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Inherent and Acquired Difficulties in the Administration of Punitive Justice

Published online by Cambridge University Press:  04 October 2013

Roscoe Pound
Roscoe Pound*
Affiliation:
Northwestern University
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Extract

That there is a general and well-grounded dissatisfaction with the administration of punitive justice in America, I shall take for granted. It is, if I may say so, a condition, not a theory. The criminologist complains that whereas the fear of punishment does not restrain crime, it is none the less the chief reliance of law for protecting society; that whereas his science has shown the necessity of special institutions with expert management for many classes of delinquents, the legal theory of ideal equality before the law leads criminal law to consign all offenders to a common prison; that whereas he has “demonstrated positively that crime is a disease,” the law persistently deals with the criminal as a normal person. The sociologist complains that whereas the true purpose of punishment is protection of society, the basis of judicial punishment is revenge; that whereas the rights of society ought to be borne in mind continually, the law looks chiefly at individual rights; that whereas sociology has shown the necessity of study of the actual criminal, the law deals with him in the abstract and speculates over responsibility; that whereas the certainty, not the severity of punishment operates as a deterrent and protects society, the law provides for the latter and takes scant account of the former. The plain citizen who, without scientific investigation, knows only that he pays taxes to maintain prisons, courts, sheriffs, constables, police, and public prosecutors, complains that notwithstanding the enormous cost—said to amount the world over to $400,000,000 annually—society is not protected, crimes are not punished, and lawlessness is general.

Type
Papers and Discussions
Information
Proceedings of the American Political Science Association , Volume 4: Fourth Annual Meeting , December 1908 , pp. 222 - 239
Copyright
Copyright © American Political Science Association 1908

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References

1 Boies, , Science of Penology, 77 Google Scholar.

2 Ibid., 89.

3 Ibid., 90.

4 See an excellent summary of the divergence between the legal and the sociological views in Kellor, , Experimental Sociology, 231–232 Google Scholar.

5 Willoughby, , Social Justice, 321 Google Scholar.

6 See the paper of Hugo Muench, Esq., Year Book of Bar Assn. of St. Louis, 1906, pp. 85, 106; Address of Dr. v. Liszt, Professor at Berlin, 1906; Bar, Die Reform des Strafrechts, Jahrbuch der Internationalen Vereinigung für Vergleichende Rechtswissenschaft, viii, 1 Google Scholar.

7 Conti, L'Intervento della Difesa nell Istruttoria. Loria, , Economic Foundations of Society (Keasbey's translation), 111–112 Google Scholar. Sig. Conti states at the outset that Italian criminal procedure calls, not for amendment, but for thorough reform.

8 Fortescue, De Laudibus Legum Angliae (written about 1453), cap. lii (Amos'translation).

9 Coke, Third Institute, Epilogue.

10 4 Bl. Comm. 4.

11 Boies, Science of Penology, Preface.11

12 Causes of Popular Dissatisfaction with the Administration of Justice, Rep. Am. Bar Assn., xxix, 395.

13 Westermarck, , Origin and Development of the Moral Ideas, 9 Google Scholar.

14 See Passos, Dos, The American Lawyer (1907), 168 Google Scholar; Hughes, , Datum Posts of Jurisprudence (1907), 106 Google Scholar.

15 Labor Day address of Mr. Gompers, see Associated Press dispatches of September 3, 1907.

16 See article by Dr. Parkhurst in Munsey's, January, 1908.

17 For the attitude of the common-law lawyer toward legislation, see Carter, , Law, Its Origin, Growth and Function (1907)Google Scholar; Passos, Dos, The American Lawyer (1907), 169 Google Scholar; Hughes, , Datum Posts of Jurisprudence (1907)Google Scholar; Sharswood, , Professional Ethics, 5 ed., p. 23 Google Scholar; Judge Parker's Address, Rep. Am. Bar Assn. xxix, 383.

18 Ward, , Dynamic Sociology, ii, 365 Google Scholar; Ross, , Social Control, 107, 111 Google Scholar; Willoughby, Social Justice, chap. x.

19 v. Liszt, Lehrbuch des Deutschen Strafrechts, secs. 13, 16; Kohler, Einführung in die Rechtswissenschaft, sec. 77; Lorimer, , Institutes of Law, 311 Google Scholar; Salmond, Jurisprudence, sec. 24.

20 Merkel, Lehrbuch des Deutschen Strafrechts, sec. 79; Hastie, , Outlines of Jurisprudence, 90 Google Scholar.

21 Holmes, , Common Law, 41 Google Scholar; Stephen, History of the Criminal Law of England, chap, xvii; Kennedy, The State Punishment of Crime, Rep. Am. Bar. Assn., xxii, 312.

22 Griggs, Lawmaking, Rep. Am. Bar Assn. xx, 243.

23 Maine has observed that the necessity of being interesting has no small effect upon government. Popular Government (American edition), 147. This necessity of furnishing news and keeping before the public is the destruction of American prosecutors.

24 Montagu Williams, Leaves of a Life, chap, ix; Serjeant Ballantine, Some Experiences of a Barrister's Life, chap, xxvii; Harris, Hints on Advocacy, chap, iv, secs. 13, 14.

25 Ballantine, Some Experiences of a Barrister's Life, 6 ed., 227 Google Scholar.

26 See a discussion of this in Bentham, Theory of Legislation (Hildreth's translation), 326.

27 Boies, , Science of Penology, 77 Google Scholar.

28 Ross, , Social Control, 107 Google Scholar.

29 Stephen, , History of the Criminal Law of England, i, 470 Google Scholar.

30 Causes of Popular Dissatisfaction with the Administration of Justice, Rep. Am. Bar. Assn., xxix, 395.

31 Sharswood, , Professional Ethics (5 ed.) 22 Google Scholar. See some further examples noted in my address, The Need of a Sociological Jurisprudence, Green Bag, xix, 607, 612; also Vaccarol, Genesi e funzione delle leggi penale, 101.

32 Ward, , Applied Sociology, 22–24 Google Scholar; Willoughby, , Social Justice, 20–25 Google Scholar.

33 The Need of a Sociological Jurisprudence, Green Bag, xix, 607.

34 See Carter, , Law, Its Origin, Growth and Function (1907)Google Scholar; Parker, Address as President of the American Bar Assn. (1907), xix Green Bag, 581; Parker, The Congestionof Law, Rep. Am. Bar Assn., xxix, 383 (1906); Passos, Dos, The American Lawyer, 169 (1907)Google Scholar; Hughes, , Datum Posts of Jurisprudence (1907)Google Scholar.

35 See a vigorous discussion of this same fault in public thought by Professor Ross, Sin and Society, 89.

36 Laws of Nebraska, 1901, chap. 95; Laws of Nebraska, 1905, chap. 198.

37 Stephen, , History of the Criminal Law of England, i, 470 Google Scholar. Colquhoun, , Police, 7 Google Scholar.

38 See a good contrast of these agencies in Amos, , Science of Law, 396 Google Scholar.

39 For another example, see Montagu Williams, Later Leaves, chap. xxv. The new mode of enforcing the liquor laws in Maine shows the efficacy of administration.

40 State v. Hall, 114 N. C, 909; Jones v. Leonard, 50 la., 106.

41 Indeed on the whole question as to whether absence of intent may be shown as a defence in a prosecution for violating statutory regulations, the authorities, are irreconcilably in conflict,” McClain, Criminal Law, sec. 128.

42 Social Control, 109.

43 See some observations on this point in Passos, Dos, The American Lawyer, 166 Google Scholar.

44 Ross, , Social Control, 113 Google Scholar.

45 See Proceedings of Joint Sessions of the Bar Associations of Texas and Arkansas, 1906, 326.

46 Theory of Legislation (Hildreth's translation), 422.

47 Beale, The Psychology of Poisoning, xiii, Green Bag, 5. See note by Professor Gray, 20 Harv. Law Rev., 82.

48 The Sunday closing cases in Chicago were argued to two juries on these lines, and one jury adopted the arguments. Since the foregoing was written, five juries have disagreed in these cases in the face of a plain statute.

49 Proceedings, Ill. State Bar Assn., 1906, 18; 1903, 92, 120; Report Ga. Bar Assn. 1906, 257; Proceedings, Ky. State Bar Assn., 1905, 80; Proceedings, Oregon Bar Assn., 1900–1903, 85.

50 Farmer Bumpkin's Law Suit, chap. xiv.

51 See a discussion of this in Ballantine, Some Experiences of a Barrister's Life, chap. xix.

52 Rep. Am. Bar. Assn., xxix, 415.

53 See Code of Legal Ethics of Alabama, State Bar Assn., sec. 17, adopted in Colorado, Georgia, Kentucky, Maryland, Michigan, Missouri, North Carolina, Virginia, West Virginia and Wisconsin; Warvelle, Legal Ethics, sec. 108.