What Fosters Crime (Part 2)
- Author Clifton Henry
- Published March 6, 2007
- Word count 571
The subject of criminal-law reform is too extensive to be discussed here even superficially, but historically the explanation of existing conditions is simple enough. The present overgrown state of the criminal law is the direct result of our exaggerated regard for personal liberty, coupled with a wholesale adoption of the technicalities of English law invented when only such technicalities could stand between the minor offender and the barbarous punishments of a bygone age. We forget that the community is composed of individuals, and we tend to disregard its interests for those of any particular individual who happens to be a prisoner at the bar. We revolted from England and incidentally from her system of administering the criminal law, by which the defendant could have no voice at his own trial, where practically every crime was punishable with death, and where only the Crown could produce and examine witnesses. Every one will have to agree that the English system was very harsh and very unfair indeed. Today it is better than ours, simply because its errors have been systematically and wisely corrected, without diminution in the national respect for law. When we devised our own system we adopted those humane expedients for evading the law which were only justified by the existing penalties attached to convictions for crime,--and then discarded the penalties. We were through with tyrants once and for all. The Crown had always been opposed to the defendant and the Crown was a tyrant. We naturally turned with sympathy towards the prisoner.We gave him the right of appeal on all matters of law through all the courts of our States, and even into the courts of the United States, while we allowed the People no right of appeal at all. If the prisoner was convicted he could go on and test the case all along the line,--if he was acquitted the People had to rest satisfied. We stopped the mouth of the judge and made it illegal for him to "sum up" the case or discuss the facts to any extent. We clipped the wings of the prosecutor and allowed him less latitude of expression than an English judge. Then we gazed on the work of our intellects and said it was good. If an ignorant jury acquitted a murderer under the eyes of a gagged and helpless judge, we said that it was all right and that it was better that ninety-nine guilty men should escape than that one innocent man should be convicted. Yes, better for whom? If another murderer, about whose guilt the highest court in one of the States said there was no possible doubt, secured three new trials and was finally acquitted on the fourth, it merely demonstrated how perfectly we safeguarded the rights of the individual.The result is that we have unnecessarily fettered ourselves, have furnished a multitude of technical avenues of escape to wrong-doers, and have created a popular contempt for courts of justice, which shows itself in the sentimental and careless verdicts of juries, in a lack of public spirit, and in an indisposition to prosecute wrong-doers. In addition, the impression sought to be conveyed by the yellow press that our judiciary is corrupt and that money can buy anything-even justice--leads the jury in many cases to feel that their presence is merely a formal concession to an archaic procedure and that their oaths have no real significance.
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