It has sometimes been suggested that all sentences should be imposed by all the judges sitting en banc. While this would entail great labor and expense it would undoubtedly, if it were practicable, do much to obviate 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 virtue 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 inevitable, 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 imperturbable serenity of demeanor 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. 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 transgress 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:
[35] Cf. "Light Sentences and Pardons," by Frederick Bausman, 39 American Law Rev. 727.
THE JURY
Is trial by jury successful in criminal cases? Certainly it is popularly so regarded. Even lawyers and prosecutors will usually agree that it "works substantial justice," but this does not answer the question. In about three cases out of five "Judge Lynch" himself works "substantial justice." The function of the jury is not to "work justice" at all, but to decide a limited question of fact. They are there for the purpose of determining the issue without prejudice on the one hand or sympathy upon the other, and having no regard for the consequences of their verdict; they must accept unquestioningly the law from the judge upon every point and base their conclusions solely upon the sworn evidence in the case. This they swear that they will do. Yet they do not. Why? Is it want of intelligence, lack of regard for law, or vital misconception of their function?
Certainly it is not from want of intelligence. There can be no question as to the capability of the ordinary juryman to perform his duties. The independent American is singularly adapted to just this form of investigation. If the English be "a nation of shopkeepers," we are a nation of natural cross-examiners. You will find fully as good verbal fencing in a New England corner grocery store about mail time as you will in most courts of justice. But the very innate capacity of the native American to perceive the truth and get to the bottom of things, leads him to believe that he knows equally well, if not better than the judge, what ought to be done about it and what punishment, if any, should be inflicted upon the defendant under the circumstances. It is not that our jurors are incapable or uninterested, but, paradoxical as it may seem, that they are too capable and too interested. They want to be not only jurors, but district attorney, counsel for the defendant, expert witness, and judge into the bargain.