The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

by Arthur Cheney Train

In addition to the legal ground of insanity why judgment should not be imposed, a convict or his counsel may properly, on his arraignment, state to the court any general reasons for a mitigation of sentence or for its absolute suspension when such is within the discretion of the court, and few sentences are imposed without a more or less lengthy appeal for clemency from the defendant's lawyer, who usually does not confine himself merely to the contrition of the defendant, his past respectability and his pledges to lead a new and better life, but is prone to discourse volubly upon the reputable connections of the defendant, the hardship which a sentence will impose upon his family, and the fact that the complainant or those who have been interested in the prosecution now have a profound sympathy for the prisoner. The gist of many of these appeals is to the effect that because the defendant, by reason of his education and opportunities, ought to have known better than to commit crime, he should now, since he has discovered his mistake, be excused from paying the penalty. The judge invariably listens with courtesy to these orations, which are not often made with any idea of actually influencing the court's decision. They are grateful to the defendant and his family, and impress the latter with the fact that the lawyer is doing everything in his power to get his client off.

It is now the judge's soul is tried. How far may he temper justice with mercy? How far are the interests of the public and the prisoner irreconcilable? Many youthful offenders, who have not hitherto been convicted, escape with a suspended sentence or a commitment to a reformatory—even when found guilty of crimes as serious as manslaughter or robbery. Little mercy is shown to old offenders. In fact, the law now provides that they may be tried under an indictment charging them with having committed a "second offence," under which, if found guilty, they must be sentenced to the maximum penalty set for a first offence of the same crime.

It should be noticed that originally only one sentence, and that a definite one, could be passed by the judge upon a prisoner for any given offence. At first there were no provisions of law granting to convicts as a matter of right any reduction or commutation of sentence because of good behavior. Then laws were passed which provided for the definite commutation of the sentences of all convicts confined in State's prison. The question as to whether or not the convict had earned his commutation by good behavior was left to a board composed of the State superintendent of prisons and others. A carefully prepared scale or table showed exactly how much commutation it was possible for any prisoner to earn.[42]

In 1889 there was introduced into New York State for the first time what is commonly known as the "indeterminate sentence," that is to say, a sentence consisting of a minimum and a maximum term of imprisonment during which the prisoner may be discharged at the option of a board consisting of various persons, but distinct from that which passes upon the question of whether or not he has earned his "commutation." The introduction of this form of sentence is in conformity with the most recent and most enlightened view of the proper attitude of the State towards its criminals.

Whenever the indeterminate sentence has been introduced into any State it has been invariably attacked as being unconstitutional, but the courts have uniformly upheld it. The principal difference to be noted between "commutation" and "indeterminateness" of sentence is that the latter is vastly broader in effect, since only the prisoner's good behavior while actually undergoing his sentence in State's prison may be considered by the board which passes upon his commutation, while, in the case of the indeterminate sentence, the parole board may consider all the facts surrounding the commission of the crime, the convict's past life, and whatever other facts they see fit, as well as his good behavior during his period of confinement.[43]

After conviction the natural optimism of the human race reasserts itself and the defendant begins to believe that the worst is, after all, over, and to rely upon the assurances of his counsel or his political friends that the judge is going to be easy on him and give him a light sentence. Terrible is the disappointment of such a one who finds that he is going to be sentenced to State's prison when he expected the penitentiary or to the penitentiary when he expected to be set free entirely under a suspended sentence.

The judge usually prefaces the sentence with a few remarks of an admonitory character, commenting upon the severity of the crime which the defendant has committed, and upon the fact that it is within his power to sentence the latter to a long term of imprisonment. He generally adds that, under all the circumstances and considering the fact that the defendant has never been convicted before and has hitherto led a reputable life, he will be merciful and give him only so and so many years in State's prison.

Of course, this occurs only in such cases as deserve leniency. But where the defendant is a hardened criminal, or an ex-convict, or when his crime is one of atrocity, he is apt to learn, in no unmeasured terms, what the judge and the community think of him. The writer has heard a prisoner censured in such language that he blushed for the human race of which the convict could be the offspring. Most defendants receive their sentence with imperturbability, for they are able with approximate accuracy to figure out what punishment they will probably receive. The experiences of their acquaintances in the Tombs are of great assistance in this matter, yet more than one convict falls senseless on the floor when sentence is pronounced upon him, and hundreds lose their nerve and stagger away bewilderedly at the thought of the interminable years before them.

Yet a layman happening to be present on a Friday in the Court of General Sessions would be surprised at the apparent lightness of most of the sentences. The judges of our criminal courts are merciful men and rightly believe that a year or two in State's prison has a better effect upon the defendant than a longer term. A short-term man emerges, at least it is so to be hoped, with some aspirations for the future and with health as yet not undermined. To most judges the infliction of sentence upon a fellow human being ever remains a bitter experience. In the old days, however, there were some judges who, not unlike Jeffries, took a certain grim satisfaction in the performance of this duty. There was, many years ago, one of them who seemed to take a particular delight in so far as possible prolonging the agony of the defendant's uncertainty. When a prisoner had been arraigned for sentence the judge would wait for absolute silence, and would then with the greatest deliberation address a long harangue to the unfortunate man, characterize his crime in the severest manner, excoriate him for having committed it, name the maximum penalty which the law allowed, intimate that he was going to impose it, and then, after a long hiatus, slowly take down his sentence book, ink his pen with annoying deliberation, cough two or three times, look around the court-room and begin carefully inscribing each word upon the record before him, "I—shall—therefore—sentence—you—to—[cough, another glance around the room]—five years in State's prison."