Criminals Who Get Away

by DONALD P. WILSON

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THE psychopathic personalities that fill our prisons are the least influential members of criminal society. It is an easily demonstrable fact that few of the “smart operators” are in prison; they are still operating on the outside. It is the “dumb operator” who gets caught. It is no wonder then that the convict thinks very little better of our conscience on the outside than we do of his. Many of his gripes are legitimate and a great shame on society.

There were three specific reasons why most of the convicts I knew in the penitentiary were not penitent; —

1. The capriciousness of the written law and its interpret at ion.

2. The corruption of law enforcement.

3. The respectability of the white-collar criminal. The six convicts who served as my assistants at Fort Leavenworth illuminated these reasons for me. Some of their arguments were warped by rationalization. Some were true and shocking.¹

The sheer cumbersomeness of the body of written laws is one of its vulnerabilities. Over 375,000 new state laws have been passed in the United States in the last thirty years, and these are in addition to the more than one million then existing stale, municipal, and federal laws and ordinances. They are too numerous to enforce. Therefore you are a criminal only if you gel caught. The trick is not to get caught: this is a convict’s concept of society’s concept of a criminal. You hear it on every side. “You know the difference between me and the guy on the outside? I got caught!” A man is punished not for his crime but for getting caught. This view implies that crime is not an absolute moral offense, but a legal caprice.

Not only does the decade in which you commit an act determine whether you are a criminal, but the place where it is commit ted as well. A law which appears on the books in one stale may not appear on the books of another, so that by an act you become a criminal in one state but not in another. If the offense appears on the books of both states, the disproportionate sentences of the two states are sometimes staggering. Two men in different states are guilty of arson. The prisoner in Alabama is in for one year, the prisoner in North Carolina for forty years. Perjury carries four years in Connecticut, twenty years in New York, life in Maine, death in Missouri, $500 and forty lashes in Delaware. West Virginia punishes bigamy sixteen times as severely as incest; Wyoming and Colorado punish incest ten limes more severely than bigamy.

Another practice that feeds the convict’s belief that crime is not absolute, but relative, is the fine system — “$5000 or three years; $300 or ninety tlays.” Though debtors’ prisons were theoretically abandoned a century ago, 57 per cent of those who are in prisons, jails, and penitentiaries are serving sentences because of debt they cannot pay a fine. Many of the remaining 43 per cent would gladly have paid a fine, but they had the had luck to be sentenced by a judge who didn’t levy lines.

It would be difficult to persuade a prisoner that a fine represents punishment in the sense that imprisonment does. Why, he would ask, does every man who can, pay? And why, when a fine is imposed, does the money go into public coffers instead of into some form of restitution for the offense committed? One man pays a fine and goes home to his family. Another goes to prison, and he and his family are ruined.

England and Scotland have solved the problem of fines by the simple expedient of installment payment. Imprisonment for nonpayment of fines in England exceeded 80,000 in 1913 but dropped to 11,000 in 1933, the latter representing largely unemployed and paupers. It seems odd that America, with its mania for installment buying, has not applied this concept to its courts. Nearly a fourth of American imprisonments for inability to pay fines are for amounts less than $10, and 60 per cent for fines of less than $20. The fact that laws change in point of time, and have become too cumbersome to be prosec tiled, may simply be the toll of civilization and the caprice of the written law. But the matter of fines versus sentence is considerably more sinister in its implications. Is a man to pay lor his crimes or his povert y? For his crimes or for getting caught?

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OTHER evils affecting the convict are stool pigeons, false arrests, bail bonds, and “fixed sentences — rackets which go hand in hand in many large cities in a sorry parade of justice. While there are not mail) innocent men in penitentiaries, the prisoners frequent complaint, “I been framed, cannot be too quickly dismissed. One cst iniate claims that nearly a third of the prison population arc serving time for offenses they did not technically commit. They are in on false charges. Either the offender agreed to plead guilty to a lesser charge in exchange for a fixed sentence, or he was actually framed by a stool pigeon in the employ of the police.

The procuring of a fixed sentence is called bargaining. If the district attorney’s office knows its case is weak, it may assure its conviction records In throwing a scare into the offender, urging him to plead guilty to a lesser offense in return for a lighter fixed sentence and thus avoid coming to trial. This sounds good to the uninitiated. The offense may be one that the offender adually did commit in the past, or it may represent an unsolved ease on the police blotter.

This procedure accomplishes several things. It increases the conviction records of the district attorney and those of the police department. The offender gels off with a lighter preagreed sentence, md often the fixing attorney and all concerned are the richer. A notorious case involved a highjacker who looted a truck of $30,000 worth ol silk. The charge was armed robbery, subject to a sentence of ten years to life. The highjacker pleaded guilty to petty larceny, was fined one dollar and given one year in prison.

A major stumbling block in the way of a convict’s developing a respect for the law is society s approval of the stool pigeon.

The stool pigeon in the pay of the police and vice squads in most of our large cities is a common device in effecting false arrests. It is a practice used frequently to apprehend the smalltime criminal who otherwise eludes the police. The stool pigeon is given marked money or stolen goods to place on the person of a victim. The victim is then immediately frisked by detectives or police lying in wait. What possible defense can such a victim make:

Sometimes the stool pigeon is paid, and is protected in the continuation of his own pickpocketing or dope peddling racket as long as he is valuable to police in his snitches.

England uses no stool pigeons, yet she convicts 70 per cent of her offenders. In twenty-five years, from 1860 to 1885, England closed 137 of her 193 local prisons through reforms in penal concepts. In another quarter century, from 1910 to 1934, the British Commissioners of Prisons reported that annual prison receptions fell from 186,000 to 56,000. They further reported that these results were attributed to reforms in the criminal law; reduction ol long sentences; abolition of solitary confinement (1921), useless labor, and the rule of silence: the introduction of school courses, concerts, and constructive labor; installment payment of fines; and the assignment of the feeble-minded to hospitals instead of prisons. Thus by avoiding recidivism England closed thirty-one more prisons and has now but twenty-five on the whole island. She reduced imprisonment 81 per cent and crime 43 per cent by these reforms. Scotland’s record is even better.

The stool pigeon system has many friends among authorities. Most American penitentiaries still defend and use it. Certain it is that as long as the system of giving immunity and protection and money to informers is used, no better system will be devised. That there are belter systems should be quite apparent.

Another nefarious practice in some of our big cities is the bail bond racket involving police, bondsman, attorney, and sometimes judge. Texls in criminology explain one type of shakedown in this racket, wherein thousands of innocent nurses, shopgirls, wives, and landladies are paying vice squad members dearly to avoid the publicity growing out of a threatened or false accusation of prostitution.

The racket operates by the stool pigeon placing marked money in plain view, in payment for the alleged immorality, and “escaping” just as the raiding vice squad detail appears on the scene. The woman is then booked on the false charge and released on bail. A shyster attorney agrees to fix the ease and keep it out of the papers for an amount, usually a percentage of her bail bond, which in turn max be based on her savings account book or other collateral. If she pays the fee, which is split betxveen the parties involved in the fix, the false charge may be dropped. Or sometimes she is repeatedly “bled,” and when she can’t continue to pay, she is convicted on the original false charge. A prison term will usually shut her up. Men too are paying heavily to avoid publicity on a false homosexual charge engineered by the vice squad. A citizen would have a rough time balding the perjured testimony of the police in a jury trial.

Other easy preys to false arrest and casual conviction without trial are convicts like two I knew at Fort Leavenworth: Weary Willie, whose chief pastime was riding the rods, and the man with an I.Q. of 33. These are sometimes picked up by the police as a convenient way to close a case lingering on the blotter, and the convict finds himself in prison before he knows what has happened. Sanford Hates, the former director of the Bureau of Prisons, himself reported the case of an ignorant mountain boy whose conviction was railroaded by a federal marshal after getting the boy to “plead guilty of not doing it “ on the day the reventiers raided a still. “Ah jes’ pleaded guilty to not bein’ dar, but heah ah is.”

In England there is no racket in bonds, Charging for bonds is a, criminal oflense. Bond may be supplied by friends or any freeholder who will hypothecate his property for the defendant, but no foe maybe charged and no reimbursement made.

The practice was not exploited in America until this general ion. Now a bondsman has legal protection and is a very busy man. There are, of course, bondsmen who are honest businessmen. But there are bondsmen who are not. If a bondsman is implicated in a fix, he is either at the police station when the victim arrives, or he is phoned by the policeman making the arrest and arrives in a matter of minutes. He sometimes arranges for the hiring of an attorney for the bewildered victim, and procures a financial statement from him or her, so that the bail bond figure ran be arrived at by a judge who is in on the fix. Although a bondsman’s fees are now set by law, he can always refuse to write the bond in the absence of a bonus, especially if he is tipped off regarding the amount of valuables taken from the victim for safekeeping by a desk sergeant.

Less than 2 per cent of forfeited bonds are collected by courts, yet the courts still accept millions of dollars in worthless bonds annually. Of more than 10 million dollars in forfeited bonds in Chicago courts alone during a five-year period, less than 1 per cent was collected. One bondsman, who himself had been arrested twelve limes, had forfeited $30,000 in bonds within a year; yet the courts accepted $670,000 more in bonds from him within the same year. He secured them with a $24,000 piece of property on which there was a $31,000 mortgage. This was his only traceable asset, although he netted from $33,000 to $100,000 annually in his bail racket.

Obviously a man who is out on bail has a better opportunity of preparing for trial than a man in jail. The difference between freedom and conviction may be bail, just as it may be one’s ability to pay a fine.

Much has been written and documented about the lawless police in many of our large cities, in the use of the third degree, illegal search and seizure, arrest without warrant, holding of persons incommunicado, beating and brutality, and other violationsf the Bill of Rights. The offender’s first contact with a judicial society is the police. If that contact is constructive and just, the possible salvage of the offender is greatly increased. If that first contact is sadistic and slupid, ihe hostility of the offender is directed toward all society through the police, because to the offender the police represent society.

In a study of the annual arrests in the major cities of the United States, 47 per cent of them are shown to be false, unwarranted, or illegal, and to result in dismissal without charge after interrogation.

Criminals quickly learn to plead guilty to almost anything to avoid the third degree. The fact that the rough stuff is frequently delegated by the police to private detectives, who in most states annot supervised, bonded, or inspected, fools nobody — certainly not the convict. A cartoon which hung in our office for months showed an exhausted police sergeant and two patrolmen dragging a much beaten suspect into the Captain’s office, stating that the prisoner had finally confessed to murder. “Fine,” said (lie Captain, “now hold him until we have a murder.”

That there are unimpeachable police departments, district attorneys, and judges throughout the country cannot be disputed. But equally indisputable is the fact that corruption in law enforcement bodies as it has exisled in the United States in the last thirty years is a greater threat to a citizen’s confidence in and a convict’s respect for the law than the open flagraney of the underworld, which at least is not committed by oath of office to law enforcement.

The fate of the jury system in the United States is another of the sad preoccupations of all our big legal minds. Although through ihe Bill of Bights and the Constitution we are committed as a people to the right of trial by a jury of peers, less than 10 per cent of our eases ever reach a jury, ‘Phis right is completely and uneonst il in ionallv abrogated by the Army and Navy in the court-martial, and in the operation of tingrowing corps of secret police in America. In Massachusetts only 1.7 per cent of eases reach the jury; in New York, 4.7 per cent; in Chicago, 3.7 per cent; and in St. Louis, 13 per cent. About half of these fail of conviction.

The reasons for the inoperability of the right of jury trial are several. Few people can afford the cost of a court trial. Those who can a fiord it face crowded court dockets which sometimes result in the defendant’s serving out his sentence in jail before he can come to trial. A judge cannot try a plea of Not Guilty; it must be tried by a jury. In the light of the above obstacles, it is small wonder that most cases are settled by the defendant’s bargaining for a fixed sentence — pleading guilty to a lesser charge and getting the whole thing over with. Hut suppose the citizenry suddenly began to exercise their right of jury trial. With the intolerable number of laws on our statute books, municipal, state, and federal, there would hardly be citizens enough in our commonwealth to sit as jurors.

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FEW of the prisoners at Fort Leavenworth Penitentiary complained that they shouldn’t have been serving time. If they were not guilty of the crime for which they were convicted, they freely admitted they were guilty of others that were never detected. Their attack was on the cupidity of the law that convicts one man and protects another, and on the immorality of society which, having attached a price to almost everything else in life, has also hung a price on crime.

But the last frontier to yield to rehabilitation in the convict’s mind is the knowledge that society has hung a price not only on crime but on respectability as well. And this in ihe form of the white-collar criminal. By this term is meant the man whose antisocial practices flourish with society’s approval as well as its protection.

We as a people have become supine about graft and politics going hand in hand. Occasional protest meetings are held, but at elections the same gangs are too often put back in power. Ihe grail and fraud in the regimes ol Big Bill Thompson and Anton Cermak in Chicago, Jimmy Walker in New York, Boies Penrose and the Vare brothers in Philadelphia, and the Pendergast machine in Kansas City left the prisoners in the penitentiary shaking their heads over all the diligence displayed in rounding up the petty thieves and forgers.

The box scores of personal bank deposits of police and prosecuting attorneys during these regimes were common know ledge in the penitentiary. Probable the record is held by an attorney for the Zoning Department in New York City during Walker’s mayoralty. The attorney deposited 5 1/4 million dollars to his own account in five years. A kings County (N.Y.) sheriff banked $520,000, the sheriff of New York $360,000, and his deputy $662,000 in the same period of time. A minor employee of the New York bureau of standards was making $25,000 a month for twelve years on false weights. Currently the Kefauver Investigation, Murphy’s housecleaning of the New York Police Department, and the grand jury’s inquiry into police pay-offs in Los Angeles are cases in point.

Our national business philosophy of getting something for nothing; our admiration of the rugged individualists who boast that they can do anything as long as they do it cleverly; our crooked practices which are considered “good business” or “sharp business”; and our rationalization that graft and crookedness are all right “if they don’t hurt anybody” are criminal concepts, whether exercised on Wall Street or behind a gunman’s mask.

A discussion of abstract criminal character as a cause of crime would be more supportable if these conditions in our national life did not exist. Whom do we mean when we say criminal? The gangster, the white-collar criminal, the corrupt police? Or the smalltime criminal who is too often made the scapegoat for his more spectacular brothers? When the man in prison sees society give respectability to the white-collar criminal, and sees law enforcement bodies give protection to bigtime criminals, it is not surprising that he looks upon crime not as a moral offense but as a competitive profession, and upon his punishment as gross discrimination on the part of both society end law.

Crime is with us always, on many levels, in many forms. The proportion of the problem it poses is not reflected in the number of crimes on our books or convictions on our police blotters or prisoners in our penitentiaries. It is reflected in the attitude of our people toward what crime is. For what a nation comes to agree upon as being the nature of crime is what determines the nature of her criminals.

Most of us would heartily agree that respect for law is essential to a nation of peaceful communities. But in order to command respect, the law, both in interpretation and enforcement, must be constant, unimpeachable, and equable. It is no news to the American people that we have been undershooting that precept for the last thirty years. How could fear of punishment deter crime in the thirties, the era of the gangsters not yet closed, when an offender had an 85 per cent chance of escaping arrest, a 98 per cent chance of escaping conviction, and a 99 per cent chance of escaping punishment?

If constancy, integrity, and equability are not reflected in the law, all that is left to respect is the cop’s night stick and his third degree. This kind of respect can quickly turn to contempt, both in the law-abiding and the lawless. It is an affront to human dignity and resourcefulness.

Our most serious problem in crime is not the runof-the-mill convict in a penitentiary. It is the criminal at large who remains so with the knowledge of the populace. It is not reasonable to expect the reformation of smalltime criminals while gangsters operate with political and police protection. The smalltime criminal then becomes only a red herring thrown to the public to feed the illusion that justice is being done. Organized crime could not survive without protection. The smalltime criminal knows this, so does the bigtime criminal, so do his protectors. So do you and I.