Criminal Law Reform
DOWN in the Cherokee nation they tell a story. The Cherokee nation is in the division of territory which is known to the Federal authorities as the Western District of Arkansas and which includes the Indian Territory. It is a fairly lawless country with a good many bad Indians and outlaws in it. It takes a man to be a law officer there, a brave man, a strong man, and one “quick on the trigger,” for it is a dangerous job. Back in the early nineties, a deputy marshal and an Indian were sent in the name of the law after an escaped convict, and they went out into the bad lands after him. About nightfall they came to a house, where they stopped and went to bed. At midnight two men galloped up to the house. One was a convicted murderer and fugitive from justice, but not the man whom the marshal was after, and the other was a “bad man” named Brown. They shouted until this marshal and his comrade came out, shot them both deliberately in cold blood, killed them, and rode away. The convict was killed later, resisting arrest. Brown, the other man, was caught and brought to trial for murder. My story relates a conversation about this murder trial which is said to have taken place in a law office in the Territory, between another deputy Marshal — a friend of the murdered man — and a Cherokee Strip lawyer. The talk took place shortly after the Supreme Court of the United States had for the third time reversed Brown’s conviction for murder.
“Jake,” said the marshal, “why does n’t the court down in Washington let us hang Brown?” “There was an error in the judge’s charge,” said the lawyer. “Didn’t we prove Brown murdered Tommy Whitehead ?” demanded the marshal. “Yes,” said the lawyer, “they said on the first appeal years ago that the evidence was strong.” “Did they say it was n’t cold-blooded murder, premeditation, and all that?” “No,” said the lawyer, “they didn’t make any point about that.” “Then why have they robbed the gallows of that man three times running?” “Well,” said the lawyer, “as I told you before, they found there was error in the judge’s charge. You would n’t understand it. It was reversed on the law, not on the facts. The judge made an error in trying the case.” The marshal was silent for a few minutes. “ Jake,” he said finally, “that error you say I would n’t understand was n’t the first error in Brown’s case. I reckon I understand it now. The first error in Brown’s case was partly mine. When Brown was gathered in six years ago, there was some talk about lynching him. I let on that they could n’t do it; that we would stand by the law; and that if they tried lynching, we would shoot to kill. That was the first error in Brown’s case. I don’t know what kind of law they need in Washington. Down here in the Indian Territory they need the kind that has blood and bones to it, — and the next time I won’t stand in its way.”
This is not a paper on lynch law. But as the existence and increase of the lynching evil affords one of the clearest, if not the greatest, arguments for the reform of our criminal law, this story is repeated here. It is given because it illustrates clearly the two essential conditions by virtue of which lynch law has become the great peculiar American disgrace.
A lynching in its ordinary aspect is not an individual but a community crime. It has two factors. The brutal animal passion for quick revenge, the lust for blood, found among many men in whom impulse is stronger than reason, is the sensational, the obvious, but not the more essential factor. The men controlled by these lawless passions and instincts are comparatively few in number, negligible in influence. The bottom factor in the community spirit by which lynch-law is made possible is not the brutal passion of this riotous minority, — it is the attitude of the majority of the community, toward the law. They will not hold the rope or fire the faggot, but like this old marshal of the bad lands, they have lost faith in the criminal law, — they will not stand by it and protect it, — they will not fight for it.
Social wrongs are corrected, not by exposing their results, but by searching for and removing their causes. We have preached against lynch law for a decade, but it increases. The wisest of American statesmen and public men are to-day recognizing the fact that this preaching law and order will not make it, that there is no stopping this fever in our blood until respect and love for law has taken the place of apathy. Law, to be respected, must be made respectable. To get for it the active support of moral men and women, to make them willing to fight to protect its dignity from outrage, it must have vitality, —must, as the old deputy marshal said, have “blood and bones.”
It is because the importance of vitalizing our criminal law is being recognized as one of the pressing reforms which the country needs, that men like President Roosevelt and Secretary Taft are preaching it and urging it on.
We are none of us desirous of destroying the humane and ancient safeguards which in our country are the just protections of the innocent. But, as a Southern jurist has aptly said, “We have long since passed the period when it is possible to punish an innocent man. We are now struggling with the problem whether it is any longer possible to punish the guilty.” Law which lacks grip and vitality, which is slow and uncertain, full of technical avenues of escape for the guilty, cannot be respected, for it is not respectable. The support of law-abiding citizens cannot be had for the law of courts which reverse convictions of criminals found guilty on clear and indisputable evidence, for reasons which revolt the rudimentary sense of justice, — which grant new trials to convicted murderers, solely because the trial judge was absent for three minutes from the bench during the trial; because the words “on his oath ” were omitted from a paper which accused a murderer of crime; because the man who summoned the jury panel to try the murderer had not been sworn in; because on the trial of a murderer the trial judge had failed to put his instructions in writing; because on the trial in which was convicted a murderer, guilty beyond peradventure, among the seventeen propositions of law with which the trial judge had charged the jury, one too abstruse for their comprehension had been incorrect; because, among the thousand questions asked in a long, hard-fought trial,”error ” had crept into two; — which reverse on a quibble the conviction of a murderer who had almost been lynched at the time of his arrest, although “the evidence as a whole warranted conviction;” which reverse the conviction for grand larceny of a notorious thief caught with his booty in his possession, because the proof failed to show whether the money stolen was in cash or bills. All these decisions are taken from the highest courts of states notoriously disgraced by the lynching evil. Further multiplication of illustrations of the same kind might readily be made, but would add nothing but cumulative evidence of conditions crying for change.
In many of these states a criminal trial means two things. It means not only the sifting of the evidence of guilt or innocence of an accused person, — it means also a rigid schoolboy’s examination of the trial judge on the law. If the accused be found guilty on sufficient evidence, but the judge has not passed a perfect examination, there must be a new trial. The counsel for the accused prepares, after long deliberation before the trial, propositions of law, voluminous, intricate, carefully studied, which have some theoretic or, possibly, some practical application to the case to be tried. When the trial comes, and after the evidence of the witnesses has all been taken and the judge has given his charge to the jury, the lawyer brings out these “propositions” and unfolds them. He says, “I request the court further to instruct the jury as follows.” He reads his first proposition. The judge must then decide at once, with little opportunity for deliberation, on the correctness and applicability of this law proposition. He must either add it to his charge to the jury, or refuse to do so. If he refuses, the prisoner’s lawyer says, “I except,” and proceeds to his next proposition, and then on through the list. In case his client is found guilty, these propositions which were refused are argued as “errors” on appeal. On the appeal in the higher court, the testimony taken and the proceedings of the trial are printed, and those alleged “errors” argued before judges having the same abundant leisure and opportunity for reflection upon these propositions which the lawyer enjoyed who prepared them, but which the judge who passed on them at the trial did not have. The Appellate Court, examining solemnly each of these propositions (and there are sometimes fifteen or twenty of them in a single case), finds one which should have been charged. It may have been one which, as a matter of fact, the jury would never have understood. But that makes no difference. The guilt of the convicted man may be clear, but he gets a new trial. He keeps on getting a new trial until the lower court judge can pass a perfect examination on every material proposition of law put before him on the trial, and has correctly decided every squabble between the opposing lawyers over any matter of imaginable substance. Then, the law being satisfied, justice can be done. As the mass of technical rulings and decisions of the higher courts increases, the more difficult it becomes for the lower court judge, who must follow them as precedents, to know them all, to pass his perfect examination, and avoid these legal pitfalls which mean the delay of public justice by interminable new trials.
There is little comfort to be found, moreover, in the fact that the vast majority of criminal cases are disposed of without such appeals. For every technical decision which sacrifices or disregards the substantial rights of a law-abiding community, and permits the escape or reprieve of some convicted rascal, makes a precedent which affords like comfort to every other rascal who can bring his case within its protection.
In many of these states in which the criminal is more important than the community, the position which the law compels the trial judge to occupy is almost pitiful. He seems shorn of all positive authority, of all power to direct and control the machinery of justice. He is more like an umpire or referee in the game, — a passive figure whose sole function is to enforce or apply rules; only there are more rules in the law-game, and the legal umpire’s decision, if wrong, is not final, but means that a new game must be played.
Just why, in a country in which the vast majority of judges are elected by popular vote, there should be expressed in law such a superstitious terror lest a judge should give any expression of his own personality, is puzzling in the extreme. In many states, and particularly in those in which a firm and vigorous administration of justice is of urgent importance, the judge who presides at a criminal trial is not permitted by law to be a judge in any real or vital sense. He must not comment on the evidence, he must not review the facts and set them in coherent order before the jury, he must not sift the testimony and separate the material from the immaterial, he must, above all things, refrain from expressing in any wise a personal opinion on anything, from the start of the trial to its close. He must deal out abstract rules of law, and leave the jury to their own devices, with such blind guidance in endeavoring to apply that law to the facts. If he sees them swayed by misleading eloquence, he must not set them in the path of reason for justice’s sake. He is a pilot who must not touch the wheel. The vigorous, commanding figure of the English judge is by law excluded from the great majority of our criminal courts. For example, the summary of facts in the charge which Justice Bigham gave a few years ago to an English jury in the sensational case of Whittaker Wright, the swindling promoter, would have meant an inevitable reversal and new trial for “error ” in any lynch law state in this country.
The critics whom conditions of this kind have aroused are not solely among the laity. The demand for reform comes from an increasing number of law experts, who see in the criminal law itself the great wrong reason for the growth of American lawlessness. “Respect for the constitution is one thing, and respect for substantial fairness of procedure is commendable; but the exaltation of technicalities merely because they are raised on behalf of an accused person is a different and very reprehensible thing. There seems to be a constant neglect of the pitiful cause of the injured victim and the solid claims of law and order. All the sentiment is thrown to weight the scales for the criminal, — that is, not for the mere accused who may be assumed innocent, but for the man who upon the record plainly appears to be the villain the jury have pronounced him to be.”
This balancing the scales for the criminal, which Professor Wigmore deplores in the caustic sentences just quoted, is also appreciated by the criminal classes. A negro arrested for a murder in the Indian Territory told his captor very coolly that “there was a man shot in Oswego, and nothing was done about it.” This quotation is from the record of the United States Supreme Court, to which this negro’s case had to be appealed three times before his conviction was affirmed, showing that the murderer’s confidence in the law was at least partially justified.
The jurist who dissented from each of the reversals of this negro’s conviction for murder, who protested vainly against the reversals of the conviction of the Cherokee Strip murderer, by which that murderer finally escaped the gallows, believes in the abolition of the right of appeal in criminal cases. This is the English system. But when Judge Brewer announced this as his remedy for the intolerable condition of our criminal law some years ago, it found little favor. It did not impress our people as the American remedy for what is an American disease. The right of appeal is an integral part of the American ideal of justice. We look askance at the English system, under which the innocent Becker was twice convicted and punished for two separate crimes, neither of which he committed. We hesitate to adopt in America a system under which such injustice is possible. The right of appeal has legitimate uses. Without that right, Caleb Powers in Kentucky would have been hanged four years ago.
Our criminal law is essentially American, and not English. We must not tear the fabric in removing the spots. We must not in despair seize a desperate remedy.
With all its defects American criminal law represents in its spirit, as does perhaps no other branch of our law, the great, original American ideal of individual liberty, — the rights of the individual as against the state, — on which our government is founded. When our forefathers first began American government, they adopted the English common law covering civil cases, but they did not adopt to the same extent English criminal law. When we declared our independence and began the work of founding a government of our own, England was living under a criminal law in which the state was everything and the individual nothing, and under which the liberty of the press was a theory and a name. It was a system under which one hundred and sixty crimes were punishable by death; under which a man on trial for his life on any charge except treason could not have counsel to address the jury in his behalf, could not testify for himself, or have his witnesses sworn, could not subpœna witnesses for his defense; under which the jury could be punished if they brought in a false verdict against the crown, but not if that verdict was against the miserable prisoner in the dock. We refused to adopt the barbarous and bloody legal shambles of that criminal law. We reacted against it. We established a system by which the individual was surrounded by mighty bulwarks of legal protection against any possibility of wrong or oppression from the state. We created a criminal law the most humane in the world; but it had and has the defect, of its virtues. Instead of a system which over-protected the state, we erected one which overprotects the individual.
While we did not adopt the barbarous penal statutes of the old country, we did adopt a mass of technical rules of law which were invented by humane English judges to avoid the necessity of imposing barbarous punishments. We had not adopted the barbarous punishments, and we should not have adopted the humane technicalities which those punishments alone excused or justified. The present trouble in our criminal law lies not only in what we have created, but largely in what we have thus adopted. The humanitywhich which, by those technicalities, made justice in spite of law a century ago in England, makes law in spite of justice in America to-day. The vermiform appendix of old English law must be cut away.
There are two reasons why criminal law reform is a pressing problem to-day. One is the repression by that reform of lynch law. The other is not less important. We need that reform because the social condition of our day imperatively demands a substantial increase in the scope and power of the criminal law, a system strong enough to meet the new and increasing requirements of our civilization for corrective and repressive criminal law.
A system too complicated to deal out certain justice to common offenders, ignorant and brutal, poor in purse and influence, can never adequately deal with our new class of big business criminals, with the men who get rich by fraud, the corporation inflaters and wreckers, the faithless trustees and grafting directors, the exploiters of municipalities, the magnates who give bribes and the bosses who take them, the trust operators who sin against honesty in business, who break the law against monopolies, who give and take forbidden rebates. How can predatory wealth, powerful, influential, often intrenched in office, be punished by a system which creaks, groans, and often breaks down, in bringing a border ruffian to justice ?
President Roosevelt is not alone in his disgust at his inability to get at what he aptly described on his recent Southern trip as his “own particular scoundrels,” the thieves in federal officialdom. His experience is not an unusual one. It represents the rule rather than the exception. The frightful disclosures of the corruption of the Police Department in New York made by the Lexow investigation are not yet forgotten, nor the almost, complete absence of convictions obtained from the criminal courts of those whose blackmail operations filled hundreds of the sickening pages of that committee’s testimony. The more recent experience of Mr. Folk is worth noting. He convicted the St. Louis boodlers, Faulkner, Lehman, Schneller, and big “Ed” Butler, the boss of St. Louis, for bribery, and one of them for perjury. These cases made a sensation all over the country. A great city was being cleaned. The big boodlers were being brought to justice, — civic righteousness was triumphing, the newspapers told us from one end of the land to the other.
Does the country know that all these convictions were subsequently reversed ? Does it know that the decision that reversed the conviction of Butler himself ordered his discharge from the custody of the law on so narrow a construction of the statute against bribery on which he was convicted that, if it is followed, bribery is as safe in St. Louis as directing an insurance company in New York?
Space will not permit a discussion of those cases separately. One brief citation must suffice to indicate the spirit in which the highest court of Missouri met its responsibility when men guilty of the highest crimes against the very existence of the state were brought to its bar.
This is from Faulkner’s case:—
“This record contains so much uncontradicted evidence of venality that it is little wonder that decent people of all classes are appalled at its extent. The sole consideration of this court has been to determine whether the defendant was convicted in compliance with the laws of the state. If guilty the defendant should be punished, but it is the high and solemn duty of this court, from which it shall not shrink, to require and exact that, however guilty he may be, he shall be punished only after having been accorded every right, and guarantee which the organic law of the state secures to him.”
The court then reverses the conviction for bribery of a man clearly found guilty on a record “reeking with venality,” for two minor errors in the rules of evidence, and a quibble about a “variance” between the indictment and an instruction!
As I write, the afternoon paper at my elbow contains a notice of the third indictment of Senator Burton of Kansas. The public will remember the charges made against him two years ago as a part of the post-office scandal. He was tried and convicted in 1903 for taking a socalled retainer of $500 a month while senator, for using his influence with the Post-Office Department in favor of a concern called the “Rialto Grain and Securities Company,” which feared that the Post-Office Department would issue a fraud order against it. Burton’s conviction was reversed on appeal because of a “variance” between the indictment and the proof as to where he got this money. The indictment said he got it in Washington, and the proof showed that he got it in St. Louis. After this reversal, a new indictment was found against him in St. Louis in March, 1905. Thereupon Burton’s lawyer successfully raised technical objections against it, and it was “quashed.” The Grand Jury has now been hastily called together, and a new indictment found, and the newspaper says that if this latest indictment is found defective, Burton will escape trial altogether, as through the lapse of time, the statute of limitations will prevent a new indictment being found against him.
It is this spirit in the courts which makes for lawlessness among the people, gives confidence to the criminal, encouraging him to continue in his career.
In most American states, the person accused of crime has thrown around him by law not only extraordinary protections against injustice, but also opportunities of escape more numerous than exist in any other jurisprudence in the world. Consider a few of them. When the accused person is arrested, he is brought before a magistrate, who examines his accusers and hears their evidence to see whether there are reasonable grounds for believing that a crime has been committed, and by him. If the magistrate thinks that this evidence is insufficient to warrant such a belief, the prisoner goes free. If he thinks it sufficient, the case goes to a grand jury. There again the witnesses are heard, their testimony scrutinized and weighed. If the grand jury finds the evidence insufficient, it refuses to indict, and the prisoner goes free. If it indicts him, the district attorney or prosecuting official next scrutinizes and studies this evidence of the crime charged. If he thinks it is not sufficient to secure a conviction, he recommends that the indictment be dismissed, and the prisoner goes free. If he thinks it sufficient, and the indictment is brought to trial, the lawyer for the accused may induce the court, after hearing the evidence, to dismiss the charge, and the prisoner goes free. If the judge does not dismiss the indictment, or direct the jury to acquit the prisoner, the jury deliberates on the evidence, and if it finds for the accused, he goes free. If it finds against him, the prisoner has one and sometimes two or three successive appeals which he may take to a higher court.
At what a disadvantage does organized society struggle for justice to obtain the punishment of the guilty! In every criminal law suit, on one side is a living, visible, concrete personality, — the man or woman accused of crime. On the other is nothing but an invisible abstraction, — the ideal of justice. It has no voice; if wronged or outraged, it has no appeal, for under the American system the state, the people, cannot appeal from the verdidt of acquittal, and with that verdict the prisoner must go free. When a jury, led away by the eloquence of a gifted lawyer, or by mawkish sentiment, brings in a verdict which acquits a criminal of a clearly proven crime, the ideal of justice, wronged by that verdict, suffers. But how few are those who see and feel that wrong, in comparison with those who daily plead for unmerited freedom for wrong-doers who have sinned against the law! Against what odds — what great difficulties overcome — does organized society in our country to-day win its triumphs in our criminal courts! As we study its struggles for vindication by law, the ideal of justice which punishes wrong, which protects by that punishment the rights of the innocent, seems at times not only an abstraction, but a friendless abstraction. When the laws of trade prove themselves weak or inefficient, the commercial world, directly touched and interested, demands and obtains their correction. Its associations plead for statutory amendments to correct and strengthen the commercial code. But among the hundreds of associations organized wholly or in part for the enactment of more efficient laws, where is the association whose special purpose is to make society stronger to punish the guilty, to vindicate the majesty of justice by criminal law ?
It is because such associations do not exist, because this great question of criminal law reform has no active organization behind it and depends for its success on the occasional efforts of associations of lawyers, that a public discussion of the necessity of that reform is needed. It may be said that this subject is a dull one, and that the problems which this reform presents are expert questions for the jurist, the bar associations, and through them the legislatures. To a certain point this is, of course, true, but there is need that these bodies of experts and the legislatures should feel upon them the pressure of an enlightened popular demand, or this reform so much needed will be slow. It is not a matter for experts alone to observe that of all the great civilized countries of the world, America is the one in which crime increases, while it diminishes in the others. It is not for the law experts alone to note that four times as many murders were committed in our country last year as were committed here twenty years ago, and that other felonies tend to increase in like proportion.
The subject which this essay has considered is in this sense a great public question, on which an enlightened, earnest, widespread public sentiment cannot too soon be aroused. When that public opinion has been so aroused, and its just demand has been felt, then, and not till then, will be done the work of restoring strength to our criminal law, — of giving it certainty and speed to equal its justice, — then, and not till then, yvifr we be cleansed of the shame of lynch law, and become once more a law-abiding people, under a law which protects the innocent and punishes the guilty.