Who's Wrong With the Law?
‘STRING ’em up! Burn ’em! Cut their hearts out!’
The rope tightens. The flames leap up. . . .
The Governor of California congratulates the avenging mob at San Jose: ‘That was a fine lesson to the whole nation. . . . I am checking San Quentin and Folsom prisons to find out what kidnappers they have. I am thinking of paroling them to those fine, patriotic citizens of San Jose, who know how to handle such situations. . . .’
‘Congratulations on the stand you have taken,’ wires the pastor of New York’s Church of the Heavenly Rest.1
The spirit of the mob, aroused by frightful crimes, goes marching on. The Governor of Maryland impedes the course of swift, sure justice by calling out the troops. Twenty-one members of the state assembly — ‘almost all descendants of original Anglo-Saxon settlers ’ — denounce the Governor. Meanwhile the good citizens of St. Joseph, Missouri, hang and roast their man in spite of sixty-five National Guardsmen with armored tanks.
Editorial typewriters once more click out the old familiar tune: Now is the time, now is the time, now is the time for all good men . . . Something is fundamentally wrong . . . The law has broken down . . . Now is the time . . .
For what, gentlemen?
The cry goes up: ‘We need new laws, strong laws, hard laws, laws to end crime.’ Editors, preachers, judges, crime commissioners, and the good citizens of San Jose, point the finger of scorn at our laws. The courts are tied up by antiquated, weak, dilatory, and technical rules so that they cannot cope with the master minds of gunmen, kidnappers, bank robbers, ravishers, and street-corner bums.
In Illinois we have hard, strong penal laws. Murder and kidnapping are punishable by imprisonment or death; rape, robbery with a gun, and burglary with intent to commit a felony, by a maximum of life imprisonment; arson, by one to twenty years in the penitentiary; and other misdeeds by a sliding scale of fines and imprisonment, subject to commutation for good behavior. We have police also, and prosecutors, courts, and jails, all working overtime. Much of our procedure, it is true, dates back to mediæval England. But in spite of that our criminal courts in Chicago, under the pressure of public opinion, are rapidly clearing their dockets.
Yet in Chicago robbery and burglary continue to flourish and people get shot as you might swat flies on the wall. From coast to coast it is the same: thousands of laws, — hard laws, strong laws, — thousands of police, thousands of prosecutors, thousands of courts, and hundreds of thousands of crimes.
It is built of blood and fire, of conflict, aggression, and reprisal. It was forged by the clamor of millions of ancestral voices: the voice of the tribe before the council fire howling for vengeance; the voice of the chieftain passing judgment of torture and death; the voice of fear building barriers about its belongings, its home, its lands, its wives, its maidservants and its manservants, its horses, cows, dogs, and asses, calling upon the tribe to curb the claws and fangs of rapacious neighbors; and the voice also of pity for the weak and justice for the wronged.
The law and its institutions are the fruits of centuries of collective living. Kings, princes, prelates, parliaments, presidents, governors, legislatures, and judges have all had a hand in its making, but behind them stand the people, ready at times to rise up and behead, hang, burn, and destroy in the passion of what they believe to be justice. Deep in their hearts lies a distrust of rulers and judges bred by centuries of injustice and oppression. Out of this grew the grand jury, the petit jury, the rule against self-incrimination, habeas corpus, the right to a change of venue, and other safeguards thrown about the accused.
Much of this legal machinery has, without question, become obsolete and inadequate for the handling of our increasingly complex social problems. Professors, police experts, criminologists, and lawyers have for years been suggesting improved methods for apprehending and trying criminals. Ideally, we should scrap the entire present system from police administration to the punishment or attempted reform of law violators, and build in its place a new structure in the light of more modern ideas as to ways and means of forestalling and controlling antisocial conduct. But the finest system in the world, whether devised by a practical criminologist or a social idealist, will not in itself reduce crime one iota without the spirit and will of the people behind it; and even a slight improvement is impossible as long as the nation, in the name of democracy, cherishes and applauds lawlessness and tolerates political corruption.
Our crime problem is not so much ‘What’s wrong with the law?’ as ‘Who’s wrong, and why?’
Who enforces the law the people built
‘Now, about this crime business,’ said a well-known hoodlum to Senator Copeland when he was in Chicago with the Senate subcommittee on racketeering and kidnapping, ‘all you need is honest cops and a little coöperation from the courts.’
The average policeman must have bitterly resented the public’s cynical approval of this gibe. He is in disrepute for conditions which he is powerless to change. The individual cop is no worse than the rest of us. He has a wife and children. He stands up to get shot at, and quite often is killed. His pay is n’t large and sometimes it’s delayed.
He may start out as a rookie with high ambitions to make a record for himself by catching crooks and cleaning up his precinct. He may dream of promotion through sheer merit, of becoming step by step a sergeant, lieutenant, captain, and chief amid the plaudits of all good citizens.
But he is soon disillusioned. He discovers that there are certain ‘joints’ that must be left alone because they ‘kick in’ to somebody with protection money, and that there are persons whom it is useless to arrest because they have somehow acquired ‘immunity’ from punishment. This is lesson number one — the lesson of political corruption. It is further illuminated by the flamboyant success of certain lieutenants and captains (not all of them, by any means) who ‘sport ’ big cars and invest in stocks, bonds, or apartment buildings.
Our ambitious young cop sees evidence all around him of the profits of the ‘shakedown’ and the ‘fix.’ He learns to keep his mouth shut for fear of being exiled to ‘the sticks.’ Yet in spite of these conditions he may still have confidence in the civil service system (established in most of our large cities for the purpose of protecting the rank and file of the police and ensuring their orderly promotion), only to realize eventually, if he is bright, that it too is dominated by the machine of the party in power.
He may even resist all temptation to take part in the corruption which surrounds him. Thousands of policemen do. But the chances are that he will succumb to another influence just as insidious and vicious — the spirit of lawlessness. Going about his business from day to day, hauling in bums, pickpockets, holdup men, housebreakers, reds, and drunks, he learns from his brothers in arms to consider his prisoners as obstinate criminal cattle to be pushed and poked and yanked around in order to make them dread forever the sight of the police. No matter how kindly he may otherwise be, he discovers that all’s fair in the war on crime. He becomes familiar with the ritual of the ‘goldfish’ room, where prisoners are threatened and beaten with rubber hose, tortured by glaring lights, kept awake for endless hours, and assailed with questions and suggestions until they confess. ‘You gotta give ’em the works,’ he is told, and, his faith in the integrity of courts, juries, and prosecutors being weakened by his own actual experience with corruption and inefficiency, he accepts this doctrine of lawlessness with enthusiasm.
To anyone who doubts the prevalent use of the third degree by the police, let me recommend the Report on Lawlessness in Law Enforcement of the National Commission on Law Observance and Enforcement appointed by President Hoover, which presents a multitude of actual instances and concludes that such lawlessness not only brutalizes the police and hardens the prisoner, but impairs the efficiency of the police by leading them to rely on force rather than wits in solving crimes. This is demonstrated by the fact that the Boston police, with little or no use of the third degree, have obtained much better results than the Chicago force with its habitual resort to torture.
Corruption and lawlessness begin at the top and work down. The enforcement of law and order in most of our cities is controlled by a politically appointed commissioner or superintendent, and through him by the bosses of the dominant party, who thereby acquire a tremendous influence over the lives, property, and happiness of the citizens. How brutally, corruptly, and inefficiently they wield it should be apparent to any reader of the day’s news.
In spite of such handicaps, here and there a few zealous men, who regard police work as a profession, have succeeded in putting in practice improvements in the technique of crime detection and have tried to encourage the morale of their co-workers and win the public’s respect. But they struggle like ants in a sand pit.
Who is caught by the cop . . .
Youth, growing up in the light of the flaring beacons of lawlessness and corruption, shrugs its shoulders: ‘Only saps work. You can’t get a job, anyway. What’s your racket, kid?’
What’s your racket, gentlemen, you who howl for the cutting of school taxes, the reduction of teaching staffs, the shortening of the school year, and the curtailment of every school activity except the three R’s — what’s your racket?
Organized crime, organized labor, organized business, organized politics, organized exploitation, parallel and interlock. When trouble breaks, the ‘big shot’ escapes abroad or gets off with a Senate investigation or a light sentence for income tax evasion. The little shots — our Tonys and Joes and Ikes — take the heavy ‘ raps ’ and go to Sing Sing or Joliet or find permanent surcease via the electric chair.
These are the children, boys, girls, young men, young women, in the streets, alleys, basements, ‘athletic’ clubs, pool rooms, dance halls, barrooms, dives, on the march to detention homes, reformatories, jails. Onward, ever onward, presses the eager, adventurous throng, lured by the hope of easy, gaudy living.
Among them are many mental and emotional misfits who constitute a separate problem. Some of these crippled personalities are discovered and isolated at an early age, but many go about without restraint until they become entangled in the processes of the law. Our social agencies have made progress in the care and treatment of mental defectives, but the law and the courts have been slow to accept the recommendations of psychiatrists.
Indifference, greed, stupidity, shoddy education, and the example of corruption and lawlessness in high places — these are the culprits.
‘Lycurgus left none of his laws in writing,’ says Plutarch, ‘for he resolved the whole business of legislation into the bringing up of youth.’
Who flays the culprit . . .
He begins his career usually as an assistant district attorney or as state’s attorney, with little experience in trial work. He learns his courtroom tactics in conflict with seasoned criminal lawyers who delight in springing on him all the tricks and chicanery of their trade. He thinks he must fight fire with fire and dirt with dirt. If he discovers the coercion and intimidation of witnesses by defendants and their friends, he feels justified in keeping the state’s witnesses incommunicado and holding over them the threat of criminal prosecution.
The prosecutor is further incited to lawlessness by the clamor of editors, ministers, crime commissioners, and business men for more and stiffer sentences. The necessity of satisfying these good people and assuaging the public appetite for melodrama drives him and his assistants to seek convictions by fair means or foul. The prosecutor joins with the police in using the third degree; in court he violates the rules of evidence, and by improper and inflammatory remarks to juries lays the ground for numerous reversals.
Through his control over the grand jury and the initiation of criminal complaints, the prosecutor wields a power superior to the police, and if he is strong and shrewd he may very well become the dominant political personage in his county. Politics, in fact, is the keynote of all his activities. He probably began as a bright boy running errands for a precinct captain, canvassing voters, or handing out sample ballots; or he may have been related to an influential politician. In either case he saw the advantages of legal training and stepped out of law school into political office of some kind, working his way up through the system to nomination for prosecutor on the party ticket.
In his campaign for election he invariably follows the well-known formula of promising to clean up vice, racketeering, gangs, and gambling, and by constant repetition he may even convince himself that he will suppress crime altogether. But the moment he assumes office he is forced to abandon all but a pretense of an honest and independent administration. In the first place, he has to accept the staff of inexperienced and frequently incompetent assistants assigned to him by the party bosses. And, secondly, the men who nominated him are after him at once to ‘nol pros’ this case and that, to give some hoodlum a break, or to let a confessed criminal plead guilty to a lesser offense than the one he is accused of so that he will take a lighter sentence and perhaps walk out of jail on probation. At the same time the forces of bribery and corruption begin to play upon the weaker members of his staff and find ways and means of gaining their ends no matter how honest the prosecutor himself may be.
Organized gangs recognize the prosecutor’s bark, but fear his bite very little. They are in far greater danger from the guns of an outraged police force than from the loud reiteration of the prosecutor that he will drive crime out of his county. Nor can anyone improve the situation very much as long as the office of prosecutor remains a political prize.
Who fights the prosecutor . . .
This is the lawyer, aye, and the entire bar, including your humble servant. Most of us won’t sully our hands with the criminal law. It’s a dirty business. You can’t touch tar without getting smirched. A defendant in a criminal case expects you to get him off by hook or by crook, but mostly by crook. If you are unwilling to adopt the devious and crooked ways of crime itself, you can’t be the defendant’s best advocate, so you turn him down. At least that is how the argument runs.
Most criminal lawyers, therefore, belong to a race apart. Heroes in the public eye; almost but not quite pariahs among ‘good people.’ Hardy and shrewd, they know their legal tricks, their police, prosecutors, judges, and gentlemen of the jury. Above all they are realistic — champions hired to get results.
The lower grade criminal lawyer has his hook-up with gangs and keeps his petitions for habeas corpus written up in blank ready to fill in with the necessary data, so that he can ‘spring’ a client from the lock-up the minute the police nab him. Ho knows who will furnish bail. He knows who knows which judges and how to pull the strings. He asks his clients no foolish questions. If someone intimidates witnesses and bribes jurors, that’s their business, not his. He may indulge in fixing cases, but you can’t prove it on him. His philosophy is short and simple: ‘Give the customers what they pay for.’
You may call this sort of unscrupulous practitioner a lawyer criminal, if you like, but he can turn the phrase neatly on other members of the bar: ‘How about our respectable legal friends who advised public utility magnates and others in the intricacies of floating rotten bonds? And how about eminent counsel who connive among themselves for so-called “ friendly ” receiverships to keep the looting of failing corporations and the consequent fees within the magic circle of the insiders?’
The code of ethics of the lawyers is actually higher than that of the business world which supports them. It includes many niceties and is scrupulously observed by the bulk of the bar. Serious infractions of ethics usually lead to disbarment. The lawyers, on the whole, like the ministers, doctors, tradespeople, laborers, and the police, are a decent, hard-working lot. But they labor under the narrow and often antisocial necessities of advocacy.
Some lawyers, in fact, maintain a distinct cleavage between their personal conduct and their conduct on behalf of clients. They would not steal a nickel or raise a finger in violation of the letter of the law, but they will and do without compunction disclose to buccaneers of business ways of evading the spirit of restrictive statutes. Their concern, like that of their supposedly criminal confreres, is to give the customers what they pay for, and they will ignore every consideration of social good if it conflicts with the aims and ambitions of a powerful client. Lawyers of this sort would doubtless subscribe to the notorious view of Lord Brougham expressed during the excitement of a trial: —
An advocate, by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means — to protect that client at all hazards and costs to all others, and amongst others to himself — is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client’s protection.
This low and servile conception of the duties of an advocate has been generally repudiated by the legal profession. Yet the spirit of it survives among a minority who have so identified themselves with the interests of their clients that they retain no clear conception of the public good. They are the lawyers who aided and abetted the gentlemen denounced by the President in his message at the opening of the present Congress: —
I am speaking of those individuals who have evaded the spirit and purpose of our tax laws, of those high officials of banks or corporations who have grown rich at the expense of their stockholders or the public, of those reckless speculators with their own or other people’s money whose operations have injured the values of the farmers’ crops and the savings of the poor.
There are fortunately signs that the honest, capable, and diligent majority of the bar have been so aroused by the general outcry for a house cleaning that they may rid themselves not only of the ‘lawyer criminal,’ but also of those other malefactors who through a highly developed legal technique and political connections have assisted in looting the public in the numerous ways that democracy affords.
Who favor the lawyer . . .
The culprit is said to be entitled to trial before a jury of his peers. They are too often just that and no more. Therein lies the vice of our jury system as it is administered. Our twelve men may be good and true, but they are not necessarily bright.
Certain trades and professions are notably missing from the jury panel.
The police, firemen, teachers, soldiers, lawyers, doctors, and ministers are exempt by law from jury service in most of our states. Bankers, high executives, politicians, and their friends are exempt in practice. Sometimes their names are drawn, but they usually manage on one ground or another to be let off. No one can really blame them. The profitless frittering away of the time and energy of veniremen by lawyers, the courts, and their attachés is notorious. A busy man is appalled at the prospect of abandoning his own affairs even for a few weeks to take part in the drab and inefficient business of the courts.
Occasionally an intelligent and conscientious citizen called for jury service will not try to get excused, and may even look forward with some zeal to participating in the administration of justice. Such a venireman, however, finds himself herded about with other victims, often in badly ventilated and uncomfortable rooms; and when he is finally called to court for examination as a prospective juror he is certain to be challenged by one side or the other if he reveals the slightest ability to form opinions of his own. In fact, unless he conceals this dangerous faculty, he may fail altogether to enjoy the doubtful pleasure of sitting as a juror in any case. If he plays dumb and is accepted and sworn in as a juror, his experience will be illuminating but not edifying. He must sit in silence and listen to constant bickering over evidence and to arguments of counsel that insult his intelligence. Of course, there are exceptions. He may be lucky enough to be picked as juror in a case defended by a brilliant and inspired advocate. But that happens only once in a lifetime.
Whether the I.Q. of the average jury is lower than that of the police, the lawyers, and the court attendants, we do not know. That it is somewhat lower seems reasonable to suppose. But it should be remembered that the jury is the great alibi for prosecutors and judges. It is invariably blamed for every ‘miscarriage of justice,’ as in the case of the acquittal of the Touhy gang of alleged kidnappers by a Minneapolis jury a few months ago.
The function of the jury is strictly limited to deciding the guilt of the defendant upon the particular evidence brought before it. It is not permitted to consider extrinsic circumstances presented in the newspapers but excluded from court. In cases of business fraud a verdict of acquittal in a supposedly air-tight case may be due to the inability of the jury to grasp intricate evidence, but in cases of murder, robbery, kidnapping, and crimes of violence generally, it is just as likely to be due to the failure of the state to prove the defendant’s guilt beyond a reasonable doubt.
How far the jury system has been tampered with by the fingers of corruption we do not know. In Boston last fall twenty-five former jurors admitted accepting from twenty-five dollars to seventy-five dollars each for holding out for the acquittal of defendants. Two men were sent to jail in Jersey City a few months ago for offering to fix juries in criminal cases, and several others were indicted for jury-fixing in Passaic County last summer.
The drawing of veniremen may also be manipulated by political organizations, so that the men called for service will be of a class and character amenable to influence. The evidence of such practices in Detroit was so strong that the State of Michigan revised its jury panel system.
We have no means, however, of gauging the extent of the corruption and manipulation of juries. It is a secret locked in the hearts of innumerable individual jurors, but they certainly are not immune to the influence of the lawless forces that surround them.
Who instructs the jury . . .
Judge Thomas Taylor, Jr., upon retiring at the age of seventy-two from the bench of the Circuit Court of Cook County, Illinois, after nearly fifty years of the finest type of judicial service, had this to say: —
We have many able men at the bar. It is a pity they will not be able to get on the bench. We do need something here. It is a calamity. I could name three hundred or four hundred of the best lawyers, fit for the bench, but no one of them will ever have the ghost of a show. Our people will not select men who are the best for them. They are plastic in the hands of the politicians.
Judges come up through the political route. The young lawyer becomes a precinct captain and a good organizer. In time he gets close to the ward committeeman.
He then tries out for the Municipal Court. After a few years here the ambitious ones aspire to the Circuit and Superior bench. Their success is at no time dependent on their ability as judges. We get good ones only by chance.
Judge Taylor states facts that are beyond dispute. It speaks well for the human race that we have as many fine, conscientious judges as we do. Quite often, lawyers who have shown no sign of great legal ability, or interest in public service, will demonstrate excellent judicial qualities after their elevation to the bench.
Unfortunately the work of the good judge is seldom broadcast. He labors day after day in court, in chambers, and at home, sometimes late into the night, reading and considering in the hope that by the grace of God he may arrive at just conclusions. But there is no drama for the public in the quiet researches of the human spirit. They go without acclaim. The name of the good judge seldom registers on the minds of the vast electorate, and when his term expires he is wholly at the mercy of the politicians who nominated or appointed him.
Sometimes a judge may renounce all political alliances and play directly for the support of the public, but very few judges can remain long on the bench if they utterly spurn the hands that boosted them up. This does not mean that cases are generally decided in judicial chambers before they are tried, as a large part of the public cynically believes. But it does mean that intervention through politicians is repeatedly sought by the relatives and friends of criminal defendants, and that the judges are besieged from day to day by requests from politicians, big and little, for leniency and special consideration in cases that are coming up before them.
We also have evidence in our great cities that some of the judges of the ‘lower’ courts have tolerated or participated in the organized exploitation of accused persons, as revealed in Judge Seabury’s investigation; that some judges have belonged to political organizations that were closely tied up with gangsters and racketeering; and that others have paid political debts through the appointment of receivers and their attorneys.
The aspirant for judicial office must travel the same path as the aspirant for the job of prosecutor. Very often he has been a state’s attorney or district attorney, and he retains the point of view in criminal trials that he acquired in that office. He may separate his political activities from his function as a judge, but the chances are that his adjustment to the expediencies of politics will continue to have some effect upon his conduct. This is demonstrated in the common judicial practice of approving deals made between the prosecutor and attorney for the defendant, the toleration of innumerable continuances which discourage the witnesses for the state, the perversion of the ancient remedy of habeas corpus, the approval of insufficient and badly secured bail bonds, laxity in granting probation, and the distortion of many legal processes which in themselves would be adequate if properly administered.
Who names the judge . . .
He runs the show and gets things done for the electorate in a way that no one else will or can. He never turns a voter down. He formerly dispensed food, coal, and clothing to the needy through his party organization, and during the last few years he has claimed credit for getting such things for his constituents from unemployment relief agencies, although they could very well have been obtained without him. Quite recently he has tried desperately to control the distribution of jobs by the CWA as a means of keeping voters in line.
According to William B. Munro, who has studied the boss in his natural habitat, he is a necessary and almost indispensable part of our political system, not only furnishing direct contact between the citizenry and public administrative agencies, but also acting as liaison officer between the executive and legislative, yes, and the judicial branches of our government.
In return for helping his constituents, he asks only for their support at the polls. But the upkeep of his organization requires a large and constant supply of money, which he secures by indirect levies upon the entire public. He may still gather some funds through the time-honored sale of police and court protection, but his greatest revenue comes by dealing in licenses, franchises, tax rebates, public contracts, and through campaign contributions from business men, utility magnates, and job holders.
Give the boss power, and the rest of the boys may have the glory. He seldom seeks office except perhaps to grace the latter days of his life, so that he may leave to his children the tradition that their father was held in high honor and esteem.
That the boss and his lieutenants name the judges is a commonplace. Judicial office is a political job whether filled by election or by appointment. While there is evidence that somewhat better men are obtained through the appointive system because of the focusing of responsibility, it is still apparent that a seat on the bench is considered principally as a reward for political service.
Bar association officers and committees again and again have besought party bosses to select their nominees for judicial office from a list of lawyers of unquestioned ability and reputation, but such efforts are vain. The boss knows what he is about and will never alter his purely political attitude toward the bench unless forced by the overwhelming pressure of public opinion expressed in votes.
Who stand for the boss
Who names the judge
Who instructs the jury
Who favor the lawyer
Who fights the prosecutor
Who flays the culprit
Who is caught by the cop
Who enforces the law the people built
‘We, the people of the United States, in order to . . . establish justice . . . ’
So said our forbears, bitter from the memory of Old World tyrannies and the cruelties of king-made judges like Jeffreys and Stubbs. The founders of our democracy stripped their judges of wigs and robes, aggrandized the jury of their peers, and sought by every possible means to protect the citizen against judicial usurpation and oppression.
And as the people spread out across the mountains and the western plains, they carried with them a relentless contempt for the pomp and dignity associated with the woolsack and the mace. Their ideal was justice — plain, swift, and sure. The outlaw — killer or horse thief—was caught and hanged without ceremony by the posse comitatus, or shot on sight by an outraged citizen. Rifle, shotgun, and six-shooter became implements of daily life, like the axe, the plough, and the scythe.
The hordes that poured in on us from the ends of the earth, with customs and traditions conflicting and diverse, eagerly embraced the ideals of democracy, which seemed to them to include not only the aversion for superimposed authority, but the right of the citizen to bear arms and to appropriate whatever property or privileges he could be the first to lay hands on. It was in this spirit that the processes of government and law enforcement were ultimately converted both by native-born and by naturalized citizens into an organized system of plunder and political spoils. It is against this spirit that we now begin to see signs of revolt.
The President issued a clear call for a new deal for justice in speaking before the Federal Council of Churches in December: —
A thinking America . . . seeks a government that will be sufficiently strong to protect the prisoner and at the same time to crystallize a public opinion so clear that government of all kinds will be compelled to practise a more certain justice. The judicial function of the government is the protection of the individual and of the community through quick and certain justice. That function in many places has fallen into a state of disrepair. It must be a part of our programme to reestablish it.
And in his address at the opening of Congress he roundly denounced public malefactors whether operating within or without the letter of the law: —
These violations of ethics and these violations of law call on the strong arm of the government for their suppression; they call also on the country for an aroused public opinion.
The American Bar Association at its annual meeting last summer anticipated the President’s call to action by formulating a National Bar Programme for the purpose of arousing lawyers throughout the nation to a concerted effort to solve, among other things, the problem of criminal law enforcement. Since then the president of the association has sent out a questionnaire to 1450 local and state bar associations asking for specific data on the reasons for the failure of the law and courts to control and abate crime.
The will to reform is, of course, futile without concrete plans. We must have a programme of constructive action with the objective of divorcing every part of the machinery of justice from the control of party politics and of inspiring the entire nation not merely with respect for the law but with the zeal to enforce it. Such a programme might well include: —
1. A nation-wide reform of criminal procedure through the adoption by the states of the modern code devised by the American Law Institute and recommended by the American Bar Association, which would speed up the work of the courts and eliminate useless technicalities. Many of its provisions could be adopted by the courts on their own initiative without legislative sanction.
2. The revamping of our police systems with a view to removing them from the control of local politics, adopting more scientific methods of training, increasing administrative efficiency, and using every modern facility for the identification and apprehension of criminals. Consideration should also be given to Attorney-General Cummings’s suggestion for the development of state constabularies, independent of county lines, working in coördination with each other and the federal authorities.
3. Federal laws for the control of the manufacture and sale of firearms and explosives, stringently limiting the right to bear arms and requiring the keeping of records which would enable the police to trace the pedigree of every dangerous weapon. Other federal laws, where practical and constitutional, to cover interstate criminal activities, not at present subject to federal prosecution.
4. A new attitude toward the problem of youthful delinquency, which goes to the root of our troubles. This would require a thorough change in educational methods in directions indicated by progressive pedagogues, the increased development of constructive habit-forming activities, the teaching of social ethics rather than merely abstract virtues, the consistent and periodical medical and psychiatric examination of all children from an early age, together with the keeping of behavior records, and the adoption throughout the nation of modern methods in the treatment of juvenile offenders. And to carry out such plans we should institute a stern and implacable offensive against the false and shortsighted educational economies which have made such disastrous headway during the depression.
5. The office of public prosecutor must be removed from politics. We should try to inspire a more clinical attitude on the part of the agencies of the state in handling offenders. Every criminal court should have a public defender and an independent staff of doctors and psychiatrists, dominated neither by the prosecutor nor by the defense, with the duty of ascertaining and reporting scientific facts to the court. The recommendations of such a body should largely determine the treatment of law violators.
6. The bar must eliminate the lawyer criminal. It is already tackling the job. The standards of conduct of defense attorneys are also likely to improve with a more scientific attitude on the part of the state.
7. The jury system need not and probably ought not to be abolished. But its function should be limited to a determination of facts. It should have no power to pass upon the moral, emotional, or mental responsibility of a defendant or his treatment and punishment. The problem of obtaining a higher grade of jurors and combating jury tampering is squarely up to the lawyers.
8. We must demand and get better judges. The problem of judicial selection is dealt with in one of the planks of the American Bar Association platform for 1934. Its solution rests upon establishing a technique which will restrict the choice of judges to a qualified list approved by the bar.
9. As to the boss, our only immediate hope is to restrict his influence as far as possible and to use him for more constructive ends.
We have no need of Jeremiahs. The nation is already aroused, but we must find ways of directing the very real and widespread indignation against our lawenforcing agencies into effective action; and above all we must inspire the oncoming generation with an ardent spirit for justice which will burn bright and transcendent in every heart.
- Later, the pastor admitted that his message was the result of being ‘deeply stirred,’ and that ‘it should not have been sent.’ — EDITOR↩