This article by the Judge appeared in the North American Review in June of 1896. This article reflects the judge's philosophy regarding the appellate court process near the end of his career. This article may have been published in response to the controversy between Judge Parker and the Assistant Attorney General of the United States.
How to Arrest the Increase of Homicides in America
It must be conceded that we are in a peculiar condition in this nation to-day - in such a condition that, in my judgment, one of the greatest problems which have ever presented themselves to the minds of the people is confronting us. That problem is whether crime, and especially crime which destroys innocent human life, shall be triumphant; whether the man of blood, the man of vicious disposition, the man who destroys human life, shall be the despotic ruler, or whether the law of the land shall exert its peaceful sway, and by its protecting power secure all men in their lives under their own roof-tree or wherever they may be. It is a great problem. It is one which is exciting the interest of all good men in the land. We find the great educators of the people, the newspapers of the country, have discovered the evil and are agitating the method of finding a remedy. We find the matter discussed in the law journals of the nation, in the lectures of judges, in statements by professors of colleges, and we find it presented in the most forcible way from the pulpits of the land.
When we go to facts, we find that during the last six years there have been 43,902 homicides in the United States, an average of 7,317 per year. In the same time there have been 723 legal executions and 1,118 lynchings. These startling figures show that crime is rapidly increasing instead of diminishing. In the last year 10,500 persons were killed, or at the rate of 875 per month, whereas in 1890 there were only 4,290, or less than half as many as in 1895. This bloody record shows a fearful increase of the crime which destroys human life. We are all alike anxious for a remedy, but before we can obtain one we must know the cause. We can easily recognize that the greatest evil of any civilized age is confronting us, not only in the shape of crimes committed by individuals, but also of crimes committed by masses of men who are endeavoring by bloody and improper means to seek a remedy - I mean those who band themselves together as mobs to seek that protection which they fail to obtain under the forms of law.
What are the causes of this fearful condition? It can not be because either in the states or nation we have a defective system of laws, because almost every violation of a human right which is serious in its nature is declared a crime and is punished by the laws of the states or the nation. In fact, it may be said that we have the most magnificent system of laws defining crimes.
Judge Elliot Anthony, President of the Illinois State Bar Association, at its Eighteenth Annual Meeting, held January 24, 1895, at Springfield, Ill., when speaking along this line, said:
"There is no subject at the present time before the American people of such transcendent importance as that of the administration of the criminal law. It is as a general rule the least studied and the least understood by our judges of any branches of the law. Many, up to the time of their accession to the bench, never tried a criminal case in a court of record, and, consequently, they have no appreciation whatever of the fine points of the law or what is required by the Supreme Court to sustain a verdict in a case when it has once been obtained, and, what is worse, they do not study to master the subject.
"Our methods of criminal procedure are vicious, and our criminal practice still worse.
"The rights of the defendant are regarded as supreme, while those of the public are almost entirely disregarded and ignored. . .
"The history of crime is interwoven to a greater or less extent with every government, and will always be the most momentous question with which the human race has to deal. It is the great problem of civilization.
"He who has not thought upon it has thought little about humanity, and he who has not paid some attention to the criminal law of his country has not received a liberal education.
"It ought to be administered with intelligence and enlightenment, but it is not. The great effort seems to be to involve every investigation of crime in a network of subtleties, artificial distinctions, and downright quibbles, shut out all the incriminating evidence possible, then decide the case on some technicality.
"There is dissatisfaction everywhere throughout the country in regard to the methods adopted and the course pursued by our courts in dealing with the violators of the law, and it is but little wonder that the people in some of the oldest portions of the Republic have at times become exasperated at the trifling and juggling which are allowed, and have wreaked summary vengeance on thugs and assassins, to the disgrace of civilization and the age in which we live.
"Public rights seem to be held in much lower estimation than private rights, and as between the living and the dead there is no equality what-ever.
The truth about it is, for some reason or another, and the reason to my mind is manifest, the administration of the law affecting the civil rights of the citizen, his property rights growing out of controversies between man and man upon contracts, has come to be regarded as of much more importance than the enforcement of the law which protects the life of the citizen. All can notice that. The criminal law and its administration has rather fallen into disgrace. That is especially true of the large cities of the country. All must agree it is more important to protect a mans life than it is his property. If the mans life is destroyed, if the assassin fires into his house and takes away his life, is that not a greater deprivation than to deprive him of his horse or his cow, or even of all the other property which he possesses? Now, why is this the case? It is largely because of the corrupt methods resorted to defeat the laws administration, and because courts of justice look to the shadow in the shape of technicalities rather than to the substance in the shape of crime.
In 1889 David Dudley Field, in addressing the American Bar Association, of which he was the president, said:
"We are a boastful people; we make no end of saying what great things we have done and are doing; and yet, behind these brilliant shows, there stands a spectre of halting justice, such as is to be seen in no other part of Christendom. So far as I am aware, there is no other country calling itself civilized, where it is so difficult to convict and punish a criminal, and where it takes so many years to get a final decision between man and man. Truly we may say that justice passes through the land on leaden sandals.
"The judges of the Supreme Court have it in their power to establish by their decisions such a body of criminal law as they see fit. They are hampered very little by statutes and none whatever in regard to the determination of the guilt or innocence of the accused. To build up and establish an arbitrary system of rules and regulations is not the true object and aim of an enlightened judiciary.
"What society demands and common sense demands is this: If a man is charged with a crime, then the question should he, is he innocent or guilty? not did the judge err when he told the jury that they must be satisfied of the guilt of the accused, instead of believe him guilty, after a full consideration of all the evidence.
Now, the condition is so serious - and it is growing more so all the time - that there must be some remedy. It is true that the people may live under the government of one party or the other; they may live whether we have a single or double monetary standard; they may live with a high tariff, or low tariff, or no tariff at all; but they cannot live and prosper with crime in the ascendant, and with the man of crime as the despotic ruler. The country cannot survive a demoralized people swayed and dominated by the man of crime. Its people must have some way by which they can secure the blessings, in the shape of protection to life and property, arising alone from the entire supremacy of the civil law of the land. This can be obtained only in the courts of the country where a full, fair, impartial, and rapid vindication of the law by the honest people of the land can be had.
The cause of this condition springs in part from a morbid, diseased public sentiment, which begets undue sympathy for the criminal, and has none whatever for his murdered victim. It grows out of the indifference of the people to the enforcement of the criminal law. It arises from corrupt verdicts begotten by frauds and perjuries. It arises from the undue exercise of influence, either monetary, social, or otherwise, so that juries are carried away from the line of duty. It is often brought into existence by the indifference and negligence of trial courts, for it cannot be said that courts have done their duty when so many murderers escape. To the dereliction of appellate courts this relic of barbarism, the mob, can be largely attributed. To their action, as a rule, may we look for the source of this revolting method of undertaking to secure protection. In fact, the greatest cause of the increase of crime is the action of the appellate courts, which very largely exist in order to consider and act on alleged flaws in the records of the trial tribunals. They make most strenuous efforts, as a rule, to see not when they can affirm but when they can reverse, a case. Their conduct encourages the legal practice that is altogether in the interest of the man of crime.
Some attribute this condition to the jury system, and they therefore advocate its abolition. This, in my judgment, is not a correct conclusion. I would not abate one jot or title of the importance and dignity of this great right of trial by jury, for it is a cherished right which is guaranteed to us by the constitution and laws of the land. It is an historical and essential part of the free institutions of this country. It is the very bulwark of liberty in this land. It naturally springs out of our institutions. It tends to support and perpetuate them. It teaches love of liberty regulated by law. It teaches a reverence for and obedience to the constitution and laws. It is the source of our greatest peace and the foundation of our hopes for the future. The jury represent the great majesty of the people, the mighty power of the law. But to do this they must by their action speak with the voice of truth. To do this they must be guided by courts honest and brave enough to stand by the law and its enforcement. When the juries are thus guided, in a majority of
It is manifest that appellate courts can know nothing of the real trial as it did occur, yet they are not deterred from granting new trials and practically co-operating with unscrupulous attorneys for the escape of men guilty of the most wicked murders. Appellate courts too frequently seem to think that superior knowledge of the law is shown not by affirming the action of the trial court, but by standing in antagonism to it, and by criticizing its action. It is like the case of the bold, open critic, who frequently gets credit for superior knowledge by the audacity of his criticism, when in fact he knows nothing of the subject. Appellate courts are very often made up of men wanting in knowledge of the most elementary principles of the criminal law, for they have never either studied or practiced it. With this want of knowledge of the very law they are seeking to administer, they try the case, not on its merits to determine the guilt or innocence of the man, but they try it by some technical rule which has really no relation to the guilt or innocence of the accused.
If we are to seek protection under the law against crime we must fully endorse the sentiment expressed by Mr. Justice Brewer, made recently in a speech by him before the American Bar Association, where he said:
"I say it with reluctance, but the truth is, you may trust the jury to do justice to the accused with more safety than you can the appellate court to secure protection to the public by the speedy punishment of a criminal.
The action of appellate courts upon cases where crimes have been committed is, in my judgment, of all others the most fruitful cause of the increase of crime. It is not so much the severity of punishment as it is its certainty which is effective. Let capture be sure and punishment certain, and crime is in a measure destroyed.
What, then, is the remedy? How can we correct this condition of blood? It must be corrected, for if not the man of crime will soon be in the ascendant. To correct this awful condition the press of the nation must exert its power, the courts and statesmen and the pulpit must all combine to build up a strong, active, aggressive, public sentiment favoring the supremacy under all circumstances of the law, its vigorous and speedy administration, with a view to ascertaining guilt or innocence, and punishing the one tainted with guilt, and protecting the one who is innocent. The rights affected by the man of crime being the most important and the most sacred of all others, this issue of protection to life should be paramount to all other issues, should be the chief one of the hour. A plank should be placed in the platform of the great national parties speaking in unmistakable tones in favor of the vigorous enforcement of the law, the suppression of crime, and the extinction of the mob - this disgrace of our Christianity and our civilization. The people should be awakened, and the drawn sword of justice should be in the hands
To destroy the greatest of all promoters of crime, I would remodel the appellate court system. I would organize in the states and in the nation courts of criminal appeals, made up of judges learned in the criminal law, and governed by a desire for its speedy and vigorous enforcement. I would have sent to these courts a full record of the trial, and they should be compelled to pass upon the case as soon as possible, according to its merits, and ascertain the guilt or innocence of the accused from the truth and the law of the case manifest on the record. I would brush aside all technicalities that did not affect the guilt or innocence of the accused. I would not permit them to act on a partial record, or on any technical pleas concocted by cunning minds. I would provide by law against the reversal of cases unless upon their merits innocence was manifest. The guilt or innocence of the party should be the guide. I would require prompt action on the part of these courts. By the establishment of courts of this kind public confidence, in a great measure lost at the present time, would be restored, and the people would again be taught to depend upon legal protection against crime, and in this way a vigorous support to the courts and juries would be given by the masses of the people looking toward the laws vindication.
The necessity for a court of criminal appeals for the United States is, in my judgment, of the most urgent character. According to the Attorney-Generals report, last year there were convicted of crimes in the United States 15,430 persons. The crimes mostly affected liberty, but a good many affected life.
Of course, the party convicted should have the right in every case or having his case reviewed upon writ of error. The opportunity for reviews should be made easy for him; even in cases where he could not pay the expense, the privilege should be given him at the cost of the government; but the review should take place at once, and when it comes to be passed upon it should be upon its merits. I would give every man the right to have his case before this court of criminal appeals, but at the same time I would guard the right so as to make it entirely effective to secure the most vigorous enforcement of the law, and at the same time protect the innocence of the accused.
My judgment is that, if the people will turn their attention to this gravest of all questions and build up a public sentiment which will secure a vigorous and pure administration of the law in the trial courts, and then see to it that their law makers provide for the establishment of these courts of criminal appeals where cases can be passed upon by men who are entirely conversant with the criminal law of the land, crime in a large measure will decrease, and mobs will be entirely destroyed; for I believe it to be a cardinal truth that where the law is properly enforced, the people are more than willing to look to the law for security than to any method which is in violation of the law.
I. C. PARKER.
Originally printed in The North American Review, VOL. CLXII.NO. 475 (June 1896). Pages 667-674.
Last updated: April 10, 2015