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

by Arthur Cheney Train

A thousand indefinite factors enter into the determination of the exact amount of punishment to be meted out to an offender, and relatively trivial circumstances may eventually decide whether the stroke of the judge's pen in his sentence book shall swerve from a "three" into a "five." Assuming that the judge have the rectitude of a granite monolith and be impervious to influence of every sort, he is nevertheless compelled when inflicting 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of the defendant have been, and in so doing often is forced to rely almost entirely upon the word of the officer who originally made the arrest.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 vindictive 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 previously arrested. This fact is of course excluded upon the trial for his present crime upon the common-sense doctrine 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.

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. Affidavits, letters, newspaper clippings and memoranda 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 inflicted, whereas if they are sorry for the prisoner and his family and are willing to "give him another chance," and intercede 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 laborer lacking the money to buy liquor may wander into an area and cut away a strip of copper 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 particular 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 swarm about the judge demanding that "this wholesale pillage 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, affected by the representations of these gentlemen and he may easily give the defendant six months or a year in the penitentiary. The moral guilt of the prisoner is precisely the same and so will be the significance of his punishment so far as its serving as a deterrent to himself or to others is concerned.

Another instance is where a young clerk in a banking, express, or insurance office is caught pilfering. He has, to be sure, violated the trust reposed 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, persuasive, or have influence which can be exerted upon the complainant in the case, to lessen materially the sentence of his client, who without his services would perhaps receive the maximum of punishment. The poor or friendless prisoner, who cannot pay for able or indefatigable 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 restitution. Where a prisoner has been guilty of embezzlement 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 gambling 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 leniency of most of our judges is surprising, and when they err it is invariably upon the side of mercy.[35] The sentences actually inflicted are often so short that they must seem to the average layman almost trivial, and the number of cases in which sentence is "suspended" and the offender paroled in the custody of the Prison Association is almost seventy-five per cent of the total number of first convictions.

The reasons for this leniency are varied. Primarily it is because the judge realizes that it is not so much the length of imprisonment as the fact that the defendant is imprisoned 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 sentimental attitude of society towards criminals of all varieties; and, lastly, to an appreciation 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 cowardice in defying influence, political or otherwise, the desire to curry 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 dread 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 lessened regard for law by engendering a belief that its officers are weak, cowardly, venal, or ineffective, it is a failure. The adjuration 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 incapable, "easy," or are subject to influence. A judge who, it is supposed, can be "reached," is an incentive 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 "crooked." If a judge is supposed to be amenable to influence, the criminal will assume that his own particular pull will be effective.