the two principal functions of the judge of a criminal court are, first, to preside at the trial, declaring the law and seeing to it that the rules of procedure and of evidence are properly observed and, second, to impose sentence in case of a conviction. in the first case he is a judge of the law; in the last he becomes a judge of the facts. it would be impossible to say which of these duties is the more important, but the latter is certainly vastly the more difficult. an unjust sentence is as bad, if not worse, than an unfair trial, for the defendant does not have a chance of escape and, since punishment is a matter of discretion upon the part of the judge, it cannot be considered or reversed on appeal. it must be of precious little satisfaction to a convicted prisoner to know that he has had a perfectly impartial trial, if at the same time he receives a sentence four times longer than he deserves, and equally little consolation to a prosecutor when, after a fair contest, he has convicted a political rascal of influence if the judge "suspend sentence" and the defendant is permitted to walk the streets in spite of his offences.

the amount of learning requisite to preside with efficiency at an ordinary criminal trial is comparatively small, and provided the judge be honest, impartial, possessed of common-sense and what is known as "backbone," neither prosecutor nor de[pg 179]fendant's counsel need, as a rule, complain, but the trouble, time, courage and discrimination necessary adequately to determine what punishment should be meted out to a particular offender for a given offence cannot well be overestimated. it is not a difficult matter to preside with dignity at a trial, preserve order, exclude hearsay testimony, apply the other simple rules of evidence that are ordinarily involved in a case of assault, larceny, burglary or homicide, and instruct a jury as to "reasonable doubt," "good reputation" and the "presumption of innocence" in words of one syllable. we may fairly assume that it is no harder for the ordinary judge to try a man for picking a pocket than it is to dress himself in the morning. it must in time become automatic if not almost sub-conscious. he could probably do it in his sleep. most petty criminal cases "try themselves." the trouble begins when the same judge is compelled to decide whether the convict shall be sent to the elmira reformatory (where he may reasonably expect to be discharged in fourteen months) or to state's prison for twenty years.

let us consider first the conduct of the judge during the trial itself. theoretically it is his duty, at least in most states of the union, simply to declare the law governing the case and to rule impartially upon the questions of evidence presented. he is supposed to give no hint of his own opinion as to whether or not the defendant should be convicted and to refrain from any marshalling of the facts claimed to have been proven by either side in such a way as to influence the verdict of the jury. in england he may and generally does "sum up" the case; in america such a course would usually be a[pg 180] ground for reversal, his function being limited to an abstract discussion of the law involved, with little reference to the facts save in so far as it may be necessary for purposes of illustrating the way in which the jury shall apply it. he is supposed to sit upon his dais serenely, indifferent as to whether a murderer be convicted or acquitted, whether an inexperienced assistant district attorney be "trounced" by an astute criminal lawyer with a couple of generations of trial experience, or, on the other hand, a bulldozing prosecutor bedevil a miserable prisoner, defended by an ignorant and untutored counsel, into state's prison,—provided either be done within the strict rules of evidence and proper court behavior.

this may be all very well in theory,—but it is very far from what is either followed in practice or, to speak frankly, desirable. what the people want in our criminal courts is, of course, a "fair trial," but they want a "fair trial" that results in the acquittal of the innocent and the conviction of the guilty,—so long as he is convicted by what they deem fair means. the people do not expect a judge to be more than human. did he appear as indifferent to results as theory might seem to require the jury would quickly infer that the case was of slight importance and their action a matter of utter indifference to the court. juries need to be kept in order and made to behave themselves, and, if judges did not from time to time exert a disciplinary influence, would easily run wild and become hopelessly demoralized. it is almost impossible to overestimate the awe with which the ordinary juryman regards the judge presiding at a criminal trial.[pg 181] he may have a supreme contempt for his personality or private conduct, but once let the judicial ermine enshroud the individual and he sees only the judge,—the personification of the law, the autocrat of the court-room, the "boss" of the particular "job" upon which he is temporarily employed. he knows nothing of the abstract theory of the situation. he wants to do well as a juryman and believes, quite naturally, that an improper verdict will be visited by the judicial wrath and a just one be acknowledged by a look of benignant commendation. if he thought the judge did not care he would take little interest in the business himself, and the apprehension of the court's approval or disapproval is an ever-present factor in keeping him doing conscientious work,—quite as important in its results as his own lightly murmured oath as a juror.

the judge, in addition to his theoretic duties, is in effect the individual who must keep the gang at work and see that every one of them earns his two dollars a day. if he appeared to them to be star-gazing or studying epictetus they would soon rest on their shovels. many juries take their cue from the court, laughing when he laughs, and frowning when he frowns, and instinctively, however much he may admonish them to the contrary, trying to determine from his manner and charge what his own impression of the case may be.

now, a judge who has sat for ten or fifteen years on the criminal bench is usually keener to detect a liar or see through a "faked" defence than any twelve men drawn indiscriminately from different walks of business activity. a timely question from him may demolish a perjured explanation which, but[pg 182] for his interference, would have acquitted a guilty criminal. theoretically it is none of his business. practically it is. an inexperienced prosecutor may be so inadequate to the task of coping with some old war-horse of a lawyer that save for the assistance of the court a rascal would be turned loose upon the community; or, turn about, a stupid lawyer may convict his own client if not prevented by a considerate presiding justice. theoretically the judge must let the parties fight it out by themselves. in point of fact it is his business to even things up. the old country judge was not so far wrong when on being assigned to the criminal term of the supreme court in new york city he said to the prosecutor:

"mr. district attorney, i reckon that, between us, we shall let no innocent man be convicted,—and no guilty man escape."

practically this expresses in a nutshell the popular idea of what a criminal judge is for, and it is certainly the idea which pervades the minds of the jury. nothing can eradicate it. it is a fact,—an existing condition, which the court must inevitably take into consideration in determining his course of conduct upon the bench. by this it is not meant that a judge should be either counsel for the defendant or district attorney, nor that he should force his ideas upon the jury, but simply that to be effective he must be more than a nonentity, a mere law book, or an ornament, must guide the course of the trial, and, in default of its being done by the counsel on either side, test by his questions the truth or falsity of the testimony. more than this, he should in his charge indicate the tests which the jury should apply[pg 183] to the various phases of the evidence and, while not influencing them upon the questions of fact which they are to determine, should nevertheless so elucidate their task that they may be guided in their deliberations and not go astray among the tangled underbrush of an adroit counsellor's "requests to charge."

the writer has endeavored in the preceding paragraphs to set forth briefly the theoretical function of the judge as opposed to his proper practical function if he is to be of any value in the actual administration of criminal justice. one more step is necessary, namely, to comment on the actual conduct of some judges who from natural disposition or a conscientious purpose to "do justice" are inclined to usurp the function of the jury and practically to direct either an acquittal or a conviction.

under our prevailing doctrines the court has no right to influence the jury on the facts in the slightest degree, and indeed most judges expressly direct the jury to disregard absolutely any idea they may have obtained of what the court's opinion may be. this, in the face of the balance of the charge, must often seem paradoxical to the talesman, for few judges entirely succeed in concealing their own views of the case, however hard they may honestly try to do so.

it is quite as foreign to the spirit of our institutions for a judge to interfere with the jury on questions of fact as for a jury to arrogate to itself the decision of points of law. the system is designed to do "justice" by means of its several parts working harmoniously together, but neither part "working justice" by itself. if the judge arrogate the[pg 184] jury's function, the jury becomes superfluous. this is not the intent of the constitution. there is no real trial by jury when the judge decides the whole matter, and it would be far more dangerous for a single man to act as arbiter of the defendant's fate than for twelve. yet more or less consciously there is often a tendency upon the part of the criminal bench to lend itself to the success of one party or the other, however positively it may declare and direct to the contrary. the actual amount of suggestion needed to give the jury an effective hint is infinitesimal. the almost imperceptible accentuation of a word, the slightest lifting of an eyebrow, and a verdict has been determined—by the judge.

now a printed record on appeal fails utterly to disclose the tone of the voice or the stage effects of a judge's charge. a distinguished member of the bench, now long since deceased, was accustomed to deliver charges so drastic that a defendant charged with a serious offence rarely, if ever, escaped. upon appeal absolutely no exception could be taken to his remarks, yet nothing more unfair could be conceived of. the record would show that the judge had charged:

"if you believe the defendant's testimony you will of course acquit him. he is presumed to be innocent until the contrary is proved. if you have any reasonable doubt as to his guilt you must give him the benefit of it. on the other hand, if you accept the testimony offered by the people you may and will convict him."

now, nothing on its face would seem to be fairer. what the jury actually heard was:

"if [scornfully] you believe the defendant's testi[pg 185]mony you will of course acquit him. he is presumed [with a shrug of the shoulders] to be innocent until the contrary is proved. if you have [another shrug] any reasonable doubt as to his guilt you must give him the benefit of it. on the other hand, if you accept the testimony offered in behalf of the people you may and will convict him!" [the last few words in tones of thunder.]

sometimes a judge becomes known as a "convicting" judge, although, perhaps, at the same time as a learned one. this usually occurs where a man of pronounced opinions with the advocate's temperament is elevated to the bench. very likely by inclination he is a "prosecutor," with strong prejudices against law-breakers and bitterly intolerant of technicalities. the powers that prey may cower inert in their dens of darkness knowing full well that if one of them be haled before this jeffries he will pay the uttermost penalty. yet the spectacle of such a judge does not increase the public respect for law, and juries sometimes revolt and acquit out of sheer resentment at such dictation. but happily these men are of the past, and the more enlightened sentiment of to-day would frown as much upon a "hanging" judge as upon a jelly-backed wearer of the gown who was afraid of the displeasure of some politician if a "heeler" were convicted and who ruled systematically against the people because they had no appeal and could take no exceptions to his conduct.

nothing strikes so sharply at our conception of liberty as the failure of criminal justice, and the conviction of a defendant not legally proven guilty or the acquittal of an influential criminal has a more[pg 186] disastrous effect upon the body politic than ten thousand bales of anarchistic propaganda. the partisan judge, who makes up his mind to convict or acquit if he can, may be right nine times out of ten, but the other time he commits an outrage. the judicial temperament is a jewel above all price. the writer recalls a certain case of a variety subject at the time to great public condemnation, where the judge before the indictment was moved for trial, inquired casually of the clerk what the defendant was charged with. when he learned the nature of the accusation he exclaimed audibly:

"ha! he's one of those ——s, is he? well, i'll try this case." and he did. unfortunately judges often "try" cases, either for the defendant or against him.

nothing is more unfortunate for the judicial equilibrium than the fact that the prosecution has no right of appeal in the event of a verdict of acquittal. the judge may persistently prevent the district attorney from putting questions which are both competent and proper and rule flatly against him on the most obvious points of law without any redress on the part of the people. a weak judge will take no chances on being reversed and will pursue this course, while at the same time he is allowing every latitude to defendant's counsel and is ruling in his favor in defiance of the established doctrines of law.

a criminal lawyer of great adroitness, learning and probity, after he had concluded an argument of the most utter absurdity to which the presiding judge had listened with much attention and apparent consideration, frankly stated to the writer:

[pg 187]

"you think my argument was nonsense? well, you are quite right, it was. but no proposition of law is too far-fetched or ridiculous to be advanced in behalf of a defendant without some prospect of success in our criminal courts." the lawyer in question will undoubtedly recognize his dictum in these pages.

the attitude and disposition of the various judges becomes speedily known among the members of what is popularly known as the "criminal bar," and heroic efforts (often successful) are made to bring certain cases before the "right" judge.

"do you think i'd try the smith case before ——?" one will say. "not on your life!"

in similar fashion lawyers retained by complainants will seek to have their cases put on the calendar of such and such a judge.

"put it before ——," they will say. "he's hell on larceny!"

some judges are supposed to be more lenient in the matter of sentences than their brothers of the bench, but the writer, after six years of observation, believes this to be a fiction. they are all lenient,—entirely too much so.

much of the impression among criminal lawyers that they will fare worse at the hands of one member of the judiciary than another is due to the obvious fact that some judges are by reason of their training better suited to sit in certain classes of cases than others. one may have had an exhaustive experience in commercial matters and thus be better qualified to pass upon the questions of law involved therein. another may have heard many complicated cases involving expert testimony, etc.,[pg 188] etc. of course as a rule the less well equipped a judge is to hear a certain kind of case the more apt he will be to listen to ill-founded argument on the law or the facts. no insurance swindler would want to be tried before an expert on insurance law. he would very naturally prefer a judge whose experiences had converged upon assault and battery. it must be admitted that occasionally a judge is to be found who seems to feel that every complainant who has lost money in a commercial transaction has no standing in the criminal courts but must be relegated to civil tribunals. this is but another way of saying that such a judge does not believe that the criminal law is meant to cover cases where there has been fraud in commercial transactions. this is hardly to be wondered at considering the present ineffectiveness of our statutes governing such classes of crime.

the writer recalls prosecuting such a case before a certain judge who, after hearing some rather complicated evidence in regard to certain written instruments, called abruptly for the defendant. the latter took the stand, and the judge inquired with a smile:

"you didn't intend to cheat this man, did you?"

"certainly not!" cried the defendant.

"gentlemen of the jury!" said the judge. "this is not the kind of case that should be brought before a jury at all. this court is not the place to collect civil debts. i instruct you to acquit."

learning wisdom by experience, the writer moved the case of the co-defendant for trial before another judge and convicted him, although he was, if anything, less guilty than the first. he was sentenced to a substantial term in state's prison.

[pg 189]

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[pg 190] (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[pg 191] 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.

[pg 192]

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.

[pg 193]

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 par[pg 194]ticular 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 with[pg 195]out 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. pri[pg 196]marily 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[pg 197] 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.

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[pg 198] 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[pg 199] 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,[pg 200] 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 abso[pg 201]lute 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.

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classified list of the number of persons convicted, and the average term imposed for each particular crime during the year 1907 in new york county.

males

offence no. aggregate term of sentences average term each person

years months years months

abduction 4 32 .. 8 ..

abandonment 2 4 .. 2 ..

assault, 1st degree 4 27 1 6 9

" 2d degree 48 161 7 3 4

bigamy 6 20 10 3 6

bribery 1 3 6 3 6

burglary, 1st degree 5 94 7 18 11

" 2d degree 30 187 5 6 3

" 3d degree 120 385 2 3 2

blackmail 4 17 6 4 4

carrying burglar's tools 6 23 4 3 11

carrying concealed weapons 9 34 .. 3 9

election law 8 26 1 3 3

extortion 6 14 6 2 5

felony (n.c.) 2 12 .. 6 ..

forgery, 1st degree 2 10 6 5 3

" 2d degree 13 63 2 4 10

" 3d degree 3 10 3 3 5

grand larceny, 1st degree 38 209 8 5 6

" " 2d degree 146 478 .. 3 3

kidnapping 3 44 1 14 8

maiming 1 2 .. 2 ..

manslaughter, 1st degree 11 165 1 15 ..

" 2d degree 3 30 9 10 3

murder, 1st degree 3 sentenced to be executed

" 2d degree 13 260 see note 20 ..

attempted murder, 1st degree 1 24 6 24 6

perjury 2 19 5 9 8

rape, 1st degree 1 18 .. 18 ..

" 2d degree 10 80 6 8 ..

receiving stolen goods 11 42 .. 3 10

robbery, 1st degree 23 245 7 10 8

" 2d degree 6 59 2 9 10

seduction 1 4 9 4 9

sodomy 3 29 1 9 8

total 550 2,845 7 5 2

note.—in preparing the above table, the maximum terms of all indeterminate sentences are computed, except in convictions of murder in the second degree, in which the minimum terms of twenty years are used. (section 187. penal code.)

[pg 202]

state prison—females

offence no. terms of sentences average term each person

years months years months

assault, 2d degree 5 13 10 2 9

grand larceny, 1st degree 7 40 3 5 9

" " 2d degree 7 23 8 3 4

manslaughter, 1st degree 1 7 5 7 5

" 2d degree 1 13 6 13 6

receiving stolen goods 1 5 .. 5 ..

robbery, 1st degree 1 3 6 3 6

total 23 107 2 4 8

this divergency of mental attitude accounts in part for the great curse of the inequality of sentences. two cases suggest themselves vividly as examples.

a conductor on a surface car took the place of the motorman and carelessly ran into a wagon, throwing out the driver, who died in consequence. he was convicted of manslaughter in the second degree and sentenced to ten years in state's prison.

another defendant who had killed a woman by cutting her throat and hacking her up with a razor was convicted of the first degree of the same crime and sentenced to the elmira reformatory. both defendants were of approximately the same age. in[pg 203] each case the particular sentence seemed just and fair to the judge who presided at the trial. it was conscientiously imposed. yet the thing speaks for itself.

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.[pg 204] 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.