Problems in American Democracy

by Thames Williamson

Our criminal law is administered unjustly in two ways.

First, it sometimes allows the rich, the cunning, and the powerful offenders to escape the penalty for their crimes. In many states the court dockets are so crowded that influential offenders are not convicted for years, if at all. Rich prisoners may be released on bail, and consideration of their case so delayed that the evidence disappears. Public interest is diverted to new cases, and eventually the case may be quietly dismissed. Mr. Taft points out that we lead the world in the number of serious crimes which go unpunished. Appeals are allowed almost as a matter of course, so that in many serious criminal trials the original verdict is only the beginning of the case.

Second, the law which often allows the powerful and crafty to avoid punishment may operate to deny justice to the poor. Ignorant prisoners are in many cases so bewildered by cumbersome and technical court procedure that they allow their cases to be disposed of without adequate protection of their rights. Often they have no one to advise them as to their constitutional rights and privileges. If they are not only ignorant but poor, they find themselves unable to employ proper counsel. The Constitution indeed recognizes the right of an accused person to have counsel, but in many states if a man is too poor or too ignorant to secure a lawyer, he is obliged to stand trial without anyone to represent or advise him. In some states, the court appoints a lawyer to represent such defendants. Sometimes the assigned counsel is dishonest, and too often his primary object is to get a fee rather than to secure justice for his client. Generally the counsel so appointed is inexperienced, and consequently no match for an able and experienced prosecuting attorney, whose reputation may depend upon the number of convictions that he secures.

233. THE REFORM OF CRIMINAL PROCEDURE.—The reform of criminal procedure is assuming great importance as a problem of American democracy. In many states there is a demand for a wider and more energetic use of the Bertillon and finger print systems for the identification of criminals. Because of the fact that in our large cities a heavy percentage of crimes are committed without the subsequent arrest of the culprit, there is a growing demand for the improvement of our police systems. Our criminal law needs to be simplified, so that justice may not be delayed by technicalities, long arguments on the admissibility of evidence, and the abuse of the right of appeal. Probably a good many of the delays and technicalities of legal procedure could be avoided if at the trial the judge were to exercise a greater amount of control over the proceedings.

The reform of criminal procedure has a double aim. First, it aims to reorganize and perfect criminal procedure so that persons who have committed an offense will be apprehended and always made to pay the penalty for their crimes. Toward the achievement of this ideal we have as yet done very little. We are still woefully behind such a country as England, where justice is administered with relative rapidity and sureness. Second, the reform of criminal procedure aims to prevent the law from bearing with undue weight upon the poor and ignorant. Here we are making greater progress. Let us notice what is being done to guarantee justice to persons who are unable adequately to safeguard their own legal rights.

234. THE LEGAL AID SOCIETY.—A valuable institution is the legal aid society, which originated in New York City in 1876, and which has since spread to other parts of the country. Of the forty legal aid societies now in existence in this country, some of the better known are located in New York City, Los Angeles, Kansas City, Boston, and Chicago. The legal aid society is generally a private organization, created and maintained by public-spirited citizens who believe that the poor and ignorant ought to be given legal advice free of charge, or upon the payment of a nominal fee. These societies extend advice on both civil and criminal matters. The legal aid society helps materially to secure justice by acquainting the individual with his legal rights, and by acting as his counsel in court. Such organizations are especially valuable in safeguarding the rights and privileges of immigrants in large cities. The total number of persons helped annually by legal aid societies in the United States is over 100,000.

235. THE PUBLIC DEFENDER.—The Public Defender movement is an outgrowth of the feeling that it is unfair for the court to assign an inexperienced and sometimes unreliable lawyer to defend a penniless prisoner, while the case is prosecuted by a skilful district attorney. In spite of the presumption that the prisoner is innocent until he is proved guilty, such practices as this have operated as though the prisoner were presumed to be guilty.

In 1912 Oklahoma attempted to remedy this evil by appointing a Public Defender whose duty it should be to aid in the defense of persons unable to employ counsel. The next year the city of Los Angeles appointed a Public Defender who, as a sworn public counsel of experience and integrity, makes it his business to defend poor prisoners without charge. A few years later, Portland, Oregon, and Omaha, Nebraska, appointed similar officers. Since 1916 many other cities, and a few states, have provided for a Public Defender of some kind, although in many cases the provision is as yet inadequate. In all cities in which the plan has been given a trial, the Public Defender has been instrumental in securing justice for the poor, and in raising the moral tone of the criminal trial. By eliminating much unnecessary delay from the criminal trial, the Public Defender has also helped to reduce court expenses.

236. CHANGING IDEALS IN PENOLOGY.—In the early stages of society the spirit of revenge seems to have been a chief motive in the punishment of criminals, although the desire to prevent crime must also have been a factor. With the progress of civilization revenge declined in importance, and the punishment of the criminal seems to have been undertaken chiefly for the purpose of preventing future crimes. Long periods of imprisonment, inhuman punishments, and the frequent use of the death penalty were characteristic of this attitude toward crime. Curiously enough, punishments were imposed according to the seriousness of the crime committed, without regard to the character and needs of the criminal.

Of recent years the theory of punishment has been still further modified. In the first place, we have begun to doubt if punishment always serves a useful purpose. Punishment does not always deter criminals, and for this reason it is likely that the death penalty and other cruel and inhuman methods of punishment may be dispensed with, without a resultant increase in the amount of crime. In the second place, punishment has taken on a new aim. More and more we are coming to believe that it should be imposed, not according to the seriousness of the crime committed, but according as the individual criminal needs to be punished in order to effect his reformation. This new attitude is based upon the assumption that the criminal is a person who is not adapted to the conditions of modern life, and that the chief aim of the authorities should be so to reform him that he will become a useful member of society. In case reform seems impossible, the criminal should be segregated in an institution.