108
qualified
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| adj.合格的，有资格的，胜任的，有限制的 | |
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109
converged
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| v.（线条、运动的物体等）会于一点( converge的过去式 )；（趋于）相似或相同；人或车辆汇集；聚集 | |
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110
standing
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| n.持续，地位；adj.永久的，不动的，直立的，不流动的 | |
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111
relegated
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| v.使降级( relegate的过去式和过去分词 )；使降职；转移；把…归类 | |
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112
statutes
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| 成文法( statute的名词复数 )； 法令； 法规； 章程 | |
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113
prosecuting
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| 检举、告发某人( prosecute的现在分词 )； 对某人提起公诉； 继续从事（某事物）； 担任控方律师 | |
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114
abruptly
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| adv.突然地，出其不意地 | |
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115
bias
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| n.偏见，偏心，偏袒；vt.使有偏见 | |
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116
miscarriage
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| n.失败，未达到预期的结果；流产 | |
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117
courteous
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| adj.彬彬有礼的，客气的 | |
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118
platitude
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| n.老生常谈，陈词滥调 | |
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119
labor
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| n.劳动，努力，工作，劳工；分娩；vi.劳动，努力，苦干；vt.详细分析；麻烦 | |
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120
unnaturally
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| adv.违反习俗地；不自然地；勉强地；不近人情地 | |
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121
imprisonment
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| n.关押，监禁，坐牢 | |
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122
appreciable
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| adj.明显的，可见的，可估量的，可觉察的 | |
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123
err
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| vi.犯错误，出差错 | |
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124
administrators
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| n.管理者( administrator的名词复数 )；有管理（或行政）才能的人；（由遗嘱检验法庭指定的）遗产管理人；奉派暂管主教教区的牧师 | |
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125
inflict
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| vt.(on)把…强加给，使遭受，使承担 | |
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126
Vogue
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| n.时髦，时尚；adj.流行的 | |
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127
wholesale
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| n.批发；adv.以批发方式；vt.批发，成批出售 | |
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128
harangue
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| n.慷慨冗长的训话，言辞激烈的讲话 | |
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129
deferential
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| adj. 敬意的，恭敬的 | |
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130
amicable
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| adj.和平的，友好的；友善的 | |
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131
exasperated
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| adj.恼怒的 | |
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132
investigation
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| n.调查，调查研究 | |
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133
judgments
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| 判断( judgment的名词复数 )； 鉴定； 评价； 审判 | |
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134
altercation
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| n.争吵，争论 | |
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135
farce
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| n.闹剧，笑剧，滑稽戏；胡闹 | |
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136
relatively
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| adv.比较...地，相对地 | |
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137
swerve
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| v.突然转向，背离；n．转向，弯曲，背离 | |
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138
granite
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| adj.花岗岩，花岗石 | |
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139
impervious
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| adj.不能渗透的，不能穿过的，不易伤害的 | |
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140
inflicting
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| 把…强加给，使承受，遭受( inflict的现在分词 ) | |
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141
vindictive
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| adj.有报仇心的，怀恨的，惩罚的 | |
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142
previously
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| adv.以前，先前（地） | |
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143
affidavits
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| n.宣誓书，（经陈述者宣誓在法律上可采作证据的）书面陈述( affidavit的名词复数 ) | |
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144
memoranda
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| n. 备忘录, 便条 名词memorandum的复数形式 | |
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145
inflicted
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| 把…强加给，使承受，遭受( inflict的过去式和过去分词 ) | |
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146
intercede
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| vi.仲裁，说情 | |
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147
laborer
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| n.劳动者，劳工 | |
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148
copper
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| n.铜；铜币；铜器；adj.铜(制)的；(紫)铜色的 | |
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149
swarm
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| n.(昆虫)等一大群；vi.成群飞舞；蜂拥而入 | |
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150
pillage
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| v.抢劫；掠夺；n.抢劫，掠夺；掠夺物 | |
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151
affected
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| adj.不自然的，假装的 | |
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152
penitentiary
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| n.感化院；监狱 | |
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153
precisely
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| adv.恰好，正好，精确地，细致地 | |
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154
deterrent
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| n.阻碍物，制止物；adj.威慑的，遏制的 | |
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155
banking
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| n.银行业，银行学，金融业 | |
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156
pilfering
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| v.偷窃（小东西），小偷( pilfer的现在分词 )；偷窃（一般指小偷小摸） | |
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157
reposed
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| v.将（手臂等）靠在某人（某物）上( repose的过去式和过去分词 ) | |
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158
persuasive
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| adj.有说服力的，能说得使人相信的 | |
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159
lessen
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| vt.减少，减轻；缩小 | |
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160
indefatigable
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| adj.不知疲倦的，不屈不挠的 | |
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161
restitution
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| n.赔偿；恢复原状 | |
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162
embezzlement
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| n.盗用，贪污 | |
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163
gambling
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| n.赌博；投机 | |
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164
leniency
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| n.宽大（不严厉） | |
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165
layman
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| n.俗人，门外汉，凡人 | |
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166
custody
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| n.监护，照看，羁押，拘留 | |
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167
varied
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| adj.多样的，多变化的 | |
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168
imprisoned
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| 下狱，监禁( imprison的过去式和过去分词 ) | |
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169
sentimental
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| adj.多愁善感的，感伤的 | |
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170
appreciation
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| n.评价；欣赏；感谢；领会，理解；价格上涨 | |
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171
cowardice
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| n.胆小，怯懦 | |
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172
curry
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| n.咖哩粉，咖哩饭菜；v.用咖哩粉调味，用马栉梳，制革 | |
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173
dread
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| vt.担忧，忧虑；惧怕，不敢；n.担忧，畏惧 | |
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174
lessened
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| 减少的，减弱的 | |
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175
engendering
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| v.产生（某形势或状况），造成，引起( engender的现在分词 ) | |
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176
venal
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| adj.唯利是图的，贪脏枉法的 | |
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177
adjuration
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| n.祈求，命令 | |
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178
incapable
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| adj.无能力的，不能做某事的 | |
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179
incentive
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| n.刺激；动力；鼓励；诱因；动机 | |
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180
crooked
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| adj.弯曲的；不诚实的，狡猾的，不正当的 | |
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181
amenable
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| adj.经得起检验的；顺从的；对负有义务的 | |
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182
apprehended
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| 逮捕，拘押( apprehend的过去式和过去分词 )； 理解 | |
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183
propriety
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| n.正当行为；正当；适当 | |
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184
chambers
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| n.房间( chamber的名词复数 )；（议会的）议院；卧室；会议厅 | |
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185
jealousy
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| n.妒忌，嫉妒，猜忌 | |
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186
bribe
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| n.贿赂；v.向…行贿，买通 | |
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187
decided
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| adj.决定了的，坚决的；明显的，明确的 | |
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188
proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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189
proceeding
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| n.行动，进行，(pl.)会议录，学报 | |
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190
decency
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| n.体面，得体，合宜，正派，庄重 | |
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191
despatch
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| n./v.(dispatch)派遣；发送；n.急件；新闻报道 | |
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192
hesitation
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| n.犹豫，踌躇 | |
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193
adjourn
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| v.（使）休会，（使）休庭 | |
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194
nervously
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| adv.神情激动地，不安地 | |
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195
conscientiously
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| adv.凭良心地；认真地，负责尽职地；老老实实 | |
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196
remains
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| n.剩余物，残留物；遗体，遗迹 | |
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197
brutal
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| adj.残忍的，野蛮的，不讲理的 | |
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198
heinous
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| adj.可憎的，十恶不赦的 | |
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199
erratic
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| adj.古怪的，反复无常的，不稳定的 | |
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200
clemency
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| n.温和，仁慈，宽厚 | |
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201
realization
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| n.实现；认识到，深刻了解 | |
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202
remarkably
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| ad.不同寻常地，相当地 | |
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203
lamentable
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| adj.令人惋惜的，悔恨的 | |
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204
injustice
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| n.非正义，不公正，不公平，侵犯（别人的）权利 | |
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205
immorality
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| n. 不道德, 无道义 | |
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206
aggregate
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| adj.总计的，集合的；n.总数；v.合计；集合 | |
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207
bribery
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| n.贿络行为，行贿，受贿 | |
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208
blackmail
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| n.讹诈，敲诈，勒索，胁迫，恫吓 | |
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209
concealed
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| a.隐藏的，隐蔽的 | |
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210
forgery
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| n.伪造的文件等，赝品，伪造（行为） | |
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211
perjury
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| n.伪证；伪证罪 | |
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212
rape
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| n.抢夺，掠夺，强奸；vt.掠夺，抢夺，强奸 | |
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213
computed
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| adj.[医]计算的，使用计算机的v.计算，估算( compute的过去式和过去分词 ) | |
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214
vividly
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| adv.清楚地，鲜明地，生动地 | |
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215
wagon
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| n.四轮马车，手推车，面包车；无盖运货列车 | |
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216
hacking
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| n.非法访问计算机系统和数据库的活动 | |
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217
defendants
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| 被告( defendant的名词复数 ) | |
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218
entail
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| vt.使承担，使成为必要，需要 | |
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219
obviate
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| v.除去，排除，避免，预防 | |
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220
virtue
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| n.德行，美德；贞操；优点；功效，效力 | |
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221
inevitable
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| adj.不可避免的，必然发生的 | |
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222
imperturbable
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| adj.镇静的 | |
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223
serenity
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| n.宁静，沉着，晴朗 | |
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224
demeanor
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| n.行为；风度 | |
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225
transgress
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| vt.违反，逾越 | |
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