Final Report of Committee on Administration of

Criminal Justice of The Denver Bar
Association

To the DENVER BAR ASSOCIATION:

Your Committee on the Administration of Criminal Justice submits its final report.

In our first report we explained the five Committee bills presented to the legislature. Those bills were afterward endorsed by this Association and also by the Chamber of Commerce, the Round Table and the Legislative Council of the State Federation of Women's Clubs.

The latest information we have is to the effect that two of the bills were passed by the legislature and signed by the Governor, to-wit: S. B. 136, concerning arraignments, and S. B. 244, concerning defendants absenting themselves during trial.

S. B. 135, concerning extradition, was passed by the legislature, and awaits the Governor's signature.

S. B. 186, concerning depositions, passed the senate too late to be acted upon by the house.

We regret that the deposition bill and the public defender bill were not passed, but on the whole the Bar Association bills fared well. We cannot expect to get everything we want and just when we want it. A campaign of education has been commenced, and possibly the next legislature may take more kindly to these measures.

The members of the association should discuss and explain these bills at every convenient opportunity, so as to familiarize the public with their merits.

The administration of criminal justice covers such a wide field, and includes so many details, that it is impossible for any one committee to do more than touch upon a few of the questions that present themselves for consideration. It seems to be quite generally conceded that in the United Staes criminal justice is not administered as efficiently as it should be. Perhaps some critics have exaggerated the efficiency of other countries and the inefficiency of this in dealing with crime. Chairman Hallam, of the Section of Criminal Law of the American Bar Association, in an article published in the Association's Journal for April, 1924, severely criticises the report of the Special Committee on Law Enforcement. The committee reported that "throughout all England and Wales in 1921, there were sixty-three murders", and Chairman Hallam says: "This is erroneous. There were sixty-three persons tried for murder in 1921, but the murderers were not all tried. There were in England and Wales during that year 168 coroner's verdicts of wilful murder and 72 verdicts of manslaughter. In addition to these there were 1,612 open verdicts, which did not determine the cause of death, so as to bring it specifically under any of the 12 heads or classifications used * * *.”

"Quite startling is the result of the trials. Of the 63 persons tried for murder, only 15 were convicted and punished, 27, or nearly twice as many, were acquitted and most startling of all 21 were found insane, 7 found insane on arraignment and 14 found guilty but insane. A record of 15 convicted and punished, 27 acquitted, 21 found insane, is a record of which American prosecutors would not feel proud. The large number found insane lends color to the suspicion that English juries prefer a verdict of insanity to

responsibility for sending a man to the gallows. My notion is that such a record, taken all in all, would, in the United States be matter, not of public adulation but public scandal."

"The report states, ‘In 1921 in all England and Wales 113 defendants were put on trial for burglary and 105 convicted. Although the ratio of conviction in New York City is larger than in most other large cities of the United States, the record shows that in New York County in 1921 there were 2,660 burglaries reported, that there were 565 charged with burglary indicted, and that there were 349 found guilty.'

"The figures for England and Wales are incorrect and the comparisons misleading. The number, 113, is the number of defendants put on trial for burglary in one class of courts only, namely, the Courts of Assize. In addition to these, 273 were put on trial for burglary in the Courts of Quarter Sessions, and 20 in Courts of summary jurisdiction, or a total of 386 instead of 113. * ** "In the second place, it is an unquestioned fact that 'Burglary' so-called in England, does not define the same crime as 'Burglary' under the statutes of New York. In England burglary, house-breaking and shop-breaking are separate crimes."

*

"In England and Wales in 1921, according to the official statistics above cited, the number of crimes of burglary, house-breaking and shop-breaking known to the police reached a total of 14,702. The number of persons apprehended for these crimes was 3,979, and the number actually tried for what is counted 'burglary' in New York was, not 113, but 3699. The number of cases of burglary, house-breaking and shop-breaking reported to the police in London alone was 3,830."

Mr. Hallam gives other examples of errors in the report, and concludes with these words:

"We can make no headway by unwarranted disparagement of our

own country or by undeserved exaltation of our neighbors."

In the May, 1924, number of the Journal the Bar Committee challenged the accuracy of Hallam's figures concerning homicide and defended its own. The committee, however, did not question the accuracy of Hallam's burglary figures.

We are not in position to pass upon the merits of the controversy. We believe, however, that we ought to assume a more critical attitude with reference to the indiscriminate praise of law enforcement in foreign countries. Perhaps we are too gullible. Occasionally some one brushes aside the dark clouds of condemnation and cheers us with a glimpse of brighter things. instance, in 1922 the American Bar Association's Special Committee on Law Enforcement, after calling attention to our excess of crimes of violence, has this to say:

"In crimes which indicate dishonesty of the people, such as larceny, extortion, counterfeiting, forgery, fraud and other crimes of swindling, a comparison of conditions demonstrates that the morals of this country are better than in any other of the large countries of the world. The American people are an honest people, commercial integrity here works to a higher standard than in any other land, the morality of the country is higher, the lives of its citizens are cleaner, offenses against women and children are less frequent and more universally abhorred. The criminals of this country number less than one-third of one per cent of the entire population."

For

In 1922 the Canadian Bar Association's committee on the administration of criminal justice made a report, in which we find this:

"Our neighbors to the south in the United States of America have felt compelled through various circumstances to take an intense interest in the work and along many lines with great success. We in Canada are treading the same pathway, in some respects ahead of the United States, but in many vital things, behind them." We find

also the statement that in the cities the judges are overworked; and referring to the law's delays in Canada, the report laments:

"It

is bad enough on the civil side, but in criminal courts to have accused persons, whether in custody or on bail, waiting month after month with serious charges overhanging, is very discreditable to the judiciary wherever it occurs."

It is cheering to read in the works of European criminologists praise of our penal and reformatory institutions and our juvenile courts, in all of which fields they credit us with being pioneers and with setting examples worthy of imitation by European governments.

Though the difference has no doubt been exaggerated by many critics, we do not doubt that in the enforcement of the criminal law we are less efficient than they are in England. This is to be expected; it would be surprising if it were otherwise. In England the population is homogeneous, reverence for authority and respect for the law are traditional, going back through generations, to the time when the king was regarded as ruling by divine right. The chancellor was the keeper of the king's conscience; the judge was the king's representative dispensing justice. The compensation and social position of the judge are such that the most eminent members of the bar aspire to the bench. The tradition of bench and bar are such as conduce to the most efficient team work in dispatching the business of the court.

In this country the population is heterogenous, composed of the most diverse, and all too frequently discordant, elements. Our population consists largely of those whose ancestors, or who themselves, rebelled against the political, ecclesiastical, industrial or social institutions of the old country, and came here to enjoy a greater measure of freedom and self-expression. We are not many generations removed from frontier days, when every man was a law unto himself. This sturdy independence and self reliance are qualities necessary to the building of an empire, but frequently interfere with that submission to authority and obedience to the law that are desirable in a highly civilized community. In such people individualism is highly developed. They often chafe under restraint. They do not always render willing obedience to the rules and regulations established by their representatives, or even to those that they themselves establish. Here every man considers himself a sovereign. He looks upon judges, as well as other officials, as public servants, and therefore is not inclined to feel for them that reverence that is accorded by the English people to their king, their judges and other officials holding under the king. The tenure of office and compensation of most of our judges are not such as to command the talent available in England. There are so many lawyers here, and the judges change so frequently, that it is often the case that the judge and lawyers engaged in a trial are practically strangers to one another; and this is not conducive to the best results. In England the judges try the cases; in this country the lawyers try them. Unless and until we can attract to the bench ability equal to that possessed by the English judges, it would be unwise to give to the judiciary the great powers exercised by the judges of England.

To compare the results achieved in this country with the results achieved in England is not altogether fair to us. We must solve our own problems in our own way, profiting by such suggestions from abroad as seem to be helpful. Much attention has been given to the subject in this country in recent years.

In 1923 the American Bar Association's Special Committee on Law Enforcement sought from lawyers all over the United States their views relative to the condition of law enforcement in this country, the reason for any such failure of law enforcement as might exist, and such remedies as might seem available. Hundreds of letters were received by that committee, a large number of which were printed in a pamphlet. Probably only a few of those pamphlets are in Denver. The views expressed in those letters show the general trend of thought among the lawyers of this country, and we believe

that a few brief extracts from a number of the letters will be interesting and instructive. They follow:

From Justice Sutherland of the United States Supreme Court:

"The principal reform needed is in the direction of getting rid of procedural red tape and speeding up the process of law administration, and this, I am sure, can be done without any sacrifice of accuracy."

From Judge Hough, of the U. S. Circuit Court of Appeals, second circuit: "The condition of law enforcement in this country depends primarily on the kind of law to be enforced.

"Our laws, whether evidenced by decision or statute, are of two kinds or classes.

"First. Laws embodying inherited customs and fortified by long public acquiescence; which are therefore subject to a minimum of private criticism or public attack.

"Second. Laws resulting from the vehemence of some cult, bloc, class, or an economic or social 'ism;-all statutory and all frankly designed to further or coerce, control, favor or suppress a minority, a business or the social conduct of private citizens in a new and unaccustomed manner.

"At present laws of the first class are enforced as well as they have ever been; and in respect of careful legal study, better than ever before. It is true that defects in procedure hamper the enforcement of all laws alike; but the substance of this first class of laws is enforced by overwhelming majority sentiment.

"Laws of the second class are enforced sometimes almost ferociously, always sporadically and uncertainly, and sometimes not at all. The substance of such laws is so vehemently disliked by large minorities that enforcement is usually a matter of local feeling.

"The net result is that the average of law enforcement in this country is distinctly low."

Prof. DeLacy, of The Catholic University of America, wrote:

"Undoubtedly widespread morality-National Morality-is the best remedy for existing evils and the best guarantee of respect for Law and Order."

Adelbert Moot, of Buffalo, N. Y., wrote:

"If the probation and parole system, that prevents youngsters from being schooled in crime in this state, could be copied and intelligently applied all over the country, the amount of crime that would be prevented, and the amount of money that would be saved, would be enormous. Proper moral instruction in schools, for the purpose of developing steady moral character, is another great preventative of crime. Proper religious instruction in homes, Sunday Schools and churches, is also a great preventive of crime. It is with crime as it is with disease, the best cure is to take time by the forelock and prevent exposure to it."

From Moorfield Storey, Boston:

"What is needed is prompt judgment and certain punishment. In place of it we have delays in trials, very long delays in proceedings after verdict, very mild sentences, too much suspended sentence and probation."

From Judge Pound, of New York Court of Appeals:

"Briefly, I think that the condition of law enforcement in this country is about as good as the majority of people actively and affirmatively desire it to be. A system of law enforcement which is far from summary, which is administered by elective officers, which

includes trial by jury and the right of appeal, is democratic and not autocratic, and its failures are due to a lack of a strong public sentiment in favor of prompt, certain and stern punishment for every offense against the laws which the representatives of the people have put on the statute books."

From Judge J. C. Ruppenthal, of Russell, Kansas:

"Our court system should as far and as rapidly as possible be unified and simplified so as to stop the present tremendous losses of efficiency by uncertainty, delay and expense. * * * The bar should be more active to put the truth as to criminal law and its administration before the general public. They should systematically seek to correct the misstatements of the current press as to law and procedure in criminal cases."

From Simon Fleischmann, Buffalo, N. Y.:

"The condition of law enforcement in this country is about on a par with the general level of civilization and social progress which have been attained. The heterogeneous population and primitive conditions of various elements of the population have prevented further advances than have been made, and progress will continue upward, but at a slow pace."

"The only remedy yielding permanent improvement will be the diffusion of general culture, which may, perhaps, be accelerated by educational activity along the lines of impressing upon the public the need of respect for the law. Lawyers can, doubtless, do much, and the obligation rests upon them to contribute their personal efforts and energies to this end."

From George Zabriskie, New York City:

"As regards crimes of violence, I think the remedy, at least in part, involves a general revision throughout this country of the law affecting criminal procedure with a view to removing, or at least greatly diminishing, the obstacles which the law puts in the power of persons accused of crime to put in the way of the administration of justice."

From Chief Justice Teller, of the Colorado Supreme Court:

"We have gone too far in sustaining technicalities in criminal trials. While every proper protection should be afforded to one accused of crime, when on trial, it should be done according to sound reason. At present the criminal codes of the country contain many provisions which are not reasonable, all tending to delay enforcement of the law, and to render convictions difficult."

"Punishment for crimes will act as a deterrent only in proportion as it is prompt and certain."

From James Bronson Reynolds, President of the American Institute of Criminal Law and Criminology:

"a. There should be a clearly recognized standard of efficiency in the administration of the criminal law and in the weeding out of all possible procedural difficulties which delay prompt indictment and trial of alleged criminals.

""b. The elimination of indictment by Grand Jury and the continuance of the Grand Jury solely for special inquiries.

"c. The removal of silence of the defendant as practiced in Ohio and recommended by your committee.

"d. The reduction in the number of challenges by the defendant in trial juries and granting of more power to judges to control the selection of juries.

"e. The elimination of ex parte alienist experts and the sub