Osborne, Harry V.

English

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 7 | Issue 6 Article 21917Establishment of Uniformity in DeterminingPunishments in Different Courts and DifferentJurisdictionsHarry V. OsborneFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationHarry V. Osborne, Establishment of Uniformity in Determining Punishments in Different Courts and Different Jurisdictions, 7 J. Am.Inst. Crim. L. & Criminology 804 (May 1916 to March 1917)THE ESTABLISHMENT OF UNIFORMITY IN DE-TERMINING PUNISHMENTS IN DIFFERENTCOURTS AND DIFFERENT JURISDICTIONS1-HARRY V. OSBORNE2There is little use in developing elaborate theories of criminalcausation, of pondering the relative claims of the anthropologist orthe sociologists, of weighing the comparative influence of heredity, oreconomic conditions, or of considering the mental, moral or physicalstate of the offender, unless we find an adequate remedy for the dis-order and, having found it, apply it with intelligence. There is smallbenefit to -be derived from the intricate and expensive systems ofpolice investigations, court examinations and judicial procedure unless,having determined upon a method of suppression and correction, itis administerid not only wisely but equitably.Crime, broadly speaking, is the anti-social act of isolated membersof the community'and punishment is the social reaction against crime.Under the term punishment we ordinarily group all of the agencieswhich society commonly employs in its effort to protect itself fromthe acts of its recalcitrant members, from the death penalty in capitalcases to the paternalistic efforts of those extreme penologists whoconsider crime in its every aspect as a disease and who would treatit as such.But whatever theory of crime and punishment one holds, it mustbe apparent that the punishment should be administered with thesame celerity, certainty and uniformity as characterizes the admistra-tion of the law up to that point. As the primary purpose of punish-ment is to prevent a repetition of crime, the failure to apply it under-standingly necessarily indicates a failure of the remedy to accomplishits purpose.I have no doubt that the weakest point in the whole range ofour correctional system is in the administration bf the punishment,in other words, in the application of the social remedy.In order to appreciate more fully the importance of this aspect ofthe matter, let me direct your attention for a moment, to the agenciessociety has had constituted for its protection; to that great armyofpolice which seems to be necessary to maintain peace and order and1Read before the American Association of Clinical Criminology, Buffalo,Oct., 1916.2judge of the Essex County Court of Common 'Pleas; Newark,-N. J.UNIFORMITY IN PUNISHMENTS 805protect the many from the unruly few; to the vast number of policemagistrates and minor officials necessary to conduct the preliminaryinvestigations; to the number of grand juries with their officers andattendants; then to the jails and houses of detention with their jailersand-under keepers, and lastly to the trial courts with their vast ma-chinery of petty jurors, clerks, process servers, detectives, court of-ficers and judges.The individual who is not able to maintain that standard of con-duct prescribed by society sifts through this cordon of police, magis-trates, grand and petit juries to .the judge for sentence. All this,running into thousands upon thousands of dollars and employing in theaggregate an untold number of men throughout the length and breadthof the land, to determine the simple fact of the commission of crimeand identity of the criminal. All this merely to bring the offender to thebar of justice. And once there, observe again the elaborate processeswhich society has evolved to prevent a repetition of the crime and todeter others. Jails, penitentiaries, prisons and reformatories, probationand parole officers, parole and pardon boards, involving the investmentof an enormous capital and engaging the attention of an immensenumber of men and women.Picture it as a great social hopper or funnel into which are con-stantly being drawn those unfortunate members of society who forone reason or another have violated the law. Their guilt having beenjudicially determined they appear before the judge for the impositionof such penalty, within the limits of the law, as he may prescribe.Upon him now rests the final responsibility. How important his deci-sion; what infinite care should be exercised by him that the punishment.shall be adjusted accurately to the crime and to the needs of theprisoner. The consequences are momentous. The prisoner may have,probably has, a family dependent upon him for support; consider whatit means to them. He may be a man of good purpose and high ideals,subjected to too great a temptation; he may be youthful and led astrayby vicious companions; he may be a first offender, or perhaps a victimof circumstances; possibly he is mentally irresponsible, or depraved,or vicious, or an old offender. Each case presents a separate field ofstudy, in no two are circumstances exactly alike, and each must behandled as a distinct social problem and with a realization on the partof the judge of the importance of his decision. Failure it this pointmeans failure of the whole elaborate system society has built up atsuch trouble and expense for its protection.HARRY V. OSBORNEPunishment, in order to satisfy public opinion, should be as nearlyuniform as the circumstances of the case permit. Justice must infact be just, and to this end the judge must apply himself. The pris-oner and the public should be made to understand that in determiningpunishments the judgment of the Court is adapted to each individualcase; that it is beneficial, upright and impartial.When other offenders or the public see that A is released on asuspended sentence or is placed on probation upon a conviction forassault and battery, while B, for the same offense, is sent to prisonfor a term of years, they cannot, understand why these distinctionsare made. They still think, unconsciously, of the old idea of a givenpunishment for a given crime.They do not realize that the judge, in determining sentence, hasbeen at great pains to take into consideration every possible factor bear-ing upon the offender, as well as the consideration of the offense itself.His age, his previous redord, his environment, all are or should beconsidered. What would be reformatory punishment for one mightnot be adapted to the case of another. These things society shouldbe made to understand.That this desirable uniformity of judgment is difficult to accom-plish I am well aware. Its necessity and its difficulty should impel usto strive the harder for its accomplishment.The whole solution of the matter, however, does not lie in thehands of the judge, for the law generally fixes a maximum penaltybeyond which the judge cannot go, and in capital cases indicatesdefinitely the punishment, some jurisdictions permitting the jury tomodify the extreme penalty, in which case the judge has no discre-tion.Except for the most serious offenses the law now usually makesno attempt to settle in advance the precise degree 6f punishment to beimposed. At one time such was the case 6nd there was a well definedgroup of penologists who advocated a fixed penalty for every crime,upon the theory that every wrongdoer, being presumably in full pos-session of his faculties and exercising free control over his will, madea deliberate choice when he violated the law.and that he should there-fore be required to pay the exact penalty fixed by the law. Thissystem of determining the punishment on the basis of the offense ratherthan in view of the responsibility of the offender undoubtedly hasits advantages. It is precise and uniform and relieves the sentenceof that uncertainty due to the variability of human judgment. TheUNIFORMITY IN PUNISHMENTS 807judge becomes a mere administrative auxiliary imposing the pre-de-termined legal punishment with a disregard for consequences charac-teristic of such a system. The punishment inflicted represented thepenalty imposed by society upon the wrongdoer; the vengeance ofthe community visited upon his head for his voluntary transgression;prevention was stimulated by the severity of the sentence and thequestion of the habitual offender was in a measure solved by hangingthe culprit.It being impossible for the law to anticipate with exactness thepunishment best suited to each individual offense, legislatures havein consequence given more and more latitude to the judge for theemployment of that necessary discretion, the exercise of which is soimportant to the proper administration of the criminal law. And itis because of the latitude given to the individual judges presiding indifferent courts and different jurisdictions, that some effort should bemade towards uniformity in determining responsibility and punish-ments.Under our modern system this power of determining the durationand character of punishmefit is more or less restricted by legislativeenactment, generally by fixing certain limits within which the sentencemust be kept, usually with the right, however, of suspension altogetheror, in some jurisdictions, where the proper facilities have been pro-vided, of the use of the probation system. The maximum limit of aprison sentence is sometimes further modified by various forms ofindeterminate sentence in use in some jurisdictions and in some institu-tions. Again in other jurisdictions, the penalty may be imposed bythe jury in certain cases when rendering its verdict, the judge beinga mere arbiter upon the presentation and admissibility of evidenceand the disputes of opposing counsel.The reformatory idea of punishment is undoubtedly much ham-pered by the conflicting powers of conflicting authorities. We had lastnight, in the address of Governor Whitman, a striking example of theconflicting ideas and inconsistencies of some minds in the applicationof practical penology; he advocated a. penology that takes no accountof the prisoner-the old penology of severity and repression-yetclaiming to believe in the possibility of the reform of the prisoner.You cannot reform by the old repressive measures without takinginto acount the personality of the offender.The elements, then, entering into this system of the individualiza-tion of punishment are legislative, which applies to cases rather thanto persons, judicial, the jury and parole and pardon boards.HARRY V. OSBORNE.As the law cannot in advance take into consideration the punish-ment best suited to a particular offender, and as a jury is in no posi-tion to weigh carefully and dispassionately the circumstances whichmay have influenced him, and the measures necessary for his refor-mation, it may be conceded that, at least until the practical working6ut and demonstration of the efficiency of the pure indeterminate sent-ence, the determination by the judge of the extent and duration ofpunishment, within the limits prescribed by the legislature, is theonly practical plan available.This conclusion having -been reached, the next step is to. increaseto the greatest possible extent the efficiency of the system, whichmust necessarily be done. through the agency administering it,--thejudges themselves.We have in this country in the. different states, and sometimesin the various political sub-divisions of the same state, judges holdingoffice by election or by appointment. It is possible that under theappointive system the peculiar fitness of the judge for the administra-tion of the criminal law may have been considered, but by no possibilitycan I conceive of an intelligent choice being made by election of acandidate for the criminal bench, except by chance in the case of a'candidate for re-election who may have demonstrated his peculiar fit-ness while in office. It is usually thought quite sufficient if the candi-date for appointment or election to the bench of a court having criminaljurisdiction, is of respectable legal attainments and of reputable stand-ing at the bar. Little or no consideration is given to the questionwhether he has any special qualifications, or has any training for, orhas made any study of, the problems he is called upon to solve. Ithink it must be quite apparent to those who have given this aspectof the study of criminology any consideration that a large propor-tion of the judges admimistering the criminal law have little compre-hension of the problems they are constantly attempting to solve. Theymay have opinions, they undoubtedly have prejudices, but that theyhave any real conception of the vital questions they are called uponto answer or their importance tQ the community, is hard to believe whenone reviews the circumstances surrounding some of the cases and thepenalties imposed.I have .seen it stated, and I have no doubt that it is frequentlyassumed, that the judge has no knowledge upon which to base hissentence other than the facts and circumstances which he ascertains atthe trial of an offender. This, of course, we know is not the real situa-tion, but not being trained in the science of penology, the decisionsUNIFORMITY IN PUNISHMENTSreached are almost of necessity the result of offhand impressionsrather than deliberate conclusions based, on an enlightened proceedingand scientific investigation. With part of our judiciary adhering tothe old idea of freedom of will and punishment for social vengeance,while others accept and apply the modern theory of prevention andreformation, it is difficult to reconcile the application of punishmentin different courts and different'jurisdictions. Judges administeringthe criminal law should have some knowledge of scientific penology,sociology and psychology, of criminal anthropology and statistics. Theysheuld have an intimate familiarity with penal institutions and a keeninsight into human nature. They should have at hand the facilities-for probing into the past life of the prisoner, for determining hisheredity and environment; they should have available the means todetermine with reasonable accuracy his mental and physical condition.Uniformity must be attained under our present system by reaching acommon understanding, and the acceptance of corresponding-methods.Until the importance of a correct knowledge of the problem isrealized and an earnest effort is made by judges of the criminal courtsgenerally to meet the situation by suitable preparation, little progresswill be made, and unless this can be accomplished, it may well beadvisable to adopt the pure indeterminate sentence and leave thewhole question of punishment to a properly constituted tribunal uponwhich the student of criminology, the sociologist, the psychologist, thephyschiatrist and the physician may be represented.I do not view the situation in an altogether pessimistic light. Itis gratifying to note the increasingly large number of judges who aremaking an intensive study of this most interesting and absorbingsubject. We are much indebted to the valuable research work that isbeing done by scientific investigators without which it would be im-possible for the courts or the administrators of correctional and penalinstitutions to attain that degree of efficiency for which we are striving.With science doing so much there is small reason for the failure of thecourts taking advantage of the results of these efforts. It is by theseefforts, stimulating public and professional interest, that the wonder-ful results now being accomplished in some jurisdictions are possible.From the accumulated knowledge which we have acquired andthe great mass of material at hand, we must intelligently, honestly andwithout prejudice, reject that which is useless and accept that whichis good.We must face our responsibilities fearlessly, discuss our problemsfrankly and, admitting our faults when we find them, apply ourselvesto a better solution of the problem than we have yet accomplished.

Establishment of Uniformity in Determining Punishments in Different Courts and Different Jurisdictions

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Establishment of Uniformity in Determining Punishments in Different Courts and Different Jurisdictions

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