The Irritating Efficacy of English Criminal Justice

I

ENGLAND and America are supposed to be more or less alike in their methods of reaching justice by law. No American lawyer, for example, speaking to his English brethren, and no English lawyer speaking before a bar association in this country, would think his speech complete without some well-rounded phrase about our common heritage in the common law, or some reference to the Anglo-Saxon concept of justice as that great and enduring tie which binds our countries together. These sentiments have been so often and so fully expressed, with such due regard to their soporific solemnity, that their repetition here would be only a waste of good printer’s ink.

The really impressive thing is not the similarities between English and American law, but the differences. These differences are not merely in the matter of procedure and formulas, but in something far more fundamental: the practical effective relationship of law, not to the theory, but to the reality, of government. It is some of these differences which I propose to discuss here in connection with criminal law and its enforcement.

At the outset, let me take an illustration of these differences between the two countries in another field. England, as we know, does not, like our own country, prohibit the manufacture and sale of intoxicating liquors. Recently, however, the London newspapers have been full of the tearful appeals of the great distillers, who claim that they are facing ruin by heavy taxes, which have increased from twenty-five cents a bottle on whiskey in pre-war days to nearly two dollars a bottle now. The English consumption of whiskey at the present time, we are told, is only about one third of what it was in 1914, and forty-two distillers have closed down during the past ten years. If it were not, they say, for the export trade to prohibition America, the distillers’ industry would have been completely destroyed. Statistics show, moreover, that in a most marked way drunkenness has fallen off in England since the war, partly because of these taxes and partly because of new limitations on the hours during which licensed publicans may vend their wares, which in general correspond with the usual hours for the consumption of food. These results in the diminution of intoxication have been obtained under a policy which characterizes English law — the principle of having a definite practical relationship between statutes as enacted and their enforceability as a part of the reality rather than the theory of government.

It is the English theory that regulative and prohibitive legislation should have a direct relationship with public sentiment. Law with the English ordinarily means, not a moral sentiment tortured into legal form, but something practical, enforceable, and to be obeyed.

There are special reasons why we should be interested in the operation of English criminal law. One reason is that it seems to work far more satisfactorily than our own. We in America are organizing crime commissions in a dozen states, with a national commission as a coördinating force, to study the alarming growth in our criminality — with statistics of crime showing a varying but steady increase, with our prisons full to overflowing, and with our legislatures busily engaged in increasing the punishment for felonies, providing mandatory life sentence for so-called habitual offenders, limiting or abolishing parole or probation, to add to the terrors of the law for the startlingly small percentage of offenders who are caught. On the other hand, we have the irritating spectacle of England going through hard times, suffering from unemployment and heavy taxes, yet steadily diminishing her criminal classes, closing prisons, selling jails and lockups found to be no longer needed.

Sir William Joynson-Hicks said before the International Prison Congress in 1923 that fifty years ago there were 20,000 prisoners in English local prisons and now 8000; that fifty years ago there were 10,000 prisoners undergoing penal servitude and now 1600; that the number of local prisons had been reduced in the meantime from one hundred and thirteen to thirty-one, and prisons for prisoners sentenced to penal servitude had been reduced from thirteen to four. Still further progress was made in the following five years.

There are to-day four times as many prisoners undergoing penal servitude in the State of New York alone as in the whole of the British Isles. It might be added that New York is unable to accommodate with prison cells some 1200 prisoners now huddled in her existing prisons, and is arranging to build another state prison.

In the United States a survey recently made by the National Committee on Prisons and Prison Labor shows an increase of prison population of 27 per cent since 1923. What makes the contrast even worse is the fact that the recent report of the National Crime Commission shows that the percentage of offenses committed in which the offender is apprehended and punished is far higher in England than with us.

Therefore it should be worth while for us, even in Chicago, where King George and all his works are temporarily under a cloud, to study English criminal law for what it may teach us.

II

Let us take up, in the first place, criminal appeals. There is an obvious reason why criminal appeals are especially important. The appeal court is like the neck of a bottle — the practical efficiency of any system of criminal law is determined largely by what happens there. If that court is slow, technical, learned, and overcritical, the whole system must adapt itself to the tempo and spirit of its governing authority at the top. The extent and nature of criminal appeals, the conditions under which they may be taken, what questions can be heard, the speed with which they may be disposed of, are, therefore, matters of primary importance.

The outstanding new feature of English criminal law is its Court of Criminal Appeal. It began in 1907 with the Criminal Appeal Act of that year, which went into effect in April 1908. Before that date there had been appeals allowed in criminal cases on questions of law, the verdict of the jury on the facts being final and conclusive. Roughly stated, the old English system was much what it had been in Blackstone’s time and much like what it is to-day in many of our American states. When it came to organizing a Court of Criminal Appeal, however, instead of following the American fashion of putting a few timid patches on an old system and calling it ‘law reform,’ the English enacted legislation of a quite different character. The new system, to be sure, was adopted only after a half century of agonizing parliamentary debates, of endless pamphlets by learned lawyers, after every argument of conservatism against reform had been heard and heard again. It was adopted notwithstanding the vaticinations of its opponents that it would result in a court swamped with countless frivolous appeals that would result, in turn, in delays and the general encouragement of crime.

The Act itself, it should also be noted, was largely the work of laymen, the English public having become tired of the continuous objections of a timid bar. Instead, therefore, of a hesitant and incomplete experiment, the new Act creating the Court of Criminal Appeal was a very bold innovation. In fact it is a court with powers so broad and startling that it cannot be contemplated by the average American lawyer without a shudder.

This Court of Criminal Appeal can allow an appeal and set aside a conviction if it thinks a jury’s verdict is ‘unreasonable’ or cannot be supported by the evidence, or because of a wrong decision on a question of law, or if it thinks that ‘on any ground there was a miscarriage of justice.’

If the judges think the sentence was too severe, they can shorten it. If, on the other hand, the prisoner appeals from a sentence because he thinks it too long, and the court, on the contrary, thinks it is too short, the court can lengthen the sentence. If the prisoner was convicted on two counts and the court thinks he was properly convicted on one and not on the other, it can make a substitute sentence for the offense for which it thinks he was properly convicted. If it appears that the prisoner was improperly convicted of one offense with which he was charged and the court thinks he was guilty of another with which he was not charged, and if the court believes the jury must have been satisfied that the evidence proved him guilty of the uncharged offense, then, instead of allowing or dismissing the appeal, the court can substitute for the verdict found by the jury a judgment of guilty of the uncharged offense, provided that the punishment is not more severe.

This is all very bewildering to an American lawyer. What American appeal court can to-day lengthen or shorten a sentence, or substitute a sentence on a crime of which the court thinks the jury must have thought the prisoner guilty for a sentence on a crime for which he was tried and was improperly found guilty? What American appeal court could or would allow a convicted defendant, for example, to call before it for examination a witness who had not been heard in the court below for lack of carfare to attend the original trial?

The main point seems simply to be this. The English people, when they finally concluded after a long delay and many misgivings to create an appeal court for criminal cases, did the following very original and startling thing: they gave the new court every conceivable power to correct any miscarriage of justice, and the widest possible discretion in the handling of criminal appeals.

III

At first blush it would seem that the misgivings of the original objectors to the English Court of Criminal Appeal had merit and that the court was bound to be swamped with frivolous appeals. Consider the phraseology of the court’s power to determine appeals. It is this: —

The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal.

It would certainly seem that if the Appeal Court could set aside a verdict because it thought it was unreasonable, or because for any reason whatever the court thought there was a miscarriage of justice, the temptation to appeal would be great and the number of appeals would be excessive. Before considering the reasons why these misgivings have not proved to be real, it should be said that, according to the Chief Justice of the Court of King’s Bench, who is the head of the English Court of Criminal Appeal, only 7 per cent of defendants having a right to appeal do so; that the court averages about 520 cases a year; that the range of sentences reduced has run from 17 to 47, and the number of convictions quashed from 14 to 39. The court was able to dispose of all the cases which came before it in 1924 in 41 days, in 42 days in 1925, and in 35 days in 1926.

Perhaps one reason why there have been so few appeals has been that the court, having the widest possible authority to determine whether or not a given conviction was right or wrong, has been forbidden by the Act from considering anything else. ‘In any other case,’ the Act says, the court ‘shall dismiss the appeal.’

One feature of the English court which must have immense value in the repression of crime is the speed of its work. We in America completely lose sight of the psychological importance of speed in the final determination of criminal cases. Someone, for example, is murdered. It may be a very gross and inhuman crime. We are shocked at the wrong done to the victim at the time we first hear of the case. Long before its final determination, however, the dead victim has faded from our memory and we simply have before us the picture of the living defendant squirming to escape punishment for his crime, and our sympathies go to him largely because we have forgotten his victim.

This cannot happen in England. The average length of time that elapses in England from the day the appeal is taken, which has to be ten days after conviction, to the day it is finally disposed of in the Court of Criminal Appeal is less than five weeks. Even by the shortest of memories the victim cannot be forgotten in this time. With us the pressure, if any, for speed in criminal appeals is ordinarily on the part of the prosecutor. In England it is quite the reverse. The pressure is on the part of the defendant himself. This marked difference between our system and the English is due to a provision which doubtless would seem quite shocking to us. In England when a man is convicted he never obtains a certificate of reasonable doubt, or goes out on bail. He goes to prison. If he takes an appeal he is entitled, as the English law says, ‘to special consideration as an appellant,’ whatever that may mean, but he stays in prison while his appeal is progressing. What is more, the time which elapses between his conviction and the time his appeal is heard does not subsequently count on his sentence. He is obviously in a hurry, under these circumstances, to have his appeal disposed of, and the celerity of the English appeal is largely due to the stimulative celerity of the defendant.

Whereas the American system entails a long delay in printing records on appeal, the English appeal consists merely in the transcription of the stenographic records and documents of the trial. Preparing these minutes is the main cause for such delay as may be involved in the short period which elapses between conviction and appeal.

Not only is the appeal speedy, but the decision also is speedy, and lacks all the common characteristics of an ordinary American appeal decision. There is absolutely no ‘learning’ in an opinion of the English Court of Criminal Appeal. Very rarely indeed is there any reference whatever to previous decisions, to rules of law, or to anything except the main question of whether on the whole the verdict is ‘satisfactory’ or ‘unreasonable.’ Most opinions are very short, — it is a rare case when one is two pages long, — and most of them indicate on their face that they have been rendered immediately at the close of the argument itself.

Nothing will show more clearly the psychological difference between the English court and our own in determining appeals than this speed of determination, brevity of opinion, concentration on the main question of whether the appellant has been treated fairly or whether the verdict against him has been unreasonable.

IV

There is one further observation which an American lawyer is bound to make on scanning a volume of the opinions of the English Court of Criminal Appeal. It is that English sentences seem to be on the whole short, and that the Appeal Court itself performs a function which is unknown with us — that of equalizing sentences.

Time and again wardens of prisons have told me they cannot understand the great variations which occur in the sentences with which prisoners come to them. The warden finds, for example, that he has two men convicted of the same crime with what seems to him an unexplainable difference of ten or fifteen years in the length of their respective sentences. Cases of this kind are not infrequent. Some of our judges are severe, some are lenient, some express their headaches or family troubles in long sentences, some reflect perfect digestion in short sentences. Convicts who compare the length of their sentences are more likely to note these differences than the average layman. There is with us no process in the courts by which sentences can be equalized, however. The English Court of Criminal Appeal serves as a part of an Equalization Board in this connection.

A few illustrations will show the operation of this function of the court and also the difference between the two countries in the relative severity of sentence. Take, for example, the case of one of two men in England who pleaded guilty to breaking and entering a shop and stealing jewelry. This man received a three-year sentence. He had been convicted in 1899, in 1913, and in 1914. He had a good army record, and then in 1921 he received a penalty of three years for receiving stolen property, After he came out of prison he worked for thirteen months. When he was dismissed for slackness of work, he committed the offense of which he is now convicted. In New York this man would have received a mandatory life sentence. The English court said: It seems clear that these sentences were passed without sufficient regard for the record of the appellants as a whole. Both men had good army characters. It is urged upon behalf of the appellants too little attention was paid to their efforts to get honest work and to the long periods during which they successfully resisted the temptation to commit crime. There seems to be substance in these contentions and, although the offense to which the appellants pleaded guilty was undoubtfully a serious offense, this court is of the opinion that each of these sentences may properly be reduced to eighteen months’ imprisonment with hard labor.

Here is another.

A man convicted of housebreaking was sentenced to two years at hard labor. He appealed and conducted his own appeal and the Crown apparently was not represented. The court said:

The appellant was convicted six times of offenses of dishonesty before the war. He had enlisted in the army, served during the war, and was discharged in 1919. He reentered and served until 1922. He was then convicted of stealing a bicycle and sentenced to six months. Since that date there is no record of any offense until the one we are dealing with to-day. It does not appear that the Chairman in passing sentence took into consideration that there was an interval of three years of honest life between the offense of 1922 and that for which the appellant has lately been convicted. In these circumstances we think that the sentence is too severe and we reduce it to one of fifteen months’ imprisonment.

If it be assumed that these previous offenses were felonies, this man would have received a life sentence in New York under recent legislation which makes such sentence mandatory after the fourth conviction. The New York Court of Appeals, in sustaining the constitutionality of this new law, said:

This may work extreme hardship in certain cases where the sentencing judges would be justified in feeling that the punishment was too severe for the nature and circumstance of the crime or crimes committed, but these matters are for the legislature or the Executive. Courts have no inherent power to modify sentences to meet exceptional cases. Courts declare law as it is.

Neither the English trial judge nor the English Court of Criminal Appeal is subject to these limitations. Even if he has pleaded guilty, a defendant who thinks he has received a harsh sentence may appeal from the sentence itself. This appeal is a dangerous one, to be sure, because the Appeal Court may, if it concludes that the sentence was in fact too short, lengthen it. To us this is another unheard-of judicial power.

In the treatment of those whom we call habitual criminals it may be said parenthetically that English law seems exceedingly lax and of a sentimentality bordering upon the maudlin. Not only are life sentences for habitual criminals not provided, but the most which can be done to give effect to prior convictions is to have from five to ten years added to the sentence of penal servitude fixed for the crime. This additional sentence is called ‘ preventive detention ’ and under it these habitual offenders are sent to Camp Hill on the Isle of Wight, where they are entitled to more freedom than ordinary prisoners, under the Prevention of Crimes Act of 1908, which prescribes that these prisoners are entitled to ’less rigorous treatment as the Secretary of State may provide.’

V

All these differences between the legal systems of the two countries come from one main difference which has not been discussed — an essential and basic difference between English criminal law and ours. England trusts her magistrates. She selects them carefully, gives them wide powers, and expects them to perform their duties in the maintenance of the dignity of English justice. That they have met these expectations is indicated by the criminal statistics which I have quoted at the beginning of this paper.

Here in America, power in criminal law is mainly vested in the amateur rather than the expert. We trust our juries, but do not trust our courts. We have whittled down the power of the judge so as to make him a moderator rather than a judge. Our criminal trials with the centre of authority vested in a dozen jurors, amateurs in justice, adventitiously called for the exercise of undirected powers, are public spectacles of a type utterly unknown in the British Isles. What the bullfight is to Spain the trial in murder cases is to America — a great spectacle. It gets continuously worse.

Nothing paralleling the trial of the Hall-Mills case, one of the most grotesque cartoons of a murder trial that ever happened, can be found in the annals of British law. Nothing like the recent Remus case in Ohio could have occurred in England. We have overdeveloped the jury system by minimizing the authority of the judge.

To make the matter worse, we have made criminal law notoriously technical. We have multiplied in our appellate courts a learning which disfigures our jurisprudence and which complicates all the processes of criminal justice and adds to the difficulties of the trial judge. The English reform has been in simplification. The English judge can keep his mind fixed on the main point, conscious that when the trial over which he has presided is considered in the Court of Criminal Appeal it will be on the single question of whether, on the whole, justice has been done.

The English people are accustomed to believe that their judges are actuated by a fair spirit and that the rights of the defendants as well as the rights of the Crown will be fully protected. Consider what happened last year with us in the Sacco-Vanzetti matter. The whole country was turned into two contending camps on the question of whether these men were innocent or guilty and whether they had received in fact a fair trial. The highest court of Massachusetts, after seven years of delay, reached its conclusion on the case. It did not have the power to find whether, on the facts, these men had been properly convicted. The weight of the evidence was a matter for the amateur in the court below — the jury.

The opinion of the Massachusetts Supreme Court did not consider the real merits of the issue in which both the defendants and the American public were interested. It could consider and did consider only rulings on questions of law. It wrote a very long opinion, considering separately each of the so-called ‘assignments of error,’ the technical name by which questions of law are raised in an appellate court, and found no ‘error’ in these findings. The opinion itself was an unintelligible jargon from the layman’s standpoint. It was a form of mystery made worse by learning. It settled nothing.

This would not have happened in England. The English court’s opinion in such a case would doubtless have been a very short one. It would, however, have discussed and decided those vital questions in which alone the public was really concerned: Was the verdict reasonable or not? Was the verdict one supported by the evidence or was it not? Was there on any ground a miscarriage of justice? These questions an English court would have considered and these alone, and on these grounds and these only could the conviction have been reversed. Any system of law which, after agonizing consideration of a single case for seven years, results in a judgment unintelligible to the public, by a court not even empowered to consider the merits of the case in the way in which the amateur, the jury, had considered it, is bound to prove unsatisfactory. A system under which it becomes necessary for the executive of a state to reëxamine the facts of a trial through an unofficial board, because its judicial system has no adequate facilities for correcting its own errors, is impossible, unworkable, and archaic, and requires fundamental change.

VI

It would be absurd, of course, to suggest that to the English courts or to the English criminal procedure alone is due the startling contrast between English statistics of crime and our own. The English police system deserves its large share of credit for a percentage of arrests and convictions per crimes committed which, as the recent report of our National Crime Commission shows, is also in startling contrast to our own.

English criminal law is not perfect. With all its virtues and defects, however, it is perhaps a fair reflection of a vital aspect of England’s political development — the extent of her success in the establishment and maintenance, over a homogeneous people, of her common law, in a country in which respect for law and observance of law are considered important.

Nor, if we are candid, can we deny that our own criminal law, its processes and results, are any less representative of the present character of our own civilization so far as it is expressed in government. Occasional outbursts of hysterical criticism on verdicts of acquittal like those in the recent Remus and Sinclair cases, the world-wide agitation over the convictions and the ineptitudes of the trial of the SaccoVanzetti case, are, to be sure, indications of a healthy discontent with current conditions, which is a presage of progress.

What is really arousing us at last is the contemplation of the consequences which have followed the process by which American intelligence, imagination, and capacity for organization have been diverted from problems of government to problems of industry. We have neglected our political organization to perfect an organization of industry unparalleled in the world — to create a relation between capital, management, and our millions of workers in industry which will lay the firm foundation for a new ideal of a working world. This task is in its last phases. When we look to-day upon the neglected field of government, however, and view the weeds and tares of our neglect, it need not be with pessimism or discouragement. When we see crime rife, our courts disrespected, our cities and states bleeding with political mismanagement, we see the darker side and not the whole of the picture of our civilization — a civilization in transition to higher things. To these neglected tasks we shall in due course return, and soon. The same intelligence, the same organizing capacity, which have made American industry what it is to-day can, if they will, produce the same results in our political organization. To this field we must return, for the disgrace of its neglect has been with us too long.

In industry, mass production derives its success in a large measure from the development of machinery to take the place of men. Nothing to correspond with this can be applied to the problems of government. We ought to know, for we have tried and failed. We are still trying, though our statute books are full of these failures.

Being busy in other and more alluring fields, we have tried to limit our prospective losses through corruption, incompetence, or sloth, in the neglected field of government, by enacting limitations upon the powers of public officers and particularly of judges. To prevent bad judges, chosen for political reasons only, from doing wrong, we have by a patchwork of prohibitions made it impossible for good judges to act effectively. We should not then complain when our chaotic system works as we ought to expect it to work. If we really think it is safer for us to place the centre of authority for law enforcement in a kaleidoscope of jurors, we should accept the logical results. As I write, however, Congress is trying to extend the judicial strait-jacket formula — the workings of which have proved such a disastrous failure in Chicago, for example — to the Federal courts.

In the business world the by-laws of a company have their purpose, function, and importance, but no business corporation has yet been heard of, even in America, whose success was due to the limitations imposed by its bylaws upon the brains of its management; or even one in which the by-laws were so skillfully drawn as to make competent and experienced executives unnecessary. Some day, perhaps soon, we shall apply the lessons of industry to law.

We are to-day studying our criminal law more thoroughly, systematically, and on a wider scale than ever before. It is intolerably bad and we arc ashamed of it. If I may continue to use the illustration, it needs new by-laws, but it must not depend upon them for success. It needs, not an articulated system of restraints upon power, but a system in which judges are trusted to do justice, are given power to do justice, and in which only those competent to meet the responsibility of such trust receive the dignity of the robe.

Nothing else will do. We must, in the political world as in the industrial world, put our main trust not in machinery but in men. We have for a decade been overbusy with the new problems and the new industrial opportunities which have come upon us following the war. We have neglected ancient tasks and obligations due the State. This period is passing. We are returning to neglected duties and the task of demonstrating to ourselves and to the world our capacity for creating and maintaining a nation which is not only industrially prosperous, but politically civilized.