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

by Arthur Cheney Train

As an illustration, let us suppose that one of a band or "gang" of young toughs has been apprehended 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 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 propriety 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 chambers 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 jealousy of the Aztecs of the integrity of their bench:

"To receive presents or a bribe, to be guilty of collusion in any way with a suitor, was punished in a judge with death. Who or what tribunal decided 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 proceedings in the courts were conducted with decency and order. The judges wore an appropriate dress, and attended to business both parts of the day, dining always, for the sake of despatch, in an apartment of the same building where they held their session; a method of proceeding 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 hesitation 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 adjourn court from one until two and make their own appearance any time before three. It is small consolation to a juror nervously distracted by waiting to find that the judge expects conscientiously 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 remains 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 brutal 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, 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 heinous 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 erratic clemency 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 realization 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 remarkably sound relation to one another.

Could, however, the separate sentences be examined, an astonishing and lamentable inequality would be discovered,—an inequality which is an actual injustice, 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 absolute 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 immorality, 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.

========================================================================