LAST February 29 was my first day in office as chief justice of the Court of Special Sessions of the City of New York. I spent the day presiding in the Gamblers Court, a court that is truly an enigma to anyone concerned with judicial administration. The calendar was crowded — there are some 20,000 arrests of gamblers annually in New York. The atmosphere in the court was permeated by the odor of corruption that inevitably envelops police enforcement of gambling laws. The defendants were represented by a small coterie of lawyers. Racket lawyers are endemic to a Gamblers Court. Many suspect that they are mouthpieces for gambling syndicates. Others suggest that they are mere hirelings for the bondsman, who is the general factotum guiding the gambler through the maze ol judicial procedures. It is a challenge for the judge to escape being entwined in the web of these nefarious influences and feeling a certain futility regarding the proceeding.
That first day was a revelation for gamblers. Bookmakers and policy collectors went to jail for terms of up to six months with no alternative of a fine — this in a court where gamblers with ten or fifteen prior convictions traditionally have been fined and the penalty paid by a member of the syndicate standing by.
For the six succeeding months, I continued to deal sternly with gamblers appearing in the court. Repeaters were jailed as standard practice. More substantial jail terms were meted out than had been imposed in the previous decade. In the interim, the legislature vested exclusive jurisdiction of gambling cases in the Magistrates’ Courts, effective September first. The judges of the Magistrates’ Courts promptly adopted the new policy and are rather uniformly imposing jail sentences on gamblers with prior convictions. Judicial concern has greatly reduced the number of racket lawyers. The activities of the bondsmen are being subjected to a continuing scrutiny. The judiciary seeks to escape the labyrinth of corruption.
On April 7, Robert Beaman, a thirty-six-yearold Harlem policy collector, was sentenced by me to a $100 fine or ten days in jail; he paid the fine. His relatively light sentence was based on a police record, known as a “yellow sheet,” showing that he was a first offender. Shortly after the sentence had been imposed, a sharp-eyed stenographer stated that he had reason to believe that Beaman had a previous record. A recheck on the gambler’s yellow sheet showed fifteen prior convictions. It developed that a half-dozen other gamblers had similarly avoided the harshness of the new policy. There are unconfirmed reports that the gamblers were paying between $2500 and $3500 to have their police records altered.
Suspicion centers on the Bureau of Criminal Identification, one of the most heavily guarded units of the police department. After a defendant is fingerprinted, the prints are brought to the Bureau of Criminal Identification. There they are matched with filed records, and a yellow sheet is prepared.
According to the authorities, the fake yellow sheets were on official forms and bore a true imprint of the seal kept in the Bureau of Criminal Identification. This would indicate that the fakes were prepared by someone with access to Bureau of Criminal Identification equipment, but the actual switching could have been done later, possibly in the court building.
What is sought to be determined is how the yellow sheets were abstracted from the offices of the Bureau of Criminal Identification so that the forgeries could be committed. The official records in the offices of the Bureau of Criminal Identification were not altered.
The record fixing reflects the acute desperation felt by gamblers and their hirelings as they sense the end of an era of turnstile justice and routine fines. The entire matter is under investigation by New York County’s district attorney, Frank S. Hogan, and already has resulted in three indictments, including that of a lawyer.
On April 19, shortly after the initial exposé, New York City’s police commissioner, Stephen P. Kennedy, referred to gambling as “the most corrupting influence since prohibition.” On August 2, Commissioner Kennedy marked the completion of five years in office. The press commented favorably on his administration and the fact that his tenure has been almost completely free of the traditional scandals that have confounded most of his predecessors. Nonetheless, the commissioner was frank to confess that he is not convinced that police corruption has been ended and to state that at any moment scandal may be exposed. Not without reason, many regard Commissioner Kennedy as the ablest police commissioner New York City has ever had. It is perhaps because of his ability and experience and his knowledge of police history that he does not make the error of deluding himself about the issue of police corruption.
MODERN police forces, such as that in New York City, are little more than a century old. It was only at about the time of the Civil War that cities really began to feel the need for paid professional guardians. Yet, virtually from the beginning, corruption has characterized the police in their efforts to enforce laws against gambling.
As early as 1874 the New York state legislature conducted the first investigation into the administration of New York City’s police department. Notwithstanding the youth of the department, the investigation revealed widespread corruption on the part of police officers having to do with the enforcement of laws against gambling. One of the colorful personalities on whom the investigation focused was Captain Alexander S. Williams. Captain Williams was known as “Clubber” Williams, his nickname deriving from the fact that he made excessive use of his night stick.
Despite minor periodic exposés, police corruption continued open and unashamed until 1892, when a new brand of reformer came upon the scene. He was the Reverend Dr. Charles H. Parkhurst, sober-looking, dark-eyed, fifty-year-old pastor of the wealthy and conservative Madison Square Presbyterian Church. One Sunday morning in February he entered his pulpit and proceeded to denounce policemen who were in league with gamblers and prostitutes, and Tammany politicians who countenanced such conditions. He told of a gambling house operating in the Tenderloin and boldly accused the police of receiving bribery for its protection.
Dr. Parkhurst was immediately denounced by the police, the politicians, and the press. His sermon was described as “vulgar,” “unchristian,” “violently vituperative.” Other members of the clergy suggested that, since wickedness seemed to hold such an attraction for the holy man, he ought henceforth to talk about Sodom and Gomorrah. Charles A. Dana, editor of the Sun, thought he should be driven from his pulpit. On February 23, nine days after he had spoken out, Dr. Parkhurst was haled before the Grand Jury and told to produce proof of the charges he had made. Since his evidence was vague and general, he was rebuked for his “irresponsible accusations.”
A weaker man would have retired to lick his wounds, but not Dr. Parkhurst. Instead, he determined to secure the kind of firsthand knowledge at which no jury could scoff. He hired a canny, hard-faced mustachioed private detective named Charles W. Gardner to show him the city’s night life. Dr. Parkhurst dressed in a pair of loud flannel trousers, a brown slouch hat pulled low over the right eye, and a bright scarlet neckerchief, and together with Gardner he made the rounds of the most sordid spots in New York City, such as the Five Points, the Bowery, and Satan’s Circus.
On Sunday, March 13, two days after they had completed the tour, Dr. Parkhurst chose as his text the eighth verse of the twelfth psalm: “The wicked walk on every side, when the vilest men are exalted.” Everyone, parishioners and the overflow crowd of visitors, knew to whom he had reference.
The Grand Jury, forced to recognize the validity of the new Parkhurst accusations, requested that the four commissioners of the mayor’s police board and the top police brass come in and talk about the connection between the city’s vice and gambling and its policemen. Although the Grand Jury could not gather enough evidence for a single indictment, it did find that: “The police are either incompetent to do what is frequently done by private individuals with imperfect facilities for such work, or else there exist reasons and motives for such inaction which are illegal and corrupt. The general inefficiency of the Department is so great that it is our belief that the latter suggestion is the explanation of the particular inactivity.”
This finding aroused the state legislature, which appointed a committee headed by State Senator Clarence E. Lexow to examine the minister’s charges. John D. Goff was named counsel to the committee. Goff called the police superintendent, inspectors, and captains as witnesses before the committee. Widespread police corruption was unearthed. The superintendent was Thomas F. Byrnes, known as the “Great Detective.” He had accumulated some $350,000 in real estate and securities during the thirty-two years he had served on the force. Arrogantly he declared that he had “obtained more years of convictions against criminals than the detective forces of Scotland Yard, Paris, and Jersey City all put together,” and then surprised everyone with the admission that the department was rotten from top to bottom.
Max F. Schmittherger, a police captain, testified that he collected large sums from the gambling houses, brothels, and saloons of his district. He had to pay $200 a month to his immediate superior, “Clubber” Williams, who was by this time Inspector Alexander S. Williams. Schmittherger, by his testimony, not only avoided a conviction but was retained in the department by the then chairman of the police board, Theodore Roosevelt.
During the investigation, William L. Strong, a liberal banker, was elected mayor on a fusion reform ticket. But on November 2, 1897, only two years after the investigation, a Tammany candidate, Robert A. Van Wyck, defeated Strong, and men and women snake-danced through the streets singing, “Well, well, well, reform has gone to hell.”
While police alliance with gamblers was generally believed to be widespread during the years following the Lexow investigation, it was not until 1912 that another major scandal broke out. Rhinelander Waldo was police commissioner. Schmittherger was chief inspector of the department. Lieutenant Charles F. Becker was the officer in charge of the commissioner’s vice squad — traditionally regarded as the most remunerative spot in the department for a dishonest cop. The commissioner had ordered Becker to make an effort to suppress the gambling houses that were in evidence throughout the city. On April 17, the Becker squad conducted a raid on an establishment on 45th Street owned by Herman Rosenthal, much to the annoyance of the gambler. What disturbed Rosenthal particularly was the fact that Becker had been levying tribute for years and even held a chattel mortgage on the raided premises.
Rosenthal called on the police commissioner and on Mayor William J. Gaynor and offered to produce proof that Becker was involved in the protection of organized gambling. When he was rebuffed, he sought out Charles S. Whitman, the district attorney of New York County.
Even before he saw the district attorney, Rosenthal was negotiating with the New York World to publish an affidavit in which he exposed Becker’s role in organized gambling. Finally, on Saturday, July 13, the New York World announced that it would print Rosenthal’s affidavit in its Sunday edition, which it did.
Whitman then issued subpoenas to Rosenthal and other prominent gamblers to testify before the Grand Jury. On Tuesday morning at 2 A.M., as Rosenthal emerged from the Hotel Metropole in Times Square, Gyp the Blood, a burglar, Lefty Louis, a pickpocket, Dago Frank, a burglar, and Whitey Lewis, a thief, put four slugs into his body and escaped in a cab that was waiting for them.
Seldom has New York been so aroused. Suspicion immediately focused on Lieutenant Becker. The district attorney pursued the investigation relentlessly and brought about the indictment of Lieutenant Becker and the four actual killers for murder in the first degree. There ensued two trials that were undoubtedly more publicized than any others in New York’s history. Public opinion was sharply divided. Whitman presented evidence in the first trial before John D. Goff, who was now a judge of the Court of General Sessions. The jury found the lieutenant guilty of murder in the first degree. The wide acclaim that resulted from the successful prosecution spiraled Whitman to the governor’s chair. The conviction was, however, reversed by the Court of Appeals.
A second trial was conducted before Supreme Court Justice Samuel Seabury and again resulted in a conviction of murder in the first degree. Becker was sentenced to death and died in the electric chair.
Meantime, Samuel Seabury became a renowned judge of the Court of Appeals of the State of New York and later one of the most distinguished members of the New York bar. Scandal once again broke out in 1931, and Seabury was appointed counsel to a legislative investigation. While this was a broad investigation of municipal government, the police department was one of the main targets. Corruption was discovered, as usual, to center in the vice squads dealing with gambling and prostitution. One patrolman, James Quinlivan, was found to have deposited $31,000 in five years, and his frugal wife to have banked $57,744.67. A plain-clothes officer, Robert E. Morris, had saved more than $50,000. When called upon for an explanation, Morris stated that he had won $10,000 in gambling and that his Uncle George had given him some $40,000. Unfortunately, Uncle George was dead and could not verify his nephew’s statement.
The Seabury investigation was the most sweeping exposé in New York’s history. It involved even city hall and brought about the resignation of the then mayor, James J. Walker. It resulted in another fusion reform administration, the administration of Fiorello H. La Guardia. La Guardia’s term of office, from 1934 through 1945, is generally regarded as an era of unparalleled integrity in New York’s municipal history. Nonetheless, corruption continued to flourish in connection with the police effort to curb gambling.
In the early 1940s, an investigation conducted by Special Prosecutor John Harlan Amen in Brooklyn revealed that gambling was widespread and led to the dismissal and forced resignation of scores of police officers, many of whom held high rank. A highlight of this investigation was photographs of police officers openly taking bribes from known gamblers.
In 1943, the New York City Department of Investigation raided a store in Harlem. For three years prior to the raid, the proprietor of the store had been conducting a policy (numbers) game as an incident to the operation of a grocery business. A ledger, which became known as the “little black book,” was seized during the raid. The little black book contained entries of bribes paid to police officers. Each entry had the date, the name of the officer or officers, and a symbol to denote the payment, which varied in amount according to the rank of the police officer. The names of 111 officers of various ranks assigned to the police commands having jurisdiction over the store appeared in the ledger. These included more than 90 per cent of the officers in principal police commands. There perhaps has never been a more graphic revelation of the universality of police corruption arising from the enforcement of the gambling laws.
And in 1950 the city was once again rocked by police scandal arising from the enforcement of gambling laws. The testimony of a bookmaker, Harry Gross, led to the indictment, conviction, dismissal, and resignation of scores of police officers of all ranks — easily the greatest shake-up in the city’s police history. The investigation did much to discredit the administration of William O’Dwyer, a distinguished mayor who, contrary to popular impression, had personally worked more diligently than any of his predecessors to curb the corrupting influence of gambling on the police department.
MY PROFESSIONAL career has been almost entirely in the criminal law, as prosecutor, as chief magistrate, and as chief justice of the Court of Special Sessions. My experience with the enforcement of gambling and related laws has made me increasingly critical of the criminal process. I find myself substantially in agreement with President William Howard Taft, who characterized the criminal law as a disgrace to American civilization. I have had to ask myself the basic question: What is — or what should be — the criminal law?
The primary purpose of a code or a system of criminal law is to protect you and me in the security of our lives and property. But if you view the police effort in any of our major cities, you will gain the impression that the protection of human life and property is but a minor and incidental part of the police function.
Criminal law should deal primarily with such matters as murder, robbery, assault, arson, theft, burglary —crimes that threaten the security of our lives and property. Insofar as criminal law deals with other antisocial conduct, the police emphasis should be on prevention rather than detection and arrest.
As for gambling, I believe that existing antigambling laws are not only futile but mistaken in basic philosophy. I believe in the moral law. I believe that there is an objective norm of morality. But I do not believe that gambling is a violation of the moral law. Certainly the double standard that makes a bet at a race track morally and legally superior to one placed on a street corner is dubious, to say the least. Even if we grant that gambling is immoral, that it is a violation of the moral law, I question the wisdom of dealing with the problem by criminal or prohibitory legislation.
Gambling is essentially the poor person’s means of satisfying a normal human instinct. It puts a spark in his daily existence — an important item when you think of the boredom and the lack of home life of the underprivileged. In a recent policy trial, the prosecutor sought to discredit a defense witness. To a question as to whether she ever played policy, the witness replied with commendable frankness: “Why, sure, man; everyone in Harlem play the numbers.” The policy racket is reputed to be a billion dollar a year business. It has been estimated that the American public spends 20 billion dollars a year — most of it illegally — on horse races, football pools, slot machines, and the policy game.
I decry a Las Vegas, but I believe in the legalization of gambling under public control. Bring gambling out in the open. Give the public a chance to satisfy its desire. Then, by appropriate regulatory legislation, extend it in one direction or another, or confine it, as developments warrant.
My policy of strict enforcement of gambling laws does not reflect sympathy with existing laws but rather an attempt to cleanse the court of involvement in corruption and to bring the merits of these laws under broader public scrutiny, paving the way to their ultimate repeal.
In England, too, there is a long history of frustrated gambling legislation, dating back to the reign of King Henry VIII, in 1541. But even more than in the United States, the law in England has never conformed to the dictates of society and has not succeeded in changing a traditionally tolerant attitude toward gamblers. Betting has always enjoyed a kind of social status in British society. After next May, Britain’s new Betting and Gaming Bill will permit across-the-counter cash bets on horses in licensed shops, shops in which racing information and odds will be posted on blackboards but in which music, television, and drinking will be prohibited as enticements to loitering. The vote for the bill in the House of Commons was 311 to 49. The decisiveness of the vote is an indication of the public acceptance of gambling in England. In the course of the debate in the House of Commons, J. Chester Ede, a former Labor home secretary, brought an appropriate response when he declared:
“I do not believe gambling is a sin. I don’t believe it is a crime. I believe it is a folly — and I speak from experience.”
And after the laughter subsided, he added: “There is only one day I can recollect when I came home from Epsom Downs feeling that at last I had outwitted the tote.”
The new bill even has the approval of Dr. Geoffrey Fisher, the Archbishop of Canterbury, who feels that it may become a way to control a “great social evil.”
Yet a similar proposal advanced by New York’s present mayor, Robert F. Wagner, at the last two sessions of the state legislature has received little support. The mayor envisages a series of licensed betting parlors, with a “service” charge on bets. He frankly urges the idea as a revenue-producing device. I unqualifiedly endorse the mayor’s proposal for the legalization of off-track betting, not alone in New York but throughout the nation.
I also endorse a government-operated lottery, such as that proposed by Congressman Paul A. Fino. The proposed lottery is very similar to the Irish Sweepstakes, the Mexican National Lottery, and the much newer French National Lottery. These have been operated by government agencies, without any breath of scandal. The major portion of the money taken in is paid out in prizes; the remainder is used on public health projects. Would not such a lottery provide some comparatively harmless sublimation for the game player’s instinct? If the federal government does not want to enter the field, I see no reason why the city or the state should not.
The underworld is thriving on our hypocrisy and stupidity. So long as we persist in our efforts to end gambling by prohibitory legislation, we promote police corruption. Police honesty can never be a relative matter. Police corruption erodes the average citizen’s respect for the law and makes him cynical about all law enforcement. We cannot continue to tolerate a partnership that invites corruption. And, yes, we owe it to the judiciary to end the existing judicial farce.