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

by Arthur Cheney Train

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 bias, but these cases are comparatively few and seldom result in any actual miscarriage 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 courteous, 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 platitude 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 labor.

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 (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 unnaturally 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 penal servitude, by another with simple imprisonment, with nothing appreciable 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 administrators 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 inflict 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 vogue in our trial courts would hardly be viewed there with favor. It is the wholesale 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 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 harangue him and each other in tones by no means always either deferential or amicable. Meanwhile the judge who will permit any such performance sits with an expression of exasperated indecision, and usually finally ends the matter by "remanding" the prisoner for further investigation. Such scenes are calculated to bring the administration of justice into contempt. Snap-shot judgments formed in the midst of an altercation 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 farce 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.