Court procedure in the United States and England contrasted. How the criminal may escape punishment. The jury problem. act are greatly accentuated. No one can examine the statistics of crime in this country and consider the relatively small number of prosecutions which have been successful, without realizing that the administration of the criminal law is a disgrace to our civilization. We have, as is well understood, certain constitutional restrictions as to the procedure in criminal cases, which offer protection to the accused and present difficulties in the proof of his guilt. But these obtain as well in the English courts as in our own, and their existence does not offer a reason for the delays from which we suffer, for such delays do not exist in the administration of justice in England. A murder case which in this country is permitted to drag itself out for three weeks or a month, in England is disposed of in a day, two days, or, at the most, three days, certainly in less than one-fifth the time. This is because the English judges insist upon expedition by counsel, cut short useless cross-examinations, and confine the evidence to the nub of the case. . . . Under such practice, it would be possible for the prosecuting attorneys to clear their dockets; as it is now they are utterly unable to do so. ... At the present time, in our larger cities, a man who is indicted and has means with which to secure bail is released on bond, unless he is confined for murder in the first degree. The pressure upon the prosecuting officers is for the trial of those who are in jail and unable to give bail, and as a result of the delays I have mentioned, jail cases are protracted and the trial of those who are released on bail is postponed oftentimes to the indefinite future, the evidence disappears, newer and more sensational cases come on, and ultimately nolles are entered and the indicted man escapes. Another cause of the inefficiency in the administration of the criminal law is the difficulty of securing jurors properly sensible of the duty which they are summoned to perform. In the extreme tenderness which the state legislatures exhibit toward persons accused as criminals, and especially as murderers, they allow peremptory challenges to the defendant far in excess of those allowed to the prosecution. In my own state of Ohio, for a long time, in capital cases, the law allowed the prosecution two peremptory challenges and the defendant twenty-three. This very great discrimination between the two sides of the case enabled the defendant's counsel to eliminate from the panel every man of force and character, and to assemble a collection in the jury box of nondescripts of no character, who were amenable to every breeze of emotion, however maudlin. or irrelevant the issue. ... Another reason for delays in the enforcement of criminal law is Abuse of to be found in the right of repeated appeals which are given in criminal the right of appeal. cases. The code of evidence, with its complicated rules and numerous technical statutory limitations designed to favor the defendant, are all used as a trap to catch the trial court in error, however technical, upon which, in appellate proceedings, a reversal of the judgment of the court below may be obtained. The rule which generally obtains in this country is, that any error, however slight, must lead to a reversal of the judgment, unless it can be shown affirmatively that it did not prejudice the defendant. The disposition on the part of the courts to think that every provision of every rule of the criminal law is one to be strictly construed in favor of the defendant, [leads to undue delay in the criminal trial.] . . . 1 122. Results of the public defender movement These glaring defects in our criminal procedure are becoming better Significance of the pubknown to the public at large, but as yet the reform of such procedure lic defender has proceeded slowly and with difficulty. Here and there, however, movement. the efforts of constructive reformers have been attended with a considerable degree of success. A notable development is the public defender, movement, which began as recently as 1913, but which is already sufficiently important to warrant serious attention and study. The results of the movement, which aims to provide an honest and capable public attorney to defend impoverished or ignorant defendants, are summed up by Reginald Heber Smith, of the Massachusetts Bar, in the following language: The de fender helps to secure a It is unquestionable that the existence of the defender must prevent some unjust convictions. We believe that by a jury verdict after a fair trial we approximate the truth as closely as is possible. The fair trial. 1 From the Carnegie Foundation for the Advancement of Teaching, Bulletin No. 13. (Justice and the Poor, by Reginald Heber Smith.) New York, 1919; pp. 119-123. The defender becomes a specialist in criminal law, and this re acts to the benefit of poor defendants. The public defender method relatively economical. The public defender raises the tone of the criminal trial, defender reduces the danger of error to a minimum because he guarantees a fair trial to every one. The case for the defender rests primarily on the fact that such an office performs an essential function in the administration of justice more efficiently, more economically, and with all-round better results than any other plan. The increased efficiency can readily be appreciated. . . . The attorney who devotes all his time to criminal work is more familiar with the law and the details of procedure than the attorney who is occasionally assigned a case. Centralization of work makes specialization possible. The office learns the easiest method of conducting the work, it develops its own staff of investigators, and knows the proper authorities to consult as points arise. defender becomes an expert in criminal law. . . . ... The A defender's office, whether supported by the state or by contributions, obviously costs more than assigned counsel who are paid nothing. If, however, adequate representation is to be had, assigned counsel must be paid and their expenses reimbursed, so that the true comparison to determine the more economical method is between the defender and paid assigned counsel. During the first ten months the expense of the criminal department of the Los Angeles office was about $8400; during 1915, $9400; and during 1916, $11,161.40. The average cost per case was respectively $23.86, $20.88, and $21.38, or a flat average for three years in 1324 cases of $21.87 per case. In the superior court for Milwaukee, where assigned counsel are paid, the expense over a period of four years ending 1913 averaged $4934.25 per year for 121 assignments each year, or an average cost per case of $40.86. It is probably not inaccurate to estimate that to secure adequate representation for indigent prisoners by paying assigned counsel is twice as expensive as by the defender plan. . . . [A further result of the public defender movement is that] the whole tone of criminal trials has been raised. . In both Los Angeles and New York the defender has the cordial support of the district attorney. The defense is conducted without resort to trickery or deliberate falsehood, and the knowledge of this fact permits the prosecution to adopt an equally high plane of conduct. . . . That the defender tries his cases on their merits without resort criminal to technical objections taken chiefly for purposes of delay, and that and saves this course saves time and expense to the state without prejudice time in to the defendants, is borne out by such figures as are available. procedure. [In Los Angeles in 1914 the time saved by the defender was on] an average slightly more than half a day per case tried. From this it is easy to see that in the course of fifty or one hundred trials quite a saving is effected when it is remembered that the daily cost to the state of a criminal jury trial is from one hundred and fifty to two hundred dollars. court was developed. 123. Tendencies in the juvenile court movement 1 Toward the end of the last century there was a growing feeling Why the among students of crime that the juvenile offender ought not to be juvenile classed with the adult criminal. The view gained ground that the boy or girl convicted of wrong-doing ought to be subjected to treatment which would aim, not so much to punish the offender, as to correct the mistaken tendencies of youth. After 1899 a response to this conviction was evidenced in the creation of juvenile courts in various states of the Union. The Children's Bureau in the Department of Labor recently conducted a nation-wide survey of juvenile courts, and summarized the significant tendencies of the juvenile court movement in the following language: The wisdom of dealing with the child offender not as a wrong- A wise step. doer, but as one in special need of care and protection, has been fully borne out in practical experience. . . . The extension of juvenile court organization. Increasing recognition The extenis being given to the importance of the extension and development ... șion of the juvenile court ma of juvenile court organization, that all children who come before the courts may have an equal chance. The problem for the immediate chinery. future is the working out of practical methods by which the principles of the juvenile court may be universally applied. Medico-psychological work. The importance of knowledge of the child's physical and mental condition, of his home, and of his family and personal history is recognized as essential to successful work by the court, though the development of facilities for diagnosis has been 1 From the United States Department of Labor, Children's Bureau, Courts in the United States Hearing Children's Cases. Washington, 1920; pp. 15-19. The psychopathic elejuvenile ment in court procedure. Physical and mental examination of the juvenile offender. Coördination of juvenile and family cases. Probation work and the juvenile court. Coöperating agencies. relatively slow. The Juvenile Psychopathic Institute of Chicago, now a part of the state-wide Juvenile Psychopathic Institute of Illinois, was the pioneer in the thorough-going study of children before the courts. . . . Investigation of home conditions and family and personal history is usually a part of the regular investigations made by the probation officers. Physical examinations are given much more generally than mental examinations. In thirteen courts mental clinics were maintained as a part of the court organization. In some of these clinics the examinations of physical and mental conditions, and the studies of social histories were parts of a unified program for the diagnosis of the children's needs and possibilities. Frequently the only children given the intensive study indicated are those presenting especially difficult problems, though the present feeling among many familiar with the work is that all children coming before the courts should have the benefit of such consideration. cases. ... Coördination of the trial and treatment of juvenile and family There is a movement looking toward the coördination of the trial and treatment of juvenile and family cases, including desertion and nonsupport, contributing to delinquency or dependency, divorce, illegitimacy cases, adoption, and guardianship. The National Probation Association has gone on record in favor of such consolidation of court work touching closely the family life, holding that all these cases should be dealt with in much the same manner as children's cases. ... State supervision of juvenile court and probation work. The state probation commissions of New York and Massachusetts have done notable work in supervising juvenile probation and standardizing and centralizing the work of the courts. In some other states there are supervising agencies of various types. Such activities contribute greatly to the extension of the juvenile court organization, the maintenance of efficient probation service, the systematizing of the records, and the general application of the principles of the juvenile court movement. Community coöperation. The growth of the juvenile court has been to a great extent dependent upon the coöperation and assistance of other social agencies in the community. . . . In many courts a |