Justice for Judges

...There is a widespread, although unfounded and unacknowledged, idea that the men who sit on our bench are either human orgres, true successors to Lord Jeffreys, who would, if they could, take a cruel pleasure in imposing severe penalties not in proportion to the offenses, or that they know too little about the law to be entrusted with much discretion in applying it...

...A small penalty, inflexibly enforced, is of far greater value than a large penalty of doubtful enforcement against any specific law-breaker...

...The statutes which surround the authority of our trial courts with all sorts of bars and restrictions, the interpretations of our state and federal Bills of Rights have tacitly permitted the inference that the power of the judges who actually try the cases should be narrowly circumscribed...

...Our judges are dependable, and are not going to abuse the discretion vested in them...

...If such a policy were carried out, it would enormously shorten the time now consumed in any court in America...

...This concept, which is perfectly workable in most instances, should not be altered...

...The American theory of limiting the legal power of government necessarily follows from our concept of a constitution as being the channel through which flows the authority delegated by the sovereign people to the legislative, executive, and judicial branches of the state...

...The authority of the trial judge should be enlarged in regard to—The conduct of the attorneys...

...In reality, our judges are as merciful and as intelligent as any judges in history...

...If they return, it will be time enough to deal with them then...

...The judge should have very wide discretion in determining whether or not evidence is admissible...

...the admission of evidence...

...The demand for a more efficient enforcement of our criminal law has become articulate within recent years, and countless suggestions have been made as to how this may be gained...

...The popular suspicion of the courts is based largely upon historical grounds...

...Jurymen should not be hampered in their right to convict or acquit, but they should be entitled to the benefit of the judge's acumen, gained frequently in the course of years upon the bench, just as they are entitled to the competent evidence of witnesses...

...We demand that they function efficiently and forbid them to do so...

...Many of these suggestions have merit and are the fruit of thoughtful study...

...These rules should be liberalized so as to guide the court but not to bind it like a strait-jacket...

...If a criminal felt that his chance of escaping conviction in the first place, or of gaining a new trial in case of conviction, were as slight as it is in England, he would have the same healthy respect for the law which the English criminal feels...

...It means that the court should be able to carry out the principle that evidence is nothing but a means for the discovery of truth...

...But an increasingly complex civilization keeps making greater and greater demands upon the authority and jurisdiction of our courts, and to meet these demands, the constitutional grant of power to the judiciary should be liberalized and enlarged...

...A potential law-breaker probably would be influenced as much by the prospect of going to jail for five years as for ten...

...In the eighteenth century and earlier, when the American colonies were being exploited as assets of England, according to the accepted colonial policy of the age, the administration of justice was marred by much unfairness and brutality...

...In the absence of gross abuse or of plain lack of probative connection between the testimony and the issue, the action of the trial court should be free from review...

...It is no exaggeration to say that the average juryman, in a complicated case, does not even understand what the judge says in his charge to the jury...

...His substantive rights should not be impaired, but the procedure of the courts should be sufficiently flexible so that he could not demand a new trial on some technicality not really touching the question of his guilt or innocence...

...Dickens has immortalized their defects without exaggerating them...

...After all, the latter question is the only one which should be of interest to the community...

...The result was the embodiment of a bill of rights in the Constitutions of the United States and of the several states which was not merely advisory to the sovereign, as in <the case of the original English Bill of Rights, but which actually deprived the sovereign's agents of any power to transgress the limits set by the Constitution...

...And frequently, a judge is compelled to sit by and hear a jury acquit a prisoner, whose sham defense the judge has penetrated because of long experience...

...Both judge and jury have their respective spheres, wherein each is effective...

...We elect or appoint judges to office and then treat them as though they were monsters or morons, and not very high-grade morons at that...

...As Roscoe Pound, dean of the Harvard Law school and one of the ablest lawyers in the world, has pointed out, our judicial system was well fitted to serve a rural or semi-rural nation, like this country was at the time of the Revolution, but it is unable to cope with the problems arising out of the "excessive urbanization"—to use a phrase which Ferrero applied to ancient Rome—of our country at the present time...

...But to assume that they are the normal circumstances of judicial existence is to admit the bankruptcy of our judiciary and of our democracy in its wider sense...

...It is only a means to an end and not the end itself, which some enthusiastic demagogues have imagined it to be...

...This does not necessarily mean destroying the present rules of evidence...

...But most of them ignore or miss one of the most fundamental obstacles to law enforcement in the United States...

...That obstacle is public sentiment with reference, not to the criminals, but to the courts...

...Let us acknowledge that our own courts are as competent as the English ones to exercise authority with safety...

...260 THE COMMONWEAL January 13, 1926 JUSTICE FOR JUDGES By DANIEL J. McKENNA UPON America's acceptance of the principle that stern justice is a more effective preventative of crime than sentimental coddling, must it base any dam against its deplorable wave of lawlessness...

...Conversely, if the various methods of torture, which formerly were used to extort evidence from reluctant witnesses, actually had produced reliable testimony, which they never did, and if their efficiency had not been outweighed by their cruelty, the rack and the boot still might find employment...

...Conditions which produced the reactionary and stupid "hanging judges" of the past are gone...

...Law enforcement rests primarily in the hands of the courts...

...The degree of penal severity is not so important...

...Trial by jury, with its rule-of-thumb methods, finally evolved and it still remains a reasonably safe and humane method of determining the extent of legal guilt...

...and the giving of aid to the jury...

...It does not mean that a prisoner should be forbidden to question the constitutionality of the statute under which he stood accused...

...Destroy this illusion, and punishment, even if mild, will act as a deterrent...

...Eventually, the matter comes down to the attitude of the American public towards its courts...

...But England realized and corrected the infirmities of its judicial machinery and has given to America a working example which is immeasurably more efficient than our own system...

...For the judge to coerce the jury is tyranny...

...We surround them with restrictions which hamper their exercise of judgment and discretion...

...If our judges were such poor specimens that their rulings and acts had to be continually scrutinized and reviewed, then they would not be competent to hold office...

...Only then will American courts be able to enforce the law as it should be enforced and to put into the hearts of criminals some of that fear of the Lord which is rightly termed the beginning of all wisdom...

...The judge should be given sufficient authority to hold the attorneys to a strict discussion of the one question at issue and to prevent them from wasting time upon such absurd tangents as characterized the Scopes trial...

...Although the principle, that the judge is to decide the law and the jury to decide the facts, is repeated by rote in every court in the land, the fact remains that in our criminal trials, a great many prerogatives of the court have been usurped by the jury and that with the approval of long continued practice...

...Trial by jury has been found after centuries of experience, to be the most effective and least dangerous method of answering this question, but if science should January 13,1926 THE COMMONWEAL 261 give the state some instrument for looking into a prisoner's mind and reading therein the scroll of conscience, juries would become obsolete...

...In other words, the judge should not be merely an automaton, determining whether or not the words of the witness conform to certain immutable rules of evidence...

...To restrict his conduct and muzzle his advice, because of a superstitious regard for the verdict of twelve more or less competent individuals, is nonsense...

...The important question would be whether he was going to jail at all, and not so much that of his duration in jail...

...Torture failed in its purpose because men would confess almost any falsehood in order to escape it...

...The greatest element upon which the criminal relies is his belief that the state is impotent to punish him for his misdeeds...

...If anyone object that the above changes are impracticable, it is only necessary to answer that they would greatly aid in producing a procedural system like that of the English courts...

...But intelligent assistance is not coercion—it is common sense...

...The courts should be given enough power so that when they tried a man, his trial would remain a closed incident, except in plain cases of injustice or legal error...

...The judge should be permitted to speak his mind to the jury, without coercing it into adopting his view...

...This principle works out well in the law of the Continent—it would work equally well here...

...If a judge be able to assist a jury in deciding the question of guilt or innocence, he should be permitted to do so...

...In most instances, the jury assumes the function of deciding not merely the facts of the ease but the law as well...

...To them is entrusted the duty of trying the accused criminal so that he shall receive neither more nor less than exact justice...

...The latter once were as fettered and as cumbersome as our own...

...Remembering this fact and also remembering the legal abuses which then existed in England itself, the founders of the United States resolved to prevent such noxious weeds from ever growing in the new republic...

...But judges in this country are hampered by the conscious or unconscious tradition that they are dangerous fellows who will take a mile if given an ell...

...This is due largely to the colorless manner in which the judge must expound the law...

...It would be well, therefore, for us to cut the technical bonds which hinder their movements and which prevent them from exercising their natural intelligence without continual fear of being reversed...

...Indeed, it could not be altered without a social and political upheaval...

...But so long as a jury is left free to determine this matter, it has no reason to demand further privileges...

...That does not mean that his actual rights should be jeopardized or that the courts should be in a position to go beyond the printed statutes and punish him for something which the legislature never said was a crime...