I
CRIMINAL JUSTICE IN
CLEVELAND
THE CLEVELAND FOUNDATION
COMMITTEE
J. D. Williamson, Chairman
Thomas L. Johnson
Malcolm L. McBride
W. H. Prescott
Belle Sherwin
Leonard P. Ayres, Secretary
James R. Garfield, Counsel
Raymond Moley, Director
THE SURVEY OF CRIMINAL JUSTICE
Roscoe Pound
Felix Frankfurter /^•'^*°'''
Amos Burt Thompson, Chairman of the
Advisory Committee
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Contrast the order and diftnity of tlie civil division ol' the .Mnnicip:il (.'i>uil willi tin
confusion of the criminal division or "police court." The upper picture is a (lash
hght of a Monday niornintj crowtl in the criminal division.
CRIMINAL JUSTICE
IN CLEVELAND
REPORTS OF
THE CLEVELAND FOUNDATION SURVEY OF
THE ADMINISTRATION OF CRIMINAL
JUSTICE IN CLEVELAND, OHIO
By
Raymond Fosdick
Reginald Heber Smith and Herbert B. Ehrmann
Alfred Bettman and Howard F. Burns
Burdette G. Lewis
Dr. Herman M. Adler
Albert M. Kales
M. K. Wisehart
Felix Frankfurter and Roscoe Pound
DIRECTED AND EDITED BY
ROSCOE POUND and FELIX FRANKFURTER
THE CLEVELAND FOUNDATION
CLEVELAND, OHIO
qSrarT
Copyright, 1922, by
The Cleveland FotmoATiON
PRINTED IN THE OMITED 3TATM
OF AMCBICA BY
WU. F. FELL CO., PRINTEttS
PUILADELPHU
UUIUUII .
MAI \i
PREFACE
THIS book embodies the results of a scientific study of the present
system of criminal justice in Cleveland, Ohio. The inquiry had
two aims : first, to render an accounting of the functioning of this
system, to the fullest extent that social institutions are as yet adapted
to statistical appraisal; and, second, to trace to their controlling sources
whatever defects in the system the inquiry disclosed. The Cleveland
Foundation thus adds another to its series of fundamental studies of
Cleveland's social life. Thus far this series has consisted of studies of
the educational and recreational needs of the city and the city's re-
sponse to these needs. The present study is, perhaps, the outcome of
an even more fundamental effort at self-criticism.
For some time previous to this survey Cleveland had been restive
under a growing feeling of insecurity of life and property. The fifth
largest city in the country entertained a wide-spread conviction of its
failure in the most primitive function of government. In the spring of
1920 this feeling was brought to a head. An atrocious and sordid crime,
implicating the chief judge of the city's municipal courts, stirred to
action dormant civic pride. With rare self-restraint and self-knowledge
the leaders of the community realized that the city had the feeling, but
not the understanding, for action. They had the insight to realize that
this sensational case was but symptomatic of deeper causes. In a word,
a problem in social sanitation and social engineering was presented.
Therefore, in the winter of 1920, a number of civic organizations, headed
by the Cleveland Bar Association, requested the Cleveland Foundation
to undertake a survey of the administration of criminal justice in Cleve-
land.
Doubtless, to a considerable extent, the survey proved what was
already suspected by many and known to a few. The point is that the
survey -proved it. Instead of speculation, we have demonstration.
Now, one ventures to say, there is no possible excuse for a citizen of
Cleveland not knowing the shortcomings of the system, and the indis-
pensable conditions for their correction. The system is judged not by
the occasional dramatic case, but by its normal, humdrum operations.
[V]
\ 534
In order to ascertain how law functions as a daily instrument of the
city's life a quantitative basis for judgment is essential.'
On the other hand, early in the investigation it became plain that
the system of criminal justice had some of its roots deep in the whole
social and spiritual life of the city. The sources of opinion and of educa-
tion and the very social ideals of the community all bear their important
share in that manifestation of its social life which we call criminal justice.
Here we are confronted with a choice of social standards which cannot
be statistically established. But here, too, we must work in the light
of experience, and with that objective habit of mind which we call the
scientific spirit.
The nation-wide response to "Main Street" indicates that every
town, whether large or small, is in part a Gopher Prairie. These surface
uniformities of our American cities must not be allowed to obscure their
diversities. For every little Main Street, as every big Main Street, is also
unique. And this uniqueness is significant, or must be made significant,
if American life is to have distinction and depth. It is necessary to
emphasize this truth in applying the Cleveland survey to other cities.
Specific impulses gave birth to this survey; it was conditioned by the
specific problems presented by Cleveland — its traditions, its rate of
growth, its racial composition, its politics, its press, its bar. Not only
was the study thus defined by the environment out of which it grew and
in which it was moving, but in some aspects this was a pioneer study
and had to improvise its own technique and procedure. These local
limitations and empiric efforts debar blind imitation of this survey by
other communities. In any city a survey of its administration of
criminal justice must grow out of its own needs and be guided by its own
individuality.
Nevertheless, the most outstanding features of criminal justice in
Cleveland, namely, the practical breakdown of criminal machinery, has
its parallel in other cities. The deep-seated causes for this condition —
rooted, as they are, in modern industrialism and in the prevalent stan-
dards of the community, which turn into a menace the early American
machinery and methods of law enforcement — will be found in other
cities throughout the country, as the survey found them in Cleveland.
In view of the fact that the problem and its causes are common to many
• Therefore special attention is directed to the statistical basis of this study. The
statistical naethod is set forth in an appendix by Professor C. E. Gchlke, of West-
ern Reserve University. To his resourcefulness and talent for adapting statistical
methods to a new field of social inquiry the working out of the technique here used is
largely due.
American cities, it may be pertinent to summarize the broad principles
upon which the Cleveland survey was planned and executed.
1. Impersonal Aims. — From the outset it was insisted that present-
day machinery and methods are largely the heritage of conditions
which have fundamentally changed. The problem is more comprehen-
sive and its elements more manifold than the good-man-bad-man expla-
nation of political phenomena assumes. Personalities, of course, play
their part, but a relatively small part. The task is that of diagnosing
the causes of a system whose origins must be traced back to social,
economic, and political conditions distant in time and different from the
present, and whose consequences cannot be understood apart from the
civic standards and economic preoccupations of today. " Head-hunting"
was from the first disavowed. The search for causes rather than for
victims had repeatedly to be insisted upon as the only aim of the sur-
vey, for blame of someone in office, or of the "boss" behind the scenes,
is the natural, uncritical desire of people and of the press, which stimu-
lates that desire. A personal victim for a complex community failure
satisfies the sense of the dramatic, at the same time that it affords the
luxury of vicarious punishment. But where the whole system of crim-
inal justice has broken down under the weight imposed upon it by in-
dustrial urban hfe, the trail of authentic and thorough diagnosis must
not be diverted from essential causes to occasional officials who exploit
these causes.
2. Scientific and Professional Direction. — To resist effectively the
local demand for "head-hunting" requires disinterested, scientific direc-
tion of the survey. In Cleveland the survey was in the hands of men
whose professional interest is the scientific administration of justice
adapted to modern industrial conditions. Theirs was the final authority
and theirs the responsibility. Only thus can it be insured that relevant
factors are neither avoided nor their analysis withheld, nor, on the other
hand, exploited to serve any interest other than truth-finding.
S. N on-Resident Investigators. — A disinterested and impersonal
investigation also means that the investigators in charge of different
divisions of the inquiry must be non-residents. Only thus can the subtle
and often unconscious forces of fear and favor be wholly avoided.
The Cleveland investigators were wholly indifferent to all Cleveland
personalia. Neither past entanglements nor future embarrassments
influenced in the slightest the scope of the inquiry or its thorough pursuit.
4- Local Advisory Cooperation. — While outsiders must direct and
investigate, they must work with the forces of the community. Wholly
apart from the necessity of full and easy access to the local material,
[vii]
it is indispensable to check up and interpret the record data, the statisti-
cal material, by intimate city traditions. Such a survey deals with
social phenomena, and statistics are, in part, meaningless without hmnan
illumination. From the start the Cleveland investigation was greatly
aided by an advisory committee representative of the manifold interests
of the city. This survey could not have been made without the un-
stinted devotion, the civic influence, the professional equipment of Mr.
Amos Burt Thompson, the Chairman of the Advisory Committee.
But such a committee must be strictly advisory. It cannot be too often
repeated that the responsibility for the scope of such an inquiry and for
its results must rest solely with the directors of the survey. Not the
least of Mr. Thompson's services was his fastidious loyalty to this
principle.
6. Indifference to "Quick Results." — Since the aim of such a study is
strictly scientific, all exigent considerations, such as specific quick re-
sults or the effect on a forthcoming election, are irrelevant and destruc-
tive. The effort must be wholly concentrated on accurate investigation,
significant interpretation, and fruitful suggestion. Of course, at bot-
tom all such surveys are successful to the extent that they serve as
means for the education of the community; and the press is undoubtedly
the most important single instrument of civic education. But this
consideration comes into play after the survey is completed, not while
it proceeds. The newspapers must not be fed with hopes or hints. Nor
must the progress of the inquiry be influenced in the slightest by the
impatience, or the indifference, or the criticism of the press. If the
survey finally produces a searching diagnosis, the newspapers will not
be able, nor will they want, to neglect it.
6. Checks Against Inaccuracy. — There ought to be no question as
to the accuracy of the /ads upon which judgments or recommendations
are based. The material for opinion ought to be indisputable. There-
fore, before the results of the survey were published, they were thor-
oughly thrashed out with the Advisory Committee, and then submitted
for comment to the officials administering the respective departments
under investigation.' There is thus furnished an authentic and agreed
analysis of the facts, leaving for discussion the relatively narrow field
of the inferences that flow from the facts and the changes which they
suggest.
These, briefly, were the general principles which guided the planning
and the execution of the Cleveland survey, always bearing in mind that
' Except where the officials themselves preferred not to consider the findings.
I viii ]
the dominant factors were the scientific aim and the disinterested, pro-
fessional devotion of the investigators. Thus far the work is that of
outsiders — and there is Httle they can do beyond. The rest is with the
community — but the rest is everything. First comes publication of the
results of the survey through public meetings, pamphlets, press, and
book; and then a sustained educational campaign to translate the
results of the inquiry into a new civic outlook — a deeper understanding
of the exactions of democracy, and of the fashioning of machinery and
methods adequate to modern needs and equipped for self -appraisal.
A community which expects quick results or panaceas is doomed to
disappointment. So much of our "reform" eilort does not stay "put"
because the aim is to "put things over." The complexities of an
industrial democracy cannot be solved by the psychology of adver-
tising. The starting-point of reform is the education of the public to
the necessity of a sustained interest. The conditions disclosed by this
survey — and the recent Massachusetts revelations show that no com-
munity can throw the first stone — can be rectified only if the community
is aroused to the necessary persistent, unostentatious, detailed effort.
That will come if the conMUunity cares — or if only a small part of it
cares hard enough. At best, however, the task is one in which time is a
necessary element and continuity of effort indispensable.
An investigation like the Cleveland survey is, of course, dependent
upon the willing and effective cooperation of a host of individuals,
official and private, and of many organizations. Where help has been
so wide-spread and so generous it |would be invidious to single out a
few for special mention. This survey represents a collective effort of
the community, and to the community grateful acknowledgment is
made.
Felix Frankfurter.
[ixl
TABLE OF CONTENTS
FAOG
Preface, by Felix Frankfdrteb v
List of Tables xxi
List of Diagrams xxv
List of Illustrations xxvii
PART I.— POLICE ADMINISTRATION
By Raymond B. Fosdick
chapter page
1. The Problem 3
IL Present Conditions 6
in. The Organization op the Force 10
Scope of the Police Survey 1 1
The Problem of Administration 12
The Machinery of Police Administration in Cleveland 12
Recommendations 16
IV. Provision of Personnel — Its Selection and Training . 24
Previous Occupation 24
Age of Appointees 26
Turnover in the Patrol Force 28
Civil Service as a Source of Recruits 33
Police Training School 34
V. Promotion 36
The System of Promotion 36
Limitations and Defects of the System 38
Recommendations 42
VI. Discipline 45
Record of Formal Disciplinary Actions 47
Appeals 49
Recommendations 53
VII. Uniform Patrol Service 55
Number of Policemen Needed 57
Methods of Patrol 59
Patrol Booths 61
Precinct Stations 62
Recommendations 63
VIII. The Detective Bureau 64
Poor Quality of Detectives 66
Poor Work of Detective Bureau 69
Inadequate Supervision of Detective Work 70
Recommendations 71
[xi|
CHAPTER PAGE
IX. Special Service Division 75
Other Crime Prevention Units Needed 77
X. The Secretarial Division 81
PART II.— PROSECUTION
By Alfred Bettman, assisted by Howard F. Bcrn8
I. The Place op Prosecution in Criminal Justice 85
Some Fundamental Assumptions 85
The System in Outline 86
Prime Importance of Municipal Court and Prosecutor 87
II. Case Mortality 89
The Story Told by Statistics 89
The Mortahty Tables 91
What Becomes of the Felony Cases 93
III. The Municipal Court in Operation 97
Large Number of Cases; Unclassified Dockets; Excessive Speed 110
Negative Part Played by Prosecutor 114
No Stenographic Reports — Opportunities for Perjury 116
IV. The Municipal Prosecutor's Office 117
History 117
Office Organization 118
Laxity in Custody of Affidavits 119
Record System 120
Personnel 132
V. Operation of the Municipal Prosecutor's Office 135
The Affidavit 135
Sifting of Cases 136
County Prosecutor Does Not Participate in Early Stages of Case 13S
Cases in Appellate Courts 139
Statistics of Results of Cases 140
Dispositions Without Trial 142
"No Papers" or "No-papering" 143
Nolles 144
Acceptance of Pleas of Lesser Offense 149
Suspension of Sentences 150
Mitigation of Sentences 153
The Bail Bond 154
Hours of Work; Private Practice 156
VI. The County Prosecutor's Office 159
History 159
Criminal Court in Operation 160
Office Organization 163
Record System 164
Personnel 166
VII. Operation of the County Prosecutor's Office 169
Preparation of Cases 169
Assignment of Cases 175
The Grand Jury 175
(xiil
CHAPTER PAOB
Statistics of Results of Cases 179
"No-bUled" Cases 179
NoUes and Acceptances of Pleas of Lesser Offenses 180
Suspension of Sentences 182
The Bail Bond 184
Forfeited Bonds 185
Cases in the Appellate Court 187
VIII. The Federal Court and United States Attorney 188
Comparison is Possible 188
IX. The Lessons and the Remedies 192
General Considerations 192
The Municipal Prosecutors 194
The County Prosecutor 197
Municipal Court Procedure 198
The Segregation of Trials or Calendars 199
Arrest and Summons 202
Stenographic Report of Testimony 203
General Aspect of the Trials 204
Record Systems in Municipal Court and Prosecutor's Office 205
Disposition of Cases by the Prosecutor Himself 205
Conciliation by the Prosecutor 206
"No Papers" 207
NoUes 207
"No BiUs" 207
Acceptance of Lesser Pleas 208
Suspension and Mitigation of Sentences 208
The Preparation of Cases 208
The Grand Jury 210
Simplification of the Bail Bond System 212
The Place Where Criminal Justice is Administered 213
Salaries, Terms, and Selection of Personnel 214
X. The Bar and the Community 216
The Bar 216
Criminal Practice and the Bar 218
The Duty and Responsibility of the Bar 219
The Community 222
P.\RT III.— THE CRIMINAL COURTS
By Reginald Heber Smith and Herbert B. Ehrmann
I. The Fundamental Trouble 229
II. Structure of the Present System 231
III. The System in Practice 233
Influences Evoked by Arrests 233
The Professional Criminal Lawyer 233
Too Many Steps in the Procedure of Justice 234
How the System is "Worked" for Weak Spots 238
What Steps may be Eliminated 246
Results of L'nified Court in Detroit 248
CHAPTER PAGE
IV. The Bench and its Background 251
Importance of the Bench 251
Personnel 251
Recent Changes in the Election Laws 253
Apparent Effects of these Changes 254
The Underlying Cause for Dissatisfaction 259
Importance of the Petty Politician 261
The Influence of Groups 263
1. Racial and Religious Appeal 263
2. Labor Organizations 264
3. Bar Association and the Civic League 265
Publicity 268
1. Self-Advertisement 269
2. Exploitation of the Police Court 271
3. Character of the News 273
4. Campaign Funds 273
Recommendations 273
1. Appointed and Elected Judges 274
2. The Use of Vacancies 276
3. Selection in the Usual Course 276
4. Joint Committee on the Judiciary 277
V. The Municipal Court 278
Phj'sical Conditions 278
Decorum 279
Separate Sessions Recommended 280
Shifting Cases from One Judge to Another 280
Scant Attention to Individual Cases 282
Bad Effects of Many Continuances 282
The " Motion in Mitigation " 285
The " Police Court Ring" 286
Bad Bonds 290
The Clerk's OflSce 292
Recommendations 295
VI. The Common Pleas Court 297
History and Jurisdiction 297
Physical Conditions 297
Decorum 298
Terms of the Court 298
Lack of an Executive Head 299
"Loafing Judges" 299
Fluctuating Policies 303
Inability to Use Personnel to Best Advantage 304
Assigned Counsel 310
Bad Bonds 313
The Clerk's OflSce 314
The Assignment Commissioner 315
Recommendations 316
I xiv ]
I
CHAPTER PAOB
VII. The Court OF Appeals 317
History and Jurisdiction 317
Dispatch of Business 318
Results of Appealed Cases 318
Failure of Clerk's Office to Act Promptly 319
Bail Bonds Pending Error 320
Recommendations 320
VIII. Suspended Sentences, "Nolles," and Pleas of Guilty to Lesser
Offense 322
Police and Prosecutors not Best Advisers to the Court 323
Pubhc Clamor Followed 323
Cases "Paroled" in Januarj-, 1917 324
Paroling in the Dark 326
"Nolling" Cases 328
Recommendations 329
1. Preliminary Suggestions 329
2. An Adequate Probation Department 330
3. A Central Bureau of Information 331
IX. Motions for New Trial 332
Frequency 332
Analysis of Results 333
Clear Policy Recommended 336
X. Perjurt 337
Meaning of the McGannon Trial 337
La.xness in Punishing Offenses Against Justice 338
Recommendations 339
XI. Juries 340
General Dissatisfaction 340
History 340
The Present System 341
Weaknesses 343
First Examination of Jurors 344
Second Examination of Jurors 348
Occupation of Jurors 349
Haven of the Unemployed 352
Recommendations 353
XII. Summary of Recommendations 354
Organization and System 354
Personnel: Elections 356
The Defects and Evils in the Present System 357
Disrespect for Law 357
EJvils in Organization 359
Personnel: Politics 362
Suggestions and Recommendations 363
As to Personnel 364
As to Organization 366
Civic Responsibility 371
I XV]
PART W.— CORRECTIONAL AND PENAL TREATMENT
By BuRDETTE G. Lewis
CHAVl'BB
page
I.
Penal Institotions for Adults
375
The Department of Public Welfare
375
Recommendations
377
The City Jail and Central Police Headquarters
377
Recommendations
380
The Warrensville Workhouse
380
Recommendations
385
The County Jail
386
Recommendations
388
11.
Correctional Agencies for Minors
389
The Juvenile Court
389
Administrative Shortcomings
395
Investigations
396
General Criticism
397
Summary of Recommendations
398
The Detention Home
400
Recommendations
403
The Boys' School
403
Recommendations
405
The Cleveland Boys' Farm at Hudson
406
Recommendations
409
The Girls' Home at Warrensville
409
Recommendations
410
III.
Probation
412
Recommendations
420
IV.
Paroles, Commutations, and Pardons
422
Administration
423
Recommendations
430
V.
The Proposed New Criminal Court, Codntt Jail,
AND Police Hf.aiv
quarters Building
431
Recommendations
434
PART v.— MEDICAL SCIENCE AND CRIMINAL JUSTICE
By Herman M. Adleh, M.D.
I. Psychiatry and Crime 439
II. Juvenile Behavior Problems 441
The Need for Mental Health Stations 441
The Juvenile Behavior Problem in the Schools 443
Recommendations 444
The Juvenile Behavior Problem in the Courts 445
Recommendations 446
III. The Adult Criminal 447
Progress of Mental Examination 447
The Nature of Mental Examinations 448
CHAPTER PAGE
Criminal Detection by the Police 452
1. Departmental Health Work 452
2. Public Health Problems 453
3. Examination of Suspects and Prisoners 454
Recommendations 457
Crime Detection by the Coroner's OflSce 457
1. Relation to Police 463
2. Relation to Courts 464
3. Relation to Prosecutors 465
4. Relation to the Bar 465
5. Relation to the Medical Profession 465
6. Administrative Relations 465
7. Equipment 466
8. Death Records 467
9. Cost of Administration 468
10. The Remedy 468
Recommendations 473
Prosecution 474
Adjudication 474
1. Municipal Court 474
2. Common Pleas Court 475
3. Probate Court 476
Recommendations 479
IV. Prevention 480
Early Detection of Special Cases 480
Public Information and Education 482
Research 483
Training of Workers and Experts 484
Recommendations 485
PART VI.— LEGAL EDUCATION IN CLEVELAND
By Albert M. Kales
State Requirements and Local Facilities 489
The Law School of Western Reserve University 491
Faculty and Curriculum 491
The Cleveland Law School 494
Faculty and Curriculum 495
The John Marshall Law School 498
Faculty and Curriculum 499
Hours of Teaching in Law Schools in Cleveland 502
Night High Schools 504
Bar Examination Crammers 505
Ohio Bar Examinations 506
Conclusions 506
Recommendations 509
[ xvii ]
PART VII.— NEWSPAPERS AND CRIMINAL JUSTICE
By M. K. WlSEHART
CHAPTER PAQB
I. Summary 51-5
General Point of View 517
Practical Difficulties 518
Function of Newspapers in Relation to Criminal Justice 520
Criticism of Newspapers in Relation to Administration of Justice 521
Conclusions 525
Recommendations 627
II. Character OP Newspaper Reporting 528
Before Trial 528
Character of Newspaper Reporting During Trial 533
III. .\cTivE Participation by Newspapers in Administration op Justice 540
IV. Newspaper Campaigns 544
"Crime Waves" 544
Bail Bond Exposure 544
Parole Abuse 548
Campaigns to Reform Courts 551
PART VIII.— CRIMINAL JUSTICE AND THE AMERICAN CITY
By ROSCOB POUNT)
I. The Nature of the Problem 559
Men, Machinery, and Environment 559
The Function of Law 564
Difficulties Involved in the Administration of Justice 666
II. Inherent Difficulties 568
Dissatisfaction with the Administration of Justice 568
Inherent Difficulties in All Justice According to Law 569
1. Mechanical Operation of Legal Rules 569
2. Difference in Rate of Progress Between Law and Public
Opinion 571
3. Popular Underestimation of the Difficulties in Administer-
ing Justice 572
4. Popular Impatience of Restraint 674
5. Inherent Limitations on Effective Legal Action 575
Inherent Difficulties in All Criminal Justice 576
1. Public Desire for Vengeance 576
2. A Condition of Internal Opposition in Criminal Law Due
to Historical Causes 577
3. The Close Connection of Criminal Law and -Vdministration
with Politics 579
4. The Inherent Unreliability of Evidence in Criminal Cases 580
5. The Wider Scope for Administrative Discretion Required
in Criminal Law 581
6. Inherent Inadequacy of Penal Methods 582
7. The Tendency to Put Too Great a Burden on the Criminal
Law 583
[ xviii J
CHAPTER PAQB
III. General Difficulties 584
Prevalence of Dissatisfaction with Criminal Law and Its Adminis-
tration 584
New Demands Upon Law 584
1. The Problem of Enforcement 684
2. The Demand for Concrete Justice 586
3. The Demand for Individualization 586
Changed Ideas as to the End of Criminal Law 687
1. The Passing of the Retributive Theory 587
2. Increased Regard for Human Personality 588
3. New Developments in Psychology and Psychopathology 589
; The Present Condition of Criminal Law 589
IV. American Difficulties 591
■^~_^ Conditions for Which American Criminal Law and Procedure Were
Shaped 591
The Administration of Criminal Justice in the First Half of the
Nineteenth Century 592
1. The Criminals and Conditions of Crime 592
2. Administrative Machinery 693
3. English Criminal Law at the Revolution 594
4. English Criminal Procedure at the Revolution 596
5. The System of Courts at the Revolution 598
6. The Bench at the Revolution and in the Nineteenth Century 599
7. The Bar At and After the Revolution 602
8. Penal Treatment at the End of the Eighteenth Century 605
The Problems of Criminal Justice in the American City of Today 605
1. Reshaping of the Substantive Criminal Law 605
2. Organization of the Administration of Justice 607
i. Unification of Courts 607
ii. Organization of the Prosecuting System 608
iii. Organization of Administrative Agencies 608
3. Adequate Provision for Petty Prosecutions 609
4. Preventive Methods 610
5. Justice in Family Relations 610
6. Unshackling of Administration 611
State and City 612
V. Local and Temporary Difficulties 613
Exceptionally Rapid Growth 613
Instability of the Industrial Population 613
Post-War Conditions 614
VI.) Police 615
VH'. Prosecution 621
VIII. Criminal Courts 628
IX. The Bar 636
X. Penal Treatment and Correctional Institutions 643
^'XI. The Utilizing of Medical Science 646
{ XII. General Conclusions 650
I xix]
APPENDICES
APPENDIX PAGE
I. The History of the Survey, by Raymond Moley 655
II. The Statistical Material and Methods of the Survey, by C. E. Gehlke 664
III. The Norwood Bill 669
IV. Pardons in Ohio, a Study of the Pardoning Power as Exercised by the
Governor of Ohio, Applying to the State Penitentiary, by the Ohio
Institute for PubUc Efficiency 670
V. Report of Intelligence Survey of the Cleveland Police Department, by
E. K. Wickman 686
VI. Intelligence Survey of the Cleveland Workhouse, by E. K. Wickman 692
VII. Text of the Massachusetts Medical Examiner Law 695
VIII. Text of the New York Medical Examiner Law 702
IX. Bibliography, by Edward B. Adams 707
I XX J
i
LIST OF TABLES
PART I.— POLICE ADMINISTRATION
TABLE PAGE
1. Number of Appointments and Resignations of Men Appointed in Years 1914,
1916, 1918, 1919, 1920 29
2. Combined Record of Appointments, Resignations, and Dismissals 29
3. Median Scores and Range of Scores of Police Divisions 67
4. Distribution of Intelligence Ratings 68
5. Summary of Distribution of Intelligence Ratings 68
PART II.— PROSECUTION
1. Mortality Table of City Misdemeanor Cases, 1919-1920 91
2. Mortality Table of State Misdemeanor Cases, 1919-1920 93
3. Mortabty Table of Felony Cases, 1919 95
4. Prosecutions for Perjury and Subornation of Perjury 115
5. Comparison of Growth of Population, Number of Arrests, Number and
Salaries of "Police Court" Prosecutors, 1863 to 1920 117
6. Outcome of Cases Carried to the Court of Appeals, 1919 and 1920; Classi-
fied According to the Filing of Briefs 140
7. City Cases, Municipal Court, 1919-20; Disposition of Cases Classified by
Charges 141
8. State Cases, Municipal Court, 1919-20; Disposition of Cases Classified by
Charges 141
9. State Examinations, Municipal Court, 1919-20; Disposition of Cases Classi-
fied by Charges 142
10. State Cases Classified by Charges and by Dispositions and Degree of Suspen-
sion of Sentences 151
11. City Cases Classified by Charges and by Dispositions and Degree of Suspen-
sion of Sentences 152
12. Sentences Classified by Types and by Degree of Suspension, State Cases 152
13. Sentences Classified by Types and by Degree of Suspension, City Cases 153
14. Number and Outcome of Suits upon Forfeited Bonds 155
15. Comparison of Growth of the Population and Number of Arrests, with the
Number and Salaries of the County Prosecutor's Staff, 1863-1921 159
16. All Indicted Cases, Common Pleas Court, 1919, Classified by the Prosecutor
in Charge and by the Disposition 166
17. Average Number of Days Used in Disposing of Cases Originating in the
Several Courts, Common Pleas Court, 1919 170
[xxi]
TABLB PAGE
18. Caaes in the Common Pleas Court, 1919, Classified by Disposition and by the
Number of Days (A) from Arrest to Disposition, (B) from Indictment
to Disposition, and (C) from Arrest to Indictment, Grouped According
to the Origin of the Cases 171
19. Accumulation of Work in Common Pleas Court During Summer Vacations,
1916-1920 172-173
20. Number of Grand Jurors Appointed by Presiding Judge from Sources Other
than the Original Panel 170
21. Number of Original Panel and Judge Selections (25 Men in Panel for Each
Term) 177
22. All Cases in the Common Pleas Court, 1919, Classified by Dispositions and
Types of Offenses 178
23A. Common Pleas Court, 1919; Sentences Classified by Type and by Execu-
tion and Suspension 182
23B. Common Pleas Court, 1919; Sentences Classified by Type and by Execu-
tion and Suspension; Percentages 183
24A. Common Pleas Court, 1921; Sentences Classified by Type and by Execu-
tion and Suspension 183
24B. Common Pleas Court, 1921; Sentences Classified by Type and by Execu-
tion and Suspension; Percentages 183
25. Summary of Cases on the "Complaint Docket" of the United States District
Attorney for Year Ending June 30, 1920 190
Exhibit A.— Pohce Blotter 121
Exhibit B. — Prosecutor's Docket 122
Exhibit C. — Assignment of Cases, Tuesday, May 24, 1921 122
Exhibit D.— Docket— Room 2 123
Exhibit E.— Judge's Docket, Vol. 50— Room 1 124
Exhibit F. — Continuation Docket 125
Exhibit G. — Journal and Execution Docket 126
Exhibit H. — Parts of Pages 164 and 276 of Vol. 6, Index of State Cases 127
PART III.— THE CRIMINAL COURTS
1. Disposition of Felony Cases Begun in 1919 237
2. Disposition of Felony Cases, 1914-1920, from the Records of the Division
of Police 241
3. Dispositions of Cases of 27 Political Lawj'ers Compared with Dispositions
of all Other Cases Begim in 1919 in the Common Pleas Court 244
4. Sentences and Suspension of Sentences of the Cases of 27 Political Lawyers
Compared with the Sentences of all Other Cases Begun in 1919 245
5. The Detroit Court; Police Record of Four Major Crimes of Professional
Nature 249
6. Results of Unified Criminal Court in Detroit 249
7. Age on Election or Appointment, Common Pleas Court 257
8. Opportunity for Private Practice, Common Pleas Court 257
9. Total Years of Experience, Common Pleas Court 258
10. Shifting of Cases in Municipal Court, January, 1921 281
11. Original Dispositions of Cases in Mimicipal Court, January, 1921 281
[ xxii ]
TABLE mOE
12. Coirparison of Number of Civil and Criminal Cases per Judge, Municipal
Court, 1919 282
13. Average Number of Days Between Arrest and Sentence, Municipal Court
Cases, 1919-20, Classified by Disposition and by Type of Case 283
14. Cases of Liquor Law Violation Arraigned in January, 1921 284
15. Persons Arrested from January 1, 1918, to December 14, 1918, Released on
Bail Bonds Signed by and Represented by and
Attorneys 288
16. Disposition of Cases of 125 Known Criminals 289
17. Average Time per Case by Classes of Disposition 304
18. Disposition of Cases Classified by Judges Hearing Them 306
19. Cases Classified by Kinds of Sentences, Suspension, and Judges Hearing
Them 307
20. Rank of Judges by Percentages of Specified Dispositions in Cases Tried by
Them 308
21. Summary of Ranks of Each Judge in the Seven Disposition Classes of Table
20 309
22. Cases Classified by Disposition and by Counsel Appointed, not Appointed,
or Unknown 311
23. Sentences Classified by Executed and Suspended Sentence and by Counsel
Appointed and not Appointed 312
24. Motions for New Trial, by Judges 332
25. Disposition of 41 New Trials Granted in 1919 333-334
26. Reasons for Failure to Qualify of 6,520 Persons Called for Jury Service,
Classified by Typical Residential Sections 345
27. Results of Second Examination of Jurors, Classified by Wards and Other
Political Subdivisions 348
28. Summary by Selected Residential Districts of the Numbers of Jurors Called,
Qualified, and Served 349
29. Reasons for Excusing Persons from Jury Service, January Term, 1921 (Rec-
ords for 65 Jurors Missing) 349
30. The Occupations of Jurors, April 18-May 18, 1921, as Reported by Them,
by Groups of Related Vocations 350-351
PART IV.— CORRECTIONAL AND PENAL TREATMENT
1. Commitments of Boys 391
2. Intelligence Survey of Cleveland Boj-s' Farm 407
3. Analysis of Sentences Terminated During the Months of January, February,
and March, 1920, Classified by the Kind of Sentences Imposed by the
Court 413
4. Analj-sis of Sentences Terminated During the Months of July, August, and
September, 1920, Classified by the Kind of Sentence Imposed by the
Court 413
5. Anah'sis of Sentences in 258 Cases, Expiring During the Months of January,
February, and March, 1920, by Length of Sentence and by the Manner
in which the Sentence was Terminated 416
[ xxiii I
TABLE PAGE
6. Analysis of Sentences in 293 Cases, Expiring During the Months of January,
February, and March, 1920, by Length of Sentence and by the Manner
in which Sentence was Terminated 416
7. Summary of the Manner in which 626 and 696 Prisoners were Released from
the Workhouse During Stated Periods in 1920 424
8. Pardons and Commutations by the Governor of Ohio, 1915 to 1918 429
PART VI.— LEGAL EDUCATION
1. Comparative Study of Hours of Teaching in Law Schools 503
PART VII.— NEWSPAPERS AND CRIMINAL JUSTICE
1. Number of Felonies, by Weeks, Compared to News Space 545
APPENDIX IV.— PARDONS IN OHIO
1. Average Daily Population of the Ohio Penitentiary and Number of Releases
Therefrom by Executive Pardon or Commutation by Fiscal Years Ending
June 30, 1900, to 1921 Inclusive 674
2. Number of Official Actions Taken, January 11, 1915, to January 10, 1921,
Classified by Principal Offenses and Kind of Action 676
3. Releases, January 11, 1915, to January 10, 1921, Classified by Sentences and
Average Time Served 677
4. Disposition of First and Second-Degree Murderers Committed During Ten
Years, January 1, 1900, to December 31, 1909. Compiled as of Novem-
ber 15, 1921. 678
APPENDIX v.— REPORT OF INTELLIGENCE SURVEY
OF THE CLEVELAND POLICE DEPARTMENT
1. Intelligence Distribution of Patrolmen by Date of Entry into the Department 690
APPENDIX VI.— INTELLIGENCE SURVEY OF THE
CLEVELAND WORKHOUSE
1 . Distribution of Intelligence Ratings in the Workhouse 693
[ xxiv ]
LIST OF DIAGRAMS
PART II.— PROSECUTION
DIAGRAM PAGE
1. What happened to each 100 state misdemeanor cases in the Municipal Court,
1919-1920 92
2. What happened to each 100 cases of violations of city ordinances in the Mu-
nicipal Court, 1919-1920 92
3. What happened to each 100 felony cases beginning in the Municipal Courts,
1919 94
4. How each 100 sentenced defendants pleaded 96
PART III.— THE CRIMINAL COURTS
1. The disposition of each 1,000 cases of felony arrests 236
2. The path of justice 238
3. Comparison of severity in sentencing with decreasing tendency to bring cases
to sentence; felony cases, Common Pleas Court, 1914-20 243
4. Comparison of decline of "bench paroling" with the increase of allowing
"nolle prosequi" 243
5. The legal career of judges of the Common Pleas Court, 1885 to the present,
with respect to their ages and their pubhc and private services 255
6. The legal career of judges of the Municipal Court, 1911 to the present, with
respect to their ages and their public and private services 256
7. Comparison of number of cases filed during the month with the number on
the list ready for trial at the beginning of the month; Municipal Court,
January 1, 1919, to August 1, 1921 301
8. Comparison of the number of cases filed during the term of court with the
number of cases on list pending at the opening of the term, January, 1919,
to AprU, 1921 302
PART IV.— CORRECTIONAL AND PENAL TREATMENT
1. How the sentences of 626 prisoners received at the Workhouse during Janu-
ary, February, and March, 1920, were terminated 414
2. How the sentences of 696 prisoners received at the Workhouse during July,
August, and September, 1920, were terminated 415
APPENDIX IV —PARDONS IN OHIO
A STUDY OF THE PARDONING POWER AS EXERCISED BY THE GOV-
ERNOR OF OHIO, APPLYING TO THE STATE PENITENTIARY
1. Comparison of Numbers of Releases Granted from Year to Y'ear 675
[ XXV ]
APPENDIX v.— REPORT OF INTELLIGENCE SURVEY
OF THE CLEVEL.\ND POLICE DEPARTMENT
DIAGRAM PAGE
1. Intelligence ratings of divisions of Cleveland police department 687
2. Median scores, Cleveland police department 689
3. Range of scores between first and third quartiles of Cleveland police depart-
ment. (The median scores are indicated by the cross lines.) 689
APPENDIX VL— INTELLIGENCE SURVEY OF THE
CLEVELAND WORKHOUSE
1. Comparison of intelligence distributions of Cleveland Workhouse and United
States Draft Army 693
2. Comparison of intelligence ratings, Warrensville Workhouse, with United
States Draft Army 693
I xsvi ]
LIST OF ILLUSTRATIONS
Contrast the order and dignity of the civil division of the Municipal Court with
the confusion of the criminal division or " pohce court. " The upper picture
is a flashhght of a Monday morning crowd in the criminal division.
Frontispiece
PAGE
The police training school, inadequately equipped but well conducted. The up-
per picture shows the lecture room; the lower, physical drill. 34
Monday morning in the office of the chief prosecutor of Municipal Court.
Masses of visitors jam the corridors and little rooms, each person waiting
for the prosecutor whom he or she has, by accident or design, chosen. 118
Central police station. This building contains police headquarters, first precinct
station, chief's office, records, city jail, a court room, and prosecutors',
clerks', and probation offices. 214
The "Old Court House" on the P^lbUc Square. This building houses two crim-
inal court rooms, clerk's office, juvenile court, a branch of the pubhc Ubrary,
a law school, and a few county offices. A bridge connects it with the county
jail. 215
Page from the conviction book, January, 1917, term of Common Pleas Court,
showing the number of paroles. 324
Page from the conviction book, September, 1920, term of Common Pleas Court.,
showing the relatively small number of paroles. 325
The yard at Warrensville workhouse. 384
Training the eye and the hand at Cleveland 's farm school for boys, Hudson, O. 385
Tj-pical floor plans of cell blocks, Westchester County Penitentiary and Work-
house, White Plains, N. Y. 432
General view, Westchester County Penitentiary and Workhouse. 432
Outside cell block, typical floor plan, showing middle corridor and steel work,
Westchester County Penitentiarj' and Workhouse. 433
Typical cell, Westchester County Penitentiary and Workhouse, showing equip-
ment and outside window. 433
[ xxvii )
PART I
POLICE ADMINISTRATION
BY
RAYMOND B. FOSDICK
POLICE ADMINISTRATION
CHAPTER I
THE PROBLEM
A CURSORY examination of the problem of crime in Cleveland
produces some startling facts. For the year 1920 Cleveland, with
' approximately 800,000 population, had six times as many murders
as London, with 8,000,000 population. For every robbery or assault with
intent to rob committed during this same period in London there were
17 such crimes committed in Cleveland. Cleveland had as many murders
during the first thi-ee months of the present year as London had during
all of 1920. Liverpool is about one and one-half times larger than Cleve-
land, and j'et in 1919 Cleveland reported 31 robberies for each one re-
ported in Liverpool, and three times the number of murders and man-
slaughters. Practically the same ratio holds between Cleveland and
Glasgow. There are more robberies and assaults to rob in Cleveland
every year than in all England, Scotland, and Wales put together. In
1919 there were 2,327 automobiles stolen in Cleveland; in London there
were 290; in Liverpool, 10.
Comparisons of this kind between Cleveland, on the one hand, and
European cities, on the other, could be almost indefinitely extended.
There is no gainsaying the fact that crime in Cleveland far exceeds, in
point of volume, the crime of European cities of equal or larger size. And
yet, compared with other American cities, Cleveland's record does not
show to any special disadvantage. For the first quarter of 1921 there
were four more murders committed in Detroit than in Cleveland, and
nearly twice as many automobiles stolen in Detroit. During the first
three months of 1921 St. Louis had 481 robberies, while Cleveland had
272; for the same period complaints of burglary and housebreaking in
St. Louis numbered 1,106, as compared to 565 such complaints in Cleve-
land. For this same period the number of murders in BufTalo, a much
smaller city, equaled those in Cleveland, and burglaries, housebreakings,
and larcenies were almost as numerous. In 1919 Chicago, more than
thi'ee times the size of Cleveland, had 293 murders and manslaughters,
[3]
compared with Cleveland's 55, so that the ratio was easily two to one in
Cleveland's favor; the 1920 statistics of the two cities show an even
better proportion for Cleveland.
On the other side of the scale, for the first three months of the present
year Cleveland had more than twice the number of robberies and assaults
to rob that Detroit had, and a similar large proportion of burglaries and
housebreakings. During this period there were 296 automobiles stolen
in St. Louis, as against 446 in Cleveland. Cleveland is approximately
three times larger than Toledo, and yet in 1920 Cleveland had 87 mur-
ders, while Toledo had only 11.
Another basis of comparison is between the crime statistics of Cleve-
land in 1921 and Cleveland in former years. For the first six months of
1921, the period in which this survey was carried on, the number of
murders committed in Cleveland was 15. For the same period in 1920
the number of murders was 30. Similarly, during this same period, there
was a decrease of burglaries and larcenies from 573 in 1920 to 541 in 1921.
On the other hand, robberies and assaults to rob increased, as between
the two periods, from 454 to 534, and the number of automobiles stolen
increased from 1,156 to 1,238. The following figures show the average
number of complaints for the first quarter of each of the four years from
1917 to 1920 inclusive, classified according to four outstanding crimes:
Robbery and assault to rob 283
Burglary and larceny 418
Murder 17
Automobiles driven away 361
The following figures give the number of complaints of the same crimes
for the first quarter of 1921 :
Robbery and assault to rob 272
Burglary and larceny 265
Murder 6
Automobiles driven away 446
Obviously, there has been some improvement within the last four years.
All in all, crime conditions are no more vicious in Cleveland than they
are in other American cities. In point of volume of crime in relation to
size of population Cleveland is neither much better nor much worse than
the other municipalities of the United States. It is when we compare
Cleveland with cities like London, Glasgow, Liverpool, or almost any
other European mvmicipality that ominous contrasts are obtained. In
this respect, therefore, Cleveland's problem is the problem of America,
[4]
for the same causes that are maintaining the high crime rate of Chicago,
St. Louis, New York, Detroit, and San Francisco are operating here.
What are these causes? Here we can only hint at some of the deeper
social and economic causes. The lack of homogeneity in our population
and its increasing instability, the absence of settled habits and traditions
of order, the breakdown of the administration of criminal law in the
United States, and the many avenues by which offenders can escape
punishment, our easy habit of passing laws which do not represent com-
munity standards or desires, our lack of cohesive industrial organization,
our distrust of experts in the management of governmental enterprises —
all these are undoubtedly contributing factors.
But there is another factor, still more potent: police machinery in
the United States has not kept pace with modern demands. It has de-
veloped no effective technique to master the burden which modern social
and industrial conditions impose. Clinging to old traditions, bound by
old practices which business and industry long ago discarded, employing
a personnel poorly adapted to its purposes, it grinds away on its per-
functory task without self-criticism, without imagination, and with little
initiative.
From this general indictment the Cleveland police department cannot
be excepted.
[51
CHAPTER II
PRESENT CONDITIONS
THE present police department of Cleveland dates from 1866. In
that year the force, consisting of a marshal and 44 watchmen, was
reorganized on a semi-mihtary basis, with a superintendent, cap-
tains, sergeants, detectives, and patrolmen. In the next fort.y years
there followed many modifications of the scheme for administering the
force; but few changes, other than increases in numbers, occurred in the
internal organization. In 1907 the force totaled 614: a chief, one in-
spector, four captains, 27 lieutenants, 28 sergeants, 550 patrolmen, a
secretary, surgeon, and detective sergeant. Of the 550 patrolmen, 20
were designated as detectives. At the beginning of 1921 the authorized
force of regular police totaled 1,381,' including —
1 chief
1 .secretary
1 inspector
4 deputy inspectors
1 superintendent of criminal investigation
1 surgeon
1 veterinary surgeon
1 superintendent of civil investigation
1 superintendent of tailor shop
17 captains
53 lieutenants
99 sergeants
75 detectives
1,125 patrolmen
Since 1866 Cleveland has grown from a small town to the fifth city in
the United States. It has grown not only in size, but in the heterogeneity
of its population and in the complexity of its social and business life.
FVom a town in which many people knew each other intimately and thus
' Ordinance No. .52236 (Ordinances of 1920). The actual number of men em-
ployed has been below the authorized number.
[6]
furnished a substantial degree of self-protection and aid to the police,
Cleveland has become, like all other communities of its size in modern
times, a city of strangers.
In contrast with this complex growth of the city the police depart-
ment of 1921 is little more than a physical enlargement of the depart-
ment of 1866. Other branches of the municipal government have made
marked progress along lines of scientific development. The school sys-
tem, public utilities, fire fighting, business offices — all these have taken on
a new character compared with their prototypes of a generation ago.
The police department has shown no such vitality — no such capacity to
make itself over on a new and improved pattern, no willingness to reshape
its methods to modern demands. Instead, it has hewn to the line of
tradition, ventured almost nothing in experiment, and copied very little
from the experience of other private and pubUc organizations. Today
the patrol force is distributed and managed exactly as it was twenty or
thirty years ago. There is nothing new in the detective service save
faces and a few meager records. Traffic regulation has been developed,
but this modern necessity has been met only by draining the depart-
ment's resources for coping with crime. No new practices have been
employed for ferreting out and removing conditions that produce crime.
Practically the same methods are employed for combating crime that
were used when Cleveland was just a big neighborhood in which the
police knew everybody.
Let us look a little further. The department has never had and does
not have today the trained and intelligent leadership which European
police forces have long enjoyed. Cleveland's directors of pubhc safety
and her chiefs of pohce come and go, apparently with scant appreciation
by the public of the fact that transient administration is fatal to success
in any complex technical enterprise. Moreover, the line of authority
between the director of public safety and the chief of police is so vaguely
drawn that effective administration would be impossible even under the
best of conditions. Lacking in leadership, the department lacks, too, in
the quality of its working personnel. Machinists, motormen, truckmen,
and other manual workers — these are the sources from which Cleveland
takes the men upon whom she imposes tasks requiring a high degree of
intelligence and technical skill, besides a keen appreciation of social
values.
Similarly, we find adherence to a rigid organization applying to the
entire force, regardless of the great difference in types of work attempted
by the various divisions of the service. We find the department acting as
the eyes and ears of other city departments in reporting on the physical
17]
conditions of the city, promoting the safety of citizens in public places,
arresting criminals, and preventing the commission of crimes, but using
the same kind of man for all these tasks and clearing them through the
same inelastic organization.
The department is trying heroically today to "catch up" in the ap-
prehension of criminals and the prevention of crime. Its energies, how-
ever, are chiefly consumed in repairing damage that is not anticipated.
Almost nothing is being done to find out the causes of crime, to learn the
sources from which criminals are sprung, or to forestall their operations.
The department takes no leading part in the study of criminals and their
characteristic^; it does not even avail itself of facilities for study and
experiment that have been developed by schools, cUnics, and other pri-
vate and public organizations.
This lack of intelligence and imagination in Cleveland's police work is
shown in the ragged character of the internal arrangements of the depart-
ment. No private business whose affairs were carried on in such hit-or-
miss fashion could escape bankruptcy. The record books of the depart-
ment are poorly kept, sometimes showing erasures, changes, and addi-
tions. Nearly all reports made by patrolmen and detectives are writt€n
in pencil. There are no current consolidated reports showing summaries
of operations, with comparative data for other periods which might be
used for purposes of administrative control. Instead, there is a great
mass of detailed matter passing over and lodging upon the chief's desk.
On the other hand, not enough detailed material appears on the desks of
commanding officers of the detective bureau, vice bureau, and precincts.
PoUcemen are doing the work of clerks, and some, who might better have
been employed as clerks, are doing the work of policemen. Most of the
department's supervisory work is done on a memory basis, as in 1866,
without even any regular order for making and receiving the verbal sum-
maries of current business. Every one, from the chief down, appears to
be engaged with the interesting things of the moment. Study and analy-
sis of persisting or recurring problems and of results in the aggregate are
hardly known.
Inadequate equipment adds to this appearance of raggedness. No
private business which has to show results could work with the depart-
ment's equipment. The headquarters building is wholly inadequate.
Workers in every division are cramped for space, with resulting confusion
and chaos. If the record bureau faciUties are contrasted with those of a
private enterprise having an equal volume of business, the disadvantages
under which the police are working will be readily seen. There are no
typewriters in the precincts save those privately owned. Super\ising
[8]
inspectors do not have automobiles in which to cover the city. Members
of the automobile recovery squad are frequently without a car, and must
go on foot to search for stolen automobiles. The signal system is wholly
inadequate for the ordinary needs of communicating with men doing
field duty. No motor equipment is available for regular patrol duty.
A general picture of the police service in Cleveland gives the impres-
sion of a group of men, singularly free from scandal and \'icious cor-
ruption, but working in a rut, without intelligence or constructive policy,
on an unimaginative, perfunctory routine. As a matter of fact, this same
indictment could be drawn against most of the police forces of America.
The Cleveland department is no worse than many others; in some re-
spects it is better. Official lethargy lies behind much that is distressing
in this picture. There is another kind of lethargy, however, which can-
not escape its share of the responsibility. It is the lethargy of public
opinion, the community's easy habit of assuming that governmental ma-
chinery will somehow or other run itself, even in the face of meager equip-
ment and inadequate funds.
[91
CHAPTER ni
THE ORG-^NIZATION OF THE FORCE
THE police service of Cleveland is organized as a division of the
department of public safety. The department of which the police
division forms a part is administered by a director appointed by
the mayor and serving at his pleasure. The charter provides that " under
the direction of the mayor the director of public safety shall be the execu-
tive head of the divisions of police and fire." The division of pohce is
headed by a chief of police, who is appointed by the mayor, subject to
civil service rules and regulations. The right to suspend the chief is
lodged exclusively with the mayor. In case of such suspension, the
charter provides that the mayor "shall forthwith certify the fact, to-
gether with the cause of such suspension, to the civil service commission,
who within five days from the date of the receipt of such notice shall
proceed to hear such charges and render judgment thereon, which judg-
ment shall be final."'
The rank and file of the pohce service are appointed by the director of
public safety. The chief of police has the exclusive right to suspend any
officers or employees in the pohce division. In case of suspension the
charter provides that a trial shall be held by the director, who is em-
powered to render judgment, "which judgment, if sustained, may be
suspension, reduction in rank, or dismissal, and such judgment in the
matter shall be final, except as otherwise hereinafter provided." The
charter further provides that a member of the division of pohce may
appeal to the civil service commission from the decision of the director of
pubhc safety within ten days after the date of suspension from duty, re-
duction in rank, or dismissal. In such appealed cases the civil service
commission has the power to "affirm, disaffirm, or modify the judgment
of the director of public safety, and its judgment in the matter shall be
final."
All members of the professional force enter the department as patrol-
men, after examinations conducted by the civil service commission.
Promotions to the higher ranks, with the exception of the rank of chief of
' Cleveland City Charter, Sec. 107.
[10]
police, are made as a result of competitive civil service examinations. In
addition to these ranks of the professional police force there is a super-
intendent of criminal investigation (criminal identification), a surgeon,
superintendent of civil investigation, veterinary surgeon, and superin-
tendent of the tailor shop. Civilians are employed as matrons, chauffeurs,
tailors, caretakers, janitresses, mechanics, and telephone operators.
The major part of the regular police personnel is distributed by t>7)es
of work in four main divisions as follows: the uniformed patrol force, the
division of traffic regulation, the detective division, and the vice squad.
In addition to these main divisions are several small auxiliary units, such
as the criminal identification bureau, information bureau, and record
bureau, to which patrolmen and officers are assigned in the number'^; re-
quired. Ranks and grades are not affected by assignment and transfer
from one bureau or di\ision to another, although some increase in salary
is granted to sergeants who are detailed to the \'ice squ.ad and to patrol-
men assigned to serve regularly in the detective di%asion.
For purposes of distributing the working force of tbie department geo-
graphically the city has been divided into 15 precincts, each having a
precinct station house. The general administratior- of police affairs is
carried on at police headquarters, which also includ' s the first precinct
station, detective headquarters, \'ice squad, and al the special units.
Scope of the Police SurvE;
The subjects of study in this survey have been the relations between
the ci\-il service board, the public safety department, and the various
police divisions and bureaus, the character of the supervision of police
work in its many phases, the methods of procediire, the records and re-
ports maintained for showing work accomplished, and the volume of
crime dealt with.
In the main, appraisals of efficiency relate to methods of procedure
and departmental organization viewed as an impersonal instrument of
government. The relation of officials to one another and to their work
in general has been looked at in the light of the office rather than of the
individual. WTiile this view of pohce administration has necessarily
represented conditions prevailing during the period covered by the inves-
tigation, and is, therefore, an analysis r f the practices and accomplish-
ments of individuals who happened to be in office at that time, we have
kept in mind throughout that it is rmthods rather than persons which
form the permanent part of the organization, and it is the former, there-
fore, with which the larger purposes of the survey are concerned. Thus
it has been the office of the chief of police, with its powers, duties, prac-
[11]
tices, and accomplishments, rather than Chief Frank W. Smith, that has
been the subject of investigation. The present personnel will, in due
course, be separated entirely from police administration, and any ap-
praisal of their efficiency as individuals will then be of no value. But the
practices employed and policies laid down by the present personnel must
necessarily form the basis for the development of the future.
The Problem of Administration
The task of the administration of police business in Cleveland con-
.sists in directing the daily activities of some 1,200 men. Keeping each
o/ these men keyed up to his best is a problem in the management of
hum.an beings. Their work in turn consists in regulating human relations
and thus promoting safety and good order in the community.
To achieve these ends in a city of the size of Cleveland a large organ-
ization with imposing equipment and record systems must be provided.
It must be noted, however, that the ultimate end of this complex super-
structure of organ.ization is to be found in the acts of individual poUce-
men, operating for the most part alone and initially unaided. The per-
sonnel of the dept tment rarely moves in large units; the organization
acts through indi\ dual members in performing the major part of the
daily routine. Tht real poUce work is not done at headquarters or in
stations, but on the jeat.
Matters of organ nation, records, reports, and methods of procedure
are merely convenient instruments to see that policemen are made avail-
able for duty and to provide some basis for estimating the effectiveness
of these field forces. But police work itself, in its final analysis, is wholly
personal. The sum of the generally isolated observations, investigations,
and acts of individual policemen constitutes the primary police work of
the department. The heart of the business of police administration, there-
fore, consists in training, stimulating, and directing wien in the exercise of
good judgment and initiative while on post or assignment in the field.
The work of a police department is, therefore, not readily reduced to
well-defined standards of accomplishment. It involves such intangible
and modifiable factors a;! good judgment, sympathy, patience, courage,
and intelhgence. Added to th( se there must be pride of profession, en-
thusiasm, and, above all, a spi/it and willingness to take great pains in
the prosecution of the work.
The Machinery of Police Administration in Cleveland
Let us see how well the administrative machinery of the Cleveland
police department fulfils its task cf administering these personal relations.
[12 1
Charter provisions covering the question of responsibility for the admin-
istration of police business are singularly confusing in terminology. The
language is clear enough, however, to show that a deliberate attempt has
been made to distribute specific powers between the director of public
safety and the chief of police. Authority is apparently given to the chief
by one provision of the charter, only to be taken away by another. Re-
garding general powers and duties in the department of public safety the
charter reads : " Under the direction of the mayor the director of public safety
shall be the executive head of the diinsions of police and fire. He shall also
be the chief administrative authority in all matters affecting the inspection
and regulation of the erection, maintenance, repair, and occupancy of build-
ings."^ Thus, with regard to the division of buildings, which is coordinate
with the divisions of fire and police in the department of public safety,
the charter specifies that the director shall be the administrative author-
ity, while his responsibility with regard to the police and fire divisions
would seem to be of a different kind. The distinction here made ap-
parently implies that in the police and fire divisions, as distinguished
from the division of buildings, the chiefs of the respective divisions are
the administrative heads, with the director as a sort of over-lord. The
charter does not specifically state that the chief of police is to be con-
sidered the administrative authority of the division of police, but the
prescriptions relating to his appointment and removal by the mayor and
not by the director, and the powers and duties ascribed to him, would
seem to indicate that such was the intention.
Another section of the charter reads: "The chief of the division of
police shall have exclusive control of the stationing and transfer of all patrol-
men, and other officers and employees constituting the police force, under such
rules and regulations as the director of public safety may prescribe. The
director of public safety shall have the exclusive management and control of
such other officers and employees as shall be employed in the administration
of the affairs of the division."^ Here again we are confronted by an ap-
parent conflict. Where does the authority of the chief leave off and that
of the director of public safety begin? An inquiry along historical lines
reveals that the probable intention of the framers of the charter was to
charge the chief with responsibility for carrying on police enterprise
proper, while the director was to have full responsibility in purely busi-
ness matters, such as the purchase of supplies and equipment, repair
and upkeep of property. If this be tri e, it must be pointed out that the
intention was not well fortified by later provisions in the charter, wherein
' City Charter, Sec. 102. » City Chart«r, Sec. 103.
[13]
the chief — or administrative head of the "police force"— is shorn of all
final authority in important matters governing the selection, promotion,
and discipline of the police force.
Again, " The chiefs of the divisions of police and fire shall have the ex-
clusive right to suspend any of the officers or employees in their respective
division who may be under their vianagement and control. * * *" This
is no more than the ordinary authority attaching to the office of an ad-
ministrative head of a department. In the next sentence, however, this
language occurs : "If any officer or employ cehe suspended, as herein provided,
the chief of the division concerned shall forthwith in writing certify the fact,
together with the cause for the suspension, to the director of public safety who,
within five days from the receipt thereof, shall proceed to inquire into the
cause of such suspension and render judgment thereon, which judgment, if
the charge be sustained, may be suspension, reduction in rank, or dismissal,
and such judgment in the matter shall be final, except as hereinafter pro-
vided."'
Thus it appears that the chief is given wide powers, — wider than in
most cities where there is a non-professional administrative head, such as
the director of public safety, between the mayor and the chief, — that he
is charged with the initiation of authority in administration, that is, has
"exclusive" control under ordinary circumstances, while the director's
connection with the routine affairs of the police division is restricted to
business matters or, as the charter vaguely calls it, "administration of
the affairs of the division." Yet, when the real test of "exclusive" con-
trol appears, it is found that the director and not the chief has all the
power. The director makes all of the really important decisions, as, for
example, in the matter of preparing the budget for police service, making
rules and regulations, x;onducting disciplinary trials, and making the
selections for appointment and promotions from the civil service lists.
The director, however, is not required, nor does he have an opportunity,
to estabhsh immediate and constant contact with the actual administra-
tive processes of police work.
There is another odd arrangement in connection with the distribution
of powers and the establishment of a line of responsibility between the
two heads of the police service. The director, while depending on the
chief to exercise "exclusive" control up to the point where the director
himself makes the really important decisions, does not have direct con-
trol over the chief, but merely ove • the facilities with which the chief has
to work. The chief is appointed by the mayor and not bj- the director.
' City Chiirter, Sec. lOG.
[14]
Likewise the niaj^or alone has "the exclusive right to suspend the chief of
the dimsion of police or fire for incompetence or any other just and reasonable
cause." As a result, the chief is answerable to the director for his man-
agement of police work, but responsible to the mayor and not the director
as far as his "incompetence" is concerned. Only confused notions re-
specting official responsibility can result from such a situation.
In the matter of disciplinary action, it should be pointed out here
that there is another step in the scale of responsibility beyond the mayor
and director. The municipal civil service commission alone has the
power to pass on charges preferred against the chief of police, and it
renders final judgment as well in all cases involving lower ranks which
may be appealed to the commission from the judgment of the director.'
Under such a scheme of confu.sed responsibility for police business as
has been outlined above, to whom do the people at Cleveland actually
look for results in policing the city? Who is held to account when a wave
of robberies, burglaries, or automobile thefts occurs? Is it the director
of public safety or the chief of police? Which of the two officials bears
the final responsibihty ? The answer under the present charter is, neither.
Whenever the question of efficiency is called up, the director can point
to the chief and say: "There is the man who is running the department.
I neither appoint him nor remove him; he is subject to civil service pro-
visions. If he doesn't do the job satisfactorily, I am not to blame." A
chief under the same conditions can reply by saying: "If I had the last
word in matters of discipline, so as to weed out the unfit regardless of
their political friends and influences, and keep all others on their toes;
if I could make the rules and regulations governing the department and
could select my men in accordance with my own standards of judgment,
I could accomplish better results." The whole scheme is admirably suited
to the favorite game of "passing the buck" — an especially useful game
where pubUc criticism is involved.
Moreover, the contention of each official, as suggested, would be abso-
lutely correct so far as the charter goes. The director of public safety
has wide general powers, but no specific contacts with the machinery he is
controlling. The chief of police, on the other hand, is checked at a score
of points where an administrator should have free initiative and com-
plete authority. The chief's position at present is like that of a child
driving a horse, while an adult sits beside him ready to grip the reins in
front of his hands, whenever an important decision in the driving arises.
Naturally, under the present arrangement, the whole complexion of ad-
' This subject will be reviewed in some detail in a later section of this report.
[15 1
ministration changes with shifts in the offices of director and chief, and
since neither officer is dependent on the other for appointment or con-
tinuance in office, such changes will be concurrent only by accident.
Experience in the past has shown that with an aggressive tj'pe of man
serving as chief the director will become a sort of fifth wheel whose exer-
cise of his charter authority is likely at best to be a source of obstruction.
With a less aggressive chief it is probable that the director will assume
more influence in the disposition of members of the force than is in-
tended in the charter, and more than he is fitted to assume by reason of
the multiplicity of his duties and his remoteness from actual police opera-
tions. Unless the chief be especially aggressive, almost to the point of
standing against the director, the suggestions of the latter, because of his
superior position, will be tantamount to orders. The practice of a
former director of suggesting the names of men whom he desired to have
detailed to the detective bureau, and the famous Order 73,' are cases in
point. With an aggressive chief of police, as at present, there is every
opportunity of confusing the clear line of responsibility in a way which
reacts against the chief as a penalty instead of reward for his attempted
initiative.
Recommendations
1. The best escape from the difficulties inherent in the present scheme
involves a complete overhauling of the whole administrative machinerj'.
In the first place, there should be a direct line of responsibility, running
from a single head down through the whole organization. There should
be no such short circuits as now exist between the chief and mayor around
the director, who is the chief's superior. Final authority, commensurate
with responsibility, should be lodged exclusively with the single directing
head. This single leader should be in immediate charge of directing the
operations of the force.
2. To accomplish these ends it is recommended that the police service
be disassociated from the department of public safety and established as
an independent department, coordinate with the other combined divi-
sions of the department of public safety, the finance department, or the
department of public utilities.
From the police point of view, there is no good reason wh>' the police
service should be organically connected with the fire and buildings divi-
sion. On the contrary, there are positive reasons why it should stand
alone. Although both the poHce and fire divisions are estabUshed to
' This order provided that the poUce were not to raid gambling houses or houses
of ill fame without instructions from the director of pubhc safety.
[16]
secure public safety, their fields of work differ widelj'. The fact that
the personnel of the two divisions is organized on a semi-military basis
is not sufficient justification for their common administration. The
problems of fire extinguishment are physically definable and the work
of fire prevention is highly speciahzed and easily reduced to mechanical
standards; the uniformed force of the fire division deals with material
elements. The police force deals largely with human relations; its
problems are to a certain extent intangible. Firemen work in groups
under the inmiediate direction of their superior officers; they respond to
a fire in their properly assigned places and employ chemicals and other
equipment as they are ordered by their officers in charge. The police-
man's work is done largely on his own initiative, prompted by his own
judgment.
Policies affecting fire administration relate almost entirely to the
financial aspects of providing equipment and men that are necessary in
the fight of definitely known insurance rates and fire hazards. Policies
of pofice administration involve social and moral needs which are far
removed from such factors as the storage of inflammables, hose and water
pressure, and building regulations. There is no divided opinion about
the desirabihty of puttmg out fires; there is considerable room for divi-
sion of opinion as to how much money the city should pay for the in-
tangible returns of crime prevention to be achieved through an enlarged
and better equipped police force, or even as to ho w far the police may go
in curbing individual liberties in their efforts to prevent crime.
Thus, although these two forces are similarly organized, the objectives
of their work are found to be wholly different and their methods of pro-
cedure widely dissimilar, while the values of their work are appraised on
entirely different bases.
It may be contended that a combination of the police and fire divi-
sions is necessarj^ in order to assure active cooperation on the part, of the
police in looking for fires at night, assisting with rescue work, establish-
ing fire lines, and enforcing the ordinances and regulations of the code of
fire prevention and protection. These things the police must do, but
a common administration of police and fire is not necessary to effect such
cooperation. The duties of the police would remain the same if the two
divisions were not connected by an ovei'head scheme of management.
It is not reasonable to suppose that the police would neglect the per-
formance of such specific duties merely because their directing head is
not also the directing head of the fire force. One might as well expect
them to neglect making arrests because the head of the police service
is not also in charge of courts and prosecutions, or to fail to report broken
3 [17]
manholes or leaking hydrants because their division is not organically
connected with the departments of pubhc utilities and pubhc ser\'ice.
A saving in the expenses of administration may result from com-
bining police, fire, and buildings, and the practice may be defended on
the ground of economy in small cities where these divisions are not large.
In Cleveland, however, the savings in the overhead cost of administra-
tion are more than overbalanced by the loss in efficiency. Moreover,
it is hardly possible to find a man with qualifications of expertness in
the supervision of the technical matters of fire fighting and building reg-
ulation who qualifies also in understanding the human problems incident
to pohcing.
It may be sufficient to point out that Cleveland is one of the few large
cities in the United States which still combine the administration of the
pohce department with that of other branches of the municipal system.
In most other cities the pohce force was long ago estabhshed as a separate
entity under independent management. The same is true of all Euro-
pean cities. There the police function is regarded as so important that
no attempt is made to confuse its administration by bringing other
public activities under its leadership. The time has come for Cleve-
land to recognize the same principle and to give to the pohce department
the administrative position which the importance of its work demands.
3. The department of police should be in charge of a single civilian
administrative head, to be known as the director of police. The director
should be appointed by the mayor with full responsibility for adminis-
tering the police service, and should have the exclusive right to name his
own immediate assistants, including the chief ranking office of the uni-
formed force to correspond to the present chief of police. Such ap-
pointments should be terminated at the will of the director. It should
be the director's duty to lay down a policy and program for police work,
and to see that such policy is carried into effect by his subordinates.
Under this arrangement the officer who develops the policies of police
service will be subject to pubhc reckoning, since his appointment and
continuance in office depend on the mayor, who is subject to election.
Undivided responsibility and authority would be reposed in a single
officer at the head, and the line of responsibility and authority should
continue downward direct and unbroken.
Such a director should be chosen from outside the professional ranks
of the department, just as the director of public safety has always been
chosen. The management of police business demands as able an ad-
ministrator as can be obtained. Indeed, in a city like Cleveland, and in
many cities of lesser size, the task of police administration is so great
[181
that the best man obtainable is none too good, and in an endeavor to
find him, no search can be too thorough. That such a leader can be
found in the ranks of a poHce force is in the highest degree improbable.
The officer who has walked his "beat" as a patrolman, investigated
crime as a detective, and managed the technical routine of station house
activity as heutenant or captain, is not fitted by this experience to ad-
minister the complex affairs of a large police department. The chances
are rather that he is unfitted for the task. Lacking in administrative
experience, with scant appreciation of the larger possibilities of his
position, often indeed without imagination or resourcefulness, he has
little chance of success, and it would be unwise and cruel to saddle him
with the responsibility. If police management were merely a matter of
assignments, promotions, and discipline; if it had to do only with the
ordering of a well-defined routine, any capable man who himself had
been through the mill might be well adapted to handle it.
But the task, particularly in large cities, is so much broader than
routine, and involves activities of such vital consequence, that only a
high order of creative intelligence can cope with it. The director must
deal with community problems in the large. He must be familiar with
the underlying social forces which are responsible for the need of police
service. Constantly before him must be the conception of the depart-
ment as an agency for the prevention of crime, and the consequent rela-
tion of his work to all activities, social, economic, and educational,
operating to that end. He must be able to interpret public opinion, to
be a community leader, and, above all, he must be qualified to inspire a
great force of policemen. In addition he must have a thorough under-
standing of the principles of administration.
These qualifications are not readily found in the uniformed force,
nor, indeed, are they easily found in any walk of life. For that reason
the search for the right man should be broadcast, and no artificial bar-
riers of politics or residence should be interposed. If the best man
cannot be found in Cleveland, other sources should be examined. A
residential qualification in such cases is as irrelevant as it would be if
applied to the managing director of a railroad or to the head of a medical
school or an experimental laboratory. In European cities there has
been no thought of appljdng such a test for the reason that no one would
care to limit so narrowly the field of choice. With the talent of Great
Britain to draw from, for example, why should Liverpool or Birming-
ham insist that its chief constable be recruited from its own population?
Or what would be gained if Stuttgart were barred from inviting an
experienced deputy commissioner from Munich to join its staff as com-
[19]
missioner, and had, instead, to employ some inferior man from its
citizenship? This is the conception that governs the pubHc service of
European municipalities and to a great extent its application accounts
for the difference in municipal administration here and abroad.
4. Once chosen because of his peculiar abilities, the director of police
should be regarded as a permanent fixture. WTiile the right of the mayor
to remove him should remain unabridged, the exercise of that right for
political causes or for reasons other than those relating to his efficiency
should be checked by a pubhc opinion strong enough to insist upon re-
taining a well-tried expert in an office as important as the directorship
of police. A constantly shifting directorship of police can result in
nothing but chaos. To gauge a well-trained administrator on the basis
of his political faith is to introduce a factor as irrelevant and immaterial
as his opinion on art or literature. When the right man is found for so
highly developed a specialty, the city should cling to him as a business
concern would cling to an indispensable employee. Only proved in-
efficiency or complete lack of sympathy with the police policies of the
mayor should be sufficient cause for removal.
Here again we can find excellent example in the police departments
not only of England and Scotland, but of France and Switzerland as
well, to say nothing of several American cities where the principle of
continuity in the police directorship has been followed with marked
success. In Boston, Commissioner O'Meara served twelve years under
four different administrations, both Democratic and Republican. The
same situation today holds true in Milwaukee and in Berkeley, Cali-
fornia, where over a long period of years the heads of the two police
departments have served without interruption in spite of the kaleido-
scopic changes in mayors and councils. Similarly, European cities alwa^-s
appoint their directors and commissioners of police as a board of directors
selects a general manager or other official, not for a definitely established
term, but on the basis of satisfactory work. Their task is to find men
capable of serving indefinitely — men who have the ability and the will-
ingness to devote a lifetime to the administrative problem. When such a
man is found, there is no disposition to experiment with anybody else.
No one would care to assume responsibility for jeopardizing an organiza-
tion in which, as in all forms of business enterprise, continuity of ad-
ministration is the best guarantee of effectiveness.
5. The director must have under him a chief executive officer who
will serve as the superintendent or general manager of operations. Under
such a scheme, what should be the relationship between the director and
his chief subordinate?
I 20 ]
The director should have the task of laying down the general program
and policy of policing, and of determining the financial needs of the de-
partment. He should represent the department in all its external con-
tacts, such as with the appropriating body, the other departments of
government, as well as the schools, churches, and welfare and civic
agencies. He should determine, as a matter of policy, how much of the
available resources of the department should be devoted to the regula-
tion of traffic, as against the necessity, for example, of carrying on pre-
ventive work in connection with crime. In all the welter of laws and
ordinances he should decide where police emphasis is to be placed.
Once the policy in such matters is determined, it should then fall to
the chief line officer in charge of actual operations to see that these
policies are carried into effect. If there were a question of establishing
one-way streets, for example, or of rerouting street-cars, to facilitate the
movement of traffic, the director would deal with the street railway
company and the commercial interests affected by the proposed changes,
making the decision in cases of conflict between the needs of the general
public and the private interests involved. He would, in the first in-
stance, depend on the recommendation of subordinate experts in the
traffic regulation. When the policy is decided, he would turn to the
chief executive officer to see that the poUce carry out the new poUcy.
In short, the director would determine how much and what type of
police service is needed, and the chief professional officer would see that
such service is carried out to the best of his ability with the men and
equipment given him for the purpose. The one asks for certain results
and the other manages the machinery used in getting the results.
A policy may be laid down by the administrative head, but the
manner in which the routine work is executed gives color to the policy.
Hence the head must have a superintendent or general manager of
operations who understands his policies and has sufficient sympathy with
their accomphshment to go about his work with the enthusiasm of con-
viction. Half-hearted execution practically amounts to obstruction. It
is especially important, therefore, for the head of the police department
to be able to choose the man in whom he has personal confidence. On no
other basis can true leadership be developed.
6. For this reason the superintendent or the chief of police — what-
ever his title might be — as the immediate subordinate of the director,
should not be chosen as a result of competitive civil service examinations.
The objection wiU at once be made that the present scheme, wherein the
office of chief of police is surrounded by the protection of civil service
regulations, makes for continuity of administration in the leadership of
[21]
the police, and that this continuity is the only protection against the
ravages of politics. This assumes, in the first place, that continuitj' in
this particular office is a guarantee of effective poUcing, and, in the second
place, that Cleveland is hopelessly unregenerate in the matter of politics
and inferior to other cities of a similar size. It is an open question how
much is gained by an enforced continuity of service which is shorn of
power by officers who are controlled by the fortunes of politics. More-
over, the non-political aspect of the chief's tenure in Cleveland — i. e.,
guarantee against removal on accoimt of politics — is a singularly weak
argument in its form when it is considered that the appointments to the
office have been surrounded by all of the mancEUvering known to politics.
In the not remote past the custom has been privately to avow candi-
dacies for appointment to the office of chief whenever a vacancy oc-
curred, or when it was known that a vacancy was about to occur. Thus
some of the higher officers in the department have approached business
men of Cleveland, newspaper editors, and friends to secure their influ-
ence and aid in getting the appointment. Accordingly, newspapers and
other interests have had their candidates, though perhaps not openly
avowed, in much the same way as if the office were an elective one.
The truth of the matter is that civil service protection in high admin-
istrative police positions does not guard the community, certainly in
Cleveland, against politics. Politics can get around any artificial sys-
tem. On the other hand, with public opinion on the alert, politics can be
kept in control without any system at all. In Boston and Detroit the
incumbent superintendents of police, who are the professional heads of
the police force, — corresponding in that relationship to the chief of police
in Cleveland, — have held office throughout successive changes in the
terms of the administrative heads. Yet these officials are not subject to
civil service provisions of any sort. Their appointment and dismissal
rest in the discretion of their superiors. The same is true in London and
other European cities. Such a continuity of service, based on freedom of
choice, has real meaning, but a continuity based on the inherent diffi-
culties of removal through a civil service trial nullifies responsibility and
stultifies the work of any administrator, however enterprising.
What every police force needs is leadership — one official to whom the
community can say, "Thou art the man!" and who has power corre-
sponding to his responsibility. We shall never solve the police problem
in America until we give honest and effective leadership an opportunity
to show what it can do. Some time or other we have to make a begin-
ning of trusting our public officials. Checks and balances to curb and
minimize possible abuses of power have gotten us nowhere. Complex
[22]
systems to prevent bias and unfairness have brought nothing but con-
fusion. It is time to take off a few of the yokes that have made public
administration an impossible task, and put a new emphasis on positive
qualities. The problem before us is not how to build up a structure that
will circumvent the dishonest and incompetent official, but, after finding
a competent and honest official, to surround him with conditions in
which he can make himself effective.
Just as the community should, if necessary, go outside its own boun-
daries to get the best director possible, so the director should disregard
all questions of residence in selecting his chief subordinate. Indeed, in
view of the present demarcations in the police force in Cleveland, due
largely to religious differences, such a step might be distinctly advisable.
So long as there are in the department group-conscious Catholics and
Masons, playing the part of the "ins" and the "outs," with discrimina-
tions practised by one group against the other as opportunity offers,
just so long will it be difficult for a director to choose from the Cleveland
force a chief who can command the unquestioned loyalty and support of
his men. It will probably take the strong hand of an outsider, with no
group to represent, with no old scores to settle, to put the final quietus
to this factional nonsense. In any event the director, as the responsible
head of his department, should be free to select his immediate subordi-
nate on the basis of such qualifications as he himself determines.
[23 1
CHAPTER IV
PROVISION OF PERSONNEL— ITS SELECTION AND
TRAINING
THE charter provides that the police force shall consist of a chief
of poUce and "such officers, patrohnen, and other employees as may
be provided by ordinance or resolution of the council."^ In accordance
with this provision, the city council determines what is known as the
"authorized" number of police for each rank, from the rank of patrol-
man to inspector of police. The appointing authority is not compelled
to recruit the force up to the authorized strength. He cannot, however,
make appointments in excess of the number set by councilmanic action.
The task of recruiting the force belongs to the civil service commission,
original entrance to the department being by competitive examination.
Actual appointments are made by the director of pubUc safety from
eligible lists certified by the civil service commission.
An analysis has been made of the original appointments to the depart-
ment from 1914 up to and including the first two months of 1921, to
determine the type of men who are drawn into pohce service. Particular
-attention has been given the appointments made in 1914 and 1921, since
more nearly normal conditions prevailed in those years. The period be-
tween these two years presented unusual circumstances. Just prior to
this country's entry into the war competition with industry seriously
affected pohce recruiting, and from 1917 until after the completion of
demobilization the scarcity of apphcants made it difficult to keep up the
authorized strength of the department. As a result, considerable modi-
fication of the standards governing entrance requirements was necessary.
By 1921, however, conditions were normal in respect to the number of
persons making application for police appointment.
Previous Occupation
A review of the occupational sources from which policemen are re-
cruited shows that they are drawn from a wide range of civil employ-
' City Charter, Sec. 103.
[24]
merits. Considering the occupations of the 56 men appointed during
1914, it is found that, of the occupations engaged in prior to entering the
police department, only six had furnished more than one representative.
Machinists numbered sLx, carpenters three, shipping clerks, ship-builders,
foremen (not further specified), railroad firemen, and street-car in-
spectors numbered two each. The remaining 37 came from as many-
occupations.' An analysis of the previous occupations of the first 133
men appointed in 1921 shows that there were 14 occupations from which
more than one recruit was drawn, accounting for 87 men altogether. Of
these, 19 were machinists and machinists' helpers, 12 truck drivers, 10
chauffeurs, eight electricians and electrical workers, six carpenters, sL\
from the plumbing trades, five clerks, etc. Forty-seven other occupa-
tions were hsted, including a physical director, tree surgeon, barber,
chef, sailor, musician, farmer, draftsman, chocolate maker, etc. Those
who might be classified generally as manual workers numbered 111, or
83 per cent., and the miscellaneous non-manual occupations accounted
for 22 appointees, or 17 per cent.
The previous experience of new policemen is, therefore, diversified,
and offers almost no common factors which may be utilized in planning
their training. With many of these men the choice of work is largely a
hit-or-miss matter. Most of them finally settle upon policing without
giving much thought to its significance or to its possibilities as a career.
They think of it as a job giving steady emplojTnent and compensation
equal to or better than what they were able to obtain in commercial
fields.
This raw material, possessing every sort of occupational experience,
must be molded into as great a degree of uniformity as possible. The
recruits must first be converted into patrolmen as a sort of common
denominator. When this has been done, the same men must be recon-
verted into detectives and special investigators, such as those attached
to the vice squad. Some must give special attention to work with ju-
veniles, and in the absence of women police, others are required to do
work which should naturally fall to a division of women police.
The large proportion of men who are drawn from the various types of
'The 37 occupations were as follows: assembler, ball-bearing inspector, box-
maker, brass finisher, brazing shifts, bricklayer, clerk, chauffeur, conductor (street-
car), driver, electric crane operator, engineer, foundryman, gateman, glazier, hotel
clerk, houseman, inspector (street), inspector (factory), iron-worker, laborer, meter-
reader, mill worker, molder, mover, patternmaker, plate worker, presser, salesman,
shoe clerk, stone assembler, trainman, tug fijeman, tug despatcher, wire weaver
woodworker.
[25]
manual work is due to economic considerations and is not ascribable to
any relation between police work and the manual occupations. Wliile
the physical demands of patrolling are considerable, the work does not in
any sense involve skill or adaptability in the use of the hands. Phj-sical
prowess is required as a sort of incidental qualification, but mental
alertness is the primary qualification. The routine manual occupations
count for little as a basis of experience in making observations and exer-
cising judgment in taking police action. Thus, men who have been
trained to know how to do things are brought over into a new field, utterly
foreign to their experience, where they are concerned with what to do.
Of course, the mere fact that a man has been a manual worker, often
by force of accidental circumstance, does not mean that he cannot be
the sort of brain worker that a policeman must be. Manual work need
not be held to disquaUfy him. On the other hand, it in no way qualifies
him for the more important phases of a poUceman's task. The significant
fact in Cleveland is that by far the largest percentage of its policemen are
recruited from occupations whose character is as far removed from the
character of pohce work as can be. Consequently there are bound to be
many misfits, many instances of policemen whose total lack of qualifica-
tions for their work is altogether too obvious.
Age of Appointees
The ages at which men enter Cleveland's police service is also worthy
of our consideration. According to present civil ser\'ice regulations, 21 is
the minimum and 35 the maximum age at which men may be eligible
for appointment to the police force. Of the 56 men appointed in 1914,
only one was aged below 25 and 55 were twenty-five years of age or
over. Out of the 186 men appointed in 1920, there were 73, or 39 per
cent., aged below twenty-five, and 113, or 61 per cent., twenty-five or
over. Similarly in 1921, of the first 134 men appointed, 55, or 41 per
cent., were aged below twenty-five and the remaining 59 per cent, were
twenty-five or over.^ Considering the more recent appointments, it is
found that approximately one-fourth of the 1920 appointees were thirty
years of age and over. Somewhat more than one-fourth of the first
group of 1921 appointees were thirty or over. We beheve that the
maximum age for appointment to the patrol force should not exceed
thirty years, and that a special effort should be made to recruit, as far as
possible, men between the ages of twenty-one and twenty-five. It is said
that men over twenty-five possess the advantage of maturity in their
' The age of one appointee was not given: these figures and percentage calcula-
tions are for 133 men.
[26]
fund of knowledge and that they are, on the whole, more reliable than
"boys" between the ages of twenty-one and twenty-five. If the sound-
ness of this position were to be fully admitted, it would be logical to con-
clude that the considerable number of men who have entered the depart-
ment at an age below twenty-five have not been competent to do credita-
ble police work. But this is not the fact. Indeed, it is only in a few
isolated cases that criticisms of individual acts are laid to the youthful-
ness of policemen, and even then the criticism is made for want of a
better reason.
Particular cases of failure to take proper police action are found to be
due not so much to lack of maturity as to lack of experience in handling
similar situations or faulty temperament. It is experience in the exercise
of judgments required of policemen in the daily round that counts for
most, and not the general maturity attaching to age. Nor is tempera-
ment a quality to be measured by age. True, the young man under
twentj'-five may become excited and lack self-composure in trying situa-
tions, and when such is the case, the criticism of incompetence is merited.
The same may be true, however, of the man who is thirty. Higher police
officials, whenever consulted on this point, agree that a man of twenty-
five who has four years of actual police experience to his credit is almost
invariably a better agent than the recruit of thirty or thirty-five who has
had fewer years of experience.
On the other hand, there are distinct advantages to be had in recruit-
ing the younger men to the service. In the first place, younger men are
more readily trained and molded in response to the desires of the officers
who direct them. Inspector Cahalane, who was, for a long time, in charge
of the New York Police Training School, said: "Give me the boys in
preference to the older men and I can more easily make policemen of
them." In training men for the mounted service in New York, it has
been found that the best results are achieved with men who have never
ridden a horse. " They don't have to unlearn how to ride," said an officer
in charge of the mounted squad. Men who know how to ride are accus-
tomed to using the horse for the purpose of covering ground rapidly.
Most mounted police work, however, is done with the horse in a walk or
standing, and requires a different style of riding altogether. So it is with
other types of police work. The fewer preconceived notions the police
recruit has developed, the easier it is to train him in the peculiar require-
ments of police work generally. Mature men do not lend themselves to
instruction and molding as readily as do the younger men, whose minds
are more open and whose habits are less fixed.
It must be noted that the men who begin patrol work at an early age
[27]
have much the best chance of maintaining physical fitness until the end
of twentj' or twenty-five years of continuous service. Over 80 per cent,
of the men of any police force continue in actual field work without pro-
motion. Entering as patrolmen, they remain as patrolmen to the end.
The man who enters the force at the age of twenty-one maj' be expected
to measure up to the rigorous demands of his work until he has reached
the age of forty-six, whereas allowances will likelj' be required for the
man who begins at thirty or thirty-five and continues to the age of fifty-
five or sixty. If for no other reason than to protect the city's investment
in pension moneys allowed upon disability, there should be an effort to
recruit the younger men in preference to the older ones. Field service in
all hours and in all kinds of weather will much sooner bring disabihtj' to
the man of fifty-five than to the man of forty-five.
The point that younger men are needed in the police department is
strongly enforced by the experience of European cities. In London the
minimum age for appointment to the force is twenty and the maximum
twenty-seven. In Liverpool the minimum age is twentj^-one and the
maximum twenty-five. In Glasgow the maximum age is twenty-five, and
in Manchester the maximum is twenty-eight. Paris has a maximum age
of thirty, the higher limit being due to compulsory army service, which,
under the old dispensation, took two years out of the j'oung man's life.
Turnover in the Patrol Force
A further analysis of the histories of the men appointed during the
years which we have been reviewing shows that the number of resigna-
tions during the first few years following appointment is excessive. Table
1 shows the record of voluntary separations from the service of men ap-
pointed in the given years.
The figures do not include the total number of separations. During
this six-year period there were other resignations of men appointed in
years prior to 1914 not included in the above calculation. These have
not been included, as we are concerned only with showing the actual
proportion of resignations for any one year's appointments. There are
a few men dismissed from the department by order of the director of
public safetj' who must be added to the voluntary resignations. The
combined record of appointments, resignations, and dismissals for these
years is given in Table 2.
This is a high turnover of personnel for a service supposed to be pro-
fessional in character, one that is made attractive by reason of its guaran-
tee against periods of unemployment and by offering retirement on
pension after twenty-five years of continuous service. Notwithstanding
[28]
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129]
these factors making for permanency of tenure, it is found that of the men
appointed in 1914, 1916, and 1918, no less than one in three appointed
in any one year had left the department by the beginning of 1921. Of
the 1916 appointees, three out of every five resigned or were dismissed by
1921. Of the 1920 appointees, almost one-fourth of the number left the ser-
vice for one cause or another within the first year of their appointment!
What are the causes of the large turnover of poHce personnel? In the
first place, there may be cited the failure of a portion of the men to
measure up to the demands of police work, resulting in dismissal or the
initiation of discipHnary action causing voluntary resignation. Ap-
pro.ximately one-sixth of the 1916 group left the service for these reasons.
The same was true of nearly one-fourth of the 1914 and 1918 groups, and
slightly less than one-third of the 1919 and 1920 appointees. Again,
rates of pay given to poHcemen during the years under review have not
been sufficient to hold the men in the department. By 1920 it is true
that the increase in salary brought pohce pay into line with salaries paid
in many commercial employments. Whatever the rates of pay. it is safe
to say that the salary schedules of the Cleveland force have never been
determined on the basis of their adequacy to hold the men in content-
ment once they were drawn into the department. Moreover, salary
schedules have been devised with the view to getting a given quota of
men and not to getting men having personal qualifications particularly
useful in police work.
A less tangible reason for the impermanency of tenure is that no ade-
quate consideration of the nature of police work is given by the individual
before entering upon it. As has been pointed out before, police employ-
ment is more often than not considered merely as a job to satisfy imme-
diate needs. The resignations show that many recruits do not approach
police work with any serious notion of beginning at the bottom round of
a distinctive profession and developing a life career.
The police department is burdened, therefore, with a good proportion
of men out of each group appointed, who are soon going to be discon-
tented or who have no serious intention of performing creditable work as
a basis for a career as policemen. The fault cannot properly be laid at
the door of the men who apply for appointment. It is the business of the
municipality, as the employer, to make its selections with thoroughgoing
care rather than to pass out jobs to a given number of men who liappcn
to want the job at the time and who have certain simple qualifications
of physique and education. Yet there is no conscious effort on the part
either of the civil service commission — which is i)rimarily responsible —
or of pohce officials to influence recruiting in this direction.
[30]
In this connection the practice in the London police department can
well serve as a model. The utmost care is exercised by the London
authorities in the selection of police recruits. Recruiting agents are con-
stantly traveling from place to place in the country districts of England,
and even in Scotland and Wales, looking for available men for the Lon-
don force. They go about their business in workmanlike fashion, utiliz-
ing newspaper advertisements, and even bill-posters, and the greatest
care is taken to weed out not only the unfit, from a physical and mental
standpoint, but those who, in the judgment of the recruiting agents, give
the impression that they are not looking upon the police service as a per-
manent profession.
In Cleveland, advertising for police recruits is of the most meager
sort, consisting merely in a formal announcement in the papers that a
competitive examination for entrance to the police department will be
held on a date specified. For a while during the war some effort was
made to use motion picture films to stimulate possible apphcants, but this
has been abandoned for the simple reason that there is now a sufficient
number of applicants. The newspaper advertisement marks the end of
the city's effort to attract men to the pohce service. Thereafter it is
only a matter of measuring the men who present themselves. Whoever
meets the requirements of residence, height, minimum and maximum
weight and chest measurements, is entitled to continue in the examina-
tions. These consist of a medical and physical examination as a quaUfy-
ing test, and an educational examination, which is given to those who
successfully pass the physical tests. The subjects of the examination,
wdth the weights attaching to each one, are as follows: writing 1, spelUng
1, arithmetic 1, practical questions 2, oral examination 1, muscular
strength 1, military or naval experience in recent war and honorable dis-
charge 1. Apphcants making a final average rate of 70 per cent, or over
are placed on a fist of those eligible for appointment.
The examinations involve minimum standards. The tests really de-
termine how far above the passable minimum standards the applicants
stand and are not adjusted to measm-e the full capacity of the more
capable applicants. Another evidence of the fact that the examinations
are designed to accommodate minimum or qualifying standards rather
than to measure maximum capacities is shown by the practice of giving
the same kind of examination — not the same questions, however — re-
gardless of whether there are 50 applicants or 1,000. Types of examina-
tion are not adjusted to changes in the supply of men nor is there any
modification made in response to the need for selecting .special types of
men in the light of the department's requirements. Indeed, there is no
[31]
conversation between the officers of the civil service commission and of
the police department on such matters.
As a result of the examinations applicants are divided roughly into
two groups, the hopelessly unfit, who are prompth' thrown out, and those
who have made marks better than the minimum requirement. The
latter are all retained on the eligible list, with certain technical limita-
tions. The commission does not erect a scaUng-wall which is heightened
when apphcants are many and which is made sufficiently difficult of
scaUng to measure the capacities of the superior competitors.
Finally, there is no effort, by either the civil service commission or
the poKce department, to convey to prospective apphcants any adequate
notion of the prospects, demands, and possibilities of pohce service as a
career. The men are taken as they come. If suitable men are not at-
tracted, it is held to be regrettable. Standards of police work are then
fashioned to fit the capacities of the men certified to the department bj'
the civil service commission. There is never anj' attempt first to set
the standards in accordance with the actual demands of constructive
and improved methods of pohcing, and then through special efforts to
get the kind of men who measure up to these standards.
While the police department exercises no initiative in going after the
men it wants, it does have some opportunity of looking into such per-
sonal qualifications of the apphcants as are not shown in the civil ser\'ice
examination. Under the present arrangement the civil service com-
mission requires the pohce department to make a report on a character
investigation of each applicant who has successfully passed the examina-
tions. This investigation is conducted by the commanding officers of the
precincts in which the apphcants have their residence, and is a more
complete investigation than is conducted in most cities. This is the
police department's sole opportunity, although in a hmited and purely
negative way, to set its own standards.
With the civil service hst established, the appointing authority has
an opportunity to exercise some choice in making selections, under the
provision of the law which permits him to choose one out of three who are
certified by the civil service commission as eligible. This pri\-ilege is
generally waived, and the policy is followed of appointing in one, two,
three order from the list. However, the wisdom of this discretion allowed
the appointing authority has been abundantly ju.stified in other cities,
and as long as recruits to the department continue to come through the
channel of the civil service commission, the provision should be main-
tained.
Civil Service as a Source of Recruits
As has been pointed out above, we are by no means satisfied with the
way in which the civil service commission has discharged its obligations
toward the police department. In spite of the fact that many of the
commission's activities are prescribed by law in detailed fashion, its
work has been too inelastic and stereotyped to obtain the best results.
As a consequence, the department contains far too many men who are
lacking in important qualifications necessary to a good policeman. It
has been discouraging to examine the reports which the men are required
to render in the course of their daily operations. Many of these reports
show an utter lack of the ordinary intelligence demanded in making an
observation the record of which becomes an official public document. A
single illustrative example will suffice:
Nov. 16, 1920.
"First Precinct,
Lieut. Huge.
<tCi|.. **********************
"About 11:15 Sergt. Harwood went to the rear of the building & very
shortly after that he came to the front again & that, that time a yong lady
coming east was entering the building and I stop)ed her asking the questions as I
was instructed to, this yong lady refused to give her name & the Sergt. interfered
& said to this young lady to give me her name in which she did & about 1 1 :30
or 11:40 a man coming west made an atempt to enter the hotel & this was
Mr. , we three stood there up till the time he left was about 12: 05 a.m. & in
the meantime about 11 :50 another man came while the three of us were talking,
this man I dont know his name & came there with a machine to my knowledge,
& all of this time when Mr. came, up till the time he left the sergt was still
in the front of the House, this is far as I can remember & about 12:15 or
12:20 A.M. I was ordered by Sergt Harwood to go to the rear of the building &
tell the man in the rear to come to the front and that time this third man was still
there.
"Respectfully,
"Patrohnan."
However, we believe that as far as appointments to the force are con-
cerned, the civil service commission can probably be more wisely em-
ployed than the police department itself. Generally speaking, civil ser-
vice commissions, not only in Cleveland, but elsewhere, have done a
great deal to raise the standards of eligibifity in police appointments and
to eliminate the unfit. Moreover, they relieve the police administrator
of a vast burden of detail. The latter's whole concern is to secure raw
recruits who can be turned into honest and intelligent policemen, and
4 [33]
any plan or machinery which will produce this material upon demand
adds to the effectiveness of his administration. Arthur Woods, former
police commissioner of New York, who cannot be charged with being
overfriendly to civil service, defines its apphcation to the problem of
police appointments as follows: "It is undoubtedly about as good a
method as any other for picking out qualified candidates, for the men
come from all walks of life, and seemingly from every profession, trade,
and job there is. No comparative record could be obtained, nor could
the judgment of employers fairly be used to distinguish between one
man and another, since there might be a thousand different employers
for a thousand apphcants, and as many varying standards as employers."
If, therefore, civil service could be looked upon as machinerj' for
furnishing raw material, and if the police executive had the unchallenged
right to reject, after probation, any candidates who proved unsatis-
factory, there would be Uttle in this phase of activity which could inter-
fere with the principle of responsible leadership. Cleveland's civil service
system needs a thorough overhauling and a keener appreciation of the
tasks and responsibilities of the police department for which it selects
recruits.
Police Training School
The department is to be commended for its full-time training course
of eight weeks for recruits. A lieutenant of police, enthusiastic and am-
bitious for its successful promotion, is in immediate charge. One reason
for the school's firmly estabhshed position is to be found in Chief Smith's
healthy interest in its welfare. To him is due the credit for its original
establishment a few years ago — a noteworthy achievement in the depart-
ment's history.
Considering the resources that are available, the school for recruits
is well conducted. There is need for better equipment, especially for
physical training and for a larger staff of instructors. There is room, too,
for considerable development or rather evolution of the school. In the
first place, it should be more than a school for recruits. Indeed, it should
be the department's university, providing instruction for veterans and
officers, and such specialists as detectives and men of the mounted ser-
vice. The idea should be to have a school in which all ranks should con-
stantly be "freshening up" — to use Colonel Woods' expression — in
police technique. The purposeof such courses should be to keep the officers
from becoming "rusty," lest the recruits fresh from school be better
versed in special subjects than their superiors. From time to time lec-
tures might be given to members of various ranks by criminologists,
[341
The police training school, inadequatelj' equipped l)ut wel
l)i('tiu'e .shows the lecture room; the lower, physical drill
■onducted. The upper
lawyers, identification experts, and other specialists in fields related to
police work. Such special phases of police activity as discipHne, prep-
aration of records, and the giving of bail might also be discussed in
occasional courses. To this plan was due the splendid efficiency of the
New York force under Commissioner Woods, and its wide adoption in
such cities as London and Liverpool proves its worth.
We suggest, too, that the school be developed in such a way as to
become the staff agency of the department, serving as a personnel service
division. The school is primarily engaged in converting into poHcemen
the raw material furnished by civil service lists. What better agency
is there for passing efficiently on the quality and adaptability of this raw
material? If the personality tests, such as were recommended by the
chief in his last annual report, are to be conducted, or psychological tests
of one sort or another are to be held, the training school is the proper
agency for conducting them.
In other words, the school should be constantly engaged in studying
the problems relating to personnel. When the classes are not in session,
specialists attached to the school might devote their time to working out
efficiency record systems and doing other research work in connection
with tests and instructions. Industrial concerns recognize the value of
the investment in personnel service departments. The police depart-
ment of Cleveland has a large enough force to justify an investment in
the same sort of work.
[35:
CHAPTER V
PROMOTION
The System of Promotion
THE selection of recruits is but the first step in the provision of
police personnel. Filling the quotas of special divisions in the de-
partment and filling the higher posts through promotion are the
next steps. Regular assignment to the detective bureau is generally
considered as a promotion by reason of the increased compensation al-
lowed, but it is not technically a promotion since detectives are only
detailed to the detective bureau and the men so detailed continue in the
rank held at the time of their assignment.
Promotions are governed entirely bj' the rules and regulations of the
civil service commission. These regulations provide that all promotions
in the uniformed force of the police department — excluding only civilian
employees — "shall be from class to class, from the lowest class to the
highest," within the force. Thus, promotion to any given rank in the
department is restricted to the membership of the next lower rank, and
it is, therefore, impossible to fill any post above the rank of patrolman
by making appointments from outside the department.
All promotions are made as a result of competitive examinations con-
ducted by the civil service commission. Eligible lists are furnished by the
commission, and the director of public safety is obliged to make promo-
tions from this list. Examinations given to applicants for promotion
include the following subjects: "Writing, spelling, arithmetic, practical
questions, as in the judgment of the commission pertain to the office to
which said applicant seeks promotion; State laws and city ordinances
pertaining to the duties of said office; rules and regulations of the depart-
ment; seniority and record in the service of the applicant, and such
other subjects or tests as the commission may prescribe."'
A patrolman is not eligible to promotion to the rank of sergeant until
after he has served three years as a patrolman. Sergeants and lieu-
' Rule XVII, Sec. 5, of the Rules and Regulations of the Civil Service Commis-
sion of the city of Cleveland.
[36]
tenants must have served two years in their respective ranks before they
are eligible for promotion to the next higher rank. A patrolman who has
served as many as five years in the department is entitled to a marking of
100 per cent, on seniority as one of the subjects of the promotional
examination. If a patrolman has served as many as three years, but less
than five, his marking in seniority is reduced 10 per cent, for each year
less than five. In a similar way sergeants who are examined for pro-
motion to the rank of lieutenant are entitled to a marking of 100 per
cent, on seniority after the completion of seven years' service in the de-
partment, two years of which must have been served in the rank of
sergeant, and a reduction of 10 per cent, in the seniority marking is
made for each year less than the seven served in the department. Appli-
cants for promotion to captaincy must have served ten years in the
department to obtain a marking of 100 per cent, on seniority, and 10 per
cent, is deducted for each year less than ten years served.
The "record" of an applicant for promotion, another factor counted
in promotional examinations, is determined solely upon the basis of the
applicant's disciplinary record in the department. Thus, if the record
shows that the applicant has not been charged with a violation of the
rules and regulations of the department within a period of five years
immediately preceding the date of application for promotion, he is en-
titled to a marking of 100 per cent, on record. The regulations further
provide that if the applicant "shall have been within such five years
under charges for and found guilty of any offense specified in articles
1 to 12 inclusive, of Rule XIII, of the rules of the department,' he shall
have charged against him 20 per cent, (meaning 20 per cent, deduction
from the record rating of 100 per cent.) for each of such charges; and for
' Articles 1 to 12 inclusive, which are deemed specific cause for suspension from
the department under charges, are as follows:
Art. 1. For intoxication while on duty or while in uniform.
Art. 2. For being a user of intoxicating liquor to excess.
Art. 3. For being engaged directly or indirectly as a vendor of intoxicating
liquors.
Art. 4. For wilful disobedience of any order lawfully issued to him by a
superior officer in the department.
Art. 5. For incompetency to perform the duties of his office.
Art. 6. For conviction of any crime or misdemeanor against the laws of the
United States or the laws of the State of Ohio or for conviction of any violation of a
lawful ordinance of the city of Cleveland.
Art. 7. For making known any proposed movement of the department to any
person not a member of this department.
Art. 8. For unnecessary and unwarranted violence to a prisoner.
[37 1
conviction of any offense specified in articles 13 to 21 inclusive* of said
rule XIII, he shall have charged against him ten (10) per cent, for each
of such charges." ^
Limitations and Defects of the System
The practice of giving some credit for seniority is to be commended,
and the markings for seniority ratings are reasonably scheduled. That
portion of the examination which embraces the calculation of an appli-
cant's "record" is a disguised attempt to permit the applicant's work
and experience to have some weight in an examination looking to pro-
motion. As a matter of fact, it is no more than a penalty schedule —
wholly negative in character. It is nothing short of absurd to imply
that the present civil service examination for promotion in the police
service gives any credit for meritorious work performed by members of
the department who are being examined.
A mere absence of disciplinary charges indicates nothing as to the
character of work done by the applicant for promotion, nor, indeed,
whether much of any sort of work was done. Under the present scheme
of record rating the mediocre man, if he avoid an open breach of the
rules, as most of them can do without great effort, is placed on an equal
footing, as far as record goes, with the energetic, able, and efficient officer
who has also kept out of trouble. No attempt is made to give credit in a
Art. 9. For cowardice or lack of energy of such character as to amount either
to incompetency or to gross neglect of duty.
Art. 10. For sleeping while on duty.
Art. 11. For wilfully or continually violating any of the rules or regulations of
the department.
Art. 12. For habitually contracting debts which he is unable or unwilling to
pay or for refusing or without reasonable excuse to discharge his lawful obligations.
' Articles 13 to 21 inclusive of Rule XJII are also specific causes for suspension.
They are as follows:
Art. 13. For intoxication while not on active duty.
Art. 14. For indecent, profane, or harsh language while on duty or in uniform.
Art. 15. For disrespect shown to a superior officer in the department.
Art. 16. For any neglect of duty.
Art. 17. For absence without leave.
Art. 18. For gossiping about the affairs of the department.
Art. 19. For conduct unbecoming an officer, patrolman, or a gentleman.
Art. 20. For conduct subversive to the good order and discipline of the de-
partment.
Art. 21. For neglecting to report his change of residence to the officer in charge
of his precinct.
^ From rules and regulations of the civil service commission.
[38]
positive way for valuable work performed. Instead of allowing the mere
absence of wrongdoing the highest mark that is given for police " record,"
a clean disciplinary record should be rated as a normal median. Failure
to measure up to the least that is expected of every member of the depart
ment — compliance with the rules — should apply as a subtraction in the
shape of demerits from the median rating. But demerits should be only
a part of a man's record. Provision should be made for showing the
converse side of the record by taking into account the opposite of neg-
lectfulness, disobedience, and the performance of improper police action.
In other words, credit for meritorious work should be given in the form
of an addition to the normal median rating. It is only in this way that
a premium can be placed on accomplishing more than the avoidance of
wrongdoing.
Considering the promotional examination as a whole, we believe it
is not well adapted for the wise selection of men possessing qualities
fitting them for the tasks which promotion imposes upon them; that,
as far as the mere attainment of promotion is concerned, no adequate
reward, hence no adequate stimulus, is given for the accomplishment of
superior police work ; that opportunities for preparation and for obtain-
ing high marks in the examination are unequal ; that an examination for
a rank where no knowledge is given the applicant of what specific duty
he may be assigned to perform — whether patrol, traffic, detective, or
crime prevention duty — is an unsound practice; and finally that re-
sponsibility for the appraisal of the personnel assets of the department
and utilization of those assets through promotion are too far removed
from the official who is responsible for directing the men.
The present scheme of having an independent body apply the tests
which determine eligibility for promotion was devised primarily as a pro-
tection against a possible display of favoritism in making promotions.
The plan has met with success in so far as it has minimized political,
social, and reUgious influences as factors in determining promotion. This,
however, is a purely negative achievement. On the positive side there is
little if anything to show that there is an advantage to be gained in turn-
ing over the matter of promotions to an outside body. The written
examination and the seniority and discipUnary record fall short in meas-
uring the qualifications most needed in superior ofiicers, for example,
integrity, executive ability, and a natural disposition to assume the
initiative. These qualities are all important to men filling the higher
posts in a police department, yet they are not reckoned with in the pro-
motional examinations conducted by the civil service commission. In-
stead, facility in arithmetic and spelling and ability to answer certain
[39]
commonplace practical questions are the measurements applied. The
examination at present tests what an applicant knows. What he can
do, what he has the spirit to do, and what he has done are significant
considerations which are altogether neglected.
Judgment of fitness for promotion in work where initiative and zeal
play so large a part must take into account the experience basis for
determining differences between the hard workers and the lazj-, between
the thorough ones and the hasty or careless, between the backward-
pulling, disgruntled dispositions and the enthusiastic, forward-looking
men. Any method of selection which omits this test is inadequate and
hence unfair to the men involved, and iniraicable to the welfare of the
department.
It is possible to cram for an examination, which is certain to be much
like the examinations previously held for promotion to the same rank,
and the apphcants devote much time and thought in preparing for it.
In this connection it is to be observed that the lieutenant, for example,
who has an assignment in a quiet precinct or at some post which allows
him considerable leisure, has the important advantage of time at his
disposal during which he may prepare for an examination. In this way
he may easily secure an advantage over a Ueutenant who is energetically
carrying on his work in a busy precinct and continuing it to such hours
that he has neither energy nor time left for productive study. The
latter man is building up an experience in the practical operation of the
day's routine, but it stands him in no stead when he is called to compete
in a promotional examination.
Under the civil service arrangement examinations for a given rank
are held in advance of the actual need for making a promotion. The
grades and standings on the eligible list for promotion to, and including
the rank of captain of police, established as a result of the examination
markings, remain in force for two years, although, after it has stood for
one year, the commission has the right to abolish the list and hold another
examination. Accordingly, the practical questions section of the exami-
nation must relate in a very general way to the requirements of the rank
involved, for it is not known in what branch of the service the applicant
will be employed. There is no opportunity, therefore, to weigh the
specific needs of a given post of duty and pick a man then and there to
fill it. This prevents the promotion of men within a single branch of
specialized work, as in the vice bureau, detective bureau, or traffic squad.
If, for example, it were determined that an additional captain of detec-
tives was needed, the place would have to be filled either by transferring
some captain from another branch of the service or by taking a man from
[401
the list of lieutenants eligible for promotion to the rank of captain. If a
lieutenant of detectives does not happen to he in one, two, or three order
on the list, then there is no opportunity to promote a man with detective
experience. Most of the captains recently assigned to commands in the
detective bureau have been taken directly from commands of the uni-
formed patrol service. Some had never had any detective experience.
The same would be true in making a promotion in any other branch of
specialized work.
Perhaps the most serious objection to the present methods of making
promotions is that the choosing of men to fill the higher posts is so far
removed from the directing head of police operations. An independent
body determines who the subordinate leaders of police business shall be
after tests which, as has been shown, do not consider the more important
personal attributes with which only the police administrators alone can
be acquainted. Actual choice, with a range of one out of three eligibles,
is left to the director of public safety. The chief of police, acting as the
administrative head of the department, has nothing to say about it ex-
cept in cases where there is such happy accord between the director and
chief that the director may ask the chief for his recommendations of
choice. The net result is that there is no one exercising the practical
police point of view in looking out for evidences of ability in individuals
who indicate fitness for promotion to particular posts of duty. Where
the administrative head has no concern about naming the men who shall
be promoted, he will spend no time in making appraisals. He will simply
take the men who are given him by the civil service commission and do
the best he can.
This situation relieves the head of the department of what should be
one of the most important of his tasks, if not the most important, namely,
the intimate supervision of the work of his subordinates with a view to
developing the maximiun use of whatever special abilities may be dis-
covered in them.
Stephen O'Meara, who for many years served creditably as police
commissioner of Boston, defined the situation as follows: "No written
examination can possibly disclose the qualities and habits which are of
vital importance in a police officer of rank and can be known only to his
superiors. Among them are judgment, coolness, moral as well as physical
courage, executive ability, capacity for the command of men, sobriety,
and other moral qualities, standing among his associates and in the com-
munity, powers of initiative, temper, integrity, energy, courtesy."'
' From a private memorandum.
[411
Theodore Roosevelt, in his Autobiography, expressed himself in similar
vein. "I absolutely split off from the bulk of my professional civil ser-
vice reform friends when they advocated written competitive examina-
tions for promotion. In the police department I found these examina-
tions a serious handicap in the way of getting the best men promoted,
and never in any office did I find that the written competitive promotion
examination did any good. The reason for a written competitive en-
trance examination is that it is impossible for the head of the office, or
the candidate's prospective immediate superior, himself to know the
average candidate or to test his ability. But when once in office, the
best way to test any man's abihty is by long experience in seeing him
actually at work. His promotion should depend upon the judgment
formed of him by his superiors."'
Recommendations
It is recommended, therefore, that the matter of promotions be put
squarely up to the director of police. He should be enabled to make use
of the civil service commission as a staff or agency equipped to make cer-
tain limited measurements. But he should be allowed to place his own
valuations on the tests made by the commission and make any other
tests he may see fit in order to arrive at his decisions regarding promo-
tions. Under such an arrangement the civil service commission might
be asked to conduct examinations which would really amount to qualify-
ing examinations based on certain minimum qualification standards.
The police head could then add to these results the estimates of a can-
didate's worth, based on lines not covered by the civil service examina-
tion.
It is further recommended that there be established a board, to be
known as a board of promotion, consisting of three to five members of
the higher ranks in the department. It should be the duty of this board
to make recommendations for promotion to the director of police after
thorough investigation and examination or series of examinations as may
seem necessary. The members of this board should be designated by the
administrative head of the department to serve in such capacity at his
pleasure. We do not wish to recommend in too specific detail what the
composition of this board should be. If the principle be established,
there may be many modifications in a scheme designed to carry it out.
It is suggested, however, that in addition to the chief line officer of the
uniformed force the head of the police training school, as the depart-
^ Autobiography, p. 161.
1421
ment's specialist in matters of personnel, be included in the membership
of the board. Of course, it would be necessary to have the board com-
posed only of members having a rank always equal to and generally
higher than the rank to which promotion is to be considered. In the
case of promotions in the detective service, the chief of detectives and
possibly another detective officer should be included in the board's mem-
bership. For promotions to posts in the patrol service, officers of the
uniformed force should be substituted for the detective officers. Similar
substitutions should be made in designating the board's membership
when considering promotion to other special branches of the service.
Preliminary to the examination made by the board of promotion,
commanding officers of the various units in the department should be
required to submit names of such members of their commands as are
deemed worthy of consideration for promotion. These recommendations,
together with such efficiency records of the candidates as may be avail-
able, should be reviewed by the board of promotions. Provision should
be made for allowing any member of an ehgible rank who may not be
endorsed by his commanding officer to make application to the board to
have his name considered for promotion. The board could establish
weights for seniority and prepare a schedule of merits and demerits to
apply in making its recommendations. There are no measurements now
used by the civil service which could not be used by a board of promo-
tion, but the board of promotion can employ measurements that are not
and cannot be employed by an outside civil service commission.
Recommendations for promotion should be delivered by the board to
the administrative head of the department, who should have unre-
stricted authority to accept or reject the board's recommendations.
We submit that the establislmment of a board of promotion, composed
of members of the professional force, whose duty it is to pass judgment
on the quality of men as policemen and the quality of their work, will
accomplish four highly desirable results : First, such a scheme would in-
troduce expert appraisal of fitness for work with which the appraisers
are themselves thoroughly familiar. Secondly, it would tend to stimulate
a feeling of self-reliance in the police personnel and imbue the higher
officers with a heightened sense of responsibility for promoting the best
interest of their profession. Thirdly, it would be the first step in the
direction of setting up machinery which would almost certainly evolve
standards and means of measuring the efficiency of policemen. When all
members of the force realize that what they do, as observed by their
superiors who are competent to judge, alone counts for advancement,
there will be a new tone in the whole department. Fourthly, a board of
[43 1
promotion would eliminate favoritism in making choices for promotion
perhaps more thoroughly than does the civil service commission. Police-
men will be the first to welcome an escape from outside interference.
They do not need barriers to keep them from rushing to influences which
they know have always worked for demoralization and the disrepute of
their activity. They have in the past affected alignments with outside
political interests only because those interests had connections with
elected officers who determined appointments, promotions, and assign-
ments to favored posts. But once the whole job of policing is left to the
personnel responsible for it, — including, of course, a civilian administra-
tive head, — without the introduction of outside connections that make
for interference, the professional force will show that it has a natural
pride in its work, that it desires a good name and an efficient department,
more, indeed, than other persons whose standing and interests do not
rise and fall with the standing of the police department.
Lest it be thought that this recommendation for a board of promo-
tion is of too radical a character, attention is called to the fact that this
same system is now and has been for many years in operation in Boston
and other American cities, where it has worked with unquaHfied success.
Similarly in London the non-competitive system of promotions is the
method in vogue. There the civil service commission enters the situa-
tion only upon the invitation of the police commissioner, to assist the
department in weeding out men whose lack of education makes them
unfit for promotion, and the examination which it gives is merely to test
the general educational capacity of the applicant. A second examination
in the elements of police duty, both oral and written, is given by a board
of police officials, and those who emerge from these two tests are eligible
to promotion, although the commissioner, of course, makes his own
choices from the list.
Some such system as this is necessary if our police departments are to
be saved from hfelessness and dry rot. With promotions the result of
real excellence in police work under the watchful eye of superiors, much
of the present inertia would disappear.
[44
CHAPTER VI
DISCIPLINE
THE term discipline as here used includes both its narrower and
broader meanings. Discipline in its narrow sense relates only to
punishment administered for some violation of the rules and regu-
lations or dereliction of duty. This punishment may take the form of a
cancellation of vacation days, suspension without pay, demotion, or
dismissal from the department. In its wider meaning the word disci-
pline embraces the conduct and bearing of memters of the force in the
performance of their duty and the manner in which the force responds
to the leadership of the various officers in charge of operations.
In its wider meaning, therefore, the discipline of a poUce force is of
far-reaching significance. The essential basis of all good police work is
the character and physical power of the individual men. As Arthur
Woods says: "They must be strong of body, stout of soul — sturdy,
two-fisted specimens, knowing how to hold themselves in restraint even
under severe provocation, yet prompt and powerful to act with force
and uncompromising vigor when only that will maintain order and pro-
tect the law-abiding." In other words, alertness, keenness, self-re-
straint, and vigor are the essential earmarks of a good poUce force.
It would be impossible to claim that these characteristics are par-
ticularly noticeable in Cleveland. We have observed a sufficient num-
ber of instances of laxity in police work to warrant the general conclu-
sion that something is radically wrong with the standard of disciphne.
No effort was made to spy on the men for the purpose of detecting flaws
in their conduct, but many casual observations were made of the men as
they went about their work on the streets, in station houses, and at
police headquarters. It was not at all uncommon to find two policemen
talking together while on post duty, and carrying on long conservations
with citizens while on post seems to be a habit. Some conversation
with citizens is, of course, necessary, but reference is here made only to
those conversations the manner of which clearly showed that the dis-
cussion was not confined to lines of pohce duty. These conversations
occurred on posts covering the busiest streets as well as in the more
quiet districts.
On one occasion the traffic cornerman at the intersection of Superior
[45]
Avenue, N. E. and the Public Square was off duty from 11a. m. until some
time after 11.15a.m. A gale was blowing at the time, so that there was some
danger to pedestrians in crossing the street, as automobiles and street
cars were moving without any regulation. During all of this time the
patrolman who was on post at the southwest corner of the post-ofHce
building was engaged in conversation with a citizen, with his back turned
to what really amounted to an emergency situation on the uncovered
traffic post a few feet away. Many patrolmen while on post duty were
observed leaning against posts or buildings as if too tired to stand erect.
The frequency with which needlessly prolonged conversation and other
forms of idling occur reflects discredit on the work of patrol sergeants.
Either the sergeants are not aware of what constitutes alert patrol, or
they are too lenient in their supervision.
On the afternoon of February 21 a building in process of demohtion
at East Sixth Street and Superior Avenue, N. E., collapsed, killing and
injuring several men. A large crowd gathering to view the rescue work
necessitated a considerable detail of policemen to keep the crowd back,
so as to allow firemen to work and to protect the people against the
danger of the unsafe building walls. Crowds were allowed to gather on
the sidewalks across Superior Avenue from the building, and no ade-
quate measures were taken to keep open passageways on the crossing
sidewalks. A patrolman was stationed at the southwest corner of
Sixth and Superior. He was watching the firemen at work about the
wrecked building with the same sort of preoccupation as that manifested
by the crowd blocking the sidewalk. He was not doing as well as the
crowd, in fact, for he was chewing tobacco and violating the law by ex-
pectorating continually in the street. A sergeant forced his way through
the crowd and instructed this patrolman to clear a passageway. The
patrolman made a grimace, as if in disapproval of having his attention
called to the fact that he was supposed to be policing the crowd. He
started a few citizens moving, but never properly cleared the passageway.
At the same place, on the day following, two other poUcemen, one a
foot patrolman and the other a horse-mounted man, were observed while
they were policing a crowd which had gathered to witness a parade of the
Cleveland Grays. Both men were facing the parade, and as the flag-
bearers' detachment passed the poUcemen failed to salute the national
emblem, in careless disregard of the instructions covering honors to be
rendered by members of the force when in uniform and on duty.
One more example of slovenly attitude may be cited. A squad of
nine men was observed at the 2.15 p. m. roll call assembly in a precinct
station. While the officer who was holding the roll call read the orders
[46]
to this outgoing platoon, three of the men who were chewing tobacco
stepped out of their line formation in order to expectorate. Another
was seen whispering to the man standing in line beside him as the
description of persons wanted and alarms giving information of all kinds
was being read by the officer in charge. An attitude of this sort makes a
joke of disciphne. It makes the uniform a cheap pretense.
These instances have not been given in any captious spirit. It is
submitted, however, that although these minor dereUctions may be small
in themselves, the very frequency of careless, slovenly, and inattentive
actions indicates a general absence of good discipline. The whole force
needs toning up. It needs to be infused with vigor and alertness. The
men should be gotten onto their toes. The department's morale should
be stifTened with the same spirit that Arthur Woods put into the New
York force during his administration. This means discipline; it means
the strict observance of the letter of the department's regulations; it
means the exaction of a full measure of compUance with pohce duty.
It brings with it no hardships. On tlie contrary, it promotes an esprit
de corps that makes for the happiness and self-respect of the entire force.
Record of Formal Disciplinary Actions
An analysis was made of major cases of disciphnary action which
had resulted in suspension from duty on the order of the chief of pohce
and subsequent trial by the director of pubhc safety. There were 64
members of the force tried during the year 1920. One member was
tried twice during the year and two other members were charged with a
second offense within the year and dismissed from the department,
having signed after the first trial a resignation to be accepted by the
director at his pleasure. Thus, there were 67 offenses subject to the
trial judgment of the director committed by 64 persons during 1920.
In a number of cases more than one charge was preferred against a single
offender. The nature of the charges preferred in the 67 trials is shown
in the following tabulation:
Intoxication and drinking in uniform 23
Intoxicated while on duty 12
Intoxicated while off duty 8
Drinking in uniform while on duty 3
Neglect of duty (allowing prisoner to escape, not using due
diligence, etc., etc.) 9
Off patrol (sleeping, sitting in stores, etc.) 11
Reporting late; failure to ring duty calls, etc. 11
Disobedience 9
Use of indecent language 5
Feigning sickness 3
147]
Shooting craps or running crap game 3
Interfering with an officer on duty 2
Miscellaneous 9
Beating horse ; offering to permit the making of whisky in re-
turn for payment of money; refusing to pay street-car fare
whUe not in uniform; abusing pool-room keeper, etc.
An examination of the previous record of the 64 men tried in 1920
shows that 25 of them had not been previously charged with offenses.
The remaining 39 had been charged at one time or another with 99
offenses, as shown by the following tabulation:
Drinking and intoxicated 24
Off post 12
Neglect of duty 11
Late to roll call 10
Failure to ring duty calls 6
Indecent and abusive language 6
Disobedience 5
Failure to report to prosecute 4
Feigning sickness 3
Improper performance of duty 2
Miscellaneous 16
The results of the 67 trials held in 1920 were as follows: two members
were reinstated without punishment, being found not guilty; in 38 trials
some form of punishment was administered and the members retained
in the department. Of the remaining 27 trials, 21 resulted in dismissal
from the service of the persons tried, and six members resigned before
the date for trial, while charges were pending against them. The
nature of the punishment imposed in eases other than cases of dismissal
is shown below:
Reprimanded, suspended four days, fined ten days' vacation
and required to sign a resignation to take effect when ac-
cepted by the director 1
Reprimanded, suspended four to thirteen days, fined two to six
days' vacation 2
Reprimanded, suspended four to six days' vacation 2
Suspended four to thirty-five days, fined four days' vacation to
all vacation for a period of five months, and required to sign a
resignation to take effect when accepted by the director 10
Suspended three to thirty days, fined one day's vacation to all
vacation for nine weeks 17
Suspended five to forty-five days and demoted 2
Suspended nine to fourteen days 2 -
Fined three days' vacation to vacation for a period of one month, ■
and required to sign a resignation 2 ■
Considering the cases involving a charge of intoxication and drinking
in uniform, it is found that out of 23 cases, only four resulted iu dis-
[48]
missal from the department. One resigned while charges were pending;
eight received a sentence of suspension from duty for a definite period,
fine of days off or vacation, and in addition were required to sign a resig-
nation to be made effective at the pleasure of the director. The re-
maining 11 were suspended and fined days oflf or vacation. Since some
punishment was levied in all cases, it would appear that proof of the
charges was furnished to the director in each case.
The record for the first five months of 1921 is much like that of 1920.
Intoxication cases from January through May, 1921, numbered 11.
The records show that in a majority of the cases the member accused
was intoxicated or drinking while on active duty. These 11 trials re-
sulted in the dismissal of four memljers. In the case of one member
whose previous record showed charges of intoxication on several occa-
sions, the penalty was suspension for five days, fine of two days' pay, and
loss of the next four days off dut}'. In another case charging intoxica-
tion and being off post the punishment was suspension for ten days and
fine of five days' pay. Intoxication is a very serious offense in poUce
business. A policeman who has possession neither of his wits nor of
his self-control is worse than useless. Indeed, it is nothing less than
shocking for a policeman, with all the wide powers which his office
implies, to be under the influence of hquor. A man who cannot resist
the temptation to become intoxicated while on duty is not fit to wear the
uniform, however insignificant the offense vaay appear, or however
worthy the man may be for other employment.
The London pohce force long ago adopted the principle of making
intoxication while on duty the occasion for immediate dismissal. No
excuse is accepted. The same rule could wisely be adopted in Cleveland.
Certainly the penalties imposed in Cleveland for intoxication by the
civil service commission during 1920 were not sufficient to reduce the
rate of offenses in 1921, nor ^-ill the punishments imposed in 1921 convey
to the members of the force any adequate appreciation of the seriousness
of their offense.
Appk.\ls
The decision of the director of public safety is not final in the event
that the member tried desires to appeal his case to the civil service com-
mission. No case resulting in a punishment less than dismissal or de-
motion was appealed to the commission during 1920. However, in
something more than half of the cases resulting in dismissal or demotion
such an appeal was taken, and with much success. The civil service
commission affirmed the judgment of the director in seven cases, but
5 [49]
disaffirmed his ruling in six cases. Four patrolmen who had been dis-
missed from the service were reinstated, and two sergeants who had
been demoted to the rank of patrolman were restored to the rank of
sergeant by order of the civil service commission.
A brief r&um6 of the facts pertaining to the cases in which the com-
mission disaffirmed the ruhng of the director follows :
1. Patrolman was dismissed after trial on the charge of refusing
to arrest a woman who, he knew, had stolen a ring and of accepting
custody of the ring. This patrolman's previous discipUnary record
disclosed that he had been reported some 15 times — late, several times;
off post, several times; having debts of long standing, slapping a news-
boy, and failing in appearance to prosecute. He was reinstated by the
civil service commission with a forfeitiu-e of six weeks' salary. In other
words, the civil service commission substituted its own judgment for
the judgment of the director of public safety.
2. Patrolman was dismissed after trial on a charge of having
visited a known prostitute in a city hospital and interceding with an
attending doctor on her behalf while in an intoxicated condition. Previ-
ous record shows charges of intoxication and ungentlemanly conduct.
The civil service commission reinstated him in the service without
penalty.
3. Patrolman was dismissed on a charge of refusing to pay his
street-car fare when not in full uniform. Doubtless this charge was
viewed in the light of this patrolman's previous record, which follows:
charged with undue use of blackjack; feigning sickness; twice failed to
report to prosecute; received money for the performance of regular
poUce duty; reporting late; making false report; using abusive lan-
guage. He was reinstated by the civil service commission.
4. Patrolman was dismissed after trial on a charge of failure to
patrol and ring duty calls. His previous record shows: absence from
post; late at roll call; feigning sickness; failed to charge another with
violation of law; intoxicated; off patrol; failure to ring duty calls;
drunk and picking fight; drinking; off patrol. The civil service com-
mission reinstated him.
5. Sergeant was suspended for six weeks and demoted to rank
of patrolman as a result of charges of disobedience, leaving a post before
he should, and failure to prefer charges against a patrolman. Restored
by the civil service commission to rank of sergeant.
6. Sergeant was suspended and demoted to rank of patrolman
following charges of neglect of duty and unnecessary conversation with
citizens. Restored by the civil service commission to rank of sergeant.
[501
Incidentally, one of the cases above cited affords striking illustration
of the present chaotic conditions in the police department due to divided
leadership. The chief of police evidently felt that a violation by a
superior officer of the department's rule in regard to the holding of
unnecessary conversation with a citizen gave evidence of such officer's
unfitness to do supervisory work. Accordingly, the chief, in preferring
charges, recommended demotion. There was no disputing the technical
gmlt of the officer, and the director ordered demotion in compliance with
the chief's recommendation. However, in delivering formal notice of
judgment the director completely vitiated his attempt to uphold the
chief when he stated in the letter which was made public that he did not
approve of the judgment which he himself had rendered. The fol-
lowing is an extract from the letter: "While there may be some doubt
as to whether the mere conversing with citizens for this period of time,
when supervising detail policemen, constitutes neglect of duty within
the meaning of the rules and regulations of the pohce department and
the city charter, I am satisfied that you were indiscreet in your conduct
on this occasion, and I therefore have resolved all doubts against you
in the interest of strict disciphne in the police department. My finding
is that you are guilty of violation of Article 16 of Rule 13, as charged.
Such finding is made for discipUnary reasons upon the recommendation
of the chief of pohce, although I believe the punishment is severe for the
offense committed."
It is small wonder that the disciphned member in the case just cited
appealed to the civil service commission and that the commission re-
versed the judgment of the director when he himself believed it too
severe. We have here, therefore, one head of the department deter-
mining that satisfactory standards are not being met and demanding a
penalty; another head interpreting the issue without having standards
of his own; and a third body in no way responsible for administration
overruling both.
The record of cases appealed to the civil service commission in 1921
is even worse than that for 1920. At the time the survey tabulation
was made, four cases had been appealed to the commission. Three of
these cases involved dismissal from the service and one demotion in
rank. Two of the dismissed members were reinstated, and the officer
demoted was restored to rank by order of the commission. In only
one case out of four was the judgment of the director sustained.
Obviously, the civil service commission must make its decisions
without any thought of the defendant's value as a reliable policeman.
It must confine its considerations, as would a court of law, to the single
[51]
charge at hand. From the police point of view the specific charge
covering an offense maj' confirm a well-grounded distrust or lack of
confidence in a certain policeman; the last charge may be the final proof
of unfitness. The civil service commission, however, does not assume
the point of view of the poUce official. Moreover, it brings no responsi-
bihty for achieving police results into its deUberations and measures
offenses by standards which are bound to be more lenient than can rea-
sonably be employed in poUce discipline. It views offenses as mistakes
and transgressions that would not be so grave, perhaps, in other lines of
work. It often appears to overlook the significance of such offenses in a
policeman and the demand of good conduct and right morals which the
pohceman's peculiar tasks present.
So long as the civil service commission in Cleveland is permitted to
impose its own standards of personal fitness for poHce work, good di.s-
cipUne in the department cannot be attained. Neither the chief of police
nor the director can do away with the weak Unks in the department's
chain under the present arrangement, whereby final authority in matters
of disciphne is given to an outside body having no connection with
pohce work and no intimate appreciation of its problems.
It must be pointed out, moreover, that the difficulty of civil .service
usurpation extends far beyond the particular cases handled by the com-
mission. Efforts on the part of the head of the pohce department to
improve police discipline and standards of conduct are hindered in all
of the border-Hne cases for the simple reason that fear of failure in being
supported by the civil service commission makes for hesitation in ini-
tiating disciplinarj^ action and for tolerance of much that it is desired to
correct and improve. With the recent year's record of reinstatement of
policemen whom the chief and director have adjudged to be unquahfied
for the performance of satisfactory police work, is it any wonder that the
chief is hesitant in taking adequate measures to correct minor evidences
of poor disciphne? And what is the effect of a ruling by the civil service
commission that while a pohceman may be guilty of refusing to swear out
a warrant as ordered by his superior officer, demotion in rank is too severe
a penalty to be imposed? The obvious effect is that those members who
are least valuable to the department can snap their fingers in the faces
of their superiors and pay only so much allegiance and obedience to them
as would be required by the civil service commission.
(52
Recommendations
The remedy for strengthening the morale and improving the dis-
cipHne of the department lies in transferring final authority in matters of
discipline from an uninformed, irresponsible, politically appointed civil
service commission to a single responsible, expert administrative head of
the police force. As far as its disciplinary functions are concerned, the
civil service scheme has been fully tried in Cleveland, and we submit
that it has been found wanting. It is recommended, therefore, that full
powers of disciplinary action be vested in the director of the department
of police, and that a trial board, composed of officers of the professional
force, be designated by the director to try delinquent members and sub-
mit findings, with recommendations to him. The director should have
the power to accept, reject, or modify the recommendations of the trial
board.
We recognize that objection will be made in some quarters that if so
much power is given to a single police head in matters of promotion and
discipline, he will abuse it by interjecting elements of poUtieal favoritism,
and that gi^ang members of the police force a share in determining these
matters is dangerous. This danger is admitted, but we shall never solve
the police problem in America until we give honest and effective leader-
ship an opportunity to show what it can do. There is no chance for pro-
gressive improvement in a police department if the hands of the responsi-
ble executive are tied in his dealings with his men. Here again we must
turn to Boston for an example of a rational system. As we have seen,
complaints against members of the force are heard by a special trial
board of three captains appointed by the police commissioner. The
conmiissioner, however, is always supreme. He can at any time change
the personnel of the trial board, order a new trial, or set aside the recom-
mendations of the board in regard to the punishment to be imposed. His
word is final, and from it there is no appeal to a higher civil authority.
On no other basis can responsibiUty be centered and a poUce force be rid
of useless or dishonest emploj^ees. To divide responsibility with a civil
service commission, a mayor, a court, or any other authority, is to sow
the seed of demoraUzation and to make real success impossible for any
administrator, no matter how able.
Briefly, we do not believe that large strides in the improvement of
the police service can be accomplished in Cleveland under the general
assumption that:
1. Cleveland can only have public servants who are poUtically
minded and whose natural dishonesty must be checked and guarded
against at all times.
[53]
2. That members of the police force who do the work can never know
their job as well as persons on the outside, for example, newspapermen
and pohticians, and that policemen have httle or no natural respect for
themselves or pride in the success of their work.
3. That the public service is only worthy of mediocre men, and no
attempt need to be made to get superior men.
4. That power and authority necessary to do a given job well cannot
be entrusted to a public servant.
:54i
I
CHAPTER VU
UNIFORM PATROL SERVICE
POLICE operations will be discussed under four headings, repre-
senting four functions of a police department's work, viz., uniform
patrol service, detective bureau operations, special activities, in-
cluding crime prevention work, and the secretarial division.
Patrol by members of the Cleveland uniform force is a matter largely
influenced by tradition. Little change in the method of distributing the
patrol force or in supervising its operations has occurred within many
years. Some improvements have recently been made in the reporting
of work performed by the patrol force, although slight use is made of this
information; for the most part it becomes merely a matter of record and
is not employed for purposes of administrative control. While there
have been substantially no changes in police patrol practices, or in the
geographic distribution of the force by precincts, there have occurred
many marked changes in conditions prevailing in Cleveland.
It is not unusual for a migration of population to occur which com-
pletely alters the police problem of a district. The influx of negroes,
which has occurred in the Eighth Precinct, presents a new police problem,
and so does the mixture of races in the Third, Fifth, and Sixth Precincts,
lying southeast of the business center of the city. The character of
these areas has so changed in a short time as to alter completely the de-
mands made upon the police department. Again, there have been
instances of rapid change from good residential districts, with a perma-
nent population, to boarding-house and furnished-room districts, ac-
commodating a transient population. This has been true in the Fourth
Precinct, which has become in recent years a much livelier district as
far as calls upon the police service are concerned. Then, on the other
hand, there are changes in certain limited districts which tend to reduce
the need of police attention. Some areas change from populous resi-
dential districts to manufacturing or warehouse centers. The poUce
problem is greatly altered in a given precinct, as in the case of a portion
of the Fifth, for example, when several rows of tenement houses are torn
down and a factory erected in their stead.
[55]
Not only has the character of districts changed in the past twentj^
years, but changes in methods of transportation have altered the prob-
lem of police work. Years ago there was little traveling at night, and
identification of those who did travel was comparative^ easy, whereas
now the number of people moving about after dark has increased a
thousandfold. The use of the automobile alone has revolutionized the
police problem. The movement of automobiles must be regulated to
promote safety; they must be guarded from theft; and increasing
vigilance is necessary because criminals make use of them in the com-
mission of crimes.
Notwithstanding all of these changes in the objectives of policing,
the means and methods of policing in Cleveland remain practically
unaltered. There has been no modification of police arrangements to
correspond with the kaleidoscopic changes brought about by shifting
populations and new inventions. One gets the impression in Cleveland
that police organization is merely a conventional arrangement, sanc-
tioned by usage and traditions, but with little relation to needs or neigh-
borhoods. It looks as if it had been wrenched from widely different
surroundings and poorly fitted to its new environment. The admirable
adaptation of means to end, of machinery to purposes, which one finds
in many European departments, is conspicuously lacking. In brief,
methods and organization are not fitted to new social and criminal con-
ditions.
It is absurd to saddle on a single official the deficiencies due to so
glaring a disparity between need and system. But the new system must
be worked out and administered by a new head, capable of understanding
the inadequacies of the antiquated existing system and sufficiently
resourceful and commanding to afford Cleveland a police department
adapted to its modern conditions.
A leadership of imagination and creative intelligence is urgently
needed. Under such leadership one of the first steps in reorganization
would undoubtedly be a restudying and recasting of the present patrol
beat boundary lines. Many patrol beats have had the same boundaries
for years. Indeed, most precinct stations do not have a beat map, and
even the officers are often not familiar with the exact location of the
patrol posts. When, after a thorough study of present conditions and
present needs, the beats are revamped, they should be left open for
future changes. A beat should not be reckoned as a permanently fixed
area, but should be subject to readjustment at any time in the discretion
of the captain of the precinct after approval by the chief of police.
Patrol beats should be laid out in the light of the ordinary demands of
(56]
each particular beat for police protection, the number of patrolmen
available for duty, and the methods of patrol that may be in use or may
be put into use.
In laying out patrol beats all information in regard to street blocks
should be available. Such information is not now to be had in the police
department. It is recommended that a card record description of every
block within each precinct be prepared under the direction of the captain
of the precinct, giving the following information:
Length of block
Kind of paving
Kind of traffic
General description of buildings
Kind of street lighting
Population statistics as to total number, nationality, number
of families, permanent population, transient population
List of such important burglary risks as banks, jewelry-stores,
warehouses, etc.
List of places to be inspected by the police, as pool-rooms,
clubs, dance halls, cigar-stores with back rooms, pawn
shops, etc.
There should then be a space for entering the crime record on the
block description card, showing separatelj^ the number of complaints
of misdemeanors and felonies and the number of arrests classified by
misdemeanors and felonies. These card records of blocks should be
kept up to date by the precinct commanders, and from them information
should be obtained for the determination of patrol beat boundaries.
Number of Policemen Needed
Another matter which should be considered under a progressive
leadership of the pohce is the number of policemen necessary for Cleve-
land. We cannot undertake to say in any confidence whether or not
the police department needs more policemen. Certainly the crime rate
in Cleveland affords plenty of opportunity for work by any additional
men who might be appointed to the police force. Certainly, too, the
addition of more men to the patrol force or to other branches of the
service would show some retui-ns in lessening the number of crime com-
plaints and increasing the number of crimes solved. In this connection
Detroit offers an illuminating experience. Complaints of robbery were
steadily reduced for a period of four months, in which the police force
was increased each month. An official bulletin of the Detroit Depart-
[57]
ment discloses that in September, 1920, with a shortage of 198 men,
there were 98 robberies committed, as against an average of 55 for Sep-
tember of the four preceding years. In October, with a shortage of 170
men, there were 74 robberies against an average of 61 for the previous
four months of October. In November, with the shortage entirely
made up, there were 55 robberies, against an average of 92 for the same
month of the four preceding years, and in December, with the number of
patrolmen brought up to 132 in excess of the regular quota by December
31, there were 48 robberies, against an average of 93 for the same month
of the previous four years.
A comparison of personnel quotas and police costs in Cleveland and
Detroit shows clearly the superior resources possessed by the latter city.
Approximately $4,500,000 was appropriated for Detroit's poUce service
during the fiscal year 1920-21, while the total estimated cost for pohce
service in Cleveland for 1921 amounted to approximately $2,500,000.
The total authorized poUce force in Detroit for the year 1921-22
numbered 1,926, while the total authorized force in Cleveland for 1921
numbered 1,381.
On the other hand, the fact has to be borne in mind that Detroit is
larger than Cleveland by nearly 200,000. Nevertheless it is found
that Cleveland has only 174 men per 100,000 population, while Detroit
has 194.
Similarly, a comparison between Cleveland's police resources and
those of St. Louis shows to the disadvantage of Cleveland. St. Louis
is slightly smaller than Cleveland, yet the estimated expenditure for the
police department in 1921 exceeded Cleveland's police cost by $500,000.
The total strength of the St. Louis force exceeded Cleveland's total
force by more than 500 men. St. Louis has 250 men per 100,000
population.
The question of increasing the number of men is one of public policy,
involving chiefly the amount of money that can be spared for police pro-
tection. That more policemen will mean an improvement in crime con-
ditions is not to be debated. Whether the resulting reduction in crime
is worth the additional money required of a tax- and debt-burdened city
is a question with which we have no proper concern. The questions that
confront us are these: Is the city of Cleveland getting all the return it
should from the money now spent on patrol service? If not, where does
inefficiency lie or where does failure to make the best use of resources
appear? We believe greater returns could be had from the number of
policemen employed at present — (1) by greatly e.xtending the use of
motor vehicles, and, in some cases, bicycles, in doing patrol work; (2)
[58]
by reducing the number of daily assignments in the horse-mounted sec-
tion of the traffic division; (3) by employing some of the men in a special
service or crime prevention bureau. Whether these measures, which
are discussed in later sections of the report, will of themselves, without
adding to the force, achieve the desired results in reducing the volume of
crime, is a question which only experience can solve.
Methods of Patrol
At the present time regular patrol work is done on foot. The men
who are equipped with horses confine their attention almost entirely to
the regulation of traffic and enforcement of traffic ordinances. Special
units, known as reserve squadrons, consisting of a sergeant and three
uniformed men, are attached to nine of the 15 precincts. These squad-
rons operate in what are called, in newspaper fashion, "high-powered
automobiles." They are held in reserve at precinct station houses during
the day to answer emergency alarms, but at night are used in a limited
way for general circulating patrol.
The results achieved by the squadrons in 1920 point clearly to the
value of extending the use of motor equipment for doing regular patrol
work, thereby replacing many foot patrolmen. In the sections of out-
lying residential districts which have good paving, motor patrol service
can take the place of foot patrolmen entirely. In congested districts,
however, where large numbers of people are passing on the street, it will,
of course, be necessary to have patrolmen doing duty on foot and cover-
ing comparatively small beats, so that they can keep their posts con-
stantly under eye.
The use of automobiles for patrolling the streets is in line with the
best development in police work. New York, Kansas City, Detroit,
and many other cities have adopted the idea, with marked success. In
April of 1918 the Detroit department placed over 150 Ford automobiles
on the streets to patrol beats formerly covered by foot patrolmen. Each
machine carries two policemen — one in plain clothes and one in uniform.
During the first month of the operation of these machines felony com-
plaints were reduced from 654, reported in the previous month, to 528;
in the second month there was a further decrease of 65 felony complaints
over the previous month. "The innovation of the automobile as a
preventive [of crime] has proven a great success," said an official of the
Detroit department, "for two men can now do the work that formerly
took four or five, and are able to do any kind of work with more success
in residential districts than officers on foot."
Similarly other cities, such as St. Louis, Seattle, Los Angeles, and
[59]
Louisville, are making small beginnings in the use of automobiles for
patrolling beats. The hesitation of many departments in taking up the
automobile for patrol purposes is due to the expense involved in the
initial outlay and maintenance charges. On the other hand, if two men
equipped with an automobile can do the work of five, or perhaps eight,
men on foot, a reduction in the patrol force is possible, and the saving in
salaries would more than offset the cost of providing the necessary motor
equipment.
The motor equipment to be used in patrol work should consist in
medium-sized passenger automobiles of good quality, with perhaps a
few of the smaller and cheaper cars and motor-cj'cles equipped with side
cars. The number of men attached to a car or motor-cycle need not
exceed two; they may both be uniformed, or one uniformed and one in
citizen's dress. There is no work performed in the non-congested areas
by patrolmen on foot which cannot be carried on in an automobile or
motor-cj'cle. When the need for a close investigation is seen, the pa-
trolman simply stops his vehicle and proceeds to do his work as formerly.
On the other hand, much work that can be carried on successfully by
using a vehicle cannot be done by the foot patrolman.
There are many positive advantages to be secured from motorized
patrol service. In the first place, a patrolman riding an automobile or
motor-cycle can cover from 12 to 15 times as much ground as a man on
foot. Realization of this advantage can be measured in one of two waj's
— either by reduction of the number of men employed in patrol or in
making more frequent observation of a given territory. On the present
basis of the distribution of patrolmen it would be possible to cover more
territory with even fewer men.
Again, patrolmen riding in cars can carry considerable equipment,
often urgently needed by them, but which it is not possible for a foot
man to carry. Police cars should include, as their equipment, lanterns
and other bracket materials for safeguarding dangerous places, fire
extinguisher for use on grass fires, towing rope, heavy firearms, and a
first-aid kit. These cars can at once be converted into emergency
ambulances if an occasion demands, or they may serve the purpose of a
patrol wagon in taking prisoners to headquarters or precinct stations,
thus cutting down the need for the present number of patrol wagons
used.
Moreover, the increasing use of automobiles by criminals makes it
important that policemen be equally equipped. Observations of sus-
pected persons keeping automobiles can be effected from an automobile
in a way that cannot be done from on foot. Pursuit of a fleeing auto-
[60]
mobile may be done only in another car. The greater possibilities of
the unsuspected arrival of the police when equipped with an automobile
is another advantage in dealing with criminal operations.
Finally, the use of motor equipment greatly promotes the physical
fitness of policemen in covering large territories. In emergencies they
can arrive at the scene of crime, disturbance, or accident more quickly
and in better physical shape to do police duty. The protection which
an automobile affords in severe weather is another item of great value
to be reckoned in preserving the physical efficiency of the men.
In this connection attention must be called to an order of the Director
of Public Safety, dated March 14, 1921, directing the chief to .see that the
use of the reserve squadrons be "limited to the investigation of such
cases as are manifestly important." In partial explanation of what
would not be "manifestly important," it was ordered that the squads do
no work on crap-shooting complaints, street-corner loitering, etc. Quite
apart from the fact that the director obviously overstepped his power
as laid down by the charter in thus interfering with the functions of the
chief, the order itself has little justification, and its results can only be
to curtail the effectiveness of motor patrol. By using the squadrons
in breaking up crap games and objectionable street loitering the number
of serious complaints can undoubtedly be lessened, while the efficiency
of the squadrons in important cases of murder or robbery will in no way
be decreased.
Patrol Booths
As an essential part of the system of motor patrol, patrol booths
should be erected in the outlying districts of the city. This is a system
which has been thoroughly tested in many cities, notably New York
and Detroit. The patrol booth is in effect a miniature police station.
Its chief advantage lies in the fact that a policeman in a given territory
is made immediately available to citizens and headquarters ahke. A
proper operation of the booth system requires that not less than two
men, equipped with motor-cycle or automobile, be attached to a booth
at the same time. One man remains at the booth while the other circu-
lates through the district, returning periodically to the booth. In case
the booth man is absent on an emergency call, the other remains at the
booth until his return. By this arrangement a district is given the
benefit of patrol — in point of fact the motor-cycle or automobile man
gives better patrol service than the foot patrolman, and at the same time
a policeman can be had at once in case of need. Citizens naturally have
a greater feeling of security in knowing that they can get a policeman
immediately than in knowing that a foot patrolman is somewhere in
1611
the district and that there is a chance that he is near enough to hear a
call for help.
Precinct Stations
Precinct stations, numbering 15 at the present time, have been de-
veloped as necessary means for distributing the patrol force. The dis-
tricts served by these stations vary considerably in size, and some, due
to topographical peculiarities, are very irregularly laid out.
The precinct stations were established to meet the needs of the old
type of patrol. When men are sent out on foot to cover their beats, it is,
of course, necessary to assemble them by groups at a point near where
they are to patrol. As the city grew in size it became impossible to
send men from headquarters to the outlying beats, hence the need for
precinct stations. This need can be reckoned in terms of yards and
miles from the station house to the farthest removed post, and the time
required to cover this distance. Obviously, when men proceed from the
station to their beats in automobiles or motor-cycles, not as many sta-
tions will be required as under the present system of foot patrol.
It seems probable that, upon the introduction of motorized patrol,
precinct lines could be reestablished, so as to reduce the number of
precincts from 15 to seven or eight, allowing two on the West Side and
five or six in the eastern portion of the city. This calculation is but
roughly made. It is based on the following suggestions for consolida-
tions: combining the First, Second, and Third Precincts and the
westerly tip of the Fourth into one precinct that will be housed in a new
headquarters building; combining parts of the Fourth, Thirteenth,
and Eleventh, to form a single precinct; providing one or possibly two
stations to accommodate the needs of the southwest section of the city,
beyond the limits of the Fifth and Sixth Precincts. One station should
suffice for that territory lying north and east of Wade and Rockefeller
Parks, since there is no chance for extension on the north, and any an-
nexations on the east would present a new situation entirely, requiring
complete rearrangement of station faciUties. These suggestions would
need further study, but they afford an illustration, at least, of the possi-
bility of consolidation as a result of motorized patrol.
Combinations such as those suggested above will not only increase
the efficiency of the force but will lessen the cost of police administra-
tion. Every precinct means additional overhead, both in record keeping
and supervision. By combining two or more precincts into one this
overhead can be reduced, thereby saving in expense and contributing
to a greater uniformity in police practice. Officers now performing
duplicate tasks of supervision could be freed for more productive work
[62]
in other special divisions of the department. An examination of the
station records and reports in the Tenth and Twelfth Precincts showed
that there is a very small volume of work, and yet a full complement of
ofRcers is required to supervise approximately 35 men in each of these
precincts. Seventy men, or even as many as 125, distributed over four
platoons, can easily be managed in a single command and the clerical
duties incident to the work of such a number of men can well be handled
without addition to the number of men employed in clerical work in a
single precinct. On the whole, discipline is likely to be better under the
business-like aspects of a large unit than in the home-like atmosphere of
small, quiet precincts.
Again, emphasis must be laid on the fact that these improvements
and others of a similar nature can come only as the result of a sustained,
intelligent leadership of the police. They cannot be successfully in-
stalled by law or ordinance, or by any other legislative short-cut. They
must be thoughtfully matured over a period of years. They must be
the result of careful planning, of fearless initiative, and wise guidance.
This means a leadership of brains, free from unwarranted interference.
More than anything else the Cleveland force needs such leadership today.
Recommendations
The patrol service should be reorganized so as to accommodate the
changes which the use of motor equipment demands. It is recommended,
therefore, that —
(1) Motor equipment be used in regular patrol work.
(2) Patrol booths be established.
(3) Police precincts be consolidated so as to reduce the number
from 15 to seven or eight.
(4) Patrol beats be rearranged.
[63]
CHAPTER VIII
THE DETECTIVE BUREAU
THE detective bureau is the second major division of the police
organization. It is a bureau of speciahzed operations, involving
not only the solution of crimes which have occurred despite the
preventive efforts of all other divisions, but the apprehension of the
perpetrators who have escaped after the commission of crime. Work
on the solution of murder and manslaughter cases requires considerable
time, but the investigation of complaints involving loss of property is by
far the largest part of the detective bureau's work. These complaints
include robbery, burglary, housebreaking, grand larcenj', frauds, and
swindles.
The bureau is commanded by a deputy inspector of police, who is
detailed by the chief of police to serve as inspector of detectives. Simi-
larly, he may be transferred from the detective bureau at the pleasure
of the chief. Two captains of police are detailed to serve as captains of
detectives, assisting the inspector in command. These conunanding
officers are generally drawn from commands of the uniformed patrol
force, instead of being taken from the detective bureau membership.
The present inspector of detectives served as a captain in command of
the Third Police Precinct prior to being detailed to head the detective
bureau. However, he had had some previous experience in detective
work as a member of the old detective bureau. One of the two captains
of detectives was previously in command of a precinct station, and later
had charge of the police training school, from which he was transferred
to the detective service. The other captain was originallj' a patrolman
detailed to the detective bureau. Upon receiving his promotion to the
rank of sergeant, he was transferred from the detective service to a pre-
cinct to supervise uniformed patrolmen, afterward going to the traffic
division. Upon being promoted to the rank of lieutenant he was trans-
ferred to desk duty in a precinct. Later he was promoted to the rank of
captain and placed in connnand of a precinct station. From this post
he was transferred to the detective bureau.
From records of this sort it is easy to see that no attempt is made to
develop detective commanders from detective personnel. The de-
(641
tective bureau in Cleveland is directed by men who have had no ade-
quate training in the detective business, and whose promotion to leader-
ship depended, in the first instance, on attaining a certain rank, and
only secondarily on experience and fitness. Under the present system,
if a patrolman, serving as a detective, obtains promotion to the rank of
sergeant, he must leave detective work and take up uniformed patrol
supervision merely because there is no rank of sergeant in the detective
bureau. He must then continue in the uniformed patrol or traffic ser-
vice until he has attained the rank of captain before he again becomes
eligible for transfer to the detective service. The detectives who do
not ascend through the uniformed ranks of sergeant and lieutenant
to captain are barred from attaining a post of command in the detec-
tive bureau.
There are 81 patrolmen detailed to the detective bureau at the
present time. They are assigned to various duties as follows:
4 assigned to desk duty
5 to office duty — clerical work
5 to the automobile squad
4 to the bureau of criminal identification
3 to the taxicab quad
2 to the pawnshop squad
1 to apartment house detail
1 to the hotel detail
1 to the bank detail
1 to the rooming-house detail
50 on general assignments
Of the 50 general men, five are carried on the detective bureau roll,
but assigned outside of the bureau as follows : one as a clerk in the chief's
office, one to the law department for investigation of civil action cases
involving possible damages to the city, one in charge of the department's
telephone exchange, one as a clerk in the office of director of public
safety, and one to the mayor's office, serving as the mayor's bodyguard.
These men are not doing detective work and there is no justification for
carrying them as detectives.
All detectives are taken from the rank of patrolmen in the uniformed
force. Detectives who have served in the bureau for ten years or
more are paid a salary of $2,406.80, which is slightly more than the
salary paid to lieutenants of police in the uniformed force; those with
less than ten years' service to their credit receive S2,288, which is the
same as the salary of a uniformed lieutenant. Detectives are selected
by the chief of police. Whether he is permitted to exercise his own judg-
ment without influence of any sort depends on the mayor and director.
6 [65]
Detectives may be returned to duty in the uniformed force in the discre-
tion of the chief of pohce and by his order. The privilege, however, is
rarely used. The detective assignment is considered as a promotion,
and loss of the assignment occurs only in such extreme cases as would
result in demotion in rank in the uniformed force as a result of charges of
incompetency.
Poor Quality of Detectives
The detective personnel is supposed to be the "cream" of the uni-
formed patrol force. The superior type of work demanded of detectives
and the greater compensation which they receive would seem to require
that they be the ablest patrolmen in the service. We doubt the truth
of the presumption that the detective personnel in Cleveland is entitled
to rank as a group having superior abilities. In the first place, there
appears to be no adequate provision for selecting detectives on the basis
of proved worth in doing the tj'pe of work required. No particular
standards are followed. Not infrequently policemen are detailed to the
detective bureau in recognition of daring and as a reward for the per-
formance of some unusually good bit of work in the uniformed force,
such as making an arrest at the scene of a major crime. Daring and
quick wit are valuable assets to the detective, but their display in a
single case does not warrant the conclusion that the men have other
qualities of perception and aptitude needed in detective work. The
point is that there is no regularly pursued practice of looking out for
detective material or of trying men out in an apprenticeship assignment
in the detective service.
Another consideration on which we base our conclusion that the
detective personnel is not of the uniformly high caliber which should
characterize a detective force is the low rating of the detective group in
the United States Army Alpha Test. It is a singular and significant
point that the detectives as a group made a lower average rating in this
standard psychological test than any other group in the police service.
The range of scores made by 10 different groups is shown in Table 3.'
'This
psychological examination was made
in connection with
the present sur-
vey. The
method of marking is as follows:
Approximaie
Grade of
mental age.
inlelligena.
Explanation
Alpha score
years
A
Very superior intelligence
13.^212
B
Superior intelligence
10&-134
c+
High average intelligence
75-104
c
Average intelligence
45- 74
c—
Low average intelligence
25- 44
11-13
D
Inferior intelligence
15- 24
9-10.9
E
Very inferior intelligence
0- 14
Below 9
[66]
TABLE 3.— MEDIAN SCORES AND RANGE OF SCORES OF POLICE
DIVISIONS
Range of scores of each division
Rank or division
Median
Low third
Middle third
High third
Captains
98C +
50-75
76-104
10.5-154
Lieutenants
95C +
36-81
82-108
109-165
Sergeants
99 C+
28-79
79-109
110-166
Vice squad
75C=F
23-61
64- 84
84-134
Detectives
59 C
23-50
51- 71
72-131
Training school
63 C
25-56
57- 74
77-138
Traffic
61 C
5-56
56- 74
75-137
Mounted
78 C+
22-59
60- 91
92-155
Emergency
67 C
19-64
65- 80
83-150
Patrolmen
67 C
6-52
53- 82
82-170
From this record it is seen that the average of scores made by 63 de-
tectives is 8 points below the average of scores made by 759 patrolmen
doing duty in uniform, 16 points below the average score of 26 vice
bureau operatives who were chosen from the uniformed force in the
same way that detectives are, and 36 points below the average made by
46 lieutenants who are rated on approximately the same salary schedule
as detectives.
Another basis of scoring which shows the number attaining different
group ratings is given in Tables 4 and 5.
From this tabulation it is seen that no detective was rated in the A
group, although all the other classes of the service had some percentage of
their membership in this grouping. The percentage of detectives in the
B group was less by one-half than that of any other class, and six to seven
times smaller than the percentage of lieutenants, sergeants, and vice
bureau operatives in the B group. Two detectives were in what is rated
as the failure group, with a score of less than 25, while no member of the
lieutenants, sergeants, or vice bureau classes fell so low.
Of course the Alpha test is not a complete measurement of ability.
As has been pointed out, the ratings are useful as measures of general in-
telligence, but they do not include measurements of personality and
character traits such as initiative, leadership, bravery, honesty, etc.
They are measures to indicate the speed and accuracy with which persons
are able to deal successfully with new situations and problems. But the
comparison, even on this hmited basis, is highly significant. The "cream
of the uniformed force" serving as detectives should not fall below the
uniformed force in a test involving general information and ability to
meet new situations quickly and accurately.
[67]
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[68]
Poor Work of Detective Bureau
One does not have to resort to psychological tests to prove the ineffi-
ciency of the detective personnel or the general run-down condition of the
whole bureau. A glance at the organization or an examination of the
reports of the men easily sustains the point. With the exception of the
criminal identification section, which is ably managed, the whole bureau
seems to be run on a small-town pattern. Poor office arrangements no
doubt contribute in some measure to the appearance of disorder and
confusion generally evident in the bureau. Clerks, officers, detectives,
witnesses, and citizens shuffle around in a large room, and there is no
appearance of system or method in the hurly-burly of the day's routine.
Super\'ision of operations is poor when it is employed at all, and the
records are inadequate and carelessly prepared.
Lest this be thought too sweeping an indictment of the work of the
bureau, it may be well to quote some of the reports of the detectives.
During the month of January, 1921, Detectives Callahan and Cowles,
working together, handled 16 cases of burglary and larceny. The follow-
ing are their owti complete reports of their activities on burglary cases
during this period:
1. "Detective Cowles and I investigated this complaint we were unable
to locate the men suspected will continue on same."
2. "Detective Cowles and I investigated this complaint we were unable
to get any trace of the thief or property."
3. "Detective Cowles and I investigated this complaint was unable to
locate the man suspected."
4. "Detective Callahan and myself investigated above report, inter-
viewed Mr. also made inquiries in that vicinity, was unable to
get any further information than original report."
5. "Detective Cowles and I investigated this complaint we were unable
to leam anything on same."
6. " Detective Callahan and myself investigated above repwrt, interviewed
manager also made inquiries in that \acinity was unable to
get any trace of the thief or thieves. They do not suspect any one."
7. "Detective Cowles and I investigated we were unable to get any trace
of the thief or property."
8. "Detective Cowles and I investigated this complaint we were unable
to learn anything on same."
9. "Detective Cowles and I investigated the complaint was unable to
get any trace of the thief or property."
10. "Detective Cowles and I investigated this complaint we were unable
to get any trace of the thief or property this job evidently was done by
boys."
[69]
11. "Detective Cowles and I investigated this complaint we were unable
to learn anything on same."
12. "Det. Callahan and myself investigation above report. Interviewed
Mr. was unable to receive any further information or any trace
of the Burglars."
1.3. "Det. Callahan and myself investigated above report, inter\'iewed
Mr. Learned that the property stolen was insured for more
than he valued it at. Satisfied this report is not Legidiment."
14. "Det. Callahan and myself investigated above report, inter^newed
Mr. . Also made inquires in that ^^cinity, was unable to get any
trace of Burglars & property. Will continue."
15. "Det. Callahan & myself investigated above report was unable to
give any description. Does not suspect any one."
16. "Detective Cowles and I investigated this complaint we were unable
to learn anything on same."
The above represents a whole month's work of two detectives on
biu'glary cases. Reports of this type could be instanced almost indefi-
nitely. In many cases they seem to show that the detectives merely veri-
fied the fact that a crime had been conmiitted, and beyond asking a
question or two of the neighbors, made no attempt to solve the mystery.
Under such circumstances the wonder is not that crimes occur in Cleve-
land, but that any perpetrators are ever arrested.
Inadequate Supervision of Detective Work
One of the significant causes of this situation just described is the
lack of adequate supervision of detective operations. Apparently each
detective determines for himself just how much he shall do on a given
case and when he shall regard the case as closed. Of any adequate fol-
low-up on individual cases, there is none. There is no administrative
oversight to put enthusiasm and determination into the solution of
individual crimes. The commanding officers of the detective bureau de-
vote most of their time to important cases upon which newspaper com-
ment is centered, and very little time to the less interesting task of man-
agement. Indeed, the role of detective officers is that of super-detective
case workers rather than supervisors. The commanding officers lock
their offices and go out into the field to assist in the investigation of
murder cases, payroll robberies, and other important crimes. They have
been accustomed also to make trips to other cities, sometimes as far
away as Cahfornia and New York for the purpose of bringing to
Cleveland fugitives held by the police in other jurisdictions. When the
inspector of detectives makes such a trip, the detective bureau is man-
aged by an assistant. This practice must be condemned without reserva-
[70]
tion. Ordinary detectives can be assigned to make such journeys. It is
far more important that detective commanders stay on the job and keep
in constant touch with the mass of less spectacular cases where the
scrutinj' of immediate supervision is needed. Otherwise the minor cases
will slip by almost unnoticed except for a perfunctory examination by the
detectives assigned to them.
Briefly, the detective bureau needs administration badly. It is im-
possible to spend days in solving particular crimes and at the same time
supervise the operations of SO men who are working on hundreds of cases.
Recommendations
One approaches the subject of recommendations for the detective
bureau almost with despair. The whole department needs overhauling;
the methods of work require a complete shaking up; and much of the
present personnel should be gotten rid of. However, the following recom-
mendations are pertinent to our inquiry:
1. The director of police should be given the right to recruit detec-
tives directly from civil life through original appointments. There is no
good reason for restricting the selection of detectives so that none but
members of the uniformed force are eligible. The uniformed patrol
force may or may not have in sufficient number the sort of material that
is demanded in detective work. The chances are that the patrol force
does not have the best material available in the community. It is not
here proposed that all members of the detective service be taken directly
from civil life. When uniformed patrolmen are found to have the quali-
fications for detective work, they will be preferred because of their experi-
ence. But the department should not be compelled to limit its choice
of detectives as at present.
Detective work requires some men of scientific training — men ha\'ing
the educational foundation that will permit them to develop scientific
methods of operation. There are many principles of criminology-, such as
the examination of the physical e\idence of crime, which can only be
applied and developed by specially trained men. These men cannot be
drawn exclusively from the xmiformed patrol force for the reason that
men ha%ang scientific training do not enter the patrol service. Aside
from those with qualifications of this type there are men in private life
specially trained in getting information and making investigations, who
would be willing to enter the detective service at the rate of pay now
given detectives, provided there were an opportunity for making a credit-
able career. But these men would not first serve an apprenticeship of
walking beats as patrol watchmen.
[71)
Detective bureaus are the weak spots in all police departments of this
country, chiefly for the reason that the choice of detectives is limited to
men who are recruited and trained as patrolmen. In this connection
August Vollmer, head of the police department of Berkeley, California,
asks the following pertinent questions: "Where is there a business con-
cern that compels applicants for various vacancies in the organization to
submit to the same physical and mental examination; where the janitor,
clerk, salesman, engineer, department heads, superintendents, and man-
agers are all compelled to answer the same questions, measure up to the
same physical standards as to health, height, weight, age, and sex, and all
commencing their employment at the same occupational level and at the
same pay? Where is there a business concern that limits the selection of
men for technical positions to employees holding inferior positions in the
same establishment?" It is obvious that police departments are alone
in their indefensible practices in such matters. If any real progress is to
be made in detective bureau efficiency, it must come after the removal of
senseless bars to getting men who have the intelligence and training
needed to perform the special tasks that daily confront detectives.
2. Under any circumstances, some of the personnel of the detective
bureau, perhaps a majority of it, would be recruited to the detective ser-
vice from other branches of the police organization. The present method
of such recruiting, however, should be changed. Instead of detailing
patrolmen to become full-fledged detectives at once, there should first be
an apprenticeship assignment. Members of other divisions of the service
who show signs of special fitness for detective work — an ability to re-
member faces, a knowledge of local thieves and their habits, an ability to
get accurate information and to make coherent reports — should be de-
tailed to the detective bureau to serve as junior detectives. To require a
period of apprenticeship does not constitute a discrimination against
members of the force as compared with civilians who might be appointed
to full detective rank. The civiUans will also have had their period of try-
out in some civil pursuit. As a matter of fact, the member of the poUce
force has every advantage in securing the detective posts which do not
necessarily demand scientific training. The department affords the
patrolman his qualifying experience, while the outsider has not such op-
portunity to develop it.
Members detailed to the detective bureau from other branches of the
department should be classed as junior detectives for a period of pos-
sibly two years, during which time they should be tested and observed
as candidates for appointment as senior detectives. During this period
of apprenticeship members should receive the salary attaching to the
[72]
rank from which they are detailed. If their detective work proves satis-
factory, appointment to full detective rank may be made permanent. If,
however, junior detectives do not show themselves to be adapted to
detective work, they should be remanded to duty in uniform. This would
not be considered such a hardship as at present, for the reason that there
would be no loss in pay upon being remanded.
3. After qualifying in the period of apprenticeship or probation, as
it might be called, appointment to full rank of detective should follow.
Two years will not always suffice to prove a detective's ability, hence
provision should also be made for remanding senior detectives to uni-
formed duty whenever they do not measm-e up to the bureau's demands.
There are no soft places in detective service where the lazy or inefficient
man may be shelved. "Deadwood" can perhaps be used in posts which
involve routine duties and little initiative, but "deadwood" is a total
loss in the detective bureau. A detective should either show continuous
advancement through energetic work and the accimiulation of experi-
ence or he should be put out of the detective service altogether.
Accordingly, it is proposed that, as continuance in the detective ser-
vice presupposes fitness, automatic increases in salary should be given.
A salarj' schedule should be devised which would allow some five or six
increases, ranging from the lowest, approximately the salarj' paid to a
uniformed sergeant, to a rate equaUng that received by a uniformed
captain of police. The schedule should be so arranged that the last in-
crease should come about three years before the pension service retire-
ment.
The advantages of gi-anting salary increases to detectives without
regard to changes in rank are twofold. In the first place, it would make
the detective service a career of itself and would permit advancement
entirely on the basis of meritorious work. In the second place, it would
do away with the present situation, wherein detectives, to secure ad-
vances in rank, must compete in examinations designed to cover types of
work other than those which they have been doing. It would also do
away with the absurd practice of sending back to duty in the uniformed
force a detective who receives promotion to the rank of sergeant, with its
corresponding decrease in pay.
4. Promotion to posts of command in the detective bureau should be
made from among members of the bureau, and not, as at present, from
the uniformed force. The determining consideration to date has been the
rank — captain and inspector — desired for commanding officers of the
detective bureau. The qualification of experience has been entirely over-
looked. Wliat is wanted is not rank, but brains and ability.
[73]
5. With well-trained men in the detective bureau, under competent
leadership, constant attention would have to be given to the administra-
tive problem. After all, running a detective bureau is like running any
compUcated business: it requires an intimacy with detail and continual
follow-up, so that every individual feels the stimulus of the leadership.
In this respect the Cleveland detective bureau is conspicuously lacking
at the present time. What is needed is a man in charge who will live con-
stantly with his cases and whose guiding principle will be that no case is
settled until it is solved.
6. Members of the detective bureau should do only detective work.
They should not be detailed as clerks, telephone operators, or to guard
the person of the mayor. They should be technical men, well paid for
their abilities, and not job-holders who can be assigned to any task.
[74]
CHAPTER IX
SPECIAL SERVICE DIVISION
THE third major function of police work, crime prevention, is poorly
developed in the Cleveland department. Of course, some measure
of crime prevention work is aimed at by the uniformed force and
detective bureau as well, but we are here considering the distinctly con-
structive efforts to prevent crime — efforts that cannot be employed by
the uniformed force, the members of which must necessarily devote most
of their attention to patrolling streets in the capacity of watchmen.
Detectives are kept busy for the most part with solving crimes that have
not been prevented, although they do some preventive work. The de-
velopment of a special imit engaged in preventive work need not relieve
the members of either the uniformed force or the detective bureau of
any feeling of responsibility for taking action looking toward crime
prevention. The members of a special service division, however, should
be freed from the duties of watchmen, and should not have their time
fully occupied with the apprehension of criminals and solution of crimes
already committed. Such a division should investigate conditions that
are known to lead to the commission of crime and should become an
expert agency in handling persons who show themselves disposed to
delinquency.
Inasmuch as there are practically no special facilities in the Cleve-
land department for undertaking constructive action in preventive
work, our survey was confined to the need for such a service. The vice
squad or bureau, as now organized, is the nearest approach to a special-
ized crime prevention unit in the department. This squad is organized
as an independent unit under the direct supervision of the chief of pohce.
Two Heutenants of police are assigned by the chief to command the
bureau. Members of the squad are patrolmen who are detailed by the
chief in the same way that patrolmen are detailed as detectives. No
provision is made for recruiting directly from civil life. Members of the
squad devote considerable time to the investigation of complaints re-
ferred to the vice bureau by the chief. Some of these complaints come
from citizens and others originate with the uniformed force. These
[75]
complaints often relate to suspicious conditions which lead the com-
plainants to believe that certain premises are being used for prostitu-
tion, gambling, sale of liquor, or illegal traffic in narcotics. Sometimes
complaints are made against individuals, but in either case members of
the vice squad must get new and additional evidence of a specific viola-
tion of law repeated some time after the violation referred to in the com-
plaint. Thus, the vice bureau operatives are chiefly engaged in the
investigation of general conditions. In their effort to develop specific
charges of violation against individuals, much of their best work is done
by way of anticipating the occurrence of new violations. The very
investigations made by them often lead to an abandonment of activity
on the part of the promoters of vice. In this respect the work of the
vice squad takes on more of the aspect of crime prevention than does
the work of other divisions. The vice bureau, therefore, may serve as a
nucleus for building up a unit devoted to investigations of conditions
and individuals with a view to forestalling criminal acts.
The attitude of police heads toward the vice bureau at present seems
to be one of suspicion. The chief of poUce keeps in his office a complete
record system, which provides a check on all complaints assigned to
members of the vice bureau for investigation. Daily reports of the
vice bureau's operations are submitted to the chief and the director. No
other division of the police service submits such a report to the director.
It was not disclosed what use, if any, the director makes of these reports.
It is necessary to maintain a close check on the operatives who are sub-
jected to such unusual temptations as are met with in combating prosti-
tution, gambling, and traffic in liquor and drugs. But the chief should
not be burdened with the details of checking 30 men in the vice bureau.
Rather, he should depend on an officer of higher rank than now detailed
to the vice bureau to do the checking and hold him responsible for
general results as in other divisions of the service.
While complaints which are referred to the vice bureau cannot be
thrown out without rendering a report of action taken thereon, it is
cases that are supervised rather than the methods employed by operatives
in working on the cases. An examination of the records maintained in
the vice bureau discloses the fact that supervising officers do not keep
adequate check on the cumulative operations of the men under their
command. It would seem that too much reliance is placed on the auto-
matic check which the mere submission of supplementary reports is
supposed to afford. True, operatives are required to write up a sum-
mary of each day's work in books kept in the bureau for that purpose,
and this enables the supervising officers to tell what was done by the
[76]
men on the day's cases, provided the men are always faithful in record-
ing all cases. It does not, however, afford a means of keeping tab on
complaints which are a few days or a week old. As a matter of fact,
supervision in the vice bureau, as in the detective bureau, is conducted
on the memory basis, which is bound to be wholly inadequate in a large
department. It is simply impossible for two commanding officers to
remember the multitude of assignments given to some 30 men extending
over a period of weeks and months. It would be a laborious task to
find out, from the record now kept, how many cases or complaints A or B
is working on at any given time, or to learn from their reports what
progress has been made on the cases which they have under investiga-
tion. As a result, old cases become dead cases, and are readily lost to
the view of supervising officers in the shuffle of each day's new business.
Other Crime Prevention Units Needed
As has been pointed out, the vice bureau should comprise but one
section of the special service division, although it could well remain a
more or less independent section. There is need for the immediate
establishment of a woman's bureau, composed of not less than 10 police
women. Cleveland is the only city of over a half million population
that does not employ police women. The experience of such cities as
London, New York, Detroit, St. Louis, Los Angeles, and Indianapolis
has proved conclusively that women can perform police work of the
highest order, often in a way that cannot be equaled by men. The
Police Woman's Section should perform most of the duties now carried
on by the Cleveland Woman's Protective Association, an organization
privately financed and managed. PoHce women can do most effective
crime prevention work in the inspection of dance halls, parks, moving-
picture theaters, and other places of amusement. They can do good
work in pre-delinquency cases with incorrigible girls and boys. They
can also take under investigation the cases of adults who may possibly
contribute to the delinquency of minors. The investigation of com-
plaints of missing persons, which many times disclose runaway cases,
can often be best handled by women. Women selected for this section
of the crime prevention division should possess a strong sense of social
service, and should have the training and outlook of the type of social
worker employed by such private agencies as charity organizations, the
Travelers' Aid Society, and the Woman's Protective Association.
At the present time dance halls are being supervised by a special
unit known as the Dance Hall Inspection Bureau. This bureau is
attached to the office of the director of public safety. The dance hall
[77]
inspectors, numbering about 40 deputies or special police, are not mem-
bers of the police department. They are paid fees by the proprietors
of the dance halls which they inspect. A clerk-patrolman detailed to
the director's office assigns the inspectors and keeps a record of dance
hall permits. The dance hall inspection division should be abolished
and the work taken over completely by the police department, for the
inspection of public dance halls is a duty which cannot properly be
delegated to unofficial observers whose salaries are paid by the people
they inspect. Much of this work should naturally fall to the division
of women police.
A unit of welfare officers is another much-needed section of the
special service division. This unit may be composed of both men and
women. It should be the duty of this division to investigate the bad
home conditions that make for delinquency and cases of destitution
coming to the attention of the police. Another fruitful field of crime
prevention service that can be performed by a welfare unit is that of
giving counsel and aid to persons who are turned out of hospitals and
other institutions, and who are often unwelcome in their former homes.
Experience in other cities shows that such persons easily drift into a
life of crime. The same field of valuable service is found in deafing
with criminals who are released from institutions and prisons and thrown
on the commimity, often without opportunity for making a living in a
fair and honest way. A welfare unit should keep in touch with oppor-
tunities of employment for these persons. By helpful cooperation a
sort of protective supervision may be established looking toward the
redemption of many who would otherwise gravitate to vice and crime.
It is a fact that parents of wayward children, and many persons who
are on the verge of desperate helplessness, will frequently turn for aid
to a welfare division of the pohce service when they would not approach
the police through the ordinary channels which carry with them the idea
of repression and even hostility toward those in distress.
An excellent precedent of such a unit of welfare officers exists in the
system which Commissioner Woods established in New York during
his term of office. Carefully chosen officers were assigned to the busier
precincts of the city to ferret out conditions which seemed to be leading
people astray. This experiment did not have time to prove itself before
Commissioner Woods left office, but it illustrates the new technique
in police work for diminishing crime.
The fourth section of crime prevention service needed is a unit of
juvenile officers. Complaints of juvenile delinquency should be re-
ferred to specially selected officers, who may be chosen because of their
178]
I
peculiar qualifications as experts in handling children's cases. This
Juvenile Bureau or Section should cooperate actively with the Juvenile
Court and make many of the investigations for the court which are now
made by court probation officers. It is a police function, and the
police department should not be relieved of responsibility for performing
it. Juvenile officers should be distributed through the city by assign-
ments to precincts, although general supervision of their work should be
carried on by the special service division at headquarters. The work
of juvenile oflBcers attached to precincts in Chicago affords an excellent
example of the value of such a division. The long-established juvenile
bureaus in the Detroit and Los Angeles police departments likewise
have proved the value of employing a special unit engaged in crime
prevention among children.
All of the special activities mentioned above should be consolidated
in a single division devoted to the more constructive features of crime
prevention. One of the highest ranking officers in the ser\nce should be
selected by the director of police to head this important division. His
duty would be to survey general conditions in the city which indicate
opportunity or need for corrective crime prevention measures. He
should then see that the various sections of his division are well co-
ordinated. Although the several fields of work are speciaUzed, there
is much opportunity for active cooperation. Thus, members of the
vice bureau, in the course of their investigation of complaints of gam-
bling and sex delinquencies, run across hangers-on and idlers against
whom they may not proceed with formal charges, but who, neverthe-
less, may properly be investigated. Information regarding these
border-line cases of delinquency should be handled by the Police Wo-
man's Section, Welfare Section, or Juvenile Section, as the case maj'
warrant. Similarly, the investigations conducted by the Police Wo-
man's Division or Welfare officers will many times disclose conditions
that should be investigated by the vice bureau. It is important that
the common factors of a crime prevention program be recognized and
that the agencies carrying out such a program be closely knit together.
There should be a single head directing the development of a crime pre-
vention program in its several aspects.
Members of the special service division who are not engaged on
specific assignments should keep in constant touch with the breeding
places of crime throughout the city. Insistent police surveillance of
pool-rooms, cigar-stores having back rooms, hotels and lodging-houses,
and the other places where there is customary idling will do much to
prevent the commission of petty crimes on the spot and the hatching of
[79]
crimes to be committed elsewhere. The young criminal is a gregarious
being, and idling with bad associates is the primary requirement for
sending him or her on the road to some criminal act.
It is not necessary for the poUce to wield a club or even to proceed
with a warrant in many cases. They can, wholly within their legal
rights, so interfere with idhng that it may be largely broken up in public
places. By sending a boy home or questioning an idler or by making
many inquiries of the origin and intentions of idlers, the police can make
idling uncomfortable instead of interesting and at times profitable. It
requires groups of idlers to keep aUve the contacts of the underworld,
which show the way to traffic in drugs, liquor, and prostitution. Crimes
ordinarily produced by these associations cannot flourish when the
police are ever questioning and scrutinizing.
The importance of having a separate division recognized as the re-
sponsible agency in the department for the promotion of facilities for
constructive efforts of crime prevention cannot be overesthnated. When
such a division is established, there will be a logical place for inaugurating
new practices and experiments in social service and pre-dehnquency
activities, thus avoiding haphazard creation of a number of small new
imits which are likely to be poorly organized and inadequately super-
vised. Finally, the special service division should become the pohce
department's liaison division between schools, hospitals, and private
charitable and correctional institutions. Because of the character of
its work, such a division could readily secure a degree of cooperation
with other agencies of social service that is not now usually had by any
other branch of the police department.
It must be admitted that this whole idea is new in police work in
America, but its basic idea gives shape to the pohce work of the future.
There is as much room for crime prevention in our communities as for
fire prevention or the prevention of disease, and in this endeavor to
limit the opportunities of crime and keep it from claiming its victims the
police department must take the leading part.
[80)
CHAPTER X
THE SECRETARIAL DIVISION
THE work properly belonging to the office of a secretary of the
police department is now scattered among several offices and
divisions, with almost no coordination. There is a waste in men
employed in the various tasks relating to record keeping, filing, and
correspondence. Furthermore, the work that is being done is inadequate.
Personnel service records, payrolls, equipment, repair, and supply
records are prepared and kept in the office of the director of public
safety, and certain classes of permits, such as for dances and parades,
are issued from that office. A detective and a patrolman are detailed
there to care for a portion of the police work. Other clerks devote part
of their time to clerical work which pertains to the administration of the
fire department as well as police. All the correspondence and steno-
graphic work of the police department is done in the office of the chief
of police. One detective, two sergeants, and three patrolmen are de-
tailed to do this work. Personnel records duplicating those kept in the
director's office are also filed in the chief's office.
The bureau of records cares for the preparation and filing of pawn-
shop and lost property records, and all records relating to the license,
ownership, and identification of automobiles. In this bureau also are
filed all criminal complaints and copies of reports made by the various
divisions of the department. Six patrolmen are detailed to serve as
clerks in this bureau. There is no officer in command, the patrolmen
severally assuming responsibility for the management of the bureau
during the eight-hour period when they are on duty. The record bureau
is cramped in a small room on the first floor of the police headquarters
building. It is poorly ventilated and lighted by a single window open-
ing on a court. Records are not protected from fire. The record bureau
facilities of the police departments in Detroit, where the whole top floor
of the headquarters building is given over to the record bureau, and in
St. Louis, where an enormous well-lighted room is used for the record
bureau, are in striking contrast to Cleveland's meager facilities.
A clear duplication of record keeping is found in an office known as
7 [81]
the bureau of information, which has no organic relation to any clerical
division and no particular place in the scheme of organization. Toree
sergeants and three patrolmen are detailed to this office. Three addi-
tional men are attached to a telephone desk on another floor. These
desk officers also belong to the bureau of information. A sergeant of
poHce, known as the court sergeant, has an office adjoining the munici-
pal court. This officer keeps a record of cases presented in court and
also prepares statistics of daily crime complaints.
All of the offices mentioned above should be combined in a single
division under the management of a secretary of the department.
Civilian clerks and stenographers — most of them girls— should be
employed to do the work in the place of poUcemen. Clerks trained and
experienced in clerical duties can do the work better and at far less cost
than at present. It is absurd to employ detectives and sergeants of
pohce in activities of this kind.
The secretarial office should be organized in several sections, as, for
example, the correspondence section, the filing section, the information
desk, and the division of statistics. Combined in one bureau, all this
work which is now scattered throughout the department could be co-
ordinated in a way that would increase its effectiveness and greatly
reduce its cost.
182]
PART II
PROSECUTION
BT
ALFRED BETTMAN
ASSISTED BT
HOWARD F. BURNS
PROSECUTION
CHAPTER I
THE PLACE OF PROSECUTION IN CRIMINAL JUSTICE
Some Fundamental Assumptions
THIS division deals with the work of the prosecuting attorneys in
preparing, presenting, influencing, and controUing the case of and
for the State or city.' Naturally, it touches, on the one hand,
the work of the police, and, on the other hand, the work of the courts.
The police and courts are dealt with in other divisions of this survey, and
an attempt will be made to avoid repetition, so far as possible.
This survey began during a somewhat sensational agitation regarding
a "crime wave" in Cleveland. The people of the city seemed to believe
there was something wrong with the administration of criminal justice
in Cleveland, and blamed the inefficiency or even corruption of indi-
viduals engaged in that administration. Despite this atmospheric con-
dition, this study has proceeded upon the theory that the facts of the
situation are ascertainable and that conclusions should follow and not
precede the facts. Facts have a reforming power of their own, and there
are occasions when it is useful to gather statistics which prove the obvious.
This investigation was based upon certain fundamental assumptions.
We are here dealing with the enforcement of the criminal law by means
of the traditional methods of procedure, involving a case in the courts
with a trial of the facts and law before judges and juries, with a lawyer
on each side of the case, or, at least, each side entitled to be represented
by a lawyer, the prosecuting attorney being the attorney for the State
or city. In other words, the assumption is made that, though the treat-
ment of the offender may be increasingly regarded as a problem in
medical science or public hygiene, and the disposition of the offender
increasingly determined by means of medical, psychologic, or similar
examinations, still, for a long time to come, most cases will be treated
as involving law enforcement and administration of justice, and the
' Prosecutions for violation of State laws are brought in the name of the State
of Ohio; those for the violation of city penal ordinances in the name of the City of
Cleveland.
[85]
function of the prosecuting attorney will remain substantially as at
present. In short, the scope of this report does not include a discus-
sion of any question of abolishing the prosecutor: it seeks to appraise
the success with which the prosecutor is performing the task assigned
to him.
The American political and constitutional sj'stem will also be as-
sumed. This study does not aim to go beyond practical suggestions for
the improvement of the administration of justice which are easily avail-
able to Cleveland without any fundamental changes in either the pohti-
cal or social system or the treatment of crime.
The System in Outline
Criminal justice in Cleveland is administered mainly in the Court
of Common Pleas of Cuyahoga County and the Municipal Court of
Cleveland. Prosecutions before grand juries and county courts are in
charge of the prosecuting attorney of Cuyahoga County; those in the
Municipal Court are conducted by the prosecuting attorney of the
Municipal Court. The records show that about 10 per cent, of the
county cases originate in the grand jury and these involve no work
of the municipal prosecutor. No record is made of matters which
are presented to the grand jury but in which no indictment is
found, and these matters involve no official work on the part of the
municipal prosecutor. About 4 or 5 per cent, of the cases reaching the
county courts, and included in the statistics contained in this report
concerning county cases, arise in territory within Cuyahoga Count5''
but outside of the city of Cleveland, and therefore beyond the jurisdic-
tion of the Municipal Court or municipal prosecutor of the city of
Cleveland. The remaining cases fall within the jurisdiction of the
Municipal Court of Cleveland and are in charge of the municipal prose-
cutor of that city. The facts and statistics here set forth concerning
that court and prosecutor relate to these cases.
Jurisdiction over the accused is obtained by arrest. The arrest
may precede the making of the charge and the warrant of arrest, as,
for instance, in the case of an arrest made by a police officer who is
present at the commission of the offense and makes the arrest upon the
basis of what he himself sees. Or the arrest may follow the affidavit
setting forth the charge and the issuance of the warrant thereon. In
"either event the case is placed on the docket of the Municipal Court,
where the case is either dropped or given a preliminary hearing or tried.
Basing the classification upon jurisdiction of the courts, the cases
may be divided into three general classes:
[86 1
1. Charges of violation of a municipal law or ordinance; that is, municipal
ofTenses, in which the trial of the case itself and the final sentence in the case
take place exclusively in the Municipal Court.
2. Cases involving violation of State statutes of a minor degree, that is,
state misdemeanors, where the Municipal Court is given the jurisdiction of a
minor State court.
3. Violations of State law, where the offense involved is more serious and
the sentence of imprisonment in the State penitentiary or other State penal
institution is allowed — that is, state felonies. In these cases the Municipal
Court acts as the court of preliminary examination to determine whether suf-
ficient basis of fact exists for any further proceeding. The case, however, is not
tried in the Municipal Court, but is tried by and judgment rendered by the
Common Pleas Court.
All three classes, therefore, involve a hearing of a more or less final
nature by the Municipal Court. In all proceedings in this court the State
or city is represented by the prosecuting attorney of the Municipal
Court. This official belongs to the department of law of the city of
Cleveland, being appointed by the Director of Law, and, theoreticaDy
at least, his assistants are also appointed by the Director of Law. Con-
sequently, in all cases the work of the municipal prosecutor chrono-
logically precedes the work of the county prosecutor, and the hearing
in the Municipal Court chronologically precedes the proceeding in any
other court.
Prime Importance of Municipal Court and Prosecutor
In setting down the facts regarding the administration of criminal
justice in Cleveland, therefore, the description of the work of the muni-
cipal prosecutor and Municipal Court naturally comes first in order.
This order of precedence, however, is justified on deeper and more sig-
nificant grounds than mere chronological sequence. For, though the
public is not always conscious of it, the police court or criminal branch
of the Municipal Court and the officials who conduct its work are the
most important of all the tribunals and officials engaged in the admin-
istration of justice in any community, especially where, as in Cleveland,
the municipal prosecutor has charge of the early stages of State cases.
He has the function of deciding in the very beginning whether any
criminal proceeding be brought at all, and in most cases, even where
an arrest has been made, it is the municipal prosecutor who has the
responsibility of sifting out at the start the cases which justifj^ subjecting
a person to the pains and penalties of prosecution. When we come to
observe the mere volume of criminal cases in Cleveland and the bear-
ing of that voliune on the possibilities of eflficient administration, we will
[87]
realize the importance of the municipal prosecutor as a sifter of the
material to go into the mill.
Moreover, the office of the municipal prosecutor and the Municipal
Court are the points of contact with the administration of justice of the
overwhelming majority of the inhabitants who come into any contact
with courts and court officials. There the great bulk of the population
receives its impressions regarding the speed, certainty, fairness, and
incorruptibility of justice as administered. For law to be effective there
must not only be justice, but also the appearance of justice — that
truism requires no elaboration. As a deterrent of crime, the Municipal
Court is more important than any other of our institutions with the
possible exception of the police force.
The work of the municipal prosecutor may not end with the Muni-
cipal Court, for if the case, being a municipal or a state misdemeanor
case, is tried by the Municipal Court and results in a judgment or con-
viction and sentence, the defendant may carry the case up on error to
the Com't of Appeals. Proceedings in error of this nature involve the
same sort of questions as in civil cases — that is, the appellate court
simply hears arguments upon questions of law and decides the case in
the light of the arguments and the record of the hearing in the Muni-
cipal Court. Some cases may be carried to the Supreme Court of Ohio.
The presentation of the citj-'s or State's side of these appellate cases is
in charge of the municipal prosecutor.
Where, however, the Municipal Court acts simply as a court of
preliminary examination, — binding the defendant over to the grand
jury, — then from that moment the charge of the State's case falls
within the jurisdiction of the county prosecutor. It becomes the
province of the latter official to present the case to the grand jury,
and if the grand jurj' finds an indictment, to try the case before
the trial court and jury. Cases which do not come up from the Muni-
cipal Court but are initiated in the grand jury are in charge of the
county prosecutor from the beginning. He has the opportunity, within
certain limitations, at any stage previous to the verdict of the trial
jury, to drop those cases which he deems insufficiently pioven to justify
any further proceeding. Consequently, from the binding over of the
accused to the grand jury or the initiation of the case there, the obser-
vation of facts and data will relate to the grand jury and the county
courts and office of the prosecuting attorney of Cuyahoga County (which
official, for purpose of abbreviation, we shall henceforth call "county
prosecutor"). He is an elected official, and, theoretically at least, ap-
points his own assistants.
[88]
CHAPTER n
CASE MORTALITY
The Story Told by Statistics
NATURALLY the fii'st questions for the survey are: What is the
number of criminal prosecutions in Cleveland? What are the
different stages through which they go? What are the different
points at which they may be successful or lost or dropped or disappear?
What are the different steps at which the capacity or incapacity, the
honesty or corruption of the prosecutor, may play a part? What has
actually been the result of the work of the offices of municipal and
county prosecutors in Cleveland?
The answers to these questions have been sought objectively by
means of a representative body of statistics. These tables of statistics
will be permitted largely to tell their own story. In reading such sta-
tistics and drawing conclusions therefrom, we must necessarily formulate
more or less consciously some standard or measure of efficiency and
success. The acquittal of an innocent man obviously cannot be treated
as a failure in the administration of criminal justice, however disap-
pointed the prosecuting attorney may have been about losing the case.
If at any stage of a case, and after thorough investigation, the prosecute
ing attorney becomes conscientiously convinced that there is no proof
of crime, it is his duty to "nolle" the case. Such a "nolle" is not
a failure in the administration of criminal justice. There may have
been inefficiency somewhere along the line which resulted in the neces-
sity of a "nolle," and acquittal may have been due to inefficiency in
preparation of the case and not to the innocence of the accused. The
more highly efficient the preparatory steps and preliminary stages, the
less likely will be the necessity of trying cases against innocent men
or ill-prepared cases against guilty ones. Consequently, a high per-
centage of cases which fail at various stages is an indication of some-
thing wrong in earUer stages. Statistics of the results of cases, there-
fore, while perhaps not capable of exact interpretation, do furnish
significant indication of the efficiency of the system.
[89]
For the purpose of answering these questions there have been gathered
from the records of the Municipal Court all data shown by these records
for the years 1919 and 1920. Owing to the enormous number of cases
(23,776 cases on the docket in 1919, and 26,579 in 1920), it was deemed
impossible to tabulate all the cases for those two years. Consequently,
every tenth case was taken,' without any other basis of selection. These
years are chosen because they were the last two full calendar years pre-
ceding the survey. In both of these years the political complexion of
the office of the municipal prosecutor was Republican. To have in-
cluded a Democratic administration of that office would have required
going back as far as 1915 and an analj'sis of the records of the court
for at least six years, a more extensive period than was deemed neces-
sary for the study of existing conditions.
From the records of the Common Pleas Court were taken complete
data, as disclosed by those records, regarding all criminal cases appear-
ing in that court for the first time during the calendar year 1919. Too
late for changing the tables, it was discovered that about 100 cases of
1920 had been included. As cases are not analyzed from the point of
view of the date of their appearance in the court, this addition merely
increases the volume of cases, and does not invalidate any conclusions.^
Included in the material collected about each case are: the facts about
it in the examining courts; its history in the Common Pleas Court and
the Court of Appeals down to April 1, 1921.
In 1919 and 1920 the county prosecutor's office was Democratic.
Since January, 1921, it has been Republican, with a complete change of
personnel. Naturally, there is a considerable proportion of cases which
began in 1920 and have run over into 1921, so that these cases have
been in charge of successive administrations of opposite politics and of
entirely changed personnel. For this reason it was deemed advisable
to choose 1919 as the year for analysis, as that is the last full year in
which it is possible to trace the full history of the majority of a year's
cases within a single administration.
' The total number of cases appearing in our statistical study of the Municipal
Court for 1919 and 1920 is somewhat less than one-tenth of the total cases (50,355).
This is due to the fact that the system of filing makes the number of "cases" less
than the number of persons: 50,355 is the total number of persons handled by the
court. The clerks who copied the data from the files were instructed to take every
tenth "case" by the file numbers — hence the discrepancy.
* The last of these extra cases was entered in the Common Pleas Court January
15, 1920.
[90]
The Mortality Tables
We are calling certain of the results of these studies the "Mortality
Tables," because thej' show the mortality of the cases at their various
stages. Accompanying the tables are diagrams which show in a more
easily comprehended manner the relative quantities of the more im-
portant types of dispositions. Table 1 gives the statistics concerning the
results and dispositions of the city misdemeanor cases; Table 2 gives
these statistics concerning the state misdemeanor cases — that is, State
cases which arc ultimately decided or final judgment therein rendered
in the Municipal Court, though the case might have included appellate
proceedings in an appellate court. Table 3 gives these statistics regard-
ing state felony cases, showing the results thereof in the Municipal
Court, before the grand jury, and in the Common Pleas Court, where
felony cases are finally tried and where sentence is imposed.
TABLE 1.— MORTALITY TABLE OF CITY MISDEMEANOR CASES,
1919-1920
Number
Number
of cases
Per cent,
of cases
Per cent,
of cases
of cases
remammg
remammg
Total
1,832
100.00
Unknown disposition
4
1,828
0.22
99.78
Discharged
232
1,596
12.66
87.12
"No papers"
27
1,569
1.47
85.65
Nolle prosequi
141
1,428
7.70
77.95
Dismissed for want of prosecution
Other dispositions; no sentence
8
1,420
0.44
77.5i
Found guilty; total
(1,420)
(77.51)
Plead guilty
813
607
44.38
33.13
Plead not guilty
598
9
32.64
0.49
Plea unknown
9
0.49
Execution, Suspension, and Mitigation of Sentences
Number
Per cent.
Total found guilty
1,420
Sentence unknown
8
Sentence known
1,412
loo.bb
Sentence executed '
768
54.39
Sentence wholly suspended
386
27.34
Sentence mitigated
258
18.27
' "Sentence executed," in this table and in the other tables in this report, means
sentences which the trial court itself did not suspend or mitigate. It does not mean
that the number of sentences indicated were necessarily carried out. The figures in
these tables were taken from court records and have not taken into account any
action of the executive authorities in the exercise of executive clemency, such as
pardon or commutation, or of the acts of paroling prisoners from penal institutions.
1911
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[92]
TABLE 2.— MORTALITY TABLE OF STATE MISDEMEANOR CASES,
1919-1920
Number
Number
of cases
Per cent,
of cases
Per cent,
of cases
of cases
remammg
remaining
Total
1,953
100.00
Unknown disposition
20
1,933
1.02
98.98
Discharged
308
1,625
15.77
83.21
"No papers"
19
1,606
0.97
82.24
Nolle prosequi
89
1,517
4.57
77.67
Dismissed for want of prosecution
87
1,430
4.45
73.22
Other dispositions; no sentence
8
1,422
0.41
72.81
Found guilty; total
(1,422)
(72.81)
Plead guilty
812
6i6
41.58
31.23
Plead not guilty
577
33
29.54
1.69
Plea unknown
33
1.69
ExECTjnoN, Suspension
, AND Mitigation op S
ENTENCES
Number
Per cent.
Total found guilty
Sentence unknown
Sentence known
Sentence executed
Sentence wholly suspended
Sentence mitigated
1,422
14
1,408
743
372
293
100.00
100.66
52.77
26.42
20.81
What Becomes of Felony Cases
Table 3 requires further explanation. That portion which is marked
"A" is a tabulation of the disposition of felony cases in the Muni-
cipal Court, and is taken from the record book known as " Execution
Docket" for the period approximately identical with the year 1919,
which is the period for which the tabulations of results in the county
court were made. The percentages are based on the whole number of
felony cases in the Municipal Court in that period, namely, 3,927.
That portion marked "B" is the analysis of results in the Common
Pleas Court, as shown by an actual tracing of every case in that period.
As the cases include those which originated in the grand jury and those
which originated in magistrates' courts outside of Cleveland proper, the
number is greater than the number of felony cases in the Municipal
Court of Cleveland. Column 3 represents the percentage of each type
of disposition based on all the cases in the county court, namely, 3,236.
We cannot assume that the cases bound over in 1919 by the Municipal
Court correspond with absolute identity with the bound-over cases
[93]
which were disposed of by the county court in the same period. In
view, however, of the fact that the bound-over cases constitute so pre-
dominant a proportion of the cases in the county court, it is fair to
assume that the 2,901 bound-over cases received approximately the
same percentage of dispositions as were found to have been received by
all cases in the county court. The percentages, calculated on the basis
irjNICIFAL COURT
100 CASKS
4 guilty of lefiBer
offenpe or dlamloeet:
L2 discharged
as net guilty
10 n&lled and
"no paper*"
74 tcund over
to GranS Jury
74 Cases
bouid ov-er
7 otherwiee dlepceo;
of without eentence
16 no Mil
by
Grarji Jury
9 nolled ty
prosecutor
5 acfiulttod by Ju.17
37 guilty
and sentenced
37 SENTENCES
6 sentences
suspended
29 sentensee
«x»aut0d
29 SSOTESCES
7 IraprlBomant
In KOrlchouia
15 ImprlBoniMnt
In penl tentlary
or rtfonsatorj
Diagram 3. — What happened to each 100 felony cases beginning in the Municipal
Courts, 1919
of this assumption, are set forth in column 5, each percentage being based
on the whole number of cases originating in the Municipal Court. For
instance, take the item "nolle prosequi on all counts." As shown in
column 3, 12.33 per cent, of the cases received this disposition. As Part
A shows, 73.87 per cent, of the felony cases in the Municipal Court are
194!
TABLE 3— MORTALITY TABLE OF FELONY CASES, 1919
1
2
3
4
Percent.
5
6
Per cent.
Num-
Percent.
of cases
Percent.
of cases
Num-
ber
ofcaaes
ber
of cases
remain-
of cases
remain-
of CAses
Common
ing
Muni-
ing
re-
Pleas
Common
cipal
Muni-
main-
Court
Pleas
Court
cipal
ing
base
Court
base
Court
base
base
A. In the Municipal Court
Total
3,927
100.00
100.00
Discharged
483
3,444
12..30
87.70
"No papers"
70
3,374
1.78
85.92
Nolle prosequi
312
3,062
7.95
77.97
Dismissed for want of
prosecution
57
3,005
1.45
76.52
Other dispositions not re-
sulting in sentence
24
2,981
0.61
75.91
Charge reduced ; total
(80)
(2.04)
Plead guilty; sentenced
45
2,936
1.15
74.76
Plead not guilty; sen-
tenced
18
2,918
0.46
74.30
Plea unknown
17
2,901
0.43
73.87
Bound over
2,901
B. In the Common Pleas
Court
Total
3,236
100.00
73.87
73.87
No bill
697
2,539
21.54
78.46
15.91
57.96
Nolle prosequi on all counts
399
2,140
12.33
66.13
9.11
48.85
Nolle prosequi after new
trial is ordered
13
2,127
0.40
65.73
0.30
48.55
Nolle prosequi after jurj'
disagreed
6
2,121
0.19
65.54
0.14
48.41
Acquitted first trial
223
1,898
6.89
58.65
5.09
43.32
Acquitted second trial
5
1,893
0.15
58.50
0.11
43.21
Nolle prosequi, convicted
or in prison on other
charges
84
1,809
2.60
55.90
1.92
41.29
Discharged on demurrer
5
1,804
0.15
55.75
0.11
41.18
Discharged on motion to
discharge
10
1,794
0.31
55.44
0.23
40.95
Discharged for want of
prosecution
16
1,778
0.49
54.95
0.36
40.59
Bail forfeited or never in
custody
90
1,688
2.78
52.17
2.05
38.54
Miscellaneous dispositions
resulting in no sentence
92
1,596
2.85
49.32
2.10
36.44
Convicted of misdemeanor
74
1,522
2.29
47.03
1.69
34.75
Original plea guilty of les-
ser offense
22
1,500
0.68
46.35
0.50
34.25
Changed plea not gmltv
to plea of guilty lesser
offense
193
1,307
5.96
40.39
4.40
29.85
Original plea guilty of
offense charged
433
874
13.38
27.01
9.88
19.97
Changed plea not guilty
to guilty of offense
charged
550
324
17.00
10.01
12.56
7.41
Convicted of felony
293
31
9.05
0.96
6.69
0.72
Miscellaneous combina-
tions of pleas; sentenced
17
14
0.53
0.43
0.39
0.33
Other dispositions; sen-
tenced
14
0.43
0.33
Sentence executed, 78.11 per
cent.
Senten
ce suspen
ded, 21.SE
per cent.
95
bound over. If 12.33 per cent, of these are later "nolled," it follows that
the percentage of all felony cases originating in the Municipal Court
(3,927) which are ultimately "nolled" by the county prosecutor after
they are in his charge is 73.87 per cent, of 12.33 per cent., namely,
9.11 per cent. — which is the figure found in column 5. The item
"Miscellaneous dispositions resulting in no sentence" includes disposi-
In the
Municipal Court
MISDmEjOiORS
In tin
Cvanon Pleas Court
58 plea4
guilty
42 plead
not guiltjr
14 plead guilty
of leaser
of f enae
27 made original
plea guilt/ of
offense charged
35 chan^d plea
fran not guilty
to guilty
24 plead not
guilty and
vere convicted
Diagram 4. — How each 100 sentenced defendants pleaded
tions such as abatement by death of defendant, commitment of de-
fendant to a non-penal institution, dismissal of case on demurrer, etc.,
in which the case was neither tried nor dropped by the prosecutor.
Supplementing these tables and diagrams is Diagram 4. It shows
the number of each kind of plea made by those sentenced. All the mis-
demeanor cases are lumped in one column, because the difference be-
tween city cases and State cases in respect to pleas is very sUght.
[96 1
CHAPTER III
THE MUNICIPAL COURT IN OPERATION
THE Municipal Court forms the stage upon which the municipal
prosecutor plays his part. He can play this part well only if the
settings permit. The orderliness and dignity or the disorder-
liness and slovenliness with which the court itself proceeds necessarily
affect the prosecutor's work, and his work, in turn, reacts upon the
court.
On March 23, 1921, the writer of this report watched one of the
rooms of the Municipal Court in operation. There was no malice afore-
thought in the choice of room or day. Immediately after the visit the
following memorandum of impressions was made :
"I spent the whole morning in this court-room, arriving promptly at 9.'
There was as yet no evidence that any court would be held that day, except the
docket book lying open on the table and a few stragglers in the spectators'
benches. It was fully 9.30 before the judge appeared and fully 9.45 before he
got under way. By that time all the seats and aisles were filled with people —
policemen, defendants, lawj'ers, spectators. The atmosphere of the room was
extremely sordid. It was a room about 40 feet square, walls painted in an ugly
yellow, made still more ugly by accumulated soot, and no decorations of any
kind whatever. Though I sat within 15 feet of the bench and witness-chair and
strained my ears, I could seldom catch a word of what was going on. From the
beginning to end the whole proceeding seemed to me one calculated to impress
the spectator with at least the suspicion that the main influence at work was not
• The rules of the Municipal Court of Cleveland on the subject of sessions of
court provide:
"The sessions in the civil branch of this court shall be from 8 o'clock a. m. until
11 o'clock A. M.. and from 12 o'clock m. until 3 o'clock p. m., central standard time,
on each week-day, except Saturday, when the session shall be from 8 o'clock a. m.
until 11 o'clock a. m., central standard time; and the sessions in the criminal branch
of this court shall be from 7.30 o'clock a. m. until 11 o'clock a. m., and from 12.30
o'clock p. M. until 3 o'clock P. M., central standard time, on each week-day, except
Saturday, when the session shall be from 7.30 o'clock a. m. until 11 o'clock a. m.,
central standard time."
8 [97]
the evidence or judicial procedure as we know it, but either strange influences
not audible in the court-room or things that were whispered into the ear of the
judge.
"The cases are called by number, with only occasionally the name of a
defendant also added. The witnesses are sworn by a form of oath which identi-
fies every case under the expression 'pending case,' without reference to either
the number or the names of the defendants. The prosecutor had no papers
whatever. He lolled against the bench. For each case he was handed a copy
of the affidavit and that is all he ever looked at. He took a glance at the paper
to ascertain the nature of the case. He then mumbled something to the judge,
whereupon the case was often announced as 'continued' or 'no-papered' or a
light fine or sentence given. Other times he called the police officer or other
chief prosecuting witness and mumbled some question which started the witness
off, and generally that was the full extent of the participation of the prosecutor.
"In a few cases the attorney for the defense took part in the interrogation.
Generally, however, he seemed to simply wander and stand around, mysteriously
going in and out, sometimes approaching the bench, sometimes going to the
benches and talking to somebody, and every once in a while somebody would
go up and whisper something into the judge's ear. Seldom were all the witnesses
sworn in any case actually called to the stand.
"While this mumbling and whispering were going on in the immediate %'icin-
it3' of the bench, the main aisle leading in from the door into the court-room and
to the bench was the scene of constant goings and comings. It was never quiet
a second. Walking around, standing around in groups, mo\'ing around hither
and tliither, went on constantly. Not only was it impossible to hear what was
going on in the trial, but it was generally impossible to see what was going on.
One or two well-tried — that is, bj^ the defense — and well-fought — that is, by the
defense — liquor cases were the only exceptions to the above picture."
In order that we might get the picture as seen b}^ a more highly-
trained observer, an experienced newspaper reporter, but one whose
work had not previously included a police court, was asked to observe
these criminal rooms of the Municipal Court in action. He reported:
"On the morning and afternoon of April 8 and on the morning of April 9, 1
visited the court of Judge A in Room 2 of the Police Headquarters Building, and
the court of Judge B in Room 1 of the same building, for the purpose of obser\'ing
as closely as possible the details of the handling of cases.
"Judge A's court was by far the more objectionable. The cn\ironment is
anything but conducive to respect for the law. The room itself is inexcusably
dirty, dark, and noisy. From the four doors there is a constant stream of
visitors, witnesses, court attendants, probation officers, and attorneys filing
around the edges of the room.
"The confusion is enhanced by the way in which cases are conducted. The
witness-stand is but a few feet from the seat of the judge, so that whatever
[9S1
questioning is going on is inaudible 10 feet away. Reporters who are 'covering'
the court arc forced to lean over the back of the witness-chair in order to hear.
It is easy to see why newspapers often get court reports mixed up.
"At many times during the trying of cases there were as many as 40 persons
gathered closely around the witness-stand or within 10 feet of the bench. Thi.s
gathering was not confined to those persons taking part in the case under con-
sideration, but consisted largely of attorneys waiting for their own cases to be
called. There was no method of distinguishing prosecutors from witnesses or
attorneys from prisoners.
"A large part of the day was taken up by conversations which went on in
undertones between the judge and attorneys or prosecutors. These conversa-
tions had largely to do with pleas for continuance or excuses for the non-appear-
ance of clients. If these conversations constitute part of the dispensing of
justice, no one except the parties conversing could tell.
"The only case in which I was able to get any detail was that of a man
named Fred Meyer, who, it seems, should have appeared in court to face a
charge of violating the traffic ordinance. Apparently he had been summoned
for the day before (Friday) and had not appeared. After questioning the attor-
ney who represented Mr. Meyer, Judge A mentioned something about contempt.
The attorney left the bench but returned a few minutes later and pleaded for a
closing of the case, saying he would take the blame for the non-appearance of his
client. The judge smiled and pronounced a sentence; I believe it was $10 and
costs.
" Non-appearances seemed to be in fashion at this court. In at least a dozen
cases neither the accused nor the policemen nor detectives were present at first.
The cases were called again and again, some of them being heard with part of
the witnesses present, others apparently going by default. I did not hear the
judge order a single person brought in or mention 'contempt' once. He may
have done so, but if he did, it was in a whisper.
"Frequently Judge A was conversing with the clerk or some other person
and was not in a position to hear the evidence being brought out. At all times
he was conducting cases in a spirit of complete boredom.
"Prosecution of cases was conspicuous chiefly by its absence. Nine-tenths
of the questioning of witnesses was done by the attorneys for the defense. The
prosecutor was present during part of some cases and absent during all of some.
In not one case which I observed was he present at a complete trial. His chief
function seemed to be to assist the bailiff in rounding up witnesses and in inform-
ing the judge of facts regarding the cases which the blotter did not show. This
lack of prosecution was so obvious it was almost laughable.
"Swearing of witnesses was done in most cases, though not in all. I saw no
attempt to manhandle or intimidate the foreigners who thronged the court. The
treatment accorded them was courteous on the whole. In fact, a spirit of levity
was reached in some of the cases. There was a total lack of dignity in all.
"Judge B's court was much more dignified, despite his habit of repeating
[09]
the question — 'how much money has the prisoner got?' — before pronouncing
sentence. He asked this question mostly in cases where men had been given
time in which to pay large fines and had been brought back for failure to make
good. On being informed (correctly or otherwise) of the status of the prisoner's
pocket-book, the judge then reduced the fine in practically every case.
"After one such case, in which the fine had been reduced from $300 to $150,
the judge jokingly asked the attorney who had represented the prisoner how
much he got out of the man. ' One hundred doUars,' said the attorney, and they
both laughed.
"On the whole, Judge B's court was somewhat impressive. The court was
more open as to conversation, and the judge attempted to impress on the
prisoners the seriousness of their position. Judge A took no pains to say any-
thing to the prisoners.
"There was less crowding around the bench and less conversation than in
A's court. In both there was much delay in getting cases started because of
missing witnesses."
A description was also requested from a capable Cleveland attorney
sufficiently familiar with the Municipal Court to be able to interpret
many things which might puzzle the lay spectator. He reported:
"To anyone who has seen the criminal branch of the Municipal Court,
commonly called the police court, in operation, it is obvious that an observer
can secure only the most superficial information unless he were to spend at least
ten days continuously in that court. Confusion reigns supreme, and the tramp-
ing of witnesses and spectators back and forth across the court-room, together
with the frequent rapping of the bailiff for order, are interruptions which are all
too frequent, especially in view of the fact that the proceedings are usuallj' con-
ducted in very low tones. The usual number of spectators who apparently
have no business in police court but who are always there and who are reputed
to represent various lawyers appearing there, are to be found in both court-
rooms every day.
"On Tuesday, April 26, at the morning sessions, the following incidents were
noticeable: In Room 2, Judge A presiding, the court opened about 9.05 and
immediately proceeded to hear cases, principally of traffic violations, without the
presence of a prosecutor in the room. Most of these cases were disposed of very
quickly by hearing the brief statement of the traffic officer and the defendant
himself — fines usually running $5.00 and costs. About 9.45 Prosecutor Novario
entered and, after advising the court that two cases were 'nolled,' proceeded to
conduct the prosecution. Throughout the proceedings there was considerable
banter exchanged between the court and the prosecutor, usually with reference
to liquor law violations, with such remarks as, 'What were you drinking, coal
oil or gasoline?' 'Can you tell us where you got that stuff?' 'Must have been
drinking a liigh explosive,' and other remarks of a similar nature. First question
addressed to witnesses for either prosecution or defense was usually, 'What
[100]
I
happened in this here case? ' No trouble was taken to ask any of the witnesses
their names or whether or not they had seen the incident. In other cases,
involving traffic violations, the first question asked by the prosecutor was,
' What do you want to do, kill everj'body in Cleveland? ' and in other cases it
was, ' What do you mean dri\'ing a million miles an hour on the street? ' It was
observed in this court-room that several witnesses testified without being sworn
and to others the oath was administered in such a manner that they probably
had not the slightest idea what proceeding was taking place.
"In Court-room No. 1, Judge B presiding, Prosecutor Russick was observed
not to have asked any of the witnesses any questions until the latter part of the
morning, when Case No. 37, Harry Wright, cited for contempt of court, came
on and then there was an argument between Prosecutor Russick and Attorney
Day on a motion in this case. At no other time during the proceeding did
Prosecutor Russick question any of the witnesses, with the single exception of
Case No. 59, which was heard about 11.15 a. m., and in this case the prosecutor
questioned the first witness, who was an incompetent witness because of the
fact that he had not witnessed the act itself. The examination of the other
witnesses in this case was conducted by the court, and defendant eventually
fined S50 and costs. Prosecutor Russick then sat down at the trial table and
proceeded to read a book, when Case No. 57 was called. This was a case in which
Joseph Sklarski was arrested at the instance of his landlady, with whom he
had boarded for one year, on the charge of assault. Neither the prosecuting wit-
ness nor the defendant spoke English, and the defendant was asked by an inter-
preter if he plead guilty or not guilty, without having the charge translated for
his benefit. The interpreter then addressed the court as foUows: 'Judge, he
says that he pleads guilty but he wants a continuance to get a lawyer.' The
court then made some inaudible remark, and in a louder voice told the inter-
preter to put the prosecuting witness on the stand. She then gave her testimony
and the defendant was called to the stand. He testified, and without further
testimony the court sentenced him to six months and $200 fine and costs, and
he was hurried out of the court-room in spite of the fact that he protested that he
wanted a chance to get an attorney. Throughout the proceeding in this case
the prosecutor sat at the trial table reading."
The next observer was an able Cleveland lawj'er whose experience
enabled him to know "who's who" in the police court. He was asked
to observe especially the part played in the drama by the habitues of the
court. He reported : (Except in the case of prosecutors, fictitious names
are used.)
" To report everj-thing that goes on in the criminal branch of the Municipal
Court of Cleveland, generally referred to as the police court, is an impossibility
for one man. To do so it would require the ability to see in all directions at the
same time and to hear what was said in every part of the room, and in addition
insight into the mental workings of any number of individuals who are present
[101]
and who operate in such a manner as not to be discerned either by the sense of
sight or hearing. This last type has in most instances got in its work outside of
court hours and is present merely for the purpose of seeing that promises are
fulfilled or to convince those for whom they are working that they have had some
part in the accomplishment or services rendered.
"The following account is a rough sketch of observations made at the session
of police court on Friday morning, AprU 22, 1921:
"I arrived at the Central Police Station about 8.45 and found the persons
who are in attendance at the court beginning to assemble; a number were
gathered around the bulletin board containing the names of about 150 defendants
whose cases were on for hearing on that day. Some of the attorneys who had
considerable practice in police court were busy interviewing witnesses and con-
ferring with prosecutors and clerks. I noticed particularly Fred Smith' con-
ferring with Frank Brown, the last-named person not being an attorney, and to
my knowledge has for six years been a runner for Thomas Jones, an attorney.
Frank Bro\\Ti still seemed to be at his regular business of interviewing witnesses
and soliciting business for Thomas Jones. Also I saw present in the hallway lead-
ing from the clerk's office to the court-rooms Louis Napier, who is not an attorney
and who is a brother of one of the prosecutors. I did not see him in conference
with any indi\'idual during the whole morning, but during the first hour and a
half of the session of the court he passed through the back of court-room No. 1
on his way to court-room No. 2 no less than half-dozen times, and I am advised
by one who is in attendance at the court most every day that he is present
every day.
"Frank Brown was also busy about the court-room practically all morning,
either in Room 1 or Room 2, and conferred with Thomas Jones and Fred Smith
on numerous occasions, and such conferences were apparently acquiesced in and
unnoticed by the judges, prosecutors, and clerks. Frank Brown was also seen
a number of times in the hallway leading to Court-room No. 1, and also in the
hallway of Rooms 1 and 2 in conference with persons, but I was unable to hear
what was said as the conversation was carried on in a very low tone.
"I have gone into details somewhat at length with regard to these two
examples of pohce court hangers-on, and have referred to them merely as an
example of a number of such persons who are present morning after morning in
police court, but who are not attorneys and who apparently have no business
there and who are not engaged in any regular occupation, but who somehow or
other make their living out of such attendance.
" By 9 o'clock the seats in Room 1 were about two-thirds full of witnesses and
defendants and those awaiting hearing, and upon the appearance of Judge B,
the bailiff thumped three times on the desk with his gavel and called the court
to order. This was followed by the clanging of the door of the bull pen where
' A lawyer practising habitually in this court and partner of Thomas Jones, a
more prominent habitual practitioner in this court.
1102]
the prisoners are kept. The court officer then led out into the court-room three
defendants who were designated by numbers only, such as Cases 71, 72, and 73.
The clerk then read the charge in a monotone voice, and asked the question,
'How do you plead?' There was a nodding of heads by the defendants, all of
whom pleaded guilty apparently. The judge then motioned to one of the
defendants to take the stand, he asked him a few questions, and then said a few
words to the other two parties. Finally he WTote something on the docket and
the three men were led back into the bull pen. I should have stated that by this
time William Gardner and Mr. Chester' had seated themselves at the trial table,
and Smith, Jones, and others had assembled and stood around the witness-chair
listening to the testimony, but apparently having no other interest in the cases.
Prosecutor Russick stood by the witness-chair up until intermission at 10.30,
but only in one of the hearings took any part in the prosecution, the judge mak-
ing all inquiry of witnesses and handling the cases without the assistance or
interference of the prosecutor. I sat on the front bench in the court^room, where
witnesses and spectators are seated, about 10 to 20 feet away from where the
trial was going on, but was unable to hear anything that was said. I would have
been unable to comprehend what was going on except for the fact that my experi-
ence there has enabled me to know bj' seeing just what is being done.
"Tramping was so continuous and so loud that persons seated in Court-
room No. 1, not being able to hear any of the proceedings, passed the time away
talking with one another. This added to the general hubbub. PoUcemen wait-
ing to testify as witnesses also felt at liberty to keep up a continuous conversa-
tion with whoever was sitting next to them, usually another policeman. During
the session of the court from 9 to 10. 30 the court, bailiffs, and prosecutors went
ahead with their work regardless of the noise that was going on around them.
At no time was anything said to bring order or to impress the assembled crowd
as to the dignity of the whole proceeding.
"To give an example, the conduct of a specific case: Two negro girls were
called before the clerk and charged with street soliciting. Jones was representing
both of these women, and the two defendants, together with Prosecutor Russick
and Attorney Jones, immediately gathered in front of the desk of the judge. A
pKjlice officer took the stand and immediately about 18 persons gathered around
the witness-stand and within a few feet of the witness and the defendants and
leaned forward to catch what the police officer was sajing. About half of these
were attorneys. The prosecutor did not assist in the prosecution, except to ask
the police officer to get off the stand. The judge then asked another police
officer as to his testimony, and upon being advised that it was exactly like the
officer who had testified, proceeded no further, and the State's side of the case
was considered as complete. Jones apparently was satisfied with the State's
side of this case. The judge then leaning over his desk spoke to the larger of
the two defendants without having her take the witness-chair and inquired what
' Two colored lawyers and politicians.
[103]
she was doing down on Hamilton Avenue, completed the cross-examination him-
self, and also conducted the cross-examination of the other defendant, and the
prosecutor apparently not resenting this assumption of his duties by the court,
in fact, appearing to feel somewhat relieved that the judge saved him his addi-
tional labor. A probation officer then volunteered some information to the court
regarding both of these defendants, and from a card indicated that one of the
women was on parole and had violated her parole. The court gave the smaller
of the women a sentence of thirty days, at which Jones protested very vigorously,
and leaning over the desk assumed a confidential air with the judge and at^
tempted to pour into his ear a story that would procure a lighter sentence for his
client. The smaller of the two defendants was committed to jail and the other
one given a suspended sentence.
"I omitted to mention the fact that City Councilmen Green, Walter, and
Temple were present in court a great part of the morning. Councilman Green
was seated at the table in Room No. 1 from about 9.30 to 10, and was seen
repeatedly 'kidding' a police officer who had a package under his arm, which
officer I later learned was the prosecuting witness in a case against clients of
Councilman Green, who were awaiting trial on the charge of larceny. He ap-
peared to be making light of the charge, and repeatedly snatched at the bundle
under the officer's arm, which seemed to contain a piece of men's wearing
apparel, and at one time snatched the bundle from the officer's arm and threw
it under the table, much to the amusement of the councilman's cUents, who
were sitting on the bench awaiting the calling of their case, which was the next
one. This intimacy of the councilman with the policeman was typical of his
conduct toward all of the officers of the court. When the case was called a con-
tinuance was granted, and the prisoners who were out on bail walked out of the
court-room apparently satisfied with the services Councilman Green, who is
also an attorney, had rendered them. The police officer who was ready to go
ahead with the hearing acquiesced in the continuance.
" On Tuesday, April 26, 1 again visited the police court and found practically
all of the persons mentioned in my previous report present in one or other of the
court-rooms.
"There were three prosecutors in Court-room No. 2, namely. Prosecutors
Novario, Russick, and Kreisberg, each of them appearing to be interested in the
disposition of particular cases. I heard Prosecutor Novario ask for a 'nolle'
in two cases — the nature of the offenses in such cases I was not able to find out.
"Prosecutors Russick and Kreisberg remained in the room perhaps ten or
fifteen minutes, and then Prosecutor Russick returned to Room No. 1, where
he was handling cases.
"This illustrates the practice of some attorneys in going to a prosecutor and
requesting a 'nolle,' even though he is not the prosecutor handling cases in the
court-room in which the 'nolle' is requested, and frequently 'noUes' are granted
in a court-room without the knowledge of the prosecutor in charge of cases in
that room.
[104]
"A police sergeant was on duty this day, the same as on the Friday previous,
as reported, preventing persons from loitering in the hallway leading from the
court-room to the prosecutor's office. On two occasions he strode through this
hallway crying in a loud voice to the persons there to move on; there were prob-
ably about two dozen standing there, and about half of them obeyed his orders.
I have seen him perform this duty on about half a dozen different occasions and
have noted that his orders were obeyed implicitly by newcomers, who dispersed
at once, but were ignored by the regular attendants of the pwlice court, the
officer apparently being blind to their presence."
Another attorney was sent to observe the court on these same two
days. He was not familiar with the " regulars " there, but was instructed
to keep his eyes and ears on the trials, take notes and report all details
observed by him. His report for April 22, 1921, follows:
"I reached the Municipal Court at 8.15 a. m. and found Room 2 entirely
empty. In Room 1 there were five colored people waiting for the court to open,
including three women, one man, and one child. There were six white women,
all of whom looked to be of foreign e.xtraction, and apparently all were engaged
upon the same errand.
"There was already considerable acti^^ty in the clerk's office, and a group
of several men and women were examining the docket on the bulletin board in the
hall. At this time there were 125 cases on the docket for the day.
"Court was caUed to order at approximately 9 a. m. in both rooms: Judge A
and Prosecutor Novario in Room 2, Judge B and Prosecutor Russick in Room 1.
"I went to Room 2, sitting about 10 feet from the witness-stand. During
most of the time it was practically impossible to hear what was said.
"The following cases were called either by number or by name, and some-
times in both ways, but in many cases it was impossible for me to tell whether
or not the defendant appeared or whether the court went on to some other case
or what disposition was made of the particular case :
Case
No.
29,42
49 Pleaded guilty.
44,45
55 John Molnar.
57 Martin Gross and Sam Cunsolo, colored. I could not tell what disposition was
made of this case, but the two men were locked up again.
51 Pleaded not guilty.
50 Arthur Phillips, pleaded guilty.
46 Joseph Tobias, pleaded giiilty.
36 Pleaded guilty.
32 William Day, pleaded guilty. Five days and costs.
40 Anthony Paris, pleaded guilty.
49 Oscar Wagner.
[105]
Case
No.
8 A stenographer was taking a record in this case, and in order to hear was obliged
to sit on the table and write on the railing surrounding the witness-stand.
48 Pleaded guilty. Prosecutor Rosenberg handled this case, and perhaps the fol-
lowing one, and then retired in favor of John Novario. It was 9.40.
47 John Vitski.
John Berry.
38 M. O. Gordon.
Joseph Rosen.
33 and 34 These were apparently two felony charges against the same defendant,
and his' lawyer was not there. The judge told the defendant to get a move
on and get a lawyer, and the case was apparently continued.
56 Martin Gross.
Charles Wo.
Max Herman.
J. W. Lolabias and John Burrs.
24 The defendant was charged with being a married man and representing himself
as unmarried. The prosecuting witness stated that on the basis of his repre-
sentation she had broken her engagement with some other man and that he
had asked her to marry him. Two other women testified in support of the
prosecuting witness.
18 Harry Burney. Councilman Green represented the defendant. A few minutes
before this case was called Novario wandered a little way from the witness-
stand, although a ease was in progress, and held a whispered conversation
with Finkel. When the case was called, Novario made some remark to the
judge which I heard imperfectly, but I understood him to say, 'I understand
that the prosecuting witness does not want to go on with this case.'
The case was dismissed for want of prosecution, I think.
23 Sam Ettinger. The charge was manslaughter in two cases arising out of an
automobile accident at the corner of East 40th Street and Superior Avenue,
N. E. There was a number of witnesses, and Hart sat down at the trial
table, as did also Novario, and it looked as though there might be something
to suggest a trial. As soon as the witness began to testify, however, the
attorney and prosecuting witness crowded around the witness-stand in the
customary fashion. Attorney for defendant asked for a separation of the
witnesses for the prosecution, which was allowed. The two principal prose-
cuting witnesses were a young man and his sister who were driving along
Superior Avenue at the time of the accident. They both stated that the man
at the filhng station at the comer of East 40th Street and Superior Avenue
had also seen the accident, but he was not there as a witness. I heard Prose-
cutor Novario ask the police officer whether or not the man from the filling
station was there and he said not. I think that the defendant was not bound
over. Prosecutor Novario paid very httle attention to the prosecution or the
witnesses. He stood around the witness-stand a great deal of the time and
participated a little, but from time to time would wander off to talk to his
brother or to Councilman Green or some other bystander, although the case
was in progress and a witness testifying.
"At 10.30 1 went into Room 1. The numbers of the cases called in Room 2
I 106]
given above are, of course, numbers from the cases on the docket in Room 2, and
not the numbers of the cases as they appear in the prosecutor's docket in Room 1
or upon the bulletin board in the hall. The following cases were called in Room 1
subsequent to 10.30:
Case
No.
(?) This was a case against two defendants, apparently for stealing a dress or re-
ceiving it as stolen property. Councilman Green represented the defendants
and they were apparently dismissed.
(?) The next case was ruled upon by the judge without any audible conversation.
The defendant, so far as I could see, did not come on the stand, but his attorney
and the prosecutor whispered to the judge and the judge simply waved his
hand to the defendant, who was sitting in one of the benches, and tlie defen-
dant and his attorney walked out. There was no way to tell what the name
of the defendant, the number of the case, or the charge was.
93 and 95 Pleaded guilty.
77 Joe Bilski. It was a case of assault and battery, a man having struck his wife
and she had a beautiful black eye. The defendant was represented by some
attorney whom I do not know. The defense was that the defendant was
trying to compel his oldest son to go to work, and in the course of the dis-
cussion picked up a shoe and threw it at him and the shoe, very unfortunately ,
struck the wife in the eye. The testimony was that the defendant and his
wife had been married over twenty years and that they had three chil-
dren, the oldest twenty-three and the youngest four. During the trial of the
case Prosecutor Russick was walking around and talking to different people
and paying no particular attention to the case. The evidence also showed
that the defendant had not been working for the last ten months. The court
sentenced the defendant to pay the costs and to serve four months in the
workhouse.
49 and 50 These were two cases against the same doctor for failure to record a
birth and failure to report diseased eyes. Judge B apparently expressed the
opinion that he could fine the defendant S50 and costs, and upon defendant's
attorney protesting said, ' I will split the difference and give him S25 and costs. '
1 Michael Mees.
25 James Slater.
31 Sam Schultz. I am not sure whether this case was continued to April 29 or
whether it was this case which was tried and the court held that it was simply
a civil matter and it was up to the defendant to sue and get the money. The
facts in the case which the court decided were that the prosecuting witness
had given the defendant certain goods, apparently dresses to sell, and the
defendant had sold them on time. The defendant claimed that he had asked
the approval of his employer before selling them on time and had tendered
whatever he had received to his employer. The employer, the prosecuting
witness, testified that he had not agreed to allow payment by installments
and that the defendant had not tendered any payments to him. The court
dismissed the case and held that it was simply a matter to be settled in a civil
action.
32 Henry Neale. Passed to April 29.
(?) This case involved a dispute as to the ownership of a dog. Each of the parties
[107]
Case
No.
had several witnesses and the court spent considerable time in hearing the
case, and finally held it was merely a civil matter and must be settled in the
civil courts.
39 and 40
52 This was a prosecution under the health ordinance for having a dirty bakery.
The case had been continued from some time in February. The defendant
was fined S2 and costs.
78 Prosecution under the health ordinance for keeping a large pool of standing
water in an empty lot. The court continued the case until May 6, and told
the officer that he would have to have some positive proof that the pool of
standing water jeopardized the health of the neighborhood before he would
convict the defendant. The defendant had been warned several times to have
the pool removed.
121 and 122 Case of assault and battery and contempt. At 11.30 the court in
Room 1 took a recess.
24 Hoffmeyer. Case of assault and battery of a lodger upon his landlady. The
story of the prosecuting witness was that the defendant had hit her and
knocked her all the way downstairs. It was the defendant's contention that
the landlady first struck the defendant, and that she was standing on a very
narrow landing at the top of the stairs and in her excitement stepped off
backward and fell downstairs. Attorney for the defendant tried to prove
these facts, including the physical surroundings, size of the landing, and so
forth, but Judge B said: 'That hasn't anything to do with the case — -I was
not even listening.'
Prosecutor Russick sat back at the table and merely watched the case as
it was being tried. The court in Room 1 adjourned at 11.49 until 1.30.
"I went immediately into Room 2. Kreisberg was prosecuting and Russick
had come into the room and was hanging around. The case was a felony charge
against some one, and the prosecuting witness was a Chinaman named Shang
Hai. At the close of the State's case the defendant started to prove an alibi, and
Judge A said : ' If you are going to prove an alibi I won't hear it.' The defendant
was bound over.
Cage
No.
12 Max Golden. Assault and battery. Defendant was fined $10 and costs.
9 Anton Wrabliski. Fined SlOO and costs. I did not hear the court say anj'thing
about suspending any of the sentence, but as the defendant was put back
into the lock-up the officer yelled after him, "You have to pay the costs.'
14 Walter Brown. Defendant was chauffeur for Mr. Lyon (?) and Mr. Lyon was
present in court, standing in front of the judge. As the case was being tried
the clerk of the court walked in, shook hands with Mr. Lyon, joked with him
a little about the case, and walked out, stopping a minute to tell me what a
fine fellow Mr. Lyon is. The defendant was fined SIO and costs. The pro-
ceeding was apparently the first skirmish leading up to a civil case growing
out of the injury to two automobiles.
60 Richard Weeden.
[108 1
"The following cases were called at the end of the session in Room 2, but
the defendants did not appear:
Case
No.
Louis Oblitski, et al.
5 Louis Sapas.
6 Paul Borsick.
Morris Collin. Officer remarked that defendant owed $15 and costs. Capias
issued.
37 Joseph Rosen. Capias issued.
"Court adjourned in Room 2 for the day at 12.10. I returned to Room 1
shortly after 1.30 and found an a.ssault and battery case in progress. There was
no prosecutor present. The court, after listening to testimony about half an
hour, dismissed the case and said it was a purely civil matter. As the defendant
and prosecuting witnesses went out I noticed that they were the same six women
who were waiting for the court to open when I arrived at 8.15 in the morning.
The court adjourned at 2.15 for the day. One of the court officers, in checking
up the entries for the day, inquired of Attorney X to what date the Solomon case
had been passed. X said until June 8. The officer seemed to be a little doubtful
of this, but concluded to take X's word for it and made the entry."
The report for the sessions of April 26 is quite similar. It contains
the following notes concerning a prosecutor:
"Prosecutor Russick arrived in the room at 9.15 but, so far as I could see,
during the entire morning did not participate in a single case to the extent of
asking one question. A great deal of time he was talking to other people or
sitting back at the table when the cases were going on. Most of the time, how-
ever, he was lolling upon the witness-stand and listening to what the witnesses
had to say and the court's examination of the witnesses."
According to a fundamental principle of American justice, the ac-
cused is entitled to that impartiality and fairness of treatment which is
presumed to be promoted by the fact that the judge and prosecutor per-
form their functions with the eyes and the ears of the public upon them.
The above-described conditions in the Municipal Court fail to fulfill this
fundamental requirement. The doors are open, but Argus himself
could not see what is going on; and were the man who could hear the
blade of grass growing on the mountainside to drop into the court-room,
his exceptional aural capacity would only intensify for him the general
din which suffocates the gentle mumblings and whisperings of the group
on and around the bench.
These pictures of the court in operation show the danger that the
individual who comes into the Municipal Court in one relationship or
another would be more likely to feel that results are dependent upon
[109]
favor or strange influences than upon a judgment of the court based
exclusively on the dictates of law and justice.
Large NtrMBER of Cases; Unclassified Dockets; Excessive
Speed
It is interesting at this place to report what actually did occur in
these two rooms of the court on the morning of April 22. The follow-
ing is a list of the cases called as shown on the docket, with the nature
of the charge and the disposition of the case:
April 22. — Codrt-Room No. 1
ATo.i
Charge.
Disposition
1
Liquor law
Continued June 1.
2
Liquor law-
Original sentence.
7
Liquor law
$100 and costs, "motion in mitigation"
April 29.
12
Liquor law
Original sentence.
13
Liquor law
Continued April 29.
14
Liquor law
Continued June 8.
19
Assault and battery
Discharged.
20
Assault and battery
Discharged.
23
Assault and battery
Discharged for want of prosecution.
24
Assault and battery
Costs.
25
Defrauding innkeeper
Capias.
31
Conversion
Discharged.
34
Suspicious person
Costs and 30 days, suspended.
35
Suspicious person
Costs and 30 days.
36
Suspicious penson
Bond forfeited capias.
37
Suspicious person
Continued April 23.
38
Suspicious person
Continued April 23.
39
Grand larceny
Continued May 11.
40
Grand larceny
Continued May 11.
42
Conversion
$500 and costs and 3 months.
46
Health ordinance
Discharged.
47
Destroying property
Discharged.
48
Petit larceny
Discharged.
49
Fail to report diseased eyes
Discharged.
50
Fail to report birth
$25 and costs.
51
Assault and battery
Discharged for want of prosecution.
52
Health ordinance
$2 and costs.
53
Health ordinance
Continued April 29.
54
Suspicious person
Discharged.
55
Suspicious person
Discharged.
56
Pocketpicking
Error.
' As all the cases are first put on the docket in Room 1 and the Room 2 cases
then transferred, the remaining Room 1 cases will not have consecutive numbers.
[110]
No.
Charge
DisposUi/m
62
Petit larceny
$50 and costs and 30 days.
71
Intoxication
Continued April 29.
72
Intoxication
Costs.
73
Intoxication
Continued April 29.
74
Intoxication
Continued April 29.
75
Intoxication
Costs.
76
Assault and battery
Discharged.
77
Assault and battery
Costs and 4 months.
78
Health ordinance
Continued May 6.
79
Petit larceny
Costs and 30 days.
80
Common beggar
Costa and 15 days.
81
Common beggar
Costs and 15 days.
82
Common beggar
Discharged.
83
Petit larceny
Continued April 29.
84
Disturbance
Costs.
85
Disturbance
Costs.
86
Disturbance
Costs.
87
Disturbance
$25 and costs.
88
Vagrancy
Discharged.
89
Vagrancy
Discharged.
90
Vagrancy
Costs and 15 daj'S.
91
Suspicious person
SIO and costs.
92
Suspicious person
Continued AprU 29.
93
Suspicious person
Costs and 30 days, suspended.
94
Suspicious person
Continued April 29.
95
Suspicious person
Costs and 30 days, suspended.
96
Suspicious person
Continued April 29.
119
Liquor law
Continued April 30.
120
Contempt
Discharged.
121
Contempt
Discharged.
122
Assault and batterj'
Discharged.
126
Liquor law
Discharged.
127
Liquor law
SlOO and costs, " motion in mitigati
AprU 30.
128
Liquor law
Continued April 29.
129
Liquor law
Motion granted, S500 of fine suspended.
130
Liquor law
Continued April 29.
131
Liquor law
April 28 continuance.
132
Carrying concealed weapons
Bound over.
133
Auto law
Continued April 26.
April 22.-
— COUBT-ROOM No. 2
No.
Charge
Disposition
1
Liquor law
Continued to April 29.
2
Liquor law
S50 of fine suspended.
3
Liquor law
Discharged.
4
Liquor law
Discharged.
[Ill]
No.
Charge
Disposition
5
Liquor law
Motion granted, $50 of fine suspended.
6
Liquor law
Original sentence.
7
Liquor law
Continued April 29.
8
Liquor law
S300 and costs, "motion in mitigation" April
29.
Motion granted, fine suspended.
9
Liquor law
10
Liquor law
S200 and costs, " motion in mitigation " May 6.
11
Assault and battery
$25 and costs, "motion in mitigation" May 6.
12
Assault and battery
SIO and costs, " motion in mitigation " April 29.
13
Assault and battery
Continued April 29.
14
Traffic ordinance
$10 and costs.
15
Traffic ordinance
$15 and costs.
16
Traffic ordinance
Discharged.
17
Traffic ordinance
Motion granted, fine suspended.
18
Obtaining money under false
pretense
Discharged, want of prosecution.
19
Dance-haU ordinance
Original sentence.
20
License ordinance
Capias ordered.
21
Receiving stolen property
Continued April 29.
22
Manslaughter
Discharged.
23
Manslaughter
Discharged.
24
Misrepresentation by married
man
$25 and costs, " motion in mitigation " AprilSO.
25
Burglary
Bound over.
26
Liquor law
$200 and costs, "motion in mitigation" April
30.
$200 and costs, "motion in mitigation" May 6.
27
Liquor law
28
Liquor law
Bound over.
29
Liquor law
Continued April 29.
30
Traffic ordinance
Capias.
31
Auto law •
$5 and costs.
32
Auto law
$5 and costs.
33
Auto law
Bound over.
34
Robbery
Bound over.
35
Auto law
$5 and costs.
36
Auto law
$5 and costs.
37
Traffic ordinance
Capias.
38
Vehicle ordinance
$5 and costs, suspended.
39
Liquor law
$100 and costs," motion in mitigation "April 29.
40
Liquor law
$100 and costs, "motion in mitigation" May 6.
41
Auto law
Nolle.
42
Auto law
April 29.
43
Auto law
Continued May 5.
44
Auto law
$30 and costs, "motion in mitigation "April 25.
' Cases designated "auto law " include all degrees of cases relating to automobiles,
from misdemeanors, such as driving without lights illuminating the license, to serious
felonies, such as operating motor vehicle without consent of the owner.
[112 1
No.
Charge
45
Auto law
46
Auto law
47
Auto law
48
Auto law
49
Auto law
50
Auto law
51
Traffic ordinance
52
Traffic ordinance
53
Traffic ordinance
54
Traffic ordinance
55
Traffic ordinance
56
Traffic ordinance
57
Shoot to wound
58
Contempt
59
Liquor law
60
Assault and battery
61
Liquor law
62
Traffic ordinance
Disposilion
$25 and costs.
$5 and costs, " motion in mitigation" April 28.
So and costs.
So and costs, " motion in mitigation " April 29.
S^30 and costs and 10 days. Days suspended,
"motion in mitigation" April 29.
$5 and costs.
$15 and costs.
S15 and costs.
S5 and costs.
$5 and costs.
S15 and costs.
SlOand costs, "motion in mitigation "April 30.
S25 and costs and 30 days.
Discharged.
Motion granted, S150 of fine suspended.
$25 and costs and 30 days suspended.
Continued May 6.
May 24 continuance.
Several interesting phenomena are disclosed by this table. There
is especially the fact that all sorts of cases are indiscriminately lumped
together on one morning's docket and called, heard, and decided without
segregation of the trials of state from municipal cases, state felonies
from state misdemeanors, crime cases from vice cases, grave cases
from lesser ones. The cases are not called in the order in which they
appear on the docket. Under the orders of the presiding judge of the
court certain classes of cases are given precedence in the call, as, for
instance, those in which the night duty pohcemen are witnesses, or
cases of defendants who are in jail. Whether this order is fully adhered
to is doubtful. Within any class of cases the order of call is largely in
the control of the clerk in the room. In the answers to a questionnaire
sent to members of the Cleveland bar, many lawyers complained of
the delays to which they were subjected in having to wait for the cases to
be called, and in many of the answers this was given as the reason why
lawyers avoid practice in the criminal branch of the Municipal Court.
This list of cases shows some disposition in 71 cases in Room 1 in
the course of two and three-fourths hours, making about two and one-
fourth minutes per case, and 62 cases in Room 2 in about three and one-
fourth hours, making about two and one-half minutes per case. These
dockets of April 22 were by no means abnormally heavj'. Almost always
on Mondays, and very frequently on other days, the number of cases ex-
ceeds the number on that day. Of course, the judges show variations
9 [113]
in the speed with which they dispose of cases, some taking more time
than others. The time here noted of two and one-fourth and two and
one-half minutes per case does, however, represent a fairly habitual and
normal rate. Of course, not all of the cases involved a trial or hearing of
evidence. Continuances involved no trial on that date, and in the Hst
of cases disposed of were a number with pleas of guilty. But even these
cases with pleas of guilty required, on the question of the amount of
sentence, some inquiry into the facts concerning the offender and the
facts of the offense.
By way of contrast, it is interesting to note the time given by this
same Mimicipal Court to petty civil cases which fall within its juris-
diction. For instance, on this same date of April 22, 1921, the docket
in Room 5 contained 18 items. Of these 18, 12 involved practically no
hearing of evidence or argument on part of the court, being judgments
by consent of parties or other matters summarily disposed of. Four
related to motions. That left only six cases in which the court was
called upon to determine questions of fact, and in one of these, involv-
ing the possession of real estate, the defendant failed to appear. One
case was decided for the defendant. In the other five, judgments were
rendered in the sums respectively of $76, $99, $400, and $84, smns less
in amount, measured in mere dollars and cents, than were involved in
many of the cases on the criminal docket. That represented a full
day's work, morning and afternoon, of that one of the civil rooms which
on that day had the largest docket and also the largest number of con-
tested cases.
Negative Part Played by Prosecutor
The descriptions of the Municipal Court in operation disclose the
negative part which the prosecutor plays in both the trial and the
disposition of cases. With rare exceptions his part is as negative in
the major offenses as in the lesser ones. Even more negative is his
role as a source of influence in the general conduct of the proceedings.
At no time did he ask that the group surrounding the bench be freed
from those who had no business there. At no time did he ask that the
aisles be cleared or the noise of moving feet and the chatter be sup-
pressed. He seemed in fact the least influential person in the room.
A jury trial by its very nature compels orderliness and openness
of procedure. Each side desires that the jurj-^ hear its witnesses. In
trials before a judge without a jurj-, this restraining influence is absent,
and both court and attorneys are apt, unless tliey make special effort
[114]
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115]
to guard against it, to let themselves drift into the habits which have
been described in this chapter.
No Stenographic Reports — Opportunities for Perjury
Except where the defendant desires to have a record of the case,
the testimony is not taken down stenographically or otherwise. The
trials are ground out without attempt on the part of anybody, judge
or prosecutor, to bring out all the facts in any case, and seldom is any
witness permitted to complete his story. One of the judges of this
court, in the course of an interview, stated in a casual manner, as though
expressing something of no significance, that in preliminary hearings of
felony cases, as soon as he hears something which, taken by itself, would
justify passing the case on to the grand jury, he hears no more and
binds the case over, and that he treats these hearings as nothing more
than stepping-stones to the grand jury.
This absence of a stenographic report of the testimony, taken in
connection with the whole atmosphere of the court, obviously produces
opportunity, if not inducement, for perjury. The people of Cleveland
are convinced that perjury has been prevalent in the trial of criminal
cases, and the criminal court reporters of the newspapers affirm this
beyond a shadow of doubt. In view of this general opinion, which surely
has considerable basis in fact, it will be interesting to note the exceed-
ingly small number of cases of prosecution for perjury and the even
smaller number of successful prosecutions for perjury. Table 4 gives
the statistics of all prosecutions for perjury and subornation of perjury
for the years 1910 to 1920 inclusive, with the results thereof, as reported
by the county clerk to the Secretary of State.
lie'
CHAPTER IV
THE MUNICIPAL PROSECUTOR'S OFFICE
History
IN 1912 the criminal branch of the Municipal Court of Cleveland be-
came the successor of the police court, which had been in operation
since 1S53. It also succeeded to the criminal jurisdiction of the jus-
tices of the peace functioning in Cleveland. Justices of the peace, with
certain criminal jurisdiction, had existed in Cleveland on the territory
which is now Cleveland since 1798. The municipal prosecutor is the
successor of the prosecuting attornej' of the police court, an office created
in 1854. For more than a century this court and its predecessors have
been the examining courts for state felonies and for almost seventy years
have had general jurisdiction to try city and state misdemeanors. The
nature of the jurisdiction has not changed, but with the growth of the
community and the consequent growth of the number of arrests and
offenses and the development of the criminal law, both State and muni-
cipal, the volume of work passing through this court and office has grown
enormously. Table 5 gives the growth, as shown by statistics, to the
extent obtainable, of the years 1863, 1880, 1890, 1900, 1910, and 1920, of
the area and population of Cleveland, the number of arrests, the num-
ber and compensation of prosecutors, assistants, and office force.
TABLE 5.— COMPARISON OF GROWTH OF POPULATION, NUMBER OF
ARRESTS, NUMBER AND SALARIES OF "POLICE COURT" PROSE-
CUTORS, 1S63 TO 1920
Number
Number of
Pa-vToU
Salary
chief
.Aj-ea
Population
of ar-
police or Mu-
Size of
of office
square
Year
of Cleve-
rests in
nicipal Court
clerical
exclu-
miles
land
Cleve-
prosecutors
force
sive
land
and assistants
of chief
1863
58,241'
1,687
ISSO
160,146
7,432
i
27.78
1890
261,353
9,616
2
Sl,600
S2,.300
33.94
1900
381,768
19,923
4
5,300
3,000
45.90
1910
560,663
7,185
4
56.65
1920
796,841
27,6152
6
/ 12, .300 1
1 15,300 /
/ 3,500 \
l 4,000 /
' Taken from estimates of Chamber of Commerce.
'79,897 warned and released.
[117]
The large decline in the number of arrests in the year 1910 was the
result of the so-called "golden-rule policy" of the then Chief of Police,
Fred Kohler, who instituted a general regime of warning, advice, and
persuasion, as distinguished from arrest and prosecution. The facts out-
standing from this table are the continued absence of any clerical force
despite the enormous increase in the volume of work, and the absence of
any substantial increase in the salary of the chief prosecutor.
Office Organization
Reference has been made to the importance of the aspect of the place
where the people of a city in general first come into contact with justice
in operation. In a large percentage of cases complainants, accused, and
witnesses have occasion to come to the prosecutor's office before going
into the court-room. Furthermore, thousands of complaints which do
not result in arrest are brought to the prosecutor's office and there aired,
discussed, and disposed of. In fact, the municipal prosecutor estimates
that he sifts out more cases than he permits to go into the mill. Thus
this office is a point of contact for a larger number of individuals than
any other spot in the city.
The force of the municipal prosecutor's office consists of the chief
prosecutor and five assistants. ^ The total office space consists of five
small rooms, 7 by 9 feet in size — just enough for a desk and a chair,
the number of rooms being one less than the number of prosecutors, so
that two of the assistants occupy one of these cubby-holes. There are no
clerks, no stenographers, and no messengers. The suite also contains a
small room used as a combination of general waiting-room and the of-
fice of the telephone operator of the Municipal Court clerk and prose-
cutors. The telephone desk is railed off from the remainder of the room,
leaving a space of 10 by 15 feet which serves both as a waiting-room and
a conference room.
There is no office system nor organization whatsoever. Two assist-
ants are assigned to the court-rooms for the trial work there, with others
assigned specially to court work elsewhere, such as error cases in the
Court of Appeals and jury cases. There is no distribution or specializa-
tion of work, whether of preparation or trial, according to classes of
cases, importance of cases, or any other basis of classification. A visitor,
whether he has a complaint or desires a prosecution instituted, a police
officer who desires an affidavit made, or any other person on any other
mission, chooses the particular member of the force to whom he will
1 Since this report was written, a sixth assistant has been appointed.
[118]
u. tan
g =-
-c —
- 5f
0^ '-2
submit his business. At tho busy hours of the day indiscriminate masses
of applicants and visitors jam the offices and the adjacent hallways, each
person waiting for the particular prosecutor whom he or she has, by de-
sign or accident, chosen.
There are no regular office rules laid down by the chief prosecutor
regarding the submission to him of a particular type of problem. There
are no detailed, clearly defined policies regarding continuance of cases,
preparation of cases, the position to be taken by the office on difficult or
doubtful questions of law, or any other recurring problem. Generally
speaking, each assistant pursues his own policy or lack of policy, his own
interpretation of the law, his own methods.
Edward C. Stanton, who, previous to his election as county prosecu-
tor, had been chief prosecutor of the Municipal Court, was asked why he
had not disciplined one of his assistants in his old office for certain im-
proper conduct. His answer was that he had no authority over the a.s-
sistant prosecutors, that they were appointed just as he was and acted
on their own responsibihty in all cases. It was not clear whether he
meant that the chief prosecutor and all the assistants were appointed by
the Director of I^aw, whom the city charter designates as the appointing
officer, or by the Republican "boss," who is popularly credited with
the actual appointing power. As a matter of fact, the Director of Law
devotes himself almost exclusively to the civil side of the work of the city's
law department, and practically finds little time or energy for the adminis-
tration of the criminal division. As things are at present, this latter
division enjoys only slight executive control or dkection.
Laxity in Custody of Affidavits
There is dangerous laxity in the care of the affidavits. On the basis
of the information submitted by complainants or police officers, the
prosecutors prepare the affidavits setting forth the charge. The warrant
of arrest and all subsequent proceedings are based upon the affidavit.
No further step in the prosecution of the case is possible without the
affidavit. There is no office system whereby these affidavits are placed
in charge of any official or attache of the prosecutor's office. An affidavit
remains in the hands of the particular prosecutor who prepared it until
he finds it convenient to carry or send it to the office of the clerk of
the Municipal Court. There it is placed in a box. The affidavits are
used by the clerk as a basis for the drafting of warrants, and after having
served as such they are placed in the files of the clerk's office. They are
not sealed, and no copy is made for nor kept in the prosecutor's office.
Obviously such a system or lack of system furnishes opportunities for
[119]
the mysterious disappearance of affidavits, and such disappearances are
said to take place occasionally.
Record System
The record system in any office or court with such a volume of work
as in the Municipal Court of Cleveland is of vital importance. The
records may be said to have two functions: they are instruments for
promoting the efficiency of the work itself, and also are the means where-
by the department head or the public can appraise the accomplishment
of the office.
The municipal prosecutor's office has no records or files. There is no
docket — no record of cases pending or past. Memoranda made by the
individual prosecutor are kept or disposed of by him as he may please.
There is no means within the office itself by which the chief prosecutor
can ascertain the history or status of any case or check the work of
an assistant.
For the records of the work of his office and of the status of cases in
his charge the prosecutor is dependent upon the records of the Municipal
Court itself. Consequently, the study of the effectiveness of the present
system requires a detailed examination of the record system of the Mu-
nicipal Court and the office of the Municipal Court clerk.
The first entry in any case takes place upon the arrest of the accused
person. This is made upon the police blotter in the office of the clerk, a
large book about two and one-half feet square. Exhibit A illustrates
the nature of this entry.'
From this police blotter and the continuation docket which will be
shortly described the court officer in the Division of Police makes up the
"prosecutor's docket." This prosecutor's docket contains a full list of
all the cases to be called in the two rooms of the court at the following
court session, and contains all cases of arrest from 6 a. m. of one day to
6 A. M. of the following day, which is the day of the call in court. Exhibit
B is an illustration of the number of columns, the titles of columns, and
the nature of the entries. The number in the first column (161, etc.) is
the number or order of the case on that day's docket. The entries in
the "Disposition of case" column are made after the case has been called
and has received that day's disposition by the court.
About 7 in the morning this book is sent to Court-room No. 1. At
that time it contains all that it will finally contain, except the notation
' The illustrations in this chapter are taken from the actual records, all notations
retained as on the originals, with the exception of the names, which are fictitious.
[120]
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121
of the room to which the case is to be assigned and the disposition of the
case. The column marked "Plea" is not used at all.
Then the clerk in Room No. 1 has the duty of distributing to Court-
rooms Nos. 1 and 2 the cases on the prosecutor's docket. He does this
by assigning the traffic cases, the State examination cases, and most of
the liquor cases to Room 2, and if there are not enough cases for Room 2,
he throws in a few cases of other classes; or if the traffic, liquor, and State
examination cases amount to more than one-half of the day's docket, he
will assign some of them to Room 1. If the case is assigned to Room
No. 1, no notation is made on the docket, since the docket itself is in
Room 1. If assigned to Room 2, as appears from Exhibit B, the clerk
stamps thereon "Court-room No. 2."
EXHIBIT B.— PROSECUTOR'S DOCKET
Person
arrested
Offense
Plea
Disposition
of case
Date of
arrest
By
whom
arrested
Name of
complaint
and remarks
161
167
168
James Brown
Jane Doe
Same
Burglary and
larceny
Contempt
Common
prostitute
Court-room
No.2:B.O. 1
Discharged 7
Error 8
May 23
May 23
Dec. 1
Lynch,
"191
With the prosecutor's docket is sent up from the poUce department
an assignment list of cases. This contains merely the numbers of the
cases, the names of the defendants, and the charges. After the cases
have been divided between the two rooms, "Room 1" or "Room 2" is
rubber-stamped on this list, and the list is posted in the hallway outside
the court-rooms. Exhibit C illustrates the set-up of this assignment list
after it has been so stamped.
EXHIBIT C— ASSIGNMENT OF CASES, TUESDAY, MAY 24, 1921
No.
Name
Charge
Court-room
51
52
53
54
Fred Miller
Anna Kinney
Marv Smith
Frank Butler
Neglecting parent
Keeping house ill fame
Visiting house ill fame
Court-room No. 2
Courtrroom No. 2
The cases on the prosecutor's docket and on the assignment list are
numbered consecutively each day, beginning with 1, in the order in which
1122]
they appear on the docket, which corresponds roughly to the order of
the arrest.'
A docket for Room 2 is then made up from the assignments to that
room on the prosecutor's docket, these cases in Room 2 being numbered
from 1 up consecutively. Exhibit D is an illustration from a part of
this Room 2 docket, the entries in the third column, of course, having
been made in accordance with the disposition of the case on the morning
indicated.
EXHIBIT D.— DOCKET— ROOM 2
Saturday, Mat 21, 1921
No.
Name
Offense
30
Aaron Rosenberg
Traffic ordinance
Cap.
31
Pat Grav
Traffic ordinance
May 26
32
Dan White
Traffic ordinance
May 26
33
Aubrey Greene
Auto law
Cap.
34
Mamie Biller
Common prostitute
2.5 C. S. S.
35
Same
Contempt
Dis.
36
Harry Kane
Obtaining money by false
preten.ses
25 C. 30 D. S.
S.
37
Leon Schmitt
Obtaining money by false
25 C. 30 D. S.
S.'
pretenses
From the prosecutor's docket, a docket or calendar, called the
"judge's docket," is made for the judges in each of the rooms. It gives
the number of the case, the name of the defendant, and the charge. This
docket is before the court during the entire session, and as each case is
disposed of the judge writes opposite the defendant's name the particular
disposition that has been made. Exhibit E is a copy of portions of the
judge's docket in Room 1.
The file in each case consists of the affidavit, the warrant of arrest,
the subpoenas for witnesses, the cost bill, and the bail bond, if any. The
file for each case, with a pencil notation of its number for the day some-
where on the outside, is placed in the hands of the clerk in the particular
room to which the case has been assigned. The cases have no numbers
except the consecutive numbers 1, 2, 3, etc., on the daily dockets as
above described. As each case is ruled upon, the clerk notes the disposi-
' A case does not receive any number which belongs to it throughout its history,
and by which it appears on the dockets and records of the court. After the case is
completed, the file of the papers in the case receives a number.
'"Cap." means capias issued; "May 26" — continued to May 26; "Dis." — dis-
charged or dismissed; "25 C. 30 D. S. S." — sentence of $25.00 and costs and 30 days'
imprisonment, sentence suspended.
[123]
tion of it on the back of the affidavit, which acts as the wrapper for the
file. At the close of the day's session the court officer in each room takes
the judge's docket and copies therefrom the entries of disposition into
the prosecutor's dockets in Room 1 and Room 2, as the case may be.
Then these entries are recopied from the Room 2 docket into the original
prosecutor's docket. Thus that day's prosecutor's docket contains
entries of that day's disposition of all the cases docketed for the day.
EXHIBIT E.— JUDGE'S DOCKET, VOL. 50— ROOM 1
336
September 30, 1920
141
James Robt. Henry Jackson
Arson
Court-room No. 2
142
Michael Dowd
Bastardy
Court-room No. 2
356
Tuesday, October 5, 1920
21
Lester W. Mein
Susp. person
Nolle pros, (bound over
to grand jury)
22
Ira Luff
Susp. person
P.O. 25 and C. and 30 D.
Sus. one year pro.
23
Earl Brown
Susp. person
Con. Oct. 9
24
Arthur White
Susp. person
Nolle pros, (police dept.)
25
Napeen T. Ivlopowsky
.\ssault and battery
P.N.G. 25 and C. and 30
D. Sus. one year prob.
26
John Edwards
-■^asault and battery
Dis. want pros.
27
Herman Keith
.\ssauit and battery
Discharged
28
Aug. Krinski
Assault and battery
Con. Oct. 20'
A considerable number of the cases on the docket of any date are con-
tinued to some subsequent date. From these notations of continuances
a "continuation docket" is made up, having a separate page for each
day to which any of the cases has been continued. Exhibit F is an illus-
tration of this continuation docket, showing the list of cases which have
been continued to April 22, 1921. It does not show the day on which
the case made its first appearance on the prosecutor's docket or court
calendar, though, of course, that date was presumably the day of arrest
or the day immediately following.
At the close of the day's session the file in each case, with a notation
thereon of the action of the court, is dehvered to the journal clerk, who
proceeds to make up what is called the "journal and execution dockets,"
which is the official record of the cases. Separate journal and execution
dockets, identical in form, are kept for city and State cases. This docket
' "P.G." means plea of guilty; "Sus." — suspended; "pro" or "prob." — proba-
tion; "con." — continued; "P.N.G." — plea not guilty; "Pros." — prosequi or prose-
cution.
[124 1
is illustrated by Exhibit G, containing parts on two dates of journal and
execution docket No. 23 in State cases. The numbers 14567 and 14713
are the page or folio numbers of this docket.
EXHIBIT F.— CONTINUATION DOCKET
Friday, .\pril 22, 1921
Name
(.'harge
Date of last
continuance
Date of arrest
Officer
James Carpenter
Michael Burke
Defrauding innkeeper
Violating liquor law
March 18
March 23
March 9
December 10
Diskow-
sky Det.
Jones,
2S7
A case travels on the name of the defendant — as, for instance, State
of Ohio V. Leslie Stephens — until it is finally disposed of. The result of
this is that, if there are three or four charges for the same crime against
the same man, as is often the case, there is no possible way of telling
which entry in the execution docket applies to w^hich case, although the
answer might possibly be traced bj- means of the pencil notations on the
back of the affidavit. Each time a case appears in court it is entered
upon a different page of the journal and execution docket, so that, if a
case be continued 10 times, as is not infrequent, the entries regarding it
will appear on 10 different pages of the journal and execution docket, and
will frequently be distributed through two or three volumes of the book.
At no one place on the records, with the exception of the pencil notations
on the back of the affidavit, is it possible to find a full record of the history
of any case.
As will be seen bj^ an examination of Exhibit G, the journal and
execution docket shows the date to which, but not the date /row which,
a case has been continued. To iUustrate by the case of State of Ohio v.
William Williams (Exhibit G), the entrj' shows that the case was con-
tinued to October 19. The fact that the journal records " Defendant in
court — case continued," etc., shows that this was not the first appearance
of the case, for on the first appearance there will always be the entry,
"Affidavit filed — warrant issued," etc. There is, however, no way of
telling from this page of the journal the original date on which the case
appeared in court or the previous continuances, and the tracing of the
full history of any case is often a work of considerable difficulty and
expenditure of time. We can, of course, go to the index, and trace
back therein the name of the defendant until we arrive at the first entry
[125]
in the case. In a case which is pending for several months, involving
many continuances or other steps, this tracing through the index is an
arduous and lengthy task.
EXHIBIT G.— JOURNAL AND EXECUTION DOCKET
14675 Thursday, Sept. 23, 1920 (Journal and Execution Docket) 14675
State of
Ohio
Leshe
Stevens
State of
Ohio
V3.
James
Robert
Henry-
John-
son
State of
Ohio
va.
Wm.
Wil-
liams
Oct.l
Sept
30
Oct.
19
Amt-
paid
Wit-
ness
fees
Fines
Costs
Total
fines
and
costs
Court
costs
Bail-
iff's
fees
JaU-
er'a
fees
Days
Receiving stolen prop-
erty.
Affidavit filed, war-
rant issued and re-
turned. Defendant
in court and exami-
nation demanded .
Case continued to
Oct. 1.
Arson.
Affidavit filed, war-
rant issued and re-
turned. Defendants
in court and exami-
nation demanded.
Case continued to
Sept. 30.
Assault to Tape.
Defendant in court.
Case continued to
Oct. 19.
14713 Sept. 30, 1920
67,567
State of
Ohio
va.
Jamea
JohnBOD
P.
Coloaao
C.
Pagy
R.
Carran
E.
Carran
W.
Levy
L.
Levy
$2.00
$2.00
$2.00
$1.00
$1.0C
$1.00
$22.35
$22.35
$5.00
$8.35
$1.00
State examination.
Arson.
Defendants in court.
Examination had and
he is required to fur-
nish bail in the aum
of SI, 000 for his per-
sonal appearance at
the present term of
the Court of Com-
mon Pleaa of Cuya-
hoga County.
And in default of
bail to be committed
to the jail of the
county aforesaid :
which W.13 accord-
ingly done.
Separate indices are kept of State and city cases. Exhibit H is an
exhibit of parts of pages 164 and 276 of Volume 6 of the Index of State
Cases.
The index is not as helpful as its name might indicate. The index in
the civil branch of the Municipal Court is extensively subdivided, both
as to first and last names, which makes it comparatively simple to locate
[126]
the case of any particular defendant. In the criminal branch, however,
there is just one heading for all defendants whose names, we will say,
begin with "T." To locate a particular man whose name begins with
"T" necessitates going over about 26 times as many names as would be
necessary if the index were divided as in the civil branch. The tracing
of the police court record of a man who has been before that court with
some frequency would be a task of enormous difficulty and delay, and it
is noteworthy that in the trial of the cases which were observed for this
survey the poUce court record of the defendant was practically never
produced or mentioned.'
EXHIBIT H.— PARTS OF PAGES 164 AND 276 OF VOL. 6, INDEX OF
STATE C.\SES
164
State
Index
Vol.6
Surname
Christian name
Foho
1920 date
Jackson
Johnson
Washington
276
Robert
John
Henry
Willie
James
14672
14712
14675
14681
14675
Sept. 23
Sept. 23
Sept. 24
Sept. 23
In Exhibit H, in the case of Henry Johnson, the figures 14712 and
14675, with the date, September 23, indicate that the case originally
appeared on the docket September 23, that the first entry in the case is
recorded on folio 14675 of the journal and execution docket, and the
last entry in the case on folio 14712 of that docket. That case, there-
fore, appeared twice on the court docket and there were two entries or
orders. A large number of cases, however, have more numerous appear-
ances and entries; and frequently, when the time arrives for indexing a
later or trial entry, the clerk is xmable to find the place where the case
was previously recorded, and he proceeds to note the later entry at a
different place in the index, with the result that the case is twice indexed,
and, so far as the index itself indicates, there is no connection between the
two entries.
Under this record system the case receives no number by which it is
recorded and indexed, and its history is not recorded or indicated at any
single part or place of any single record book. The cumbersomeness of
' One of the judges complained of the habitual failure of the prosecutor to bring
this record to his attention.
[127 1
the system, both as a method of recording and as a means of tracing the
history of a case, as well as the liabiUty to error, is disclosed in the above
illustrations.
Looking at Exhibit H, we find on page 164 of the index a case against
Henry Johnson with reference to folio 14675 of the journal and execution
docket, and on page 276 a case against James Robert with reference to
the same foho. Turning to this folio 14675, as shown on Exhibit G, we
find the case of State of Ohio v. James Robert and Henry Johnson, with
the following entry:
"Arson. Affidavit filed, warrant issued and returned. Defendants in court
and examination demanded. Case continued to Sept. 30."
This same index, page 164, gives folio 14712 as the place where the
final entry in the Henry Johnson cases is recorded. A thorough examina-
tion of folio 14712, however, disclosed no mention whatever of any Henry
Johnson case. The list of names on the prosecutor's docket for Septem-
ber 30 was then searched, but without finding any Henry Johnson or any
James Robert. The list of arson cases on the docket of that day was then
traced, and disclosed a charge against James Johnson, which, as appears
from Exhibit G, was recorded on folio 14713 of the journal and execution
docket. So a case which, upon the official record of the court, on Septem-
ber 23 with two defendants, James Robert and Henry Johnson, terminated
on that record with one defendant bearing the combination name of
James Johnson. In an effort to solve the mystery, the original files
were examined. This affidavit is not quite clear as to whether it charges
one or two persons with the offense. But the warrant of arrest was made
for the arrest of two persons, resulting, however, according to the return
of the warrant, in the arrest of one person, James Robert Henry Johnson.
While engaged in examining the journal and execution docket (city
cases) for a purpose unrelated to this matter of the record system, the
following entry under date of January 19, 1921, was noted:
"Blanche Jackson, soliciting for immoral act, motion in mitigation granted,
sentence suspended, twelve months' probation."
We were immediately impressed by the fact that this entry did not dis-
close when the case began or what sentence was originally imposed or
when the sentence was originally imposed.
It occurred to us that this might be a fair case in which to ascertain
the time and energy involved in tracing the record history of a case, and
it was chosen for that purpose.
The first step necessary to trace the case back from the entry of
[128]
January 19, 1921, was to look back through the pages of the name index
under the letter "J," beginning with January 19, 1921. This required
looking through all names in six columns, each containing about 50
names written in a rather illegible hand. The name Blanche Jackson
was finally found under date of August 23, 1920, with reference to folio
8894. The next step necessary was the examination of the city journal
and execution dockets, to ascertain the volume in which folio 8894 or
the records of August 23, 1920, might be found. After handling several
of these volumes. Volume 14 was discovered to be the desired one, and
on folio or page 8894, together with another entry and six or eight other
cases, was found the following entry:
"Stella Brown, Blanche Jackson, soliciting for immoral act, affidavit filed,
warrant issued, defendants in court, case continued to date set opposite respective
names."
After the name of each defendant was the date, "September 14." Itwas
then necessary to turn over about 100 pages of this volume until arriving
at the pages dated September 14. The next necessary step was to look
carefully through the four large pages devoted to that date, with six to
10 cases on each page, until the names of Stella Brown and Blanche
Jackson might be discovered. The entry opposite their names: "de-
fendants in court, case continued to September 15." September 15 be-
ing the next day, it was comparatively easy to discover the pages devoted
to that day, and on the fifth or sixth subsequent page was found the
entry :
" Defendants in court and plead guilty, hearing is had, and each is sentenced
to thirty days and to pay the costs. Days suspended, one year probation, motion
in mitigation filed, case continued to September 18."
Turning over some 10 or 15 pages, the four pages devoted to Sep-
tember 18 were found, on one of which the entry for Stella Brown showed
that she had paid the costs, whereas the entry relating to Blanche Jack-
son was found on an entirely different page and read: "Case continued
to September 24." To find the pages devoted to September 24 required
the turning over of 20 to 30 intervening pages. Six pages were given to
September 24, and the entry "Blanche Jackson, continued to September
30," was found by a careful examination of these six pages. Twenty to
30 pages again intervened between these two dates of September 24 and
September 30, and on one of four "September 30" pages was the Blanche
Jackson entry: "Affidavit filed, warrant issued, defendant in court, case
continued to October 15." This is the form of entry usually used at
10 [ 129 ]
the veiy beginning of a case, and its use at this stage of the Jackson case
must have been an error. To reach the pages devoted to October 15
required the turning over of 50 to 70 intervening pages, and on one of
theOctober 15 pages was found the entry: "Continued to November 12."
Turning to the back of Volume 14 in hand, it was disclosed that it did
not reach November 12, and therefore Volume 15 had to be found and
examined. On about the fourth page occurred the entry: "Blanche
Jackson continued to November 27." Turning over the 60 to 75 inter-
vening pages and examining the four pages relating to November 27 was
found the entry: "Blanche Jackson, continued to December 17." Simi-
larly turning over from 60 to 75 pages intervening and looking through
the four pages devoted to December 17 was found the entry: "Blanche
Jackson, continued to January 12." Similarly turning over about 100
intervening pages and looking through the five pages given to January 12,
the following entry appeared: "Blanche Jackson, continued to January
19." Turning over the 20 to 30 intervening pages and examining the
four pages of January 19 was found the entry which had first attracted
our attention and which at the time of the examination was the last
entry of the case, namely:
" Blanche Jackson, motion in mitigation granted, sentence suspended, twelve
months' probation, case no. 44672."
The time and difficulties involved in searching the history of a case
cannot be fully realized from reading a mere statement such as the above.
To be understood they need to be experienced. If the offense happens
to be a State rather than a city case, there are eight or 10 pages of the
journal and execution docket for every date, as compared with four or
five pages in city cases. If the case happens to be one of a tj'pe of fre-
quent occurrence, such as violation of liquor law, traffic ordinance, or
being a suspicious person, a particular name which is being traced will
often be found in a column containing 8, 10, or 20 names, all grouped
imder one case involving the same offense. On one page of the journal
and execution docket defendant's name will be found in one group, and
on another page in the midst of an entirely different group, and on an-
other page entirely alone.
As has been stated above, the clerk in the court-room notes each
disposition or order on the back of the affidavit, and consequently one
might think that the history of the case can be most easily discovered
from these pencil memoranda on the back of the affidavit. However,
those memoranda do not constitute the official or authentic record.
[130]
They are in pencil, and written upon a document open to access and
examination by anyone.
In the Blanche Jackson case we did not stop with the journal and
execution docket. That docket showed that on September 15, 1920,
defendant was sentenced to thirty days and to pay the costs and that
the days were suspended. There followed a number of appearances in
court and continuances, and it seems strange that so much trouble should
have been taken to avoid the payment of .$2.80 costs. The file of original
papers was, therefore, examined, and the affidavit contained the pencil
notation: "Costs and thirty days, m.m. 9/18." This notation did not
say that the sentence of imprisonment had been suspended, and therein
differed quite vitally from the entry on the record. To explain this dis-
crepancy, the judge's docket or calendar for September 15 was examined.
This involved obtaining and looking through four volumes of calendars
for Room 1 to find September 15. This was necessary because there is
no indication on the back of any volume as to the period covered by it,
and the docket or calendar books in Room 1 are used only on alternate
days, so that September 14 docket or calendar would be in one volume
and September 15 in another. When this calendar for September 15 was
found, it disclosed that the case had been assigned to Room 2, and the
handling of two volumes of the court calendar for Room 2 was necessary
to locate the September 15 entries. These calendar books are not alter-
nate in Room No. 2 as in Room No. 1. The entry was finally found,
reading: "39 Blanche Jackson, sohciting for immoral act, jury waived,
G. C. and 30 days m.m. September 18 — 40 Stella Brown, soliciting for
immoral act, G. C. and 30 days, days suspended one year, m.m. Sept.
18": which, being interpreted, means that the sentence of Stella Brown
as to days was suspended, whereas the sentence of Blanche Jackson was
not. So the record of the case on the record of the court, namely, the
journal and execution docket, differs from the actual judgment of the
court as disclosed on the judge's docket.
Another point to note is that neither the files nor the records give
the name of the particular prosecutor who tried the case nor the name of
the defendant's attorney. The chief prosecutor may remember in a
general way the assistant who had charge of cases called in any one of
the court-rooms at a designated period. But even these designations
are not strictly adhered to, and the files and records themselves give
httle assistance to the chief prosecutor, the court, or the public in investi-
gating the efficiency of the work of any member of the force or in locating
responsibility in individual cases under examination. In contested cases
there is great need for communication with the defendant's attorney, and
[131]
in any study of the administration of justice there will arise occasion
when it becomes important to know the names of specific defendant's
attorneys.
In the civil branch of the Municipal Court, 28,463 cases were docketed
in 1920 — more, therefore, than in the criminal branch. Every one of
these civil cases had its space on the records in which every step in the
case, including names of attorneys on both sides, was recorded : another
indication of the relative solicitude shown for the administration of civil
and criminal justice.
Personnel
The man on the street, in his rough and ready appraisal of any insti-
tution, is apt to interpret it exclusively in terms of the ability and
character of the persons conducting it. Things go well because A is
honest or capable, or go badly because A is corrupt or inefficient. This
is a superficial view. The system of organization, the traditions of the
office or institution, community factors or forces, need to be analj^zed and
their effects pointed out. Undoubtedly the character and competence
of the men composing the prosecutor's office are important factors in
the result of its work. In truth, the competence and honesty of the
individuals in the office are at the same time an operating cause of the
standards attained and an effect of other conditions and factors in the
situation. The inadequacy of the men themselves, if such inadequacy
exists, would be a fact of the situation, just as the inadequacy of any
other facility engaged in the administration of justice in Cleveland.
Able and scrupulous men sometimes produce splendid results with
poor faciUties, and, more important, they will often improve the facil-
ities.
The municipal prosecutor's office has been Republican since January
1, 1916, the present being the third successive administration of that
political complexion. The table on page 133 gives the names of the
members of this office through four city administrations, with poKtical
affiliations, the period of service, age at commencement of service, years
at the bar at commencement of service.
In most human affairs there is no sharp dividing line between fact
and opinion; and this matter of the character and ability of an official
lies in the twilight zone. The subject is deUcate; dogmatic statements,
based on impressions, must be avoided. Conversations were held with
many Cleveland lawyers, practically all of whom seemed to agree that,
taking the office by and large, the caUber of members of this oflSce is not
[ 132 ]
proportionate to the positions they occupy. In a questionnaire sent to
all the members of the bar was the following request :
"Kindly state anything that occurs to you, in as great detail as possible, con-
cerning the administration of criminal justice in Cleveland, its merits and dcfect,s.
Please include your opinion as to the caliber of judges and prosecuting attorneys
and defendants' attorneys in criminal cases and methods of trial."
MEMBERS OF MUNICIPAL PROSECUTOR'S OFFICE
Years
Age at
Date
admitted
com-
ad-
mitted
to bar
to bar
Name
Time of service
mence-
at com-
ment of
service
mence-
ment of
service
Democratic
Frank S. Day
Jan., 1912 to 1916
30
1907
i'A
James G. Reyant
Jan., 1914, to Dec, 1916
34
1903
101-2
Francis W. Poulson
Jan., 1914, to Dec, 1916
24
1910
3H
Samuel W. Silbert
Jan., 1914, to Dec, 1916
33
1907
Q'A
Repubucan
James L. Lind (chief)
Jan., 1916, to Dec, 1919 1
27
29
1912
1912
3 '4
514
Herman E. Kohen
Jan., 1916, to Jan., 1917
2.5
1914
VA
Edward Stanton
Jan., 1916, to Dec, 1919
32
1913
2^
Edward Stanton (chief)
Jan., 1920, to Dec, 1920
36
1913
6H
E. J. Russick
Jan., 1916, to
28
1913
3.1^
V. A. Marco
May, 1916, to Oct., 1916
1912
4
Fred A. Irvine
Oct., 1916, to Sept., 1917
2.5
1914
2
W. D. Cole
Sept., 1917, to Feb., 1918
31
1912
.5
Nathan C. Beckerman
Dec, 1917, to Dec, 1919
31
1910
7K
Joseph Nuccio
Feb., 1918, to Sept., 1919
31
1917
Vi
John J. Sexton
Apr., 1918, to Dec, 1920
42
191.5
2A
John Novario
Sept., 1919, to
24
1917
2
A. h. Kreisberg
Feb., 1920, to
26
1916
W2
Sam Rosenberg
Dec, 1919, to
26
1917
3
Oscar Bell (chief)
Jan., 1921, to
41
1913
7H
Michael L. Sammon
Jan., 1921, to
45
1919
m
There were about 100 specific responses to that part of this question
which related to the prosecutors, and all of these with only two exceptions
declared these officers to be lacking in requisite ability. Neither the
question nor the answers differentiated between municipal and coimty
officers. General opinion was expressed that the men in the prosecutor's
oflBces are chosen for political reasons, and many asserted that in such
choices the community suffers from the practice of deliberately giving
the large racial or national groups of the community, such as the Poles,
other Slavs, Jews, Italians, and Irish, representation in the presecutor's
[ 133 )
offices. There can be no doubt there exists a lack of public confidence
in the freedom of the office from political and other influences operating
to bring fear or favor into the administration of the law.
In order to obtain an estimate which could not be considered as
biased by partisan considerations, confidential opinions were obtained
from a leading Democratic lawyer and a leading Republican lawyer,
both of whom are active in their party organizations and personally
acquainted with all the members of the prosecutor's office. The opinions
of these two men were startlingly identical. Each pointed out the
same one or at most two members of the office as able and the rest as
not sufficiently experienced or capable for the work.
With the office and the Municipal Court conducted as at present,
except for an occasional jury trial or argument in an appellate court, the
prosecutors do not have, or at least do not take, the opportunity to
demonstrate their ability either as trial lawyers or prosecuting attorneys.
It can be fairly stated as an unquestionable fact that they have not
aggressively attempted to improve and reform the administration of
justice in Cleveland, but have permitted themselves to drift with the
currents, political and otherwise, in which they found themselves. Every-
body consulted considered present Chief Prosecutor Bell to be an honest
man and an official with the best of intentions. But whether he has the
executive talents and driving power necessary to steer the ship in such
rapid and swirling waters still remains to be demonstrated.
The present salary scale of the office is as follows:
Chief prosecutor S4,000
First assistant 3,500
Second assistant 3,100
Three remaining assistants 2,900
134]
i
CHAPTEK V
OPERATION OF THE MUNICIPAL PROSECUTOR'S OFFICE
The Affidavit
PROCEEDINGS looking to a criminal prosecution are instituted
either by police or by the injured person. This injured person
corresponds to the private prosecutor in the English criminal prac-
tice, and is in most cases the chief prosecuting witness if the case comes
to a trial.
Proceedings instituted by the police officer are of two classes: those
in which an arrest has been made prior to issuance of any affidavit or
warrant, and those in which no arrest has been made at the time the
police officer takes the matter up with the prosecutor. The former class
consists generally of cases in which the police officer has caught the
offender in the act of the offense, such as an arrest for violation of traffic
regulations or the arrest of a drunken man for intoxication. Often when
the information at hand does not point to a definite charge, but the
police officer has reason to be suspicious of someone he sees lurking about
or in following a clue, he suspects the arrested person of being a partici-
pant in or having knowledge concerning the commission of the crime
under investigation, the suspected person is arrested by the police officer
as a "suspicious person."
In all cases, whether instituted by the pofice or by others, policemen
or prosecuting witnesses come to the pro.secutor's office for an affidavit.
This is the first pleading or formal beginning of the criminal prosecution.
Where the case is brought into the office by a police officer, an affidavit
is almost invariably issued if the facts recounted by the officer show the
commission of a crime, and, with a few exceptions, the onlj^ question
considered by the prosecutor is the nature of the charge to be made. In
most cases there is little doubt about the nature of the charge, and the
prosecutor's part at this stage of the case consists of hardly more than
the mechanical process of picking out from one of the compartments of
his desk the form containing the charge of the particular offense involved
and filling it in with the name of the person charged and the date. In
fact, even this slight mechanical detail is performed in a large number of
[ 135 ]
cases by the police officer himself, leaving the prosecutor nothing to do
but to affix his name. In fact, by reason of the rush, confusion, and con-
gestion in which the work is done, the prosecutor learns or hears the
facts only when the policeman himself has some doubt as to the nature
of the charge or the sufficiency of the facts and, on his own initiative,
presents his doubt to the prosecutor.
Sifting of Cases
Where the moving party is the injured person or prosecuting witness,
the case is not a major felony, and there are no reasons pressing for the
immediate arrest of the accused, the prosecutor follows the practice
of issuing a summons calling upon the defendant to appear at his office
at a designated time. This summons has no standing in law. Because
of the dignity of the form used and the fact that it is served by a uni-
formed policeman, it generally has the effect of bringing in the prospec-
tive defendant. The complaining party is told to return at the same
time, and the accused is then subjected to an informal examination, the
purpose of which is to ascertain whether the facts show an offense suffi-
ciently serious to warrant prosecution, and also incidentally to get
information about the case. The prosecutor, by this practice, holds a
sort of informal court of conciliation wherein he soothes the anger of the
prosecuting witness in matters which do not justify a prosecution. Thus
a certain amount of "sifting out" of charges takes place before they
become cases.
The present prosecutor estimates that more cases are thus dis-
posed of without prosecution than are placed upon the court dockets.
A former member of the office estimates that a case, whether dropped or
prosecuted, receives, on the average, three minutes' attention in the
office. The estimate is liberal.
Complainants frequently desire to use the prosecution or threat of
prosecution for purposes of collecting a claim or debt and have little
interest in criminal proceedings except as it may serve this purpose. A
danger arises, therefore, that in this preliminary and unofficial court of
concihation the prosecutor will permit himself to be used to further this
purpose, and even a danger that, through inadvertence or favoritism,
he will permit himself to u.se his position to aid in the collection of
doubtful or trumped-up claims.'
' An actual case occurred in 1919 which illustrates this evil: One Knox (the
names used are fictitious) was an expressman. One day in July, 1919, a man and
a woman came to his place of business and left an order with his colored helper to
[136]
The extent of this evil is difficult to discover. The present chief
prosecutor, feeling that some step toward decreasing the practice was
advisable, ordered that these office summons be personally signed in
longhand by the assistants issuing them, and not, a.s theretofore, by
means of a stamp. Reliance must, however, be placed upon the caliber
and character of the prosecutors themselves as well as the office record
or reporting system. Some preliminarj' sifting out of the cases is neces-
sary, and it would be unwise to issue an affidavit in every case
in which one is sought and thereby add to the already excessive num-
ber of cases.
Resuming the description of the work of the prosecutor in the prep-
aration of affidavits:
When he fails to allay the prosecuting spirit of the prosecuting wit-
ness and considers that there is sufficient proof of an offense, he is.sues
the affidavit. It is in this class of cases that the prosecutor actually
obtains some information about the case. Generally speaking, how-
ever, there is no particular book, paper, or file on which he puts
down what he has learned. There is no system whereby he transmits
this information to the trial prosecutor — that is, to the one who will
move a trunk from a given address to another given address. The next day they
again dropped in and changed the destination address. The helper called for the
trunk, found the lock broken, both straps broken, and one strap tied with a little
cotton string. The trunk was successively taken to the designated destinations, at
both of which it was refused, and then returned to Knox's premises, to be kept there
until the owner might call for it and claim it. About two weeks later the woman
who had left the order originally came to claim the trunk. She acknowledged that
the lock and straps had been broken at the time the order was originally given. In
order to identify her as the owner, Knox asked her a number of questions concerning
the contents of the trunk, which she seemed to answer correctly. On examining the
contents herself, she exclaimed that two shirt-waists and two pillow-tops were miss-
ing, and on being asked the value of the missing articles said, "S7.5." She denied
that she had ever given Knox or his helper orders to take her trunk. The next event
was a telephone call to Knox from an attorney, Henry Frith, who in a very bull-
dozing and insulting manner ordered Knox to find and surrender the missing articles.
Knox, of course, stated he knew nothing about them. Suit was thereupon brought
against him in the Municipal Court for S314. Then, late in November, over three
months after the woman's alleged discoverj' that there were articles missing from
the trunk, a police officer left a summons ordering Knox to call at the prosecutor's
office the following day. In the room of one of the assistant prosecutors to whom he
was directed, and whose name he did not know, he found this assistant prosecutor,
the woman, and Attorney Frith. He was informed that unless he settled immediately
he would be arrested. Refusing to pay anything, he was arrested on the charge of
receiving stolen property. When the trials were held, both the civil and criminal
cases were immediately dismissed, for there was not an iota of evidence against Knox.
[137]
try the case. The information ceases to function at this point and,
in fact, can hardly be called information for trial, since it is rather
scanty at best and it does not reach the trial prosecutor. Practically
speaking, therefore, the trial prosecutor has no information about the
cases which he tries and has made no preparation for them, and we have
seen the negative part which he plays in the actual trial. He may act
as a starter for the police or other prosecuting witnesses, but he has no
idea of what they will say.
County Prosecutor Does Not Participate in Early Stages
OF Case
A most important fact to note at this point is that the county prose-
cutor's office plays no part either in the preparation of the affidavit, the
determination whether there shall be a charge made or what the charge
shall be, the ascertainment of the facts upon which the affidavit is based,
or the preparation for trial at the preliminary hearing. Though a large
percentage of the cases are State cases, there is no system of cooperation
or coordination whereby the county prosecutor, who may have the
charge of and responsibility for the later and final stages of the case, gets
in touch with it in time to mold its preparation. Except in sensational
cases which are e.xploited by the newspapers at early stages, there is no
coordination between the police department and the county prosecutor.
Except as he reads about the cases in the newspapers, he never hears of
them until they have been sent by the Municipal Court to the grand jury.
There seems to be no lack of willingness on the part of the police
department to cooperate with the municipal prosecutor's office, and
when the prosecutor requests service from the police department in the
nature of preparation for the trial, such as the detection of facts, the
ascertainment of names of witnesses, and the like, such assistance is
promptly forthcoming. Such assistance is seldom requested, however,
except in the comparatively few cases in which the public is aroused or
the police officer who has made the arrest or is investigating the case has
sufficient imagination and energy to realize the problems involved and
to bring them to the attention of the prosecutor.
The up-to-dateness, adequacy, and expertness of the methods of
criminal investigation in use in Cleveland are matters which fall more
appropriately within the police division of this survey, but there is
nothing to indicate that the prosecutors are in any degree equipped by
education, experience, or interest to lead and educate the police depart-
ment in this respect.
Except in its activity as an informal court of conciliation, the part
[13S]
played by the municipal prosecutor's office prior to trial is largely the
preparation of the affidavits, and, as above stated, except in a relatively
small percentage of the cases, this preparation is a rather mechanical
affair. Of the other cases, that is, those in which the preparation of the
affidavit has involved the exercise of judgment and a knowledge of law,
there is no practical way of ascertaining, with a fair degree of statistical
accuracy, the percentage in which the prosecutor has exercised this
judgment and discretion with efficiency. The present county prosecutor,
when asked to explain the considerable percentage of cases "no-billed"
and "noUed" by him, charged the municipal prosecutor's office with
carelessness in the preparation of the affidavits. This resulted, he said,
in a large number of inaccurate charges; that is, of affidavits in which the
offense charged did not correspond to the provable facts.
Taking all the cases into account, therefore, while the affidavit is
correct in a great percentage of all cases, there are indications that, in
the small percentage of cases in which special skill is required, avoid-
able mistakes occur. Naturally, the percentage of these errors relative
to total number of cases is less significant and important than is the class
of cases in which these errors occur; and a few miscarriages of justice
by reason of an error in the charge, in cases of importance or cases which
have attracted public interest, is very damaging to the prestige of the
administration of criminal justice and, therefore, to its effectiveness as
a deterrent of crime.
Cases in Appellate Courts
The municipal prosecutor's duties also include the presentation of
the side of the city or State in the hearings by the appellate courts of
proceedings to reverse the judgments of the Municipal Court in criminal
cases. Thorough preparation of this work is of prime importance. It
is in these cases that an important part of the criminal law is interpreted
and established. Furthermore, professional criminals, who know the
ropes, are more apt than other types of defendants to carry cases up,
and the effectiveness of law enforcement is especially important in their
cases. And, as defendants with large financial means are more able to
appeal cases than those of lesser means, it is highly important that this
advantage be offset and minimized to the greatest extent consonant
with justice.
A study was made of the relative number of cases in the Court of
Appeals in which the municipal prosecutor filed or failed to file briefs,
the study covering a period of two years — 1919 and 1920. The results
are shown in Table 6. This record shows that the prosecutor filed a
[139]
brief in only two of the 43 completed cases. It is noteworthy that he
had filed no brief in any of the 13 cases in which the judgment of con-
viction was reversed, that is, in which he lost the case before the appellate
court. In judging this record, the fact should be kept in mind that the
prosecutor has had no stenographic assistance.
TABLE 6.— OUTCOME OF CASES CARRIED TO THE COURT OF AP-
PEALS, 1919 AND 1920; CLASSIFIED ACCORDING TO THE FILING
OF BRIEFS
Final disposition of case by
Court of Appeals
No brief
filed by
either
side
Brief by
plaintiff-
in-error
only
Brief by
both plain-
tiff-in-error
and prose-
cutor
Total
Judgment affirmed
Judgment reversed
Dismissed at costs of plainti£f-in-
error
Dismissed for want of preparation
1
3
1
7
17
10
1
1
2
20
13
2
8
Totals completed cases
12
29
2
43
Cases not Finally Disposed op:
Prosecutor in default of brief —
Four months or more
Three months or more
Two and a half months or
more
Two months or more
One month or more
Plaintiff-in-error in default of
brief —
Four and a half months
Two and a half months
1
1
2
* *
2
Totals incomplete cases
2
6
Total all cases
51
Statistics of Results of Cases
These are the methods of preparation and trial. What is the quality
of the product, so to speak— what are the results? The mortality tables
(Tables 1, 2, and 3) give the percentages of the types of dispositions
of the cases — "nolles," dismissals, pleas of guilt, convictions upon trial,
and so on. As stated in Chapter II, these tables have been made from
every tenth case, being a tabulation of the results of one-tenth of the
cases. Tables 7, 8, and 9 give these results or dispositions in accordance
with a general classification of offenses.
[140]
A
TABLE 7.— CITY CASES, MUNICIPAL COURT, 191»-20; DISPOSITION OF
CASES CLASSIFIED BY CHARGES
Verdicts of guilty
Other
Charge
Plea
IMea
Plea
of
Plea not
guilty
No
papers
Nolle
prosaed
dis-
posi-
Dis-
charged
Total
un-
of
changed
tion
known
guilty
guilty
to
guilty
Traffic law violation
ti
345
161
11
10
25
2
48
608
Disorderly conduct
1
96
126
1
1
4
59
295
Suapicioug person
1
22
126
5
10
T2
3
55
294
Intoxication
180
58
8
U
1
18
276
Offenses against chastity
85
74
10
3
IB
1
28
217
Gambling
1
8
23
4
IS
54
Offenses against public
health
9
8
3
23
Offenses against public
safety
14
3
1
1
20
Offenses against property
2
9
3
15
Miscellaneous
16
10
1
i
2
30
Total
9
777
598
36
27
141
12
232
1,832
TABLE 8.— STATE CASES, MUNICIPAL COURT, 1919-20; DISPOSI-
TION OF CASES CLASSIFIED BY CHARGES
Charge
Offenses against pub-
lic safety
Offenses againat the
person
Gambling
Offenses against
property
Violation of liquor
laws
Offenses against
chastity
Offenses against minors
Offenses against pub-
lic justice
Frauds
Offenses against pub-
lic health
Miscellaneous
Total
Found gtiilty
Plea
un-
known
33
Plea
of
guilty
310
42
79
99
125
55
6
11
8
4
12
751
Plea
of
not
guilty
67
170
124
91
29
37
23
10
12
Plea
not
guilty
changed
to
guilty
16
1
II
4
20
6
No
papers
13
19
Nolle
prosaed
15
4
15
12
89
Dis-
charged
want
of
prose-
cution
87
Other
dis-
posi-
tion
10
7
Dis-
charged
23
109
58
32
30
31
7
308
Total
402
283
262
229
141
46
38
26
16
39
141
The meaning of the terms used are too well known to require much
explanation. "Discharged" are those in which, after trial, the court
decided for the defendant. The Municipal Court has no jurisdiction to
impose judgment in a felony case, even if the defendant enters a plea of
guilty; so the "bound-over cases" in Table 9 include those in which
there was a plea of guilty. This table shows that only 87 out of 683 cases
resulted in the discharge of the defendant; and that, out of 555 cases
which were heard, 468 were bound over to the grand jury, indicating, in
the hght of the results of the cases in the grand jury and county court,
either that the mill of the Municipal Court does not perform its sifting
functions efficiently, or that the cases are not well prepared.
TABLE 9.— STATE EXAMINATIONS, MUNICIPAL COURT, 1919-20; DIS-
POSITION OF CASES CLASSIFIED BY CHARGES
Charge
Bound
over
Dis-
charged
Nolle
pressed
Guilty
of leaser
offense
Dis-
missed
Other
dispo-
sition
Total
Offenses against persons
Offenses against property
Offenses against peace
Offenses against public safety
Forgery offenses
Offenses against chastity
Frauds
Offenses against public justice
Minors
Miscellaneous
181
144
82
27
11
11
6
3
1
2
37
24
8
9
2
i
1
3
2
18
19
2
5
6
2
1
4
3
13
27
i
i
3
4
i
2
2
1
'i
8
1
1
i
i
260
219
93
43
22
16
9
S
8
5
Total
468
87
60
42
14
12
683
Dispositions Without Trial
Attention should now be given the practice in those types of dis-
position whereby, without trial, cases are dropped or dismissed by or at
the instance of the prosecutor, or he and the court accept a plea of guilt
of a lesser offense than that charged. Tables 1, 2, and 3 show 1.47 per
cent, of the city cases, 0.97 per cent, of state misdemeanors, and 1.78
per cent, of state examinations are "no papered," and 7.70 per cent.,
4.57 per cent., and 7.95 per cent., respectively, are "nolled." In city
and state misdemeanor cases there are, practically speaking, no degrees
of offenses, and nothing to be gained by a plea of guilt of a lesser or dif-
ferent offense. If the charge be a felony, however, acceptance of plea
of guilt of a lesser offense gives the Municipal Court jurisdiction to
impose a fine or short imprisonment in a workhouse or other milder
place of detention as compared with more lengthy confinement in the
penitentiary if the defendant be ultimately found guilty of the felony.
[142]
As shown by Table 3, these lesser pleas were accepted in 1.15 per cent.
of the state felony cases. A study of the time which elapses between
arrest and the "nolle" disclosed that in city cases there was an average
of 12.5 days, and in state misdemeanors, of 11.3 days.
Numerous situations arise which justify the dropping of cases with-
out trial, and there is nothing illegitimate or necessarily suspicious about
the " nolle " of a case. Nor are these percentages on their face necessarily
excessive. But this power of the prosecutor is so dangerous, so fraught
with possibilities of carelessness or corruption, that, both for the sake
of the administration of justice and for the protection of the prosecutor
himself against unjust suspicions, it is of the utmost importance that its
exercise be surroimded with all practical safeguards.
"No Papers" or "No-papering"
The expression "no papers" needs explanation. When an arrest is
made prior to issuance of an affidavit, the case goes upon the docket and
is therefore called in court. If the prosecutor decides at that early stage
that the provable facts do not justifj' bringing any charge, no affidavit
is issued, and, when the case is called in court, he responds that there are
"no papers," and that is the end of the case. In "nolled" cases, on the
other hand, the affidavit has been issued — that is, a charge has been
made, and the "nolle" represents the determination on the part of the
prosecution that, though the situation may have justified the making of
a charge and filing of an affidavit, the absence of adequate proof or some
other situation makes it just or advisable to drop the case at that point.
The word "nolle" is an abbreviation of nolle prosequi, meaning "I am
unwilling to prosecute."
This "no-papering" procedure has no statutory basis. No such pro-
cedure is mentioned in the statutes or recognized in common law criminal
procedure. Consequently the law does not throw safeguards around its
exercise, and, as actually practised in the Municipal Court, the prosecu-
tor simplj- announces "no papers" without stating any reason, and the
court hears nothing and does nothing except note "no papers" on the
docket. An experienced official connected with the Municipal Court,
when asked to explain the sort of situation in which "no-papering" was
applied, answered: "If Burns is arrested and when the officer comes
down here he finds that somebody knows Burns and that he has lived
around Cleveland for a while, is a pretty good fellow, and will probably
never be in trouble again, we simply decide never to go ahead with the
case, and the case is marked 'no papers.' "
In almost all "no-papered" cases it is apparent that the trial prosecu-
[143]
tor has no information as to the reasons for dropping the case, and
simply accepts the word of the police officer. As a matter of fact, there-
fore, somebody in the police department, and not the court or prosecutor,
makes the decision. Neither in the records or papers of the court nor in
the files of the prosecutor's office is any statement or notation whatever
made as to the reasons for "no-papering" the case. The reason, if
ascertainable at all, is to be found only in the memory either of the
police officer who gave the tip to the trial prosecutor to "no paper" the
case, or in the memory of the office prosecutor who gave the tip to the
poUce officer to give the tip in turn to the trial prosecutor.
NOLLES
The statutes of Ohio contain no provision regulating practice in enter-
ing of noUes in the Municipal Court. Section 2919 of the General Code
of Ohio prohibits the county prosecutor from entering a nolle without leave
of court and without good cause shown in open court. There is no corre-
sponding provision for the municipal prosecutor or Municipal Court.
Naturally, the court can exercise some control, but even where the law
prescribes consent of the court, the prosecutor is most instrumental in
determining the question, for the court is necessarily dependent upon the
prosecutor's statement of facts upon which a nolle is based. And in the
hurly-burly of the Municipal Court nolles requested or suggested by the
prosecutor are granted as a matter of course.
The nolle sometimes takes place during the trial of the case, when the
developments at the trial suggest to the prosecutor that the provable
facts are not sufficient, and sometimes the judge himself suggests a nolle.
No record or notation is made, however, as to the reasons for the nolle
nor at whose instance it was allowed.
In other cases the nolle is announced by the trial prosecutor just as
the case is called. If he knows of the reasons, he seldom states them,
and generally he acts upon word from the police officer in the case or
from one of the office prosecutors. It is quite possible that he might
have reasons of his own of which no one else knows and which are com-
municated to no one else. Whether the determination to "nolle" the
case has its birth with the trial prosecutor, police officer, or an office
prosecutor, there is no memorandum of such reasons made, with the
exception that in cases of death or personal injury arising out of traffic
violations there is some sort of a vague requirement that the reason for
dropping the case be noted on the so-called "yellow card" in the police
department. As we shall soon see, the rule is indefinite and its ob-
servance irregular.
[144 1
There is no regulation whereby permission to "nolle" the case is re-
quired from the chief prosecutor. For a short time after he came into
office present Prosecutor Bell considered the enactment of such a regula-
tion, but decided that he did not have the necessary clerical assistance.
In addition to the general statistics for 1919 and 1920, an intensive
study was made of cases "no-papered" and "nollcd" between January
17 to 31, 1921. These were the two weeks which preceded the com-
mencement of this survey, and sufficiently recent to test the practice.
Following is a list of these cases:
"NO PAPERS"
City Caseb
No.
Charge
44735
Traffic ordinance
44872 (two defendants)
Suspicious person
State Misdemeanors
70863
Obtaining goods by false pretenses
71012
Obtaining money by false pretenses
71261
Liquor law
7128.3 (two charges)
Petit larceny
71321 (two defendants)
Liquor law
State Felonies
70852
Fugitive from justice
71297
Manslaughter
NOLLES
City Cases
No.
Charge
44879
Traffic ordinance
44866
Traffic ordinance
44660 (two defendants)
Traffic ordinance
44667
Suspicious person
44697 (three defendants)
Suspicious person
44706
Bread ordinance
44725
Suspicious person
44754
Traffic ordinance
44780 (four defendants)
Suspicious person
44796 (two defendants)
Suspicious person
44815
False police report
44822
Traffic ordinance
44829
Disorderly conduct
44831
Suspicious person
44871
Suspicious person
State Misdemeanors
70877
Conversion
70900
Liquor law
70970
Assault and battery
70985^
Liquor law
70989
Liquor law
71021
Assault and battery
71034
Illegally practising medicine
71039
Exhibiting scheme of chance
11
[145]
NOLLES — State Misdemeanors — (Continued)
No.
Charge
71091
Liquor law
71212
Conversion
71245
Assault and battery
71229
Liquor law
71247
Petit larceny
71249
Conversion
71254
Adultery
71255
Fornication
71266
Auto law
State Felonies
70853
Fugitive from justice
70859
Forgery
70861
Operating motor vehicle without owner's consent
71235 (three defendants)
Robbery
71303
Operating motor vehicle, etc.
70911
Obtaining goods under false pretenses
70912
Issuing check to defraud
70917
Carrying concealed weapons
70947
Fugitive from justice
70959
Issuing check to defraud
71101
Issuing check to defraud
71279
Carrying concealed weapons
The prosecutor and his assistants were asked to give the reasons for
dropping these eases. In practically none of them were they able to
remember the reason. This was quite natural in view of the enormous
number of cases handled. In none of them, however, did they go to any
record for the answer. They described, in an abstract manner, various
types of recurring situations which they treat as justifying the entering
of a nolle, but did not concretely, by means of their recollection or refer-
ence to a record, bring any of these cases within these types. They did
state that in manslaughter, personal injury, or property damage cases
arising out of traffic accidents, reasons were noted upon the yellow sheet
of the case in the pohce department. This trail was then followed:
The pohceman making the arrest, making the investigation, or taking
the complaint, if the case starts with a complaint to the police depart-
ment, makes out a report with an original and three carbon copies. The
original is white, two of the carbons are pink, and one carbon is yellow.
The white copy goes to the record room at the central station. One of
the pink copies is kept as a permanent record in the precinct. The other
pink copy goes either to the city law department or to the detective
bureau or to any other department which might be particularly inter-
ested in the case. The yellow copy is kept at the precinct and posted on
a board. These yellow sheets include all sorts of complaints and reports,
including petit larceny, theft of automobiles, unlocked doors, etc.
If the case be a traffic case, then, when it comes on for hearing in the
[146]
I
Municipal Court, the officer usually takes this yellow sheet with him.
This action is, however, optional and not uniform. In other classes of
cases the yellow sheet is seldom taken. When the officer does take the
sheet, the prosecutor may make some notation on it as to the disposition
of the case, but there is no regular practice of that kind. The sheet is
brought back to the precinct station and posted with the others there on
file. These yellow sheets are apparently kept so as to allow the reporters
or anybod}'- else who is interested easy access to the day's grist of acci-
dents, crimes, etc. Every month or two most of these yellow sheets are
thrown away, so that they do not in any sense constitute a record of the
police department.
We examined the complete files of the yellow sheets in the second and
fourth precincts. In the second precinct some 600 to 800 of these reports
were examined, running from March 12 to June 12, 1921. Only two of
them contained notations by any prosecutor. These notations were as
follows:
6/7 " No papers. No apparent violation. M. L. Samman, Assistant Prosecutor."
(This was a ease involving injury of a person from an automobile accident.)
" Insufficient evidence. S. Rosenberg, Prosecutor. 5/17/21." (This was a case
involving damage to property arising from an automobile accident.)
At the fourth precinct from 200 to 300 of these sheets were examined,
covering the period from May 25 to June 13, 1921. There were only
three entries of any sort by a prosecutor — ^all three automobile cases.
These entries were as foOows:
"WUl send out notice to Rawlin if Chizek wants it. Prosecutor Novario."
(Chizek was the complaining witness.)
"No papers. Prosecutor Novario."
"Papers issued for careless driving and lights. M. L. Samman, Assistant
Prosecutor."
These few cases with prosecutor's notations did not constitute all the
traffic accident cases. The pink sheets, which are a part of the permanent
records in the precinct office, never go to the prosecutor. The accident
files in both Precincts 2 and 4, covering about two months, were ex-
amined without disclosing a single notation by a prosecutor. These
yellow sheets to which the prosecutor had referred cannot serve as the
slightest pretense for a record system. The prosecutor sees them in a
very restricted class of cases, and, even in that class, sees them errat-
ically and only when the police officer happens to bring one along.
They are at best temporary memoranda in the police stations.
[147]
The following cases were selected from the foregoing list of two weeks'
"no papers" and nolles, and the police station records or sheets, to which
the prosecutor had referred, were examined, with the following results:
First Precinct
No. 70861 William Proskner. Charge, operating motor vehicle without consent of
owner. Disposition, nolle. The police record room had no record what-
ever of this case. The private files in Chief of Pohce Smith's office,
however, showed that the case was taken directly to the grand jury, the
defendant indicted, and later found guilty and sentenced to serve one to
fifteen years by Judge Powell. There was no notation anywhere as to
the reason for the nolle in the Municipal Court, and it was only an acci-
dent that, while searching Chief Smith's office on entirely different mat-
ters, this notation in this case happened to be seen.
No. 70915 Ben Weiger. Operating motor vehicle. Dismissed for want of prosecu-
tion. There were no records on this case.
No. 71194 Rafel Majeia. Grand larceny. Discharged. No record.
No. 71195 Marie Moore. Grand larceny. Discharged. No record.
Second Precinct
No. 71297 Henry Pack. Manslaughter. "No-papered." The defendant, while
operating an auto, struck and killed two persons. On the record at the
central office and on the pink sheet in the precinct appeared the follow-
ing entry:
"Presented the case to Prosecutor Russick, who said there was not
sufficient evidence to issue a warrant for the driver, who was arrested,
charged with manslaughter."
There were no notations on the record either at the central office or the
precinct made by the prosecutor, and the yellow sheet of this case had
either been destroyed or mislaid before the time of the examination.
Arthur Brooks. "No-papered." Arthur Brooks killed Chapman Whippel while
driving an auto at East ISth Street and Payne Avenue, N.E. In the
report in the record room at the central station and on the pink sheet
in the precinct station appears the following: "I presented the facts
and statements of the witnesses in the above case to Prosecutor
Novario, who issued 'no papers' as there was no violation of city
law or State ordinances." The yellow sheet on this case had either
been lost or destroyed and was not available at the precinct, and there
was no notation anywhere by the prosecutor as to why the case had
been "no-papered."
Fourth Precinct
No. 71062 Joseph Hopkins, Edward Maekin. Robbery. No record.
No. 71235 Harvey Hubner. Robbery. Nolle pros. No record.
Robert M. Harris. Robert M. Harris was driving 30 or 35 miles per hour, skidded
and ran up on to sidewalk and hit three children, killing two of them,
and was arrested, charged with manslaughter. There was no entry
showing disposition of this case.
[148]
Sam Ettinger. Sam Ettinger, on April 4, was going cast on Superior Avenue, N.E.,
about SO or GO miles per hour, struck another car, and his car turned
three complete somersaults in the air and stopped about 100 feet further
down the street and killed two of the passengers in Ettinger's machine.
The records at the central office and precinct showed no disposition of
this case. As a matter of fact, Ettinger was discharged by the court,
as shown by the memorandum of proceedings in Municipal Court on
April 22.
Acceptance of Pleas of Lesser Offense
Section 4583 of the General Code expressly permits the Municipal
Court, in a felony case, when the court is of the opinion that the offense
is only a misdemeanor, to accept a plea of guilty of the misdemeanor or
order the prosecutor to file an information for the misdemeanor and dis-
charge the felony case. The statute does not specify any safeguards.
Present practice of the prosecutor's office appears to be as loose and
haphazard, without record and without regulation and without con-
centration of responsibility, as in the case of nolles.'
' The case of Charles McCormack furnishes an illustration of the possibilities
in existing methods and practices. McCormack was arrested on the pubhc square
of Cleveland on the night of Saturday, April 23, 1921, for pocketpicking on April 21.
On the night of the arrest, about midnight. Assistant Municipal Prosecutor Kreis-
berg came to Lieutenant C.'s desk at the central police station with two other men
for the purpose of inquiring about getting a bond for McCormack. McCormack's
attorney was X, closely related to a well-known, influential Republican "politician."
The police blotter contains the words "Pocketpicking" and "Picked the pocket
of William Smith." In a different ink, lines were drawn through these words, and,
in both different ink and handwriting, there was substituted, "Petit larceny" and
"stole S33." The affidavit charges petit larceny; the bail bond charges pocket-
picking. The former is a misdemeanor, the latter a felony. When the case was
called before Judge A. on Monday morning, McCormack plead guilty and was fined
$50 and sentenced to thirty days. A motion for mitigation of sentence was over-
ruled. The records contain no statement of reasons for or justification of this reduc-
tion. The case appeared as No. 25 on the prosecutor's docket for April 25, and
appeared as No. 24 on the judge's docket in Judge A.'s room. The docket in Room 1
was written in green ink, and in the column for entering the charge appeared the
charge "pocketpicking," over which, however, in pencil, was written "petit larceny."
On the docket in Judge A.'s room, in which the case was heard and the entire docket
of which was written in pencil, appears the word "pocketpicking" in pencil of the
same color as the rest of the docket, and over this in red pencil, "petit larceny."
Petit larceny does not bear to pocketpicking the relation of lesser degree of the same
type of offense, as, for instance, manslaughter is a lesser degree of homicide than
murder, or petit larceny a lesser degree of the same offense as grand larceny.
The following is McCormack's police record, according to the records in the
Biu'eau of Criminal Identification of the Cleveland police department. Lieutenant
[149]
Suspension of Sentences
The mortality tables (Tables 1, 2, and 3) give the percentages of cases
in which sentences were wholly suspended or reduced or carried out.
Tables 10, 11, 12, and 13 contain a more detailed analysis of the suspen-
sions of sentences in the Municipal Court, classified both as to nature of
charge and as to severity of the original sentence.
The high percentage of mitigations and suspensions, particularly in
certain classes of cases, indicates an abuse or mistaken practice some-
where. The question arises as to the part played by the prosecutor.
Frequently the court suspends the sentence immediately after rendering
judgment at the end of the trial, and, therefore, in the presence of the
prosecutor. In other cases the suspension of sentence takes place at an
unannounced and unscheduled time, frequently without the presence of
Koestle, in charge of the bureau, states that Charles and Nicholas McCormack are
the same person.
Record of Nicholas McCormack, alias William McKay, alias Harry Wilson, alias
Frank Martin, alias Thomas Ward. Photo No. 17249, Cleveland, O., gallery.
As William McKay arrested at Elmira, N. Y., June 6, 1907. Charge, suspicious
person. "P.P." Given hours to leave city.
As Nicholas McCormack, No. 788, arrested at Jersey City, N. J., November
10, 1908. Charge, pocketpicking. January 18, 1909, discharged by trial, and was
arrested in court and taken to Brooklyn, N. Y., by officers from that city.
As Harrj' Wilson, No. 714, arrested at Syracuse, N. Y., June 9, 1910. Charge,
disorderly person. "P.P." June 11, 1910, paroled by Judge Ryan.
As Frank Martin, No. 4442, arrested at Kansas City, Mo., November 24, 1910.
Charge, "P.P." November 26, 1910, fined $25. Paid.
As Thomas Ward, No. 6665, arrested at St. Louis, Mo., August 8, 1912. Charge,
pocketpicking. Picking pockets on street cars with George Scott, No. 6664, and
August alias Gus Murphy, No. 666, stole a pocketbook containing S80, October 30,
1912. Case of Thomas Ward, convicted of grand larceny, and sentenced to two
years, Jefferson City, Mo., penitentiary. Appealed to Supreme Court and released
on S3000 bond.
As Thomas Ward, No. 5601, arrested at Detroit, Mich., August 4, 1913. Charge,
suspicious person, "P.P."
As Frank Martin, No. 34367, arrested at Philadelphia, Pa., December 30, 1916.
Charge, inmate of gambling house.
As Nicholas McCormack, No. 4279, arrested at Pittsburgh, Pa., December 7,
1917. Charge, "P.P." December 8, 1917, fined $100 or thirty days in workhouse.
Paid.
As Nicholas McCormack, No. 16177, arrested at Los Angeles, Cal., May 1, 1918.
Charge, suspected pickpocket.
As Nicholas McCormack, No. 17249, arrested at Cleveland, O., June 17, 1918.
Charge, suspicious person. Suspected pickpocket. Taken from railway train at
Union Depot, June 17, 1918. June 17, 1918, released to leave city.
[150]
or consultation with the prosecutor. Even when he is present the prose-
cutor rarely protests or participates in any way in deliberation upon the
question of suspension. Representing as he does the community, and
being that representative presumably most familiar with the facts con-
cerning both the offense and the offender, it would .seem to be the proper
function of the prosecutor to advance the considerations favoring or
contradicting the suspensions. Sometimes he does not perform this
function because the court has not given him the opportunity. There is,
however, no indication that he has protested this e.xclusion or made any
vigorous attempt to do his part.
TABLE lO.^TATE CASES CLASSIFIED BY
CHARGES
AND BY DISPO-
SITIONS AND DEGREE OF SUSPENSION OF SENTENCES
Dispositions of cases
Results of sentences
Charge
No
In:
Fine
and
Sen-
tence
Sen-
tence
Sen-
Total
sen-
Fine
pris
3n- im-
Total
wholly
partly
tence
sen-
tence
me
nt prison-
cases
sus-
sus-
exe-
cuted
tences
ment
pended
pended
Assault and battery
1S4
114
2(
) 71
395
72
38
101
211
Auto law violations
43
211
28
291
20
92
136
248
Gambling
63
217
2
283
115
41
64
220
Liquor law violations
51
173
224
8
38
127
173
Against public safety
31
14S
i
180
17
20
112
149
Petit larceny
34
51
it
) 68
179
44
20
81
145
Against chastity
42
22
i;
) 58
141
47
15
37
99
Against property
32
27
r 17
83
9
14
28
51
Against minors
17
3
(
) 20
46
24
1
4
29
Against public justice
11
14
i
i 3
38
3
24
27
Frauds
8
7
'. 9
26
's
3
7
18
Against public health
7
8
1
16
1
3
5
9
Against person
5
1
7
1
1
2
Desecration of Sabbath
1
4
5
1
3
4
Intoxication
2
3
5
3
3
Against public peace
3
1
4
1
1
Misconduct in public office
2
2
2
2
Against State
i
1
Forgery
1
1
Miscellaneous
9
i5
'2
26
5
4
's
i7
Total
545
1,019
10
J 284
1.953
372
293
743
1.408
The whole practice regarding suspension of sentences is excessively
loose. Much of it is of doubtful validity. The statutes provide for sus-
pension of sentence pending error proceedings in upper courts. The
statutes also provide for suspension of sentence of imprisonment with a
specified period of probation, the final carrying out or discharge of the
sentence to be dependent upon the results of the probation period.
Statutes furthermore provide for suspension of a sentence of a fine for
a specified period during which the defendant is given opportunity to
pay the fine. In practice these limitations are by no means observed.
[151]
TABLE 11.— CITY CASES CLASSIFIED BY
CHARGES
AND
BY DISPO-
SITIONS AND DEGREE OF SUSPENSION OF SENTENCES
Dispositions of cases
Results of sentences
Charge
No
Im-
Fine
and
Sen-
tence
Sen-
tence
Sen-
Total
sen-
Fine
prison-
im-
Total
wholly
partly
tence
sen-
tence
ment
prison-
ment
sus-
pended
sus-
pended
cuted
tences
Violation traffic law
88
510
1
9
608
69
184
287
520
Disorderly conduct
71
93
68
63
295
92
12
120
224
Suspicious person
142
7
39
106
294
61
12
79
152
Intoxication
31
165
43
37
276
66
27
152
245
Offenses against chastity
48
75
40
54
217
68
28
73
169
Gambling
22
32
54
13
4
15
32
Offenses against public
health
7
14
1
1
23
3
5
8
16
Offenaea against public
safety
2
18
20
3
1
14
18
Offenses agamat property
4
4
7
15
6
1
4
11
Miscellaneous
5
24
i
30
5
4
16
25
Total
420
942
193
277
1,832
386
258
768
1.412
Sentences of imprisonment are suspended without probation for a definite
period, and sentences of fines are suspended without a condition concern-
ing the payment of a fine. Whatever the duties of the judges, it is un-
questionably the duty of the prosecutor to watch the execution of the
sentences so as to call to the attention of the court, or the appropriate
official, instances in which the law is not being obeyed. As attorney for
the public he can hardly conceive his work as completed without some
attempt to ascertain whether the judgments he obtains correspond to the
law and are carried out.
TABLE 12.— SENTENCES CLASSIFIED BY TYPES AND BY DEGREE OF
SUSPENSION, STATE CASES
Disposition
Fines
Impris-
onment
Fines and
impris-
onment
Total
Wholly suspended
Partly suspended
Executed
184
209
549
80
10
103
122
39
116
386
258
768
Total
942
193
277
1,412
The suspension of a sentence is often justified as a sword hanging over
the defendant. The old sentence is made a hostage for future good con-
duct. There is obvious merit in this. The trouble is that the theory is
[152]
not carried out. With rare exception the suspended sentence is promptly
forgotten by everybody, and if the defendant comes back into the court
upon a new or even the same charge, seldom if ever is the old sentence
remembered.
TABLE 13.— SENTENCES CLASSIFIED BY TYPES AND BY DEGREE OF
SUSPENSION, CITY CASES
Disposition
Fines
Impris-
onment
Fine and
impris-
onment
Total
Wholly suspended
Partly suspended
Executed
213
207
599
41
17
47
lis
69
97
372
293
743
Total
1,019
10.5
284
1,408
Mitigation of Sentences
Mitigation of sentences is made upon motion regularly set for hearing.
This gives the prosecutor full notice of the time when the motion will be
considered; he is generally present in the court and has opportunity to
advance arguments in favor of or against the mitigation. As with total
suspensions, however, in practice he rarely takes any but a passive or
negative part.
Section 13696 of the General Code of Ohio provides:
"Testimony After Verdict or Confession, to Mitigate Penalty. —
When a person is convicted of an offense, punishable, either in whole or in part,
by a fine, the court, by motion, may hear testimony in mitigation of the sentence.
The court shall hear such testimony at the term at which the motion is made, or
may continue the case to the next term or like terms as the case might have been
continued before verdict or confession. The prosecuting attorney shall attend
such proceedings on behalf of the State, and offer testimony necessary to give the
court a true understanding of such case." (R. S. No. 7320.)
This careful treatment of motions in mitigation of sentence, including
presentation of evidence by the prosecutor, is seldom observed. In prac-
tice the prosecutor conceives that his duty has been done when the trial
of the case is finished and sentence has been pronounced. One of the
judges of the Municipal Court described with considerable detail the
procedure followed by him. The description made it apparent that cases
before him receive more trial after sentence than before; that the facts
are more carefully looked into after trial and verdict than before; that,
in short, with very slight and casual information concerning the facts,
11531
judgment is rendered and sentence imposed, and then a more careful
investigation of facts is made in passing upon a request for mitigation or
suspension of the sentence. There is much to indicate that the practice
is not limited to this judge. This shows a tendency to view the problem
as one of treatment of the defendant as an individual rather than one of
law enforcement. Such mingling of distinct purposes or theories regard-
ing crime and the criminal intensify the difficulties of the prosecutor.
His position is today solely that of a law enforcement officer, and his pro-
fessional training is a training for law enforcement. The law which he
enforces, however, apphes to the execution of the sentence as well as to
the commission of the crime, and this portion of his duties is almost
completely neglected.
The Bail Bond
Immediately upon his arrest the defendant is confined in the police
station or city jail, unless he gives bond to secure his appearance at the
hearing of the case, generally set for the following morning. In all cases
except felonies the amount of this first bond is fixed by the clerk of the
court. In felony cases the amount of the bond is fixed by one of the
judges of the court, who, if not sitting at the time, is reached over the
telephone. There is no regular rule or practice for consultation with the
prosecutor. The judge may ask the prosecutor's advice, or the prosecutor
may himself initiate a conference with the judge.
If, on the hearing, the defendant is convicted and sentenced and
desires to carry the case to an appellate court, or if, in a felony case, he is
bound over to the grand jury, he is required to give a second bond to
secure the prompt filing of his case in the upper court or his appearance
when arraigned, the amount of which is fixed by a judge of the court.
Bonds to be given thereafter will be fixed by the Common Pleas or other
higher court. The sufficiency of the surety is passed upon by the bond
commissioners imder a statute recently enacted.
The prosecutor, therefore, does not receive from the law the responsi-
bility for determining either the amount of the bail bond nor the suffi-
ciency of the surety. It can, without injustice, be said, however, that
amid all the abuses regarding bail bonds, such as the illogical variability
in amounts demanded, the inadequacy of the sureties, or the use of the
professional bondsman, the prosecutor has been quiescent, though he is
in position to know most of the evils. He should be best fitted by posi-
tion and experience to be the public's crusader against these abuses.
There is, however, in relation to bail bonds in municipal cases, a
definite statutory duty imposed upon the municipal prosecutor, namely,
[ 154 ]
that of enforcing the bond after forfeiture. Bail bond collection cases are
treated as civil, not criminal, and therefore placed in charge of the civil
branch of the Director of Law's office. This work, however, constitutes
an exceedingly important part of the administration of criminal justice,
and an examination of the way in which it has been performed is properly
included in a survey of the prosecution. The importance of the work can-
not be overstated, since the bail bond fails to perform its part in the
administration of criminal justice if there be a habitual and known failure
to enforce the forfeited bond.
Table 14 gives the statistics of number and amount of forfeited bonds
in municipal cases, with the judgments obtained and amount collected
thereon covering the period January 1, 1916, to May 20, 1919. These are
the latest data collected by the oflBce of the auditor of the State of Ohio.
TABLE 14.— NUMBER AND OUTCOME OF SUITS
UPON FORFEITED
BONDS
Number
of bonds
Amount
Bonds forfeited and delivered to Department of Law for col-
lection
143
861,200.00
Suits filed
107
46,900.00
Judgments rendered
68
30,000.00
Cases pending
39
16,900.00
Amount judgments obtained
54
20,31.5.00
Judgments for costs only
14
32.55
Judgments collected
14
965.10
Cost judgments collected
8
16.35
Judgments — no execution issued
22
10,450.00
Costs — no execution issued
6
16.45
Executions returned "no property"
22
8,075.00
Executions not returned
3
855.00
Recapitulation:
Total bonds received by Department of Law
143
61,200.00
Suits brought
107
46,900.00
Judgments rendered
20,315.00
Judgments collected
965.10
Judgments costs only
14
32.55
Judgments costs only coUected
8
16.20
The court had the power to reduce the amount of judgment below
the amount of the bond, and, in fact, to render judgment for any sum —
even for court costs only. The function of collecting the judgment is
in the sheriff, not the prosecutor; consequently the prosecutor cannot be
held entirely responsible for the results. Still, he cannot be absolved
from all responsibility for a situation in which only 1.5 per cent, of the
bonds have been collected, for a policy and practice of vigorous enforce-
ment would certainly be more productive.
(155 1
Hours of Work; Private Practice
One excuse constantly advanced for the inadequacies of the prosecu-
tor's performance is that, with the current volume of work, there is
insufhcient time to do things more efficiently. Much of the work must
necessarily be done in the court-rooms, at the poUce department, and
elsewhere outside of the office. Consequently an accurate time study
taken at the office itself would be unfair and valueless.
The writer dropped into the office one afternoon about 4. There was
little activity. He was told that the rush period is at 8 in the morning,
that being the time when the police and other prosecuting witnesses come
in great numbers. So, within a few mornings thereafter, he arrived at
8 o'clock. None of the prosecutors had come in and there was no great
stream of visitors. Not until nearly 9 did the stream accumulate or the
prosecutors arrive. He casually dropped in on two or three afternoons
around 3, having first ascertained that the members of the office were not
at that time engaged in the court-rooms. He found several of the
assistants absent. On other days there were sitting on the Municipal
Court bench judges who continued the sessions into the afternoon, and
on these afternoons the prosecutor's office remained active to a later
hour. All this is not statistical data, and a thorough time study is im-
practicable. There can be no doubt of the immense quantity of work
done by this office. The full working time of the members of it, however,
is not given to the service, and the aggregate working hours of the office
could unquestionably be increased without overtime or increase of force.
It is an unwritten rule of the office that members of the staff abstain
from private practice during their connection with it. The Cleveland
public has the feeling that this rule is not entirely complied with. How-
ever, at the beginning of this survey onlj' one of the group, namely, A. L.
Kreisberg, had his name on the door of a private law office and his name
and office address in the city and telephone directories. While the survey
was in progress his name was taken off the door, though the manager of
the building states that he had severed his connection with the building
fully a year earlier.
Private practice necessarily cuts into the time, energy, and attention
which proper performance of the work demands. But that is not its
most serious aspect. Lawyers engaged exclusively in private practice
know the frequency with which the possibihties of conflicting interests
of cUents produce complex ethical problems. For an attorney who repre-
sents both public and private interests, these problems become more
numerous and difficult. The private practice of a man in the prosecutor's
office inevitably furnishes an opportunity and temptation to corruption
[156]
in its most complex and subtle forms, from which only the strongest man,
and one conscious of the finest ethical distinctions, can escape. But,
more than that, even where there is no corruption, pubHc suspicion may
be aroused, and that is damaging to the administration of justice. The
example of Caesar's wife may have been overworked; still, the standard
apphed to that lady, that not only her virtue should be unimpaired but
her conduct such as to raise her above suspicion, is surely applicable to
persons engaged in the administration of justice.'
' .\n illustration from real life in Cleveland illustrates the danger.
An automobile owned and driven by R. L. Smith had brushed one of a group
of four men standing on the street. None of the four was injured. Smith was ar-
rested on December 3, 1920, charged with reckless driving, tried, and found guilty
and sentenced to pay a fine of SlOO and to serve thirty days in the workhouse. A
motion for a new trial was made, and Smith let out on bail pending the hearing of
the motion, which was set for December 7. Up to that point Smith was represented
by .Attorney .\mold. Between December 3 and 7 Smith was visited by an attorney
named H. L. Lavine, representing the four men on the street. Lavine asserted that
he was a partner of .\ssistant Prosecutor Kreisberg, and that he "stood in" with the
prosecutor's office and could get the sentence of thirty days' imprisonment removed
and would himself pay Smith's fine, if Smith would pay S800 in settlement of the
civil damage claims of Lavine's clients. Lav'ine's office was in one of the rooms of
the suite of offices on the door of which was Kreisberg's name, and La\Tne's office
telephone number was the same as that given in the director,' for Kreisberg's office.
One of the four claimants worked at the cigar-stand in the building in which this
suite was located.
Smith proceeded to take steps to borrow the S800 and expected a check on or
about December 7, and arrangements were made to postpone the hearing for the
motion for new trial to December 23. \Mien the time for hearing arrived. Attorney
Arnold was in the court -room. Lavine asked him to take no part in the hearing,
and submitted a form of receipt for Smith's signature, to which Mr. Arnold objected
on the ground that it might constitute evidence of the compounding of felony. In
the meantime Attorney George Dissette had been retained to supervise the settle-
ment of the civil claims, and the SSOO check had been deposited with him. and he in
turn had deposited it in a bank, so as to have it in convenient shape for division
among those to whom the money might ultimately be payable. Consequently Smith
did not have the money in his hands when the motion was called on December 23.
Judge XX, who heard the case, acting, as he states, under the impression that Smith
had arranged to settle the matter with the claimants, entered upon his docket,
"motion for mitigation granted, original sentence changed, days suspended, fine and
costs to be paid." The judge then asked Smith whether he had arranged "restitu-
tion," to which Lavine answered that Smith had a check and was prepared to make
restitution. The judge then handed the papers in the case to Smith, so that he
might take them to the clerk's office and there pay the costs and fine. In the hall-
way between the court-room and the clerk's office Lavine engaged Smith in conver-
sation and induced Smith to give him the papers, and then notified Smith that,
unless he paid the SSOO within twenty minutes, he. Smith, would have to go to jail,
[157]
and Lavine refused to go to Dissette's office for the money. In the absence of the
papers the clerk refused to accept from Smith payment of the fine and costs.
In this critical situation Dissette was telephoned for and came over to the Muni-
cipal Court building. Lavine repeated his threat that unless the $800 be immediately
given him Smith would have to go to jail. Dissette requested Lavine to give the
papers to the clerk, which was not done. The next day Smith retendered the fine
and costs, which the clerk again refused to accept. Smith had planned a trip East,
and Dissette advised him that, as he had twice tendered fine and costs, he could
safely go.
He returned early in January and was promptly rearrested. He brought habeas
corpus proceedings in the Common Pleas Court. Now, we have seen that, on the
day of the hearing, Judge XX entered on his docket or calendar the order "motion
for mitigation granted, original sentence changed, daj's suspended, fine and costs to
be paid." At some later time this entry was erased and in its place inserted, " Motion
for mitigation overruled, original sentence ordered executed," Strangely enough,
the official record of the court, namely, the journal and execution docket for Decem-
ber 23, contained the entry: " Defendant not in court, bond forfeited, capias issued."
That was a false entry; for Smith was in court on that day and the bond had not
been forfeited. The Common Pleas Court held, however, that it was bound by the
record, and could not entertain proof of the falsity thereof, and therefore refused to
grant a writ of habeas corpus, and Smith was returned to the jurisdiction of the
Municipal Court, where a further hearing occurred on January 13.
Ivreisberg did not represent the municipal prosecutor's office at the original trial
on December 3, nor at the strange happenings of December 23, but he did appear
for the pubhc in the habeas corpus case and at this later inning on January 13.
Judge XX ordered the restoration of the original sentence, and, for some reason
which is not quite clear from the records, added a fine of $200 for contempt of court
and Smith was sent to the workhouse on the original sentence. A few days later
Judge XX suspended the fine in the contempt hearing and the original sentence of
thirty days, leaving the original fine of $100 and costs, which were paid. Before
this Dissette had presented the matter to the Cleveland Bar Association.
[158]
CHAPTER VI
THE COUNTY PROSECUTORS OFFICE
History
THE office of Prosecuting Attorney of Cuyahoga County was
created contemporaneously with the creation of the county and is
more than a century old. The statutes defining the general powers
and duties of the office have undergone little change. In this century and
more, however, the criminal law has grown enormously, and Cuyahoga
County has developed from a community of isolated farmers to the most
populous county in Ohio.
To the extent of available statistics, Table 15 states for the years
1863, 1880, 1890, 1900, 1910, 1920, and 1921 the population of Cuyahoga
County, the number of indictments, the number of arrests in Cleveland,
the number of prosecutors, assistants, and clerical force in the county
prosecutor's office, and the total pajToU of the office.
TABLE 15.— COMPARISON OF GROWTH OF THE POPULATION AND
NUMBER OF ARRESTS, WITH THE NUMBER AND SALARIES OF
THE COUNTY PROSECUTOR'S STAFF, 1863-1921
Year
Popula-
tion of
Cuya-
hoga
Coiinty
Number
of in-
dict-
ments
Number
of arrests
for city
of Cleve-
land
Number
of county
prosecu-
tors on
criminal
side
Size of
clerical
force,
criminal
side
PayroU'
of ofiBce
Salarj- of
chief
prose-
cutor
1863
60
1,687
1
1880
196,943
187
7,432
2
$1,577.50
$2,000.00
1890
309,970
9,616
2
2,689.602
1,999.92"
1900
439,120
512
19,923
3
1
12,260.00=
3,500.00*
1910
637,425
595
7,185*
5
■ (
19,500.00
18,603.93
5,499.97
1920
943,495
2,762
27,615'
6
^ {
37,.500.00
35,572.76
5,500.00
1921
2,549
8
2
48,400.00
5,500.00
' This is whole payroll of office, including both civil and criminal branches.
' Figures for 1887, as 1890 were not available.
' Figures for 1902, as 1900 were not available. $900 for stenographer, and $6,300
for county solicitor and his assistant and stenographer in addition to the above.
' Decline due to temporary "golden rule" policy.
' 79,897 warned and released.
[159]
Criminal Court in Operation
At least two of the rooms of the Court of Common Pleas are con-
stantly engaged in the trial of criminal cases, and in periods when, by
reason of popular excitement or other pressure, the prosecutor is pushing
matters, this number increases to four or even five. The two regular
trial rooms are in an old building, very ugly and sordid in appearance.
The rooms are large and with high ceilings, thus having good light.
Though old, they could be easily rendered more clean, handsome, and
dignified in appearance. In the back of one of these rooms a space is
fenced off by a very high railing and this is open to spectators. There
are no seats and the floor is level, so that those who do not get the favor-
able positions along the rail have to stand on their toes and are con-
stantly pushing forward toward the rail. Naturally many of these on-
lookers grow weary and leave and their places are taken by newcomers.
This commotion in the back of the room causes noise and prevents that
hush and solemnity which we find in federal court-rooms. The other
room has no railing separating the spectators from the space devoted to
the trial, and incoming and outgoing spectators must walk across the
main parts of the room. Furthermore, the judges seem to permit the
pending trial to be interrupted with considerable frequency by receipts
of verdicts in previous cases, disposition of plea of guilty cases, arraign-
ment of new defendants, and other matters.
Otherwise the trials are conducted with an orderliness which is in
contrast to the Municipal Court and compares not unfavorably with
civil trials in the same Common Pleas Court. The jury -stand, witness-
chair, and attorneys' table are arranged in an orderly fashion and those
who have no immediate business in or about them are required to go to
other parts of the room. By means of a little straining of eyes and ears
even those back of the rail can hear and see what is going on. The
extra court-rooms which are used irregularly for criminal trials are in
the new court house and have the handsomeness and dignity char-
acteristic of modern, monumental American temples of justice.
Among possible classifications, the cases in the criminal division of
the Common Pleas Court may be divided into those in which public
excitement pushes the prosecutor to unusual effort, and those where no
extra lime-light has been turned on. It is these ordinary cases which
best illustrate the administration of criminal justice.
The success of criminal law enforcement is, moreover, best judged
by results in the general run of habitual offenses, and not by its sporadic
triumphs in the occasional sensational murder cases. The young man
who, by reason of mental and moral make-up or environment, has in
[160 1
him the potentialities of a professional or dangerous criminal, does not
begin his career with a murder or large-scale robbery. His first offense
is more likely to be a petty larceny or porch-climbing or small hold-up.
If the administration of justice can be effective in stopping the develop-
ment of his criminal career, this is the time and point for it to operate.
If he "gets away" with his first case, the temptation to make a second
"flier" at the speculative profits of crime may be increased. And the
unjust verdict of guilty, which may cause disrespect for law and resent-
ment against society, is more likely to occur in the everyday grist than
in the relatively less numerous big cases.
Furthermore, most of us have a very large chance of going through
life without being the victims or intended victims of the murder of
passion or revenge. But we and our families and our homes are in daily
danger of attracting the cupidity of the second-story man or hold-up
artist. The general peace and security is more dependent on society's
treatment of the regular flow of ordinary crimes than on the results of the
few great murder cases which attract public attention and create public
excitement. The ups and downs of public confidence in the law, as the
sensational murder cases result in verdicts of guilty or not guilty, with the
attempt to reform the administration of the law by means of alternate
spasms of praise and blame of prosecutors and judges and alternately
electing or recalling these officials according to the results in these sensa-
tional murder cases — this, as much as any other phenomenon, has stood
in the way of that thorough and continuous improvement which would
prevent the accumulation of the very situation which accounts for the"
miscarriage of justice in the head-line case.
Consequently, it is in the prosecutor's conduct of the regular run of
cases that the efficiency of the prevailing system should be studied and
judged.
The trial of two cases a day by the same prosecutor before the same
court is habitual, the trial of three cases a day very frequent, of four
cases not exceptional. In addition to the trials, there are generally each
day several arraignments of accused "for receipt of the plea," and also
the pleas of guilty with sentence thereon. The course of most trials is
interrupted by these miscellaneous matters and by the receipt of the
jury verdict in a previously tried case.
Just before entering upon the trial of the first case of the day the
trial prosecutor receives from the assignment commissioner a package of
papers consisting of the indictment and other pleadings, the names of
witnesses, and notes of the testimony of the witnesses before the grand
jury in cases which might be reached that day. It is quite apparent that
12 [ 161 ]
he proceeds to try the case with little or no knowledge of its details al-
most up to the moment of trial, and that his only information consists
of the names of witnesses and scribbled or scattered notes of their testi-
mony before the grand jury. At these he has to glance continually to
keep the case going. For questions to ask the witnesses he must rely
largely on the promptings of the police ofBcer, who sits at his side, or
on inspiration from the answers to other questions given by the witness
on the stand. One is reminded of the Italian commedia dell' arte, in which
the players, not having learned their parts beforehand, take each line
from the prompter and improvise the performance as they go along.
Both these Italian actors and these trial prosecutors develop a speed and
a skill of improvisation which are truly remarkable. But the latter have
this disadvantage — that they are engaged in a combat for which the
adversary is carefully prepared. The prosecutor does not, hke the EngUsh
barrister, have at his elbow a junior counsel who has carefully studied all
the law and the facts, and a sohcitor who has interviewed the witnesses
and who suppHes the trial lawyer with thoroughly prepared material.
The trial prosecutor does not receive, either at or before the trial, a
comprehensive brief of the facts, setting forth the testimony wliich may
be expected from the witnesses. Where the case involves no special diffi-
culties of investigation or preparation, and especially where the case has
been thoroughly developed by the police department, things may go
well enough. It is obvious, however, that the State takes more chances
than the defense and assumes the handicaps of unpreparedness.
The trial prosecutor does not seem to exercise particular care in
selection of the jury. There is no preliminary effort to learn who the
jm-ors might be and their social and pohtical affiliations. The prosecutor
contents himself with two or three general questions, such as: Do you
know the defendant? Do you know the defendant's attorney? Do you
know anything about the case? Do you know of any reason why you
should not make an impartial juror, etc.? He does not always wait for
the answers. In the course of the term he learns from experience in
previous cases the names of the jurors who seem habitually and obsti-
nately to hold out for the defendant. These he gets rid of. As every
lawj'er knows, the opening statements to the jmy (made before the in-
troduction of any evidence) furnish an opportunity for slcilful advocacy,
and many a case is won or lost in the opening statement ; but here again
one of the trump cards is dealt to the defendant's attorney. The prose-
cutor, knowing so little about the case at this early stage, is able to tell
the jury only a very scanty, vague, and uninteresting story.
According to the statement of a prominent member of the force of
[162]
former Prosecuting Attorney Samuel Doerfler, the system of keeping the
trial prosecutor ignorant about the case until witliin a few minutes before
trial was established by Mr. Doerfler because of his distrust of his own
assistants. It was designed, it was said, to allow the assistants as little
opportunity as possible to block or drop the prosecution. This certainly
indicates that the former prosecutijig attorney had little control over his
assistants, and is a startling illustration of the distrust theory of govern-
ment.
The present county prosecutor, Mr. Stanton, would probably deny
lack of control over his assistants. The statutes gave him the power of
selecting his assistants; but there can be little doubt that, following cus-
tom, he permitted a political organization or leader to have powerful in-
fluence in the selection.
A recent incident certainlj' tends to indicate that he does not have or
does not exercise the appropriate amount of control over his organiza-
tion. One Joseph Mazzeo was indicted for receiving a stolen automobile.
There was a preliminary examination in the Municipal Court, Mazzeo
had been indicted, failed to appear for arraigmneut, his bond was for-
feited, and capias was issued. He was recaptured and pleaded not
guilt3\ The trial was in progress on May 4, 1921, the prosecutor's office
being represented by Assistant Prosecutor Frank E. Boldiszar. In the
midst of the trial Assistant Prosecutor Blase A. Buonpane walked into
the court-room and requested a nolle. Boldiszar said nothing, and the
request coming from a member of the prosecutor's office, was granted
by the court and a nolle entered in the case. Pre^^ous to his incumbency
in the prosecutor's office Buonpane had represented Mazzeo in this same
matter of the stolen automobile at earlier stages of the case. For this
reason James T. Cassidy, the first assistant prosecutor, had expressly
instructed that there should be no nolle of this case. Buonpane con-
tinues in his position as assistant prosecutor.'
Office Organization
The office force of the county prosecuting attorney consists, in addi-
tion to himself, of the seven assistant prosecuting attorneys, two stenog-
raphers, and a county detective. This county detective, so called,
though an experienced police officer, is used as a sort of general utiUty
man and grown-up messenger boy. Until June, 1921, there was no
managing clerk.
' The trial judge states that the merita of the case justified a nolle. We intend
to express no opinion on the merits of the nolle.
[163]
There is a degree of specialization of the work of the assistants, one
having charge of the presentation of cases to the grand jury, two or more
are assigned regularly to the trial of cases, and others are reserved for
special assignment in the more important cases. The prosecutor himself
takes part in the more important cases and exercises some executive
direction and control. Visitors can select the particular assistant with
whom they will choose to talk, the stenographers attempting to do some
sifting out so as to reduce the waste of time of the office.
The physical conditions of the offices, while not impressive nor ade-
quate, compare most favorably with the conditions in the municipal
prosecutor's office. The prosecuting attorney himself has a good-sized
room in the suite devoted to the civil branch of the work. There is a
fair-sized waiting-room. The suite used by the criminal assistants con-
sists of a fair-sized waiting-room, part of which is railed off for the
stenographers. There are five private offices, running from 1.50 to 225
square feet, the smallest occupied by the county detective and the other
four by the assistants, two of whom occupy one of the rooms and three,
another.
Record System
The record system in use in both the county courts and county prose-
cutor's office is in favorable contrast with that of the municipal offices.
The county clerk maintains a well-indexed criminal docket, using the
same system and tJtie same thoroughness as in civil cases.
An office docket of all cases is kept, containing the name of defen-
dant, the charge, the plea, and the final disposition. It contains the
name of the assistant prosecutor who has charge of the case, but does
not contain the name of the defendant's attorney. Nor do the dockets
or records of the court clerk contain the name of the defendant's attor-
ney. Each docket-book has an index attached. There is also the file of
the cases, containing the original papers, on which are noted the steps
taken in the case, with the notes from the grand jury rooms and any
special information which may be of use in the trial of the case. Mr.
Stanton has recently instituted a card system or docket in which pend-
ing but not completed cases are alphabetically arranged.
With some slight improvements the record system, in both the clerk's
and prosecutor's offices, would enable both the prosecutor and public to
ascertain the status of a case, past and present, and enable members of
the prosecutor's staff to find without delay whatever information is in the
office.
164 1
MEMBERS OF THE COUNTY
prosecutor's office
Age at
Years ad-
com-
Date
mitted to
Name
Term
mence-
admitted
bar on com-
ment of
to bar
mencement
service
of service
Democratic
Samuel Doerfler, Prosecutor
1916-1920
41
1897
19
AssistaiUs
Fred W. Cireen
1916-1920
45
1896
20
George Ilowells
1913-1915
35
1900
nVi
John J. Babka
1912-1919
28
1908
4
Stephen M. Young
1917-1920
29
1910
6
William J. Corrigan
1917-1920
31
1915
VA
Felix T. Matia
1916-1920
1914
2
D. R. Kothkopf
1917-1920
27
1914
3
Tim J. Long
191.S-1920
33
1915
2},i
Florence Allen
1919-1920
35
1914
5
A. W. Chaloupka
1919-1920
33
1917
9
R. A. Raskin
1918-1920
35
1910
7H
Albert LawTence
1919-1920
61
1880
39
Frank Merrick
1920
26
1916
4
Joseph Dembe
1920
36
1914
6
Myles Frazier
1920
31
1914
6
Thomas Dunlap
1916-1918
48
1890
25
Republican
Edward C. Stanton, Prosecutor
1921-
32
1913
73-2
Assistants
Geo. C. Hansen, civil
1921-
40
1899
20 H
K. J. Thobaden, civil
1921-
56
1887
33
Henry Williams, civil
1921-
22
1920
Vi
James T. Cassidy
1921-
34
1913
1V2
John J. Sexton
1921-
42
1915
W2
Harry E. Parsons
1921-
46
1900
21
Frank E. Boldiszar
1921-
25
1917
33^
Eva L. Jaffa
1921-
28
1915
63^
Blase A. Buonpane
1921-
29
1916
5
W. I. Krewson
1921-
26
1919
1
Personnel
The present prosecutor is Republican and has been in office since
January, 1921. His predecessor, Samuel Doerfler, was a Democrat.'
Above is a list of the personnel of this office during these two ad-
ministrations, with the period of service, age at commencement of ser-
vice, and number of years at the bar previous to service.
' During a few months in 1920 R. A. Baskin was prosecuting attorney, succeed-
ing Mr. Doerfler. who resigned before the end of his term.
[165 1
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[106:
On the delicatp subject of the abiUty of the members of the office, the
same two prominent Democratic and Repubhcan lawyers wlio had given
their judgment upon the ability of the municipal prosecutors were con-
sulted, and again their opinions were surprisingly similar. According to
their judgment of the eight members of the force, one has exceptional
trial ability, another is an able lawyer, a third has only fair ability as a
lawyer, a fourth is a poor lawyer, while the remaining four have not had
sufficient experience or standing at the bar to enable their professional
brothers to know or judge of their ability.
Of the lawj'ers who answered the questionnaire, 92 expressed the
opinion that the prosecutors were lacking in the necessary ability and
competence, while only one or two expressed a contrary opinion.
The present prosecuting attorney, Mr. Stanton, served five years in
the municipal prosecutor's office, during one of which he was chief.
Judging by the methods and organization of that office at the end of
his term, he did not there disclose the desire or the talent for that strong
executive control or leadership wherebj^ policies and standards are
initiated and carried out and the administration of an office is freed
from accumulated bad habits and molded into an effective, enlightened,
and modernized institution. He became county prosecutor in January,
1921, since which date certain improvements have occurred, such as
creation of the position of managing clerk and the beginnings of a card
docket system. The period of his incumbency in that office, however,
has been perhaps too short from which to judge whether or not he
will develop the desire or the talent for such executive control or
leadership.
As shedding some light on the work of individual prosecutors, a de-
tailed study was made of the disposition of the 1919 cases, with classi-
fication according to disposition of the case, and with a further classifica-
tion according to the particular prosecutor who had charge of the case.
The results of this study are shown in Table 16. The column designated
"All cases" gives the number of cases which received the dispositions
noted in the first column. The column designated "Prosecutor un-
known" contains the number of the cases in which the records fail to
disclose the names of the prosecutor in charge. The next column gives
the total of cases in which the records disclose the assistants who were
in charge, and in the subsequent columns the cases are distributed among
these assistants according to the records.
This illustrates a possible method of measuring or, at least, of ob-
taining some facts for measuring the work of the assistants. The small
figures in the columns of some of the assistants indicate that they were
[167]
engaged in work other than trials, such as preparation of evidence or
presentation of cases to the grand jury.
The salary list of the county prosecutor's oflBce follows:
Prosecuting attorney $5,500
First assistant 5,000
Second assistant 3,800
Third assistant 3,600
Remaining four assistants, each 3,000
[168]
CHAPTER VII
OPERATION OF THE COUNTY PROSECUTOR'S OFFICE
Preparation of Cases
IN general, the prosecuting attorney and his assistant-s take no part
in the investigation of the crime or the molding of the proof. He
has no machinery, other than his busy assistants and the single
county detective or general utility man, for detection of the offender or
discovery- of proof. He has no facilities for modern methods of criminal
investigation. He pits his unprcparedness, with such assistance as he
may obtain from the police department, against the carefully prepared
case of the defendant's attorney. He takes the proof in the way it has
been prepared by the police or municipal prosecutor, making the best
of what he gets, or, in more serious cases, attempting to remedy the
defects or omissions.' An unusually sensational case sometimes affords
an exception to this practice, but the exceptions are few.
' The well-known Kagj- murder case affords an interesting example of the dan-
gers of this system. Harold Kagj' was shot early on the morning of May 9, 1920,
while he and two others were standing at a street corner. One of these two com-
panions was named Joyce. There remains some mystery as to who the other may
have been. The then Chief Justice of the Municipal Court, William H. McGannon,
was accused of being the third person. He denied this, but has been convicted for
perjury in making this denial upon his trial for the murder. Kagy was taken to
the hospital on May 9 and was there until his death, thirteen days later. Obviously,
the main issue was as to the identity of the person who fired the fatal shot and,
obviously, the best proof of this identity would have been Kagy's death-bed state-
ment. The rule of evidence regarding the admissibility of a death-bed statement is
familiar to most lawyers. The main factor determining this admissibility is the
knowledge of the djnng man that he is dying. There is a fairly conventional and tra-
ditional method of ascertaining this factor. The police department entirely failed
to obtain Kagy's death-bed statement, and permitted the statement to be obtained
by two brothers of Kagy, who failed to obtain the necessary proof of Kagj''s knowl-
edge of his critical condition, with the result that the death-bed statement was ex-
cluded from the evidence. This failure might have been avoided if the prosecuting
attorney's office had been called into the situation in time to take charge of the
obtaining of the death-bed statement. Members of the police department visited
the hospital from day to day, and were actually just outside the room at the time
Kagy's two brothers took the statement. Though the case was the sensation of the
day, there is no indication that during these thirteen days the prosecuting attorney
took any step whatever to get in touch with or instruct the police department. Both
Joyce and McGannon were acquitted.
(169 1
The period elapsing between the arrest and the presentation to the
grand jury varies from a few days to 500 days, during which there is
time for the disappearance of witnesses, the destruction or ehmination of
dangerous documents, and the coaching of possible witnesses, in addition
to the eiTects upon the memories of witnesses made by the public dis-
cussion of the case in the press and elsewhere. No member of the county
prosecutor's office is present in the office of the municipal prosecutor
while the affidavit is prepared, nor in the Municipal Court during the
preliminary examination. Owing to the constancy of the stream of work,
practically no attention is given to the case, its proof or lack of proof,
until the moment of presenting it to the grand jury.
The assistant who has charge of the presentation of the cases to the
grand jury has generally, up to the very moment of presenting a case, no
familiarity whatever with the case, its facts or proof. He simply calls
in the witnesses whose names are noted on the papers which have come
up from the municipal prosecutor. Sometimes, if this rather casual
testimony before the grand jury proves inadequate or there are indica-
tions of the possibility of improving the proof of the case, an attempt is
made to find additional testimony before the grand jury passes on the
case.
TABLE 17.— AVERAGE NUMBER OF DAYS USED IN DISPOSING OF
CASES ORIGINATING IN THE SEVERAL COURTS, COMMON PLEAS
COURT, 1919
Number of
cases
Average number of days
Court of origin
From arrest
to indictment
From indict-
ment to dis-
position
From arrest
to disposition
Municipal
Magistrates
Grand jury'
Unknown
2,033
89
198
5
20.8
26.2
14.4
25.4
46.6
40.2
99.6
36.4
67.4
76.4
85.2
61.8
Total
2,325
18.0
51.3
69.3
With exceptions, so rare as to be negligible, the testimony before the
grand jury is not taken down stenographically or otherwise and no
'In cases originating in the grand jury arrest follows indictment, hence the first
of the three averages is the reverse of the others in its column, being the time from
indictment to arrest, rather than, as otherwise, from arrest to indictment. This is
shown also by the fact that the third average is less than the second, contrary to all
the other groups of cases.
[170]
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[171
TABLE 19.— ACCUMULATION OF WORK IN COMMO.'
1916
Num-
ber
Totals
Num-
ber
Totals
1. Total cases requiring action at end of April term
2. Indictments pending at end of April term
3. Cases bound over not acted on at end of April term
350
16
366
426
31
457
Grand Jury Work
4. Total cases for grand jury, July term
6. Cases bound over and not acted on at end of April term (line 3 above)
6. Cases bound over during July term
7. Total cases acted on by grand jury, July term
8. Cases — true-billed by grand jury, July term
9. Cases — no-billed by grand jury, July term
10. Cases remaining before grand jury, end of July term
11. Indictments returned during following year
12. Indictments returned during preceding year
16
332
74
19
348
255
1,725
1,213
31
369
105
43
400
252
2,150
1,725
Petit Jury Work
13. Total indictments ready for trial during July term
14. Indictments pending beginning July term (line 2 above)
15. Indictments returned during July term (line 8 above)
16. Total cases disposed of during July term
17. Cases disposed of by trial during July term
18. Cases disposed of by plea during July term
19. Total cases undisposed of at end of July term
20. Embr>'onic indictments in cases still to be acted on by grand jury
computed by taking 76 per cent, of figure appearing on line 10 above
21. Accumulation of cases for petit jury, beginning of September term
22. Total cases disposed of during following year
23. Total cases disposed of during preceding year
350
74
424
37
387
194
581
1,657
1,090
426
105
16
50
66
465
192
657
1,756
1,657
Per ceni
accumu
lated cas
to casei
disposed
precedin
end fo]
lowing
years
37.41
39.65
transcript of the testimony is made. The prosecutor in the granci jury
room sometimes finds time to scribble on the papers a few rough notes of
the testimony. We have seen that these rough notes offer all the trial
prosecutor learns about most eases before jumping into the trial of them.
It is a system of serial unpreparedness.
This lapse of time between the various stages of the cases was investi-
gated statistically, with the results as shown in tables herewith. Table 17
shows, in all of the 1919 cases, the average number of days between
arrest and disposition of the case, between the indictment and the dis-
position and between arrest and indictment. The averages are of all
cases, including those in which there is a plea of guilty and in which,
therefore, no further preparation for trial was required. Naturallj^, if
contested cases only were included, the average time intervals would be
greater than disclosed in this table. The classification is according to
place where the case originated, namely, Municipal Court of Cleve-
land, magistrates' courts outside of Cleveland proper, and the grand
[172]
PLEAS COURT DURING SUMMER VACATIONS, 1916-1920
Totals, average, and per cent.
1918
1919
1920
accumulation for 6ve years.
1916-1920
Total
Num-
ber
Totals
Num-
ber
Totals
Num-
ber
Totals
of
num-
bers
Total
of
totals
Aver-
ages
832
836
537
3,028
606
822
814
521
2,933
587
10
Per cent,
accumu-
22
Per cent,
accumu-
16
Per cent.
95
19
Average
lated cases
lated cases
accumu-
per cent.
425
to indict-
304
to indict-
477
lated cases
1,954
391
accvimu-
10
ments re-
22
ments re-
16
to indict-
95
19
lated cases
415
. .
turned pre-
282
turned pre-
461
ments re-
1,859
372
to indict-
SO
ceding and
ceding and
turned pre-
327
65
ments re-
79
following
following
ceding and
258
51
turned
7
339
1.940
years
304
1,735
years
477
following
69
1,627
14
326
preceding
17.47
17.52
years
J ears
2,150
15.77
1.940
15.67
1.735
27.49
8,763
1,753
18.57
901
Per cent.
814
Per cent.
521
3,191
638
822
accumu-
814
accumu-
521
2,933
587
79
lated cases
lated cases
Per cent.
258
51
Average
28
to cases
disposed of
to cases
disposed of
accumu-
lated cases
16
131
26
3
per cent,
cases ac-
28
preceding
preceding
to cases
115
23
cumulated
873
and fol-
lowing
814
and fol-
lowing
521
disposed of
preceding
3,060
612
to cases
disposed
258
years
231
years
363
and follow-
1,238
248
of preced-
1.131
1,045
■ •
884
ing years
4,298
859
mg years
1.948
58.06
2,027
51.55
1.766
64.41
1,948
53.64
2,027
43.61
8,478
1,696
60.70
jurj'. "Unknown" represents cases whose place of origin could not
be located.
Table 18 is an analysis of time intervals between arrest and in-
dictment (presentation to grand jury) and between arrest and dis-
position, classified in accordance with the disposition — that is, these
time intervals in the cases which resulted in plea of guilty or in those
which were nolled, and so on.
These figures, it should be remembered, are averages. A case, for
instance, in which the accused pleaded guilty in the Municipal Court
would be a factor in making up the average.
A more intensive study was made of the time interval between cases
bound over in July, 1919. This interval ranged from a minimum of 60
days to a maximum of 164 days, averaging 80 days in the 55 cases.
These cases arose in the summer, probably while no grand jury
was in session. But intervals such as these are by no means un-
common in cases arising at other seasons, and summer is probably
[173]
as favorable as any other period for disappearance of witnesses, im-
pairment of recollection, and other damages to the effective adminis-
tration of the criminal law.
The summer accumulation of cases, due to the absence of a grand
jury and the vacation of some or all of the criminal court judges, pro-
duces a congestion at the beginning of what may be called the trial year,
from which the administration of justice does not recover during the
year and which is a fruitful cause of hurried, careless methods of pre-
paration and trial. Table 19 is a study of the amount of this accumula-
tion and its inevitably harmful effect. The accumulation is kept down
by a feverish spell of trials toward the end of the April term of court, so
that justice's summer vacation works backward and forward to impair
efficiency.
An explanation may make Table 19 more intelligible. The April
term of the court begins on the first Monday in April and ends on the
first Monday in July, when the July term starts. The figures on line 10,
namely, the cases remaining before the grand jury at the end of July
term, represent the difference between the figures on lines 4 and 7. The
figures on hne 13, namely, the total indictments ready for trial during the
July term, represent the total of the figures of the next two lines, 14 and
15. During the summer of 1916 and 1918 court was held for a short
time to allow pleas of guilty and thus eliminate some of the cases. Dur-
ing the summer of 1917 a special session was held to receive pleas of
guilty and also to hold a few jury trials. The figures on line 19, namely,
total cases undisposed of at end of July term, represent the difference
between the figures on lines 13 and 16. The records show that about
76 per cent, of the cases are "true-billed" by the grand jury and 24 per
cent, "no-billed." ■ Therefore, in hne 20 it is assumed that 76 per cent, of
the cases pending before the grand jury (line 10) will result in indictments.
One of the judges sitting in the criminal branch in January, 1921,
was struck by the fact that 12 out of the first 16 cases before him in that
' The discrepancy between the 24 per cent, on this page and the 2 1.54 per cent, in
column three of Table 3, page 9.5, indicating the percentage of no-billed cases as 21.54,
is only apparent and not real. The base upon which the percentages in Table 3 are
calculated included all cases which originated in the grand jurj' and resulted in true
bills, but did not include cases originating in the grand jury which were no billed,
there being no record kept of this latter type. Table 19 deals with the accumulation
in the grand jury of cases coming up from the examining courts, and therefore the
base upon which the percentages were calculated in Table 19 does not include any
cases which originated in the grand jury. It is the difference in these two cases which
produced the difference in the figures 24 and 21.54.
[174]
month resulted in acquittals. He looked into the cause and came to the
conclusion the fault lay in the serial or cumulative unpreparednoss, to
which we have calletl attention, accentuated just at this season by a
change of administration in the prosecutor's office.' With careful and
thorough preparatory work in the earlier stages of a case, together with
sj'stematic filing of the information and good office organization, this
harmful effect of change of administration could be minimized.
Assignment of Cases
Consideration of the opportimity of the trial prosecutor for prepara-
tion is necessarily connected with the system of the assignment of cases.
The assignment of cases is in charge of the assignment commissioner of
the criminal branch of the court. Cases are assigned for trial in the fol-
lowing order: first, all known criminals; second, defendants in jail; and
third, bail cases. Within each one of these classes the cases are taken in
numerical order. The rules of the Common Pleas Court provide that
the prosecuting attorney shall furnish the presiding judge a list of known
criminals against whom cases are pending, which the presiding judge cer-
tifies to the assignment commissioner. Like so many other rules, this is
seldom observed.
Three or four days before the date set for trials of a group of cases
the prosecutor receives from the assignment commissioner the list of the
cases set for that day. When the day arrives, the cases go into one room
or another in their numerical order, so that the prosecutor in any par-
ticular room cannot know in advance which of the cases will be assigned
to the room in which he is acting. The assignment commissioner is able
and willing to adopt and has urged the adoption of a system whereby
each trial prosecutor will know several days in advance which cases will
be assigned to the court-room in which he works.
The Gr.\nd Jury
No case is tried nor is any sentence imposed unless there is an indict-
ment by the grand jury. This is true of those cases in which a pre-
liminary examination has been held by the Municipal Court, as well as
those which are first instituted in the grand jury. The latter class of
cases forms between 9 and 10 per cent, of the whole. In over 90 per cent,
of the cases, therefore, two preliminary examinations are held — one in the
Municipal Court in the presence of the accused, and the second in the
grand jury room without the presence of the accused.
' County prosecutors are elected in November of even numbered years, and
take oiBce the following January.
1175]
As a matter of fact, the grand jury does little more than register in
formal shape the opinion of the prosecuting attorney that there is suffi-
cient proof to warrant a trial. Very rarely does the grand jury indict
when the opinion of the prosecuting attorney is to the contrary, and
vice versa.
The prosecuting attorney plays practically no part in the selection of
the personnel of the grand jury. The process of selection is as follows:
A number of names are drawn from the jury wheel, and those so drawn
are notified to appear at a designated time and place.' A considerable
portion of those who appear ask, for one reason or another, to be excused,
and the excusing of them is a responsibihty of the court. As the session
of the grand jury proceeds others ask to be excused. The vacancies
created by these excuses are filled by the court from names selected by
the court, the judge being free to select whom he please. Naturally, the
selection is made from social or political acquaintances of the judge.
Tables 20 and 21 show the number and percentages of grand jurors
in the six terms of the court from April, 1919, to January, 1921, whose
names were drawn for the grand jury, who failed to appear and who
served during part of the term, and of those who were selected by the
court, with the growth of the percentage of the jurymen selected by the
court as the sessions progressed.
TABLE 20.— NUMBER OF GRAND JURORS APPOINTED BY PRESIDING
JUDGE FROM SOURCES OTHER THAN THE ORIGINAL PANEL
Aver-
Term
l8t
2d
3H
4th
.■ith
6th
7th
8th
9th
lOt.h
nth
12th
13th
14th ISth
age
for
week
whole
term
April, 1919
9
10
1.3
14
14
14
14
14
14
14
14
13.1
September. 1919
1
4
7
10
10
11
12
12
12
13
13
13
13
13
13
10.5
Januarj-, 1920
1
2
11
13
13
13
13
13
13
13
13
10.7
April, 1920
12
12
13
13
13
13
13
13
13
13
13
13
12.8
September. 1920
4
10
13
13
13
13
13
13
13
13
13
13
13
13
13
12.2
January, 1921
8
8
12
12
12
12
12
12
12
12
12
11.3
Total number
35
46
69
75
75
76
77
77
77
78
78
39
26
26
26
70.6
Average per
week
,5.S
7.7
115
125
12.5
12.V
12.8
12.8
12.8
13.0
13.0
13.0
13(1
13.0
13(1
11.8
Average per
cent.
39
51
77
83
83
84
86
86
86
8V
87
87
87
87
87
78.0
A grand jury is composed of 15 members. Table 20 gives the number
of persons on the grand jury selected by the judge himself entirely from
' If they fail to appear, nothing is done about it. No instance was discovered
in which the prosecuting attorney followed up the failure of the summoned juror to
appear.
[176]
outside of the regular panel in the successive weeks of the session. In
the last column is given the average number on the grand jury through-
out the term who were thus personally selected. For instance, as shown
by the table, in the April, 1919, term, during the first week nine out of
15 were thus selected from outside of the regular panel; and in the
fourth week this grew to 14, where it remained throughout the rest of
the term, making an average for the term of 13.1 out of 15 thus per-
sonally selected. As shown by the lower lines of the table, taking the
whole period covered by this study, namely, two years, an average of
11.8, or 78 per cent., out of 15 were thus selected.
Table 21 gives the number of those whose names were drawn and
who were not found at all, or who were notified and failed to appear, or
who, having appeared, were excused at the beginning or during the
term. Twenty-five names are drawn for each grand jury. The table
shows, for example, for the September, 1919, term, of the 25 names, four
were not found, one failed to respond to the summons and six were
excused. The table also gives in terms of "man-weeks" the relative
percentages of time given to this service by those drawn from the panel
and those selected by the judge. Thus, in the September, 1919, term, 68
aggregate weeks of service were given by those drawn from the panel,
and 157 weeks by the others, being 30 and 70 per cent, respectively of the
total time of the grand jury.
T.\BLE 21.— NUMBER OF ORIGINAL PANEL AND JUDGE SELECTIONS
(25 MEN IN PANEL FOR EACH TERM)
Persona in
Notified
excused
Total
Man-
Term
original
but
from
man-
weeka
weeks
panel
failed
tliose
weeks
from
appointed
not
found
to appear
actually
appearing
of grand
jurj-
panel
by judge
Per
Per
No.
cent.
No.
cent.
April, 1919
11
8
165
21
13
144
87
September, 1919
4
1
6
225
68
30
157
70
January, 1920
3
8
165
47
28
118
72
April. 1920
3
13
180
26
14
154
86
September, 1920
6
4
4
225
42
19
183
81
January, 1921
8
3
7
165
41
25
124
75
Whole totals
24
25
46
1,125
245
880
Average per week
4
4
8
188
41
22
147
78
Per cent.
16
20
46
There is no way of telling, with anything approaching statistical
accuracy, which class of selections makes the better jurors. The evil of
the present practice is that it does not correspond with the system con-
templated by the law. That system provides, through the jury com-
13 [ 177 ]
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■3-5 -S
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[ 178 ]
™ « ^ IM
^ B-s Co E o
E|-ago°o =
a£ sl £1 £ c
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c-c^-.,j a-. >
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' 3 3 c C
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£ " S s
= 1-5 •
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So
Hi:
missioners, a machinery for placing in the jury wheel an adequate number
of names of qualified persons, and permits the jud^e to fill vacancies
which the law contemplates will be few and occasional. Whenever the
methods provided by law are departed from, there follow a confusion and
dissipation of responsibility which open the door to carelessness and
subtle forms of corruption.
In all this the prosecutor has not violated any express provisions of
the law relating to him. Rut as he has a general function of law enforce-
ment and responsibility for the prosecution of crimes, a responsibility
which includes grand jury proceedings, he may fairly be blamed for his
silence and drifting while this extra-legal system has developed.
St.\tistics of Results of Cases
Table 3 in Chapter II discloses the number of cases in Common Pleas
Court in 1919, together with the number and percentages of the cases
which, for one reason or another, were not tried, those which were tried
and resulted in convictions or acquittals, and the percentages in which
the sentences were carried out or suspended or mitigated.
Table 22 gives the data concerning these cases in greater detail,
classified both according to the type of offense (ofTenses against chastity,
frauds, offenses against persons, etc.) and according to the disposition or
result (plea of guilt, plea of guilt of a lesser offense, noUed, conviction,
acquittal, etc.).
These figures relate to the cases in which the grand jury found indict-
ments and do not include cases which, though bound over by the Muni-
cipal Court to the grand jury, were ignored or "no-billed" by the latter
body and therefore ceased at that point to have further history.
"No-billed" Cases
Brief special attention should be given those types of disposition of
cases which constitute dropping or dismissing the prosecution without
trial. In the regular order of events following the transmission of the
case from the municipal to the county authorities, the earliest of these
dispositions is the ignoring of the case, as it is sometimes called, by the
grand jury ; that is, the determination of the grand jury to find "no bill "
or indictment. As appears from Table 3, this cause of extinction occurs
in 21.54 per cent, of the cases — a high percentage, indicating that many
cases which the Municipal Court should have discharged reach the grand
jury or that many "good" cases reach the grand jury in an ill-pre-
pared condition.
A former assistant prosecutor, who had had charge of the work in the
[179]
grand jury room for several terms, states that it was usually the practice
to "no-bill" cases if the witness failed to appear upon being subpoenaed,
without any further investigation of the case; that about 25 or 30 cases
were presented to the grand jury in the course of a morning, so that,
when the case reached its turn to go before the grand jury, if the proof
w£is not sufficient and the case had no sensational attributes or special
public attention, the prosecution was dropped then and there by means
of the power of the grand jury to "no-bill" or ignore the case.'
NOLLES AND ACCEPTANCES OF PlEAS OF LeSSER OfFENSES
As appears from Table 3, 12.33 per cent, of the cases in the Common
Pleas Court were, after indictment, noUed on all counts — that is, com-
pletely dropped at the instance of the prosecutor. This is exclusive of
2.60 per cent, where charges are noUed because the defendant was under
sentence for some other charge or nolled after reversal by upper court or
jury disagreement. These items constitute 0.59 per cent., making 15.52
per cent, of noUes in all. This is, however, exclusive of other dismissals
without trial which were not technically nolles, which item constituted
3.80 per cent., making 19.32 per cent. These percentages, if calculated
exclusively on the cases which began in the Municipal Court, were
respectively 9.11, 2.3G, and 2.80. In other words, 14.27 per cent, of the
cases which had successfully passed the two preliminary examinations
were later dropped.
'An illustration of the dangers which lurk in the "no-bilUng" process is fur-
nished by the cases of Roland McGinty and Irving Schumacher. They were charged
with stealing an automobile belonging to one H. M. Farnsworth. At about 1 o'clock
in the morning of January 11, 1921, McGinty and Schumacher went to the garage
where Mr. Farnsworth kept his car. Three hours later, about 4 o'clock, an Italian
restaurant keeper in another neighborhood of the city noticed a car in front of his
place of business and heard two men arguing as to which of them should go for some
gasoline. The Italian called up the police station. A sergeant from the central
police station came and placed both men under arrest. They proved to be McGinty
and Schumacher and the car proved to be that of Farnsworth. On January 21 the
case was called before the grand jury. Mr. Farnsworth voluntarily appeared and
testified before the grand jury, but the case was no-billed. Thereafter Mr. Farns-
worth inquired what had happened to the case and was informed that it was "no-
billed" because it was understood that he did not wish to prosecute. Mr. Farnsworth
states that he had never said anything to justify this inference. The "no-billing" of
the case had the effect of releasing the defendants' bondsmen. The case was then
again presented to the grand jury as an original case, and an indictment returned
on April 15; but in the meantime the defendants had disappeared and have never
been recaptured.
[180]
The practice regarding nolles has always been careless. Section 2919
of the General Code of Ohio pro\'ides: "The prosecuting attorney shall
not enter a nolle prosequi in any cause without leave of the court, or
good cause shown, in open court." This presumes that the court looks
into the facts carefully and exercises discretion. Actually, owing t/) the
volume of cases passing through this court, the judge is practically de-
pendent for his information upon the prosecuting attorney. In the last
analysis, therefore, the power and the responsibility are those of the
prosecutor.
The statutes of Ohio do not expressly provide for the acceptance, in
felony cases, of a plea of guilt of a lesser offense than that charged and,
consequently, do not regulate the procedure. In actual practice the
court accepts the request of the prosecutor for permission to accept such
plea and is necessarily dependent on the prosecutor's statement justifying
that course.
The present prosecuting attorney, Mr. Stanton, instituted a rule to
the effect that no nolle shall be entered by any of his assistants without
the approval of himself or his first assistant, and that the reasons for the
nolle be carefully and fully stated to the court and be carefully and fully
noted both on the original papers on file in the prosecutor's office and on
the docket in the prosecutor's office. If adhered to, these regulations
would seem to be sufficient to minimize the abuse of the nolle.
Investigation was made as to the extent to which these regulations
have actually been adhered to by Mr. Stanton's office, since his incum-
bency on January 1, 1921, by an examination of the records and papers
in the 61 cases for the period January 1, 1921, to May 1, 1921, in which
the pleas of guilt of a lesser offense were accepted and in which nolles
were entered. Following were the results:
Forty-eight nolles were entered, in 15 of which no notation of the
reasons appeared anywhere on the papers or records. Of the remaining
33, the reason given in two of the cases consisted exclusively of the
words "midst trial." In 26 of the cases the notation consisted of a ref-
erence to some other case in which the same accused had been convicted.
Examination of these 26 other cases disclosed that in three of them the
sentences had been suspended and in nine of them pleas of lesser offenses
had been accepted. The remaining five of the noUed cases had short
but informative notations, such as "defendant adjudged a lunatic,"
" defendant sentenced by federal coiu-t," etc. There were 13 acceptances
of pleas of lesser offenses. In 12 of these no notation whatever appears.
In one of these cases the records show that the acceptance of the lesser
plea occurred after a previous verdict had been set aside and a new trial
[181]
had been ordered by the court. The notation in the single case in which
there was a notation consists of the words "midst trial."
Obviously, these slight and irregular notations fall far short of compli-
ance with Mr. Stanton's stated regulation and very far short indeed of the
recording system required to minimize the abuse of the nolle, on the one
hand, and to protect the prosecutor from unjust suspicion, on the other.
On February 20, 1920, nolles in 410 cases were simultaneously pre-
sented to the court and entered. Some of these cases had been on the
dockets since 1909. There were two 1909 cases, one 1910 case, four 1911
cases, five 1912, seventeen 1913, twenty-seven 1914, thirty-four 1915.
In 99 of the cases special reasons for the nolles were stated, such as con-
viction and sentence in other cases, war record, absence of sufficient
proof. In all the remaining 311 cases the reason given was either that the
defendant had never been apprehended or that the bail bond had been
forfeited and the defendant had never been reapprehended.
Some dead timber will accumulate in police departments and criminal
courts, as elsewhere. Nor does the duty of capturing accused persons
fall on the prosecutor. At the same time, as attorney for the State, the
prosecutor might well be asked to check up pending cases from time to
time, and thereby stir action by the police department in neglected cases.
Such an accumulation as disclosed by the blanket nolle of 1920 indicates
an inefficient administration of justice. The fact that a defendant has
"skipped" his bond and not been recaptured would seem to be doubtful
ground for a dismissal of the prosecution. As a blanket nolle of this kind
affords an opportunity to an unscrupulous or careless prosecutor to drop
a case which should be tried or kept alive, the statutory rule that nolles
require a leave of the court in open court cannot well be followed unless
nolles be considered one at a time.
TABLE 23A.— COMMON PLEAS COURT, 1919; SENTENCES CLASSIFIED
BY TYPE AND BY EXECUTION AND SUSPENSION
Fine
and
costs
Im-
prison-
ment
Fine
and
im-
prison-
ment
Total
misde-
meanor
sen-
tences
Felony
sen-
tences
AU
sen-
tences
Sentenced — total
Sentence executed
Sentence suspended
297
275
22
249
193
56
152
120
32
698
588
110
904
663
241
1,602
1,251
351
Suspension of Sentences
The statutes do not expressly authorize or regulate the suspension of
a sentence, except during error proceedings in an appellate court or where
1182]
the accused is placed on probation. As a matter of practice, suspensions
are not so limited and the practice is exceedingly loose. The term "bench
parole" is popularly given to suspension of sentences made bj- the trial
court. They are sometimes given without consultation with the prose-
cutor, who, even when informed of the request for a suspension, does not,
as a rule, protest or offer any argument on the question. Apparently he
conceives his responsibiUty terminates with the original sentence except
where the court specially requests information or action by him.
T.^BLE 23B.— COMMON PLEAS COURT, 1919; SENTENCES CLASSIFIED
BY TYPE AND BY EXECUTION AND SUSPENSION; PERCENTAGES
Fine
and
costs
Im-
prison-
ment
Fine
and
im-
prison-
ment
Total
misde-
meanor
sen-
tences
Felony
sen-
tences
AU
sen-
tences
Sentenced — total
Sentence executed
Sentence suspended
100.0
92.6
7.4
100.0
77.5
22.5
100.0
78.9
21.1
100.0
S4.2
15.8
100.0
73.4
26.6
100.0
78.2
21.8
Tables 23A and 23B give the statistics as to the relative execution
and suspension of sentences in the 1919 cases, classified according to de-
TABLE 24A.— COMMON PLEAS COURT, 1921; SENTENCES CLASSIFIED
BY TYPE AND BY EXECUTION AND SUSPENSION
AU
sen-
tences
Sentenced — total
Sentence executed
Sentence suspended
Fine
Total
Fine
Im-
and
misde-
Felony
and
prison-
im-
meanor
sen-
costs
ment
prison-
ment
sen-
tences
tences
IS
45
12
75
155
12
42
8
62
126
6
3
4
13
29
230
188
42
gree of sentence. Tables 24A and 24B give similar information relative
to the sentences imposed in the first three months of 1921.
TABLE 24B.— COMMON PLEAS COURT, 1921; SENTENCES CLASSIFIED
BY TYPE AND BY EXECUTION AND SUSPENSION ; PERCENTAGES
Fine
and
costs
Im-
prison-
ment
Fine
and
im-
prison-
ment
Total
misde-
meanor
sen-
tences
Felony
sen-
tences
All
sen-
tences
Sentenced — total
Sentence executed
Sentence suspended
100.0
66.7
33.3
100.0
93.3
6.7
100.0
66.7
33.3
100.0
82.7
17.3
100.0
81.3
18.7
100.0
81.7
18.3
[183]
In paroles properly so called, — that is, the parole of prisoners by the
authorities entrusted by law with parole powers, — the practice is for the
paroling board or officer to ask for an opinion from the prosecuting
attorney. This opinion is given without further effort on the part of the
prosecutor to promote or obstruct the parole.
The Bail Bond
When a case is initiated by an indictment by the grand jury, followed
by arrest, the accused is confined in jail unless he gives a bail bond to
secure his appearance at trial. When a case comes through the Muni-
cipal Court, the bond given there remains in effect until an indictment
has been found and the defendant arraigned for plea, and, if he pleads
not guilty, another bond must be given to secure his appearance at the
trial. If, in either class of case, the trial results in conviction and the de-
fendant appeals, another bond may be required to secure his surrender if
the judgment of conviction be affirmed. Neither the amount of the bond
nor the quafification of the surety is determined by the prosecutor, though
he has or can take the power to influence the decisions on these points.
It is his duty to watch the proceedings, have the defendant promptly
arrested if the bond is not given, and have the bond promptly forfeited
if the conditions thereof are broken. Until the passage of the recent
statute regulating the procedure, it was also his duty to enforce forfeited
bonds in all State cases, whether the bond was given and forfeited in the
municipal or county court.
The records show a woeful laxity in the performance of these duties.'
' A recent illustration of the prevalent laxity in this matter is furnished by the
bond enforcement case of State of Ohio v. George Poulley and M. L. Bernstein (No.
180756 of the Common Pleas Civil Docket). The petition was filed July 1, 1920.
The petition sets forth that an affidavit was filed in the Municipal Court on July 26,
1915, charging the defendant, George Poulley, with violating the liquor law; that
on August 10, 1915, the defendant was found guilty, and on September 15, 1915, a
bond was given by George Poulley, with M. L. Bernstein as surety, conditioned upon
PouUey's prosecuting his petition in error in the Court of Appeals without unneces-
sary delay; that, as a matter of fact. Poulley never filed a petition in error in the
Court of Appeals; that on June 12, 1920, Bernstein was called upon to bring the
defendant into court, and upon failing to do so, the bond was forfeited. Bernstein
was served with summons on this petition, the return of the summons made July
10, 1920. Poulley was not found. On October 27, 1920, the defendant was given
leave to plead instanter and he filed his answer on the same date. The bond was
permitted to sleep four years and nine months before being forfeited. For over two
months the prosecutor overlooked the opportunity to take a default judgment on
the bond.
On March 26, 1921, the case came before Judge Y., and the following entry
[184]
The following is taken from pages 61 and 62 of the report of the Cuya-
hoga County Examiner of the Department of Auditor of State, Bureau of
Inspection and Supervision of Public Offices :
The examination discloses that practically all services in connection with the
taking of recognizances for appearance in criminal cases during the period covered
by this examination have been conducted as matters of mere formality, and so
far as the records and files disclose the fact that the object of such a recognizance
is to safely insure the appearance of the accused for trial, has received little if
any consideration.
What has been said of the taking of the recognizances also applies to all ser-
vices performed in connection with the forfeitures and collection of same, as if
readily verified by the following data taken from the records of the Common
Pleas Court, to wit:
P. 61
Case No. 11272. Frank Hebole. Robbery. January 16, 1919, bond for-
feited; no record of bond ever having been given.
Case No. 13902. John W. Brown. Pocketpicking. Bond forfeited Jan-
uary 16, 1919. No bond ever given in Common Pleas Court and none
included in transcript.
Case No. 11465. Arthur Purnell. Burglary and larceny. Bond forfeited
January 16, 1919, but there is no record of bond ever having been given.
Case No. 13498. Z. Barker. Issuing check to defraud. Bond forfeited
February 12, 1919. No bond ever given in this case and the defendant
was never apprehended.
Case No. 13820. John Soheat. Carrying concealed weapons. Bond for-
feited January 16, 1919. Entry in docket of June 11, 1918, shows
bondsman reUeved of further responsibility.
That in several instances over two years had elapsed from the time a recog-
nizance was taken until the same was forfeited.
That recognizances had been forfeited for a period of two years prior to hav-
ing been reported to the county auditor or delivered to the prosecuting attorney.
That suit on forfeited recognizances had been entered for a period of two
years prior to judgment being rendered.
That from one to seven continuances had been granted in many suits brought
to recover judgment on forfeited recognizances.
P. 62 Forfeited Bonds
The following is a recapitulation of the results obtained in making an exami-
nation of the bonds given as security for the appearance in court of persons
appears upon the docket of the court: "Judgment for plaintiff for costs. Forfeiture,
delayed five years, deprived defendant of opportunity to make effort to have George
Poulley apprehended."
[185]
charged with the violations of the criminal statutes, and forfeited in cases of
their failure to make such appearance:
Total amount of bonds forfeited from August 26, 1916,
to May 27, 1919 $263,400.00
Total judgment rendered on forfeited bonds from August
26, 1916, to May 27, 1919 59,262.28
Total amount of bonds sued upon cases pending 100,300.00
Total amount of judgment on forfeited bonds collected
from August 26, 1916, to May 27, 1919 2,701.53
($1,100.00 of this amount was collected on judgment
rendered prior to the period covered by this examina-
tion)
Total costs incurred in suits brought on forfeited bonds
from August 26, 1916, to May 27, 1919 1,680.65
Total costs in suits on forfeited bonds collected from
August 26, 1916, to May 27, 1919 439.10
Total amount of judgments on forfeited bonds upon
which no executions have been issued from August 26,
1916, to May 27, 1919 13,885.00
The preceding statement disclosed that the amount of judgments collected
on forfeited bonds during the period covered by this examination, as compared
with the amount of bonds forfeited, shows that but three-fifths of a cent is col-
lected for every dollar forfeited ; that the cost of collection is equal to the amount
collected, not taking into consideration the salaries of the officials performing
services in connection therewith, and that there is little if any effort made to
issue executions on judgments rendered.
The statutes provide amjile means for the elimination of the condition dis-
closed in connection with this subject, and the public officials who are by statutes
vested with such power owe it to the community and themselves to use the
authority so granted to make immediate correction of same.
While this survey was in progress the Ohio legislature passed a new
statute regulating bail-bond procedure in Cuyahoga County. It has
just gone into effect (July, 1921). It creates the position of bond com-
missioner appointed by the presiding judge of the Court of Common
Pleas. This ofBcial succeeds to the function of the municipal and county
court clerks in passing on the qualification of sureties. The statute
prescribes in some detail regulations concerning the records of defendants
in criminal cases and qualifications of sureties; such regulations could,
however, have been put into effect in the past by rules of court or by the
actual practice of the court clerks.
The statute transfers to the bond commissioner the duty to enforce
forfeited bonds. This means a more divided responsibility than hereto-
[186]
fore, and is in line with customary American practice of creating a new
office to take over the duties which existing officials have habitually neg-
lected, instead of providing existing offices with the type of men and office
organization adequate for the work which logically belongs to those
offices. In the last analysis it will be the duty of the prosecuting attorney
to enforce the faithful performance of the bond commissioner's duties.
The new statute contains, however, at least two very valuable re-
forms. It makes the obligation of the bail bond a lien on the real estate
of the surety from the date of the bond, and provides for the recording
of these hens; and in actions on forfeited bonds it prohibits the court
from giving judgment for any sum less than the full amount of the bond,
except in cases in which the original defendant has surrendered or been
recaptured.
Cases in the Appellate Court
About 13 per cent, of the contested cases which result in convictions
are taken to the Court of Appeals on questions of law. The decisions
of this court have an important bearing on the inteipretation of the
criminal laws and the vahdity of effective methods of law enforcement.
In the interests of justice the man who carries his case to an upper court
should not receive any undeserved and avoidable advantages from delays
or technicalities. The protection of the pubhc's side of these cases in the
appellate courts forms, therefore, an important duty of the prosecutor.
One of the judges of the Court of Appeals complained that the prose-
cuting attorney failed habitually to file briefs in these cases. An investi-
gation of the basis for this charge was made, with the following results:
In the 76 cases filed and concluded in the years 1919 and 1920, briefs
had been filed by the prosecutor in only 20. The plaintiff-in-error failed
to file a brief in 22 cases. EUminating these, on the principle that the
prosecutor is not called upon to file a brief until his opponent's brief is
filed, these records show that the prosecutor filed a brief in only 20 out
of the 54 cases. Of the 76 cases, eight were dismissed for lack of prepara-
tion and eight for other reasons. Of the remaining 60, the conviction
was affirmed in 44 and reversed in 16. In the 16 reversed cases no briefs
were filed by either side in one case, while in the remaining 15 the prose-
cutor had filed briefs in four and failed to file briefs in 11. Taking the
60 cases in which the convictions were affirmed or reversed, the prose-
cutor lost 6.66 per cent, of them when he filed briefs, and three times as
many, or 20 per cent., when he failed to file briefs.
US?:
CHAPTER Vni
THE FEDERAL COURT AND UNITED STATES ATTORNEY
Comparison is Possible
THE administration of justice in the federal courts does not fall
within the scope of this survey. For purposes of comparison, how-
ever, some inquiry has been made into the actual workings of the
enforcement of the federal penal laws. By reason of the relatively small
scope of federal penal law as compared with the State and municipal
criminal law, and the relatively speciahzed nature of the offenses which
come into the charge of the federal authorities, the task of the federal
judge, when he sits in the criminal branch of the court, or of the federal
prosecuting attorney, does not present all the complexities and diffi-
culties faced by the county and municipal officials. If, however, within
its field, the administration of the federal criminal law in the same city
presents a picture of relative orderhness, efficiency, the accomphshment
of its ends, and the enhstment of pubhc confidence, surely there are les-
sons implicit in these results which must not be neglected.
The following summary gives the results of the federal criminal cases
in the Northern District of Ohio (the federal judicial district, which in-
cludes Cleveland) for the year ending June 30, 1920, as reported to the
Attorney General of the United States and included in his 1920 report.
The fiscal year for which these reports are made runs from June 30 to
June 30, and the year July 1, 1919, to June 30, 1920, furnished the offi-
cial statistics nearest to the year of the county court tabulations in this
report. The population of this district according to the census of 1920
was 3,195,651. j, . ,
Pending at close of June 30, 1919 277
Commenced during fiscal year 1,140
Terminated during same period 967
Convictions 794
Acquittals 11
Nolle prosequi or discontinued 156
Quashed, dismissed, demurrer, etc 6
Pleas of guilty 761
Trials by jury 44
Pending at close of June 30, 1920 450
Fines, etc., imposed during year $131,327.06
Realized on fines, forfeitures, etc §106,977.62
[188]
Comparing these results with those in the county courts, the dif-
ferences are striking. For instance, the percentage of pleas of guilt in
the federal cases terminated during the year is 78.7 per cent. In the
felony cases in the county courts (Table 3) pleas of guilt were obtained in
37.02 per cent, of all the cases; or, if cases of acceptance of plea of a
lesser offense be eliminated, pleas of guilt of original charge were ob-
tained in 30.38 per cent.; or, eliminating cases bound over to the grand
jurj- but in which no indictment was found, there the percentages were
47.1 per cent, for all pleas of guilt and 38.7 per cent, for pleas of guilt of
original charge.
Of the 967 cases terminated during the year, the federal authorities
found it necessary to try only 44 cases, or 4.55 per cent., of which 75 per
cent, resulted in convictions; whereas the 590 trials in the county cases
represented 23.2 per cent, of all cases terminated during the year, with
convictions in 62.2 per cent. 16.7 per cent, of federal cases disposed of
during the year were nolled or otherwise dismissed without trial, whereas
41.01 per cent, of all Stat€ cases were dropped and 24.8 per cent, of the
indicted cases were nolled or otherwise dropped.
These figures indicate a relatively high efficiency in the federal ad-
mfaiistration in the preliminary stages of sifting out of the cases and
preparing them.
The Southern District of New York (composed chiefly of the original
city of New York — Manhattan) is the busiest of the federal judicial
districts and has nearly as many penal cases as the Cuyahoga County
courts. As reported in the 1920 report of the Attorney General, in the
j-ear ending June 30, 1920, there were 1,879 criminal cases terminated in
that district, of which 1,160, or 61.7 per cent., resulted in pleas of guilty,
and 1,221, or 65 per cent., resulted in convictions.
Federal cases, like State cases, can be begun in the grand jury or in a
court of preliminary examination, namely, before a United States Com-
missioner. The United States Commissioners undoubtedly keep some
dockets or records of their own, but no dockets or records of the pendency
of cases before commissioners or of the dispositions there are kept in
the Cleveland district in the offices of the United States Clerk, and there
are no official statistics of the histor>- of cases in stages preceding the
action thereon by the grand jury.
The United States Attorney's office in Cleveland keeps a book en-
titled "Complaint Docket," in which is recorded or presumed to be
recorded the disposition previous to or by the grand jury of all cases
which reach the stage of presentation to a commissioner. This book
covers the Eastern Division of the Northern District of Ohio, which
[189]
division includes Cleveland. The results of the tabulation of the cases
for the year ending June 30, 1920, as disclosed by this book, are stated in
Table 25.
TABLE 2.5.— SUMMARY OF CASES ON THE "COMPLAINT DOCKET" OF
THE UNITED STATES DISTRICT ATTORNEY FOR YEAR ENDING
JUNE 30, 1920
Total cases in complaint docket 1,717
Cases which did not reach grand jury 263
Dismissed by commissioner 65
Transferred to other district 19
No entry ' 175
Miscellaneous 4
Presented to grand jury 1 ,454
Presented direct 84
True bills 47
No biUs 10
Not presented 2
No entry 25
Presented after binding over by commissioner 1,370
True bills 1,166
No bills 104
No entry 100
The Constitution of the United States requires a grand jury indict-
ment in every case of "capital or otherwise infamous crime." This
classification corresponds roughly with felonies. Consequently when
a felony case is first heard by a United States Commissioner, there is
the same sort of double preliminary hearings as in state felony cases.
In crimes other than "infamous" the process of information, as dis-
tinguished from indictment, may be used with or without a preliminary
hearing before the Commissioner. The accumulation of detail and drain
upon facilities, human and otherwise, which double preliminary hearings
entail, have caused the United States Attorney for the Southern Dis-
trict of New York, where the volume of work has increased rapidly, to
use the process of information predominantly where such use is per-
mitted by law, and, in graver crimes, to present the majority of cases
directly to the grand jury. Francis G. Caffey, until recently United
States Attorney for that District, states that, except for the issuance
of warrants, arraignments, fixing bail, and like formalities, compara-
tively little use is made of the commissioners and that only occasionally
is there a preliminary hearing before a commissioner.
' "No entry" signifies that the docket failed to specify the disposition. It may
not be amiss to venture a warning that, with the growth of the quantity of federal
penal cases due to federal liquor legislation and the other extensions of federal
criminal law, the quality of the administration of federal criminal justice will de-
teriorate unless care be taken to keep the record and statistical system and other
instrumentalities abreast of this growth.
1190]
As appears from Table 25, this development has not yet taken place
in Cleveland, where the two hearings are held in a lar>;e majority of the
cases. But even where this is true there is a striking contrast between
the State and federal administration, in that a federal case is handled from
beginning to end by the same prosecuting attorney's office, the United
States Attorney and his assistants having charge of the case before the
commissioner, the grand jury, and the trial jury; and, furthermore, the
investigating and detecting machinery is a branch of the same depart-
ment as that to which the United States Attorney belongs, namely, the
Department of Justice. The Bureau of Investigation (corresponding in
its functions to the detective branch of the poUce department) proceeds
in its investigations under the direction of the United States Attorney.
There is thus brought about a unity and continuity of method and
responsibility which are absent from State cases. The procedure and
atmosphere of the federal criminal courts are orderly and dignified, show-
ing there is nothing intrinsic in the nature of criminal trials which makes
disorder and lack of dignity unavoidable.
[191]
CHAPTER IX
THE LESSONS AND THE REMEDIES
General Considerations
THE facts of the situation suggest the remedies for the evils and
inadequacies that have been revealed. In order, however, to
propose changes, there must be some standard assumed toward
which we are working. The proper road cannot be pointed out with-
out some information as to where the traveler desires to go. What
may we ask of the administration of criminal justice in any community?
The answer is obvious. The administration of justice should be
free from corruption of any kind and be certain and expeditious. Its
organization and operation should be such that, without any avoidable
delay, the innocent are cleared of the charge of crime and the guilty
discovered and punished. In so far as current methods and practices
tend to avoidable delays, give avoidable opportunities for favoritism
and other forms of corruption, unnecessarily increase the elements of
chance or luck, produce indiscriminate results instead of, in the ordinary
course of the day's work, a fair degree of justice, as and in accordance
with the methods provided by law, to that extent the administration
of justice falls below the most elementary and acknowledged standards.
The whole theory of our criminal procedure is based upon the as-
sumptions, first, that it is consonant with justice that those who are
guilty of a crime should be discovered and punished or otherwise spe-
cially treated, and those who are innocent have their innocence estab-
lished ; and secondly, that, as a deterrent of crime, criminal law and the
administration of it can be effective only if that law and the machinery
of its administration function so as to discover the offender and clear the
innocent.
As tersely stated by Victor Cousin and quoted by Burdette G. Lewis
in his book, "The Offender," "Punishment is not just because it deters,
but it deters because it is felt to be just."
This "felt to be just" brings out another aspect of the problem, the
importance of that which may be called the appearance of the admin-
istration of justice. Not only must justice be done in the ordinary
[192 1
course of the day's functioning, but the work of the criminal courts
and prosecutors should have the appearance of doing justice. The
aspect of things should be such as to cause the community to feel con-
fident that the guilty will be discovered and punished and the innocent
will be freed. Men whose situation might tempt them to commit crime
may be deterred by the feeling that the chances of discovery and punish-
ment are relatively certain. Men who feel criminally inclined, whose
tendency is to enter a career of crime as a source of livelihood, would
be more likely to go ahead in this career if the administration of justice
in the community is a game of chance in which the odds are in their
favor.
Not that the administration of justice is to be conceived as a machine,
a Frankenstein, operating without heart, sympathy, discretion, or dis-
crimination. But the fundamental .American principle of justice accord-
ing to the law is based on the conviction that men should be governed
by general rules apphed to the particular facts of each man's situation
and not by the surmises, caprices, or prejudices of other men. The rules,
whether legal or scientific and no matter how thoroughly and carefully
developed, will alwaj's leave plenty of room for the play of the judge's
common sense and s>-mpathies.
Many people have a sort of vague feeling that a helter-skelter admin-
istration of justice, without careful ascertainment of facts or careful
application of the laws, somehow produces a more desirable mixture of
justice and humanity than is produced by the more orderly and careful
trial methods. This is a complete fallacy. The whirligig too often
snatches up the innocent or those who merit leniency and hurls them
into punishment without giving them the time or opportunity to demon-
strate their innocence or grounds for dealing leniently with them.
Therefore the organization, methods, and practices of the criminal
courts and prosecutors and other agencies engaged in the administration
of criminal justice should be such as to function with as great an exacti-
tude as is possible in an apparatus of this nature and with a reduction
to a minimum of the opportunities for favoritism, corruption, prejudice,
luck, and carelessness. The procedure needs to be simplified so as to
reduce as far as possible the number of steps or stages in which cor-
ruption, carelessness, or incompetence can play a part or which unneces-
sarily strain the resources, human and inanimate, devoted to the enforce-
ment of the criminal law.
The present situation is to a considerable extent the result of the
fact that in its prosecutors' offices Cleveland, Hke most American cities,
is furnishing and supplying an apparatus disproportionate to the job on
14 [ 193 ]
hand. Our public law offices have failed to institute modernized methods
of office organization characteristic of the larger private law offices.
As the abihty and character of prosecutors, judges, clerks and other
officials, and of defendant's attorneys necessarily constitute so important
a factor in the results, criminal practice needs to be given such a prestige
as to attract and hold men of abihty and character, and the prestige of
the administration of criminal justice must be consciously promoted.
Our problem is, therefore, to suggest changes, easily obtainable and
available, which will effect such organization, methods, practices, and
prestige.
Many of the reforms suggested require merely the will to change —
they can be effected by change in habits, maimers, and customs; others
will require amendments of court rules; others, amendments of city
ordinances or the city charter; still others, amendments of Ohio statutes;
an amendment of the Constitution of Ohio wiO be requisite to carry
out at least one of the recommendations. Cleveland lawyers will know
which of these modes of amendment will be necessaiy in each case, and
whatever groups or agencies seek to produce any of these changes will
easily ascertain the necessary type of legislation. This report will not,
therefore, be burdened by pointing out, as each reconmiendation is
discussed, either the particular class of legislation or the detailed pro-
visions of such legislation.
The Municipal Prosecutors
The chief municipal prosecutor should be primarily an executive
official, qualified by the kind of capacity and experience which makes
an efficient executive of a large and important organization. It should
be his province to assign the various subdivisions of the work of his
office among his subordinates and to formulate and enforce the meth-
ods, practices, and regulations governing the work. He should map
out, estabUsh, and maintain the proper coordination between his office
and that of the county prosecutor, between his office and the courts,
between his office and the pohce department. The establishment and
maintenance of standards in the methods of handling cases and inter-
pretations of the law also fall within his province. As the head of the
office, he should estabhsh and maintain regular, systematic, and effec-
tive check upon the work of his subordinates and upon the work of the
clerical and the other divisions of the Municipal Court. Moreover, he
ought to make himself a leader for the community in matters relating
to the administration of criminal justice in the Municipal Court. As
long as he has his present jurisdiction, including the prehminary exami-
1194]
nation in all State cases, he is one of the two or three most important
officials in the city of Cleveland; and even if, as recommended later in
this report, the charpto of State cases from the beginning be transferred
to the county prosecutor, the chief municipal pro.sccutor will remain
one of the most vital city officials and second only to the county pros-
ecutor in the domain of law enforcement.
Probably the second most important position, and one which should
be established without delay, is that of managing clerk, whose functions
would correspond to those of a managing clerk in a large modern law
office. The duty of this official would bo to keep the office working
smoothly, in accordance with rules, regulations, and standards fixed by
the chief prosecutor. He and his assistants would sift out the visitors
and applicants at the office, so as to turn away those who have no busi-
ness there and assign the others to the chief prosecutor, the assistant
prosecutors, and the other officials in accordance with the speciaHzation
of work determined by the chief prosecutor. Furthermore, the manag-
ing clerk should act as the custodian and clearing-house of records,
papers, and files of the office. The fixing of responsibility for the care
and transmission of affidavits and other papers will help remove the
danger of the loss of papers. Under the direction of the managing clerk
should be the clerical department, with such clerks, stenographers, and
messengers as may be needed to carry out the organization here outlined.
The subdivnsion of work among the assistants follows logically from
the different types of activity involved and different classes or grades of
offenses. For example, there is the distinction between cases brought
to the office by persons other than the poUce and involving the informal
concihation which has been described, and cases brought in by the pohce.
This could form the basis of one subdivision of the work. Some cases
involve work of preparation outside of the office, which should be a.s-
signed to special assistants. The trial of the cases, also conducted out-
side of the office, forms a logical subdivision of the activities of the
assistants. Cases differ in grade and kind — municipal cases, which repre-
sent violation of order, safety, and health regulations and involve neither
vice nor criminal motive; municipal vice cases, as gambling and prosti-
tution; state misdemeanors and state felonies. By means of speciaUza-
tion of this kind, office congestion will be reduced, just as street conges-
tion is reduced by the speciahzation of the uses of the different streets
as between pleasure, commercial, and industrial uses or heavy and light
traffic. Each assistant will become expert in his work. The present
system, or lack of system, whereby each visitor picks out his own as-
sistant, produces congestion and avoidable opportunities for favoritism.
[195]
In so far as it has any design at all, it may contemplate that the Italian
visitor will seek out the Italian assistant, the PoUsh visitor the Polish
assistant, and so on. This is, however, one of the things which Cleve-
land must eliminate. This tribalization of law enforcement is a species
of corruption. The great immigrant population of Cleveland should be
made to realize, and will probably be quite happy to realize, that justice
in Cleveland is an American justice, and that no special favors are
obtainable and no special punishment will be administered because the
complainant or the defendant or the prosecutor belongs to one tribe or
race or another.^
With so great a number of cases, the municipal prosecutor cannot
keep pace with his duties and avoid the inefficiencies and wastes of con-
gestion unless the operation of the office be fairly continuous. The
present method of progress resembles the system in use for carrying logs
down a wilderness stream, namely, an alternation of jams and drifts.
This primitive method may have some justification in the transporta-
tion of logs through a wilderness, but is hardly appropriate to the prose-
cutor's office in a large American city. Even in the case of the logs
some of the good ones get stranded along the shore. The lumber in-
dustry has evolved the log-picker, who goes back along the route and
picks up and dehvers these strays. The administration of justice has
not evolved an analogous official.
Within the limits of reasonable practicabihty, the output of the
office, so to speak, should be continuous, meaning thereby that the
various types of work involved — investigation of facts, preparation of
aflSdavit, preparation for trial and trial — should be continuous, each
assistant or set of assistants assigned to these divisions of the work
working throughout the working hours of the day. As arrests are
made during the night and some of these night arrest cases will be on
the Municipal Court docket the following morning, the investigation
of facts and preparation of affidavits should, to some extent, proceed
during the night, special assistant or assistants being assigned for that
purpose. The notations and memoranda incident both to the sifting
out of the cases and the preparation of those which are to be tried ought
to be thorough and "routed" within the office, and filed so as to be at
hand when and where needed. Not that the work should become purely
mechanical — in fact, too much of it is mechanical now, in the sense of
being without the exercise of human judgment and discretion. The
system in a modernized business organization does not render the work
' Language difficulties can be easily cared for by a proper system of interpreters.
[196]
of the chief executive and his assistants more mechanical. On the con-
trary, it frees them for more thought, originaHty, judgment, and effici-
ency.
The question immediately arises as to how many additional assis-
tants may be needed to carry out a program such as hero outlined.
That number cannot be pr(){)liesicd nor calculated in advance. The
appropriate number will be a development of experience. The intro-
duction of an improved system in any ofRce always opens up the pos-
sibility of handling a greater volume of business without added force,
and the chief prosecutor will be surprised how much more efficient work
he will obtain from his present force with a good office system. Further-
more, the present agitation on the subject of crime and the making of
this survey are based to some extent upon the feeling that the orderly,
honest, and capable administration of criminal justice will itself reduce
the amount of crime; and there is scientific justification for that feeling.
If the recommendation discussed in a subsequent chapter, namely, that
the count}' prosecutor be put in charge of all State cases, be carried out,
the volume of the work of the municipal prosecutor's office will mate-
rially decrease. Until that is done, some increase of the number of
assistants will, no doubt, be necessary. Just a few days before the
writing of this report an additional assistant was authorized and ap-
pointed. Without, however, a supply of increased, adequate, and well-
arranged office space, and the estabHshment of an adequate clerical
force and office and record system, the mere increase in the number of
assistants will not increase the efficiencj^ of the work and will probably
tend to intensify many of the defects which have been described. The
new assistant will add at least one more person to the office jam; and
six officials whose information and whose activities are unfiled, tmre-
corded, unwritten, and unknown are probably better for the community
than SI ven.
The County Prosecutor
In the county prosecutor's office, the filing and clerical work and the
disposition of visitors should, under the newly created managing clerk,
be managed as befitting a large modern law office.
But, above all, the prosecuting attorney himself should be the
executive of his department. It is his function to systematize activities
of the office, a.ssign the distribution of work among his assistants and
subordinates, fornmlate and enforce the rules, regulations, practices,
and methods of the office, and exercise a supervision and control over
all the persons and facilities of his office so as to produce standards of
[197 1
efficiency in harmony with his policies. His activities and power as an
executive ought to extend beyond the precincts of his immediate office.
Through his duty to enforce, in his count}', the criminal law of the
State he is best fitted to be the chief executive of the administration
of criminal justice. He should bear to the administration of criminal
justice in Cuj'ahoga County the same relation which the Attorney
General of the United States bears to the administration of the federal
penal law. It is his function to coordinate the work of his office with
that of the pohce department, the municipal prosecutor, the clerks of
the courts, and the courts themselves. By reason of his responsibility
for the presentation and trial of cases, and his right to investigate into
and prosecute the malfeasance or non-feasance of other public officials,
it is his function to watch the work of the police department, county
and Municipal Court clerks, and all other persons with duties connected
with the enforcement of the criminal law, and therebj' guard against
the failures of law enforcement due to official neglect or corruption.
The law enforcement department of the pubUc service, possibly the most
vital of all activities of government, with its tremendous quantity of
detail, its speciahzation and subdivision of labor, its adjustments be-
tween these subdivisions, its adjustments with the public — requires con-
centrated executive direction and responsibility. This direction and
responsibihty rest with the prosecuting attorney. More than that, the
prosecuting attorney should be the leader in this field, the man who
thinks through and originates poUcies and methods. Today it is too
often the case that the prosecutor permits himself to be carried hither
or thither by alternating currents of public cruelty or pubHc senti-
mentality or blown about by gusts of popular or press excitement. He
should be the captain who steadies the boat and at the same time dis-
covers new or improved routes to the havens of pubhc order, security,
and morals.
Municipal Court Procedure
The arrangement and subdivision of work in the municipal prose-
cutor's office must necessarily dovetail into the procedure of the Muni-
cipal Court. The full benefit, for instance, of assigning specific classes
of cases, such as city misdemeanors and state felonies, to specific trial
assistants could not be obtained if these various classes of cases be
thrown indiscriminately into the same morning's court docket. Careful
preparation of a case would become partly wasted effort if the court
procedure be so hurried as to give no opportunity for presenting the
case well. These examples illustrate the necessity of some reforms in
[198]
the court procedure if the prosecutor's office is to be made an efficient
instrument, and tlio justification for some discussion of these reforms
here, though the subject of the courts forms a separate division of this
survey.
The court calendar is now based upon the jam and drift method.
There is an overcongested calendar for a short period of the day, and
then drift the remainder of the time. The time given to trial of cases
should be sufficient to enable them to be heard in a manner befitting
cases which involve the lives, liberties, and reputations of human beings.
Each case should be as thoroughly presented and in as orderly a manner
as the proof requires and the legal and factual issues justify.
The Segregation of Trials or Calendars
We have seen that most of the time the trial prosecutor stands
around with nothing useful to do. His single routine question to the
prosecuting witness, "What do you know about this case?" could easily
be propounded by the judge. The time and ability of the prosecutor
are wasted by this sort of procedure; and with a situation which cries
for so much useful activity, this waste is inexcusable. If, therefore,
there are classes of cases which normally can be as effectually tried
without the presence of the prosecutor, those cases should be segre-
gated upon the court calendar so as to release the prosecutor for service
elsewhere.
On every indiscriminate calendar, composed of cases of every degree
of importance and difficulty, there are many cases sufficientlj' clear and
simple to warrant speedy and summary trial. The trouble is that these
cases set the pace, and by a process of contagion affect the conduct of
cases which merit a more patient inquiry into the facts and law, and
the whole calendar tends to be given this hurried, inadequate, slipshod
treatment.
Arthur C. Train, with long and varied experience as prosecutor
in New York city, in his book, "The Prisoner at the Bar," describes the
harmful effects of this hurly-burly method of calling and disposing of
cases in police court. Speaking of the New York Police Court previous
to its reorganization, he gives an analysis largely applicable to present-
day Cleveland:
"The inordinate number of cases which the magistrates have to dispose of
results oftentimes in an inconclusive method of hearing charges of mi.sdemeanors
or of felonies, which, if the defendant be held at all, must of necessity be tried
in a higher court or, as the magistrates say, 'go downtown.' If the defendant
[199]
be a man of some influence, with money to retain a boisterous and buUy-ragging
lawyer, the line of least resistance may lead the judge almost unconsciously to
regard the case as having 'nothing in it.' If, on the other hand, the complainant
be a man of independence and insistence, without perhaps a bit of pull, it is
much easier to ' hold ' a defendant than to assume the responsibility of ' turning
him out.' In point of fact some magistrates are prone to shift the responsibility
off their own shoulders and to 'hold' anyway. Thus there can be 'no kick com-
ing' so far as they are concerned. There are also cases where, rather than take
the time for a careful examination of the case, the magistrate will 'hold,' when,
if he had really examined into it with the necessary care, he would find that
there was no reasonable ground for his action. Now the grand jury is apt to
find an indictment almost as a matter of course, and the defendant must then
be placed on trial before a petit jury. In large measure this is the reason why
the calendars of the criminal courts are crowded with cases which should never
have gone beyond the police court, and why prisoners charged with homicide
often lie for months in the Tombs before the petty business of the general ses-
sions can be cleaned up sufficiently to allow time for their trial. In this way
much of the work which should be done by the police judge is cast upon the
already overburdened petit jury. The evil, however, does not stop there. When
a petit jury finds that a majority of the cases brought before it have little or
no merit, it frequently gets the idea that all criminal business is of the same char-
acter and that it is impanelled for the purpose of a general jail delivery. After
a jury has 'turned out' 20 men in succession it can hardly be blamed for think-
ing that the twenty-first, who may be a real sinner, ought likewise to be sent
home with the others to join his family. Respect for law cannot be maintained
unless each part of the machine of justice does its fuU duty and assumes its owti
burdens and responsibilities" (p. 56).
There is slight practical difficulty in classifying the cases according to
gravity and according to normal or habitual difficulty of proof. The
statutory classification of city and state misdemeanors and state felonies
is one basis, and the prosecutor can more successfully distribute these
classes among his assistants if the court calendars followed a similar
segregation, so that hearings of state felonies, for example, be set in a
designated court-room at a designated time, and similarly for the other
classes. Within these general classes, particularly state and city mis-
demeanors, there are types of cases, as, for instance, violations of local
traffic ordinances, which normally present simple issues of fact or law
and require little time, and others, such as larceny and fraud, which,
being generally committed in a secretive or concealed manner, usually
involve difficulties of proof and require more time for trial.
A segregated docket, separating the times or places of trial of cases
which do not require the presence of the prosecutor from those which
[200]
should be conducted by him, of city from state cases, state felonies from
state misdemeanors, and, within these classes, cases normally triable in a
summary or speedy fashion from those where justice demands less spwd,
would enable the prosecutor to obtain the most efficient results from the
work and the ability of his assistants and make thorough preparatory
work useful and effective. The a|)propriate importance of each case
would stand out better if the case be upon a calendar devoted to cases of
a certain degree of gravity than is possible in the present indiscriminate
commingling. The disadvantages of keeping lawyers for the defense and
witnesses waiting around would be reduced. There would be brought
about an atmosphere of orderly and open administration of justice. Not
the least ini[)()rtant consequence would be to enhance the attractiveness
of criminal practice and to encourage the better equipped and finer
grained type of lawyer to accept servnce in criminal cases. The changed
tone would react upon the accused, witnes.ses, and spectators; they could
hear, see, and understand what is going on in the court-room. The result
would be greater public confidence in the administration of justice.
The preparation of a segregated calendar as above outlined is, of
course, a task of some difficulty, especially as certain complicating con-
siderations have to be taken into account, such as the rest-hours of
police officers who are on night service, the reduction of the time of con-
finement of defendants who cannot give bail, and other illustrations
which will occur to tho.se familiar with police courts. But the diffi-
culties are not great and can be easily overcome by the willing cooper-
ative action of a chief justice, prosecutor, and clerk of fair ability.
The general principles and considerations are clear and simple, and
there is no necessity for setting out here a detailed schedule of all the
types of offenses, classifying each according to its appropriate place on
such a calendar. A few illastrations will suffice. There are municipal
cases, such as intoxication, street soliciting, suspicious person, ordinary
traffic cases, in which the police officer makes the arrest on the spot on
the basis of what he sees and in which there is rarely any issue of law or
any i.s.sue of fact requiring investigation outside the police records. In
such cases the whole prosecution consists of the testimony of the police
officer, and there is nothing for the prosecutor to do. These cases should
occupy a special part of the calendar. If, in an}' of them, there develops
a situation or issue which the court believes to warrant the prosecutor's
attention, the court could place the case on that part of the calendar for
which the prosecutor will be needed.
Then there are cases of violations of both city and State regulations,
such as smoke abatement, tenement house and other building regula-
[201]
tions, in which the proof is prepared by the health or factory or building
department or inspector and he is quite capable of presenting it. If the
department has a case which requires the estabhshment of an important
point of law, or an aggressive campaign against an habitual or arch
offender, it could take the matter up specially with the prosecutor, who
could have the case put upon a calendar for which the appropriate trial
assistant will be in court.
Keeping houses of ill fame, gambling offenses, pocketpicking, are
examples of municipal misdemeanors which generally involve either an
issue of law or some difficulties of proof and which, therefore, normally
require preparation on the part of the prosecutor and belong on that
part of the calendar devoted to municipal cases with prosecutor present.
Each of these may be expected to use considerable time. Larceny,
assault, receiving stolen property, carrying concealed weapons, and
liquor offenses are examples of state misdemeanors requiring similar
treatment. In fact, most state misdemeanors, excepting violations of
some State license and inspection regulations, automobile speed cases,
and others in which the whole case is the report of a police officer or pub-
lic inspector, fall within this same class.
Arrest and Summo7is
Under the present practice the process of arrest is the form of process
by virtue of which jurisdiction is obtained in every case of every nature
and the accused is brought into court. This is partly responsible for the
present conglomerate calendar. As the arrested person must be con-
fined in jail or give bail, it is only fair that he have, as his day in court,
the next nearest court session, namely, the following morning. Almost
every arrest involves the labor of bringing the accused to a police station
and confining him or arranging for bail, all of which adds to the clerical
labor incident to the keeping of police and court records. A large per-
centage of the new cases each morning are not ready for trial and con-
tinuance is allowed, involving the clerical details of entering the con-
tinuance on each of the records and reentering the case on the later
docket. With the enormous work thrown upon the administration of
justice, every labor-saving device which does not harmfully affect the
administration should be adopted.
Obviously, the summary process of arrest is designed to prevent
escapes. It is a process appropriate to those classes of offenses, such as
felonies or misdemeanors, with a motive which may strictly be looked
upon as criminal (larceny, pocketpicking, suspicious person, carrying
concealed weapons, etc.), or misdemeanors of the nature of habitual or
[202]
commercial vice (keeping house of ill fame, gambling, etc.)i which are
usually committed bj' those professionally engaged in those ofTonsos, or by
persons who are transient sojourners in the city and migrate from town
to town, or persons of erratic occupation or low and uncertain social
status, ant! who, therefore, are under greater inducement to escape than
to appear and stand trial.
The field of criminal justice in the modern American State and city
has come to include, however, a large number of misdemeanors com-
mitted by persons who are permanent residents, engage regularly and
habituall}' in a lawful occupation, have respectable friends in the city and
a social status worth preserving, and for whom departure from the city
would be a greater punishment than that provided by law for the offense.
Sunday ordinances, violation of health, smoke, building, and nuisance
ordinances, traffic cases not involving injury to persons, Hcense ordi-
nances, are examples of municipal misdemeanors of this type; automo-
bile offenses not involving injury to persons or theft, labor, health, build-
ing and factory regulations, laws regarding minors, license laws, election
laws, are examples of state misdemeanors. The use of the process of
arrest in such cases is a waste of effort and an unnecessary drain on over-
burdened resources. The process of summons, such as is used in civil
cases, would be just as effective. A summons is served on the defendant
notifying him to appear in court at a designated time and place. The
designation of time and place could be made to fit in with the system of
segregated calendars above described. The process of arrest should be
abolished and that of summons substituted in the appropriate types of
cases.
Stenographic Report of Testimony
The testimony of the witnesses should be taken stenographically in
the preliminary hearings of all felony cases in the Municipal Court,
and also in the trials of all those misdemeanor cases, both city and
state, which involve criminal motive, using "criminal" in its stronger
implications, or habitual or commercial vice. The illustrations given
above in other connections indicate these tj^pes of misdemeanors. One
object of this would be to increase the orderliness and thoroughness of
procedure, giving each case the importance that it deserves in the mind
of judge and trial prosecutor and witnesses. The accused would have a
better chance of hearing what the witnesses are saj'ing about him, a
fundamental privilege of which he is oft«n deprived imder present
methods. A second object would be to reduce perjury. The witness
who knows his testimony is being taken down in black and white will
be more careful. A third object would be to effect improvement in the
[203 1
preparation of state felony cases. The county prosecutor's office is now
dependent upon the random notes which may have been made at some
st>ages of the matter by the police or municipal prosecutor's office, and
in most cases today receives little more than the names of witnesses.
In all cases which are bound over, therefore, the transcript of the testi-
mony should be made and transmitted through the managing clerk of
the municipal prosecutor's office to the managing clerk of the county
prosecutor's office. In fact, it would be well to follow the English system
and that in vogue in several of our States, namely, have the witnesses
sign the transcribed testimony, which thereby becomes a deposition. In
other cases, unless a perjury prosecution be deemed advisable, the steno-
grapliic notes should be kept in the files of the municipal prosecutor, the
notes of each case being carefully filed with the papers of that case.
The segregation or aiTangement of the court calendars follows logic-
ally from these classifications of the cases; and as the classes of cases
in which the prosecutor's service is needed and for which he needs care-
ful preparation and those which should receive considerable time for
trial and those in which the evidence should be stenograpliically taken
down, are, by and large and with easily cared-for exceptions, identical,
the corresponding segregation of the calendars would result in affording
the prosecution and the accused proper opportunity to prepare and
present their cases, reduce to a minimum the waste of time spent idly
in the court-room by attorneys on both sides, and give each case its
appropriate setting.
General Aspect of the Trials
What we have just considered may seem to be somewhat mechan-
ical and clerical details. But they are all of the utmost importance
and in cumulative effect would enormously increase the effectiveness of
the administration of criminal justice and the prestige of the Municipal
Court, the municipal prosecutor's office, and criminal law practice.
There remains to point out the possibilities open to the municipal prose-
cutor, if he will realize and exercise the leadership and constructive
statesmanship which are his by virtue of his office. After all, the judge
is dependent for his information upon the attorneys, and he needs the
assistance of the attorneys to maintain the orderhness and dignity of
procedure appropriate to the administration of justice. The prosecutor
is not only the attorney for the plaintiff and a court officer, but also the
representative of the public, with the peculiarly difficult and complex
duty of presenting the pubUc's side of the controversy while avoiding
anything which savors of persecution or of deprivation of the defendants'
[204]
fundamental civil rights. His position gives him the opportunity to
bring about a procedure which fulfills universally recognized standards.
Let him insist that every case be tried, so that the trial be really public —
that is, in a physical environment which is not only quiet and dignified,
but which makes it possible for court and defendant and witnesses and
court officers and spectators and reporters and the public to know what
is going on. Probably the judges are quite willing that their court-
rooms have the aspect of habitations of justice, and if there be a judge
who does not harbor such a desire, he surely would not dare to resist
the leadership of the prosecutor, supported as he undoubtedly would be
by public opinion.
Record Systems in Municip.\l Court and Prosecutor's Office
The minimum requirement for the record or docket of a case is
that it disclose all steps or stages thereof, and all orders and disposi-
tions issued or made by the court; so that the attorneys or other per-
sons interested can at any moment ascertain the statas of any case,
and the chief prosecutor or public can, from the records, tabulate the
statistics of the administration of justice and appraise the work of those
engaged in that administration. The system of record-keeping should
be such as to minimize errors and reduce to a practicable minimum
the time and trouble involved in finding and tracing the history of a
case. Obviously, the full record or docket of any case ought to be con-
tained at a single place or part of the records and the system of index-
ing such that this place or part may be easily and swiftly located.
We have seen how far short of these minimum standards the record
.system of the criminal branch of the Municipal Court of Cleveland falls.
Immediate overhauling and modernizing are imperative. The excellent
system developed by the clerk of the Municipal Court of Chicago will
serve as a model from which to work.'
Disposition of C.\ses by the Prosecutor Himself
Special attention should be given to the regulations governing those
actions of the prosecutor, both city and county, in which the final result
and disposition of the ca.se are determined by him or on the basis of in-
formation suppUed by him, as distinguished from cases in which the
disposition is made by the court or jury on the basis of sworn testimony.
' Editor's Note: A complete description of the record system in use in the
Municipal Court of Chicago was attached to Mr. Bettman's report, but because of
lack of space has not been included in this publication. It is on file at the office of
the Cleveland Foundation, and is accessible to anyone interested.
1205]
These situations include the initial decision of the municipal prosecutor
to issue no affidavit, the "no-papering" of cases, the entering of nolles,
the "no bill" by a grand jury at the instance of the prosecutor, the
acceptance of pleas of guilty of a lesser charge than the offense originally
charged, and mitigations and suspensions of sentences.
Conciliation by the Prosecutor
The unofficial court of conciliation conducted by the municipal
prosecutor, in which he sends for the accused and confers with com-
plainants and accused and attempts to adjust their differences and then
determines whether an affidavit shall or shall not issue, has been de-
scribed. This all takes place m the privacy of the office of the prose-
cutor or assistant. There is not even the restraint which comes from
the necessity of announcing the decision in open court. Absolutely no
record is kept, and all that occurs and all the motives or reasons for
the decision are recorded, if at all, only in the mind or private papers of
the assistant.
This is too loose and dangerous a system. This kind of treat-
ment is quite appropriate to some cases. There are controversies or
acts of too petty a nature or too free from criminal motive or danger
to justify arrest and prosecution, and it would be unwise to burden
the overburdened court dockets with them. And, unless this concilia-
tion work be taken over by the courts, it naturally falls within the
prosecutor's field. But it offers both opportunity and temptation to
permit the administration of criminal justice to be used for the collec-
tion of civil claims and for the assistant prosecutor to share in the
benefits, financial or otherwise, therefrom. This opportunity and temp-
tation should be reduced, so far as office system or practice and the
chief prosecutor's executive control can reduce them. Therefore each
assistant who engages in any such conciliation or decision not to prose-
cute should be required to make a daily written report to the chief
prosecutor, on a form devised for the purpose, giving such matter as
the names of the parties concerned, the nature of the charge, the terms
of the conciliation or adjustment, and the reasons for non-prosecution.
These reasons, moreover, should not be allowed to degenerate into
formulas, such as "insufficient evidence," which disclose nothing, but
should be sufficiently comprehensive to enable the chief prosecutor to
pass upon their adequacy. By examining these daily reports, the chief
prosecutor will be able to discover whether his office is lending itself
too freely to the settlement of civil claims or dropping cases too lightly.
1206]
"No Papers"
As the practice known as "no papers" has no statutory basis or
restraints, it opens another avenue for favoritism or corruption which
needs to be narrowed by office regulations. Where there has been an
arrest without adequate basis for further prosecution, the practice is
justifiable as a means for avoiding the clerical labor of drawing and filing
an affida\'it. But otherwise the procedure ought be as formal, open, and
safeguarded as in the case of the statutory nolle. The regulation should
provide that, in every case of "no-papering," the reasons for that action
be set forth in full in writing by the assistant who makes the recommen-
dation, and submitted for approval to the chief prosecutor or to his first
assistant, if the chief delegates this authority to him, whose approval will
also be written, and that then, when the case is called, the statement be
read to the court.
NoUes
In state felony cases the approval of the court is required by law
before a nolle may be entered by the prosecutor. The statutes contain
no clear-cut provisions regulating nolles in the Municipal Court; but the
authority of the court maj' undoubtedly be exercised to control the
allowance of the motion to nolle. Where the nolle is at the prosecutor's
instance, regulations similar to those described for "no-papering" should
require the wTitten statement of the assistant recommending the nolle of
his reasons thereof, submitted to and approved by the chief prosecutor
or delegated first assistant, the statement to be read in open court.
Where the justification for a nolle first transpires during the trial of a
case, that fact and the approval of the court ought to be noted in the
court entrj' and record and a written report thereon made by the trial
prosecutor to his chief.
"No Bills"
Where the grand jurj' itself decides the evidence to be insufficient
to warrant an indictment, the prosecutor is not necessarily responsible
for that form of dropping the case. As a matter of fact, however, many
"no bills" are returned by the grand jury on the strength of the prose-
cutor's own statement that he has no evidence to present or his own
opinion of the inadequacy of the evidence presented. In these cases the
"no bill" is then a procedure whereby the prosecutor dismisses prose-
cutions. It furnishes temptation and opportunity for hurried, careless,
shpshod work. Regulations similar to those recommended for "no
papers" and nolles, namely, a full written report by the assistant who
[207]
recommends or brings about the "no bill," setting forth his reasons,
would help to reduce this opportunity and temptation.
Acceptance of Lesser Pleas
Obviously the acceptance by the prosecutor of plea of guilt of a lesser
offense than that charged should, for similar reasons, be governed by the
same sort of regulation as has been described — written statement of rea-
sons, submission to and approval by the chief prosecutor, presentation of
the statement in open court.
Suspension and Mitigation of Sentences
The prosecutor is interested in the sentence, as well as the proof of
the offense, and it is only proper that no sentence be suspended or miti-
gated without affording him an opportunity to be present and present
his point of view. If he instigates or favors the suspension or mitigation,
the requirement that a statement of his reasons be made, approved, and
presented as in the other classes of actions covered by this chapter will
reduce the opportunities for carelessness or favoritism.
The reports and statements described in this chapter should each be
filed with the papers of the case, and, from and after the entry of the
nolle or other disposition, be treated as public documents open to public
examination.
The Preparation of Cases
A serious loss in efficiency is due to the fact that, particularly in
felony cases and the more grave and vicious misdemeanors, the prose-
cutor's offices, municipal and State, do not get in touch with the prepa-
ration of the proof at a sufficiently early stage, with the result that
valuable evidence is lost or not sought, or the search for evidence is not
guided by the principles of the law of evidence or of the substantive law
relating to the particular crime involved. Except in an occasional case
of unusual prominence, the prosecutor, who represents the public's knowl-
edge of the law and has the ultimate responsibility for the presentation
of the public's case, does not take charge of the discovery and preserva-
tion of the evidence. The speciaUzation of work in the prosecutor's office
should include the assignment to the necessary number of assistants of
this function of getting on the ground early in the search and acting
as the advisers of the police and detective forces engaged in the search.
As a matter of office routine and system, all information obtained by
those or other assistants and the transcripts of the testimony in the
preliminary hearings should be made available to the members of the
[208]
office who prepare the affidavits and indictments and who present the
cases to the courts and grand and trial juries, so that all information any-
where in the office is systematically placed where needed and where it
can be most effectively used.
The present division of work and responsibility between the offices
of the municipal and county prosecutors in every felony case is a fruitful
source of inefficiency. The municipal prosecutor is under the temptation,
to which he habitually succumbs, of fecUng that all he has to do is to
get the case through the Municipal Court and pass it up to the county
authorities. Having no responsibility for the ultimate result, he feels no
responsibility for preparing the case for that ultimate result. In this
attitude he is supported by the court, which generally proceeds upon the
assumption that the hearing need not be thorough, since ail that is re-
quired is the discovery of some indication of a violation of law, with just
enough evidence to point toward the defendant as the responsible party,
thus enabUng the whole matter to be passed on to the grand jury. When
the case does reach the county prosecutor's attention, the time for suc-
cessful preparation has often gone by. Witnesses have died or have been
coached or their memories affected by what they have heard and read;
important documents have disappeared. The problem of centralizing
the duty and responsibility of preparation is difficult, but one that must
and can be met. <
The simplest solution and one which should be tried as soon as the
necessary legislation can be obtained is to place all State cases, both mis-
demeanors and felonies, in the exclusive charge of the county prosecutor
from the beginning, including the presentation of the cases to the Muni-
cipal or examining court. That would involve the enlargement of the
force of that office, but correspondingly relieve the municipal prosecutor's
office. The present di\'ision of the work in State cases is wholly illogical
and harmful.
The effective preparation and presentation of cases require the con-
stant cooperation and coordination between the prosecutor and the
police department. In Cleveland, as generally in this countrj-, the pohce
department is a municipal and the county prosecutor a county organ.
Mr. Stanton, the present county prosecuting attorney, states that he
himself has had no difficulty in obtaining all desired assistance from the
poUce department, and in his opinion that assistance will always be
forthcoming, by reason of the zeal of the members of the police force to
promote the success of the cases in which they participate as arresting or
detecting officers. If, however, the county prosecutor's jurisdiction is
enlarged to include all stages of State cases, the necessity for this coopera-
15 [ 209 ]
tion and coordination would increase and the contacts between these
two departments become more continuous. Under those circumstances
there may prove to be some difficulty in maintaining the necessary
coordination and cooperation, and time and experiment may develop
the conclusion that the only way to bring them about in a heavily popu-
lated community like Cleveland and surrounding territory is to consoh-
date city and county governments, at least to the extent of a consolida-
tion of the prosecutors, police department, courts, and other departments
engaged in the administration of the criminal law. But, at the very least,
all State cases should be placed in the jurisdiction of the county prosecu-
tor, and in the meantime, that is, until this change is made, cooperative
arrangements should be made between the two prosecutors' offices,
whereby the county prosecutor can keep in touch with and influence the
preparation of felony cases from the beginning. And the Chief of Police
should assign a detail of detectives to the county prosecutor, so that he
may have conveniently at hand some detective force operating under his
instructions.
Through the development of criminology, psychology, and kindred
sciences, a corresponding development of methods of criminal investi-
gation has taken place. American pohce departments and prosecutors
have not taken full advantage of these developments, so that the meth-
ods of criminal investigation in the United States have not kept pace
with the intensification of the law enforcement problems nor with the
facihties furnished and indicated by modern science. This is a subject
falling more largely in the police division of this survey than here; but,
in view of the important place of the county prosecutor in the adminis-
tration of criminal justice and his responsibihty for the final trial of
every important case, it would seem advisable that there be attached to
his office an expert in criminal investigation to assist in the preparation
of cases. As long as the municipal prosecutor handles State cases, such
an expert in criminal investigation should also be attached to his office.
The question of the continuity of the criminal courts has a bearing
upon the preparation of the cases. The crowding of the calendars just
before the judicial summer vacation and the summer accumulation make
for overhurried and, therefore, underdone preparation. The individual
judges and prosecutors can easily arrange for a continuity of work,
while giving each a fair rest. Criminal justice cannot afford a vacation.
The Grand Jury
A case which is worthy of presentation to the grand jury at all is
worthy of a careful and thorough presentation. If the steps previous
[210]
to this presentation be taken with the care and thoroughness which have
been recommended in previous chapters, the grand jury assistants of
the county prosecutor will receive material which will enable them to
do their work well and thoroughly. Then a stenographic report and
transcript should be made of all testimony before the grand jury. This
will have the effect of spurring the assistant prosecutor to his best
efforts; will have the effect of reducing careless or perjured testimony;
will have the effect of placing in the hands of the trial prosecutor in-
formation which will as.sist him in the adequate presentation of the
case to the trial judge and jury. As things are at present, where the
prosecutor who presents the case to the grand jury receives in most
cases little more than the names of witnesses, knows nothing of the
case before he starts into the hearing of it and the hearing is not treated
as sufficiently dignified even to take down what the witnesses say, if
the case survives this stage at all, this stage becomes little better than
a mechanical passing of the matter on to the next assistant.
The present situation raises, however, a deeper question as to the
appropriate place of the grand jurj' in the administration of justice in
a modern community. To what extent does the grand jurj-, as now
used in Cleveland, perform a necessarj' and useful part? At present
about 90 per cent, of the felony cases receive two preliminary examina-
tions. This means that, previous to the actual trial of the case, the
witnesses appear and testify at two separate times and places; that
the time and energ\' of two successive prosecutors are enlisted in each
case; that the clerical work is doubled and the executive work, such
as that of the bailiffs, is doubled. This duplication, while it places an
added strain upon an already overburdened machinery, does not itself
demonstrate the uselessness of this double hearing. But the fact that
the case is going before another preliminary tribunal has the effect, as
has been stated, of making the work of the first of these two tribunals
casual and careless.
The grand jury was originally an assembly of the neighborhood for
the purpose of starting the prosecution of crimes with which the neigh-
borhood was familiar by observation or reputation. It antedated the
modern system of police departments and prosecutors, who now have
charge of the original institution of prosecutions. In the era of royal,
baronial, or executive despotism and tyranny, the grand jury came to
be looked upon as an institution which would protect the people against
the deprivation of their liberties by feudal barons, kings, and other op-
pressors. It is no longer needed as a bulwark of our Uberties, as the
trial courts and juries, together with other conamunity institutions, are
[211]
quite capable of protecting us against executive tyranny or persecution.
Generally the grand jury does little more than rubber-stamp the opinion
of the prosecutor. It is almost exclusively dependent upon him for its
knowledge of the law, and for its information on the facts it is almost
entirely dependent on his zeal and willingness. There will always be
instances in which the inquisatorial powers of the grand jury are neces-
sary for the initial discovery or proof of a violation of law, and in which,
just as at present, the prosecution will be begun before the grand jury.
At times it is needed to institute inquiry into the acts of public officials
themselves, being presumably more independent of the accused officials
than other organs of the administration of justice. For these situations
the grand jury, both regular and special, continues to have a special
and valuable function, for which it should be maintained. But where
the prosecution is begun in a court of preliminary examination, if that
examination be conducted in a careful and orderly way, there is, with
rare exception, nothing valuable for the grand jury to do, and the dupli-
cation of preliminary hearings produces the inefficiencies which have
been noted in this report. In short, one preliminary examination is
enough. If the preliminary examination demonstrates the justification
for a trial, the prosecutor should then file an information' in the county
court and the case be submitted at earliest practical moment to the trial
court and jury.
This proposal is by no means revolutionary. As long ago as 1825
Jeremy Bentham, in his "Rationale of Judicial Evidence," asserted
that the grand jury, as an institution, had then been useless for fully
a quarter of a century. The discussion has been going on ever since.
For almost a centurj^ Connecticut has been using the prosecutor's in-
formation instead of the grand jury's indictment as the normal mode
of prosecution; and 18 States have constitutional or statutory provi-
sions for abolishing the system of double preliminary examinations.
Simplification of the Bail Bond System
There can be no good excuse for delay or neglect in the collection of
forfeited bail bonds. No type of case can possibly be more simple and
easy. The pleading consists of a copy of the bond and the statement that
it has been forfeited. The fact of its forfeiture is a matter of record, and
there is rarely any defense or anything to prove. The best procedure
would be that the forfeiture of the bond itself automatically constitute
' "Information" is the technical name given to a statement or pleading of an
accusation of crime made by the prosecuting attorney as distinguished from "indict-
ment" made by a grand jury.
[212)
a judf2:mont on the bond. Where, as now, suit on the bond is required,
there is no reason why the suit should not Ix; filed immediat<;ly aft<'r for-
feiture and judgment and execution obtained at the earhest moment
allowed by law.
The bail bond system is another place in which an vmnecessary num-
ber of steps arc taken, with con.sequent waste of effort and excessive
opportunity for neglect or worse. In every felony case bound over to the
grand jury three is the minimum number of successive bail bonds re-
quired; and if the case be carried to a higher court or courts, the number
will go to five or seven. If, as recommended in this report, double pre-
liminary hearings be eliminated, this number would be automatically
reduced by one. The first bond, namely, the one given at the time of
arrest to secure appearance in the Municipal Court, is one which the
accused desires to give quickly and for which generally he has had no
opportunity to prepare in advance. The obtaining of this bond ought
not be made unfairly difficult, and the accused should not perhaps be
required at that time to find sureties who will stand good for his appear-
ance at all later stages of the case. Thereafter, however, he will have
ample time to prepare for subsequent happenings, and there is no good
reason why the second bond, given when the Municipal Court decides
the preliminary or final issue adversely to the accused, should not hold
good throughout the case and secure the defendant's appearance at all
later stages, including his surrender for imprisonment if he finally loses;
especially as under the present statute the bond becomes a lien on the
surety's property from the moment it is given. This reduction of the
number of bail bonds in any case to two will materially decrease admin-
istrative and clerical detail and activity, and reduce the opportunities
for neglects or corruption in the acceptance or the enforcement of the
bonds.
The Place Where Criminal Justice is Administered
The office space given to the offices of the prosecutors should be made
adequate — that is, sufficiently roomy and well arranged to enable the
work to be done in an orderly, efficient manner.
When religion is the dominant emotion and interest of a people, they
put their energies and their talents into their cathedrals. The buildings
we erect and pay for show where our hearts lie. It is symbolic of the
situation that Cleveland erected a magnificent new court-house for her
civil courts and a magnificent new city hall for her civil officials, leaving
criminal justice to thrive as best she may in the old, black, and battered
structures. A majestic and dignified environment has its effect on all
1213]
who come within it. The quaUty of justice wall reflect the quality of its
home. This vital institution, where the homes and lives and Uberties of
her people obtain security and protection, should receive from Cleveland
a home worthy of its great function.
The question whether this home should be a single structure, or a
central structure with branches in dlifferent parts of the city, presents
somewhat complicating considerations. The work of the police depart-
ment in connection with the criminal courts, such as confinement of
arrested persons in jail, bringing them before the court and testifying
at the trials, could be done more economically by means of district
municipal courts attached to district police stations. Under any wise
arrangement, however, the central building will house the prosecutors'
and clerks' offices and all jury trials, as well as special courts, such as the
children's court, the traffic court, and others. The housing in one cen-
tral building of all these offices and courts, including the municipal
prosecutor and the criminal branch of the municipal court, would pro-
duce a large saving of time, energy, and money in the administration of
the criminal law and thereby promote its efficiency.
Salaries, Terms, and Selection op Personnel
The lawyers, the judges, even ex-prosecutors themselves, attribute to
the present low scale of salaries for prosecutors and their assistants the
disproportion which they beheve to exist between the usual abihty of
the incumbents of those offices and the importance of the work in their
charge. Certainly the compensation is low compared with the pro-
fessional earnings of other members of the Cleveland bar. The influence
of this factor of salary upon the caUber of men who accept public posi-
tions may, however, be overstated. After all, the motive of pubhc ser-
vice, together with the allurements and fascination of public office, the
power and prestige which pubhc office brings, and the magnitude of the
matters entrusted to the public official, will always remain potent influ-
ences in obtaining men to fill them. Moreover, a prosecutor's office should
attract able young lawyers, to whom the opportunity for service and
experience can be made highly attractive. The size of his salary will not
remove from the weak man all the temptations which the position
affords him for using Ms position in furtherance of liis fortune or career.
Political machines and leaders will continue to prefer men whom thej'
can control, and the size of the salary will not necessarily lessen the
number of such men on the Ust of candidates. It would, therefore, be a
superficial analysis to expect this feature of increased salary alone to
work a magical change in the cahber of men in these positions.
[214]
I
— a
U
The "Old Court House" on the PubUc Square. Tliis liuiUlins houses two criiiuiuil
court rooms, clerk's office, juvenile court, a l)r;\ucli of the ])ulilic library, a law
school, and a few comity offices. A briiftce connects it with the comity jail
Salarj', however, does play a considerable part in the element of
prestige. Taking human nature as it is, the man who receives Slo.OCM)
per annum has an influence and an impressiveness on and over his fellow-
citizens which the same man might not quite possess were his salary one-
third of that amount or less. And, of course, the amount of salary plays
a part in attracting men of talent. Better salaries will impair the cus-
tomai-y excuse of the political leader that he cannot get good men to run
for office.
The salary scale in the prosecutors' offices should be materially in-
creased from top to bottom and made consistent with the importance of
these positions and with the necessity of making them inviting to men of
talent. An office such as that of prosecuting attorney of Cuyahoga
County, with its million or more inhabitants, should have attached to it
a salary of not less than S15,000. Corresponding graded increases
should be provided for the municipal prosecutor and for the assistants in
the two offices.
There is no reasonable justification for the present short two-year
term of office. The prosecuting attorney has questions of policy to
determine, but thej' are more nearly administrative than legislative poh-
cies in their nature, and there is no logical reason for a short term. Four
years would be none too long.
Fmthermore, the frequent change in the personnel of the assistants
or the change of assistants with each change in the political complexion
of the chief is an absurd piece of inefficiency. With the e.xception of the
first assistant, to whom the chief prosecutor delegates some of his dis-
cretionary powers and whom he can use for confidential matters, a com-
petent assistant should be kept as long as he will stay. If the community
cannot succeed in inducing the prosecutors or the pohtical organizations
to institute such a civil service system, this should then be established by
law. The discharge of a competent assistant (other than the first assist-
ant) for political motives should be treated by the Bar Association as
unprofessional conduct on the part of the prosecutor, since he thereby
subordinates the administration of justice to partisan politics.
[215:
CHAPTER X
THE BAR AND THE COMMUNITY
IN the last analysis a community cannot escape the responsibility
for the conditions and instrumentalities, inanimate and human, in
and by which justice is administered in its midst. In any institu-
tion, however, there is necessarily some group within the community
which, by reason of its opportunities for observation, and for the crea-
tion of conditions and atmosphere and for influence upon those engaged
in the institution, must bear the greater share of responsibility. In the
administration of justice, this group is, of course, the members of the
bar.
The Bar
Law and custom prescribe that judges and prosecutors be chosen
from the local bar. It is the lawyers who can give information to fellow-
citizens regarding the caliber of candidates for these positions. Through
disbarment proceedings and action of the Bar Association they can
bring to bear special sanctions for the punishment of unprofessional
practices and thereby create standards. In a word they may determine
the tone of the administration of justice.
What has the bar of Cleveland, as a group, done or failed to do to
improve the traditions, atmosphere, habits, and practices in the adminis-
tration of criminal justice?
In 1921 the scandalous situation disclosed by the Kagy murder cases
aroused the Cleveland Bar Association. William H. McGannon, chief
justice of the Municipal Court, was with Kagy and Joyce shortlj'
before the shooting and had spent part of the evening with them. Joj'ce
was tried for the murder and acquitted. McGannon was tried twice, the
first trial resulting in a disagreement of the jury and the second in
acquittal. Joyce was a rather disreputable character and certainly no
fit boon companion for the Chief Justice of the Municipal Court. The
evidence in the three trials was full of contradictions and incredible
statements, and the public felt sure that there had been some perjured
testimony and subornation of perjury. The Bar Association forced the
[216)
resignation of McGannon. It brought about the presentment to the
grand jury of facts which resulted in a number of indictments for perjury
and subornation of perjury in the Kagy murder trials, including the in-
dictment of McGannon. Some of these, including McGannon's case,
have result<>d in convictions and others are still pending at the time of the
writing of this report. The as.sociation contributed the services of a lead-
ing Cleveland attorney as special prosecutor and funds for the special
investigations incident to the discovery of the evidence on which these
perjurj- proceedings were based. Great credit is due to the president,
officers, and members of the association for the energy and generosity
with which they responded to this call for this public service.
In 1919 the community felt suspicious concerning certain aspects of
the work of the office of the then County Prosecutor, Samuel Doerfler,
particularly the alleged favoritism shown defendants who were repre-
sented by two former associates of Doerfler. The Bar As.sociation ap-
pointed a committee to investigate. This committee was not able to
assert with certainty proof of corruption in any particular case, but it
did reprimand Mr. Doerfler for permitting an atmosphere of favoriti.sm
to continue. The Bar Association, as distinguished from its committee,
did not feel justified in acting in this instance.
According to its records and the statements of its secretaries, these
two instances represent the public activities of the Bar Association relat-
ing to the administration of criminal justice in the past fifteen or twenty
years. It has had active grievance committees, which investigate charges
against individual lawyers. Bj"^ the recent appointment of a permanent
salaried e.xecutive secretary, the association has equipped itself to render
more continuous and effective service. The Bar Association, as well as
many individual lawj-ers, has given this siu^vey active encouragement
and assistance. However, the present deficiencies of the instrumental-
ities engaged in the administration of criminal justice represent an
accumulation of manj- j^ears' growth, much of which might have been
foreseen and prevented. Neither the Cleveland Bar Association nor the
bar of Cleveland as a group developed any machinery for continuous and
habitual watch over these instrumentalities, nor have they taken the
lead in either prevention or fundamental reform.
In this respect, the Cleveland association does not differ from the bar
associations of other cities. Indeed, its aggressiveness in a situation even
as scandalous as the McGannon affair is perhaps exceptional among bar
associations in general. The outstanding characteristic of this action,
however, is that it occurred after matters reached the stage of a public
scandal and sensation and that it was directed at an individual case
[217]
and not at the habits, practices, standards, and atmosphere of which
that individual ca^e was but an aggravated symptom or product.
Criminal Practice and the Bar
For purposes of this survey the following questionnaire was sent to all
of the 1,418 members of the Cleveland Bar:
1. Kindly state anything that occurs to you, in as great detail as possible,
concerning the administration of criminal justice in Cleveland, its merits and
defects. Please include your opinion as to caUber of judges and prosecuting
attorneys and defendants' attorneys in criminal cases and methods of trial.
2. What, if anything, ought to be done to improve the administration of
criminal justice in Cleveland?
3. Did you ever hold a position in the office of Cuyahoga prosecuting at-
torney', and if so, when and what position?
4. Did you ever hold a position in the office of police or Municipal Court
prosecutor, and if so, when and what position?
.5. Wliile in private practice, what has been your policy and the policy of
your law office regarding taking criminal cases?
6. To particularize, what class of criminal cases has it been your practice to
accept or refuse, or what classes of clients in criminal cases has it been your
practice to take or refuse?
7. State your reasons for said practice.
8. What is your practice with respect to obtaining release of clients and
friends from jury service?
Feeling that the first questionnaire might have been overlooked by
many lawyers who received it, a follow-up was sent by the chairman of
the advisory committee of the survey, himself a member of the local bar.
About 30 per cent, of the Cleveland bar had sufficient interest in the
subject to send response. Of the 386 responses received, a considerable
percentage contained no specific answers to any of the questions; the
reason given was that the recipient had no occasion to go into the crim-
inal courts and did not feel competent to answer the questions.
To questions 5, 6, and 7, those relating to their policy of accepting
criminal practice, the answers may be summarized as follows:
148 answered that they accept no criminal cases whatever.
52 answered that they accept them occasionally.
82 answered that they accept no such cases from regular clients in other
matters.
20 answered that they occasionally accept cases where convinced of the inno-
cence of the defendant or are impressed by some mitigating circumstances
in the case.
12 answered that they take criminal practice regularly.
[218]
The reasons given for refusing to accept criminal cases may be sum-
marized :
The reasons of 28 were financial.
17 were ethical.
22 were resthetic — a matter of taste.
19 were a feeling of incompetence in that cla.ss of work.
52 were a mere expression of preference for civil work.
As everybody knew before this survey was attempted, and as nearly
everybody knows in every American city, except when regular clients
are involved or an exceptionally large fee is in sight, most of the better
grade of lawyers deliberately stay away from the criminal courts. As a
result, with some notable and praiseworthy exceptions, the practice in
those courts is left to the lawyers of lesser sensitiveness regarding pro-
fessional practices.' The answers to the questionnaire formed an inter-
esting verification of this fact. The criminal branch of the administra-
tion of justice, dealing as it does with the protection of the community
against crime, the promotion of the peace, safety, and morals of the
inhabitants, the lives and the liberties of men, and, therefore, from any
intelligent point of view, the more important branch of the administra-
tion of the law, has become a sort of outlaw field which many a lawyer
avoids as he avoids the slums of the city.
The Duty and Responsibility of the Bar
The American bar has an exceedingly difficult problem. The Amer-
ican lawj^er attempts to combine in a single individual the somewhat
contradictory talents and different, though not contradictory, profes-
sional ethics of the English barrister and solicitor. There enter into
much that he does not merely the motives of the advocate, but motives
which maj' fairly be designated as commercial. In fact, by reason of
this combination of barrister and solicitor, with manj' other character-
istics of American life, a considerable percentage of the more able mem-
bers of the bar largely withdraw from the field of advocac^^ They get
to look upon the courts as a place from which the successful man, by
reason of his success, is able to stay away. They cease to care deeply
about improving the caUber of the courts and practice, and become
possessed of a fear of offending judges or prosecutors or political leaders,
lest their displeasure have a harmful efifect upon the amount of "busi-
' Even those who, in the early stages of their careers, hold positions in the prose-
cutors' oflSces, tend later to withdraw from this field.
[219]
ness" which flows into their offices. This destroys their willingness or
ability to combat aggressively the abuses in courts and pubhc offices.
The judges and lawyers of the criminal courts are members of this
bar and reflect its standards more than appears on the surface and more
than most lawyers are willing to admit. Basically, there is no ethical
distinction or very little distinction between the prosecutor's entering of
a nolle in a case against a friend of a political "boss" in order that he
might gain or retain the favor of that "boss," and the refusal of the
counsel of a leading bank to attack that prosecutor's entering of that
nolle for fear that such an attack may enable that "boss" directly or
indirectly to harm the bank. The element of trusteeship may be more
obvious in the one case than in the other. But the principle that the
lawyer is an officer of the law, a trustee of the administration of justice,
is one voiced by writers on legal ethics and speakers at bar meetings
amid the approving applause of the lawyers. These sentiments become
meaningless gestures or hypocrisies, if they be not lived up to in prac-
tice. It behooves the bar of Cleveland, as the bars of all other American
cities, to make an effort to reduce the commercialism of the practice of
law and to intensify in American law practice the motives and standards
which we look upon as characteristic of the English barrister.
At the very least, the lawyers of Cleveland can make an effort to
increase the prestige of criminal law practice. More than they realize,
the men whom they choose to honor by offices in their professional
associations are men whose distinction comes from financial successes
in private practice. Let them choose as the occasional recipient of
honors a man who, whether on the public or the defendant's side of the
table, has devoted himself, without stain or a lowering of professional
standards, to the field of practice which is concerned with the Hves and
liberties of men and women and the peace and order of the community.
Surely there has been and will be in Cleveland men who fulfill this specifi-
cation, and, if they be honored, their kind will increase in number. The
office of prosecuting attorney is the highest office in Cleveland in which
the duties are the practice of law; and when a man receives and accepts
that office, let his brother lawyers show their appreciation of the distinc-
tion. They will thereby acquire a better right to hold him to the highest
ethical and professional standards.
This is not the place into which to enter into an extended discussion of
the question so attractive to the layman, whether it be ethically right to
represent a defendant whom the lawyer feels to be guilty. Lawyers must
surely by this time have agreed upon the principle that, as every man is
entitled to a trial according to law, every man is entitled to a lawyer and
[220]
every lawyer is entitled to present the man's case regardless of the law-
yer's opinion concerning his guilt or innocence. The lawyer, of course,
should refuse to conduct the case in a manner not consistent with the
finest ethical standards.
Criminal practice must be made a field in which the lawyer and the
gentleman (in the American sense of that word) can feel at home. And
one of the courses which might promote this is for the lawyers who are
both lawyers and gentlemen to return to the first principles regarding
the position of the lawyer as an officer of the law and accept criminal
pract'ce. If the man accused of crime knows that he can obtain first-
class talent at a reasonable compensation, he will have no excuse for
taking his case to the shj'ster or police court hanger-on, and both the
courts and prosecutors will then have some justification for feeling par-
ticularly suspicious and cautious in cases in which the defendants retain
unscrupulous or disreputable lawyers. In this class of work, as in the
civil practice, fees will vary according to the importance of the case
and financial means of the client. The mere matter of office organiza-
tion, so that the classes of work do not interfere with each other, is
easily solved. When we stop to think about it, it is somewhat absurd
to e.xpect the administration of criminal justice to be in the best hands
while best hands avoid it. As long as the criminal law is administered
by lawyers, they, whether chosen and paid by the public or by the private
client, will reflect the standards and attitude of the profession to which
they belong. The bar is the pool from which they all flow. The com-
position of the waters of the pool determines the character of the water
in the stream.
If we delve somewhat deeper into the causes of the relative failure
of criminal practice to attract lawj'ers, we will discover that neither the
greater lucrativeness of civil practice nor the physical conditions and
general atmosphere of the criminal coiu-ts tell the whole story. Com-
parativelj^ speaking, criminal cases do not present issues or problems of
law which are as novel and varied as those in civil cases; and criminal
practice consequently presents less opportunity for the stimulating in-
tellectual processes used in working out questions of law which consti-
tute one of the allurements of law practice.
On the other hand, the questions or issues of fact are more complex
and fascinating in criminal than in civil cases. The problems and mys-
teries of human motive play a larger part, as well as questions relating to
the mental and the moral characteristics or deficiencies of the parties to
the case. Lawyers, however, receive no special training or education in
these fields of human behavior and mental and moral deficiencies. To
[221]
some extent a profession or branch of a profession acquires its prestige
and its consequent attractiveness by reason of the special education and
knowledge which its members require and possess. If some degree of
education in criminal investigation, in psychology and kindred sciences
of human behavior, and in psychiatry and sciences which deal with
mental and moral diseases would come to be recognized as part of the
requisite training of the criminal lawyer, the criminal field of law prac-
tice would gain a prestige which it does not now possess; not to speak
of the greater competence which this special knowledge would bring.
This problem of increasing the prestige and attractiveness of crim-
inal practice is difficult. We must strive and experiment for a solution.
It is as important as any problem which a bar association can under-
take to master.
The Community
The lawyers, however, are not all-powerful in the administration of
justice. Judges and prosecutors are chosen by the electorate or the politi-
cal organizations, and the lawyers constitute only a small fraction of
these bodies. They are a portion of the Cleveland community influenc-
ing but in turn influenced by its standards. From the community the
lawyers receive their temptations and their opportunities. The allure-
ment of those temptations is furnished and the limitations of those oppor-
tunities are fixed by the community. The whole community must share
praise or blame for the moral and intellectual standards of its administra-
tion of the law as of its other institutions. The community forces are,
therefore, relevant factors in determining the quality of the administration
of criminal justice.
Cleveland has grown with tremendous rapidity. This means that
there have flowed into it, in the past twenty years, great portions of the
recent immigrant streams from Europe. This naturally has intensified
the problems of assimilation and adjustment incident to large immi-
grant populations.' The strength of the two main pohtical parties does
not differ greatly, with the usual result that the leaders do some con-
federating in the distribution of positions and favors. The leader or
organization of the successful party is sufiiciently powerful to select
those who are to fiU the available positions. But neither of the two
"machines," however, has developed to that degree of efficiency and
close-knit organization where it, by its own means of control, enforces
an organic unity and cohesiveness in the conduct of the pubUc offices.
Because of the rapid growth of the city financially and industrially,
' 239,538 are foreign-born, out of a total population of 796,836.
[222]
the opportunities for money making have been great and talk of money
making is much in the air. The opportunities for a hicrativc law prac-
tice are great, and young practitioners with ability and talent can easily
obtain greater professional incomes than the salaries in the prosecutors'
offices.
The theory of the American form of goverimient and political organ-
ization is that the public applies its intelligence to the selection of its
officials, trusting to those officials for the efficiency of their accomplish-
ments. But, at least in the highly complex life of the rapidly growing
American city, the theory does not completely succeed in practice.
Experience tends to demonstrate that, in addition to and outside of our
governmental and political institutions, we need non-official agencies
with the function of surveying, measuring, appraising the work of the
governmental and poHtical agencies and keeping the public informed
about that work in a way which the public can understand. Hence an
institution such as the Cleveland Bureau of Municipal Research, whose
interest is in the operation of the municipal government of Cleveland,
particularly in its fiscal departments, and, by advice to and cooperation
with the officials and by reports to the public, to improve methods and
results.
As is the case with other American cities, Cleveland has developed no
such civic agency in relation to the administration of justice. There are
a number of organizations or groups which, from civic or commercial
motives, watch special classes of cases, either wath the object of promot-
ing more efficient prosecution or of protecting persons from official perse-
cution or injustice. Many of these do good work and the combined effect
of their activities is valuable. For instance, the Cleveland Safety Council
of the National Safety Council and the Cleveland Chamber of Commerce
reports traffic \'iolations and, through a permanent executive and a large
corps of volunteers, carefully watches all traffic cases and calls attention
to all failures of aggressive and intelligent prosecution. Similarly, the
Advertising Club promotes the prosecution of "fake" advertisements;
the Cleveland Animal Protective League looks after cruelty to animal
cases; the Consumers League, violations of factory and employment
laws; Drj- Maintenance League, administration of the liquor laws; the
Cleveland Humane Society, cases invoKing children and animals. The
Retail Merchants Board of the Chamber of Commerce employs an
attorney to render the same sort of service in cases of fraud, shoplifting,
and other offenses harmful to retail merchants. The Women's Associa-
tion for Justice and the Women's Protective Association aim particularly
to protect ignorant persons and women involved in vice cases from injus-
[223]
tice. There are others. Each of these, however, concentrates upon the
conduct of some special type of case in which it has a special interest;
none of them attempts to dig into fundamentals, or to study and improve
the administration of criminal justice as an organic whole. For this the
city has rehed on the press, and on spasmodic special grand juries and
special prosecutors and special "graft" investigations in times of clamor.
In this basic field of law enforcement neither the Bar Association nor
any other group has as yet created an agency for constant, thorough, and
expert research into justice as it is administered.
Like the courts and the prosecutors' offices, the conmaunity itself has
been using the jam and drift method. Every once in a while the accumu-
lation of miscarriages of justice, scandals, and unpunished crimes arouses
the community and it institutes a special grand jury investigation or a
specially aggressive newspaper campaign or a survey, and then, for-
getting that the accumulation was the inevitable result of the habitual
defects in the machinery, it turns to something new, whereupon the old
ways go on toward the next inevitable accumulation. Unfortunately,
since royalty and autocracy have gone out of fashion, there is no device
yet invented whereby the public can leave public matters entirely to
pubhc officials and at the same time get the results which it desires.
Continuous pubhc check, scrutiny, reform, praise, condemnation, elec-
tion, discharge, are necessary.
Cleveland should establish a special agency to perform this checking
and reforming function. This bureau should have the funds necessary
to enable it to perform its functions thoroughly. Of existing organiza-
tions, the Cleveland Bar Association is the one which, for many obvious
reasons, might well organize and maintain or, at least, supply profes-
sional talent to this Bureau.
The formulation in detail and the carrying out of those recommen-
dations of this survey which are deemed worthy of adoption can be
made the initial program of this bureau. Thereafter it would have the
function of keeping a fairly continuous check upon the work of the
criminal courts and of all officials and other persons engaged in any
phase of the administration of criminal justice; in other words, not a
survey of the past or of the accumulated driftwood of the past, but a
continuous discovery of symptoms and of diseases in their incipiencies
and continuous effort to prevent the diseases from gaining headway.
But, we hear the skeptic say, will not the same forces, political or
otherwise, which cause a decline in standards in the administration of
justice, proceed to starve or crush your bureau when it becomes an
effective agency of reform? Then will you establish a second bureau to
[224]
keep tab on the first? The answer is that if the community permits,
that is just what will occur. A community cannot escape from itself.
Powerful political organizations are bound to exist in American cities.
They have necessary and useful functions to perform. But no political
organization will ever be so powerful that it can resist the genuine de-
sires or standards of the community. If the community be willing that
its officials be controlled to the detriment of the administration of justice
or any other public institution, no mere piece of machinery, official or
non-official, will long succeed in standing in the way. Each intelligent
step taken to remove an existing defect or institute an improvement
leaves a permanent residuum of progress. In the end, however, the
community must impose the standard. There is no possible method of
escape from its indifference to a high standard of ethics and efficiency.
If Cleveland cares not merelj' for the results in an occasional sensational
or scandalous case, but for a high standard, applied hourly, daily,
weekly, year in and year out, in the administration of criminal justice,
it will attain that standard.
It is in the course of actually participating in a survey of the nature
of this one, and in the process of developing suggestions for remedies,
that one becomes conscious as never before of the unescapable influence
of the atmosphere, the traditions, the ideals, the ambitions, and the
standards of the community itself.
16 [ 225 1
PART III
THE CRIMINAL COURTS
BY
REGINALD HEBER SMITH
AND
HERBERT B. EHRMANN
THE CRIMINAL COURTS
CHAPTER I
THE FUNDAMENTAL TROUBLE
ANALYSIS of the administration of criminal law in Cleveland re-
/-\ veals a failure of self-government in one of the city's most vital
■^ "^ functions. It does not, or should not, matter to the citizens of
Cleveland that other large American cities have failed, for Cleveland has
at times won national recognition for its pride and leadership in civic
affairs. Moreover, the success of the democratic experiment in America
requires that no community shall tolerate conditions found to exist in
this city once the facts are known.
Care must be taken not to ascribe the Cleveland failure to the evil
work of individuals alone, although undoubtedly there has been exploita-
tion by those whose elimination would have a salutary effect. Their
removal, however, would not effect a cure. On the contrary, popular
clamor for a victim diverts attention from the real difficulties, which are
not capable of so easy and dramatic a solution. The conditions which
make exploitation possible must be removed before permanent improve-
ment can be effected.
These conditions are, first, the persistence of a system of criminal
justice become obsolete and wholly inadequate through the rapid growth
of urban population and modern industrial life; and, second, the un-
organized, uninformed, and socially indifferent attitude of the more
intelhgent portion of the citizenship, brought about by concentration on
material prosperity to the exclusion of civic life. The pages of this report
tell the storj% often in bare statistical form, of how an inadequate system
is made use of to defeat the ends of criminal justice in the absence of an
informed and watchful social conscience.
Signs are not wanting that Cleveland is waking up to this situation. A
growing perception and outspokenness on the part of some judges and
other public officials is one of a number of such sjinptoms. Men of
ability are coming forward to devote their services to the public interest;
the Bar Association, the press, and the legislators from Cuyahoga County
[229]
are becoming more alert. The "crime wave" and several notorious
cases have aroused the community to action, with the result that Cleve-
land has taken the unusually courageous step of asking for and publishing
a survey of its administration of justice. It remains to be seen whether
this interest is a mere spasmodic outburst of energy, or whether Cleve-
land is really ready to undertake the task of changing underlying condi-
tions, and, having changed the system, its som-ces and its atmosphere, to
maintain an aroused and informed civic conscience which will prevent a
relapse to old evils.
[230'
CHAPTER n
STRUCTURE OF THE PRESENT SYSTEM
THE present method of administering criminal law is built upon
two court systems, two prosecutors' offices, and a grand jurj*.
The criminal division of the Municipal Court has jurisdiction
over misdemeanors,' violations of city ordinances, and preliminary ex-
aminations in cases of felony. Its misdemeanor jurisdiction is reviewable
by the Court of Appeals or the Common Pleas Court for errors of law
only, so that the system avoids the evil of permitting two trials on the
merits, which is so common to American cities with inferior and superior
courts. A defendant who desires a jury trial must claim it seasonably' —
but there are relatively few such trials.' The geographic jurisdiction of
the Municipal Court is limited to the city of Cleveland.
When a person is arrested for a felony, the Municipal Court holds a
preliminarj' examination, unless the defendant waives his right to such
examination. If the court finds there is probable cause, or the examina-
tion is waived, the court has the power to "bind over" to the grand jury.
The grand jurj' sits practically continuously except during July and
August, which is another advantage over many cities. The prosecuting
attorney for Cuyahoga County then presents evidence to the grand jury,
and if a prima facie case is made out, the grand jurj- returns a " true bill,"
stating the crime for which the defendant is indicted, after which the
case proceeds before a judge of the Common Pleas Court through the
usual stages of arraignment, plea, trial, and disposition. In all its essen-
tials the theory of handling felonies is the same as it has been for hundreds
of years, and is now used, in village and metropolis ahke, throughout the
countrj'.
The Common Pleas Court has geographic jurisdiction throughout
Cuyahoga Coimty, so that some of its cases come from petty magistrates
' Misdemeanors are violations of State laws not punishable by imprisonment in
the penitentiary.
« Ohio General Code 1579, Section 24.
' In 1920, out of 2,608 cases, there were only 15 jury trials.
[231]
outside the city of Cleveland. The number of such cases is not large.*
Occasionally the grand jury returns an indictment without prior pro-
ceedings, usually where it would be inad\4sable to warn the defendant by
proceedings in an inferior court.-
Thisis the general structureof the Cleveland system. Wenow observe
how it works in practice.
' Among all cases begun in the Common Pleas Court in 1919, the number of such
cases was 155, or 4.8 per cent.
' Among aU cases begim in the Common Pleas Court in 1919, the number of original
indictments was 306, or 9.5 per cent.
[232]
CHAPTER III
THE SYSTEM IN PRACTICE
Influences Evoked by Arrests
A STUD Y of the practical working of criminal justice should begin
i\ with some consideration of the powerful dynamic agency released
•^ "^ through the arrest of a man upon a serious charge. The instinct
of self-preservation sometimes leads a felon to commit murder in resisting
arrest, and once in custody, his whole being is concentrated upon the
single idea of getting out. Parents and relatives, who had apparently
given him up as a lost soul, rally loyally to rescue him from the peniten-
tiarj', often pledging their last cent for the purpose. Few felons are so
disreputable that there is no one to fight for their Uberty.' The friends
who do not come forward willingly are forced into line by every human
incentive. It is often surprising how far and into what regions this active
agency can penetrate. " Beginning in the slums, among the recidivists,"
observed the oldest judge on the Cleveland bench, "waves of influence
are set up that reach higher and higher until they envelop respectabilitj'.
Men with spotless reputations, whose motives cannot be doubted, will
urge a judge to parole a professional criminal. How did they get there?
The trail leads back to the slums — investigate the twilight zone."^
The Professional Criminal Lawyer
Another factor to be considered, partly the result of the foregoing and
partly the result of many other causes, is the professional criminal lawyer.
A poll of the bar of Cleveland shows that most lawyers disUke criminal
practice, partly because of a feeling that it is detrimental to civil practice
and partly because of professed ignorance or dislike of the required tech-
nique. The result is that a large part of the lucrative practice in the
' During April, 1921, a number of gangsters were arrested for murder. The fol-
lowing day an audacious pa>Toll robbery occurred. "Raising money for the boj-s'
defense," remarked an old detective knowinglj-.
' Following a most atrocious double murder and payroll robbery, a number of
typical pool-room habitu6s were arrested as suspects. Bail of $40,000 each for some
of these men was promptly furnished from most respectable sources.
[233]
criminal courts goes to a small number of specialists. Considering all
the Common Pleas criminal cases begun in 1919, we find 244 lawyers
appearing in a total of 363 cases, no single lawyer appearing in more than
three cases, against 89 lawyers appearing in a total of 842 cases,^ no one
appearing fewer than three times. About one-fourth of the privately re-
tained lawyers appeared in more than two-thirds of the cases. Twenty-
eight lawyers appeared 10 or more times each in 492 cases, or one-twelfth
of the lawyers in considerably more than one-third of the cases. More-
over, many of this small group of professional criminal lawyers are in
poUtics. Were the system as invulnerable as Achilles, these political
criminal lawj'ers would find the penetrable heel.
Opposed to these forces is the prosecutor's ofiice, consisting chiefly of
underpaid and often inexperienced assistants, with no personal interest in
the cases, and without a tradition of energetic pubhc service. Under
such conditions the best system of criminal justice would be subjected
to strain, and it is not surprising that the present antiquated system has
broken down.
Too Many Steps in the Procedure of Justice
To a layman, or a lawyer in civil practice, the administration of crimi-
nal law means a jury trial in open court. The civil lawyer understands
that in this ordeal by battle between the prisoner's champion and the
prosecutor, the State is under a burden of strict rules of e^adence which
make convictions difficult to obtain. He may also realize the disparity
in ability between the poorly paid prosecutor and the retained private
lawyer, and the manifest failure of the State to assure adequate prepara-
tion for trial. ^ What he fails to grasp fully, and what the layman also
does not realize, is that the dramatic episode of a trial is relatively only a
small part of the system.
In the first place, many offenses are committed for which no one is
arrested. This is a problem of police administration. After an arrest is
made, the police may release the prisoner because of insufficient evidence,
or turn him over to other authorities. In Cleveland there is a practice in
the police department of releasing, or "golden-ruling," first offenders,
but this practice is rarely used in felony cases. These matters are all
questions of pohce policy. Once a man is held, however, the judicial
processes begin to operate. The police prosecutor may report "no
' This is exclusive of cases where counsel was appointed by the court to aid indigent
prisoners and cases in which more than one lawyer appeared for the defense.
* This is dealt with in detail in the report on the prosecutor's office.
[ 234 ]
papers," in which case the prisoner is released without further proceeding.
Or the police prosecutor may move to "nolle" — i. e., nolle prosequi^ — the
case, which also liberates the prisoner. The lower court may find that
there is " no probable cause " and discharge the prisoner. The grand jury
may fail to indict a defendant by returning a finding of "no bill." If a
man is indicted, the prosecuting attorney in the Common Pleas Court
may move to " nolle " the case. The defendant may plead guilty, either on
arraignment or by change of plea later. In addition, among the cases
begun in 1919, a number disappeared in ways not properly cla.s.sed as
dispositions; for instance, those who were never arrested after indictment
and those who jumped their bail in the Common Pleas Court.
A diagram based upon a study of all cases begun in the Common Pleas
Court during 1919, supplemented with information suppHed by the
police department with respect to disposition of felony cases outside of
this court, would look appro.ximately as in Diagram 1.
A more detailed picture may be gathered from Table 1.
Classifying these dispositions under general heads, and adding the
events that may occur before a case reaches the Common Pleas Court
and after conviction, we have the following enumeration of different
methods by which it is possible for an offender to escape under the guid-
ance of an expert:
Felonies and Misdeme.\nors (Municipal Court)
1. "No papers"
2. "Nolle prosequi"
3. Discharge, want of prosecution
4. Discharge after hearing
Misdemeanors — Municipal Court Felonies — Common Pleas Court
5. Suspended sentence 5. "No bill" by grand jury
6. New trial 6. Failure to arraign
7. Appeal 7. "Nolle prosequi"
8. Parole from workhouse 8. Discharge, want of prosecution
9. Not guilty after trial
10. Plea guilty of lesser offense
11. Suspended sentence
12. New trial
13. Appeal
14. Parole from institution
15. Pardon
Throughout this procedure there is always the possibility of the de-
fendant jumping bail should his case assume a hopeless aspect.
' Literally and in practice this means, "I am miwilling to prosecute." This mo-
tion, which has a long historj', is the secret of great power in the prosecutor's office.
[235]
Of 1,000 Felony Arrests —
127 were disposed of by the police
85 were " nolled " or " no-papered " by the police prose-
cutor
143 were discharged or dismissed or found guilty of a
misdemeanor in Municipal Court
139 were "no-billed" by the grand jury
107 were "nolled" by the county prosecutor
91 made an original plea of guilty
148 changed the plea to guilty
42 were variously disposed of
lis came to trial
Diagram 1. — The disposition of each 1,000 cases of felony arrests
The proportions here represented are derived from Table 1. Beginning with item 6 the items are mul-
tiplied by .896, which is the quotient of 2,901 divided by 3,236; i. e., by a factor reducing the items by
as much as the total "bound over" (2,901) is smaller than the total cases in the Common Pleas Court
(3,236).
[236]
TABLE 1.— DISPOSITION OF FELONY CASES BEGUN IN 1919'
1919
Number
of
cases
Per cent.
of
total cases
Per cent.
Common
Pleas cases
exclusive of
" no bills"
1. Total rasps
2. Disposed of by the police
3. "No pn|)ors"an(l "nolled," Municipal Court
4. Discharp;ed, di.siiiissed, or charges reduced to
misdemeanors, Municipal Court
5. Bound over
4,499
572
382
644
2,901
100.00
12.71
8.49
14.31
64.48
Total cases begun in 1919, Common Pleas Court
6. "No bill" by grand jury
7. Total disposed of in ("ommon Pleas Court
8. Total disposed of on plea of defendant
9. Total disposed of not on plea of defendant
3,236
f)97
2,539
1,215
1,324
100.0
48.0
.52.0
10. Subdivisions of 8:
a. Original plea guilty
b. Original plea guilty lesser offense
c. Original plea not guilty, changed to
guilty
d. Original pica not guilty, changed to
guilty of lesser offense
e. Otners
433
22
5.50
193
17
17.1
0.9
21.7
7.6
0.7
11. Subdivisions of 9:
a. Nolled for all causes
b. Not arraigned
c. Bail forfeited
d. Dismissed or discharged
e. Trial, not guilty of felony
f. Trial, not guilty of misdemeanor
g. Trial, guilty of felony
h. Trial, guilty of misdemeanor
i. Others
536
57
33
31
215
8
293
74
77
21.1
2.2
1.3
1.2
8.5
0.3
11,6
2.9
2.9
12. Subdivisions of 11 a:
a. Nolled after commitment for insanity
b. Nolled after new trial granted
c. Nolled after jury disagreement
d. Nolled after plea guilty on other counts
e. Nolled after conviction on other counts
f . Nolled after transfer to Juvenile Court
g. Nolled because defendant already sen-
tenced
h. Nolled on all counts, no reason assigned
2
13
6
6
5
21
84
399
0.1
0.5
0.2
0.2
0.2
0.8
3.3
15.8
' This table is composed of figures from three different sources: item 2 is from the
records of the Division of Police; items 3, 4, and 5 are from summaries of the figures
of the execution docket of the Municipal Court from December 19, 1918, to Decem-
ber 31, 1919, and the remainder are from the survey statistics of the cases begun in
1919 in the Common Pleas Court. Since this court handles cases besides those
from the Municipal Court, the totals, 2,901 ("bound over") and 3,236 ("no bill"
plus "total disposed of"), are not identical. In Table 1, 4,499 is regarded as the
base, and the proportions of various dispositions for all Common Pleas cases are
assumed to apply to the 2,901 cases bound over. See Table 3 in the report on
prosecution.
[237]
With all these avenues of escape open, it is not surprising that Cleve-
land has had extreme difficulty in punishing its criminals or in restraining
crime by swift and certain justice. The business of justice is like a com-
pUcated game, the odds favoring him who has the intense desire to win
plus the skill of an expert on his side. As between defendants, the ad-
vantage lies wholly with the habitual offender, who has played the game
before and knows the expert to employ. The situation is portrayed in
Diagram 2.
Police jurisjictiofl
■■■ Municipal ccurt jmsitOitn
■ I Gmraon nu c^urf Juri«JiHion .
Diagram 2. — The path of justice
How THE System is " Worked " for Weak Spots
The files of the Bureau of Criminal Identification of the Cleveland
Division of Police contain the records of the most successful players of
this game. Only a few examples can be given here because of lack of
space. Most of the men are criminals by profession, though some are
only occasional offenders. It is interesting to note by contrast the de-
cisive results of Federal prosecution where the offender runs afoul of the
Federal law. Unless noted otherwise, the place is Cleveland.
[23S:
Year Charge
1911 Robbery
1911 Attempted burtslary
1911 Violating parole
1914 Forperj-
1915 Burglary and larceny
1915 Suspicious person
1915 Assault to rob (two cases)
1916 Assault to rob
1916 Burglarj'
1916 Contempt of court
1916 Intoxication
1916 Intoxication
1916 Burglary and larceny
1919 Burglan' and larceny
1919 Robbery
1919 Suspicious person
1920 Burglary and larceny
1921 Suspicious person
No. 10238
Disposition or explanation
"liench parole"
Dischargc<l in Municipal Court
Turned over to Ohio State Reformatory
No bill
Plead guilty to petit larceny
Sentence, 30 days
"Bench parole
No bill
Not guilty
Discharged
Suspended sentence
Sentenced, $25 and 30 days
"Nolled"
Plead guilty to petit larceny
Not guilty
Discharged
Plead guilty to petit larceny
Sentenced to $25 fine
No. 12919'
1914 Assault to rob
1919 Receiving stolen property (auto-
mobile body)
1920 Suspicious person
1920 Auto-stealing (five indictments)
1921 Murder and robberj' (while out
on bail after conviction on
fourth charge)
" Nolled" in Common Pleas Court
Disagreement
"Nolled"
Guilty; appeal; petition in error never en-
tered; sentenced to Ohio State Reform-
atory
Sentenced to be electrocuted
No. 10480
1910
Assault and battery Discharged
1911
Assault and battery Suspended sentence
1911
Assault and battery Discharged
1911
Assault and battery Suspended sentence
1911
Indecent language Discharged
1911
Assault and battery Discharged
Violating sidewalk ordinance
1911
Assault to kill (fractured victim's Convicted of assault and battery
skull with iron bar)
1911
Murder (assault) Plead guilty to manslaughter. Sentence,
one year
1917
Murder (shooting) Convicted of manslaughter
No. 10482
1897
Grand larceny Sentenced, $100 and 30 days for receiving
stolen property
1906
Assault and battery Discharged
1911
Violating Sunday law (saloon Suspended sentence
open)
1911
Assault and battery Discharged
1911
Murder Plead guilty to assault and battery; sus-
pended sentence
' Head of an organized band of auto thieves. See Ohio Motorist, February, 1921.
[239]
No. 10482— Continued
Year Charge
1915 Carrying concealed weapons
1916 Receiving stolen property (auto-
mobile)
1916 Receiving stolen property (auto-
mobile)
Disposition or explanation
Discharged
Indicted November 14, 1916
"Nolled" April 10, 1919
Indicted November 14, 1916
"Nolled" March 15, 1918
No. 7042'
1905
Grand larceny (30 pairs shoes)
Plead guilty to petit larceny
1910
Burglary and larceny
NobiU
1913
Suspicious person
Discharged
1914
Suspicious person
"Nolled"
1914
Grand larceny (automobile)
Turned over to Geneva authorities
1915
Suspicious person (pocketpick-
ing)
Suspicious person
Discharged
1915
Discharged
1916
Pocketpicking
Never arraigned
1917
Suspicious person
"NoUed"
1917
Rape (identified by victim)
Discharged in Municipal Court
1917
Suspicious person (pocketpick-
ing)
" Nolled "
1918
Suspicious person
"Nolled"
1918
Violating auto law
Discharged in Municipal Court
1918
Grand larceny
Not arrested
1918
Robbery (wounded two police-
men in escaping)
Not arrested
1918
Murder (killed policeman in es-
caping)
Grand larceny (safe-blowing)
Not arrested
1919
No. 9407
1909
Burglary and larceny
1909
Petit larceny
Sentence, $25 and 30 days
1910
Burglary
Houston, Texas; sentenced to $100 and three
months
Suspended sentence
1910
Petit larceny
1910
Petit larceny
No papers
1911
Grand larceny
Toledo, 0.; sentenced to Ohio State Re-
formatory
1913
Grand larceny
State of VVashington; sentenced to peni-
tentiary
1913
Grand larceny
Discharged in Municipal Court
1913
Grand larceny
Discharged in Municipal Court
1916
Forgery
Discharged in Municipal Court
1916
Petit larceny
Discharged
Assault and battery
Discharged
Disturbance
Discharged
1916
Housebreaking (two cases)
Discharged in Municipal Court
1916
Robbery
1917
Robbery (three cases)
"Nolled" (because of Federal action), see
below
1917
Robbery
1917
Robbery (post-ofiBce)
Sentenced by Federal court, seven years
in Atlanta Penitentiary
' Arrested in 1919 for the larceny, robbery, and murder of 1918 and the grand
larceny of 1919; plead guilty to homicide on the murder; judge found second degree
murder and sentenced him for life June 27, 1919. Other cases " nolled."
[240]
If we observe the operation of the system over a series of years its
weaknesses become clearer. Through the industry and courtesy of
George Koeetle, superintendent of the Bureau of Criminal Identification,
of the Division of Police, the figures on the dispositions of felony cases
for years 1914-1920 inclusive are available in Table 2. The arrangement
has been changed somewhat, and a number of adjustments made with the
approval of Mr. Koestle, but otherwise the basic figures given are exactly
as compiled by the Bureau.
TABLE 2.— DISPOSITION OF FELONY CASES, 1914-1920,
RECORDS OF THE DIVISION OF POLICE
FROM THE
1914
1915
1916
1917
1918
1919
1920
1. Total number felony arrests
1,705
2,1.57
2.749
3,611
3,561
3,460
3.788
2. Total accounted for by ac-
tion other than that of
Municipal or Common
Pleas Court
82
278
344
441
494
625
822
3. Cases pending in Municipal
Court
50
32
57
54
80
57
63
4. Cases disposed of by Mu-
nicipal Court
1,573
1,847
2,348
3.116
2,987
2,778
2,903
a. Bound over to grand
jury
1,263
1,491
1,916
2,443
2,432
2,120
2,235
b. "NoUeprossed"
122
125
173
263
227
210
294
c. Discharged in Muni-
cipal Court
186
231
259
410
328
448
374
5. Total cases, Common Pleas
Court
1,398
1,794
1,963
2,829
2,636
3.325
2,891
a. Cases in which no true
bill is found
279
338
501
623
768
745
617
b. "Nolle pressed"
154
268
260
494
395
662
933
c. Tried and acquitted
26
43
64
151
72
234
182
d. Number insane
2
1
4
I
e. Balance found guilty or
plead guilty
939
1,145
1,138
1,559
1,400
1,680
1,158
I. Sentenced but pa-
roled
240
272
283
340
233
216
81
II. Returned as parole
violators
11
24
17
24
22
27
4
III. Sentence suspended
61
77
72
86
170
131
50
IV. Miscellaneous
2
14
6
14
20
V. Sentence carried out
627
772
764
1.101
969
1,292
1,003
Glancing at Table 2 makes it apparent that the "crime wave " has not
been created wholly by a "yellow press." It must be noted also that this
table includes only the serious criminal cases (felonies), so that the table
would be unaffected by temporary strictness or relaxation in dealing with
offenses usually the subject of reform, such as drunkenness, gambling,
and prostitution. The population of Cleveland increased 42 per cent.
17 [ 241 1
from 1910 to 1920, yet arrests for serious crime since 1914 only have in-
creased 122 per cent., cases bound over 77 per cent., and the number of
cases in the Common Pleas Court over 100 per cent. The number which
were actually found or which pleaded guilty had increased 79 per cent, in
1919, but in 1920 dropped to 23 per cent., the lowest figure since 1916.
It happens that the period covered furnishes an opportunity to dem-
onstrate the ability of the criminal lawyer to find the weak spots in the
system. For some time before 1914, and for several years thereafter,
Cleveland justice tended toward " sentimentalism," expressed by an exces-
sive use of the " bench parole " (probation), more fully considered in a suc-
ceeding chapter. Shortly after the entry of this country into the World War
the attitude of the public changed, and with the advent of the "crime
wave " shifted to the opposite extreme. Judges responded by cutting bench
paroles from 25 per cent, of the sentences in 1914 to 7 per cent, in 1920.
This gradual shutting off of the judicial "parole" forced the criminal
lawyer to look elsewhere for relief. The principal sources of such relief
were: (a) "noUes" in the Municipal Court; (b) discharges at the prelim-
inary examination in the Municipal Court; (c) "no bills" by the grand
jury; (d) "nolles" in the Common Pleas Court; (e) trial and acquittal by
juries. A glance at the figures shows that all these sources have been
called upon. Although the number of felony dispositions in the Muni-
cipal Court increased only 84 per cent, from 1914 to 1920, the number of
" nolles " in that court increased 140 per cent, and the number of discharges
101 per cent. The number of dispositions in the Common Pleas Court in-
creased 106 per cent, in the same period, but the number of "no bills" in-
creased 121 per cent . , the number of"nolles"506percent.,andthe number
of trials and acquittals 600 per cent. The increasing tendency to keep
cases away from the discretion of the court is more marked in the Com-
mon Pleas Court than in the Municipal Court, probably because the
lower court had already been "worked" almost to the saturation point.
Apparently there is a kind of Gresham's law in the administration of
criminal justice. Just as cheaper currency tends to drive out dearer, so
the slacker agencies tend to oust the stricter of jurisdiction. Diagrams 3
and 4 show plainly this tendency.
The increasing severity of the courts is shown in Diagram 3, which
gives the change in the percentage ratio of sentences executed to all
sentences. All cases which reached the judge for disposition, by plea
or conviction, are included. The curve of all cases sentenced, based on
a percentage of all the cases disposed of by the court, shows the increas-
ing tendency to keep cases away from the judge, chiefly by "nolling,"
trial and acquittal, and "no bill."
[ 242 ]
1914
1917
1918
1919
1920
Diagram 3. — Comparison of severity in sentencing with decreasing tendency to bring
cases to sentence. (Common Pleas Court, 1914-20)
Diagram 4 shows the same tendency in more specific form, the per-
centage of "bench paroles" of cases sentenced being compared with the
Per
cent.
35
30
25
20
IS
10
5
Per cent cacee bench paroled were of all cases sentenced
Per cant.caeee nolled were of all cases that ■RTere 'befrun
X^
/
' \
i
/
\
A
Oxj
^
'^ -— -^^
\
1914 1915 1916 1917 1918 1919 1920
Diagram 4. — Comparison of decline of "bench paroling" with increase of allowing
"ntiiiepTose(i\xi"
[243 1
percentage of cases "nolled" of all cases disposed of. The reciprocal
action is clear.
How the system is ' ' worked ' ' for weak spots may also be seen in Tables
3 and 4 by comparing the dispositions and suspended sentences of Com-
mon Pleas cases obtained under the guidance of the most sophisticated
criminal lawyers, with the results in other cases. For the purposes of
these tables, criminal lawyers with political affiliations were chosen. A
list of all lawyers having more than 10 cases each begun in 1919 was sent
to a Cleveland lawyer thoroughly familiar with the local bar. This
lawyer, without knowing the figures for any names in the list, marked the
attorneys with political leanings and his judgment was accepted. The
figures are not as significant as a selected fist would show because the
names chosen for political affiliations include several high-minded men
who are not primarily criminal lawyers at all. The comparison does not
necessarily throw discredit upon the lawyers selected: it does reveal a
system which lends itself to manipulation. It is to be regretted that the
absence of proper records prevents a similar comparison being made for
the earlier stages of the cases in the Municipal Court.
TABLE 3.— DISPOSITIONS OF CASES OF 27 POLITICAL LAWYERS' COM-
PARED WITH DISPOSITIONS OF ALL OTHER CASES BEGUN IN 1919
IN THE COMMON PLEAS COURT
Number
of cases of
27 political
criminal
Number
of all
other
Per cent,
of cases of
27 political
criminal
Per cent,
of all
other
lawyers
cases
lawyers
cases
Total cases
412
2,127
100.0
100.0
Total pleas of guilty
147
1,068
35.7
50.2
Original pleas of guilty
10
418
2.4
19.7
Original pleas of not guilty changed
to plea of guilty
101
449
24.5
21.1
Original pleas of not guilty changed
to plea guilty of misdemeanor
33
160
8.0
7.5
Other pleas
3
41
0.7
1.9
Total disposed of by trial
127
463
30.8
21.9
Guilty of felony after trial
60
233
14.6
11.0
Guilty of misdemeanor after trial
17
57
4.1
2.7
Not guilty of felony after trial
50
165
12.1
7.8
Not guilty of misdemeanor after
trial
8
0.4
"Nolled" on all counts
104
295
25.2
13.9
All other dispositions
34
301
8.3
14.2
' Having more than 10 cases each among all cases begun in 1919 in the Common
Pleas Court.
[244]
The sagacity of the criminal lawyers may be seen in the fact that they
allowed scarcely more than a third of their clients to plead Kuilty as com-
pared with more than half of the others; that of those who did plead
guilty, proportionately only one-sixth as many pleaded guilty upon
arraignment as compared with the others, showing a tendency on the
part of the criminal lawyers not to surrender until they had made a deal
with the prosecuting attorney, or until it was clear their cases were
hopeless; that of those who pleaded guilty the proportion who were
allowed to plead guilty to a lesser offense was half again as great as in the
other cases. Most striking is the proportion of nearly twice as many
cases "nolled" by the prosecuting attorney, and 50 per cent, more cases
tried by jury.
Even during a period in which judges were stiffening in the matter of
"bench paroles" and suspended sentences, the political criminal lawyer
has been able to snatch some advantage for his clients, although the
courts have not yielded in this respect as much as other agencies. Of
those who were sentenced, proportionately 20 per cent, more secured
suspended sentences when represented by these lawyers than when repre-
sented by the bar at large.
TABLE 4.— SENTENCES AND SUSPENSION OF SENTENCES OF THE
CASES OF 27 POLITICAL LAWYERS' COMPARED WITH THE SEN-
TENCES AND SUSPENSION OF SENTENCES OF ALL OTHER CASES
BEGUN IN 1919
27 political
All
Per cent.
Per cent.
criminal
other
of cases
of other
lawj-ers
cases
27 lawyers
cases
Total cases
412
2,127
100.0
100.0
No sentence indicated
182
755
44.2
35.5
Total sentenced
230
1,372
55.8
64.5
Total sentence suspended
58
293
14.1
13.8
Total sentence executed
172
1,079
41.7
50.7
Total sentenced for felony
124
780
30.1
36.7
Total sentence felony suspended
38
203
9,2
9.5
Total sentence felony executed
86
577
20.9
27.1
Total sentence misdemeanors
106
592
25.7
27.8
Total sentence misdemeanors sus-
pended
20
90
4.9
4.2
Total sentence misdemeanors exe-
cuted
86
502
20.9
23.6
Total misdemeanors sentenced to
fine only
40
257
9.7
12.1
> Having more than 10 cases each among all cases begun in 1919 in the Common
Pleas Court.
[245]
What Steps may be Eliminated
We have now seen enough of the system in operation to understand
the fundamental difficulty, leaving to one side questions of personnel.
The steps in the administration of justice are too numerous, involve too
many agencies, and are too loosely guarded. It is the old difficulty of
weak links in a chain. All unnecessary links should be eliminated and
those remaining should be made as strong as possible.
Those steps which may be eliminated to advantage are probably
already obvious. The study of the county prosecutor's office brings out
the folly of expecting efficient handling by the prosecuting attorney of
cases which were dealt with in their vital stages, without his knowledge
or attention, first by the police, and then by the police prosecutor.' The
futility of entrusting the power to "nolle" to two sets of prosecutors is
equally clear. Three different judicial agencies are asked to discharge
the defendant because there is no prima facie case against him— the Mu-
nicipal Court at the preliminary examination, the grand jury on present-
ment by the prosecutor, and the Common Pleas Court on motion to
discharge or for a directed verdict.
The hardship on the State's witnesses in attending this multiplicity of
hearings and continuances needs no comment, nor the fact that the State
loses valuable testimony by this process of attrition. We have already
seen that, of cases beginning in the Municipal Court, approximately 42
per cent, die in that court and the grand jury room, but it is not possible
to tell how many other cases which survive these stages finally perish for
lack of evidence which was available at the earlier stages. The average
time from indictment to disposition of all Common Pleas felony cases
begun in 1919 — originating in the Municipal Court — was 46.3 days, but
the average time from arrest to disposition was 67.8 days. This entire
excess of 21.5 days per case is unnecessary and injurious. Also, as will be
seen later, the dragging out of cases is largely responsible for bail bond
trouble, since a speedy trial would often do away with the necessity of
bail. It is, moreover, an injustice to a defendant to put him in a position
where he may be called upon to furnish at least three bonds — first after
arrest, then after being bound over, and finally after indictment.
A glance at Diagram 2 will show that all the steps in the Municipal
Court, together with the grand jury, may be dropped to advantage. It
should be enough if a judge finds there is probable cause to hold a de-
fendant for trial, and the judge might better be a Common Pleas judge
1 See report on prosecutor's office.
[ 246 ]
than a Municipal Court judge. The grand jury proceeding might be
retained for special investigation only.
The trinitarian aspect of felony jurisdiction is the product of historical
causes only. In feudal England, when the Common Law .system was
beginning, the king sent his judges on tour throughout the realm, so
that the court sat for a certain time only in each county. It became
necessary for local magistrates to examine and hold suspected felons
in the interim, and for a grand jury of neighbors to meet occasionally to
examine into all crimes committed in the county as preparation for the
coming of the court. This custom was carried into pioneer America.'
The function of holding suspected felons, admitting them to bail, and
recognizing witnesses was conferred on justices of the peace.' In 1852
this ad interim jurisdiction was conferred upon the police court of Cleve-
land, and this was continued in the Municipal Court Act of 1910. To-
day, however, the Common Pleas Court is permanently resident in
Cleveland, and sits, or can sit, continuously throughout the year. Full
exclusive felony jurisdiction could be conferred upon this court without
any practical difficulty or injustice.
It may be queried whether there is any reason for continuing jurisdic-
tion over misdemeanors in the Municipal Court. After consideration
of the Municipal Court's work in this respect,' it is recommended that
this jurisdiction also be conferred on the Common Pleas Court. Again
the reason for the separate jurisdiction is historical, due to the necessity
of disposing of minor causes promptly, without waiting for the "terms"
of the higher court. The Municipal Court inherits through the police
court and justices of the peace.'' It is not true that petty criminal causes
may safely be entrusted to judges of inferior quality. Such cases may
not require a high order of legal abiUty;" they emphatically need men of
high character on the bench; for no other court comes so close to the
lives of the mass of the people, or has a greater opportunity to inculcate
respect for our institutions.
There are no legal difficulties in the way of transferring full criminal
' See Act of 1790, providing for government of the Northwest Territory, increasing
the "terms" of the Common Pleas Court. See also Ohio Constitution, 1802, Article
III, dividing the State into "circuits."
' See .\ct of 1S04, specifically conferring this power on justices of the peace.
' See Chapter V.
* Misdemeanor jurisdiction also exists in the Probate Court, but this was at one
time eliminated from Cuyahoga County in 50 O. L. 84 (1852). See Sec. 13424.
' This is generally true of all criminal cases.
[247]
jurisdiction in all causes to the Common Pleas Court. The constitution
provides simply that the jurisdiction of this court shall be fixed by law.'
All that is necessary is an appropriate statute.
There may be more difficulty with respect to abolishing the grand jury
and substituting therefor, if necessary, the prompt and compulsory in-
formation of the prosecuting attorney. Article I, Sec. 10, of the Ohio
constitution provides that "no person shall be held to answer for a
capital or otherwise infamous crime unless on presentment or indictment
of a grand jury." A similar provision has been strictly construed.^ An
amendment to the constitution of Ohio would be necessary to administer
justice in metropolitan communities without the compulsory use of a
grand jury. Such a result, however, would be well worth the effort.
There is no difficulty with respect to the Federal constitution.'
Results of Unified Court in Detroit
It may be said by the cynical that the organic changes suggested will
do no good because the trouble is with "human nature." This sort of
reasoning would never have advanced civilization beyond the stage of
private vengeance and the blood feud. "Human nature," meaning
thereby its least admirable traits, is effective only so far as opportunity
and reward exist for wrongful effort. Reduce these, and improvement
invariably results. Tangible evidence of this truth is seen in the recent
history of Detroit. Before April, 1920, Detroit criminal justice was ad-
ministered much as in Cleveland — by two sets of courts, with much du-
plication of judicial machinery. In April, 1920, the entire criminal juris-
diction of the city was vested in one court, which constitutes a unified
tribunal with plenary jurisdiction over all offenses — ordinance violations,
misdemeanors, and felonies. The result may be seen in Table 5.
These figures become more impressive in the light of the " crime wave "
in other cities. Credit for the betterment undoubtedly belongs largely
to an increase in the police force and better methods of administering
that department. Nevertheless, the Detroit police department, in its
bulletin for March, 1921, makes the following significant acknowledg-
ment:
"Any statement of the improved crime condition of the city of Detroit should
take into account the work of the Municipal Court."
•Article IV, Sec. 4.
' Lougee v. State, 11 Ohio, 68.
' See Hurtado v. People, 110 U. S., 516. Michigan never had a provision guar-
anteeing grand jury procedure.
[248]
TABLE 5.
-THE DETROIT COURT; POLICE RECORD OF FOUR MAJOR
CRIMES OK PROFESSIONAL NATURE
Avcraifo
1921
prpcedinR
five years
1920
1919
1918
1917
1916
Breaking ANoENTERiNa Dwell-
ings:
Jaiumry
38
126
64
131
143
95
199
February
42
no
78
130
155
77
109
Breaking A^fD Entebinq Bdsi-
NE88 Places:
January
35
122
99
114
162
124
110
February
46
107
99
81
173
96
83
Rubbery:
January
53
77
112
62
S3
85
45
February
35
66
98
53
99
50
30
Larceny- from Person:
Januar\'
37
52
46
59
51
44
58
February
1!)
51
39
42
45
II
53
Table 5 deals with four selected crimes for two months. The direct
influence of the new unified court on the crime situation may be seen in
Table 6, based on the record of all crimes for twelve months.
The increased number of misdemeanor complaints, arrests, and police
TABLE 6.— RESULTS OF UNIFIED CRIMINAL COURT IN DETROIT
For the year ending
April, 1920
April, 1921
Felonies:
Complaints
13,195
13,795
Arrests
7,491
11,115
Disposed of by police
4,383
7,246
Disposed of by court
3,108
3,869
Convicted by court
1,664, or 51 per
2,648, or 70 per
cent.
cent.'
MiSDEMEANOBS:
Complaints
37,929
40,858
Arrests
32,415
35,315
Disposed of by police
13,394
19,465
Disposed of by court
19,021
15,850
Convicted by court
16,410, or 86 per
14.222, or 90 per
cent.
cent.
' These figures may be profitably compared with 4,262 felony cases disposed of by
judicial process in Cuyahoga County in 1919, of which 37.1 per cent, were convicted
on plea or after trial.
1249]
dispositions is explained by the increased activity of the depa rtment in
handling gambling and other minor ofifenses.
A description of the operation of the unified criminal court is contained
in the Journal of the American Judicature Society, April, 1921, and
August, 1920 (Vol. IV, Nos. 6 and 2), and in the Journal of Criminal Law
and Criminology, November, 1920 (Vol. XI, No. 3). The changes
effected by the establishment of this court in making justice swifter and
more certain are worth careful study.
[250]
CHAPTER IV
THE BENCH AND ITS BACKGROUND
Importance of the Bench
THE administration of justice is not a purely mechanical process.
Its satisfactory conduct depends more than any industry on the
human factor, because the administration of justice deals with the
evaluation of human souls, and not with commodities or operations
capable of measurement. Among these human factors the judges hold
the place of unique responsibility. Their attitude at the trial often de-
termines the result. They have it in their power to suspend sentences,
to grant new trials, to eliminate delay, to reduce perjury, to assure better
selection of jurors, and, theoretically at least, to pass on motions to
"nolle" cases before them. It is obvious that strong judges, capable of
inspiring respect and unafraid, may save even an archaic system from
absolute failure.' No system of administering justice can ri.se higher
than the quality of its bench, although it may go much lower. In order
to understand the Cleveland situation, therefore, it is a neces,sary pre-
liminary to understand the bench and the influences to which it may be
subject.
Personnel
Thumb-nail sketches are rarely likenesses and serve no good purpose
if used merely to tag the indiWdual subjects. As a group, however, such
sketches may be useful in convejdng a composite impression of the bench
of Cleveland. The summaries given coincide with the common view
of many members of the bar who otherwise differ widely in political and
social outlook. The unanimity of opinion was surprising.
It should be remembered, however, that the bench as a whole is rated
much lower than the indi\nduals composing it. The picture of the judges
would not be complete without the cheap, tawdry background which
robs the subjects of their dignity and subdues the individual's good
points. It is with the nature of this background that this chapter is
chiefly concerned.
' This is true to some extent in Massachusetts.
[251]
The Common Pleas bench, as it was in April, 1921, is commonly
characterized as follows:
In respect of legal ability it consists of two judges who, by reason of
long experience on the bench, have acquired a wide knowledge of the
law and practice; five judges of fair native ability, some of whom need
experience to become good judges; two judges of mediocre ability; one
judge not tried out sufficiently to afford a basis for judging legal quali-
fications; one judge of practically no juristic qualifications, and one
whose unusual legal gifts make his presence on the bench a decided
asset. In respect of faithfulness to duties, the list includes one judge
who is notoriously unpunctual, several others designated as somewhat
"lazy," and one who is occasionally guilty of gross neglect of his duties.
Two judges possess considerable dignity of character, but others are
characterized as "playing politics," "weak before popular clamor,"
" publicity getters," etc. One judge is remarkable for social-mindedness,
which makes him fertile in constructive ideas, but sentimental in dealing
with criminals. The personal habits of all but one of the judges seem
to be above serious criticism.
As a group, the Common Pleas bench would probably compare fav-
orably with county courts in other metropolitan jurisdictions. Criti-
cism largely centers on its want of fine traditions,' absence of dignity,
and lack of independence in thought and action. These qualities will
be considered later.
The Municipal Court bench is characterized as follows:
In respect of legal ability the court contains four judges who might
be said to measure up to the requirements of the office — one by reason
of long experience on the bench; another because of previous experience
as a justice of the peace; a third for his long experience at the bar and his
previous official connection with the court; and a fourth by reason of
■ A bench with high traditions would probably not have instituted, or at least not
approved of the conduct of, the suit of State ex rel. Powell v. Zangerle, a petition in
mandamus brought by the judges to compel the payment of increased salaries to
themselves, as voted by the legislature. The constitutional question involved in the
increase of salaries during term of office was a delicate one, yet in this suit a favorable
decision by a judge of the same court in another county was accepted as final. The
counsel for the judges drew the demurrer for the defendant, and no appeal was taken
from the decision. Grave doubt has subsequently been thrown on this decision by
the State ex rel. Metcalfe v. Donahey, a Supreme Court opinion holding that the
increase may not be paid to Court of Appeals judges during the same term of office.
It is irrelevant that the judges ought to be paid larger salaries. Most detrimental
to the dignity of the bench was the patronizing attitude of the bar that it was glad to
see the judges get more money, constitutionally or not.
[252]
years of private practice in a representative Cleveland firm. Two of
the others are credited with fair ability, three are mediocre, and one
apparently has no qualifications worth mentioning. The list includes
two judges characterized as "playing politics," and two others desig-
nated as "gallery players."
On the whole, the personnel of the municipal bench is inferior in quality
and ineffectual in character. A close observer of the Cleveland courta
for j'ears states that the present Municipal Court judges are not much
superior to the old justices of the peace, and that whatever increased
dignity they appear to possess arises entirely from the improved physical
setting.
It is the almost universal belief among men who.sc opinion may be
valued that the Municipal Court judges are irreproachable in respect
of being influenced by money considerations. The survey did not at-
tempt to follow up such vague and isolated charges as were brought to
its attention, for two reasons: In the first place, actual corruption is
impossible to prove without the power to compel testimony. More-
over, it is not indicative of the real trouble, since an occasional dishonest
judge cannot make a venal bench, nor is an incorruptible bench enough
to assure a proper administration of justice.
Recent Changes in the Election Laws
In considering the present personnel of the bench, especiaUy in the
Common Pleas Court, a brief summary of recent changes in the mode
of nominating and electing judges becomes important.
For many years prior to 1908 there had been little change in the law
pertaining to nomination and election of judges. 88 Ohio Laws 455,
Sec. 12 (1891), had provided two methods of nomination — first, by
caucus or convention, primarj' election, or certification of the executive
committee of an established political party, and second, by petition
signed by a certain number or percentage of the voters. In 97 0. L. 226
(1904) a change in detail was made in the provision as to nomination by
petition. The prevailing method of nomination was by party conven-
tion, the petition method being rarely used.
99 0. L. 217, Sec. 12 (1908), pro\nded for nomination by direct vote
imless the county controlling committee desired a nominating conven-
tion, in which case the delegates were to be elected at the primarj'.
Nomination by petition was not disturbed. As a matter of fact, nomi-
nation by convention still persisted, and nomination by petition re-
mained the unsuccessful recourse of the "independents."
Until 1911 election of judges was by party ballot, but 102 0. L. 5, Sec.
[2531
2, known as the "Non-Partisan Judiciary Act," provided that there
should be no designation as to party upon the election ballot. This
provision is in effect today.
In 1912 the new constitution provided in Article V, Sec. 7, that all
nominations "shall be by direct primary elections or petition as pro-
vided by law."
In 1913 the "Direct Primary Law" was passed (103 0. L. 476), wiping
out the nominating convention, and providing for nomination by direct
primary, nomination papers to be signed by 2 per cent, of the voters.
106 0. L. 542 (1914) eliminated the necessity of having voters sign such
nomination papers for the primaries, and this constitutes the law today
(General Code, Sec. 4969). Nomination by petition outside of the
primary is retained (G. C., Sec. 4999), and is now used to a considerable
extent.
If it is possible to draw any comparisons between judges of the Com-
mon Pleas bench produced under the older system and newer modes of
selection, it is suggested that the line be drawn between the election of
1910 and that of 1912. The former election may be said to mark the
end of the period of partisan judiciary and convention nomination, and
the latter to begin the present era of wide-open elections and direct
nominations.
The Municipal Court had its beginning at the time of experimentation
with nominating and election machinery. 101 0. L. 364 (1910) provided
for nomination by direct vote, following the form of 99 0. L. 217, Sec. 12,
for other judges and for election in the same manner as provided for
other municipal officers. 102 0. L. 155, Sec. 5 (1911), is similar as to
nomination, but the provision as to election is eliminated, probably to
bring the judges under the general law for the election of judicial officers
passed the same year, 102 O. L. 5, Sec. 1-6. In 1914, 106 0. L. 274 (now
G. C, 1579-5), provided that judges of the Municipal Court should be
nominated as other miuiicipal officers, — by petition only, Cleveland
Charter, Sec. 3, 1913, — and elected as other judicial officers, in non-par-
tisan election. Practically, the existence of the Municipal Court has been
entirely in the period of direct primary and non-partisan elections.
Apparent Effects of These Changes
For the purpose of summarizing recent history of the personnel of the
bench, two diagrams are printed. Diagram 5 shows Common Pleas
judges who have served from 1900 to the present date, with political
affiliation, mode of first coming to the bench, date of election or ap-
pointment, age on admission to the bar, and subsequent legal experience.
[254]
^1!
ill
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ddo.6.Q.ddHc.d.cd=a.c.dSa.dH B B B B 6.B B a B B a.c.B B B B
»^ ^ as c
o.a c
o
i.i;c_5 £ oi.S 5
= C V
c e
-o .=<^
2 3*
= t >■ i g
L.t-C<:ca
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Q
[255 1
Diagram 6 shows the same facts for the Municipal Court judges since
the organization of that court. Many of the judges set down as ap-
pointed were subsequently elected.'
■a
O
< ~
J3
>,„3
Vi
2 WW
— wgww«<gO'Ww<g<<:g-!:<<:<:^
ddHdBSaSdd.aESdSadEBSad
««Qa;QDQQB:«DQD«QapSQQQQK
* H ^ _ja a ja E «-— ^
£va § -- -S cS.s->;S =i= ^S g.i £ s
t §1 S S = £ its$- 2S a^S I » S I
' The charts may not be precise in every detail, but should be sufficiently accurate
for general deductions.
[256)
Turning to Diagram 5, it is at once apparent that with the election of
1912 a much younger group of men began to appear on the bench. A
ruler laid across the chart along the line of 40 years of age shows only
two jmlgcs Ix'ginning tlicir service under that age before 1912, and eight
judges after 1912. Similarly a line drawn across 45 years of age shows
only nine out of 20 before 1912 and 15 out of IG after that date. A
comparison is given in Table 7.
TABLE 7.— AGE ON ELECTION OR .VPPOINTMENT,
COMMON PLEAS COURT
Age
Judges
on bench,
New judges,
1900-1910
1912-1921
35-39
">
9
40-44
t
6
45^9
o
1
50-54
2
0
55-59
3
0
60-64
0
0
65-70
1
0
Another noticeable difference is the quality of the experience brought
to the bench by the judges before 1912 compared with the later group.
The shaded areas in Diagram 5 represent experience which necessarily
or largely excluded private practice, and conversely, the white areas
represent opportunity for such practice. Table 8 summarizes the
TABLE 8.— OPPORTUNITY FOR PRIVATE PRACTICE,
COMMON PLEAS COURT
Years of
opportunity
Judges
on bench.
New judges,
for private
1900-1910
1912-1921
practice
0^
1
3
5-9
3
5
10-14
5
4
15-19
4
4
20-24
4
0
2.5-29
o
0
30-34
1
0
amount of opportunity for private practice. Before 1912 most of the
judges were apparently well seasoned in the private practice of the law,
whereas after that date the majority had been trained chiefly in the
office of inferior judge or prosecutor. Since the difliculties of trial and
18
[257]
consequences of decisions and rulings can be best appreciated by the man
who has "been through the mill," it is not surprising that the Cleve-
land bar displays no little impatience toward the bench. Table 9 indi-
cates the comparative inexperience of the newer judges.
TABLE 9.
-TOTAL "i'EARS OF EXPERIENCE, COMMON
PLEAS COURT
Years
Judges
on bench,
New judges.
1900-1910
1912-1921
0-4
0
0
5-9
0
1
10-14
3
6
15-19
7
8
20-24
2
0
25-29
3
1
30-34
1
0
35-40
1
0
The Municipal Court has been in existence for nine years only, under
practically one method of selecting its judges, so that Diagram 6 does
not contain much material upon which conclusions may be based.
Many members of the bar, however, are of the opinion that there has
been progressive deterioration in the quality of judges first reaching
that bench by the election method.
The present personnel of the Common Pleas bench includes seven
Democrats and five Republicans; the Municipal Court, six Democrats
and four Republicans. Since Diagrams 5 and 6 contain only the dates
of first elections and appointments, they are not well adapted for judging
whether a non-partisan bench has been secured. Since 1911 the elections
of judges have resulted as follows:
Municipal Court
Common Pleas Court
Date
Parties
Mayoralty
Date
Parties
Governor
1911
1913
1915
1917
1919
4 Dem., 3 Rep.
1 Dem., 2 Rep.
5 Dem., 2 Rep.
2 Dem., 2 Rep.
6 Dem., 1 Rep.
Democrat
Democrat
Republican
Republican
Republican
1912
1914
1916
1918
1920
5 Dem., 0 Rep.
2 Dem., 4 Rep.
2 Dem., 1 Rep.
4 Dem., 2 Rep.
4 Dem., 2 Rep.
Democrat
Republican
Democrat
Democrat
Republican
The Municipal Court has probably been a true non-partisan institu-
tion from the beginning. The predominance of Democrats elected to this
[258]
bench is due somewhat to the vacancies which occurred during Governor
Cox's two terms as governor. There were nine vacancies before 1921,
eight of which were filled by Governor Cox with Democrats, some of
whom replaced several Republicans. The strong tendency on the part
of the voters to reelect men already on the Municipal bench secured
the election for most of these appointees.
Elections to the Common Pleas bench have shown a growing ten-
dency to become non-partisan, despite the fact that there is now some-
what of a reaction toward party sponsorship '
The Underlying Cause for Dissatisfaction
The changes in election machinery were in large part the result of the
progressive wave which swept the country in the first decade of the
centurj'.- They represent a revulsion against intolerable poUtical con-
ditions then flourishing,' and it was impossible to foresee all the effects
of the steps when proposed by the new leadership. Cleveland has now
had ten years' experience of the wide-open method of selection, and
although few would care to return to the bossed party conventions, it is
safe to say there is scarcely a man in Cleveland able to weigh the quali-
fications for the bench who does not deplore present tendencies and fear
them.
It is not altogether a question of comparing the intrinsic ability and
integrity of the new judges with the old. Such a comparison might not
be wholly vmfavorable to some of the younger judges. Nor does the
reason lie entirely in the fact that the judges are coming to the bench
younger and less experienced than formerlj', and that a few are markedly
unsuited for judicial careers. These are symptomatic conditions only.
Most serious is the present cheapening of the judicial office, so that
neither the bar, the press, nor the judicial incumbents themselves any
longer respect it. Young lawj'ers who would have viewed the bench
' See issue of the Cleveland Press, October 30, 1920, for an advertisement by the
Republican Executive Committee consisting of a "slate" of judges captioned "Re-
publican Judicial Candidates." The Press has been one of the foremost proponents
of the non-partisan election of judges.
' See Mr. Tannehill's appeal to the progressive and Roosevelt vote in introducing
the direct primary amendment at the Constitutional Convention, Ohio C. C, 1912,
Proceedings and Debates, p. 1239.
• "The chief cause of the frequent failure of representative government lies in the
corrupt, boss-controlled, drunken, debauched, and often hysterical nominating con-
vention," says the sponsor for the direct primary provision, ibid., p. 1239.
[259]
with reverence formerly, now give voice to their disrespect, and retired
and even sitting judges are openly cynical.
The situation is summed up in the universal comment that the judges
are generally above the suspicion of taking direct money bribes, but find
it difficult to forget the coming election." To judges who have had
little or no private practice before beginning their pubUc careers, the
matter of insuring reelection is especially urgent.
Here again the trouble lies in attempting to adapt the democracy of
the town meeting to a great cosmopohtan population. Direct nomina-
tion and non-partisan election of judges produce fairly satisfactory re-
sults in a small community, where everyone knows the nominees, and
fitness for office is a matter of common appraisal. Judges from country
districts are frequently sent to the Cuyahoga Common Pleas Court to
help handle the crowded docket in that court, and Cleveland lawyers, on
the whole, prefer these outside judges to the members of the local bench.
Superior legal ability generally and greater disinterestedness are con-
ceded to these country judges. In a community of nearly a million
population, however, containing many voters who cannot even read Eng-
lish, it is not possible for more than a small proportion of the voters to
know anything about the fitness for office of the numerous candidates
for judicial office. This small group could carry the city by aggressive
leadership,- but so far there has been no such leadership. The result
has been that a judge facing reelection has had to insure his survival
through one or several of the following ways: catering to petty bosses
who control votes; patronizing certain influential groups — racial, reli-
gious, or industrial; general publicity in the newspapers or otherwise.
Whichever way the premium is paid, the judge and his high office are
degraded.
In considering the effects of these influences, the words of judges and
prominent lawyers are freely quoted in this report in order to convey as
much as possible of the local feeling. Even if some of the statements
seem extreme, it should be remembered that the fact responsible men
speak in this way of the bench is itself a factor of importance. The
observations proceed from men full of reverence for the bench as an
institution and a desire to see it restored to its historic dignity.
' This difficulty is not experienced by judges alone. The County Treasurer's
oflSce is placarded with this amusing apology: "The County Treasurer is not respon-
sible for the increase in your ta.xes. The increase was carried by vote of the people
at the last election."
^ The recent victory of the Coalition Judicial ticket in Chicago is an example.
[260]
Importance of the Petty Politician
Catering to politicians is probably the least common mode of assuring
rei'lection for Common Pleas judges, and not the most desirable for the
Municipal judges. It is not only distasteful, but dangerous. Un-
doubtedly, under the older methods of selection, there were forces which
impelled a judge to heed the wishes of the great chieftains of the party,
but it must have been less subversive of morale to deal with chiefs, who
interfered rarel_v, than to listen continually to the unvoiced threats of
petty Vote controllers specializing in criminal law. When one con-
siders that most professional or habitual criminals engage these po-
litical lawyers to defend them, the unwholesomeness of the condition
is clear.
Moreover, it is often difficult to say where influence ends and " good-
fellowism" begins.' Both judges and prosecutors have often risen
through politics, and it would not be surprising to find that they have
not forgotten some of their old associates. The effectiveness of the
pohtical criminal lawyer has already been discussed^ in a general
consideration of the system, and reference may be had to Tables 3
and -i.
No statistics on this subject can be secured for the Municipal Court,
but prevalent opinion is that "influence" and "good fellowism" flourish
still more successful!}' in that court. This is to be expected where great
haste and inadequate record keeping afford a screen behind which oper-
ations may be conducted.' It is not uncommon for lawyers to call
judges on the telephone to talk about their cases. Usually publicity
at the trial will thwart any tendency to favoritism by the court. In one
' Even in civil cases, where the alertness of opposing counsel minimizes the danger
of favoritism, complaints are not uncommon. " Before some of the judges," remarks
one lawj-er, "my first worry is to wonder what 'drag' opposing counsel has with the
court."
2 See Chapter III.
' An ex-Municipal Court judge states that when asked to defend hisformeroffice
boy, he advised him to see the "boss" of his ward and not to waste time with a mere
lawyer. An attorney relates that a professional criminal asked him to secure a con-
tinuance until he could get his councilman. The papers in this case were subse-
quently withdrawn. One of the leading firms in the city advised a client in an
automobile manslaughter case to take his medicine "because the evidence against
him was conclusive." The defendant retained a councilman-lawyer, however, and
after several continuances was discharged.
Care should be taken not to make a blanket charge that all judges cater to poli-
ticians. Specific instances could be cited where judges have courageously stood out
against politics in their court.
[261]
case on a charge of rape the defendant, a politician of low order, had a
reputation for sUpping out of "scrapes" through influence. On the day
of the preliminary hearing the court-room was filled with representatives
of various women's societies, and the man was bound over. The ways
of "influence" are so devious, however, that not even full publicity will
avail where there is a determination to protect. "Tim" Raleigh openly
and decently maintained an estabhshment for the placing of election,
baseball, and racing bets. It was operated, as a Common Pleas judge
had expressed it, "not with the connivance, but with the acquiescence,
of everyone," and apparently was regarded as a public service institu-
tion. Owing to the vigorous attacks of the Cleveland Press, arrests
were made and a trial forced. It is reasonable to suppose that no one
in authority sincerely desired to convict Raleigh, who had obtained tacit,
if not express, consent to the conduct of his business. The Press had
tried Raleigh in its columns and convicted him, even to the extent of
pubKshing names of men who had placed bets. Nevertheless Raleigh
was acquitted, under such circumstances that the judge, jury, prosecutor,
and pohce could each lay reasonable claim to having acted conscientiously
and yet point the finger of suspicion at the other.'
' Warrants against Raleigh were sworn on November 11, 1920, on which date
Raleigh was arraigned and pleaded not guilty. The case was continued to Novem-
ber 24, then to December 8, then to December 16, when a jury was demanded. The
case was then continued to February 7, 1921, and then to March 7.
There were two charges against Raleigh, one under Sec. 13060, relating to selling
chances on a pool on the result of an election, and the other under Sec. 13062, for
keeping a place where books and slips for wagers were kept and exhibited. No charge
was brought under Sec. 13054, for keeping a room to be used for gambling, probably
because, under an old decision by Fiedler, Police Judge, gambling in this section was
construed to mean a game for stakes. (State v. Lark, 3 O. N. P. 155.)
The State proceeded to trial under Sec. 13062. Judge Silbert overruled the defen-
dant's demurrer that no crime was charged under this section of the code. The State
introduced as evidence some racing charts which anyone could purchase in Cleve-
land, several pads of blank forms, available for recording wagers, a record book in
code which was not deciphered, and some slips of paper bearing notations of what
might be wagers, chiefly on the results of election, but partly on baseball and horse-
races. There was no evidence that a witness had placed a wager or had seen a wager
placed.
At the close of the State's case the defendant's attorney moved for a directed ver-
dict and was overruled. Judge Silbert then instructed the jurj' in substance that
the evidence bearing on election bets should not be considered because an election
was not "a trial or contest of skill or endurance of man or beast" according to the
statute. It cannot be said that the judge was unreasonable in his construction of
the statute. The jury returned a verdict of not guilty, which it might well have
done in view of the charge and the evidence. The prosecutor then "nolled" the
[262]
The Influence op Groups
More important in its effect on the bench than the tendency to re-
spond occasionally to political influence is the bid for support which
many judges make to different groups and factions in the city. This is
almost entirely a new influence upon the judiciary. " In order properly
to play the game," observes one of the more sophisticated judges, "it is
necessary for a judge to attend weddings, funerals, christenings, banquets,
barbecues, dances, clam-bakes, holiday celebrations, dedications of
buildings, receptions, opening nights, first showings of films, prize-fights,
bowling matches, lodge entertainments, church festivals, and every con-
ceivable function given by any group, national, social, or religious."
Several of the judges have a reputation for "handshaking" nearly every
night in the week. One judge of fine, simple nature is reported to have
been inveigled into making a speech on the educational and moral value
of motion pictures at the first showing of a particular!}' salacious film.
The judge, of course, had not seen the picture. Another judge is said
to have refereed a prize-fight. In the past the saloon, as the neighbor-
hood center, has been assiduously courted.' Three judges of unques-
tioned character campaigned by visiting the saloons in the different
foreign sections of the city, and were presented to long lines of foreign-
speaking voters with the aid of an interpreter. No drinks were bought,
not a cent was spent, only handshakes were exchanged, yet this was
deemed essential campaigning. All three were reelected.
1. Racial and Religious Appeal
One of the most disturbing features is the intensifying of racial and
religious appeals. A man is elected or appointed because he is a Pole, a
Jew, an Irishman, a Mason, a Protestant, and it is sometimes difficult
for a committee to reject a candidate without being charged with dis-
crimination. On the other hand, an even more vicious tendencj' has
charge under Sec. 13060, which he was justified in doing if, as stated by him, he had
no more e\'idence of selhng chances than that already introduced. The pohce did
not admit having any more evidence than that already offered. If all of the parties
acted in good faith and told the truth, the case is simply one of a failure by the police
to secure adequate evidence.
' In a campaign speech addressed to an audience containing many saloon-keepers
a judge is quoted as saying the following: "I am a candidate for an office that is
important, especially to men like you. You might have a little unfortunate trouble
and get into the police court — when you do, you want a man on the bench who is
your friend."
[263]
begun to appear — the formation of organizations with the avowed or
unavowed purpose of "knifing" every candidate who is not of a partic-
ular rehgion, nationality, or color. It is estimated that one such or-
ganization last fall, through the expedient of issuing thousands of marked
ballots at churches and other places, succeeded in swaying 50,000 votes
among the regular nominees. The marked ballot carried nothing to
indicate the sectarian nature of the organization, which bore a title
similar to that of the Civic League, an impartial organization, and it is
not to be supposed that so many voters knew of the dominant motive
behind the marked recommendations.
2. Labor Organizations
From time to time, as at present, fierce industrial controversies rage
in Cleveland, and there, as elsewhere in the United States, in contrast
with England, courts are drawn into the economic struggle. Naturally,
therefore, each group is alert to bring its pressure — be it voting strength
or dominant public sentiment — to bear upon the courts and to be con-
centratedly watchful of the group interests. Another manifestation,
therefore, of the use of group power is the active participation of certain
of the labor organizations in the election of judges. Like other groups,
these organizations have often not taken a broad view of a judge's fair-
ness and abihty. "The unions have lost faith in the courts," states one
of their most respected leaders; "they believe the man who has the
influence gets by." So believing, they tend to act on their beliefs and
fears — fears not wholly unjustified in past American experience. If a
judge renders a decision, however conscientiously made, which is be-
lieved to be adverse to the interests of a labor organization, he is apt to
be marked for the slaughter. Even a passing remark may be taken to
stamp a judge as anti-union and be used to defeat him.' Naturally,
' Judge R. M. Morgan rendered a decision in Taylor and Boggis Foundry Com-
pany V. Iron Molders' Union, limiting the extent of picketing during a strike. The
union construed this decision as hostile, and fought him at the primary as "an enemy
of the union." Although Morgan had been making an able judge, he was badly
defeated. Even the party organization did not support him. The union claimed the
credit of assisting in his defeat.
Judge F. B. Gott was opposed for reelection in 1918 because "one of our members
was called before Judge Gott about a year ago and he asked this brother what he
done with his money, and he told him he was a member of the Union. The
judge in turn told him he had better drop the union, so he also must have a grudge
against labor unions." The "member" referred to had failed to comply with an
order of the court as to an allowance for his wife and children, giving as an
1264]
the converse is also true, that unions will support those "who will give
us a square deal when we get into trouble." It is not surprising that
this condition produces a judge who flourishes his union card on the
bench, and in a suit quanlion meruil for work done, campaigns for re-
election by observing that "a non-union man isn't entitled to receive
the union rate of wages." A former judge relates that when he was on
the bench two well-known union leaders were introduced to him by his
clerk — "no particular business, just to let me know they were on the
map."
This situation naturally tends to undermine the character of the
judiciar>'.
There are some critics, notably attorneys for large employers, who
would explain all of Cleveland's troubles in administering justice with
the observation that "Labor is on top." Little good can come from
taking such a simple partisan view. The influence of organized labor
is only one of many symptoms of an unhealthy sj'stem. If organized
labor disappeared completely, the system would be just as unsound and
unsatisfactory. The country has had the converse experience with
judges imbued whollj' with the viewpoint of big business and wants no
more of it. The folly of exposing a judiciarj- to every wind that blows,
and then blaming a particular wind, is apparent.
S. Bar Association and the Civic League
The two organizations to which the voting public would naturalh'
turn for leadership in the selection of judges are the Bar Association
and the Civic League. The Bar Association contains the men who are
best able to weigh the attainments of a judge and who have intimate
personal knowledge of all the candidates. The Civic League exists
largely for the purpose of furnishing the people of Cleveland with un-
biased estimates of the qualifications of public officers. Its wide mem-
bership places it above suspicion of ulterior motives. Yet neither the
Bar Association nor the Civic League has been wholeheartedly accepted
by the people of Cleveland as a guide. That other influences have been
at times more potent may be seen in the list of judges who have failed
of reelection since 1912. Judges who have done well in office and become
seasoned should, if possible, be returned to office, if the bench is to de-
excuse that part of his wages went to pay union dues. The judge told him his
legal and moral obligation to his family came ahead of the union. In 1912 Judge
Gott had led the ticket; in 1918 he was defeated, running fifth in a field of eight
candidates.
[ 26.5 ]
velop fine traditions and attract men who seek the bench as a life-work
and not as a political stepping-stone. Moreover, it is an expensive
work to train young and inexperienced men, and the training should not
be wasted.
For the most part, in the following list only indorsement of the Bar
Association are given, because they were substantially the same as those
of the Civic League.
In 1912 Judges Chapman and Ford, two of the most able Common
Pleas judges in recent years, were defeated. They were the first and
second choice respectively of the straw vote of the Bar Association. In
the same year former Judges Keeler, Schwan, and Strimple were defeated,
but in these instances the vote of the electorate coincided with the vote
of the Bar Association. Those retained in office were Judges Phillips
and Babcock, the third and sixth choices of the Bar Association, and
those newly elected. Judges Gott, F. E. Stevens, and Pearson, the fifth,
eighth, and ninth choices.
In 1914 Judge Collister, the first choice of the Bar Association, failed
of reelection, and Judge Ford, again the second choice, although he had
been off the bench for two years, was defeated. Judge Friebolin, who
had received an eight to five indorsement over his opponent, failed of
reelection. The successful candidates who ran against these men were
Judges Vickery and Neff, third and fourth choices respectively. Judge
Kennedy, and newly elected Judges Levine and Powell.
In 1916 three judges were candidates for reelection and aU were
elected.
In 1918 Judges Gott and Stevens failed of reelection. Although the
Bar Association vote for that year is not available, these men are con-
cededly two of the ablest on the bench. Judge Morgan, a hard-working,
conscientious judge of considerable ability, failed at the primaries.
The successful candidates who ran against Judges Gott and Stevens
were Judge Pearson, who was reelected, and Judges F. C. Phillips, Baer,
and Kramer, who were newly elected.
In 1920 three judges whose election was contested were returned to
office, all of them having been indorsed by the Bar Association in its
straw vote. For the new judge the Association preferred Judge George
S. Addams, Judge of Insolvency and Juvenile Court, to Judge Florence
Allen, who was the sixth choice of the Bar Association, and who led the
ticket. The Civic League strongly indorsed Judge Allen.
In the history of the Municipal Court only one judge has failed to be
retained in office, and this one was originally appointed. In the first
election in 1911 the Bar Association, which had urged the estabUshment
[ 260 ]
of the new court, made an active campaign to elect its choice of the
judges to the first bench and succeeded. The vote of the Association
for 1913 is not available. The three candidates recommended by the
Civic League were elected. In 1915 the choices of the association for
Chief Justice and for the three six-year terms were elected, but all three
of its selections for the four-year terms were defeated.
The vote of the Bar Association for 1917 cannot be located, but three
of the Civic League's preferences were elected and one defeated.
In 1919 five of the choices of the Bar Association were elected and two
defeated.
In this connection it might be interesting to glance at the list of judges
who have resigned from the bench, all of whom were indorsed by the
As.sociation and the Civic League.
Before 1912 resignations were infrequent, but during the eight suc-
ceeding j-ears the following have resigned' from the Municipal bench:
Judges Sanders, Bernon, Keough; and from the Common Pleas bench:
Judges G. L. Phillips, F. E. Stevens, and Estep. Judge Sanders was
subsequentlj' appointed street railway commissioner. Judge Bernon
was appointed Common Pleas judge; Judges Phillips and Estep resigned
because of age and ill health. The remainder have returned to the
private practice of law. It may be said that all of these men were above
average ability for their respective benches.
One reason for the partial ineffectiveness of the Bar Association and the
Civic League is the fact that, as a general practice, neither organization
makes a fight for its recommendations, except by publishing their in-
dorsements in the newspapers. WTien a real effort is made to elect its
choices, as at the launching of the Municipal Court, the entire list may
be elected. Few people are influenced merely by reading a list of recom-
mendations, and many voters live beyond the city limits. Meanwhile
the influence of the ward politician, the appeal to race, religion, class
solidarity, and prejudice, have won the mass of the voters. Moreover,
the two associations begin their efforts after the primarj', so that often
they have little or no enthusiasm for their own indorsements.- These
bodies have a splendid opportunity for intelligent leadership, and since
the advent of woman suffrage, a new and powerful som-ce of support.
There has been another reason for the failure of the Bar Association
to lead. For a time it was like most other bar associations in the coun-
' Exclusive of resignations after election to a higher court.
' "There is no such thing as Bar Association candidates," observes a prominent
lawyer, "only those whom they prefer — the lesser of two evils."
[2671
try, functioning chiefly to eulogize the dead. It has bestirred itself
occasionally when vacancies occurred on the bench, and through com-
mittees has conferred with judges regarding changes in rules and practice.
It has made possible such reforms, as the establishment of the Municipal
Court, certainly a great improvement over the justices of the peace.
It has maintained an organization for dealing with grievances against
individual attorneys, which has probably functioned as well as most
grievance committees. Until recently it had never set itself the definite
task, however, of supplying educational advantages to its members, or
of lifting the standard of admission to the bar, or of cleansing the profes-
sion of pirates and evil practices, or of impro\'ing the personnel of the
bench. For these reasons the Association was not highly regarded even
by its own members, or recognized as a public-spirited organization
generally.
This situation is changing at the present time. Under recent leader-
ship, notably that of its present head, John J. Sullivan, and a profes-
sional secretary, A. V. Abernethy, the Cleveland Bar Association prom-
ises fruitful activity. It holds frequent meetings, addressed by experts
on various phases of the law and practice, pubhshes monographs, main-
tains an energetic legislative committee, and takes a general lead in
matters of chief concern to bench and bar. The vigorous efforts of its
executive committee resulted in the prompt retirement of Chief Justice
William H. McGannon, in the appointment of Judge John P. Dempsey
to succeed him, and the naming of a special prosecutor to purge the city
of the disgrace of the three Kagy murder trials. Prominent and busy
members of the Association have given generously of their time to aid
the Cleveland Foundation Survey. If the Association makes a perma-
nent and dynamic tradition of its present energy and responsiveness
toward ethical and pubhc questions, it is certain to capture and hold the
confidence of the voting pubb'c'
Publicity
Editorially, newspaper support of candidates for the bench has in the
main been wisely given. What effectiveness the recommendations of
' Some of the members do not yet ahare the outlook of the leaders. At the meet-
ings on February 16 and 23, 1921, occurred debates over a motion to indorse a bill
for the Statutory Organization of the Bar of Ohio. One of the chief grounds of
opposition was that the bill contained by inference the admission that some lawyers
needed disciplining. A Common Pleas judge who had won a reputation for public
service, partly through his own fight against shysters and attendant parasites, op-
posed the motion on the ground that "lawyers were just as honest as other men."
The motion was lost, 59-49.
[268]
the Bar Association and the Civic League have had is due chieflj' to the
cooperation of the press. The gravest criticism that can be made of
the increased editorial power of the newspapers in relation to the bench
is that sometimes it comes perilously close to dictating important de-
cisions, and that always the fear of it tends to weaken independence of
mind.' In a community where the administration of justice may be
interfered with by many unseen causes, however, newspaper vigilance
has often been exerted in the interest of the public welfare.
1. Self-Advertisement
The real evil in the use of the power of the press lies not in its editorial
policy, but in its news column, where the daily publication of a judge's name
may lead the public to vote for a judge as naturally and unreasoningly
as it asks for the most widely advertised brand of soap. Some publicitj'
is, of course, not only justly earned by a judge, but highly desirable from
the public viewpoint, as, for instance, when a judge inaugurates a reform,
or hands down a decision on an important and unusual question. Such
publicity means public education. However, quantity of publicity is
more telling than quality. The average voter soon forgets in what con-
nection he has read a judge's name, and knows only that some names on
the ballot look familiar and some strange. Then the law of "suggestion"
makes him vote for the advertised name.
This kind of voting in Cleveland has produced some curious results.
At least two candidates, hitherto unknown to the public and of no marked
fitness for the bench, were elected to the Municipal Court because they
bore the same names as two retired Common Pleas judges who had
built up good will through many years of service. In one election a
blacksmith carried Cuyahoga County as candidate for Chief Justice of
the Supreme Court of Ohio because his name was similar to that of
the well-known judge of the Probate Court. At the next succeeding
election for the Supreme Court the same man ran third in a field of
seven.
The continued advertisement of a judge's name — or the name of a
prosecutor who would be judge — may take place without, and even
' The dilemma of the judges is clearly brought out in a storj- related by a court
reporter of one of the local papers. A judge who had been ridiculed b\' this paper,
in delivering an address, severely arraigned the press for attempting to influence the
court and juries. The reporter walked in toward the close of the address and was
discovered by the speaker. As soon as the talk was concluded, the judge rushed to
the reporter and whispered, "For sake, don't handle me too rough tomorrow."
(2G9J
contrary to, the wish of the editor.^ The newspaper reporters who
cover the courts naturally want copy. The judges, too, desire copy
and the combination, unchecked, is bringing the bench into a disrepute
which attaches ahke to the conscientious judge and the guilty "juggler"
on the bench. ^ The least judicial and most immoderate judges get
their actions into the papers because "it's news," while strict and com-
petent attention to judicial duties is too commonplace for mention.
Several years ago a Municipal Court judge began to sentence traffic-law
violators with such a heavy hand that he furnished copy to the reporters
for weeks. A society woman receiving a workhouse sentence made "a
story." In the fall this judge was a candidate for the Common Pleas
bench, and although opposed by the press, led the field by a big majority,
partly because of the advertisement he had received. A judge now on
the Municipal Court bench started the same tactics in the winter of 1921,
fining the hquor law violators^-for the most part foreigners making
"home brew" — unprecedented sums. The newspapers promptly re-
sponded with pubhcity. Many of the defendants were sent to the work-
house to work out fines ranging from $500 to .$3,000 at 60 cents a day.
These unfortunates were immediately dubbed "lifers," and a fresh run
of pubhcity started, with photographs and interviews.' The judge then
injected new life into the news by calling publicly for criticism and sug-
gestions. Evidently the comments he received were not whoUy favor-
able, because he soon relaxed his campaign. As a matter of fact, by
means of motions in mitigation, quietly allowed, this judge was not
exacting greater penalties than his more moderate colleague in the next
room, but of this the pubUc was not aware.^ The man who paid his
' When the Cleveland Pre^s sought to fix responsibility for the Raleigh farce, one
of the principals remarked: "I don't care what they say about me so long as they
keep on publishing my name."
' "The Jugglers" is the title of a novel caricaturing the administration of justice
in Cleveland — by Ezra Brudno, 1920.
' It is comforting to know that most of these workhouse commitments were quietly
released — with little publicity, however. Out of 59 defendants committed by this
judge in January, for failure to pay fines, by April 19, 23 had sentences suspended
by the judge, 24 were paroled by the Parole Board, 7 paid the balance of their fine,
and 1 died. The average time actually served was thirty-one days.
* In January this judge's average fine (exclusive of workhouse and appealed cases)
was, before mitigation, S376.62; after mitigation, $176.61. His colleague's average
fine was S299.12; after mitigation, $180.17. Cases begun in January but sentenced
after January averaged $322.58 before mitigation, and $122.58 after mitigation. The
second judge for the same class of cases averaged $269.23 before mitigation, and
$135.90 after mitigation.
[270]
huge fine without making a motion in mitigation was penalized for not
having a lawyer who "knew the ropes." The judge justifies his conduct
on the ground that he never intended the large fines to be paid; that they
were simply warnings and had a wholesome deterrent effect.
2. Exploitation of the Police Court
The two judges cited are perhaps most extreme examples, but even
without such campaigns the police court furnishes hme-light enough.
To serve in the police court during election year is a political asset, and
the schedule of the judges is apparently conveniently arranged so that
all judges facing reelection are given the opportunity to serve on the
criminal side during the preceding nine months. If necessary, the
regular sitting of a judge not up for reelection is shifted to a colleague
who is.
In November, 1913, the following Municipal Court judges were can-
didates to succeed themselves: Judges Beebe, Cull, and Sanders, and
although we have no record of the regular assignments for this year,
these three men served on the criminal division during most of the year.
In November, 1915, the following judges were candidates to succeed
themselves: Judges Baer, Bernstein, Kramer, and McGannon, all of
whom were assigned to the criminal division during this year. The one
other judge who was assigned for a term did most of his service after
the election.
In November, 1917, the following judges were candidates to succeed
themselves: Judges Beebe, Cull, and Keough, all of whom were assigned
to the criminal division during this year. The only other judge who was
assigned for a term apparently yielded a portion of his assignment to
the others.
In November, 1919, the following judges were candidates to succeed
themselves: Judges Moylan, Pearce, Howells, Terrell, Selzer, Silbert,
and Sawicki, the first five of whom were regularly assigned to the criminal
division. Judges Silbert and Sawicki, however, were worked in shortly
before election — Judge Silbert for more than three months and Judge
Sawicki for one month.
The election for Common Pleas judges is held in the even years, and here
again a relationship exists between service on the criminal division of the
Municipal Court and the judge's candidacy for the Common Pleas bench
the same year.
In 1914 Judges Levine and Sanders were candidates for the Common
Pleas Court, and during the same year both served on the Criminal
Division. In 1916 no Municipal Court judges were candidates. In
[271]
1918 Judges Baer, Kramer, F. C. Phillips, and Cull were candidates for
the Common Pleas bench, and all served in the criminal division, the
first three by assignment, and the last being given a month by courtesy
or exchange. In 1920 Judge Beebe was a candidate, and although not
regularly assigned to criminal work, served over five months in that
division.
The success of this kind of publicity is seen in the fact that out of a
total of nine new Common Pleas judges elected since 1912, six are former
Municipal Court judges, and a seventh is a former assistant county
prosecutor. Only two Municipal Court judges have been defeated for
the Common Pleas bench.
Of the six former Municipal Court judges, four started their careers
as police prosecutors. Out of 18 Municipal Court judges elected
since its organization, eight began in the police or county prosecutor's
office. This tendency has become less evident of late, however, since
out of nine Municipal Court judges now serving, only two began as
police prosecutors. It is difficult to say what has caused this shift,
unless it be a change in the quality of pohce prosecutors, who now seem
to be moving into the county prosecutor's office or becoming police
court lawyers.' The injury to the prestige and self-respect of the bench
through the conscious exploitation of the criminal branch needs no
comment.
There is apparently no established practice in the Common Pleas Court
of using the criminal division for publicity purposes in election year,
although it is undoubtedly so used on occasions. Sometimes a candidate
for reelection will take two terms as presiding judge of the criminal
branch before election, as Judge Ford in 1912, Judge Lieghley in 1914,
Judge Powell in 1916, and Judge Kennedy in 1920. The temptation
and perhaps even the necessity of bench publicity are unfortunately
present in the Common Pleas Court as in the Municipal Court.^
' The quality of police prosecutors is part of the study of that office, rather than
of the bench. Newton D. Baker, the first city sohcitor to appoint poUce prosecutors,
inaugurated a policy of appointing "youngsters with ideals fresh out of the law
school." The ability of his keen jimiors to improve their opportunities soon landed
five out of si.\ on the Common Pleas bench, with scarcely any of the seasoning which
comes from private practice.
^ A judge who would not be classed asa self-advertiser was hearing an important
injunction suit which lasted several days. After court had adjourned for the day,
the case still pending, a reporter stopped the judge as he was leaving the bench with,
"Just give me the high points, Judge." WearUy, but patiently, the judge detailed
the day's progress for the reporter. The impropriety of a judge reviewing for the
press a case pending in his own court apparently shocked no one.
3. Character of the News
As long as newspapers print as news every extreme utterance or irrel-
evant whimsy, they will fail to educate the public to a relevant appraisal
of the bench. It is easy to understand why a newspaper which prints
the following about a judge cannot defeat him at the polls: "Municipal
Judge ate candy as he listened to testimony Friday. 'It keeps one
from getting nervous,' the Judge says."'
Another form of pubUcity which the present mode of selection has
brought into prominence is the advertisement which must be bought.
Where formerly judges were timid about such a small matter as distrib-
uting cards, there is no hesitancy today about elaborately conceived
advertisements. Pictures showing a judge listening kindly to the whis-
pers of a poor litigant or being appraised by an appreciative public are
some of the forms of campaign publicity.
4. Campaign Funds
There is one aspect of purchased pubhcity which ought to be stopped
immediately, namely, the solicitation of campaign funds, especially
among lawyers. So far the reports of such funds concern only a few
judges, but unless curbed, other judges will be compelled to permit
collections in their behalf. It would be difficult to conceive a more
degenerating influence than the giving of campaign funds by lawyers in
behalf of a judge before whom they expect to practise.
Recommendations
From the foregoing it will be seen that the wide-open elective system
in Cleveland has up to the present time developed no predominant de
facto method of appointment. The community has been unable to
avoid the chaos regarded as an impossible result by the American Judica-
ture Society.^ Its bench, therefore, reflects the many influences at
work upon it. Rarely does a judge represent the purposeful, discrimi-
nating choice of the community.
Only in the filling of vacancies has a real appointive power asserted
itself. Unfortunately, the local executive committee of the political
' A judge known for his efforts along constructive lines caught a former chief of
pohce "cribbing" someone else's speech on a public occasion. The editor of one of
the papers which made a sensation of the exposure congratulated the judge with the
remark, "This is the best thing you've ever done." "How about my part in ridding
Cleveland of justices of the peace?" queried the judge. "Oh, that was all right,"
replied the editor, "but this is the biggest yet!"
^Bulletin IV-A, American Judicature Society, p. 9, 191.5, Chicago.
19 [ 273 ]
parties has usually seized these opportunities, the Bar Association not
being, as a rule, aggressive.
1. Appointed and Elected Judges
Owing to the frequency of vacancies caused by resignation and death,
it is possible to draw a comparison between men appointed by the Gover-
nor to fill unexpired terms and those who became judges for the first time
through election. Of course, most of those appointed were subsequently
elected, but the comparison is relevant only to the modes of selection in
the first instance. Care should be taken not to regard the list as fur-
nishing typical examples of elected and appointed judiciaries, since this
would be misleading. Governors, in making appointments to fill short
unexpired terms, are not guided by the same sense of responsibility as
governors in other States charged with the responsibility of naming
judges for Ufe. The nominees must in any case face an election in a few
months,' so that the sense of responsibility to the public is largely out-
weighed by the necessity of securing the continued support of the local
machine. The local organization is not made up, in the main, of men
of great intelligence or vision, because of the abhorrence of politics felt
by men of this type. Selfish personal motives or the instinct of political
self-preservation dominate the local machine, and its nominations to
the Governor are apt to represent payments for political debts, or the
best chance to win the subsequent election. "Has he earned it andean
he win?" asks the local committee, and the Governor usually queries,
" Is he decent?" ^ The public has the best chance when the party in power
fears defeat at the next election, or when some dramatic episode focuses
attention on the forthcoming appointment.'
With these qualifications, the lists of judges first appointed and first
elected may be compared. On the whole, the opinion is probably
warranted that the appointments, especially those to the Municipal
' Appointed judges must defend their office at the next succeeding election.
2 "The mere fact that he has no brains will not disquahfy him for the appointment,"
said one man who has an intimate knowledge of these appointments over a period of
years; "unfortunate is the man who has nothing to recommend hini but qualifica-
tions for the office!"
' The excellent appointment of John Dempsey in March, 1921, to succeed W. H.
McGannon as Chief Justice of the Municipal Court, is an example. Governor Davis
and the local committee set a wholesome precedent bj' virtually accepting the nom-
inee of the executive committee of the Bar Association. It would be advisable, how-
ever, if the Bar Association committee sent in several names instead of one when
vacancies occurred.
[274]
Court, do not include men as conspicuously unsuited for judicial office
as a few of those elected.
It should also be remembered that the judges elected to the Municipal
bench in the first election in 1911 were "hand-picked" and virtually-
appointed . Both lists include men of outstanding ability, and there is
apparently no lesson to be learned by comparing the age and previous
experience of the men in the two lists. All the judges known for their
talent in securing publicity are contained in the elected list. Probably
the only clear moral which can be drawn is that a heavily embarrassed
system of appointing produces as good, but not as poor, results as the
present method of popular election. The lists follow:
Common P*leas Bench
Judges elected and appointed since 1900
Appointed
Elected
1900-1911
1900-1911
Shallenberger
Babcock
Keeler
G. L. Phillips
Tilden
Estep
Kennedy
Vickerj'
Lawrence
CoUister
Schwan
Foran
1911-1921
1911-1921
Lieghley
Gott
Cull
Friebolin
Pearson
Kramer
Morgan
F. E. Stevens'
F.C.PhiUips
Day
Powell
Terrell
Bemon
Levine
Baer
Municipal Court
Allen
Bemon
Beebe
White
Sanders
Keough
McGannon
1911
Day
Kramer
Elec-
Seizer
Baer
tion
Sawicki
Cull
Terrell
Levine
Howells
McMahon
Pearce
Moylan
Dempsey
SUbert
F. C. Phillips
F. L. Stevens
' Subsequently appointed after being defeated for reelection.
[275]
2. The Use of Vacancies
If the opportunity were skilfully employed, vacancies might be used
to improve greatly the personnel of the bench, since appointed judges
have a large advantage in the ensuing election. This is a matter for the
Bar Association to take up with the local executive committees of the
parties, with a view to inducing these committees, as in the Dempsey
case, to accept the nominees of the Association. The Bar Association
should either hold a primary and recommend the winners to the Governor,
or recommend several alternate choices so that the Governor may have
some latitude.
S. Selection in the Usual Course
With respect to the selection of judges in the usual course, the follow-
ing methods are recommended in order of preference:
(1) The appointive method, with provision for a retirement election
whereby a judge runs against his own record.
(2) A modified appointive method, as, for example, an elective
Chief Justice who appoints his associates.'
(3) A modified elective system whereby judges are elected for a
short first term, but if reelected, then for progressively longer
terms. Judges standing for reelection should not run against
other candidates, hut only against their own records. The single
question presented to the electorate should be, "Shall this
judge be retained?"
If the judge is defeated, his successor should be chosen at the next
succeeding election.
These three recommendations, in order of preference, are probably in
inverse order of probability of achievement. It is, therefore, most useful
to consider the third suggestion. The provision for a short trial term
gives the pubhc an opportunity to learn what character of a judge it has
chosen. If the short term record is satisfactory, the j udge will be returned
for a longer term, thus giving the community the benefit of his judicial
growth and experience. By eliminating a campaign against rivals and
confining a judge to the single issue of his service on the bench, it is
hoped that many of the evils of electioneering will be ehminated and
that a tradition will be established of giving practically a life tenure to
' Itia not intended hereto discuss at length various suggested plans. They have
already been the subject of searching study. See Bulletin IV-A, American Judica-
ture Society, 1915, Chicago.
[270]
able judges. Cuyahoga County has already established such a tradi-
tion with respect to the probate judges, who have been usually unopposed
at elections. Such a tradition can be established for the other courts if
the judgeships are not "scrambled" among a field of candidates.
4. Joint Committee on the Judiciary
Even under such a plan, however, it would be necessary to select new
candidates for the initial and special elections. It would become neces-
sary for Cleveland to mobilize its most influential and intelUgent forces
so as to bring about concentration of electoral power on the most desir-
able candidates. In Cleveland the strongest forces are the party organ-
izations and the press, and the most intelligent, the Bar Association and
the Civic League. The following suggestion is already in the minds of
many thinking men of Cleveland of both parties, and if put into effect,
would do much to improve the personnel and standing of the bench.
There should be a joint committee on the judiciary, composed of not
more than three members of the executive committee of each of the major
party organizations and of the Bar Association, and representatives of
the leading civic organizations. This joint committee should then select
a slate of candidates to be supported at the primaries and at the election.
From the cooperation which the press has given in the past to occasional
joint efforts of this sort, such a plan would almost certainly be welcomed
and supported by the great dailies of Cleveland.
Of course, the mere indorsement of a joint slate would not be sufficient.
The pohtical organizations of each party would have to produce results
at the polls, and to the Bar Association and Civic League would fall the
task of organizing and directing the intelligent citizenship.
[277 1
CHAPTER V
THE MUNICIPAL COURT
THE present Municipal Court was launched in 1912 with fine civic
enthusiasm, in the belief that Cleveland had finally attained a
modern city court. It is not within the scope of this report to
consider whether or not the high hopes of those days have been realized
so far as its civil jurisdiction is concerned, but nine years of experience
do not justify any satisfaction with the handling of criminal causes.
Lawyers and pubhc officials appraise the criminal division of the Muni-
cipal Court when they persist in calling it, as they called its predecessor,
a "pohce court."'
Physical Conditions
Civil causes, however small, are heard in the imposing new City Hall
on the lake front, in court-rooms of dignity and charm ; criminal causes,
outside of the few jury trials held in the City Hall, are tried in the old
police court-rooms at the corner of West Sixth Street and Champlain
Avenue, N.W. This small building is used for pohce headquarters,
bureau of criminal identification, office of city prosecutor, probation
office, clerk's office, city jail, as well as court-house, and is inadequate
for all these purposes. Several years ago the city voted $1,250,000 for
a new jail and criminal court. The commission began work on the lake
front and then asked for additional bonds for the building. The voters
of Cleveland refused the request, and the city has, therefore, gained
nothing but an excavation. It is not necessary to build edifices hke the
City Hall or County Court-house, but a community which could erect
those buildings should not accept the present stalemate with respect to
an institution even more vital to its citizenship. A simple, modern
criminal court-house and jail is an immediate necessity. One way of
securing it speedily would be to compel the leading citizens of Cleveland
' Since this report is based upon a study of the court as it was in the early months
of 1921, it is in no sense a criticism of the new Chief Justice, Judge Dempsey, who
was appointed in March, 1921, and who was unable to attack the problems in the
criminal branch until May because of the unprecedented congestion of the civil list.
On the contrary. Judge Dempsey has given evidence that he appreciates many of the
evils and shortcomings pointed out in this chapter, and has already, on his own initia-
tive, begun some badly needed reforms, such as the division of cases into sessions,
and the starting of process in certain cases by court summons.
[278]
to attend one of the daily sessions of the "police court." A former
municipal judge has recommended that "the place should have a hose
turned on it." After this is done, a carpenter, a painter, an electrician,
and an expert on ventilation should be called. Their services would
make the place tolerable until new quarters are available. Little can
be done, however, to relieve the extreme congestion of the auxiliary
departments. It is greatly to the credit of the clerks' and probation
officer's staffs that they have been able to work with any degree of suc-
cess amid such an environment.
Decorum
Accepting the court-rooms as they are, little can be said for the con-
duct of cases therein. From 150 to 300 cases a day are assigned to the
two court-rooms, and the visitor is immediately struck with the lack of
orderliness in handling the list. The lawyer who has only an occasional
case, perhaps an ordinance violation, may wait with his clients and
witnesses from nine o'clock until two, not knowing when his case will be
reached. This apparent chaos is, of course, to the advantage of the
regular "police court lawyer," who has a number of cases each morning.
The decorum in Room 1 is somewhat better than in Room 2, but the
first room has higher ceilings and is better adapted for hearings. On a
day during the period covered by the survey Judge Howells was sitting
in Room 1 and Judge F. L. Stevens in Room 2. In neither room did the
proceedings reveal the necessary dignity of a court. The rooms were
crowded with lawyers, defendants, witnesses, police, hangers-on, and
sightseers, many chewing gum or tobacco, even when addressing the
court. In Room 2 an attorney was waving a cigar in the judge's face
by way of emphasizing his argument. Crowded around the bench were
lawyers, witnesses, and officials, almost screening from view the testify-
ing witness. Others in the court-room were standing about talking and
were occasionally asked by the judge to be quiet in order that he might
hear the testimony — this, although the witness chair was placed directly
against the judge's bench. The only person who seemed to be able to
follow the testimony was a young woman reporter from one of the news-
papers who took up a position behind the witness-chair.
In order to make themselves heard in this court-room, lawyers and
others have to lean over the bench to address the judge.' This produces
' Formerly the end of the bench was open so that attorneys, politicians, etc., could
go in back of the bench to whisper. When Judge Levine was in the Municipal Court
he had long arms put on the ends of the bench, so that all conversation had to be held
across it. These arms are now a permanent part of the equipment.
[ 279 1
an impression of a confidential communication, which, although false,
lends color to the belief that certain lawyers have "pull with the judge."
The question of decorum lies with the judges. A space should be
cleared before the bench and on both sides, marked off with a railing, and
no one should be allowed within the inclosure except attorneys in good
standing. Everyone should be compelled to sit while the court is in ses-
sion, and if every seat is taken, no additional persons should be admitted.
Any talking during a hearing should be immediately suppressed. Sev-
eral years ago Judge Selzer had the witness-chair moved away from the
bench so that its occupant could not give the appearance of talking for
the judge's ears only. On account of the poor acoustics and confusion
in the court-room the chair is again next to the bench. It should be
moved away, and if order is maintained, a witness can make himself
heard clearly enough.
Separate Sessions Recommended
Separate sessions dealing with different groups of cases should be
established, as, for example, one for misdemeanors and ordinance viola-
tions criminal in nature; one for felony examinations; one for women
offenders; and one for violations of ordinances only quasi-criminal in
their nature. Possibly the last mentioned might be held in the City
Hall in order that otherwise law-abiding citizens may await their turn
and have their cases heard in an atmosphere less suggestive of crime and
degradation. During the trial of a sexual offense the court-room should
be cleared of everyone not concerned in the particular case. It may also
be possible to hold different sessions in the morning than in the after-
noon. At present there is a rough division of cases, Room 1 being
used for "city cases" (ordinance violations) and Room 2 for "State
cases" (misdemeanor and felony examinations).'
Shifting Cases from One Judge to Another
One of the assistant clerks has discretion to decide whether the list
in one room is congested so that cases should be transferred from one
session to the other. Since a lawyer may get along better with a certain
judge than another, or the disposition of a judge may be known to be
strict or lax in certain classes of cases, this discretion often exposes the
' In 1920 these cases were divided as follows: felony examinations, 3,064; State
misdemeanors, 11,843; ordinance violations, 11,181. Since 1912 felony examina-
tions increased 204 per cent.; misdemeanors, 167 per cent.; ordinance violations, 376
per cent.
1280]
clerks in charge to great pressure to transfer cases from Room 2 to Room
1, and vice versa. It is impossible to ascertain how many cases are
shifted upon solicitation/ but the atmosphere is charged occasionally
with rumors that certain cases are "thrown" before a particular judge.
Table 10 may be significant as showing the tendency to shift cases.
During the winter of 1921 Judge Stevens sat in Room 2, and in January
startled the community by his severity in handling cases of State liquor
law violations which came up properly in Room 2. Judge Howells,
sitting in Room 1, acquired a reputation for being only moderately severe
in handling such cases, so that it was regarded as more advantageous to
be tried by Judge Howells than Judge Stevens. Judge Sawicki sat for
Judge Howells during one week in January.
TABLE 10.— SHIFTING OF CASES IN MUNICIPAL COURT, JANUARY, 1921
Judge
Judge
Judge
Stevens
Howells
Sawicki
1. Total arraigned in January and ultimately disposed
of by
311
166
58
2. Number disposed of in January by
260
106
58
3. Number arraigned in January but "passed" into
succeeding months ultimately tried by
51
60
Subdivision of Group No. 3:
a. Arraigned before Stevens, tried by Howells
28
b. Arraigned before Howells, tried by Stevens
c. Arraigned before Sawicki, tried by Stevens
d. Arraigned before Sawicki, tried by Howells
3
It so happened that Judge Stevens became more moderate after Jan-
uary 31, due perhaps to the rather unfavorable reception of his spectac-
ular procedure, and Judge Howells grew stricter, perhaps unconsciously
influenced by Judge Stevens' severity, so that the shifted defendants
did not profit greatly. Table 11 shows these dispositions.
TABLE 11.— ORIGINAL DISPOSITIONS OF CASES IN MUNICIPAL COURT,
JANUARY, 1921
Number
fined
Average
fine
•■Nolled"
Dis-
charged
Total
a. Arraigned before Stevens, tried
by Howells
b. Total tried by Stevens
0. Total tried by Howells
12
249
100
S271.42
452.21
294.45
2
18
7
14
44
59
28
311
166
' The records of the clerk's office are discussed later.
[281]
Scant Attention to Individual Cases
With the cases organized into different lists for different sessions, it
may be possible to avoid some of the waste time now involved in waiting
for cases to be reached. The principal advantage, however, would be
to enable the judges to give more attention to individual cases. Unless
a case is of pubUc importance, has news value, or has interested influential
people, it is apt to be disposed of before one can say the proverbial "Jack
Robinson." This results practically in depriving of his day in court the
poor or ignorant petty offender, and plays directly into the hands of the
defendant with "wire-pulling" friends. Table 12 gives the number of
dispositions in the criminal branch compared with the number in the
civil branch of the Municipal Court, showing the amazing discrepancy
between the time devoted to deciding questions involving, on the whole,
petty property rights, compared with those involving individual liberty.
TABLE 12.— COMPARISON OF NUMBER OF CIVIL AND CRIMINAL
CASES PER JUDGE, MUNICIPAL COURT, 1919
Criminal cases, average
Civil cases filed, average
Civil cases disposed of.
per judge
per judge
average per judge
1. State examina-
1. Over $300 and
1. Over $300 and
tions 1,723
equity
446
equity 386
2. Misdemeanors 5,398
2. Tort less than
2. Less than $300
$300, contract
and miscellaneous
$10(>-S300
867
(exclusive of con-
ciliation) 2,036
3. Ordinance viola-
3. Contract less
tions 4,767
than $300 and
miscellaneous
1,354
4. Conciliation
685
Criminal per judge 11,888
Civil per judge
3,352
Civil per judge 2,422
In the hurly-burly of the day's work the judge cannot examine closely
into statements and excuses of lawyers, police prosecutors, and police
officers, and this affords opportunities either to escape the law by "put-
ting it over" the judge or hastily to punish the innocent.
Bad Effects of Many Continuances
Most serious of all is the practice of continuing or passing cases.
Rule 3, of the Municipal Court,' criminal branch, relating to con-
' "Motions for a second continuance must be in writing, setting forth the facts
and reasons therefor (unless dispensed with by the court). » » » "
[282]
tinuances, has become atrophied. It is the object of every police court
law-j'er to get his case continued as many times as is necessary to disgust
the witnesses for the State, — who have been wasting their time in a most
disagreeable place, — and to cause the prosecuting pohce officer to lose
interest in the case in the face of more pressing matters.
Table 13, based upon a study of every tenth case in the criminal
branch for a period of two years, gives the average time between arrest
and disposition. It is to be noticed that it takes the least time to find a
defendant guilty, a longer time to discharge him, and the longest time
to "noil" or dismiss his case. This table is based on all cases, including
those ill-advised offenders who allow their cases to be heard on the same
day as the arrest, so that the interv-als are shorter than they would be if
the table were confined to continued cases.
TABLE 13.— AVERAGE NUMBER OF D.\YS BETWEEN ARREST AND
SENTENCE, MUNICIPAL COURT CASES, 1919-20, CLASSIFIED BY
DISPOSITION AND BY TYPE OF CASE'
State examinations
State misdemeanors
City misdemeanors
Number
Average
number
Number
Average
number
Number
of cases
Average
number
of cases
of days
of cases
of days
of days
Discharged
SI
8.1
285
6.0
224
4.9
Guiltv of offense
charged
1,381
3.1
1,325
3.3
Guilty of lesser of-
fense
35
7.1
Bound over
446
3.3
No papers
4
i
Nolle prosequi
58
18.0
84
11.3
133
12.5
Dismissed, want of
prosecution
14
10.1
79
13.7
4
2.3
Miscellaneous
4
8
33.8
4
6.0
Total
642
5.5
1,838
4.4
1,690
4.2
A study of cases of violation of the State liquor law (Table 14) , brought
before the court in January, 1921, shows that cases which were disposed
of in the same month received severer fines, contained a smaller per-
' The number of these cases is not equal in the aggregate to the total number of
cases, because the data of time interval are not available in every case. The term
"sentence" means the final disposition of the ease, whether or not found guilty,
except in those cases in which action, such as mitigation, was taken by the court after
sentence: in the latter case the term "sentence" is used in its literal significance.
[283]
centageof "nolles" and discharges, and a much greater number of work-
house commitments than the cases which were "passed" into succeeding
months.
TABLE 14.— CASES OF LIQUOR LAW VIOLATION ARRAIGNED IN
JANUARY, 1921'
Number
Per cent.
Average
original
fine
Committed to
workhouse for
failure to
pay fine
Sentenced in January
Discharged in January
" Nolled" in January
307
93
17
74
22
4
$422.70
62
Total
417
100
Sentenced after January 31
Discharged after January 31
"Nolled" after January 31
74
28
9
67
25
8
309.45
4
Total
111
100
Grand total
528
Cases in which continuances are of most advantage to the defendant
are those in which the witnesses are disinterested bystanders, as in auto-
mobile accident cases resulting in charges of manslaughter or driving
while intoxicated. "Continuances kill accident cases," says a police
officer posted in the court-room. "The witnesses won't come down and
swelter, or else they move in the meantime. The regular lawyer's game
is to tire out the witnesses."^
Such continuances not only enable the guilty to escape, but play into
the hands of unscrupulous lawyers who desire to use the criminal court
to exact payment of a civil claim for damages, whether well founded
' Exclusive of cases appealed.
2 A typical case is No. 67557, manslaughter charge, the complaint all eging reckless
driving while drunk. The notes in the police records and statements secured tend to
establish clearly that the defendant was going at an e.xcessive rate of speed and was
intoxicated. The two police officers whose testimony would have been most positive
as to the intoxication were not called, and the case was continued after at least one
of the important witnesses had testified. The entries are:
"July 22, continued to July 29, continued to August 26, continued to September
16, continued to September 30, discharged by Judge ."
1284]
or not.' If the case were tried immediately upon its merits, such
lawyers would be unable to use the machinery of criminal law as instru-
ments for extortion.
The "Motion in Mitigation"
The tendency cannot be effectively curbed, however, unless the "mo-
tion in mitigation" is eliminated from the practice of the court. This
motion, apparently peculiar to the police court, makes a farce of judicial
business, more than any other single factor. After a defendant has been
adjudged or has pleaded guilty, the court imposes .sentence. To the
uninitiated the case is over, but this is not so. A "motion in mitigation"
is then made, which is sometimes granted the same day, after trial, and
sometimes ruled upon weeks and even months later, after many con-
tinuances.^ Thus the court satisfies the complaining witness in open
court, and has the opportunity later to placate the defendant's lawyer.
Lawyers report instances where their clients were found guilty, though
clearly innocent (in the beUef of the defendant's lawyer), and upon pro-
testing against the "outrage" of a conviction, were advised to make a
" motion in mitigation." This they did, and the motion was later granted.
The "motion in mitigation " affords the setting for the performing
judge, enabling him to do "stunts" which get into the front page of the
newspapers, and then to undo the damage quietly at a later date. Men-
tion has already been made of Judge Stevens' campaign against liquor
law violators during January, 1921, and the notoriety which resulted
from it. Considering the fines for this offense during 1919 and 1920
(taking every tenth case), 61 per cent, were less than $200 and 99 per
cent, less than S400. About 26 per cent, of these sentences were sus-
pended. The average original fine imposed by Judge Howells for Jan-
uary, 1921, was $299.12, and the average fine imposed by Judge Stevens
(exclusive of five appealed cases) ^ for the same period was S468.72.
Excluding cases sentenced to the workhouse for failure to pay fines,
' Several cases of alleged extortion have been brought to the attention of this
survey.
- On November 23, 1920, Louis Ettkin was fined S200 and costs for violating the
liquor law, and the same day the fine was changed to $100 and costs. Notice of
motion in mitigation was given, and the case continued eight times untO February
21, 1921, when the execution docket shows the entry, "motion in mitigation over-
ruled." The original file, however, shows that at some stage S75 was suspended, so
that Ettkin paid S25 and costs on February 21. Meanwhile bond had been forfeited
twice and the forfeitures set aside.
' The inclusion of appealed cases would make Judge Stevens' average a trifle
higher.
1 285 1
Judge Stevens' average fine was S376.62. The average amount actually
paid in Judge Howells' cases was $180.17 and in Judge Stevens' cases
(exclusive of workhouse commitments), $176.61. The "motion in mitiga-
tion" is thus seen to be aleveler of fines in this particular group of cases.
It is said that the "motionin mitigation" serves the purpose of allowing
a defendant time to pay his fine, and after the fine is paid, the motion is
overruled as a matter of form. Undoubtedly the motion is used for this
purpose and also to allow the court time to investigate the defendant to
ascertain whether the fine imposed is a just one. The vice of the motion
is that the court apparently disposes of the case, and at a later date,
when no witnesses are present, makes a change. This vice is intensified
by a system of record keeping, discussed later, which makes it difficult
to find out what actually happened in a particular case. The court
should make its investigation before sentence, not afterward, and the
sentence once imposed, should stand. This could be accomplished by
continuing a case for sentence to a certain day after the issue of guilt is
determined, in case the court wishes further advice as to the condition
of the defendant. This method would be more apt to impress the de-
fendant with the seriousness of the court than the game of thimble played
with motions in mitigation.
The extent to which these motions are used may be seen in the fact
that of 314 fines for liquor law violation in cases originating in January,
1921, — exclusive of cases subsequently appealed or committed, — total-
ing $101,650, motions for mitigation were made in 193 cases and allowed
in 114 cases, reducing the fines by $42,135.' Of these fines, 131 were over
$200 each, totahng $75,500, in which 103 motions in mitigation were
made, 85 of which were allowed for a total reduction of $39,150, or nearly
52 per cent, in amount. An average of 15.43 days was required to over-
rule a "motion in mitigation" and an average of 35.15 days to grant it.
In cases where the fines were more than $200 each, an average of 23.5
days was required to overrule the motion and 36.24 to grant it. As in
the case of the hearing on the merits, delay favors the party who can keep
longest aUve his motion in mitigation.
The "Police Court Ring"
Owing to the fact that no record is kept of attorneys in cases before
the criminal branch of the Municipal Court, no statistical data can be
submitted of the attorneys practising in this court. It is common knowl-
' This is exclusive of cases where fine was suspended in whole or in part on the
day the fine was imposed. Counting such suspensions with the motions in mitiga-
tion, the total reduction from original fines was $48,885, or 32.3 per cent, in amount.
I 286]
edge, however, that certain attorneys monopolize most of the business,
and in a rough fashion divide the practice among themselves. Thus one
group represents prostitutes, another pickpockets, another suspicious
persons, etc. Any one connected with the court knows the names of
these attorneys.
Theoretically, there is no objection to a limited group practising in a
particular court. Indeed, under wholly different conditions a hmited
group of advocates would serve to facilitate the administration of jus-
tice by focusing responsibihty for the ethical conduct of cases on a defi-
nite group. In the "police court" of Cleveland exactly the opposite
has resulted. Men of ability as lawyers, or of fine sensibilities, shun
this court, so that there is a tendency for men of less refinement to drift
into the practice. The activities of these men are nowhere spread upon
the record ; they involve people who dare not or do not know how to
complain. Some of these lawyers were formerly poUce prosecutors, in
which capacity they made the acquaintance of habitual offenders and
professional crooks; some are city councilmen with a voice as to the
salaries of certain court attendants and a control over votes, which a
weak judge cannot entirely overlook; others are connected in various
ways with people of pohtical importance.
In the trail of the pohce court lawyer come the "runner" and the
"professional" bondsman, not even subject to the shght check of be-
longing to the legal profession. Some of the bondsmen are notorious
characters, others operate gambling places in the guise of "political
clubs." The presence of these men in the corridors of the court-rooms
gives rise to rumors of "underground" connections with certain prose-
cutors, which, even if false, greatly damage respect for the courts in the
minds of the unfortunate and their friends.
In some cases these lawyers and "runners" have been compelled to
pay back to clients money which they extorted under the claim of "in-
fluence." Years ago a police prosecutor, now a Common Pleas judge,
tried and convicted one of these men for obtaining money under false
pretenses, before the very judge with whom the lawyer claimed to have
influence. Judge Howells became for a time so disgusted with lawyers
defending prostitutes that he arbitrarily refused to permit any lawyer to
represent a prostitute before him. He had just fined a prostitute $10
when the police prosecutor whispered to him to suspend the sentence.
The lawyer also urged suspension on the grounds that his cUent could
not pay the fine. On inquirj' the judge learned that the girl had paid the
lawyer a fee of $75. It is said that formerly a custom obtained of raiding
prostitutes when the city needed money, and although this custom has
[287]
been stopped if it ever existed, there is some opinion to the effect that
they have been occasionally arrested when their lawyers needed money.
Except in an unusual case, the prostitute fares as well or better in court
without any police court lawyer, especially since the establishment of the
Woman's Probation Department under Mrs. Antoinette Callaghan.
TABLE 15.— PERSONS ARRESTED FROM JANUARY 1, 1918, TO DECEM-
BER 14, 1918, RELEASED ON BAIL BONDS SIGNED BY
AND REPRESENTED BY AND ATTORNEYS'
Disposition of cases
Number
Per cent.
Bound over to grand jury
30
14.0
Workhouse sentences
20
9.3
Workhouse sentences suspended
27
12.6
Money fines only
5
2.3
Money fines suspended
4
1.9
Discharged
44
20.7
"Nolled"
59
28.0
No papers
11
5.1
Bond orfeited, capias
7
3.3
No disposition
6
2.8
Total
213
100.0
It is no longer necessary for police court runners to look over the con-
tents of the "bull pen" for old and new clients.^ Some look over the
police blotter, and, it is charged, sometimes secure the release of prison-
ers on personal bond (without surety) in order to make them retain the
lawyers in question. For some of the lawyers this is unnecessary be-
cause their chentele and reputation are estabUshed.
' These men were called counsel for the ' ' International Association of Pickpockets. ' '
The firm has not been active in the Municipal Court since the grand jury investi-
gation of 1919. The figures are submitted, however, as showing a state of things
which probably exists as to some other Municipal Court lawyers, if the records were
available for study. Pocketpicking has fallen off greatly since this firm ceased to be
active. One member is an e.x-police prosecutor; the other has since been convicted
of arson, case reversed on error in the Supreme Court; both men were formerly asso-
ciates of a prosecuting attorney for Cuyahoga County.
2 "One visit to the central court is usually sufficient for a stranger — one day's
visit to the place being as complete as a month's sojourn within its desolate walls.
* * * Yet there are a few lawyers in this city who make a practice of habituating
the place, picking up such crumbs as these, managing somehow to exist on them.
They can be seen every day, a half-dozen or so of them, waiting in eager expectation
for the herd to be driven in from the pen; and if one of them looks as though he
might have $5 about him, he is besieged by anxious solicitors, ready and willing to
take his case." — Kennedy and Day, Bench and Bar of Cleveland, 1889. The spirit
of the place has not altered greatly in over thirty years.
[2S8 1
Until recently the lawyer himself could be bondsman for his client.
Happily, this vicious practice is ended by a court rule, but not without
leaving an indication of the activities of a certain group of lawyers who
acted as bondsmen for clients whom they represented.
The length of their trail can be judgcni from figures in Table 15, com-
piled by the Bureau of Criminal Identification, Division of Pohce.
These cases included 125 known criminals whose pictures were in the
Rogues Gallery at the time of their arrest. These were disposed of as
in Table 16.
TABLE 16.— DISPOSITION OF CASES OF 125 KNOWN CRIMINALS
Disposition
Number
Per cent.
Bound over
Fined, suspended
Workhouse
Workhouse, suspended
Discharged
"Nolled"
No papers
Bond forfeited, capias
No disposition
18
1
12
18
24
38
6
5
3
14.4
0.8
9.6
14.4
19.2
30.4
4.8
4.0
2.4
Total
125
100.0
Many of these criminals were notorious offenders, and some were sub-
sequently implicated in murders in Cleveland. Some of those not in-
cluded in the list of known criminals have later been added to this class
by the police.
It cannot be said that the judges are individually responsible for the
record shown by these cases. In the great majority of the felony charges
the defendants were bound over for the grand jury.' In the other cases
the story is told in the number of cases "nolled" and "no-papered" by
the police prosecutor. The former is done by motion before the court;
but the absence of centrahzed judicial administration through a watchful
and directing administrative head, the great confusion of the court, and
lack of a courageous, highly skilled, and completely disinterested prose-
cutor, or failing that some "amicus curiae" upon whom the court can
rely for disinterested advice, are largely responsible for the court's part
in cases "nolled" and sentences suspended. The police court lawyer is
' An ex-judge stated that he informed one of these attorneys that all of his clients
accused of pocketpicking were guilty. They would never take the stand for fear the
police would fasten their record upon them.
20 [ 289 ]
most adept in taking advantage of those conditions which inevitably
make for abuse of law and the defeat of its purposes.
Bail Bonds
Because of the reaction occasioned by the "crime wave" and obvious
breakdown of the courts, the bail bond situation in the Municipal Court
has received a wrong emphasis. In the matter of assuring the attendance
of the defendant in court, bail is not a serious problem. During the nine
years of the Municipal Court to January, 1921, there have been approxi-
mately 2,200 forfeitures of bail bonds which had not been set aside either
by producing the defendant or through purging him of contempt. Com-
pared with 170,137 cases disposed of during this period, this is a relatively
small number. Of 562 cases of liquor law violation before the court in
January, 1921, only six bond forfeitures were still outstanding on April
19, 1921.
The real evil in the situation is not the matter of easy bail, but the
disreputable professional bondsmen who make a business of exploiting
the misfortunes of the poor, and whose connection with "runners" and
" shj'sters " tends to prostitute the administration of justice in the inferior
courts. To eliminate the professional bondsmen requires not a stiffening
in the matter of bail, but a removal of the necessity of bail wherever
possible, and a relaxation where such a removal cannot be accomplished.
A step forward was made in the provision for cash bail in G.C., Section
1579-20. The tendency of cash bail to drive out the professional bonds-
men to some extent is apparent. Another excellent provision is Rule
10, of the criminal branch of the Municipal Court, providing for the
release of a defendant upon a personal bond without surety, where the
offense charged is a misdemeanor punishable by fine only or a violation
of a city ordinance. This rule should be extended to cover other minor
infractions of the law which may be punishable by short terms of im-
prisonment. From what can be learned, however, the administration
of this rule has not been wholly successful. The clerks in charge have
established a practice of requiring someone to "vouch" for the defendant
before releasing him on personal recognizance. This has apparentlj^
revived the opportunity for the professional bondsman and the runner,
who are active on the trail of arrested persons in order to get them out
on a bond without sureties. Rule 10 requires that a defendant, in order
to be released on a personal bond, must have had a known place of
residence within the city of Cleveland within six months next preceding
his arrest. It should b? an easy matter for the clerk's office to establish
this fact by the testimony of a neighbor, without requiring anyone to
[290]
"vouch" for the defendant. At any rate, professional bondsmen and
runners should not be accepted, for it is against the spirit of the rule to
retain the hold which those parasites have on the potty offenders. How
far the enforcement of the rule has drifted from its original purpose may
be gathered from the fact that persons charged with vagrancy are some-
times released on personal recognizance, although the very nature of the
charge would preclude a known residence for six months and the police
blotter shows an entry of "no home."
The establishment of the office of bail bond commissioner in the spring
of 1921, followed by the appointment of John J. Busher to that posi-
tion, should assure an improved operation of this rule. The matter
should be worked out in conference between the Chief Justice, the bail
bond commissioner, and the chief clerk.
A most beneficial step would be the estabUshment in petty offenses of
beginning process by means of a summons instead of a warrant. It is
absurd that known residents of Cleveland should be arrested for violation
of traffic and other ordinances and for misdemeanors not serious in their
nature. This not only provides opportunity for the professional bonds-
man and imposes unnecessary hardship upon the accused, but also in-
volves an enormous waste of time by members of the police force, the
clerk's office, and the jail attendants. In such cases it should be suf-
ficient, if the policeman handed the accused a summons to appear in
court upon a certain day. The summons has replaced the warrant in
many other cities.' In Detroit it has an extensive use and has proved
to be a most successful labor-saving device. In that city a warrant is
not issued unless the accused fails to respond not only to the original
summons, but to an alias summons issued on the day of his non-appear-
ance in court. In Cleveland an informal summons has already been
established in the police prosecutor's office. In certain classes of cases,
notably neighborhood quarrels and the like, the poUce prosecutor sum-
mons the party into his office in an endeavor to straighten out the dif-
ficulty without the intervention of the coiu-t. In theory, at least, this
' This is also true in England. " It is considered very improper to issue a warrant
for the arrest of a person whose attendance can be secured by summons. In a recent
trial at the Old Bailey, where a shopkeeper was on trial for receiving stolen property,
it appeared that he Lad been arrested upon a warrant. The judge inquired partic-
ularly why a warrant had been issued, and then stated that a summons would have
been sufficient." — Criminal PTOcedure in England, by John D. Lawson and EMwin R.
Keedy, Report of the Committee on Reform in Legal Procedure of the American
Institute of Criminal Law and Criminology, Journal of Criminal Law and Crimin-
ology, vol. 1, pp. 595, 748; reprinted in Sen. Doc. No. 495, 63d Congress, 2d ses-
sion, and Massachusetts Law Quarterly, vol. 5, p. 171.
[291]
informal procedure is a considerable step forward, but it is obviously
vulnerable to abuse and does not go far enough. The summons should not
be a discretionary matter with the prosecutor, but should be made the
normal mode of beginning of judicial process in certain classes of cases.
There will always remain, however, a residue of cases in which a bail
bond with sureties is necessary. The number of such cases may be con-
siderably reduced by the prompt compulsory trial of cases and by the
erection of a jail with decent and adequate facilities.
These steps should reduce to a minimum the number of cases in which
a professional bondsman may hope to make a profit. By ehminating
the opportunity for such business, those who are now engaged in it will
seek a living elsewhere. So far as it may be impossible to eliminate the
professional bondsman, his business should be regulated like that of
the "loan sharks" in many jurisdictions.
The Clerk's Office
In this section is discussed only that part of the clerk's office which
handles the records for the criminal division. This office is in the Police
Court Building, and is altogether inadequate for records, files, or human
beings working therein.
The Chief Clerk, Peter J. Henry, devotes most of his time and atten-
tion to this office rather than the civil branch.' He is well intentioned,
quick in human sympathy, and his popularity with his employees does
much for the esprit de corps of the staff. The first assistant, James Can-
tillon, is an earnest, hard-working man, who was unfaihng in his patient
cooperation with the survey. Like all those who have known only one
way of doing things for a long time, both are inclined to be somewhat
hostile to suggested innovations. To one acquainted with the lack of
physical facihties and the antiquated method of record keeping which
prevails, it is a constant source of wonder that the system works at all,
however badly.
The method has apparently been inherited from the old Police Court,
and is not in any sense adequate for the present needs.'' A record system
should accomplish three things: first, enable the clerks and the judges to
prepare and follow each day's business; second, leave an accurate,
easily accessible record of what has happened in each case to date; third,
automatically build up statistics which the Cliief Justice and the public
' Contrary to the practice of ex-Chief Justice McGaonon, who apparently neglected
the criminal branch almost entirely.
'' In 1912, when the Municipal Court succeeded the Police Court, the total number
of cases was 7,788. In 1920 the number was 26,088, an increjise of 235 per cent.
[ 292 ]
ought to know as an authoritative basis for appraisal of the courts' work
and the basis of its continuous improvement.
Under the system in use the clerks can make up a day's docket fairly
well, but there is no adequate way of following the day's business and
there is complete failure to secure the second and third objects.
The principal record kept is the "Execution Docket," which is not a
docket and has nothing to do with executions. Two sets of records are
used, one for " city cases" and one for "State cases." These books are,
in fact, journals of the court's business, and the entries for each day are
copied therein from penciled notations on the original papers. Thus a
case may appear on 10 different pages, if continued nine times, the cross-
references to continued cases being forward only and not back, so that
while it is possible to trace the history of most cases forward from an
entr>' on a given day, it is not possible, in this book, to trace it back to its
origin. Even to run it forward means passing the eye over many entries
of other cases until the name sought is located, and often the name is
spelled differently in different places. Sometimes trace of the case is
lost because it was advanced for trial before the continuance date, or
the defendant did not appear on the day set, or the clerk made an error
in copying the date to which the case was continued. A case is not
given a file number until it is disposed of, and if brought up for further
disposition gets a second and even a third number. At least seven
times as long is required to get the historj^ of a case from this record as
would be the case if all the steps were entered in one place, under file
number and name. Moreover, since no number is given until the case
is finished, it is difficult to ascertain from this record which of several
cases pending against the same defendant is being considered. On
disposition, many cases are often grouped and given the same fUe number.
Pending cases are indexed by cards filed alphabetically, so that it is
possible to consult the card, ascertain the date set for trial, and extract
the original papers from a box containing aU cases set for trial on the
particular date.
The only approach to a history of the case is found on the file papers
themselves, where the plea is entered, with the continuance date, the
final disposition, and the name of the judge making final disposition. No-
where is there a record of the attorney who appeared, or the prosecutor
in charge, or the judge in any preliminary stage. As the notes are in
pencil, it is not unusual to find an entry cancelled or erased and a new
disposition written above the old.
To locate the case of John Stewart it would be necessarj' to perfonn
the following acts, which might be profitably contrasted with the process
[293]
of finding the history of a sales order in any modern mercantile business.
A beginning is made by consulting an index book where the names are
entered alphabetically according to the first letter only, so that one must
go through a long list of names beginning with the letter "S". If the
name is finally found (and the index has some omissions), the reference is
to a f oho page of " Execution Docket." If there are several cases of the
same name, it is necessary to know the approximate date or else employ
a process of elimination. With the folio page one finds an entry re-
lating to Jolin Stewart. It is then necessary to follow the entry forward
through all the continuances, trying to pick the name out of many others
on the dates given. Finally an entry is reached which disposes of the
case, and unless a motion in mitigation is made, with further contin-
uances, the case receives a number, usually in combination with other
cases.' At the end of each day's cases in the "Docket" the names of
both judges are stamped, so that it is not possible from this record to
ascertain the judge who disposed of the case.
With the number of the case one goes to the files, which are kept
numerically.^ The penciled notations in the file will then tell the dates
of the warrant and plea, continuances and disposition, and the name of
the judge disposing of the case is stamped on the margin. If one wishes
to know before whom John Stewart was originally arraigned, or before
whom a new trial was held, or if one has so many cases that it is imprac-
tical to hunt through the original files, then one consults the "Judge's
Docket," which is a journal of each day's work kept in two series of
books, one for Room 1 and the other for Room 2. The names of judges
regularly sitting in these rooms do not ordinarily appear in the "Judge's
Docket," so that it is necessary to know the handwriting of each judge to
be certain as to identity. This procedure for studying cases in this
court is naturally comphcated further by occasional errors inevitable in
a system of this kind, and by some cases with unusual features, which do
not fit comfortably into it.' Moreover, the information when obtained
is incomplete. The only record books which are at all adequate are the
bail forfeiture book, showing the history of such forfeitures, — exclusive
' If bail was forfeited, the ease is not given a number and is not filed with the other
cases. When the forfeiture is set aside, the clerk usually remembers to go back to
the forfeiture entry and note the new folio page.
2 On account of lack of room, files more than three years old are stored in the loft
under a thick layer of dust.
' To obtain a reliable history of cases of liquor violation appearing in the "Execu-
tion Docket" for January, 1921, only, required many days, when a ledger system of
keeping records would have yielded the information in as many hours.
[294]
of the question whether they have been collected, which is the work of
the prosecuting attorney, — and a little volume giving the dates when
cases are bound over for the grand jury, and the dates when transcripts
are made out in such cases.
The objection offered to maintaining a ledger of cases instead of a day-
book— "Kxecution Docket" — is that it would involve more work and
more books. The former objection may be doubted because the present
method involves writing the name and charge in each entrj-, even for
continuances, whereas a ledger would show this information once and
for all. Moreover, if a difference in record keeping were made between
felonies, misdemeanors, and relatively trivial ordinance violations, much
labor might be saved, especially if advantage were taken of modern
bookkeeping devices.
We regard the question of record keeping as one of first importance.
The activities of police court hangers-on are to a large extent dependent
upon the assurance that they will leave no tracks behind them, and the
watchful interest of the press and the public is baffled into inaction by
obstacles which make vigilance too difficult. Moreover, the failure of
the system to meet modern needs makes for informal action on the part
of some of the judges, and informality in the court breeds suspicion and
disrespect.
Recommendations
Other questions relating to the Municipal Court will be discussed
under specific headings of a general nature. If the Municipal Court is
retained as an institution,' the following recommendations are made at
this time:
1. Adequate court-house and jail, pending the securing of which the
present building should have all alterations necessary to make conditions
tolerable, and to remove the sordid aspect of the surroundings.
2. A few physical devices for keeping the crowds in the court-room
away from the judge's bench.
3. Increased formality in the court-room and strict maintenance of
decorum.
4. A division of the cases into sessions according to their nature and
the requirements of decency.
5. Orderly handUng of the list, together with an established policy
as to transferring cases from one session to another.
6. A stricter rule as to continuances, enforced absolutely.
7. Abohtion of the "motion in mitigation."
' Its amalgamation with the Common Pleas Court has already been recommended,
p. 246, supra.
[295]
8. The registering, before being heard, of every attorney who appears
for a defendant.
9. Extension of the judge's term on the criminal division from three
months to six months or a year, discretion remaining in the Chief Justice
to alter such terms.
10. Conferences [before each swinging of terms between the judges
going out, the judges going in, and the Chief Justice, to determine
policies in handling cases so as to avoid injustice resulting from the whims
or political exigencies of judges, and to promulgate, alter, and secure
enforcement of court rules.
11. Close cooperation between the Chief Justice, the clerk, and the
police in ridding the court-room and corridors of "runners" and their kind.
12. Formation of a permanent committee of the Bar Association to
assist the Chief Justice in cleaning out and keeping out the "shysters"
and their followers, this committee to designate as associate members
certain probation officers and representatives of social agencies actually
working in the poUce court.
13. Legislation giving the judges summary power to award damages
to any defendant in the court, equal to twice the amount paid by such
defendant to any runner or lawyer, upon solicitation or upon any repre-
sentation as to influence with any judge or other public official.'
14. A statute or ordinance fixing the charges of professional bondsmen,
scaled according to the security given such bondsmen, and clothing the
judges with summary power to award damages equal to twice the amount
paid in violation of such statute or ordinance. The bondsman should
be required to file his affidavit with the bond as to the fee and securities
received.
15. Blanket permission to any defendant pro se, or any private attorney
representing such defendant, to conduct prosecution for any alleged
violations of any statutes or ordinances intended to regulate the business
and practice of the court. It would help the situation greatly if the
Legal Aid Society undertook to enforce penalties for these violations.
16. Extension and closer supervision of the rule allowing for personal
recognizances.
17. The formal beginning of process in minor offenses by means of a
court summons.
18. The establishment of an entirely new filing system in the criminal
branch of the Municipal Court.
' The Suspicious Persons ordinance covers soliciting, but it is not directly in the
interest of anyone to see that it is enforced.
[296]
CHAPTER VI
THE COMMON PLEAS COURT
History and Jurisdiction
THE center of the judicial system is the Common Pleas Court,
estahlished in 1788 by an Act for the Government of the North-
west Territory. The Constitution of 1802 continued the Common
Pleas Court, dividing the State into three circuits, each circuit to have a
president and not less than two associate judges. The judges were
appointed by the general assembly for a seven years' term. Today,
after numerous changes, there are 12 judges in Cuyahoga County alone
holding office for si.x years, nominated in direct primary or by petition
and elected on a non-partisan ballot. The salary is $8,000 per annum.
This court has original jurisdiction of all felonies, upon indictment by
a grand jury, and other offenses where the exclusive jurisdiction is not
vested in an inferior court. It, therefore, disposes of all the serious
cases and most of the misdemeanors from the country districts of the
county.
At the present time four Common Pleas judges sit regularly in the
criminal division, although only a few years ago two judges, or even
one judge, were adequate for the entire volume of criminal business.
The figures cited in Chapter I show that the necessity for this increase
Ues not only in the increased number of cases, but in the tendency to
dispose of cases by trial rather than by plea of the defendant.
Physical Conditions
Physically, the arrangements are a handicap to efficiency. Two court-
rooms, the office of the clerk of the criminal division, and the criminal
assignment commissioner's room are in the old county court-house on
Public Square, but the prosecutor's office is in another building, and two
sessions are usually held in the new court-house on the lake front. Be-
cause the court is thus scattered through three buildings, much time is
lost, especially in getting witnesses and jurors from one court-house to
another. Although the criminal clerk's office is in the old court-house,
many journal entries, court orders, etc., are made up in the main office
1297]
of the clerk of couits in the new building, so that the records cannot be
kept in one place, and often precious time is lost in transmitting important
court entries and orders. The two rooms in the old court-house are
dingy, but large enough. In one of the rooms there are chairs for spec-
tators, but the other has only a bare space, railed off. All of the rooms
in the new court-house are commodious and handsomely appointed.
Only a few chairs, however, are provided for spectators.
Decorum
The decorum is a considerable improvement over the Municipal Court,
but not what it should be, considering the fact that each room has not
only a clerk, but a bailiff whose chief business it is to maintain order. ^
The judges themselves, on the whole, do not seem to mind an atmosphere
of unrest. In cases of public interest the packing of spectators behind
the rail reminds one of the New York subway in rush hours. Confusion is
inevitable. Chairs or benches should be provided, and no spectators
admitted when the seating capacity of the room is exhausted.
FormaUties, the symbols of dignity, which are familiar in an eastern
court-room, are lacking. The judges wear no gowns; recesses are taken
by the judges simply by getting up and leaving the bench; their return
is unheralded bj' the court bailiff. Smoking in the court-room during a
recess is not unusual. An air of familiarity is noticeable among the
judges, and between them, the lawyers, and the court attendants. Al-
though it is, of course, an exaggeration to say, as did the late Judge
Foran, that "the courts are run like bar-rooms," it is perhaps true that
the court-room, in dignity of atmosphere, does not rise above a sales-
man's display room in a hotel.^
Terms of the Court
At the present time the criminal division is active for only three
terms during the year, totaling ten months. There is no court during
July and August, in consequence of which many persons are confined
over the summer awaiting action of the grand jury, and the September
' The county supports a bailiff for each of the 12 judges at a salary of $1,820 per
annum, and the total annual expenditure of the bailiff's department is $52,000. It is
a question whether this expense could not be greatly reduced by the establishment of
messenger service from the assignment room, and the use of guards only when the
number of spectators warrants it.
" It should be said that the decorum varies somewhat according to the judges on
the bench, and that the conduct of civil causes is largely free from the atmosphere of
confusion and informality surrounding many criminal trials.
[298]
term is thereby congested. From 1912 to 1918 inclusive there was a
summer term, but this was aljandoned in 1919, although at that time
criminal cases were increasing greatly. It has recently been suggested
by one of the judges that the April term be extended to include July.
Owing to the fact that the civil business of the court is practically sus-
pended during the summer, at least one session could be maintained, on
the criminal side, with no hardship on the judges.
Lack of an Executive Head
This court disposes of more than 3,000 criminal cases and 10,000 civil
actions a year. In addition to the 12 judges, it has a varying supervisory
control over the clerk's ofBce, the two assigmnent commissioners' offices,
the jury commissioners, the jury and grand jury, bailiff's office, and,
including the judges, comprises a salary budget of over S37o,000 per
year. This great enterprise, organized for the business of administering
justice, is without any executive head whatsoever.
General Code, Sec. 1558, confers the power of making rules and regu-
lations and assigning business upon the "judges of the Common Pleas
Court." The judges hold occasional meetings to discuss pending mat-
ters, and by a process of rotation each judge becomes in turn presiding
judge, or presiding judge of the criminal division. A bill was intro-
duced at the last session of the legislature creating a permanent Chief
Justice, but was defeated because of a rider providing for three additional
judges. It cannot be said that the legislature was unwise in refusing to
pass the bill in that form. Unless a real executive head to the organiza-
tion has been appointed to study its needs and guide its administration
with authority, the question of how many, if any, additional judges are
needed cannot be decided intelligently.
"Loafing Judges"
Much is heard among Cleveland lawj'ers of the " laziness " of certain
of the judges. Recently a judge of the Court of Appeals stirred up a
hornet's nest by declaring that "half of the judges are loafing." Al-
though such blanket accusations are necessarily unjust to many hard-
working judges, and create the impression that the best judge is the one
who sits longest in his room,' there is undoubtedly much justification for
' Not only do many judges do their hardest work off the bench, but some of the
best judges require a certain amount of leisure. Nevertheless, a judge who is late,
even habitually so, in his room is a drag on the administration of justice. He causes
witnesses to chafe and disappear and lawyers and clients to lose time, as well as respect,
for the oourts.
[ 299 ]
the feeling that business could be handled more expeditiously. No per-
manent improvement will be effected by the humiliating procedure of
timing the judges, as has been done by the press, on occasions. What is
needed is not for the judges to punch a time-clock, but a high professional
atmosphere with an executive head allocating the work and watching its
progress.
Some evidence of the advantage of proper organization under a Chief
Justice may be gathered from the experience of the Municipal Court,
which has had an administrative Chief Justice from its inception. This
evidence is not as strong as it might be, because Judge William H. Mc-
Gannon, for nine years the head of the court, was by no means an ideal
Chief Justice. Now that the judge has been compelled to resign, there
is a tendency on the part of some to exaggerate his accomplishment while
in office. The history of the criminal branch of this court shows a
headship lacking vision and constructive abihty, and failing utterly in
dignity. Nevertheless, Judge McGannon was a "hustler" and kept his
associates at work.
On May 7, 1920, occurred the Kagy murder. Aside from the question
of his innocence or guilt, this event threatened the judge with loss of
reputation by reason of his close connection with the affair, his notorious
associates, and the impending exposure of his private life. It is small
wonder that from then Judge McGannon did not devote himself to his
work with the same zeal as before. On November 26, 1920, he was
indicted, and his fight for exoneration and liberty continued practically
until his resignation in March, 1921. During this period he prepared
for and faced two extended murder trials. It was not only mentally but
physically impossible for the judge to devote much time to his duties as
Chief Justice. One would expect the trial list to become clogged after
May 7, 1920, and jammed after November, 1920. This is exactly what
happened.
Diagram 7 shows the number of civil cases filed each month compared
with the number of civil cases awaiting trial.' In each group the cases
on the concihation docket are omitted. It is to be observed that until
June, 1920, the list followed roughly the number of cases filed by from
one to two months. Note the unusual rise of the list after the Kagy
'An eflfort was made to secure the monthly record of civil dispositions for 1920
and the first three months of 1921, but the statistical clerk for the court could not
supply the figures from which such a calculation could be made. The figures used
were obtained through the courtesy of Frank J. Murphy, clerk of the civil branch
and the office of Charles L. Kaps, assignment clerk.
[300]
murder, not related to the fluctuation in the number of cases filed, and
the precipitate movement after November, 1920.
For purposes of comparison the civil list of the Common Pleas Court
and cases filed is also charted (Diagram 8). The state of the Common
Pleas list could be obtained only as of the beginning of each term, and
not by months, so that the terms only are charted. The ehmination of
monthly fluctuations makes the Common Pleas list seem to follow the
JOOO
2OO0
ISOO
500
Diagram 7. — Cases ready on list compared with cases filed, Municipal Court
cases filed more closely than in the Municipal Court. It is to be observed
that despite the steady increase in the number of cases, the hst shows
no such precipitate break as in the lower court. The higher level in
the spring of 1921 is attributed partly to the assignment of more judges
to the criminal division.
A correct record of the hours of attendance by the judges might also
afford instructive comparisons on this point. Such a record is kept by
[3011
the bailiffs of the judges, but considerable doubt attaches to their accur-
acy because of the fact that Judge McGannon is recorded as attending
his court iorfull months during December, January, and February, 1920-
1921, when he was actually preparing for and was bodily present at two
long trials involving his own liberty. Accepting the figures as they
fiOOO
7000
6000
soco
5000
200C
1000
^oco
'000
uCOO
BOCO
3000
2000
JAN.
APR.
setn.
JAN.
APR.
SEPT
JAN.
AP»
1315
ISIS
ISIS
IS20
ISZO
rs^o
ia£'l
IS2I
Diagram 8. — Cases ready on list compared with cases filed, Common Pleas Court
stand, however, without allowing for any tendency on the part of bailiffs
to give their judges the benefit, even when there is no doubt, the record
shows a substantial deficit of judicial hours worked for the months of
September, October, November, December, January, and February of
1920-1921 as compared with similar preceding periods. Beginning with
[302]
1917-1918, when the records for 10 judges are first available, the figures
in hours are:
September-March^ September- March^ September- March' September-March}
1917-lS 1918-19 1919-20 1920-21
7,638 hours 7,533 hours 7,767 hours 7,338 hours
The hours of attendance from 1920-21 are the lowest in the period,
despite the fact that the number of cases has been rapidly increasing
during this time. Compared with the next preceding year there is a
falling off of 439 hours, equivalent to nearly a week and a half per judge.
There is httle doubt that a more accurate record would disclose a greater
deficit.
Fluctuating Policies
The custom of rotating judges in the positions of presiding justice of
the civil and criminal divisions of the Common Pleas Court necessarily
means a fluctuating poUcy with regard to the promulgation and enforce-
ment of court rules and practice. This has become of more importance
since the estabUshment of an assignment commissioner in the criminal
division in February, 1919. Before that time the hsts were in the hands
of the prosecutor's office, and any judge in the criminal division who
happened to be approached disposed of pleas of guilty and motions to
' ' nolle . " In order to prevent " anghng " f or a particular j udge, the A ssign-
ment Commissioner now sends such pleas and motions, when advised
beforehand, to the presiding judge. This means that the poUcy in such
matters varies with the rotating judges. There is also a great difference
among judges in their supervision over the system of selecting petit and
grand juries. Perhaps the greatest weakness of continually changing
the directing head is seen in the enforcement of court rules; for example,
Rule 21, relating to continuances for absent witnesses. The poUcy
regarding "passing" cases (;'. e., putting them over for hearing at a later
date) has also varied. This is of considerable importance because one
of the first objects of a skilled criminal lawyer is to get his case "passed"
as often as possible, in the hope of disgusting the State's witnesses and
wearing out the interest of the police and prosecutor. In the September
term, 1920, Judge Bernon, then presiding judge of the criminal division,
stiffened up in the matter of "passing," and in the January term, 1921,
Judge Allen asked for an affidavit before "passing" a case. The attor-
neys, however, then presented affidavits from their clients, and in the
April term, when Judge Allen became presiding judge, she issued an
order requiring an affida^at of due diligence by the attorney and the
presence of the defendant in court before passing any case.
' The summer months are excluded because of the vacation period.
[303]
The seriousness of laxity in passing cases is well known to everyone
connected with the courts. Statistically, there seems to be a direct
correlation between the length of time cases have been pending and the
mode of disposition. Considering all of the criminal cases begun in 1919,
we find the average time per case for different classes of disposition to
be as in Table 17.
TABLE 17.— AVERAGE TIME PER CASE BY CLASSES OF DISPOSITION
Average number days,
Average number days,
indictment to
disposition
arrest to disposition
Disposition
From
Original
From
Original
inferior
indict-
inferior
indict-
courts'
ments
courts'
ments
Guilty on first plea
26.1
16,4
9.8
49.4
Cliange of plea to guilty
62.5
26.2
42.0
44.9
Change to plea guilty lesser offense
65.6
37.7
42.2
53.2
Guilty of felony by jury
71.7
74.6
52.8
113.8
Not guilty of felony by jury
83.8
55.6
54.7
62.3
"Nolled" because of defendant's
sentence or imprisonment
84.6
44.0
56.7
75.6
Dismissed or discharged on motion
or demurrer
106.0
63.5
58.7
65.7
"Nolled" on all counts, no reason
assigned
99.8
124.6
75.5
134.5
"Nolled" after conviction or dis-
agreement
181.4
163.7
Dismissed, want of prosecution
215.0
293.3
245.0
298.3
No bill by grand jury
29.3
Arrest to true bill
24.4
These figures need little comment, since they indicate clearly the need
of a sustained pohcy of firmness in the matter of passing. Under the
present system of rotation this will never be obtained.
Inability to Use Personnel to Best Advantage
Another result of rotating is to make impossible using the abilities of
the particular judges to the greatest advantage. The success of any
business enterprise requires that it use its personnel in such a way as to
employ the abilities thereof to the utmost and to minimize its weaknesses.
The administration of justice is no exception. On the civil side, a judge
who may do fairly well in tort cases or simple contract, may be beyond
' The column for cases coming from inferior courts is the more reliable because
based upon approximately 10 times as many cases as the original indictments.
[304]
his depth in equity or in disposing of motions. The criminal side has
its own requirements. It needs not so much able jurists as men of
common sense and firmness, known to be unapproachable by lawyers,
prosecutors, or politicians, and inspiring respect that should border on awe.
A judge may be inadequate on the civil side, and yet make a compe-
tent criminal judge. Conversely, a judge gifted in theoretical knowledge
of the law may be a poor criminal judge, because of his tendency to see
abstract theories and not problems of human character.
Tables 18 and 19, based upon cases begun in 1919, show how widely
some of the judges vary in performance of duties on the criminal bench.
Only judges disposing of at least 100 cases are included, which accounts
for the omission of certain judges.
In order to interpret the figures in Tables 18 and 19 more easUy, sec-
ondary tables, given in Table 20, will be helpful. These secondary
tables show how the judges rank by dispositions of cases tried by them.
A summary of this table is given in Table 21.
It will be noticed in Part I of Table 20 that Judge Levine leads easily
in the number of cases originally pleading guilty, and that he still leads
the list in Part II, followed by Judge F. E. Stevens and Judge Cull. A
partial explanation of the readiness to plead guilty before these judges
is seen in Part V, where the same two men are at the top of the hst and
Judge Cull is a close fourth. It will be noticed that Judges F. E. Stevens,
Pearson, Kennedy, and Phillips lead among those accepting a plea of
guilty to a lesser charge. This should be compared with Part VI, which
shows the leniency of the judges toward misdemeanors, reflected in a
combination of fines only, plus suspended workhouse sentences. Except
Judges Levine and Cull, who led on original pleas of guilty, the first
four in this list correspond closely with the first four in Part III.
In Part IV of Table 20, cases "noUed," only those cases "nolled" on
all counts with no explanation are included. In this hst Judge Kennedy
leads as widely as Judge Levine in Part I. In February, 1920, Judge
Kennedy allowed a "blanket nolle," which included over 50 cases begun
in 1919. A large percentage of these cases, however, are not included
here because an explanation was given, and many of them would have
been "nolled" in due course even had there been no "blanket nolle." It
is safe to say that Judge Kennedy would still head the list after allowing
for the "blanket nolle."'
'Presiding judges during tjlie term in which most of the 1919 cases were disposed
of were Judges Foran, Stevens, Powell, Kennedy. One would naturally expect these
judges to lead in pleas of guilty, changes of pleas, and "noUes." Judge F. E. Stevens
alone is high in all of these dispositions, however.
21 [305]
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[307
TABLE 20.-
-RANK OF JUDGES BY PERCENTAGES OF SPECIFIED DIS-
POSITIONS IN CASES TRIED BY THEM
I
Original pleas
of guilty
II
Total pleas
of guilty
III
Change of plea to guilty of
lesser offense
Per cent.
Per cent.
Per cent.
1. Levine
57.1
1.
Levine
79.6
1. Stevens
10.7
2. Cull
3L5
2.
Stevens
67.3
2. Pearson
9.6
3. Foran
29.8
3.
Cull
58.5
3. Kennedy
9.5
4. Stevens
22.8
4.
Foran
54.6
4. Philhps
8.6
5. Powell
16.2
5.
Powell
53.6
5. Foran
8.5
6. Phillips
3.7
6.
Pearson
43.3
6. Baer
7.9
7. Kennedy
2.0
7.
Baer
32.8
7. Powell
6.6
8. Pearson
1.9
8.
Kennedy
30.0
8. Cull
6.3
9. Baer
0.5
9.
Phillips
29.5
9. Levine
4.2
IV
Cases "nolled" o
VI
Misdemeanors — combina-
n ail counts
Suspended sentences,
felonies, and misdemeanors
tion of fines only and
suspended workhouse
sentences
Per cent.
Per cent.
Per cent.
1. Kennedy
43.1
1.
Levine
30.8
1. Levine
77.1
2. Phillips
21.5
2.
Stevens
30.5
2. Pearson
70.7
3. Pearson
18.3
3.
Pearson
28.2
3. Stevens
58.7
4. Stevens
18.3
4.
Cull
25.3
4. Cull
56.7
5. Baer
13.2
5.
Baer
21.0
5. Kennedy
50.7
6. Foran
9.9
6.
Foran
17.7
6. Phillips
44.4
7. CuU
9.6
7.
Powell
16.7
7. Powell
42.1
8. Powell
9.0
8.
Phillips
10.2
8. Foran
38.6
9. Levine
5.6
9.
Kennedy
5.5
9. Baer
39.1
VII
Cases Tried by Jury
Percent.
Per cent,
found
Percent,
all cases
Percent,
found
all cases
guilty
guilty
1. Baer
52.0
58.3
6. CuU
25.2
65.5
2. Phillips
44.2
66.7
7. Kennedy
14.2
47.9
3. Foran
33.4
74.6
8. Levine
14.1
49.6
4. Pearson
28.8
60.1
9. Stevens
11.4
78.9
5. Powell
26.9
52.8
It is interesting to note that generally the sequence in Part IV of Table
20 is the inverse of Part II. Also, the first four who lead the "nolles"'
' It may be indicative of the character of the work required of a presiding justice
that Judges Powell, Kennedy, and Stevens were among those trying the smallest per-
centage of cases. Judge Foran, the remaining judge who presided during this period,
had fewer 1919 cases than the others.
[308]
lead the changes of "plea to guilty of lesser offense" in Part III, although
the order is shifted about, Judges Stevens and Pearson changing places
with Judges Kennedy and Phillips.
Judges Baer and Phillips lead easily in the percentage of cases tried,
and Judges Kennedy, Levine, and Stevens show the smallest number dis-
posed of by verdict of a jury. The percentage of convictions after trial
is also given, but here the basic figures become so small in some instances
that conclusions are hardly justified. The results, however, would
probably coincide with the opinion of the bar, that a jury before Judges
Kennedy or Levine is more apt to bring in a verdict favorable to the de-
fendant than before Judges Stevens or Phillips.
TABLE 21.
-SUMM.\RY OF RANKS OF EACH JUDGE IN THE SEVEN
DISPOSITION CLASSES OF TABLE 20
Original
pleas of
guilty
Total
pleas of
guilty
Changed
to plea
guilty
lesser
offense
"NoUed"
Sen-
tence
sus-
pended
Fines
only and
sentence
to work-
house
suspended
Tried
by jury
Baer
9
7
6
,5
5
9
1
CuJl
2
3
8
7
4
4
6
Foran
3
4
5
6
6
8
3
Kennedy
7
8
3
1
9
5
7
Levine
1
1
9
9
1
1
8
Pearson
8
6
2
3
3
2
4
Phillips
6
9
4
2
8
6
2
Powel
5
5
7
8
7
7
5
Stevens
4
2
1
4
2
3
9
Further comment on the characteristics of the judges is rendered un-
necessary by the figures themselves. It is sufficient to know that in so
far as the group of 1919 cases may be analyzed, there are wide variations
among the individual judges. Moreover, there are characteristics which
are not portrayable in statistics, but of which a Chief Justice would be
cognizant. Judges with a -priori theories about crime and its treatment,
judges too accommodating to the wishes of prosecuting attorneys or pro-
fessional criminal lawyers, judges with settled bias against different
classes of witnesses, judges who try cases for the newspapers, should be,
so far as possible, limited in their service on the criminal division.
It would be an unwise procedure, however, to make permanent assign-
ments to the criminal division. Experience has shown that such a
practice tends to make the judges " bloodthirsty or mushy." This is the
principal weakness in the plan of the Detroit Criminal Court. Nor
[309]
should future assignments be announced prematurely, thus encouraging
lawyers and even prosecutors to "string it along until so-and-so gets on
the bench." A Chief Justice with full power to make assignments
could not only select the best adapted material, but also break up any
such attempted Uason.
Assigned Counsel
In Cleveland assigned counsel play a large part, quantitatively, in
the administration of justice. Counsel appointed to defend an indigent
pei'son receives $10 for preparation of the case, and $10 per day in court
up to $50. A larger sum is allowed in capital cases. In 1920 assigned
counsel were paid the sum of $32,500.'
There is no fixed policy with respect to appointing counsel. At the
opening of the term, lawyers desiring such practice give their cards to
the judge. Formerly the prosecuting attorney recommended lawyers,
but under Samuel Doerfler an order was issued forbidding this practice.
As a rule, very young attorneys or incompetent older men are appointed,
because successful lawyers do not seek the business. In important
cases the judges seek to appoint abler men, and some eminent lawyers
have served on such appointments from a spirit of professional duty. In
the usual run of cases, however, the appointing of counsel is not taken
very seriously. "It doesn't make much difference," remarks one judge,
"the defendants are usually guilty anyway."
It is apparent that such appointments must to some extent become a
reward to habitues of the court-room. Among the 1919 cases, exclusive
of instances in which more than one counsel appeared, 114 were appointed
once, 31 twice, 25 three times, 14 four times, 9 five times, 7 six times, 3
seven times, 2 eight times and 1 nine times. One hundred and seventy
appointed lawyers appeared a total of 251 times, compared with 36 who
appeared a total of 189 times.
There is an impression in Cleveland that the appointed counsel usually
induces his cUent to plead guilty and pockets his modest fee for the
persuasion. This apparently is not true. Considering the 1919 group
of cases, 40.7 per cent, of all cases of appointed counsel pleaded guilty,
as compared with 41.7 per cent, of cases of privately retained attorneys.
Less than 1 per cent, of such cases pleaded guilty on the first plea, as com-
pared with 2.6 per cent, of the retained lawyers, but this may be because
the court protected such unrepresented defendants as seemed unwilling
'This may be compared with $41,072.76 allowed the prosecutor's office for salaries
in the same year. The prosecutor's office is responsible for at least six times as many
cases as the assigned counsel, in addition to handling the civil business of the county.
[310]
to plead guilty upon the arraignment . In the cases of assigned counsel
12.7 per cent, were allowed to plead guilty to a lesser offense, as com-
pared with 9.3 per cent, of the private attorneys.
TABLE 22.— CASES CLASSIFIED BY DISPOSITION AND BY COUNSEL
APPOINTED, NOT APPOINTED, OR UNKNOWN
Dispositions
All
cases
Coun-
.scl un-
known
Per
cent.
pomted
Per
cent.
Not
pomt«d
Per
cent.
Total ca.ses
2,539
754
100.0
527
100.0
1,258
100.0
Total pleas of Ruilty
1,215
474
62.8
216
41.0
525
41.7
Original plea of guilty
42S
393
52.1
2
0.4
33
2.6
Original ilea of not
guilty e langed to plea
of guilty
550
41
5.4
142
26.9
367
29.2
Original plea of not guilty
changed to plea of
guilty of misdemeanor
193
8
1.1
68
12.9
117
9.3
Other pleas
44
32
4.2
4
0.8
8
0.6
Total disposed of by trial
590
18
2.4
193
36.6
379
30.1
Guiltv of felony after
triil
293
11
1.0
118
22.4
164
13.1
Guilty of misdemeanor
after trial
74
3
0.4
18
3.4
53
4.2
Not guilty of felony after
trial
215
4
0.5
57
10.8
154
12.2
Not guilty of misde-
meanor after trial
8
S
0.6
"Nolled" on all counts
399
83
11.0
61
11.6
2.55
20.3
All others
335
179
23.8
57
10.8
99
7.9
Except in the matter of pleas of guilty, however, the retained lawyers
show much better results.' The assigned lawyers tried out 37 per
cent, of all their cases, and acquitted 29 per cent, of all tried; re-
tained counsel tried 30 per cent, of all their cases and acquitted 42
per cent, of all tried. Assigned counsel succeeded in having 11.6 per
cent, of all cases "nolled," as compared with 20.3 per cent, of re-
tained counsel. Of those sentenced for felony, assigned counsel secured
a " bench parole " for 19 per cent. ; retained counsel, for 30 per cent. Of
those sentenced for misdemeanor, assigned counsel secured suspended
sentence for 12.5 per cent., retained counsel for 14.7 per cent.; assigned
counsel secured 14.3 per cent, money fines, as compared with 44.1 per
cent, money penalties by the privately retained lawyers.
' This is purely on a quantitative basis, without determining — what, of course,
could not be ascertained — whether in fact indigent defendants are to a greater extent
than paying clients guilty defendants.
1311]
Tables 22 and 23 give the basic figures for assigned and retained
lawyers. In the first table the cases having no counsel are also given,
but they afford no comparable information, as may be seen. Defendants
who have no counsel consist chiefly in those who admit guilt or have not
been arrested.
TABLE 23.— SENTENCES CLASSIFIED BY EXECUTED AND SUSPENDED
SENTENCE AND BY COUNSEL APPOINTED AND NOT APPOINTED
Counsel appointed
Counsel not
appointed
Total
Percent,
of whole
Total
Percent,
of whole
Total cases
527
100.0
1,258
100.0
No sentence indicated
170
32.3
.507
40.3
Total sentences
357
67.7
751
59.7
Total sentences suspended
60
11.4
170
13.5
Total sentences executed
297
56.3
581
46.2
Total sentenced for felony
246
46.7
377
30.0
Total sentences suspended, felony
47
8.9
115
9.2
Total sentences executed, felony
199
37.8
262
20.8
Total sentenced for misdemeanors
111
21.0
373
29.7
Total sentences misdemeanors suspended
14
2.6
55
4.4
Total sentences misdemeanors executed
97
18.4
318
25.3
Total misdemeanors sentenced to fine only
15
2.8
165
13.1
The question of adequate representation for the indigent defendant
or litigant is of considerable importance if democratic government is to
succeed. Undoubtedly the free use of the appointing power places the
poor defendant in a much more favorable position in the Cuyahoga
Common Pleas Court than in many other courts throughout the country.
He is not, at least, compelled to sell his last article of value or deprive
his family of necessaries in order to obtain what in theory is not the sub-
ject of purchase. The service which the state provides for him, however,
is evidently inferior, and to some extent goes to crumb-gatherers. For
this service the State pays a sum large enough to retain the services of an
adequate firm of competent attorneys. The estabhshment of a Volun-
tary Defender's office is recommended, under the joint supervision of a
committee of the judges and of the Bar Association. No statute would
be necessary, the only requisite being sufficient confidence in the organiza-
tion for the courts to assign cases to it. This matter should receive the
careful consideration of the Common Pleas judges and the Bar Associa-
tion.
[312]
Bail Bonds
Owing to the recent establishment of a bail bond commissioner,' it is
unnecessary to discuss conditions which have hitherto prevailed. From
our investigation, however, it may be stated that the professional bonds-
man has practically no existence in the Common Pleas Court. Past
abuse was connected mainly with collecting forfeited bonds, the respon-
sibility for which rests chiefly on the prosecutor and not on the court.
It would be a wholesome practice, however, if the court inquired into
a prisoner's previous record before fixing bail in a felony case. The
practice of letting professional criminals out on moderate bail and with
questionable bondsmen is inviting danger to the community.^ This has
become exceptionally serious where the defendant is out on bail pending
a bill of exceptions after conviction, considered in the chapter on appeals.
The worst feature of the bail situation is not that in a few serious cases
the defendant jumps bail and his surety is not compelled to pay. Con-
siderably more demoralizing in its effects is the use of bail to secure the
defendant's hberty while his lawyer attempts to wear out the State's
case by delay. Jail cases are quite properly tried first, so that a defendant
on bail starts off with an opening wedge of delay. Under the conditions
in which the criminal law had its rise, the right to bail was of prime im-
portance, since months might elapse between arrest and convening of
the court. Under the slow-moving Cleveland system bail is still most
important because of unnecessary delays incident to it, but the defen-
dants have turned this "shield into a sword." Under a system where
the defendant in the usual case would be tried within a week after arrest
or information against him, the importance of bail would fade into a
trifle. Really to eliminate the abuse of bail, therefore, fundamental
changes must be made in the system, to insure the swift movement of
the course of justice.
One judge has called attention to a peculiar phase of the bail question
— the practice of jailing the prosecuting witness in a robbery or larceny
■ G. C, Sec. 13523-1, 13524-1, 13550-1, 13529-1. A feature of the act is that in
suits for penalties it takes away from the court all power to render a judgment less
than the full amount of the bond, except where the principal has been surrendered or
arrested.
' A typical case is that of a professional shoplifter who, on December 6, 1919, stole
two silk dresses valued at S200 from the May Company, and a Hudson seal coat valued
at $525 from the Lindner Company. She was let out on bail totaling $2,000 and
jumped it twice, the last time permanently. Suits are still pending against the bonds-
man. Her associate in the offenses was fined SS.OOinone case and "nolled" on the
other. She was represented by a tj'pical political criminal lawyer.
1313]
case in default of bail. The statute authorizes such detention of im-
portant witnesses where adequate bail cannot be furnished. In some
cases, no doubt, it is necessary to confine State's witnesses, especially
where the witnesses are indifferent or unfriendly. It is ridiculous, how-
ever, to confine the complainant in a robbery case. Cases have been
called to our attention where the complainants have been in jail for
over a month, and where a man robbed of a few dollars was imprisoned
106 days while the robber — subsequently convicted — was at liberty on
bail furnished by friends. This is "looking-glass justice." One judge
has mitigated the hardship in such cases by directing the assigiunent
commissioner to place them at the head of the trial list. The only real
cure, however, is a greater exercise of common sense on the part of the
committing magistrate.
The Clerk's Office
The Clerk of Courts, Edmund B. Haserodt,' operates the most satis-
factory office connected with the administration of criminal justice
in Cleveland. Much of the information needed by the survey was
obtained from the records in this office or with the assistance of the clerk's
courteous staff, notably John J. Busher, chief deputy in the criminal
division, and Mrs. Ehzabeth Graham, secretary to Mr. Haserodt.
The chief records kept are: (a) A docket in ledger form with a page
for each case, opened immediately on receipt of transcript from the
inferior court ;^ (b) a journal containing notes of the court's action each
day, kept chronologically; (c) daily calendars of the judges from which
the other records are made up; (d) a "conviction book," containing
ample notes on convictions by terms; (e) a record of indictments; (f) a
bail bond record. An alphabetical index is maintained referring to the
docket number of the ease, and a brief summary is kept in the original
file papers.
The most comprehensive record of a case is kept in the docket, to
which reference is usually had for information. Since this is the only
place where anything like a full history can be obtained, it is suggested
that this docket be made complete and include information not strictly
within the clerk's jurisdiction. At present only the names of appointed
counsel are entered, but the names of all counsel should appear. When-
'Mr. Haserodt's term expired August 1. Mr. Busher became bail bond com-
missioner July 26.
- This docket is of the general nature recommended for the criminal branch of
the Municipal Court, but much more extensive than is necessary for the latter.
[314]
ever the court takes any action, it is suRgcsted that the names of the
judge and the prosecutor responsible be also entered in the docket. At
present the docket ends with sentence, or other disposition, — unless
there are exceptions, — but the history might easily be extended to cover
subsequent events, such as a clear notation that the man was received
at the penitentiary, and when he was paroled therefrom. Where bail is
forfeited, a reference might be made to any .suits to collect the bail.
This, of course, would involve more work, but much time might l:»e
saved by eliminating the journal, which seems to be a useless duplication.
Some simple method should be devised for following cases in which
several defendants are involved, since the process of entering the steps
consecutively, regardless of particular defendant, tends to make the
record confusing. Also, the appearance of the docket might be much
improved by t3'pewriting the entries.
The most serious handicap to efficiency is the division of the office
between the two court buildings, thus scattering the records and causing
delay and misunderstanding. This is most clearly seen in cases of
convictions affirmed by the Court of Appeals, where weeks sometimes
pass before a mandate reaches the old court-house. This phase of the
work is more fully considered under appeals.
The Clerk of Courts is elected every two years, and it is customary
for a new clerk to discharge practically all the 'employees and engage a
new staff. Obviously, the short term and spoils system are bad for
the continuous effective administration of this office. The term should
be lengthened if the office is not made appointive and a tradition estab-
lished for retaining efficient employees. At present these employees
are not under the civil service, but Mr. Haserodt has attempted to
comply with the requirements of the civil service both in selecting em-
ployees and in the matter of payroll.
The Assignment Commissioner
Two years ago this office was created to take the management of
the list out of the prosecutor's office. Under the capable direction of
the assignment clerk, Archie J. Kennel, the office has given considerable
satisfaction to those who sponsored the change. The Common Pleas
Court has facilities for disposing of criminal cases with surprising prompt-
ness, if the practice of "passing" and continuing was properly curbed.
The office of Assignment Commissioner may be especially useful in
notifying counsel and witnesses, thus saving much of the time ordinarily
lost by waiting around the court-house for cases to be reached. Mr.
Kennel has devised records which enable him to obtain prompt informa-
[ 315 ]
tion respecting the judges or attorneys acting in a particular case, and
these records were of much assistance in the survey.
Recommendations
The following is a summary of recommendations pertaining to the
Common Pleas Court:
1. The estabhshment of a permanent executive head of the court
with a modern court organization.
2. Certain physical changes, particularly the holding of all sessions
under one roof; the keeping of all records in one place; facilities for seat-
ing spectators, and a rule forbidding any one not a lawyer or court
officer to stand while court is in session.
3. The adoption of such formalities as will add to the dignity of the
court-room, and the enforcement of due decorum by the court officers.
4. The elimination of the custom of " passing cases " except for urgent
reasons.
5. The establishment of a Voluntary Defenders' office imder the
joint supervision of the judges and the Bar Association.
6. Modification of the custom of jaihng prosecuting witnesses.
7. Greater care in allowing bail to professional and habitual criminals.
8. Certain detailed changes in methods of keeping records.
316;
CHAPTER VII
THE COURT OF APPEALS
History and Jurisdiction
THE Court of Appeals, created by constitutional amendment in
1912, inherits through the circuit courts established by the con-
stitutional amendment of 1883, which in turn succeeded the dis-
trict courts estabUshed by the constitution of 1851. These district
courts were originally established to relieve pressure on the Supreme
Court, and the present Court of Appeals still holds this position. It has
no original criminal jurisdiction, but has final appellate jurisdiction in
all matters except felony cases and cases of public or general interest.
Inasmuch as the Supreme Court cannot be required to pass on the suf-
ficiency of evidence,' except where it has original jurisdiction, and in
any case must grant leave before a petition in error may be filed,^ the
jurisdiction of the Court of Appeals, even in felony cases, is practically
final.'
Until recently the appellate procedure in misdemeanor cases in the
Mimicipal Court was first to the Common Pleas Court, thence to the
Court of Appeals. A petition in error may now be filed immediately
in the Court of Appeals, without the intermediate review by the Com-
mon Pleas Court .^ Another change which ought to expedite appealed
cases is the passage of the Boylan Bill in April, 1921, constituting Cuya-
hoga County as a separate district and forming a new district out of the
counties with which it was formerly joined.
The judges of the Court of Appeals, of which there are three for each
district, are organized with headquarters at Columbus, make their own
rules, and determine what opinions shall be published. The judges of
each district make rules to fit local needs, as, for instance, the rule
promulgated by Judges Washburn, Vickery, and IngersoU during 1921,
' G. C, Sec. 13751.
' G. C., Sec. 13756.
' There is a right of appeal to the Supreme Court where the constitutionality of a
statute is involved. G. C, Sec. 13571.
' G. C., Sec. 1579-36. See Luthringer v. State, 11 O. App. 294.
[317]
automatically advancing criminal cases for hearing.' Admirable regu-
lations are the constitutional provision requiring concurrence of all
judges of the court to reverse a judgment upon the weight of the evi-
dence,^ and the statutory provision for appeal by the State to establish
a precedent in criminal cases.^
The Court of Appeals has a monopoly in Cuyahoga County of the
dignity which is proper and necessary to a court. It has escaped the
degradation which has pursued the other courts of the county, partly
because of the nature of its business and partly because of its ample and
impressive physical appointments.
Dispatch of Business
In the dispatch of criminal business the court would probably com-
pare favorably with similar courts in other jurisdictions, although in
view of the universal delay in handling appeals this should not be cause
for satisfaction. Among all cases begun in the Common Pleas Court in
1919, 39 felony cases were taken to the Court of Appeals on error, aver-
aging seven months and ten days between the filing of the petition in
error and the decision of the Appellate Court. The court seems to dis-
pose of cases from inferior criminal courts with more speed, however,
smce 11 petitions from inferior courts entered in the Common Pleas Court
in 1919 were reviewed by the Court of Appeals in the same calendar
year as the filing of petitions in that court. Of the seven cases of Uquor
law violation heard in January, 1921, by the Municipal Court and taken
to the Court of Appeals on error, all were disposed of before April 19,
1921. That there must have been severe congestion in the handling of
civil cases, however, is evidenced by the passage of the Boylan Bill.
It remains to be seen whether this cutting down of geographic jurisdic-
tion will enable the court to expedite felony cases as well.
Results of Appealed Cases
It may be said that the Court of Appeals is hardly a factor in the
breakdown of the administration of criminal law. Of the 39 felony cases
appealed, 25 resulted in convictions affirmed, six were dismissed by the
plaintiff s-in-error or by the court, and seven were reversed or discharged-
Among all cases begun in the Common Pleas Court in 1919, less than
three-tenths of 1 per cent, moved nearer to freedom by virtue of a peti-
' The power to make such a rule is conferred in G. C, Sec. 1523.
= Constitution 1912, Article IV.
' G. C., Sec. 13764. Of course, a defendant once acquitted may not be tried again
regardless of the outcome of the State's petition.
[318]
tion in error, and of all convicted of felony after trial, only 2.4 per cent,
succeeded in this way. The chief ground for reversal was that the ver-
dict was against the weight of evidence. All the petitions in the 11 mis-
demeanor cases resulted in affirmed convictions. Of the seven cases of
liquor law violation, the Court of Appeals reversed five for error of the
police court judges. Five of these hquor cases had been tried before
Judge F. L. Stevens during his campaign against such offenders, and
four of these were reversed.
Failure of Clerk's Office to Act Promptly
The Clerk of Courts is the same for the eighth district Court of Ap-
peals as for the Common Pleas Court. This office has already been
considered in connection with the latter court. It is, however, in the
handling of proceedings on petition in error in the Court of Appeals that
the clerk's office is chief!}' defective. A comparison of the dockets of
the Court of Appeals with those of the Common Pleas Court shows that
in the 32 felony convictions affirmed there is an average spread of
twenty-four days between the date of the decision as noted in the former
record and the date as noted in the latter. In one case the spread was
eighty days and in two cases over sixty. This means that several weeks
or even months may elapse after the upper court has affirmed conviction
before the sheriff receives a capias from the clerk of the criminal branch
of the Common Pleas Court. The gap is probably due to the fact that
no successful effort has been made to overcome the physical gap be-
tween the main office of the clerk on the lake front and the criminal
branch on the square. When the Court of Appeals affirms a conviction,
the following steps occur: the baiUff of the Court of Appeals takes the
opinion to the Clerk of Courts, who makes out the mandate and journal-
izes the entry; the case is then sent from the mandate clerk to the cost
clerk, from the cost clerk to the filing clerk, and from the latter to the
clerk of the criminal division, who makes out a capias for the sheriff.
It is obvious that where so many steps and so many persons are in-
volved, delays and errors are apt to occur in conveying to the sheriff
official notice of the action of the Court of Appeals. In the case of
Rosario Spinello, No. 9211, Common Pleas Court, the mandate was lost
entirely and the defendant, whose conviction for manslaughter was
affirmed by the Court of Appeals on January 14, 1918, was not arrested
by the sheriff until a year later. Mere accident resulted in the discovery
that the convicted man was still at liberty. Spinello knew that his
conviction had been affirmed, but naturally preferred to remain at lib-
erty on bail pending action of the authorities.
(319)
Bail Bonds Pending Error
Not all defendants remain as honestly quiescent as Spinello, however.
For instance, among the 39 felony cases mentioned above, there is John
Loggio, No. 17336, who was convicted of shooting with intent to wound
on October 29, 1919; filed a petition in error, but dismissed the petition
on his own motion May 3, 1920. The Common Pleas Court noted this
action on July 22 and issued a capias, but in the meantime Loggio had fled
to parts unknown. Similarly Meyer Goldberg, No. 17448, convicted of
robbery on February 5, 1920, had his conviction affirmed January 10,
1921. The Common Pleas record shows the following : " 1-31-21 — Judg-
ment of Court of Common Pleas affirmed; 2-25-21 — Bond forfeited,
capias." Goldberg was still at large when the study was made. A
curious case is that of Wilham Allen, No. 15874, whose conviction was
set aside by the Court of Appeals, but who jumped his bail despite this
fact, probably before the upper court rendered its decision. Allen is
still at hberty, although his case would probably be "nolled" if he re-
turned. In two other cases of the same group the last entry is "capias"
issued: Anton Kabel, No. 15327, and Joseph McLaughlin, No. 15303.
It is probable, however, that these defendants were subsequently appre-
hended.
In other cases there was apparently an attempt to jump bail, judging
by the time necessary to place the defendant in custody after the capias
was authorized. In view of the fact that of the 39 cases appealed seven
were reversed and at least half of the remainder were in custody pending
the proceedings in error, this proportion of actual and attempted bail
jumping is quite large.
Other recent cases are Julius Pettianto, No. 18178, convicted of auto-
stealing, whose petition in error was dismissed November 22, 1920, for want
of preparation, such action noted by the Common Pleas Court Decem-
ber 8, 1920; bond forfeited and capias issued December 23, 1920; Harry
Cohen, No. 14746, convicted of pocketpicking May 6, 1919; conviction
affirmed December 24, 1919; noted by Common Pleas Court January 2,
1920; bond forfeited January 14, 1920. In none of the bail forfeiture
cases had any money been collected on the bail bonds at the time of this
study.
Recommendations
It is for the new Clerk of Courts to solve the problem of organizing
his office so that the clerk of the criminal division receives instant noti-
fication to issue a capias upon the action of the Court of Appeals in
affirming a conviction. So far as possible the records should be kept
in one place, and steps between the handing down of the opinion of the
[ 320 ]
upper court and the order to issue a capias should be eliminated or post-
poned. Other suggestions have been made, namely, that the defendant
must be in court when the Court of Appeals announces its decision, and
that the decision shall not be made public until a capias is in the hands of
the sheriff.
If some such procedure were adopted, it would no longer be possible
for a defendant to wait until his last chance was clearly gone and then
have ample time to put his house in order before leaving the State. It would
not, however, prevent a defendant from jumping bail before the decision
is announced, or from dehberately abusing the appeal process in order
to gain time. From the number of petitions dismissed on motion of the
plaintiff-in-error, or for lack of preparation, it is obvious that there it
such abuse. One notorious automobile thief participated in a most
atrocious double murder and paj'roll robbery while his attorney was
considering the advisability of filing a petition in error after conviction
for auto-steahng.
A step which would reduce bail jumping and abuse of appeal is the re-
fusal of bail to a defendant after conviction of a crime professional in
its nature, like auto-stealing, robbery, pocketpicking, etc. The facts
of each case must determine the discretion of the court. Here, however,
there is a legal difficulty. G. C, Sec. 13698 (lOS O. L. 18, 1919), pro-
vides as follows:
" When a person has been CO nxicted of any bailable offense * * * and
gives notice in WTiting to the trial court of his intention to file or apply for leave
to file a petition in error, such court * * * niaij, and if such person is not
confined in prison shall, suspend execution of sentence or judgment for such
fixed period as will give the accused time to prepare and file * * * a peti-
tion in error, and such suspension shall be upon condition that the accused enter
into a recognizance with sureties * * * ."i
G. C., Sec. 13700, provides in effect that a defendant already out on
bail need file no further recognizance pending proceedings in error.
Formerly the question of bail after conviction was discretionaiy with
the court in all cases. The compulsion placed upon the court where the
convicted defendant is already at hberty is a mistaken policy, and should
be removed at the next session of the legislature.
' The italics are our own.
22 [ 321
H
CHAPTER Vm
SUSPENDED SENTENCES, "NOLLES," AND PLEAS OF
GUILTY TO LESSER OFFENSE
WE have already seen that about 20 per cent, of all felony cases are
noUe-prossed in the courts, that over 8 per cent, of those indicted
are allowed to plead guilty to an offense less serious than the
indictment, and that of those convicted, about 22 per cent, receive
suspended sentences. With respect to offenses less than felonies in the
Municipal Court, about 7 per cent, are "noUed" and 42 per cent, of
those convicted receive suspended sentences. One would suppose that
in releasing defendants on such a wholesale scale the court must realize
what it is doing.
Yet Justice acting with veiled eyes is never better exemplified than
by the judge attempting to handle one of these questions.' Obviously,
the judge should be in possession of adequate information before he can
act with fairness to the defendant or the community, yet under the ex-
isting system it may be only by chance that he learns the true situation.
Let us suppose a man convicted of felony and given an indeterminate
sentence in the Ohio State Reformatory. Under Sections 13706-13715
of the code the judge may "parole" this defendant if he is a first of-
fender.^ He is importuned by the defendant's lawyers and besieged by
his relatives and friends. Evidence of previous good character is sup-
plied in quantity, and pledges of good behavior are heaped upon the
judge. To whom shall the judge turn for a disinterested recital of the
true situation?
' The process of suspending sentence and placing the defendant under surveil-
lance is known in most jurisdictions as "probation." The discussion in this chapter
extends as well to suspending workhouse sentences as to "paroling" more serious
offenders.
' " In all prosecutions * * » where the court has power to sentence * • *
and it appears that the defendant has never before been imprisoned for crime • * *
said court may suspend execution of sentence and place the defendant on proba-
tion. • * *"
Sec. 2 excludes certain crimes from the operation of this statute, and Sec. 3
gives the court power to suspend execution of sentence at any lime in jail or work-
house cases.
[322]
Police and Prosecutors not Best Advisers to the Court
Police officers who aided the prosecution, if such can be found, may
be helpful, but they know only part of the story, often have a bias, and
are not trained to the difficult task of appraising the possible results of
treatment outside of an institution. Moreover, police witnesses vary
in different cases so that the court must rely on many advisers with
many different standards of judgment and varying outlook upon life.
The only other source of information is the prosecuting attorney,
who has the advantage of being easily acces.sible and known to the judge.
Here again there is the possibility of bias against the prisoner, often
engendered by the heat of a contest, of favoritism because of friendship
for the defendant's lawyer, or because of political influence. Even if
the prosecutor is wholly impartial, as he often is, he usually knows only
those facts necessary to a conviction, and has not burdened his mind
with those "imponderables" necessary to the formation of a judgment
on the question of probation. Even the previous record of the prisoner,
sent by the Bureau of Criminal Identification to the prosecutor's office,
containing merely such bald facts as arrests and convictions, rarely
reaches the judge, and perhaps is not even known to the particular
prosecutor in charge.'
Public Clamor Followed
In the old game of "Donkey" the blindfolded player often relies
upon the cheers of the onlookers to guide him to the spot where he can
pin the animal's tail in its proper place. In like manner the judges,
deprived of the opportunity of forming their own judgment upon all the
facts, are often prone to follow the clamor of the press and public. When
the cry is "thumbs up," paroles issue in abundance, but when it is
"thumbs down," both the good and the wicked travel the same road.
When Tom L. Johnson was mayor, a humanitarianism not adequately
guided by science in the handling of offenders began which did not
reach its sentimental climax until several years ago. The Chief of
Police started to release without trial all first offenders in certain minor
crimes, becoming thereby nationally known as "Golden Rule" Kohler.
' Writing to a parole officer under date of December 20, 1920, the prosecutor'8
office says: "These two bo3's broke into a confectionery store and helped themselves
to about $112 worth of cigars and smoking materials. The court accepted a plea of
guilty to petit larceny in the case, hence their sentence to workhouse. There is no
previous record against these boys." The "two boys" mentioned were in fact two
aliases of the same criminal, whose amazingly long police record is No. 10238, printed
on page 239 of this report.
[323]
The idea spread from police to judge, from misdemeanor to felony, until,
as an editor of one of the Cleveland papers put it, "a lawyer regarded
it as a personal insult if a judge sent his client away." Under the Davis
regime this false idealism was perverted into good-fellowism, and the
damage was done. Cleveland became known as an "easy town," which
it certainly was.
Cases "Paroled" in January, 1917
In the January term of 1917, 254 men pleaded guilty or were con-
victed of felonies and 135 were paroled by the court. It should be re-
membered that these men were a selected bad lot, since by the decimating
processes of the system most of those who had anything in their favor had
escaped in the poUce court, in the grand jury room, in the prosecutor's
office, or by pleading guilty to a misdemeanor instead of the original
charge of felony. Yet over 53 per cent, of this dangerous group went
practically unpunished. For purposes of comparison, a page of the
conviction book for this January, 1917, term is reproduced, the word
"paroled" appearing in the last column where such action was taken.
Note the large number of crimes of a professional nature which were
unpunished.'
This page should be contrasted with the page reproduced from the
conviction book for September term, 1920.
In this term 257 men pleaded guilty or were convicted of felonies,
and 30 were paroled, or a little more than 11 per cent. This represents
reaction to the "crime wave" and a revolt against "good-fellowism."-
The contrast is a witness to the effect of public clamor upon the judicial
mind, since there probably was about the same proportion of confirmed
evildoers and meritorious offenders in the 1917 term as in the 1920 term.
The judge who presided during the 1917 term has declared that 80
per cent, of cases paroled never get into trouble again. Whether or not
this is true,' it does not justify paroling blindly. A too free use of parole
' "B. & L." means burglary and larceny, "P. P.," pocketpicking, "C. C. W.,"
carrying concealed weapons; "O. M. V.," operating motor vehicle without consent
of owner. The fact that this happens to be the term of any particular judge makes
no difference. The record of nearly every judge prior to 1917 would have been
similar. The trouble is not so much with any particular judge as with a sj'stem
which compels him to guess in the dark.
^ To appreciate the force of this revolt the November, 1920, votes for Republican
candidates for President and Governor should be compared.
' Detective Koestle, of the Bureau of Criminal Identification, agrees with this
estimate.
[324]
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Court, showiiis the relatively small mimbi'r
111 of Common I'leas
of paroles
certainly encourages others, if not the defendant himself, to "take a
chance" where their "pal" got off so lightly.'
It should always be remembered that the parole represents leniency
to men proved guilty and involves no question of punishing innocent men
with which it is often sentimentally confused. Every possible precaution
should, therefore, be taken to protect the public from the 20 per cent.
who admittedly get into trouble again. In a court with proper facilities
for obtaining information such a large {jercentage would not be freed to
prey upon the community.
It is not possible to study the history of each individual felon paroled
in January, 1917, but even without such a study, from the facts already
knowai to the Bureau of Criminal Identification, it is possible to indicate
the loose operation of the "bench parole." Undoubtedly there is much
more which has not got into the pohce records of Cleveland.- It should
be remembered that the "bench parole" was intended as a helping hand
for the erring and not as an additional device to facilitate the escape of
crooks. Nevertheless, owing to the absence of any responsible infor-
mant, the court has to some extent unintentionally established another
loophole.
Of those paroled in January term, 1917, at least eight were then known
to the police of Cleveland as having been arrested for or competed of
serious offenses, five having " done time " before, and one having sentence
previouslj' suspended. Two of these men actually had cases pending
in the Municipal Court at about the same time. One of them, Frank
Nolan, was given a suspended sentence under an alias in the lower court
just before he was paroled on the more serious charge in the Common
Pleas Court. Of these eight men, four have not been arrested in
Cleveland since the charge on which they were paroled. The others
have since had criminal records, including one notorious robber who
finally landed in the penitentiary, and one professional pickpocket who
still plies his trade in Cleveland with occasional interruptions by the
police.
' One of the judges of the new Detroit court tells of three successive larcenies
by different messengers of the Western Union, the first two receiving probation and
the third offender being punished severely to stop what seemed to be the beginning
of an epidemic.
' Not only are many arrests not recorded, especially for minor offenses, but many
offenses are committed for which no arrests are made. The late Judge Foran called
attention to the fallacy of using the police record only to determine whether the
defendant is a "first offender." He may have been a continuous offender for years
and have always escaped arrest.
[3251
Fifteen others of those paroled have since been known to the police,
five of them being returned to the reformatory or penitentiary as parole
violators — three for robbery, one for forgery, and one for violation of
the automobile law. Of the nine remaining, one was killed while com-
mitting a burglary in Cleveland a few months after his parole, six have
been arrested in Cleveland for robbery, burglary and larceny, auto-
steahng, and violating the automobile law; two have been arrested in
other cities for larceny, and one has been located in San Quentin State
Prison, where he is serving sentence for bank robbery.
Paroling in the Dark
Admitting that to parole or not to parole is a question often involving
the most difficult judgments, and that a low percentage of errors is
represented by eight men already known to the police and at least 19
men who continued careers of crime thereafter out of a total of 135, it is
a safe assumption that few of these men would have escaped with parole
if the judge had been suppUed with a thorough, impartial report in each
case. The number of professional or hardened criminals is always a
low percentage of the total who get into serious trouble, and such men
can usually be "spotted" by the time they get before the Common Pleas
Court on serious charges, provided the responsibility for investigating
them is placed in one agency and there is no question of ability or integrity.
It is no answer to the urgent need for such an agency to assume that
the matter of the "bench parole" is a question of the ability and con-
scientiousness of the particular judges. It is true that some judges are
more lenient than others, and some are susceptible to persuasion, espe-
cially if applied by politicians' or newspapers,^ but the fundamental trouble
remains. Avoidable mistakes will always be made when judges are
asked to decide in the dark.
The story is told of an ex-judge, then president of the Bar Association,
who began a hue and cry about the leniency of the courts. Upon being
shown by the county examiner his own record of "parohng" while judge,
' A weak judge heeds a politician not because he desires to do so, but because
he sees no escape. If such a judge were armed with a carefully prepared report on
the defendant, he could successfully meet such importunities in an unworthy case.
' A former reporter relates the following story about a judge who is no longer
on the bench: During a recess in the trial of a misdemeanor case, the reporters bet
that they could make the judge sentence the defendant although the court had
seemed inclined to favor him. A reporter then remarked to the judge, "You are
not going to let that bad egg go, are you, Judge?" Sentence was promptly pro-
nounced.
[326]
he promptly subsided. The late Judge Foran personally related that he
recently " paroled " an embezzler upon many representations of good char-
acter made to him. A week later the parole officer brought in a record of
conviction for stealing 20 barrels of whisky many years before, and only
then the judge awoke to the fact that he had been this man's counsel at
the former trial! In the Plain Dealer, April 7, 1921, is published a letter
by Judge Cull to the County Council of the American Legion in which
the judge writes of a veteran who pleaded guilty to perjury, " * * *
nevertheless, after having sentenced him, some questions arise in my
mind, and I know of no place to turn to to secure a friendly interest in the
prisoner unless it is from your organization." On March 11, 1918, one
Andrew Kebort pleaded guilty to the charge of robberj', and for some
reason was not sentenced. About a year later an Assignment Commis-
sioner was appointed and he began to press for disposition of ripe cases.
Purely for the purpose of completing the record, apparently, the presid-
ing judge' caused an entry to be made on June 9, 1919, .sentencing Kebort
to the Reformatory and suspending the sentence.- In the meantime,
on August 31, 1918, Kebort had been convicted and sentenced to the
workhouse for petit larceny, and on July 16, 1919, after stealing an auto
and robbing three people, he shot and killed one man and wounded two
others while resisting arrest.
An ex-Municipal Court judge states that one of his colleagues, a
man of unquestioned integrity, suspended sentence in the cases of cer-
tain gamblers because he had no information that they ran a notorious
place. It was the former judge's opinion that a prominent city official
wanted to "get something" on this judge, and so he was led into the
trap of releasing well-known offenders.^ A former judge states that
during his term on the criminal bench July 14 was heralded as "Emanci-
pation Day" because the cases of 75 negro prostitutes had been con-
tinued to that day. He was advised to suspend their sentences, and if
they were brought in again to send them to the workhouse. This he
did, but when they came in again, many under assumed names, it was
almost impossible to identify them.
' The original trial judge was no longer on the Common Pleas bench.
- The political lawyer who defended Kebort is reported to have "blamed" the
resurrection of this case upon the establishment of the Assignment Commissioner's
office.
' This same man observes that while on the bench he felt like the baby Emperor
of China, wondering who would poison him next — the police, detectives, or prosecu-
tors.
[ 327 1
"Nolling" Cases
What is true of the "bench parole" and suspended sentences is
equally true of the judge attempting to pass on the prosecutor's motion
to "nolle" a case. Owing to the judges' inabihty to act intelhgently
on such motions, they have become largely a matter of form only, the
judge accepting the prosecutor's statement of the facts. In the rush of
the day's business it is nearly impossible for the judge to go fully into any
case before granting the motion nolle prosequi.
Many cases are "nolled" because the defendant is already in the
penitentiary, or has been convicted or acquitted on another indictment
growing out of the same act, or because there is a patent defect in the
indictment. It is easy in such cases for the prosecutor to convince the
judge. In other cases, however, the prosecutor is presumably exercising
his judgment on the merits, and this often results in the function of
judge and jury being quietly exercised by an assistant prosecutor. Since
these motions are usually made orally, and no court record of the reason
is made, the lack of opportunity for judicial curiosity furnishes an easy
mode of escape in many cases.
At least once in the official life-time of every prosecutor it is necessary
to "clean house," viz., to clear the docket of hundreds of cases which
have been accumulating for years but which, for one reason or another,
should be "nolled." These include old cases in which the defendant
has never been apprehended, or bail has been forfeited, or there have
been sentences or acquittals on other charges growing out of the same
deed. This clean-up takes the form of a "blanket nolle," presented on
motion to the presiding judge of the criminal division. In February,
1920, such a motion, containing over 400 cases, was presented to Judge
Kennedy. The utter futihty of a judge's attempting to pass judgment
on the merits of so many cases at one time is obvious.'
The motion 7ialle prosequi is another example of the decay of an
institution which flourished successfully under the rural conditions of its
origin, but which threatens to become a menace in a great modern city.
Where the few criminal cases furnish diversion for the town, where the
prosecutor is a marked man among his fellow-citizens, where interest in
the crime and the criminals Ughtens the harvest and shortens the winter
evenings, there can be little abuse of the motion nolle prosequi. Such
checks are lost, however, in the rush and roar of a great city, especially
'No detailed analysis of the cases in the above " blanket nolle "is here made
because that is properly a part of the study of the prosecutor's office. The point
made here is the helplessness of the judge.
[328]
the typical American metropolis, with its mounting crime rate, its lack
of a tradition of disinterested public service, and the insidious ramifica-
tions of political influence.
If the motion is retained, it should be made a real motion, so that
the independent discretion of the judge is one with that of the prosecutor.
Here, as in the case of the parole, the judge must be able to rely upon an
impartial and thorough investigation.
Recommendations
Before proceeding to a consideration of the agency which should
advise the court, a number of preliminary suggestions which seem essen-
tial may be made.
1. Preliminary Suggestions
The motion to "nolle" should be in wiiting, and should specify the
reasons for the refusal to prosecute.
No "bench parole" or "nolle" should be granted until ample notice
that the court contemplates such action is —
(1) Delivered to the complaining witnesses.
(2) Delivered to the police officers in charge of the case.
It should also be in the discretion of the court to direct that notices
of motions to "nolle" be posted publicly in the court-house. This will
protect the court and prosecutor against being compelled to act on an
ex parte presentation by friends of the accused. An exception to the
rule should be made in the case of \aolations of ordinances, non-criminal
in nature, and perhaps of trivial misdemeanors.
The "blanket nolle" should be absolutely limited to cases involving no
exercise of judgment, as most of the cases in such motion are at present,
viz., old cases in which bail is forfeited, defendants not apprehended, or
pre\'iously sentenced or acquitted for the same act. Before the motion
is allowed, copies should be delivered to the Bureau of Criminal Identi-
fication for information and advice, and to the press for publication.'
The agency upon which the court should rely in disposing of criminal
cases should be an adequate Probation Department, under a single head,
appointed by the Common Pleas Court, organized to handle the criminal
business before all the courts in city and county, exclusive of juvenile
cases. A Probation Department should exercise a double function,
' John A. Cline, ex-prosecutor of Cuyahoga County, reports that when in office
he gave a list of cases in "blanket nolle" to the press two weeks before the motion
was made, with notice that he would "nolle" unless someone appeared to object.
This should be made a rule of court, but the publication should be after, not before,
the motion is made.
[329]
namely, to follow up cases placed in its custody, and to advise the court
as to disposition after conviction, or upon a motion to "nolle." The
first function is not here considered because it belongs more properly
under a discussion of the general treatment of offenders, but the latter
is vital to the present question.
2. An Adequate Probation Department
The disqualifications of the pohce and prosecutor's office as the court's
reliance have already been discussed.' What is needed is a department
which makes a business of studying offenders as human beings, which
will make use of the excellent records kept by the Bureau of Criminal
Identification, but round out these records as to offenses, and supplement
them with the many considerations which never appear on a court docket.
Such probation as there is in Cleveland^ — if what there is may be
dignified by the name — is another proof of the rapid growth of the city
and the apathy of its citizens toward the human aspects of government.
One would have to travel far to find a great center which is guilty of such
gross neglect. Three men and three women probation officers, forced
to labor without clerks or stenographers, is the sum of what has been
provided, and that grudgingly. These six are attached to the Municipal
Court, none to the Common Pleas Court.' Paroling defendants to
relatives, detectives, clerks, and even stenographers in the prosecutor's
office^ has made a joke of probation, but the Common Pleas Court has
had no other agency afforded it. Mrs. Antoinette Callaghan and her
two assistants in the Municipal Court understand their task and work
hard over the women probationers, but theirs is an impossible problem.
The men's Probation Department has apparently never been taken
seriously by the city. Until James Metlicka came into office there was
not, he says, even a system for recording payments, the checks being
jumbled into a drawer or carried around in some one's pocket.
These feeble beginnings of probation should not be made the basis
of judgment on the institution. A totally new conception of probation
' Page 323, this chapter.
' Exclusive of the Juvenile Court.
' There is also one volunteer officer from the Woman's Protective Association.
* The Central Municipal Court in Boston, serving a population much smaller
than that of Cleveland, has 26 probation officers, 15 clerks, a medical director, and
an assistant director. In addition there are 19 probation officers attached to the
district courts of the city, and nine probation officers to the Superior (County) Court.
There are also many trained volunteer workers from social agencies working in con-
junction with all the courts.
[330)
must be grasped, and a professional staff, adequate in numbers and per-
sonnel, established. Salaries should be commensurate with the impor-
tance of the office, and no man is too big for head of the staff.' Above all,
the department must be kept out of pohtics.
S. A Central Bureau of Information
The Probation Department should establish as part of its work a
Central Bureau of Information respecting persons charged with crime,
containing the court records of offenders, together with all essential
data relating to family, environment, physical and mental condition,
etc. Such a record would aid the department in its treatment of offend-
ers, and put it in a position to advise the court fully before disposition
is made. In addition, valuable statistics would be collected to warn
the people of Cleveland in time to forestall another breakdown.
The idea of such a Central Bureau has recently been gaining ground
in Cleveland. The so-called "Daj' Bill," enacted into law this spring
(G. C, Sections 13523, 13524, 13529, 13550), establishing the office of Bond
Commissioner, imposes on the new oflBce the consolidation of criminal
records to be made up and transmitted by the Municipal and County
Clerks. The educational value of this legislative beginning is consider-
able, and it should not be difficult, now, to transfer this duty, together
with other collateral responsibiUties, to the Probation Department when
established. At a meeting of the Cleveland Bar Association May 7,
1921, the establishment of an advisory board of criminal prevention was
recommended, to aid in the meting out of sentences, discharges, and
paroles. Although the concrete measure suggested may not be the one
best adapted to accomplish the purpose sought, this resolution places the
Bar Association on record as recognizing a great need.
A probation staff, adequate for the needs of Cleveland, would mean
a new expense, but whether an additional expense or not would depend
on the economy effected in other much less essential branches of the
government. Even if every cent appropriated meant additional cost,
the expense is one which a civilized community cannot shirk. No man
can compute what has been the cost to Cleveland of the failure to pro-
vide means for salvaging the redeemable portion of its erring citizens
and of blindly unleashing on the community its worst enemies to pillage,
terrorize, and murder. Even less calculable is the insidious effect upon
the moral tone of the community.
' Until a few months ago the head of the probation work in Detroit waa Edwin
Denbj', now Secretarj- of the Navy.
[ 3.31 ]
»
CHAPTER IX
MOTIONS FOR NEW TRIAL
Frequency
EVEN after a case has gone through the trial stage and the jury has
returned a verdict of guilty, there are still chances of escape for
the defendant. Not only is there possibility of "parole" and ap-
peal, but also a likelihood that the trial judge himself may grant a new
deal by setting aside the verdict. In the group of Common Pleas cases
begun in 1919 there were 292 original convictions for felony before
known judges, 95 motions for new trial, of which 4P were allowed by the
judges. Fourteen per cent, of all convictions were thus set aside, and 43
per cent, of all motions for new trial allowed.
Table 24 shows such motions by trial judges.
TABLE 24.— MOTIONS FOR NEW TRIAL, BY JUDGES
Judge
Total
Motions for new
Motions for new
convictions
trial refused
trial allowed
Baer
44
8
3
Cull
52
8
10»
Day
1
1
Foran
27
1
1
Henderson
2
2
Jewell
3
1
Kennedy
16
8
4
Kramer
3
1
Levine
6
o
1
Pearson
16
5
Phillips
43
9
4'
Powell
40
5
4
Stephenson
2
1
Stevens
35
4
i(y
Thomas
2
1
Total
292
53
41
' Three followed pleas of guilty.
' Two cases involving same crime.
' Four cases involving same crime.
[332]
Analysis op Results
Generally, the large percentage of new trials granted indicates poor
work by the juries, since in most instances the new trial is granted by the
trial judge because the verdict is against the weight of the evidence, and
not because of erroneous ruHngs of the judge. In such cases a new trial
is the only safeguard against rank injustice. From a study of the records
in Cleveland, however, it is apparent that in most cases there is no real
intention to grant another trial. The verdict is simply set aside in
order to effect one of the many other adjustments. Table 25 shows the
outcome of all the new trials granted in the group considered.
TABLE 25.— DISPOSITION OF 41 NEW TRIALS GRANTED IN 1919
No.
Indictment
Judge at
first trial
Judge, final
disposition
Nature of final disp>osition
1
Rape
Baer
Pearson
Pleads guilty to assault and
batterj', workhouse and
fine
2
Burglarj' and larceny
Baer
Baer
Pleads guilty to lesser of-
fense, Ohio State Reform-
atory
3
Burglary and larceny
Baer
Baer
Pleads guiltj' to lesser of-
fense, Ohio Penitentiary
4
Carrjang concealed weap-
Cull
CuU
Costs
5
ons
Murder first degree
CuU
Cull
Pleads guilty to second de-
gree murder, life sentence
6
Carrying concealed weap-
Cull
Stephenson
NoUed
7
ons
Burglarj- and larceny
Cull
Cull
"Bench parole"
8
Burglary and larceny
(brother of above)
CuU
CuU
"Bench parole"
9
Pocketpicking
Cull
Kennedy
Pleads guilty to petit lar-
ceny, 10 daj's
10
Neglect to support
Cull
Continued
11
Violating auto law
Cull
CuU
"Bench parole"
12
Burglary and larceny
CuU
CuU
"Bench parole"
13
Carrj'ing concealed weap-
ons
CuU
Cull
Decree vacated, original
sentence ordered executed
14
Burglary and larceny
Foran
Foran
Pleads guilty to petit lar-
cenj', 30 daj-s and fine,
suspended sentence
15
Grand larceny
Henderson
Pearson
Nolled
16
Abortion
JeweU
Pearson
XoUed
17
Auto-stealing
Kennedy
Kennedy
Dismissed, want of prose-
cution
18
Burglarj- and larceny
Kennedy
Cull
"Bench parole"
19
Grand larcenj-
Kennedy
Kennedy
Pleads guilty to petit lar-
ceny, SoO fine
20
Cutting to wound
Kennedy
Kennedy
Pleads guiltv to assault and
batterj', $50 fine
NoUed
21
Grand larceny
Kennedy
Kennedy
[333
TABLE 25. DISPOSITION OF 41 NEW TRIALS GRANTED IN 1919
Continued
No.
Indictment
Judge at
first trial
Judge, final
disposition
Nature of final disposition
22
Robbery
Kramer
Kramer
Pleads guilty to assault
and battery, 30 days and
fine
Nolled
23
Rape
Levine
Pearson
24
Manslaughter
Phillips
Pearson
Trial, not guilty
25
Shoot to kill
Phillips
Stevens
Nolled
26
Housebreaking and lar-
ceny
Phillips
Bemon
Nolled
27
Housebreaking and lar-
Phillips
Baer
NoUed
28
ceny
Receiving stolen prop-
erty
Powell
Powell
Nolled
29
Grand larceny
Powell
Baer
Trial, not guilty
30
Cutting to wound
Powell
Powell
Pleads guilty to assault
and battery, 30 days
31
Cutting to wound
Powell
Phillips
Pleads guilty to assault
and battery, 60 days
32
Manslaughter
Stevens
Stevens
"Bench parole"
33
Cutting to wound
Stevens
Stevens
Pleads guilty to assault
and battery, 6 months
34
Robbery
Stevens
Stevens
Pleads guilty to assault
and battery, 30 days
35
Robbery
Stevens
Stevens
Pleads guilty to assault
and battery, 30 days
36
Robbery
Stevens
Stevens
Pleads guilty to assault
and battery, 30 days
37
Robbery
Stevens
Stevens
Pleads guilty to assault
and battery, 30 days
38
Burglary and larceny
Stevens
Stevens
Pleads guilty to petit lar-
ceny, 30 days
39
Burglary and larceny
Stevens
Stevens
30 days and costs, sus-
pended sentence, returned
as parole violator
40
Pocketpicking
Stevens
Stevens
Pleads guilty to petit lar-
ceny, 30 days
41
Arson
Stevens
Powell
NoUed
Since only two cases out of 41 new trials granted actually went to
trial, it is apparent that this motion is negligible for the purpose origin-
ally intended. This is perhaps natural in view of the fact that a defen-
dant once convicted is more willing to plead guilty to a lesser oflfense than
before trial. In all, 18 such pleas were accepted. In view of the number
of convictions for "cutting to wound" set aside on this basis, it seems as
if the judges were using the new trial to accomplish "rough justice,"
since most cases of this character are the result of brawls. Some of the
defendants, however, seem particularly fortunate. In the rape case,
No. 1, the conviction was set aside on evidence which should have been
available at the trial, and the defendant was allowed to plead guilty to
[334]
assault and battery when there was no doubt as to his being Ruilty of at
least an attempt to rape. The victim was a twelve-year-old girl. Nos.
2 and 19 were hardened criminals with long records, yet the latter partic-
ularly received gentle treatment, being fined $50 and set free to continue
his career.' It need hardly be said that at least the same thorough
consideration should be given to the disposition of a case after the con-
viction has been set aside as is urged in the preceding chapter.^ It
should be said that No. 9 was a case in which the prisoner, an old offender,
aided the police materially in other cases, and the readjustment of his
case was at the request of the police.
Ten cases were "nolled" after new trial granted, and one dismissed
for want of prosecution. Generally, where a judge sets aside a conviction
because the verdict was not sustained by the evidence, and the State has
no further evidence to offer, a "nolle" is a proper disposition. At least
two of these cases, however, had the unusual feature of a new trial being
ordered after a plea of guilty. In No. 21 the defendant was sentenced
to the Ohio State Reformatory, a note in the prosecutor's office reading,
"Defendant pleads guilty to steafing a Dodge touring car, 1919 model,
of the value of $1,000." A motion for a new trial was granted four
months later, and a few weeks thereafter a motion to "nolle" the case
was allowed. In No. 16 the defendant was indicted for auto-stealing
with a count for operating a motor vehicle without the consent of the
owner. He pleaded guilty to the count on March 1, 1920, and was
sentenced to the Reformatory. On June 7 a motion for a new trial was
allowed, and on June 29, 1920, the case was dismissed "for want of
prosecution." Inquiry develops the fact that the owner of the car was
not notified of any new trial, and in April, 1921, still believed the original
' This criminal came before the court again within a few weeks on an indict-
ment for burglary and larceny. The judge granted a motion to discharge, but within
a month this man was arrested for another "job" in Elyria, and his operations were
temporarily interrupted by a sentence to the penitentiary by the Lorain County
Court.
' No. 19017 in the Common Pleas Court, a 1920 case, illustrates the slipshod
methods which damage the prestige of the court. The defendant was convicted of
incest with his fifteen-year-old sister-in-law, and the testimony was that he had
cohabited with her many times. It is reported that he had confessed his guilt to
the officers before trial. On November 5 he was sentenced to the penitentiarj-, and
later on the same day a motion for a new trial was filed. On November 12 the motion
was allowed, a plea of guilty to assault and batten,' accepted, and the defendant
sentenced to thirty days in the workhouse. The Humane Society, which had charge
of the child, was not notified of this action and learned of it only by examining the
court record.
[335]
sentence was executed. The following note by Assistant Prosecutor
Corrigan is the only explanation of record :
"This case was called for trial by Judge Kennedy by mistake of the prose-
cutor's office. The wrong witnesses were subpoenaed. I stated to the court
this fact and requested a continuance until the next day, at which time I would
be ready for trial. The request was refused and the court peremptorily dismissed
the defendant. There was no trial. No jury was impanelled."
Six defendants received a "bench parole" after new trial granted —
five from*'Judge Cull and one from Judge F. E. Stevens or by Judge
Powell for Judge Stevens. In one of Judge Cull's cases the defendant
had pleaded guilty and then was granted a "new trial." One gets the
impression in some of these cases that the judges, believing the defendants
entitled to probation, use the device of granting a new trial to get them
out of the Reformatory. Then, by a fresh plea of guilty, new sentence,
and "bench parole," the desired result is accomplished. While this
procedure in the hands of the two particular judges is not likely to be
abused, there should be a definite rule against it. The general use of
the~new trial for this purpose might easily disrupt the entire penal law
of Ohio and make the judges a target of continuous pressure and solici-
tation.
Clear Policy Recommended
It is time for the judges of the Common Pleas Court' to formulate
a clear pohcy regarding new trials. The large number indicates — (a)
poor quality of jurors; (b) weak or befogged charges by judges to the
juries; (c) rearrangements to conform to the conscience of particular
judges, but not to the law; (d) yielding to solicitation of the defendant's
lawyer or relatives. A trial is not only an e.xpense to the county, but,
as has already been seen, it is a difficult matter to bring an accused as
far as trial on the indictment. The steps in the administration of justice
need drastic curtailing and not extension by a fictitious use of a new trial.
The ends of justice will be served by confining this motion strictly within
its legitimate scope.
' On account of the state of the records, a study of motions for new trials in the
police court is extremely difficult. Moreover, such motions are relatively rare because
of the scarcity of jury trials in that court. Where a judge tries without jury, he
will not usually admit error in his own rulings, since he would not have made the
rulings unless he believed them to be correct. New trials are, however, sometimes
granted in this court by the judges, and where this is done, the considerations applic-
able to the Common Pleas Court apply with added force because of the cloudy
records. Complete deception of complainants and public may be accomplished by
the new trial in the Municipal Court.
[336]
CHAPTER X
PERJURY
Meaning of the McGannon Trial
A FTER the second trial of Judge McGannon for the murder of
A\ Harold Kagj', the air was filled with obser\-ations that a look be-
•^ -^ hind the scenes in this case would reveal the whole trouble with
Cleveland justice. This, of course, could not be so, since the trial of a
Chief Justice for second degree murder, in the glare of publicity, is not
a tjTjical case in any administration of justice. In order really to learn
about the system, it is far more helpful to watch the experienced "dip"
or "big-job" man darting in and out of the net.
Through the effective work of Special Prosecutor William L. David
in securing con\'ictions for perjury, including that of Judge McGannon,
we now know for certain that at the bottom of the second McGannon
trial lay a something older than the written history of man — false testi-
mony. Instead of secret powerful influences, we find the familiar story
of perjury induced by love, hope of gain, and fear of destitution. Never-
theless, in his exposure of wholesale perjurj' Mr. David is also reveaUng
one of the real weaknesses of the Cleveland system.
Those familiar with the administration of justice in Cleveland would
probably agree that in the trials for the murder of Harold Kagy, Cleve-
land is paying the penalty in disgrace for its apathy toward the crime
of perjury. In the second McGannon trial the court appeared helpless
and prostrate before palpable perjury.' Criticism of the presiding judge
for weak handling of the case is unavoidable. Miss May Neely, "star"
witness for the State, had made a most detailed disclosure at the first
trial, but at the second trial refused to testify, claiming privilege from
self-incrimination. The attitude of this witness made a farce of the
procedure of justice. Her answers to simple questions as to what she
observed on the night of the killing consisted largely in unresponsive
expostulations that "Judge McGannon did not kill Harold Kagj%" and
in parroting the formula, "I refuse to answer on the ground that it
would tend to either disgrace or incriminate me." Puzzled as to how
' After the trial the judge who presided is reported to have e.xpressed his opinion
to the Bar Association that perjury had been committed.
23 [ 337 ]
the reply to simple questions as to what she saw could incriminate the
witness, the judge asked her to explain to him privately the reasons for
such a position. After this private explanation the judge supported
Miss Neely whenever she refused to reply. However, he allowed the
prosecuting attorney to examine Miss Neely fully in the absence of the
jury, during which Miss Neely testified that she had told the truth at
the first trial. It is manifest that the private explanation to Judge
Powell was to the effect that the witness perjured herself at the first
trial, since no other excuse would cover a refusal to answer the questions
put to her. The situation then apparently became one where a witness
informally tells a judge that she lied in her previous testimony, but under
oath says that she told the truth. Under these circumstances a court
sensitive of its position would have known how to deal with such a wit^
ness, even if not roused to action by her attitude earlier in the case.
The fact that Judge Powell did not vindicate the dignity of the court
is typical of the general attitude toward perjury. Lawyers and judges
tell of cases in which witnesses admitted perjury, but nothing was done.
" The average witness has no respect for his oath," says a former Common
Pleas judge; "in three out of five cases, civil or criminal, the judges and
lawj'ers know some of the witnesses hed."
Laxness in Punishing Offenses Against Justice
The statistics for the Common Pleas cases begun in 1919 yield im-
pressive evidence of this callousness toward corruption of the court's
process. Out of more than 3,000 cases, only 27 were for offenses against
public justice, of which 20 were bribery and 7 perjury. This was prob-
ably an unusually large number of such cases because of the indictments
returned by the special grand jury in 1919. In view of the firm convic-
tion of the bench and bar that perjury and subornation of perjury are
common, this showing of less than 1 per cent, charged with such crimes
is significant. Even these cases were disposed of as follows:
No bill by grapd jury 3
Dismis.sed for want of prosecution 12
" NoUed " on all counts 7
Acquitted by jury 3
Pleaded guilty 1
Convicted by jury 1
Total dispositions 27
Total found or pleaded guilty 2
" Bench parole" 1
Total punished 1
[338]
Behind the McGannon trial, therefore, is a community which recognizes
the prevalence of crimes against public justice but seeks to vindicate
the law in only a handful of cases in a year for such offenses and allows
all but one offender to escape.'
Recommendations
The attitude of the courts and public toward this kind of offense is
not induced wholly by indifference, however. The perjurj' statute, G.
C, Sec. 12842, provides as a penalty imprisonment in the penitentiary
"not less than one year nor more than ten years." Undoubtedly the
severity of this statute is a partial explanation of the paralysis of its
enforcement.
The statutes relating to the giving and obtaining of false testimony
should be amended in the penalty clause so that a judge could impo.se a
severe fine or a workhouse sentence. Following tliis, an active campaign
against perjury in civil and criminal actions would upset the old tradition
and replace it with a wholesome respect for an oath. One judge has
suggested a special prosecutor to handle perjurj^ complaints alone. The
vigor and success of Special Prosecutor David has opened the way for
the new tradition. The campaign should not stop with the witnesses,
however, but should reach beyond to the lawyers respoiLsible for their
offense. In this respect the Cleveland Bar Association has an impera-
tive duty and opportunity. In the last analysis, however, the judges
cannot delegate their responsibility to campaigns and prosecutors.
Alert and strong judges, jealous of the sanctity of their court, constitute
the only lasting insurance against the practice of perjury.
' The drugged state of the public conscience is indicated by Petition No. 188262,
filed by one of those indicted in the McGannon perjury investigation against Judge
McGannon for balance due for services "in influencing Mary Xeely to change her
attitude in her testimony in a law-suit wherein he was charged with murder. * * * "
An attempt was made to withdraw this petition upon the indictment of the petitioner
for the crime set out in his own petition.
339]
CHAPTER XI
JURIES
General Dissatisfaction
THE service performed by juries does not lend itself to appraisal
by the statistical method. Without knowing the facts in each
case one is not able to conclude whether an acquittal, disagree-
ment, conviction, or verdict was or was not justified. Even if the facts
are known, it might well be that reasonable men differ in the inferences
to be drawn from such facts. Since it is both impossible and undesirable
to retry cases in this survey, one is forced to rely upon opinion evidence
as to the quality of service rendered by jurors in Cuyahoga County.
The testimony of judges and lawyers is almost unanimous on the
point of dissatisfaction with juries. "I have held court here two months
and have never seen a business man on one of my juries," an out-of-town
judge is quoted as saying after serving an assignment to Cuyahoga
County. "Jurors recruited from the caverns of Ah Baba in the desert,"
remarked the oldest judge on the bench, with the hearty approbation
of a large audience of lawyers.
We have already observed the large percentage of convictions set
aside principally because of the poor work of juries. Although no new
trial may be granted for error in acquitting a defendant, we may assume
that the average jury errs much more on the side of leniency than sev-
erity. The community has probably suffered considerably because of
this tendency, in view of the fact that acquittals have increased 600 per
cent, since 1914. Juries are blamed for the large number of disagree-
ments during the January, 1921, term of the Common Pleas Court.
Upon receiving a surprising verdict of acquittal the judge who presided
at the trial is quoted as observing to the jury that "it is apparently now
lawful to attack a man with an axe, provided the blunt side only is used."
History
In judging the operation of the jury system, its history in Cuyahoga
County should be considered. There is no doubt that opportunities
for corruption and actual dishonesty have greatly decreased in recent
[340]
years. Lawyers tell the story of a long fight between counsel for the
great public service corporations and the personal injury attorneys, in
which the jury system was debauched by campaigns for the allegiance
of enough jurors to insure victory at the ensuing trials. In those days
the jury commissioners made up lists of jurors from names submitted
by various persons so that it was a relatively easy matter for an influential
corporation or a tort lawyer in large practice to secure picked men on
the jury lists. Then in some mysterious manner these names were
drawn from the wheel. In the ten-year period from 1905 to 1915, out
of a total of 11,126 names placed in the jury wheel, 386 names appeared
a total of 2,317 times, or an average of six times each. In the course of
the ten years 5,489 names were drawn from the wheel and 388 names
were drawn 1,923 times, or nearly 40 per cent, of the total drawn. "It
is entirely safe to say, however, that if the drawings had been left to
chance, as the law intends, it would have been impossible to have drawn
out so many repeaters."*
The Present System
During the past few years the system has been changed so that many
of the glaring defects have been obviated. Under the present method,
when the court instructs the jury commissioners to secure a certain
number of jurors' names to be placed in the wheel, the commissioners
make a rough estimate of the number necessary to call in order to qualify
the number requested. The commissioners then roughly divide the
total which they must call into the number of electors, and use the quo-
tient as a key number. Thus, if the presiding judge requests 3,500 names
for a term, the jury commissioners estimate that it would take 10,000
names to qualify this number, and dividing 10,000 into the total number
of electors they secure, for example, the key number 20.^ The commis-
sioners then take every twentieth name upon the poUing list, and send
out a form letter to each name and address checked, asking the addressee
to report for examination upon a certain date. Next occurs the first
examination of prospective jurors by both commissioners, which proceeds
until at least 3,500 names are accepted. The list of those accepted is
then certified to the clerk of courts and the list is spread on the journal
of the court. The clerk copies the list on slips of paper, and in the
• The Municipal Bulletin, January, 1916, pages 3 to 6.
' Rule 23 (b) requires that the court designate a key number, but owing to the
necessity of securing names from each ward in proportion to its population, the com-
missioners have adopted their own method of securing a key number.
1341]
presence of the jury commissioners the slips are placed in the wheel,
the wheel locked, and the key given to the presiding judge, from whom
the clerk must get it each time a jury is required to be drawn. Formerly
the custody of the key, as well as of the wheel, was given to the clerk,
but the change was made when the system was reformed a few years ago.'
The names once placed in the jury wheel become the sole source of
petit juries in both civil and criminal cases, and to some extent of grand
juries. The drawings are made by the clerk and sheriff. Every other
week the presiding judge orders that a certain number of names be
drawn from the wheel as petit jurors, and for each term the presiding
judge of the criminal division orders a number of names to be drawn
for grand jurors. Separate drawings are made for juries in first degree
murder cases, and in such cases the venire must be returned at least
fifteen days before the date set for trial. When the original is returned,
the clerk draws an alias venire without further order of the court, and
the alias is composed of two names for every one not found on the original
venire. The alias is returnable forthwith, and both original and alias are
served on the defendant and his attorney three full days before the trial.
If a jury for the first degree murder trial cannot be secured from the
original and the alias, the judge issues further orders until the jury is
complete.
In the case of petit jurors, exclusive of first degree murder cases,
service is made bj^ letter postpaid and the sheriff's return is stamped
upon a paper containing the entire hst. In murder cases and for grand
juries the sheriff actually serves summonses.
The petit jurors summoned by letter are expected to serve unless
excused by the presiding judge. Those who answer the letter and are
not excused are sent to the rooms of the jury baiUff, who assigns them
to various cases as the need arises. In the case of the grand jury, "if
the number is insufficient, the court may issue a special venire to the
sheriff and command him to summon the persons named therein and to
attend forthwith as grand jurors" (Sec. 11431). Since the original
venire drawn from the wheel for grand juries rarely produces enough
qualified men, the judge usually selects additional persons, often a major-
ity of the talesmen.
This is the system under which Cleveland juries have been recently
selected. Although the personnel of the grand jury is largely dependent
upon the presiding judge, this institution is so much a part of the prose-
' To the retiring clerk, Mr. Haserodt, much credit is due for the improved opera-
tion of the system.
[342]
cuting macliiaery that it is considered in the study of the prosecutor's
office. With respect to petit juries, improvements over the older system
are: first, substitution of chance for selection upon solicitation; second,
reduction of length of service from a term to two weeks, thus reducing
the hardship on individual citizens and the opportunities for corruption;
third, unlocking the door to the room in which the drawings take place.
Weaknesses
The fundamental weakness in the present jury system is inherent
in all attempts to make trial by jury work in a great modern city. Per-
sonal service by the sheriff or his deputies upon thousands of jurors
during the course of the year is impracticable and expensive, and
compelling attendance by mailed summonses is difficult. Indeed, the
late Judge Foran, in his report on the selection of jurors dated February
28, 1921, doubts whether the present method is a proper compliance
with G. C, Sec. 11297-1, providing for substituted service by mail,
even granting the validity and effectiveness of that statute.' The sug-
gestion that the number of jurors be cut down by extending the term
of service for the individual juror again increases the difficulty of secur-
ing fit men who can sacrifice so much time from commercial and indus-
trial pursuits. Even with only two weeks to serve, the numl^er of people
who are excused by the jury commissioners and the court is dispropor-
tionately large.
Another weakness of the system is that there still remains some
small margin of discretion in the selection of jurors which is vested in a
minor official; namely, the jury bailiff. When a jury is called for, the
jurj- baihff selects a group from among the idle jurors in his room and
sends them down.- Xo matter how honest a jury bailiff may be, this
situation will create suspicions which tend to undermine respect for
justice. Lawyers complain that in trying against a pubUc service cor-
poration, for instance, they sometimes find a disproportionate number
of its employees on the jury, and, vice versa, in trying against some of
the ablest tort lawyers, they find a surprisingly large number of jurors
' Judge Foran aptly quotes "Henry IV":
"Glendower: 'I can call spirits from the
vasty deep.'
"Hotspur: 'Why, so can I, or so can any
man: — but w-ill they come when
you do call for them?' "
' Rule 23 (9) of the Common Pleas Court directs the jurj- bailiff to assign jurors
in the order in which they are drawn, but apparently practical difficulties have forced
the breakdown of this rule.
[343 1
of the same nationality as the foreign plaintiff. Whether such sus-
picions are founded upon mere coincidence, or exist only in imagination,
the remedy is simple. The names of all jurors waiting to be called
should be placed in a jury wheel in the assignment room or in some
other public place, and, as new juries are called for, should be drawn
from the wheel in the presence of attorneys for all the parties. Some
jurors might thus serve more continually than others, but this objection
is outweighed by the fact that a feeling of absolute fairness would be
created.
The jiu-y commissioners are commanded by G. C, Sec. 11423, to
"select such number of judicious and discreet persons, having the
qualifications of electors of such county, as the court may direct," and
further that "no person shall be selected who shall not, in the judg-
ment of such conamissioners, be competent in every respect to serve as
a juror." It will thus be seen that, except for certain statutory exemp-
tions, the commissioners are unlimited except as to electors, and in
Ohio there is not even a literacy test for electors. To the commission-
ers falls the task of weeding out of the electors great numbers of foreign-
speaking citizens, besides ignorant and shiftless native whites and
blacks. Even if the commissioners were well-paid officers and men of
large ability, which they are not, the task could scarcely be performed
with thoroughness.' Hitherto the office of commissioner has been a
political trinket, yielding only $300 per year. The Common Pleas
judges made a wise change this spring by appointing as commissioners
the two assignment commissioners, Virgil A. Dustin and Archie J.
Kennel, both able men. This step should be productive of some im-
provement.
First Examination of Jurors
The failure of the jury system, however, has a deeper cause than
any schematic defect. In Cleveland, as in many other large cities,
most citizens of means or intelligence avoid service. This avoidance
has become traditional, so that it is a kind of mild disgrace for a so-
called "respectable citizen" to allow himself to be caught for jury ser-
vice— like being swindled, for instance. Table 26 shows the results of
the letters and preliminary examination by the jury commissioners for
' In Boston the preliminarj' examination is made by tlie police in a house-to-
house canvass. Since in Massachusetts naturahzed citizens must be able to read
English, the police need only eliminate the morally and physically unfit. Although
a policeman is hardly an ideal judge of a juror's qualifications, he has only his own
precinct to canvass, which makes the task relatively easier.
[344]
the Januarj' term, 1921. For purpose of comparison, Wards 11 and 14,
largely of shifting white, foreign, and negro population, and the recog-
nized prosperous suburbs of Cleveland Heights, Lakewood, East Cleve-
land, and Shaker Heights are given separately. The reasons given for
the failure to qualify on this examination are those recorded by the
commissioners, although some rearrangement has been necessarj' in
order to assimilate kindred excuses into as few classes as possible.
Credit is due Thomas Gafney and Gibson H. Robinson, the retiring
commissioners, and WilHam H. Ence, their bailiff, for keeping such a
record. No record of the kind is available for prior terms.
TABLE 26.— REASON'S FOR FAILURE TO QUALIFY OF 6,520 PERSONS
CALLED FOR JURY SERVICE, CLASSIFIED BY TYPICAL
RESIDENTIAL SECTIONS
Reasons for failure to
qualify
Totals
Ward
11'
Ward
14 »
Cleve-
land
Heights
Lake-
wood
East
Cleve-
land
Shaker
Heights
1. Letters returned
857
48
3
7
8
9
5
2. No answer
1,826
43
27
60
71
30
11
3. Illness, etc.
565
15
8
10
26
15
4
4. Physical disability
220
4
2
5
3
2
5. Literacy and language
919
32
18
6
6. Militan,' order, con-
tributing to
16
2
1
1
7. Business
89
2
2
3
2
1
8. Home duties
457
10
8
18
27
18
6
9. Financial
7
10. Occupational
634
7
6
19
15
'4
'3
11. Age
265
7
4
7
11
5
12. Served recently
269
1
7
5
4
1
13. Away or late
285
7
1
13
17»
11
14. Deceased
33
2
15. No explanation
43
2
1
2
16. Serve later
11
'
17. By judge
16
1
18. In reformatory
1
. ,
19. In jail
1
1
20. In penitentiary
2
21. Letter from New York
attorney
1
22. Not citizen
1
23. Paroled
1
24. Too busy
1
25. Total not qualifying
6,520
181
87
151
192
97
29
26. Total qualifying"
3,968
74
58
75
128
69
5
27. Total letters sent
10,488
255
145
226
320
166
34
' Colored and shifting.
' Foreign — Poles, other Slavs, and Greeks.
' Majority were late.
1345]
It will be observed that in the four better sections, about 37 per
cent, of those who did not quahfy simply ignored the summons, — No. 2,
"no answer," — as compared with 28 per cent, for the total — including
the.se suburbs, and 26 per cent, for Wards 11 and 14. In other words,
those whose ignorance might excuse them for not responding made a
much better showing than the "substantial citizens," who knew too
much to heed the summons. It also seems that the exclusive suburbs
are much more unhealthful than the poor districts, — No. 3, "illness,
etc.," — since in those sections 12 per cent, of those who did not qualify
were excused because of illness, compared with 8.7 per cent, of the total
of Wards 11 and 14. Illness is reported proportionately almost 50 per
cent, more often in the most desirable residential districts.
In the four sul^urbs 9 per cent, of those who did not qualify reported
that they were away at the time of the summons,— No. 13, "away or
late," — or received it too late, as compared with 4.4 per cent, of the
total, and 3 per cent, in Wards 11 and 14. Since the shifting population
in the suburbs is much smaller than in the poorer sections, one may
conclude that the excess of excuses of this type represents winter vaca-
tions, business trips, or subterfuge.
No conclusion can be drawn from the increase of "home duties"
excuses — No. 8 — in the suburbs, because most of those excused for this
reason were women, and women electors were not called proportionately
from the different sections. This was due to the fact that two polling
lists were used by the commissioners — an old one before the suffrage
amendment was passed, and the new one for 1920. It is to be hoped
that women from these and kindred sections will not shirk their jury
duties as their husbands and fathers have done. Such women, on the
whole, have more leisure than any other group of citizens, and, as a
rule, they possess the qualifications of good jurors. Some judges and
lawyers already profess to see a higher grade of juries owing to the
advent of women. Others, however, feel that the women jurors who have
been serving are generally not noticeably superior to male jurors and
that their presence has brought neither harm nor benefit to the system.
It should be observed that Uteracy and language disqualifications
were practically unknown in the selected suburbs. Also, it is worth
noting that in the subui-bs only 6.2 per cent, of those not qualifying
could not be located, compared with the general average of 13.1 per
cent. "Business," No. 7, and "financial," No. 9, represent tho.se ex-
cused because their presence was vital to their business, or because
they could not afford the financial loss involved in jury service. A large
proportion of the "business" excuses were from men operating a "one-
[346]
man " business, or if in a country district, a " one-man " farm. A favorite
excuse in the rural settlements was that the notice was received "too
late," — No. 13, — reflecting the slowness of the midwinter mails in the
country, or the tendency on the part of farmers to call periodically at
the local post-office.
"Occupational," No. 10, includes chiefly those excused because em-
ployed in occupations exempted by the statute, G. C, Sec. 11444 —
public officers, clergjincn, priests, physicians, i)olice, and firemen. Most
of this group were public employees of various kinds.
It is to be noticed that only 16 were excused because "contributing
to a military order" — No. 6. Probably among those who failed to
answer were additional contributors to such orders, who held this exemp-
tion as a secondary defense in case of trouble caused by ignoring the
summons. Although the members contributing to military societies
number in all only 600,' this bizarre method of escape does much harm
to the public morale in performing jury service. In effect, it means
that influential citizens may purchase immunity from an important
civic duty at five dollars a head.
Present statutes exempting contributing members are G. C., Sec.
5195, in substance the original provision, and G. C, Sec. 11444, where
contributing members have been recently added as specific exemptions.
The section first cited also exempts such members from "labor on the
public highways," thus adding a quaint touch of the mediaeval "corvee"
to the distinction.- This exemption reveals somewhat the decay of
democracy. Originally Ohio frontier conditions required that all able-
bodied white male citizens be made part of the mihtia. Then, as con-
ditions settled, a system of volunteer companies developed. In 1857
the members of such companies were excused from jury service or ser-
vice on roads, 54 O. L. 49-50, Sec. 11. Then came the Civil War draft
laws, establishing the principle that immunity from military service
might be purchased. Shortly thereafter "contributing members" were
added to the personnel of the independent companies, and these non-
combatants^ shared in the immunities granted to the others. This anti-
' Four societies, numbering 150 members each.
' It exists, however, in rural districts of Ohio.
' The most recent statute exposes the contributing member to the possibility of
performing military dutj- within the county limits. It is doubtful whether this
remote contingency will restrain the jury slackers as a whole from continuing to
avail themselves of the exemption. The previous statute, which imposed no obliga-
tion on contributing members beyond the payment of a fee, had been held uncon-
stitutional. Hamann v. Heekin, 88 O. S. 207 (1913).
[347]
democratic exemption ought to be abolished, just as the principle was
abolished in the draft laws of the Great War.
The Second Examination of Jurors
In addition to the examination before the commissioners, a second
opportunity for jurors to escape is granted when qualified jurors are
drawn from the wheel and summoned finally for service by mail. The
TABLE 27.— RESULTS OF SECOND EXAMINATION OF JURORS, CLASSI-
FIED BY WARDS AND OTHER POLITICAL SUBDIVISIONS
Served
Ward
Total
serv-
ing
Served
regu-
larly
Post-
poned
and
served
part
time
(ex-
cused
orpost-
poned)
Total
not
serv-
ing
Ex-
cused
Post-
poned,
never
served
Not
found
No
record
1
29
20
8
1
5
1
2
1
1
2
53
43
7
3
5
3
1
1
3
40
39
1
4
4
4
29
24
4
4
2
2
5
36
30
5
5
2
2
1
6
108
92
13
21
13
6
1
1
7
37
32
5
8
2
2
3
1
8
25
18
6
12
5
4
3
9
24
19
5
10
2
4
2
'2
10
28
27
1
8
1
4
2
1
11
32
29
3
9
7
1
1
12
16
13
3
3
1
2
13
14
13
1
3
i
1
1
14
20
19
1
1
1
15
66
53
10
17
2
11
1
'3
16
50
46
4
14
10
3
1
17
23
21
2
5
3
1
1
18
37
32
5
13
6
3
2
'2
19
26
21
2
10
4
4
2
20
14
11
2
8
4
3
1
21
26
22
3
15
6
5
2
'2
22
32
27
3
2
10
4
3
1
2
23
27
25
1
5
3
2
24
51
43
8
15
7
5
'2
1
25
25
21
4
14
2
11
1
26
55
47
8
22
8
S
2
4
Districts
East Cleveland
31
25
6
7
2
5
Lakewood
29
26
3
10
4
5
i
Cleveland Heights
21
18
2
6
4
1
1
Shaker Heights
1
1
Miscellaneous
93
82
io
23
11
6
'3
'3
Not located in any
ward
96
71
23
2
46
14
20
11
1
Total
1,194
1,010
159
25
338
126
132
51
29
[348]
initiated again ignore the letter. Those who respond may present their
excuses to the presiding judge. Table 27, compiled from records in
the jury commissioners' office, shows the number excused on this second
occasion.
Table 28 is a comparison of the total letters sent out, the number
who qualified, the number drawn for service, and the number serving
TABLE 2S.— SUMMARY BY SELECTED RESIDENTIAL DISTRICTS OF
THE NUMBERS OF JURORS CALLED, QUALIFIED, AND SERVED
Total
Total
Total
Total
Total
served
Residential districts
letters
qualified
drawn
served
sent out
for service
for service
regularly
Ward 11
255
74
41
29
32
Ward 14
145
58
21
19
20
East Cleveland
166
(i9
38
25
31
Lakewood
310
118
39
26
29
Cleveland Heights
226
75
27
18
21
Shaker Heights
37
5
1
1
1
Total for city
10,448
3,968
1,532
1,010
1,194
regularly and part time. For purposes of comparison, Wards 11 and
14 and the four suburban districts are again listed separately. Of these,
Ward 14 makes the best showing, qualifying almost as many as East
Cleveland, but showing a higher per cent, serving of those actually
drawn.
A summary table of the excuses accepted by the judge is also given
(Table 29). This is not classified by wards because some cards were
misplaced while tabulating the results and they are not included.
TABLE 29.— REASONS FOR EXCUSING PERSONS FROM JURY SERVICE,
JANUARY TERM, 1921 (RECORDS FOR 65 JURORS MISSING)
Llness
40
Serv-ed recentlv
5
Physical disability
7
Away or late
11
Literacy and language
3
No explanation
18
Contributing member of mill
-
Too many jurors
38
tary society
1
End of term
6
Business
7
Miscellaneous
1
Home duties
11
Occupational
11
Total
164
Age (old or young)
5
Occupation of Jurors
No record is kept anywhere of the occupation of jurors. Through
the courtesy of the presiding judge and the jury bailiff, L. M. Jalos, a
[349]
record was kept for four weeks during April and May, at the request
of the survey. This is given in Table 30. The occupations listed are
those given by the jurors to the jury bailiff, and therefore probably
represent the most optimistic appraisal which a man may place upon
his own capacities. It means little if a man calls himself a painter,
merchant, superintendent, etc., unless more is known about his specific
occupation. An attempt has been made to assimilate kindred occupa-
tions into general classes, but the grouping probably does not meet all
requirements. If so, separate figures are given for each occupation, so
that a regrouping is comparatively easy.
TABLE 30,— THE OCCUPATIONS OF JURORS, APRIL 18-MAY 18
, 1921,
AS REPORTED BY THEM
BY GROUPS OF RELATED VOCATIONS
No.
Per
cent.
No.
Per
cent.
Class 1.
Salesman
24
Exeaitive
12
3.2
Clerk
20
Office manager
1
Telephone operator
2
Department manager
2
Agent
2
Telephone night manager
1
Secretary
1
Delivery route manager
1
Class 6.
Sales manager
2
Merchants and tradesmen
22
5.8
President
1
Merchant
5
Superintendent
4
Grocer
7
Class 2.
Butcher
2
Technical and artistic
10
2.6
Grocery store manager
1
Draftsman
1
Meat dealer
1
Electrical engineer
1
Laundryman
1
Civil engineer
3
Baker
4
Chemist
1
Barber
1
Transportation expert
]
Class 7.
3
0.8
Artist
2
Saloon-keeper
1
Designer
1
Hotel-keeper
1
Class 3.
Poolroom proprietor
1
Contractors
6
1.6
Class 8.
Teaming contractor
2
Domestic
42
11.1
Electrical contractor
1
At home
38
Building contractor
2
Nurse
4
Auto livery
1
Class 9.
Class 4.
6
1.6
Farmer
8
2.1
Insurance agent
2
Class 10.
Real estate agent
4
Service employees
20
5.3
Class 5.
Chauffeur
4
Clerical
68
17.9
Footman
1
Bookkeeper
5
Janitor
1
Stenographer
5
Gardener
3
Cashier
2
Watchman
5
Accountant
3
Guard
1
Collector
1
Cook
1
Teller
1
Porter
2
Claim agent
1
Elevator operator
1
Saleslady
1
Furnaceman
1
[350:
TABI,E 30.— THE OCCUPATIONS OF JURORS APRIL 18-MAY
18, 1921, AS
REPORTED BY THEM, BY GROUPS OF REL.VTED \ OCATIONS
—Continued
No.
Per
cent.
No.
Per
cent.
Class U.
Street-car yardman
1
Skilled worhirs
30
7.9
Railroad signal block oj)-
Painter
6
erutor
1
Carpenter
16
Telegraph lineman
1
Electrician
3
Railroad man
1
Decorato
1
Class 17.
Plumber
2
Metal workers, repairers.
Mason
1
laborers
85
22.4
Enam<ler
1
Machine hand
2
Class 12.
."^tcpl worker
4
Needleworkcrs
7
l.S
Pipefitter
1
Furrier
2
Pattern manufacturer
1
Tailor
3
Iron chipper
1
Bushclinan
2
Welder
1
Class 13.
Assembler
o
Special imrkers
16
4.2
Iron worker
3
Chairmaker
Temperer
1
Tentmaker
Cable splicer
1
Potter
Sheet-metal worker
2
Printer
Electrical worker
1
Windowmaker
Boilermaker
1
Shade finisher
Boiler-tube welder
1
Artificial limb maker
Rod-mill worker
1
Asbestos worker
Tool grinder
2
Movie operator
Coremaker
1
Cigar manufacturer
Machine operator
1
Grease maker
Car builder
1
Class 14.
Machine hand
1
Foremen
5
1.3
M older
o
Shop foreman
Solderer tinware
1
Dock foreman
Auto-body builder
1
Foreman auto works
Elevator erector
1
Bam boss
Machinist
18
Railroad track foreman
Auto mechanic
2
Class 15.
Car repairman
T
Inspectors, etc.
11
2.9
Die and toolmaker
4
Auto inspector
2
Blacksmith
1
Machinery inspector
Millwright
3
Fire inspector
Galley man, American
Street railroad inspector
Express
1
Tool inspector
Teamster
4
Car inspector
«
Stonecutter
1
Estimator
Woodworker
1
Stock-keeper
3
Toolmaker
1
Class 16.
Truck driver
4
Engineers, conductors, and
Laborers
10
allied occupations
27
7.1
Class 18.
Railroad switchman
5
Sailor
1
0.2
Street-car conductor
5
Class 19.
Engineer
5
Retired
1
0.2
Fireman
3
4
Stationary engineer
Brakeman
1
Grand total
380
100.0
[351
It may be said that the list of occupations, even allowing for some
inflation natural to man's desire for dignity, fairly represents the bulk
of Cleveland's population. This is probably true, but a system designed
to select for the difficult task of administering justice "judicious and
discreet persons, competent in every respect to serve as jurors," does
ill to produce even a cross-section of a great unassimilated industrial
population. The qualifications for a competent juror are high.
Experience shows that the best juror is a man of integrity and intelli-
gence, with some education and an unwarped outlook on life. Such
men are not usually found among the lowest or the highest walks of life.
Those who have not the ability to rise to some extent, or are embittered
by the experience of poverty, make equally bad jurors with the very
rich whose property interests tend to bias judgment. There is little
danger to the jury system from the latter group, however, because it is
rarely represented on juries, but the former presents a serious problem.
Haven of the Unemployed
The winter of 1920-21 coincided with the greatest unemployment
since 1914. It is to be assumed that in general, when a factory reduces
its force, the least competent workers are laid off first. The action of
the presiding judge of the January term, 1921, in permitting jurors to
serve an additional two weeks if they desired, and longer on permission
of the court, gives some gauge for ascertaining the number of men who
preferred $2 a day on the jury to unemployment. During that term 77
jurors elected to serve more than the regular two weeks.' The following
Ust shows the "repeaters" on petit juries in the Januarj' term, 1921 :
28 served 3 weeks each, equalling 42 juror terms.
9 served 4 weeks each, equaUing 18 juror terms.
40 served 12 weeks each, equalling 240 juror terms.
77 jurors served 300 juror terms.
The total number of jurors who actually served during this term
was 1,194, leaving a balance of 1,117 jurors who served two weeks and
less. Assuming that these jurors served full two-week terms each, we
find that 77 jurors (6.4 per cent.) served more than one-fifth of the
time, and 40 jurors (3.3 per cent.), nearly one-sixth of the total time!
A few of these repeaters may have been retired men who enjoy the
experience, but, on the whole, they consisted of men who were tiding
over a period of unemployment by attempting to perform one of the
most difficult tasks of democratic government at $2 per day.
' From a list supplied by the County Clerk's office.
[352]
Recommendations
Trial by jury is guaranteed by the Ohio constitution, and it is in-
conceivable that the people of Ohio would desire to abolish jury trial
even if an amendment could be obtained. As it is now working, how-
ever, in large cities Hke Cleveland, justice in particular cases is being
poorly administered and the dignity of the courts generally impaired.
The sj'stem will not work satisfactorilj' until the intelligent citizens of
the community assume a different attitude towards their obUgations of
citizenship. No remedy, therefore, will be effective unless the funda-
mental attitude is changed. It is a platitude, but nevertheless true,
that a democracy worth the greatest sacrifices in war is equally worth
preserving in peace. Something drastic should be done to dispel the
scorn for jurj' service which has been collecting for many years. The
most effective educational campaign might be started at once by an
imposing hst of prominent and busy citizens of Cleveland pledging them-
selves to perform jurj' service when called upon. Noblesse oblige!
Other steps to be undertaken are: First, the maintenance in oflBce
of jury commissioners who take their work with the utmost seriousness,
and not as in the past, as a part-time recreation of minor poUticians.
The appointment of the assignment clerks to the commission should
bring about a change for the better, but the court should always main-
tain close touch with the methods pursued. Real discretion exercised
by the jury commissioners in the matter of excluding jurors who have
no qualifications except indigence, and in firmly refusing to accept
excuses made for the occasion, would certainly result in improving the
personnel of the juries. Second, the rules of the court and the statutes
of the State should be so amended as to insure the validity of service
by mail, and the practice maintained in strict conformity with the law.
A few fines for contempt of court for failing to respond to mailed sum-
monses would quickly put an end to the present wholesale ignoring of
the court's call. Third, the legislature should be asked to abolish the
exemption of contributing members of mihtarj' societies. Fourth, dis-
cretion now resting in the jurj' bailiff with respect to assigning idle
jurors to cases should be eUminated and open selection by chance sub-
stituted therefor. Fifth, the adoption of the rule recommended by the
late Judge Foran providing that judges shall not excuse any citizen called
for jury duty except in case of death in his immediate family, or in case
of great emergency, where the juror is likely to sustain a serious or irrepar-
able loss if required to perform jury service.
24 [ 353 1
CHAPTER XII
SUMMARY OF RECOMMENDATIONS
Organization and System
THE criminal law in Cleveland is administered by three courts.
The Court of Appeals reviews cases for errors of law only, and for
our purposes may be dismissed from further consideration with
the statement that it performs its special duty satisfactorily and gives
rise to no particular difficulty. The Court of Common Pleas is the
great trial court, with criminal jurisdiction over felonies, that is, over the
more serious offenses. The Municipal Court on its criminal side has
jurisdiction over misdemeanors, that is, over the lesser offenses, over
violations of city ordinances, and over the preliminary hearings in felony
cases.
While a lawyer from Mars might fail to imderstand the reason for
this sort of double-decked jurisdiction, based on the more or less arbitrary
differentiation between cases in which the punishment may be imprison-
ment in the penitentiary and those in which such punishment is not law-
ful, and might wonder why an intelligent community did not marshal
and concentrate in a single court all its forces for combating the criminal
in order to eliminate the waste and loss of power caused by duplication
of effort and overlapping of functions, yet it must be remembered that
this dual situation is the result of historic development. Prior to the
growth of great industrial cities, when the population was homogeneous
and lived in rural communities, serious crimes were rare in occurrence
and the business could be attended to by the judges who went around
the circuit holding court for a term, that is, for a week or so, in the several
county-seats. To provide for a prompt determination of petty offenses
and to afford an immediate preliminary hearing in serious cases the sj^s-
tem of local courts grew up. The jurisdiction of the lower court was
expanded to keep pace with the community it served, and the pressure
of business extended the term of the higher court until it was obliged to
hold sittings through the year and became a localized court. The final
result is two courts substantially alike from any organic point of view,
operating entirely independently in the same community. This anom-
[354]
alous condition, be it understood, is not the result of evil schemings by
any persons or groups of persons: it has been produced by a series of
successive developments, each one of which seemed at the time wise and
calculated to promote the ends of justice.
These two courts embody within themselves many lessons learned
from experience, and, while they unquestionably need improvement to
conform to the changed conditions of the city's life, care must be exer-
cised in any adaptation or merger of their functions not to lose the ele-
ments of strength which they contain. Double trials on the facts, which
are the greatest curse of the double system of courts, have already been
eliminated in Cleveland — a forward step which Massachusetts, for ex-
ample, has never been able to accomplish despite repeated efforts by the
bar and judicature commissions.
The Municipal Court possesses a good form of organization. The act
which created this court and provided for a Chief Justice with power to
order and arrange the business of the court was hailed at the time of its
adoption as a great constructive improvement by the most competent
legal critics. It still affords a machinery for the efficient dispatch of
business far superior to that po-ssessed by the majority of American
courts. There is a tendency to decry this form of organization because
one Chief Justice lacked the character to utilize it to its best advantage.
This is putting the cart before the horse. The requirements for the suc-
cessful administration of justice are three : sound controlling ideas, sound
organization, and sound men. A breakdowoi proves that one of these
conditions has been violated, but it does not follow that the other two
were at fault. Any radical alteration (other than that later suggested)
of the present form of organization of the Municipal Court would be a
step backward and would throw away an accomplishment of which
Cleveland should be proud.
The Common Pleas Court, though lacking as excellent an organiza-
tion as the Municipal Court, possesses power to make its own rules and
to regulate its business. It is thus equipped to conduct its work in a
reasonably efficient manner. To vest this power in the court is such
obvious common sense that the fact would not merit comment except
that numerous courts in other jurisdictions have not been given even
this much self-government. In this particular, therefore, Cleveland is
certainly not below the average condition.
To further facilitate the prompt and orderly dispatch of business the
office of Assignment Commissioner has been estabUshed. The way has
thus been opened for the elimination of the enormous waste of time and
productive energy of attorneys, parties, and witnesses waiting for their
[355]
cases to be reached, which is a scandal of such venerable antiquity that
in'many jurisdictions it has been given up as hopeless and is regarded as
somehow a necessary adjunct to the judicial system.
To the credit of the County Clerk, the Common Pleas Court has
been practically ridden of professional bondsmen. Through a recent
statute limiting the number of bonds on which any individual may go
surety, and creating the office of Bail Bond Commissioner, this great
gain should be effectively retained in the Common Pleas Court and as
effectively extended to the cases in the Municipal Court. Thus, one of
the worst by-products of our criminal system is being eliminated in
Cleveland, although the nefarious traffic is still profitably pursued just
outside the portals of many other American courts of justice.
The power lodged in the prosecuting attorney to "nolle pros" a case,
that is, to throw a case out of court by saying "I do not wish to prose-
cute" it, is logically and necessarily a part of the authority which must
be vested in that important official. There is, however, today a wide-spread
suspicion that the power is perverted in many instances for improper
purposes. The full bench of the Massachusetts Supreme Judicial Court
has this year heard charges preferred by the Attorney General against
a county prosecuting attorney involving alleged abuses of this power.
It is notorious that the records and statistics of many American
courts are ineflBcient and inadequate, and that this unbusiness-like con-
duct is a productive cause of difficulty. This is in part true in Cleve-
land, but not as to the work of the County Clerk's office or the Bureau
of Criminal Identification, both of which deserve cordial praise for their
general excellence.
Personnel: Elections
The 12 judges of the Court of Common Pleas are nominated by direct
primaries and are elected by popular vote. Their tenure of office is only
six years. The yearly salary is $8,000.
The 10 judges of the Municipal Court are nominated by petition and
are elected by popular vote. Their tenure of office is only six years.
Their yearly salary is $7,500.'
The appraisal of the personnel of the bench is so intimately bound up
with the difficult question of whether judges can properly be selected by
popular vote that it has been given extensive consideration in preced-
ing chapters; but it may here be noted that many of the weaknesses
inherent in this method have been attacked in Cleveland and that some
progress has been made toward minimizing their dangerous effect.
> The salary of the Chief Justice is $8,000.
[356]
All the judges are elected on a non-partisan ballot and non-partisan
elections have, in fact, been secured to a very real extent. Despite the
traditional ingratitude of democracy, Cleveland has done tolerably well
in keeping her judges on the bench either by reelecting or by promoting
them. Of the nine judges elected to the Common Pleas bench since
1912, six were Municipal Court judges; only two Municipal Court judges
have failed as candidates for the higher bench. In the Municipal Court
only one judge has been defeated for reelection. In Common Pleas
elections all the judges were reelected in 1916 and 1920, but in other years
the record has been almost the reverse.
When one considers the broad outlines of the situation in Cleveland
and reahzes that the necessary fundamentals for a splendid adminis-
tration of justice were largely at hand, that by virtue of superior organi-
zation and technique her courts were in a position to render conspicuous
service to the commimity through prompt, efficient, and vigorous en-
forcement of the laws, and that her past record for carrying through large
judicial reforms gave promise of a continuing progressive development,
it comes as a rude shock and a bitter disappointment to find that in
actual operation during the past years this system has been grossly
abused and the opportunities wasted almost beyond recall. Because
inherently it had such fine possibilities, the actual breakdown of Cleve-
land's administration of the criminal law is a tragedy.
The Defects and Evils in the Present System
Disrespect for Law
It has already been stated that of the fundamental factors requisite
for a decent administration of justice the underlying and basic element
is a sound tradition of respect for law. The most perfect court system
could not function long unless it were supported and sustained by good
citizenship.
There are distressing signs that Cleveland has been in the throes of
reaction and that from the pinnacle of a highly developed sense of civic
responsibility she has fallen not merely to the general level, but into
depths of apathy and indifference far below. Concrete proof of such
an indictment cannot, in the nature of things, be easily afforded except
as its truth is recognized and admitted by leading citizens of Cleveland
themselves. But to the outsider there are certain objective manifesta-
tions which indicate that a deteriorating influence has been at work.
The public plays a direct part in the administration of justice at elec-
tions, by jury service, and through the facihties it grants to the courts,
1357]
and exercises an indkect, but no less important, influence through an
enlightened public opinion which recognizes and sustains what is good
and vigorously condemns what is wrong.
When civic pride was strong, Cleveland built her County Court
House and City Hall, which afford dignified and adequate accommoda-
tions for certain of her courts. Since then the needs of the courts have
been given little heed. The Common Pleas Court is forced to work dis-
jointedly and wastefully in two separate buildings, and two of its court-
rooms are hardly suitable. The criminal sessions of the Municipal
Court are carried on under conditions which are a disgrace.
The jury system, despite its improvement since 1915, remains a con-
stant and most dangerous source of weakness in the judicial system.
This is not essentially due to faulty technique in calling or selecting the
jurors, but is due to the plain fact that the citizens avoid service in a
wholesale manner unheard of in most jurisdictions. It is hard to be-
lieve, but it is nevertheless a fact that in Cleveland a citizen may buy
immunity from jury service for a nominal sum by contributing to a
military organization. For such a condition no condemnation is too
severe. The State of Ohio should take to heart the lesson taught by the
selective service acts in the Great War that the responsibilities of citizen-
ship in a democracy are not matters for barter and sale.
The giving of false testimony under oath seems to be rife in an un-
paralleled degree. While the blame for wide-spread perjury attaches
in first instance to the pubUc's officials for their failure to cope with it,
the final responsibility for this condition which makes a mockery of the
processes of law must be laid at the door of a community which produces
so many persons willing to violate their oath and which, after it has be-
come fully aware of the situation, goes on about its other business indif-
ferent and unconcerned, tolerating the fact that of 27 persons charged
in one year with this and kindred crimes, only one was brought to
punishment. • Through the centuries the finger of scorn has been
pointed at Nero fiddling while Rome burned, but what shall be said of a
commimity which, engaged in private gain, allows the spirit of perjury
to stalk unrestrained through its halls of justice?
' Since this sentence was wTitten, concrete proof of what a community, under
proper leadership, can accomplish through the force of public opinion has been
afforded. After McGannon, former Chief Justice of the Municipal Court, was ac-
quitted on the charge of first-degree murder, he and others who were witnesses at the
trial were indicted for perjury as a result of a determined public opinion and wise Bar
Association action, and on this charge he was convicted.
[35S1
Evils in Organization
Turning to matters of organization and system, it is apparent that
Cleveland, in common with other cities, suffers from an antiquated and
cumbersome criminal procedure utterly unsuited to the modem con-
ditions of her industrial urban life. This produces maladjustment,
waste, and friction; it places enormous handicaps on society in its
effort to defend itself from criminals. Admitting that the protection
of the innocent man, unjustly accused, is the most important single
consideration, it is still true that his interests and the interests of the
community would best be served by a system of few, simple, effective
safeguards and checks which would operate equally in all cases. For
the average man, and certainly for the man without funds or friends, it
would be safer to have one trustworthy refuge, like the cat in .^sop's
fable, than to have a score of possible escapes, none of which may work.
In the fable the fox was caught, but in Cleveland, if he were a professional
fox, he would be very likely to escape.
The evil of this overcomplicated system is that it has become un-
wieldy. It gets enmeshed in its own technicalities and defeats its own
purpose. It fosters and makes possible the "professional" criminal
lawj'er, who finds it worth while to test and tamper with it until he dis-
covers the weak spot through which his client may escape. The system
may guarantee immunity for innocence, but it tends also to guarantee
immunity for crime. The prosecutor \s at a disadvantage before the
professional criminal represented by the "professional" criminal lawyer,
who can gain victory in any one of eight ways: by a police discharge
after arrest, by a "nolle pros" or discharge after preliminary hearing in
the Municipal Court, by the grand jury's failure to indict, by "nolle
pros" in the Common Pleas Court, by acquittal before the jury, by the
granting of a new trial, or by a bench parole. Outside of this curriculum,
the system engenders delay, and if enough delay can be gained, the case
may have to be dropped for lack of prosecution. Or, finally, as a last
resort, bail may be forfeited and the criminal leave for parts unknown.
In the retinue of the professional criminal lawyer is the professional
bondsman, who is a "runner" in odd moments, and who stands surety
on bail bonds aggregating a sum big enough to stagger a surety com-
pany,' but which occasions him little concern, for he feels quite confident
that suit will never be brought to enforce any of the bonds.
The judges are not responsible for this archaic procedure, but in-
' The so-called Day Bill, already referred to, limits the number of bonds, and this
very recent law, if properly enforced, should entirely change this situation.
[359 1
stead of trying to make the best of a bad situation, they have made it
worse. They cannot be held entirely accountable for failing to check
the extensive "nolle prossing" of cases by the prosecuting attorneys, be-
cause they have no independent source of information to enable them
to act with discrimination, but they are open to severe censure for their
laxness with regard to continuances and their abuse of the right to a new
trial.
In both courts the passing or continuing of cases is badly handled.
The cumulative effect of the delays thus obtained in many instances is
to make the case become so stale that no one wants to prosecute it and
no witnesses are left with which to prosecute it. Apparently, if the
defendant's lawyer can drag a case along for over sixteen weeks, the law
of averages will do the rest. As a general proposition in Cleveland,
unless the State can bring a criminal to trial within one hundred and
fifteen days his case will be "nolle prossed" or discharged on motion or
dismissed for want of prosecution.
It is shocking to the sense of a lawyer to learn how the judges grant
new trials for purposes utterly distinct from the solemn purpose for which
the right to new trial is embodied in our law. The power of the court
to grant a new trial exists to prevent gross miscarriage of justice, as
where newly discovered evidence indicates the serious possibility of
error or where the judge feels bound by the oath of his office to counter-
mand the jury's verdict as being contrary to the law or the evidence-
Instead of keeping this high prerogative of justice inviolate, it has been
prostituted apparently for the purpose of allowing individual judges
to work out their individual ideas as to the proper disposition of a case.
To grant a "new" trial when there has been no trial because the defen-
dant pleaded guilty is an abuse of judicial power. To grant a new trial
after a conviction for a definite offense, with no idea of having a new
trial, but in order to accept a plea of guilty for a lesser offense, is usur-
pation of power. This is not administering justice according to law, and
judges who thus depart from their plain duty must expect to have their
motives attacked and to encounter a diminished respect for themselves
and their office.
Similarly, the judges of the Municipal Court who allow "motions in
mitigation" and then retract or reduce sentences imposed after a finding
of guilty are rapidly undermining public confidence in the integrity of
the legal system. This "motion in mitigation" is an anomaly. After
the determination of guilt, a judge should impose sentence only after
he has decided what is just, and having made the decision, should abide
by it. A judge who sentences a man before he has made up his mind
1360]
and a judge who cannot make up his mind are both unfit for judicial
office.
It would seem that the decadence of the general public spirit had
afTpct«d the judges and sapped their spirit of courage and independence.
Perjury committed in open court has passed without challenge. A
lying witness should be stopped short and warned, and failure to heed
the warning should be sunmiarily punished by imprisonment for con-
tempt. In the case of Bar Association v. Sleeper, a recent proceeding
against an attorney in Massachusetts, the Justice of the Supreme Judi-
cial Court who heard the case became convinced that the defendant was
dehberately giving false testimony and disbarred him. This is, perhaps,
an extreme illustration but it serves to demonstrate how much a fearless
and strong judiciary can do, and on occasion ought to do, in sternly re-
pressing the ever-present menace of perjury.
The judges have been entirely too free in granting paroles, but the
real difficulty here is that Cleveland has provided the Municipal Court
with a grossly inadequate probation force and the Common Pleas Court
with no probation staff at all. A strong probation force of character
and intelligence is universally recognized as an indispensable auxiliary
department of a modern criminal court. Nearly everywhere the prin-
ciple of effective probation work is established, but Cleveland is in this
respect a decade behind other cities and is paying the penalty. In
Cleveland the fact is ignored that the criminal courts exist not only to
separate the guilty from the innocent, but to segregate out from among
the guilty those who are professional criminals in order to restrain them.
In the warfare which society must continually wage against crime, the
courts are the outposts. The criminal who breaks through or escapes
from that first line of defense cannot be apprehended until after he has
committed another crime. In the absence of the intelhgence service
which a trained probation force can supply, the courts cannot and do
not deal effectively with the habitual criminal. Cleveland has become
known to the underworld as a snug harbor and she pays dearly for this
unenviable reputation, as the fast mounting record of arrests for felonies
bears witness.
It is perhaps not surprising that a system which tolerates these abuses
should rush to the opposite extreme and deal harshly with persons who
are not criminals and are not even accused of crime. In Cleveland to-
day men who are needed as witnesses and whose only fault is poverty are
put in jail and kept in jail for weeks and months. Rxcept in most un-
usual circumstances, to deprive a man of his liberty in this way is a down-
right outrage. A bench, a bar, a community too callous to rise in pro-
1361)
test against such a practice, even if it be rare, must have forgotten or lost
in marked degree the instinctive American sense of fair play.
The business of the courts is not transacted with the dignity and de-
corum demanded by the seriousness of their work. Disorderly conduct
among witnesses and spectators that calls for sharp reprimand is not
checked. The attitude of respect and reverence is so dependent on proper
physical surroundings that inevitably there is least dignity in the
criminal sessions of the Municipal Court, which are held in unclean,
untidy, ill-arranged rooms. Here come the first offenders and immigrant
offenders and here they receive their first impression of the majesty of
the law. A justice of the Supreme Court of the United States could
not long maintain dignity in such quarters, for no nervous system can
withstand the pressure of such an enviromnent.
The clerk's office of the Municipal Court for criminal business is not
better accommodated and doubtless this fact accounts in large measure
for the inaccuracy and inadequacy of the records and for the disorderly
state of the lists.
Personnel: Politics
The average quality of the personnel of the judiciary is not as high
as is needed for a proper administration of justice. There are judges
sitting who ought not to be on the bench in Cleveland or anywhere
else. The morale, or what lawyers would call the "tone," of the bench
is weak.
While it may be true that the judges of the Common Pleas Court
are not markedly inferior to the general cahber of judges chosen else-
where by the methods of popular election now in vogue, this standard
of comparison is not high enough to afford ground for much reassurance.
In the Municipal Court, where the disintegrating forces seem first to
have had their effect, the situation is worse, and Cleveland has very
recently been forced to oust from this com't one judge who was bringing
opprobrium on the entire bench.
This condition is due partly to the comparatively short tenure of
office, but it is primarily and chiefly attributable to the method by which
the judges are selected.
Presently we must consider how far it is true that popular election
of judges is at the root of most of the trouble in Cleveland on the ground
that such a method is bound to produce inferior judges. But even assum-
ing for the moment that the people may, under proper circumstances,
select their judges wisely, it is obvious that the particular method em-
ployed in Cleveland, despite certain good features, is operating badly.
The short tenure requires the judges to campaign frequently, and as
[362]
they always have to face vigorous competition, they are forced to cam-
paign strenuously or risk retirement. Thus, the most damaging and
most dangerous features of the elective method are not only given full
play but are intensified. In the course of such electioneering the judges
are forced to speak and act in a manner inconsistent with and repugnant
to any decent conception of judicial office. With the bogey of reelection
constantly hovering in the foreground, the covert pressure e.xerted by
groups and organizations cannot be disregarded as it should be. The
political lawyer, with his control of votes, becomes a man of importance,
to be placated if possible. As his potential competitors at the next
election who are off the bench are continually striving to create and
develop their own influence in the commimity, the judge on the bench
must do likewise. He must become known, his name must be seen in
the papers, and therefore he gets an assignment to sit in the criminal
sessions of the court because criminal cases have superior news value.
The doing of justice forbids the granting or receiving of favors, but in
an open election the judge must beg for votes and, after he has lost his
private practice through years of service on the bench, he must beg hard.
It is next to impo.ssible to make an effective political speech without at
least impliedly promising something to somebody. Such conditions
destroy scruples and cause a progressive deterioration from bad to worse,
so that in Cleveland today we find judges permitting the solicitation
of campaign funds from lawj'ers who practise before them and the in-
sertion of large paid advertisements of themselves in the papers. In
one instance, a judge has assumed to administer justice in a court-room
adorned with political placards urging all those in attendance to vote
for him.
The method of selecting judges now obtaining in Cleveland puts a
premium on self-advertisement and compels the currying of favor. It
is thoroughly bad. Its immediate correction is a problem of outstand-
ing importance.
Suggestions and Recommendations
In the preceding pages an effort has been made to point out the more
important defects in Cleveland's administration of criminal justice, and
it is now in order to consider what definite, feasible, constructive things
may be done to eliminate or abate these evils. Recommendations as
to many details are contained in the main report in their appropriate
places; it is attempted here to present only those suggestions which, by
reason of their larger import, call for special attention and discussion.
There is no panacea for the existing ills nor is there any roj'al
(363 1
road to democratic self-improvement. These suggestions will not bring
about the millennium, but they are respectfully ofifered in the firm belief
that their adoption will effect substantial and genuine improvements.
As to Personnel
The needed improvement in personnel cannot be effected by lopping
off a head here and there and trusting to luck for the future. The only
permanent way to secure better judges is by devising a better method
for selecting them and keeping them after they have been selected.
It is the consensus of opinion of the bar and the unanimous conviction
of the ablest students of our legal institutions that strong and well-
qualified judges are most certainly secured when they are appointed by
the Executive and hold office for life, subject, of course, to removal for
misconduct. On the evidence, there is every reason to beUeve that
this method of selection, or a modification of it, plus long tenure, would
do more than anything else to revolutionize the present state of affairs.
If it be within the field of possibility, this is unquestionably the goal to
be striven for. On the other hand, one cannot ignore the fact that in
this matter, as in matters affecting standards of admission to practice,
the bar does not seem to possess public confidence and is unable to gain
acceptance of its views. On this point there is a gulf of misunder-
standing between laymen and lawyers that has not been bridged. The
body of the people seem determined to retain the power of selecting their
judges, and wherever that is so, the only practical step is to make the
elective system operate at its maximum possible efficiency.
Within the limits insisted on by the democratic impulse, much can
be done. Almost every conceivable method of selecting judges has been
tried in the various States and, as Dean James Parker Hall made clear
in his address before the Ohio Bar Association in 1915, each method can
point to a success in some State. As an extreme illustration, judges are
elected in Vermont by the legislature for two-year terms. Theoretically
this is as bad a plan as could be devised ; but actually in Vermont good
judges are chosen and hold office for life. Popular election of judges has
done splendidly in Wisconsin , where the tradition has grown up of steadily
reelecting the judges.
The secret in obtaining good judges is that back of the method —
whatever it is — there must be a tradition which makes the selecting
group realize that it is clear public policy to retain judges in office except
for grave mental, moral, or physical defects. This tradition has been
built up in New York, Wisconsin, Vermont, Connecticut, and elsewhere,
but seems not to exist in Cleveland (with the exception, strangely enough,
1364)
of the Probate Court), and it cannot be secured overnight. Its growth
may, however, be aided.
To that end the following principles should be incorporated into the
elective system, if that is to be retained in Cleveland. Judges in first
instance should be elected as they are now. Their first term should be
comparatively short, say, six years. At the end of that time they should
run for reelection for a longer term of, say, ten or twelve years, and for
this purpose they should run against their own record, not against a motley
group of other candidates. In other words, the voters decide a plain
issue: Shall the judge be retired or shall he be retained? The third term
should be even longer and consist of, say, twenty years. In the event
of the retirement of a judge a special election, in which he could not be
a candidate, would be held.
Such a plan will reduce very greatly the amount of electioneering and
the constant interruption of judicial work thereby occasioned. For a
judge to run against his own record is infinitely less degrading than the
scramble for votes in the open field. The question of reelection or re-
tirement will be an issue of moment and on it all the responsible agencies
in the community can focus their attention.
The tendency will clearly be to retain judges in office; the average
tenure will be substantially longer. The enormous advantage of the
longer tenure is this : There is a splendid tradition of service, the heritage
of centuries, which attaches to the judicial office and which elevates every
man who takes the oath of that oflice. This tradition, constantly at
work, plus the experience gained as the years go by, takes inferior men,
if need be, and develops them into superior judges.
The method suggested in no respect deprives the community of its
right to select its own servants and to discharge those with whom it is
dissatisfied. For that reason it is a feasible method. And, as it is cal-
culated to make the method of popular election operate at maximum
instead of mediocre efficiency, it would give results.
It is pertinent to ask whether the elective method has ever had a fair
chance to demonstrate how much it could do. For the determination of
all other questions by popular vote the tremendous organization and
work of the poUtical parties is required. Without them all voting would
be blind. In judicial elections, partisan activities have quite properly
been eliminated. This tends to leave the voters entirely in the dark, to
be enlightened only by the mirage of cheap publicity. Democracy de-
mands responsible leadership. Under the suggested plan, wise leader-
ship is the only hope for securing competent judges in first instance. It
may well be that the most effective guidance would come from the party
[365 1
heads, the bar, and perhaps representatives of other organizations acting
in concert to decide upon and support the best available candidates; but
here, as in all judicial issues, the predominating influence should come
from the bar. A hitherto disorganized bar which has not taken itself
seriously cannot wonder that the pubhc has declined to follow its
weak leadership. But there is every reason to beheve that a well-inte-
grated bar, such as is now taking shape in Cleveland, conscious of
its public obligations, would build up a record of public service by
keeping its own house in order and, by promoting the better admin-
istration of justice, would win the public respect and confidence which
underlie the acceptance of leadership. It must be remembered that
despite all the hue and cry and jokes about the profession the indi-
vidual man will, when the occasion arises, place absolute confidence in
the individual lawyer. Were this not so the legal business of the com-
munity would have been taken out of the hands of lawyers long ago.
But for leadership the bar must act collectively, and until recently the
bar has not felt the sense of its own soUdarity or the sense of its responsi-
bihty as a group.
The Cleveland Bar Association is today in many respects one of the
best associations in the United States. It should continue along the
lines of its present development. In the selection of former Judge Mc-
Gannon's successor its voice was heard and heeded. The above out-
lined plan would give it a real opportunity to throw the full weight of its
combined influence in the right direction as the issues of election and
reelection of judges come before the people.
As to Organization
In considering recommendations for improved organization it must
be remembered that system is a servant and not a master. Good men
can give good government despite the handicap of weak organization.
Bad men can produce nothing but bad government no matter how effi-
cient the system may be. In judicial affairs system exists for the same
purposes and plays exactly the same part as in business affairs. It is
designed to make work more efficient by eUminating waste effort and
friction, to afford those records which make possible unified control and
wise direction through an executive head, and to secure and compile the
facts as to the undertaking, its assets and Uabilities, which yield the
needed information for the guidance of the public.
1. In organizing itself promptly to detect and adequately to restrain
the criminal, it is plain common-sense strategy for the community to
marshall all its forces in one court. A unified court for the transaction
[366]
of all criminal business, as has been established in Detroit, is strongly
recommended because it is bound to be superior to split jurisdictions,
divided responsibilit}', and uncoordinated effort.
To accomplish this result in Cleveland a ne>.o court is not needed : all
the criminal business of the Municipal Court can be transferred to the
existing (and additional) sessions of the Common Pleas Court.
If this entire step is not deemed immediately practicable, then the
next best thing is to transfer to the Common Pleas Court cnmplete juris-
diction over felonies by taking out of the Municipal Court the prelimi-
nary stages and the preUminary hearing. This would at once eliminate
the worst duplication in the present system and would relieve the Muni-
cipal Court judges, who now have entirely too many cases to be able to
give them proper attention.
The Common Pleas Court should be given a thoroughly modern form
of organization, with complete power to make its own rules of procedure
and control its own business, under the supervision and leadership of a
permanent Chief Justice. The present plan of rotation has all the
weaknesses of the old Roman plan of two consuls alternating in power.
Definite responsibility is nowhere. The essential importance of this
form of organization will steadily be seen in connection with subsequent
recommendations.
2. Provision should at once be made for the establishment of an ade-
quate probation staff, including medical advisers, either for a unified
court or for both the present courts. The personnel should be appointed
by the Chief Justice or respective Chief Justices to hold office during
good behavior. To the probation force should be committed the task of
collecting fines, non-support orders, and the technical custody of persons
adjudged guilty who need actual supervision but not imprisonment.
The courts should have power simply to put the case on probation, or
to impose sentence, suspend sentence, and put the defendant on proba-
tion; for breach of the terms of probation the punishment is the auto-
matic execution of the original sentence. The details for the organization
of the staff should be worked out by a committee of the Bar Association
in conference with the National Association of Probation Officers.
3. The abuse in the granting of new trials and continuances cannot
wisely be stopped by depri\'ing the court of all power to order any new
trials or continuances. Such matters must always be left to the sound
discretion of the judges. But the disastrous tendency toward laxness
and carelessness in the exercise of this discretion, as well as personal
laziness, which is the product of the present loose, irresponsible organiza-
tion in the Common Pleas Court and the demoraUzation of the organi-
1367]
zation of the Municipal Court, can be speedily curbed by the determina-
tion of a Chief Justice who can get at the facts and call on an offending
judge for an explanation. A thoroughgoing system of records, such as
obtains in the New York City Magistrates' Court, will enable a Chief
Justice to detect promptly and to stop such abuse of judicial power.
And in this task the Chief Justice should have the cooperation of a Bar
Association committee on the administration of justice which can,
through a professional secretary, keep its own vigilant watch on the
situation.
4. Further safeguards should be thrown about the use of the nolle
prosequi. The motion should be filed like any other motion, and should
specify the prosecutor's reasons for declining to prosecute. This change
should be effected by rule of court, and it should always be in the courts'
further discretion whether the complaining witness should be notified
and whether there should be general notice by publication.
It would clear the prevailing atmosphere if the court should imme-
diately promulgate a rule providing (1) at least seven days' notice to the
complaining witness and the Bureau of Criminal Identification of the
filing of every such motion, and (2) definite days for the hearing and
determination in open court of such motions. This rather rigid rule
of procedure could be altered when circumstances altered.
5. The practice of jailing complaining witnesses in default of bail
should be abandoned. Such witnesses should be released on their per-
sonal recognizance except in cases where the Chief Justice or acting Chief
Justice orders otherwise for cause shown at a hearing in which the witness
is represented by counsel. As, by hypothesis, these persons are indigent
they must be afforded counsel at public expense.
6. The assigned counsel system should give way to the more modern,
more efficient, more economical "public defender " system. The greater
success attending the assignment of all cases of all accused poor persons
to one central responsible agency has been demonstrated in Los Angeles.
The legislature of California, in its last session, made provision for ex-
tending this system throughout the State. Because of the generally up-
set conditions in Cleveland it is recommended that, for the time being at
least, this work be entrusted to quasi-public, rather than public, hands.
The precedent of the New York Voluntary Defenders' Committee is
appHcable. To accomplish this improvement neither a statute nor an
appropriation is required. The work of representing poor persons in
criminal cases is so closely analogous to the work of representing poor
persons in civil cases, now undertaken by the Legal Aid Society, that
the two functions should be combined in one agency, as has been done
[368]
in New York. This one legal aid organization should be created, super-
vised, and controlled by a special committee of the Bar Association which
is the properly responsible body. Having available such an organization,
the courts could, and, if the organization merited confidence, would
assign to its attorney, in charge of its criminal work, all the cases now
entrusted to assigned counsel. In view of the general experience through-
out the country it would be surprising if a budget of S32,500 (the cost of
assigned counsel in 1920) did not enable such an organization to handle
528 cases, of which only 194 required trial, more efficiently and justly
than they are now handled. To this quasi-public defender office the
Municipal Court judges could refer cases when, in their opinion, the
defendants needed counsel for a fair trial. This office would, in co-
operation with the probation staff, be of material assistance in securing
that information which the court needs to arrive at a just sentence.
Finally, such an organization, through its constant contact with the
criminal work of the courts and through its reports, would be the sort of
guardian and watcher which is essential if the public is to be kept intel-
ligently informed of what goes on in its legal institutions.
7. The provision of law exempting citizens from jury duty for con-
tributing to military organizations should be repealed forthwith.
8. Whether or not the seemingly useless method of indictment by
grand jury should be retained is only a part of the major problem of the
reform of our whole criminal procedure. Our criminal procedure every-
where lags behind the civil. The only available safe path of progress
seems to be the step by step process of constant experimentation, revi-
sion, and adaptation. Such work calls for a Judicial Council, a perpetual
body, consisting of not less than five and not more than 15 judges
and lawyers appointed by the Chief Justices and holding office during
their pleasure. If a Judicial Council can be secured, it is of minor im-
portance whether that body has rule-making power or merely advisory
power. A Judicial Council, which is a permanent commission on judica-
ture, serves to connect up all the parts of the judicial system which,
for many reasons, it is impossible to coordinate through amalga-
mation. As it affords a clearing-house of ideas, it becomes the advisory
steering committee for the judicial business as a whole. Roughly, it is
analogous to the board of directors in a large industrial company. The
growing realization that only through some such body can our courts
be brought up to date and kept up to date is well attested by the fact that
the Massachusetts Judicature Commission in its 1921 report emphasizes
the need for a Judicial Council as its cardinal recommendation. The
conferences which are now held in Cleveland from time to time between
25 [ 369 1
representatives of the Bar Association and the judges constitute a laud-
able step in this direction.
The recommendations of a Judicial Council would be worked out in
cooperation with other agencies in the community and would be presented
to the courts, the bar, the legislature, or the public, as the case might be.
Its recommendations would have the supreme merit of being based on a
continuous study of the administration of justice. This is the converse
of the method heretofore followed in America. The community has
paid exclusive attention to its business affairs and has left its institutions
to care for themselves, to stagnate, to be outgrown, or to become archaic
as the hfe which these institutions were supposed to regulate rapidly
altered its character and complexion in every particular. Periodically,
when conditions became absolutely unbearable, a momentary attention
would be given to the matter, a wave of reform would sweep the com-
munity, changes would be made with pathetic confidence that at last
perfection had been attained, then interest would wane, the current of
our national life would sweep swiftly on, growing, altering, and develop-
ing, and in a few years the whole process would have to be repeated. If
all the recommendations herein made had the power to give Cleveland a
perfect administration of justice and were adopted tomorrow, in ten
years' time the courts would again show signs of breaking down. This
is inevitable. Law regulates life. Life is constantly in flux and it will
break down any static organization. To keep our legal institutions
abreast of the times the formation of a Judicial Council is earnestly
recommended.
9. Assuming that the Municipal Court is to retain a portion of crimi-
nal jurisdiction, then steps should be taken to recognize the fact that it is
a court of equal dignity, responsibility, and importance with the Court
of Common Pleas. It is not an "inferior" court, nor does its business
consist of "petty" cases. In its work for the prevention of crime and
the inculcation of respect for our institutions, it is the supreme court
in importance if not in rank. The judges of the Municipal Court should
be selected under the plan earlier suggested ; and they should be paid as
much as the judges of the Court of Common Pleas.
10. The city should at once furnish not merely decent but really
suitable accommodations, so that the criminal sessions and the criminal
division of the clerk's office may be housed in a manner compatible with
the dignity of their work.
The system of clerks' records should be modernized. Primarily the
ledger or docket system should be employed, and on the page assigned to
each case (entered numerically and cross-indexed alphabetically) all the
[370]
facts in the history of the case should be entered. Through the use of
standardized headings, which is easily possible because all cases follow
the same general routine, it then becomes feasible without enormous labor
to draw off and compile those general controlling facts and tables which
enable a Chief Justice actually to be an executive head and which the
public are entitled to have interpreted and reported to them through
court reports and the press. Although the detail of a clerk's office must
be left to the clerk, it is important that the process of revising should get
down to details and that all such slack practices as the stamping of both
judges' names on the docket — which is nothing more or less than a false
record — should be eliminated.
11. The elimination of the "shyster" lawyer who gets his cases
through "runners " is difficult. Of all methods that have been tried, the
work of the public defender in Los Angeles is the most efficacious and,
therefore, if a proper quasi-public defender office is established in Cleve-
land, it is reasonable to suppose that the nefarious business of the "run-
ners" maj' be curtailed to the point where it will no longer be profitable.
The " shyster " lawj'er, in so far as he transgresses the law or the ethics of
the profession by soUcitation, must be dealt with by the Bar Association.
12. This evil, as well as that of the professional bondsman, can auto-
matically be further reduced by the proper use of the summons instead
of an arrest in cases involving minor offenses and violation of city ordi-
nances.
13. The peculiar proceeding used in the Municipal Court called the
"motion in mitigation " has no place in a proper administration of justice
and should be abolished.
Civic Responsibility
A persistent effort has been made in all these pages to bring home
the fact that the tradition of respect for law and of civic pride in our legal
institutions is by far the most compelling force for justice. Tradition is
our heritage of social experience. It is the conscience of the group, and
it affects every citizen, every witness, every lawj-er, evcrj^ judge in the
community. Like conscience, it becomes dulled through scorn and
neglect.
Cleveland's traditional spirit and sense of civic responsibility must
be awakened. Brass bands will not do it, but through education and the
actual undertaking of work for the public much good may be accom-
plished. Let the leaders of the community lead. There are at least two
points where an immediate attack may be begun. If the public con-
science refuses to condone perjury, convictions will follow. Extended
[371]
perjury cannot exist without some lawyers taking some part in it. A
lawyer who knowingly permits perjury to be committed in court is a false
minister of justice and it is the duty of the Bar Association to disbar
him. Jury service must become again an accepted civic responsibility.
It might serve the purpose for the Chamber of Commerce, the Civic
League, the labor unions, and other organizations professing an interest
in public welfare to compare jointly their membership Usts with the lists
of the jury commissioners to determine how many of their members
fail to qualify for jury service and why.
No outsider can hope to do more than to try to point the way. For
all these recommendations there must be supplied by Cleveland men
those details which are always required for the successful adaptation of
general principles to particular local conditions.
Here is a definite call for immediate, practical public service. To
study, digest, and weigh these recommendations requires patient, self-
sacrificing effort, and actually to apply those which commend themselves
will require courage and persistent effort. If this task is earnestly
undertaken by the community, it may be that from the very undertaking
will begin a resurgence of the tradition of civic pride that in former years
gave Cleveland her preeminence.
;372:
PART IV
CORRECTIONAL AND PENAL
TREATMENT
BT
BURDETTE G. LEWIS
CORRECTIONAL AND PENAL
TREATMENT
CHAPTER I
PEXAL INSTITUTIONS FOR ADULTS
The Department of Public Welfare
THE Department of Public Welfare of the city of Cleveland is
divided for administrative purposes into four subdepartments —
the Division of Health, the Di\asion of Charities and Correction,
the Division of Emploj-ment, and the City Immigration Bureau. In the
Division of Health are the following bureaus, each under the control of
a chief: Communicable diseases, child hygiene, public nurses, food and
drug inspection, chief chemist, and laboratories and sanitation. The last
has two persons in charge. In the Division of Charities and Correction
are the following agencies : Bureau of Outdoor Relief, city hospital, tuber-
culosis sanatorium, city infirmary, workhouse, parole office, the boys'
home, and the girls' home.
The charter provisions give the Director of Public Welfare wide
powers. They read in part as follows:
"The Director of Public Welfare shall manage and control all charitable,
correctional, and reformatory institutions and agencies belonging to the city;
the use of all recreational faciUties of the city, including parks, playgrounds, pub-
lic gj-mnasium, public bath houses, bathing beaches, and social centers.' He
shall have charge of the inspection and supervision of all public amusements and
entertainments. He shall enforce all laws, ordinances, and regulations relative
to the preservation and promotion of the public health, the prevention and re-
striction of disease, the prevention, abatement, and suppression of nuisances,
and the sanitarj' inspection and supervision of the production, transportation,
storage, and sale of foods and food-stuffs. He shall cause a complete and ac-
curate system of vital statistics to be kept. In time of epidemic he may enforce
such quarantine and isolation regulations as are appropriate to the emergency.
He shall have the supervTsion of the free employment office. The Commissioner
of Charities and Correction shall be the deputy officer of public welfare.
'The director's power to supervise parks, etc., has been withdrawn.
[375]
"The Commissioner of the Division of Health shall be the health officer of
the city and shall, under the direction and control of the Director of Public Wel-
fare, enforce all ordinances and laws relating to health, and shall perform all
duties and have all the powers provided by general law relative to the public
health, to be exercised in municipaUties by health officers; provided that regula-
tions affecting the public health, additional to those established by general law
for the violation of which penalties are imposed, shall be enacted by the council
and enforced as provided herein.
"The Commissioner of the Division of Employment shall have charge of the
free employment office established to assist persons in securing employment.
He shall extend such information and assistance to immigrants and strangers and
perform such duties in the collection of labor statistics and information relative
to labor conditions in the city as may be required by ordinance."
A study of the organization and work of the present director's office
shows clearly that there has never been developed any machinery or plan
of work which would permit the director to exercise adequate control over
the various divisions. The department is, in fact, an example of the
failure of statutory enactment alone to effect a considerable change. It
is a paper federation of bureaus, divisions, departments, and institutions
without administrative cohesion.
The sincerity and good purpose of the director of the department are
unquestioned. He has never stood in the way of any good work; he has
accepted cheerfully aid given him. The new city hospital and the new
psychopathic hospital now under construction in his department show
clearly the director's desire to carry out the recommendations of the
Hospital and Health Survey. The changes he has directed to be made
at Warrensville City Infirmary are indicative of the same desire.
Within the Division of Charities and Correction the director exercises
some control over the workhouse because of his active interest in the
parole of prisoners. He has changed the oflBcers and appointed an ad-
ministrative board, besides making certain structural changes in the
girls' home. But his supervision over the city infirmary, the Bureau of
Outdoor Relief, and the boys' home is limited to occasional visits and to
haphazard consideration of their work. Moreover, his appointment of
advisory boards for the girls' home, for the city hospital, and for the
employment bureau has had little significance, because he has never fol-
lowed up their work. The boards were never given specific tasks and no
effort has been made to keep up their interest. He has apparently even
left the chiefs of divisions and superintendents free either to accept or
to reject his suggestions, as suited their fancy.
We do not mean to make excuses for the director's failure to meet his
1376 1
major opportunities, but it would be unjust to let him appear as a "scape-
goat" for the perfectly apparent indifference of a whole city and the im-
potence of so many of the heads of welfare agencies and societies. More-
over, the people have been willing to accept the high civic standing of the
director as a substitute for adequate appropriations and a real welfare
program for the city.
Recommendations
1. The people of Cleveland should be made to realize that the De-
partment of Public Welfare, combining, as it does, a Health Department
with a Division of Charities and Correction, offers an unusual oppor-
tunity to demonstrate a great economy in municipal service under the
supervision of a single director.
2. The Director of Public Welfare should exercise direct control
over all the work of the department in such a manner that general
policies are formulated under his supervision, and every employee of
the department feels responsible to him.
3. The director should have an assistant, or deputy director, who
should, in accordance with the charter, supervise the correctional in-
stitutions.
4. The director should have the kind of secretary who can supervise
and coordinate the work of the institutions with the employment bureau,
the Bureau of Outdoor Relief, and the parole department.
5. The director should see to it that the health commissioner co-
operates under the director's supervision with other divisions, institu-
tions, and public schools of the city, with the other hospitals in the city,
with the Western Reserve University Medical School, and with all the
social agencies upon a well-thought-out public welfare and health pro-
gram for the city, which would make the institutions diagnostic, treat-
ment, and preventive health centers.
The City Jail and Central Police Headquarters
The city jail occupies the same building as police headquarters,
Rooms 1 and 2 of the Municipal Court, and the offices of the adult pro-
bation officers. The jail is under the general jurisdiction of the Division
of Police. The entire municipal building is in a dilapidated and uncared-
for condition. Obviously, the jail has been allowed to suffer more than
other parts of the building. It is a dark, dingy place. This is on account
of the type of construction by which the limited amount of light from
the outside finds entrance only on two sides of the building. The dingj'
appearance is accentuated by rusty iron work, filthy old iron toilets, and
dirty, blackened walls. Rats and vermin live on easy terms with the
[377]
inmates of the jail. We were assured by officers in charge that a con-
tinual campaign is waged unsuccessfully against vermin, but when one
considers the method used in the fight, one must conclude that its end-
lessness is inevitable.
The jail is almost entirely devoid of equipment or furnishings, except
those supplied when the building was built. Each cell contains an iron
toilet and a plank, 20 inches wide, extending the length of the cell, which
is used for a bed. Not even a blanket is furnished the prisoners. The
stock of dishes used for feeding the prisoners consists entirely of cups.
On the second floor is a small room, about 8 by 12 by 14 feet, that has
been set aside as a "hospital" "in case one of the girls gets sick." This
"hospital ward" is outfitted with a single bed and a small wash-stand.
There is no toilet or running water or other convenience.
Near the hospital room is the "bull pen" — a bare room, about 10 by
15 feet, adjacent to the municipal court-rooms, where prisoners are de-
tained awaiting their turn before the judge. It is often necessary to put
from 30 to 50 men in this room, and at one time 80 persons were crowded
into it.
The population of the jail on Sunday, May 1, consisted of seven
women and about 50 men. These were found segregated into three
groups. All of the women were placed together in one ward, on the sides
of which were cells opening either on the ward or on an open space. None
of these cells had doors. The prisoners ranged in age from twenty to
thirty. In one ward on the first floor there were 11 men, and in another
ward on the second floor about 30. There appeared to be no grading or
segregation except according to sex and except as the cases had or had
not been disposed of by the court.
The city jail is used for the detention of prisoners charged with viola-
tions of ordinances and other minor off'enses. The period of detention
varies from ten or twelve hours to three or four days. The longer stay
happens only in cases where the municipal judge, at the hearing, "con-
tinues" the case. If a prisoner is bound over for the grand jury, he is
transferred at once to the county jail.
The prisoners are served no food at pubhc expense during the first
twenty-four hours of their commitment. If they have funds of their own,
they may purchase food at a nearby restaurant. After twenty-four
hours the city furnishes a sandwich and a cup of coffee, morning and
evening. Prisoners are allowed to use the public telephone to com-
municate with friends, family, or counsel for the arrangement of bail or
for other matters pertaining to their cases. There are no facilities in the
jail except a lavatory in the corridor.
[378]
Talking with some of the prisoners brought out stories, afterward
checked up, of the careless and indifferent manner in which prisoners are
handled in this wretched place. Two extreme cases are presented here,
not because they are typical of the way prisoners are treated, but in order
to show what may happen under the present system.
A man arrested by the Cleveland police on May 12 at 5.45 p. m., near
Euclid Beach, was taken to the central police station and held for inves-
tigation under no court charge. He was released May 19 at 6.30 p. m.
He claims he was never booked on any charge, but was told he
was suspected of having committed murders and other crimes in
Detroit and Boston. Detroit, Boston, and Toledo detectives came
to Cleveland and stated they were unable to identify him as the man
connected with the crimes. During the time the prisoner was at cen-
tral station he was confined in the jail. Bread, salt, and water were
suppUed by jail oflBcials, but the prisoner was compelled to spend his own
money to buy other food. Almost all his money was spent for food and
cigarettes for himself and others. The jail was very crowded, and he
was forced to sleep four nights on the cement floor with nothing under
him. He had no covering and no pillow. During the other nights he
slept on the board bed in the cell, without mattress, covering, or pillow.
He did not remove his clothing during the entire time he was in jail.
He was not provided with a towel. Because of his arrest the prisoner lost
a good position as chauffeur, and at the time of the investigation he was
without work and money. When released he was ill and was told to see
a doctor. The doctor found he had tonsilUtis and bronchitis in a severe
form, which the prisoner says he caught because of the manner in which
he was handled at the city jail.
The prisoner's wife stated that she was arrested at home on May 12
at 10.30 p. M., and taken to central police station, where she was held for
investigation until May 17 at 11.30 a. m. No charge was made against
her. She was told she was held for investigation in connection with her
husband, who was suspected of being connected with murders in Detroit
and Boston. During the time the woman was in jail she did not remove
her clothing; she had no towel and was compelled to sleep on a board
bench or bed without mattress, covering, or pillow. On May 16 she was
placed in the "hospital cell" on account of her weakened condition.
Here she had a bed with a mattress, a covering, and a pillow. Jail offi-
cials supplied her with bread, salt, and water, but she had to send out for
other food. One night the jail was so crowded she had to share her board
bed with another woman.
The only record to be found in the jail proper was the jailer's docket.
[379]
This contained the name of the prisoner and the charge only. Each
prisoner's name and charge are entered when the prisoner is brought in;
the name is scratched off when the prisoner is released from jail. In
the poUce office are more complete records, dealing with the facts of the
complaint, the name of the officer making the arrest, and the name and
address of the prisoner.
Recommendations
This structm^e should be abandoned, as it is whoUy inadequate from
every standpoint. Until then the following recommendations should be
followed :
1. The interior of the jail and other parts of the building should be
cleaned and kept clean.
2. Prisoners should be provided with blankets, adequate and sani-
tary cots, bedding, toilet, and bathing facilities.
3. Prisoners should be supplied wholesome food at the expense of
the city; luxuries they should be required to purchase at their own
expense, but the officer in charge should see to it that no prisoner is
required to pay exorbitant prices for any food.
4. The hospital room should have complete equipment.
5. There should be more careful segregation of prisoners.
6. An adequate record system should be installed, which would per-
mit the superior officers of the department to ascertain just how pris-
oners are treated.
The Warrensville Workhouse
The Correction Farm at Warrensville, where the workhouse, the city
infirmary, the tuberculosis hospital, and the girls' home are situated, is
about 12 miles from Cleveland. The workhouse building, a compara-
tively new, two-story structure, well lighted and ventilated, is in the
form of a square, enclosing completely a large yard which is used by the
prisoners. The institution is built on the dormitory plan, and has only
a few cells on the second floor of one section of the building. Each cell
accommodates a number of prisoners. The dormitories themselves are
well hghted and ventilated, but the dormitory plan and the form of the
structure defeat the very purpose for which such an institution is in-
tended. The prisoners are thrown together more or less indiscriminately,
except when at work, and that is seldom. This structure and the city,
infirmary represent the period when architects were intent on the details
of picture making rather than the purposes for which a building is to be
used.
[380]
In addition to the dormitoriea there are a small, poorly equipped hos-
pital, an excellent kitchen, splendid dining-rooms, a fairly good laundry,
and shops.
The superintendent is assisted by a chief clerk, a stenographer, and
about 30 officers, exclusive of night-watchmen and engineers. The in-
mates are used as assistants to the officers and in some cases arc in
charge of subdepartments. The officers are paid $60 a month, which, in
%'iew of the location of the institution, seems small.
The superintendent, C. J. Burns, is, in our opinion, wholly unfitted
for the position he occupies, and if retained, should be assigned to parts
of the work which do not call for so much training, experience, and
personality. In our judgment it is not "in him" to be a good institu-
tional superintendent, and he makes a mistake in trying to be one. It
is no di.sgrace for a man not able to do one kind of work to acknowledge
it and to undertake work he is well fitted to perform.
The census of the institution varies between 400 and 800; 480 is a
fair average. The commitments vary between 4,000 and 6,000 a year,
about 700 of whom are women. The women's section, with a capacity
of 150, had a daily average population of 52 in 1919, and during the past
year and a half has had a still smaller number of inmates. The inmates
represent all grades of offenders, from petty short-term delinquents to
pri.soners charged with serious crimes, or habitual offenders charged with
ordinan,' offenses, for which they are permitted improperly to serve in
this institution. There were at the time of the investigation about 40
Federal prisoners, few of whom were charged with serious crimes. Most
of them were violators of the prohibition law.
In order to determine the general characteristics of the male popula-
tion, the army Alpha Group Test was applied by the surveyors to one
out of every five of a considerable number of the so-called petty offenders
and to a considerable group of the so-called more serious offenders.
Contrary to expectations, the results of these tests showed a higher level
of intelligence and adaptability than was expected. In fact, the intelli-
gence level of the population compared more favorably with that of
reformatories and prisons for so-called serious offenders than is usual in
the case of workhouse inmates.
Because of the prevailing idleness and the resulting demoralization as
well as the general lack of plan and purpose which characterize the
management, discipline cannot be said to be good, although outward
appearances might convince one of the contrary. There is no general
plan under which the institution is administered. Each officer is a power
unto himself. He may place a man in a punishment cell and report the
(3811
matter to the superintendent, or he may take a man from a cell and re-
port to the superintendent afterward. No written report of any kind
is required, either as to the complaint against the prisoner or as to the
method used in punishing him. There is no organized method of getting
prisoners' complaints or officers' charges before the superintendent for
consideration, nor is there any general plan of review of the disciplinary
work of the institution. The fact that a man is assigned to a bed, that
he is known throughout the institution by the bed he occupies, and that
the officer in charge is supposed to remember the appearance of the man
and to see that he gets into the right bed is sufficient commentary upon
the administrative and disciplinary practices of this institution.
The superintendent assured us that he visits the punishment cells
daily and talks with every man and knows everything that is going on
about the institution. He stated that he was able to give the punishment
record and individual history of every man. However, when asked for
the punishment record and history of one Sloan, an inmate who had
died, the officer who had punished Sloan a short time before had to be
sent for to give from memory whatever details he could. There was no
record in the office of the alleged facts related.
During one of our visits to the institution 15 or 16 men arrived under
sentence and we observed the process of reception. The officer in charge
handed the clerk the commitments of the group of prisoners being re-
ceived in the anteroom to the bath-house. After the men had entered
the room the prisoners who thought they were "lousy" were asked to
step up, whereupon two negroes came forward. They were taken into
the bath-house, divested of their clothing, and required to stand under
the showers. Afterward new clothing was distributed to them and they
were assigned to their "beds."
All underclothing of these two men was placed in a receptacle to be
burned, and the outer clothing, after being superficially examined for l|
lice, was packed away in boxes with moth-balls. The officer in charge
said close watch was kept on the new men, and if lice were discovered,
the men were sent to the barber-shop to have their hair clipped and
"anquintin" applied. As to the presence of vermin in the dormitories,
the attitude seemed to be that, although effort was made to get rid of
them, their complete avoidance was considered practically impossible in
such an institution. The procedure outlined covers the reception of
prisoners at the workhouse, except for a rough classification which sepa-
rates Federal from other prisoners and men with long from men with
short sentences.
The hospital is in charge of a visiting physician, who comes to the
[ 382 ]
institution daily from the city infirmary. Every man in the institution
is permitted to go to the hospital whenever he wishes. It is not necessary
for him to have a permit, nor is any written record kept of such visits
except in the office of the hospital. An interne keepsa verj'good record of
the men who visit t he hospital and indicates the diagnoses by simplj' stating
the complaint: for example, "John Jones, sore throat." The record does
not specify the treatment nor the length of time under treatment unless
the man is a bed patient; then the daily chart record is depended upon
to show how long he is in bed and the other facts supposed to be recorded
on the chart.
The modern and rather expensive woodworking plant is evidence
that those who planned this institution failed to reaUze how impossible
it is to employ short-term offenders in an industry such as this, which
requires skill, previous training, and considerable speciahzed experience.
The plant is idle because men cannot be found to operate it. Before
prohibition, an occasional experienced cabinetmaker, furniture worker,
or carpenter was sent to the institution for intoxication or petty assault,
but since prohibition has come, commitments of this type have stopped.
A few men were found at work in the broom shop, which has fair
equipment, but the work is carried on in an aimless, listless manner, and
little is accomplished. Women have been taken out of the laundry and
given ironing only, because, according to the superintendent, the Federal
prisoners were found to be particularly good in the laundry', and it was
considered safer to have them here than working outside the buildings.
In view of the fact that laundry work is traditionally women's work,
this plan seems to us a very poor one.
During our survey many men were seen pretending to be busy clean-
ing dormitories and making beds. The superintendent explained that in
order to keep as many men as possible busy, one group of men cleaned
one-half of the dormitories in the morning and rested in the afternoon,
while the half which had been resting in the morning cleaned the re-
mainder in the afternoon. It was perfectly apparent that this division
of labor was not sufficient to keep the men reaUj' occupied.
Some of the men, whom the superintendent feels he can trust, are
engaged about the farm and in the dairy. The general manual labor
about the institutions situated on this tract is performed by the prisoners.
Our visit to the horse and dairy barn showed clearly that these buildings
are kept in good condition and are well supervised.
We discussed with the superintendent the possibiUty of more outside
work for prisoners, suggesting road work. We described how Major
Lewis Lawes, as superintendent of New York City Reformatory, had
[383]
taken 500 unclassified young reformatory inmates to the country, where
they had lived in a cantonment-like institution and had continued to
live and work there for four years, without walls, bars, locks, or guns.
These young men were much more difiicult to handle than Cleveland
workhouse prisoners, and yet during this time there were but 40 at-
tempts at escape a year, with a yearly average of only five successful
escapes. To this account the superintendent looked at the surveyor
incredulously and said nothing.
During a discussion of the treatment of drug addicts, the investigator
stated that in his experience manual labor in the open air was one of the
best restoratives for drug addicts. The superintendent replied that this
was utterly impossible with the addicts which came to him, as they were
so emaciated they would die if sent out to work. Pointing to an inmate
lying in bed, upon whose face the death pallor had already stolen, the
superintendent said, "Would you require this man to work with a pick
and shovel?" and seemed to think that the discussion was closed.
During the three months of January, February, and March, 1920,
there were 39 escapes, and in July, August, and September of the same
year 58, or a total of 97 for sLx months of that year. That there should be
so large a number of escapes from this institution in so short a time
is proof enough of the inability of the superintendent to manage the
institution as it should be managed.
A modern reception service should be installed, so that on arrival at
the institution every inmate should go through an adequate prescribed
routine. The record of his arrival should be entered in the proper record
books. All clothing in every case should be removed and immediately
sterilized and washed or, if necessary, burned. After a bath and an
initial physical examination, in order to discover the presence of any
disease or vermin, the prisoner should be furnished a clean institutional
uniform, including under and outer clothing, stockings, and shoes. His
finger-print identification record should then be taken and filed. The msin
should remain in quarantine at least two weeks, which is the time re-
quired for the incubation of any ordinary disease. During this time he
should be given the Army Group Test and a psychiatric examination, if
the psychological test or observation indicates this to be necessary.
He should also be interviewed by the officers responsible for school work
and other work, and a written record made of the interviews. All these
records should then be placed in the hands of the superintendent of the
institution, who as soon as possible should have a personal interview
with the man. Care should be taken to assign each man to the kind of
work he is fitted to do, and if the prisoner has not had a common school
[384]
educatiott or cannot read or write the English language, he should be
sent to school for part of the day.
A careful record should be kept of his conduct, effort, and perform-
ance during his stay through the adoption of a credit marking system,
which can be used to clear up disputes concerning his record of conduct
and performance at the end of each week.
Where so many men are received and discharged during a month, it
is advisable to have a finger-print record of ever>' man before discharge,
to be compared with the print taken after conviction and at the time
the prisoner is received at the institution. This is the system adopted in
New York to prevent men from hiring some one else to serve their terms.
A comparison of the finger-print taken immediately after conviction with
the one taken upon arrival at the institution and before discharge pre-
vents these substitutions. Under the present system it is possible for
John Jones to make a bargain with Henry Smith to permit Jones to
answer for Henrj' Smith when Smith's name is called to be discharged.
This swapping of identities may account for the rumors, for which there
was no time for investigation, that persons sentenced to the workhouse
for considerable periods are seen upon the streets of Cleveland in a very
short time. At any rate, the adoption of this identification comparison
ended such a scandal in New York.
When the clearing-house and probation investigations are completed,
copies of all the reports should be sent with his commitment papers, so
that the institutional authorities may have all information as soon as the
man arrives. This avoids duplicating investigations and checks up in-
accuracies of statement which the prisoner is frequently willing to make
alter all the reports have been checked up and his confidence has been won.
Recommendations
The summary of our recommendations for this institution is:
1. A man of strong personality, thoroughly equipped for this type
of correctional work, should be employed as superintendent.
2. The inmate population should be studied to determine the apti-
tudes and the mental and physical ability of the men, and these should
be utilized as a basis for determining what work is to be found for the
prisoners to perform.
3. The Director of Public Welfare should employ a specially equipped
person to establish a system of employment for inmates of the workhouse.
4. The dormitories should be changed into single rooms, so as to put
an end to the present mingling of prisoners.
5. The city Superintendent of Schools should be requested to work
26 [ 385 1
a out system of education for the workhouse and to supply teachers to
carry on the work.
6. Modern reception, classification, credit marking, and administra-
tive systems should be established.
7. A modern system of identification should be made the basis of
administration and parole work.
The County Jail
The county jail, under the jurisdiction of the sheriff of Cuyahoga
County, is an old-fashioned, insanitary, and inadequate institution. It
has 136 cells — 120 for men and 16 for women. Of the men's cells, 115 are
in use, and one padded cell is used occasionally, since refractorj'
prisoners are placed in a strait-jacket in a side room provided for the
purpose. The cells in the men's section are in a block fom- tiers high, and
instead of being placed back to back, according to the conventional
Auburn plan, have gallery fronts facing the outside walls of the building.
These walls are fitted with doors facing the outside windows. The backs
of the cells face a center court about 12 feet wide. This center court is
roofed over by stone flagging, which sei-ves as a flooring for the second
tier of cells and forms a continuous gallery for the same tier. There are
four large openings guarded by iron rails to this flooring, from which
guards can view the prisoners exercising in the court. The openings also
help to ventilate the lower tier of cells and the lower court, which is
known as the "bull pen." Prisoners mingle indiscriminately in the "bull
pen" during exercise periods, except in the case of murderers or danger-
ous agitators.
Each cell is about seven feet wide and eight feet long, except on one
side, which is about 10 feet wide. The front of the cell is constructed of
latticed iron bars. Each cell contains two cots covered with clean bed-
ding, an old black insanitary toilet, and running water.
The so-called women's prison is in a section separate and apart from
the men's prison. The cells are arranged in a block four tiers high, with
four cells to the tier, all of which face an open court.
Each prisoner is provided one towel and a piece of soap. On the day
of om- inspection some of these towels were dirty. The toilets were very
dirty and corroded. No toilet paper was provided. The cells were not
clean, and the corridors were indeed very dirty. The deputy guard in
charge of the prison stated that the prisoners were bathed once a week.
There were four shower-baths in a fair condition in a separate room of the jj
building. IH
From a sanitary standpoint the most serious condition in the prison
1386]
is the antiquated plumbing, which cannot be made adequate or safe
except by installing a new system. Feeding prisoners in their cells is
another drawback, as it permits prisoners to hide food in their cells,
which attracts all sorts of vermin.
The kitchen is in the basement. The kitchen equipment is provided
by the sheriff, who is allowed 45 cents a day to pay for food and cover the
cost of the food service. The kitchen equipment consists of one medium-
sized kitchen range, one copper boiler in fair condition, one copper urn
in good condition, and one small ice-box.
The food served on the day of inspection was clean, of good quality,
and well served when one considers that the prison was never con-
structed to permit the easy transfer of food from the kitchen in the base-
ment to the various cells. The diet, however, is monotonous. Breakfast
consists of bread and cofifee ; supper, of coffee and bread. There is some
variation in the dinner; for example, on Fridays there are pea soup with
potatoes, bread, and coffee; on Thursdays boiled corned beef and cab-
bage, bread, and coffee; on Wednesdays and Saturdays, mutton or pork,
beans, bread, and coffee; on Tuesdaj's, pork or mutton, bread, and
coffee; and on Mondays boiled beef or pork, bread, and coffee.
The padded cell is only occasionally resorted to, as more refractory
prisoners are sent to the psychopathic ward of the city hospital, or occa-
sionally to the State Hospital for the Insane, which is not far away. One
room was impro\'ised to serve as a hospital, and a doctor is supposed to
visit the prisoners daily. Serious ca,ses are sent to other hospitals.
Visitors are admitted to the cell block and guarding is restricted to
drawing a screen at the end of the "buU pen" to separate visitors from
prisoners. This is a dangerous practice, and should be ended at once, as
wide experience has proved conclusivelj- that such arrangements are no
safeguard against the smuggling in of all sorts of contraband articles,
such as knives, razors, pistols, saws, and drugs. The only safe method of
receiving \isitors in such institutions is to have separate quarters in a
section of the building where one officer can watch a single prisoner and
his or her visitors continuously during the whole period of the visit. If
there is more than one prisoner to watch at a time, the guard is helpless.
In the jail proper there are 24 employees, five of whom are on night
duty. These officers go to court with cases. The deputy in charge ex-
plained that on an average four of the officers were out of the prison daily,
taking cases to the penitentiary at Columbus and to other institutions.
The officers receive a monthly salary without board or maintenance..
Until the prison has a better trained and higher tjT)e of guard or other-
employee, it wiU continue to do unsatisfactory work. Some of the men
[387]
are undoubtedlj'^ faithful, but nearly all of them have had insufficient
training. It is extremely important that prisoners brought to a deten-
tion prison for trial should be in the hands only of the most capable, con-
scientious, high-minded, and responsible employees.
Recommendations
1. The present jail should be abandoned as soon as possible, but
while in use it should be kept decidedly cleaner and the administration
improved at once.
2. The kitchen should be equipped with a roaster, to permit the
roasting of meats : boiled beef and stews become too monotonous.
3. The walls should be painted and the windows kept clean.
4. Every man should be required to keep his towel clean.
5. The cells should be kept clean and free from vermin, and in par-
ticular the toilet bowls should be cleaned and kept in that condition.
6. A sufficient salary should be paid to permit the employment of
guards who understand the responsibilities of their position, and whose
language is less, rather than more, profane than that of the prisoners
under their charge.
7. A simple but adequate record system should be installed in the
office, so that a continuous check may be kept upon the movement of
prisoners.
8. Prisoners should be sent to the psychopathic ward of the city
hospital and should not be placed in strait-jackets in the prison or kept
in a padded cell, except upon rare occasions, where there is some real
reason for confining them in the prison.
9. There should be better classification of the prisoners, so that there
be less intermingling than there is at present.
388]
CHAPTER II
CORRECTIONAL AGENXIES FOR MINORS
The Juvenile Court
CLEVELAND has gained in population, according to the United
States census, at the rate of 40.3 per cent, in the last ten years.
During the thirteen years from 1907 to 1920 the number of boys
brought into the Juvenile Court of Cleveland rose from 984 in 1907 to
2,524 "official" cases in 1920, a gain of 1,.540 cases, or 156 per cent. If
to this number of delinquent boys "officially" brought into court there
be added the 1,724 boys " imofficially " in court in 1920, the increase in
cases of boys dealt with l)y court in 1920 over the number in 1907 is
3,264, or over 331 ))er cent. In other words, the nimiber of delinquent
boys brought into the Juvenile Court is increasing from three to eight
times as fast as the population. Among the causes contributing to this
increase in the burden of the court are the extension of the jurisdiction of
the court to include the cases of young people up to the age of 18 instead
of 16 which was the fonner limit, and new legislation creating additional
categories of offenses. The figures show the growing burden of the court
but arc not intended to indicate the increase in juvenile delinquency.'
According to the report of the chief probation officer for the j'ear 1920,
the total number of cases handled by the judge and attaches of the court
was 6,540, summarized as follows:
Official Cases:
Delinquent boys 2,524
Delinquent girls 584
Neglected cases (involving 638 children) 326
Dependency cases (involving 714 children) 341
Consent to marry 13
Total official cases 3,788
Unofficial Cases:
Bovs 1,724
Girls 187
Adults:
Male 700
Female ^1
Total unofficial cases 2,752
Grand Total for Year 1920 6,540
' Cf. Delinquency and Spare Time, by Henrj' W. Thurston, one of the reports of
the Cleveland Foundation Recreation Survey.
13S0]
I
About 600 juveniles are upon probation at a time. To look after
these, as well as the neglected and dependent children, the court has a
staff of four men and 12 women probation officers. Some investigation is
made of all "official" cases, and an attempt is made through the "Con-
fidential Exchange" of the Associated Charities to make use of the par-
ticular organization which has some knowledge of the child or the family.
Although full records have been obtained through the exchange in some
cases, in the majority the records are incomplete and in many consist
only of the probation officer's reports. These investigations are supple-
mented by mental examinations in the discretion of Miss Marion Wilcox,
who is the connecting link between the courts and the clearing-house in
case investigations.
All the information obtained is placed before the judge in the original
form, without compilation or interpretation, except as supplemented by
the probation officer who made the investigation and who is always pres-
ent at the court hearing of the case. The judge sometimes reads the
original reports, but more frequently relies upon the verbal statements
and recommendation of the probation officer.
As most of the court hearings are usually held during two or three
days a week, the number of cases on the docket frequentlj' aggregates
70, and occasionally more. The records of the verbal statements of the
probation officer are those contained in the shorthand notes of the hear-
ing which are later transcribed and added to the records, with the nota-
tion describing the disposition of the case.
It is evident that the staff is too small. There should be two addi-
tional clerk-stenographers and two additional typists, besides four addi-
tional probation officers, to handle "official" cases. There should also
be five additional field investigators for "unofficial" cases. The addi-
tional clerk-stenographers and typists would relieve investigators of the
necessity of spending so much time compihng reports and would permit
these officers to furnish much fuller and more detailed reports than are
furnished by them at present. In any event, the new "control blank,"
which is a marked improvement over the old card form, should provide
on its face for the scoring of homes and neighborhood environment by
the probation officer, in accordance with well-known standardized re-
quirements, as well as three or four word summary of the mental exam-
ination. Attached to this "control blank" should be a summary of the
facts in the case, headed by a recommendation, after discussion of the
case in the probation officers' staff meeting and after approval bj' the
chief probation officer or his first assistant. All the papers in the case
[ 390 1
I
should be attached to the summarj- and should go before the judge, as at
present, for his consideration.
If the suggestions contained therein were followed, the court would
be less severely handicapped than at present, and the number of re-ap-
pearances of delinquent boys in court, who are finally committed to
institutions, would be less than is indicated by the summary, in Table 1,
from the 1920 report of the chief probation officer.
T.\BLE 1.— COMMITMENTS OF BOYS
City Farm School, Hudson, Ohio 93
Boys' Industrial School, Lancaster, Ohio 245
Ohio State Reformatorj-, Mansfield, Ohio 24
Number of
City Farm School
Bovs' Industrial
Ohio State
commitments
School
Reformatory
First
29
.55
6
Second
40
71
3
Third
13
61
4
Fourth
7
40
3
Fifth
3
8
4
Sixth
5
3
Seventh
1
2
Eighth
2
1
Ninth
1
93
245
24
One of the greatest weaknesses of the Juvenile Court is the fact that
it is housed in the old criminal courts building which, with all its sordid
associations, is not a proper place for a juvenile court. If the court were
in a building adjacent to the detention home or in a school building, its
effectiveness and its power for good would be vastly increased. The
Juvenile Court quarters should not be included in the proposed new
county criminal courts building and county jail.
In order to carry out this idea of separation it might be better to
organize the Juvenile Court somewhat as it is in the city of Cincinnati,
as part of the Court of Common Pleas. In that event the court would
handle insolvency and other domestic relations matters not connected
with the actual trial of children's cases in quarters in the new court
building, and all children's court matters and dependency work in
quarters associated with the schools or with the Juvenile Detention
Home.
This last suggestion is offered with some reluctance for the reason
that, as juvenile courts are only in process of development, it would
[391]
seem wise that they should develop in accordance with local conditions.
In Cleveland the cooperation of the court with the schools indicates the
greater importance at present of continuing in this direction, rather than
transferring the court from insolvency jurisdiction to Common Pleas
jurisdiction.
Our study of the Juvenile Court in Cleveland has been limited chieflj'
to a consideration of its activities from the social point of view. In its
final implications the coiu't is one of the greatest agencies upon which
Cleveland must depend for the healthy development of its child life.
Moreover, the interest displayed by Judge George S. Addams in the
work of the various organizations in the Welfare Federation and other
social agencies indicates that these organizations are getting benefit
from his wide experience in dealing with the children of the city. The
particular interest of the judge in the boys at Hudson Faim is most
helpful, and increases the effectiveness of that hopeful place to a marked
degree. Furthermore, this kindly judge, by reason of the breadth of
his interests and desires and his sensible and colorful outlook upon life,
brings to bear upon each case the point of view which tends to gloss
over the petty and unimportant and to concentrate upon the larger and
more significant issues. The children of Cleveland know that the Juve-
nile Court is no "snubbing" post, and that Judge Addams is neither a
species of lion tamer nor a narrow-minded purist.
In order to cope with the situation the court and its attaches should
be actively participating in a continuous survey of conditions of child hfe
in the city, and should not limit themselves to the consideration of delin-
quent and dependent children alone. The court cannot deal adequately
with such children unless it is a clearing-house of the city's child life.
Great emphasis is placed upon the fact that the probation office
"clears" through the Associated Charities clearing-house every morning
at 10. But at the present time the clearing-house is little more than a
record office to indicate which agencies are at work on a case. The court
is rather poorly served, as a clearing-house out of touch with actual
cases means little or no effort to "clear" cases upon the basis of informa-
tion submitted for the purpose of assigning specific agencies to each case
for definite work upon it. The Probation Department, better than any
other agency, could see to it that all this work is vitalized.
The clearing-house of the Associated Charities is a great construc-
tive achievement, but even if it were vitalized by continuous close con-
tact with "flesh and blood" rather than "paper" cases, it would still
be unable to furnish for the use of the Juvenile Court an adequate mov-
ing picture of the social life of the city, especially as it affects children.
1392]
The all-important clearing-house of Cleveland child life is the Depart-
ment of Education. Unfortunately, it is not as serviceable to the Juve-
nile Court as it might be. It is not attempting to do all it should, and
its available forces for attacking the various problems of childhood are
too much scattered. They cannot function properly for school purposes,
and they present an aspect of confusion to the judge and to the attaches
of the Juvenile Court. This is particularly unfortunate, for the oppor-
tunities for cooperation are very great, and the various workers within
the school system and the other associations appear eager to respond
to Judge Addams' desire for cooperation.
Leonard P. Ayres pointed out, in the School Survey of Cleveland, that
the health work of the city school system was retarded because the
Director of School Health Work was responsible to the Director of
Schools for health work in the schools and to the city Superintendent of
Schools for education in public health. This same overlapping is present
in other divisions of school work. jMiss Claire Walters, psychologist for
the boys' school, makes most of the examinations of children in the
Juvenile Court, and after September 1 will have charge of all school
children appearing in court. She is also the agent of the School Depart-
ment of Attendance, and is imder the direct supervision of the Assistant
Superintendent of Schools, Fi-ank G. Pickell.
Dr. Bertha Luckey is Director of the School Psychological Clinic,
which is under the direction of Assistant Superintendent of Schools El-
dridge. Dr. Luckey's principal work is the examination of school children
refeiTcd to her by the teachers, to determine whether they should be
assigned to special clas.ses. There are three assistant examiners. This
department makes no routine examination of delinquents, but occasion-
ally cases are referred to it by the Department of Attendance or by the
Juvenile Court.
Dr. Luckey has also applied intelligence tests to nearly 5,000 children
in the first grade. Dr. W. W. Thiesen, Director of the School Depart-
ment of Reference and Research, has also applied these tests in the
course of his studies of school problems, using the children of the sixth
grade,who are preparing for junior high school. Thus Dr. Thiesen and Dr.
Luckey are both giving gioup intelligence tests, but from a somewhat
different standpoint.
Special education in the schools also lacks coordination. Assistant
Superintendent Pickell has charge of special education of delinquents in
the boys' school, the Juvenile Court Detention Home, the boys' farm at
Hud.son, and the girls' school at Warrensville. Assistant Superintendent
Albert C. Eldredge has charge of this work as it relates to mental defec-
[393]
tives, and H. D. Bixby as it relates to sense defectives, speech correc-
tion, and orthopedic class work.
Special education, psychological measurement, the medical and psy-
chiatric work of the schools should be coordinated under one assistant
superintendent of schools, who should work in the closest co5peration
with the Juvenile Court and the Associated Charities Clearing-house. If
for any reason medical and special educational work cannot be placed
under one person, special education and psychological measurement
should be so combined and a psychiatric division should coordinate the
school medical work, the special educational work in the schools, and the
psychiatric work of the Juvenile Court. In this way the records of physi-
cal, mental, and dental examinations in the school department would
be available for use in the Department of Special Education and in the
Juvenile Court.
If Cleveland were to coordinate special education and psychological
measurement, as Detroit has done, and were to add psj^chiatric examina-
tion, child delinquency and the various social maladjustments of children
which are reflected in the children's court would be greatly reduced. In
Detroit, Professor Charles S. Barry, of the University of Michigan, with
the aid of a corps of assistants, has examined within the past year over
4,000 children with Binet tests. The results of these examinations are
extremely important. They have shown that when children are classi-
fied according to general intelligence, all types of children progress more
rapidly. They have also demonstrated the need for differentiating
courses of study for different types of ability, and have greatly stimu-
lated teachers to take into account the individuality of their pupils.
Various agencies in Detroit have shown eagerness to avail themselves of
the information obtained by the psychological clinic, and the examina-
tions have been used not only in placing dependent children, but also by
the judge of the Juvenile Court.
To those who say that it is not the business of a juvenile court to have
close relations with educational work, let it be said that the function of
the juvenile court, as of the school system, is to serve the children, and
since the children will profit most through the closest cooperation of the
court and the schools, these two great agencies must consider the welfare
of the children and not the legal or customary divisions of court and
school work. Cooperation may be secured by careful planning and super-
vision without any overlapping of administrative functions. In fact,
duplication of investigations, examinations, and reports may be avoided
in this way.
[ 394 1
Administrative Shortcomings
The significance of numerous basic needs, such as the provision of
simple but comprehensive records of work done and of facts ascertained,
is not appreciated. Altogether too much depends upon Chief Probation
Officer Thomas L. Lewis and his assistants to "remember " details. This
applies both to court work alone and to its cooperation with other
agencies.
Too much of the chief probation officer's time is devoted to the con-
sideration of individual cases. The position of chief probation officer in
the Juvenile Court is one which calls primarily for a trained executive.
He should have a capable assistant to supervise the record system, and
this assistiint should see to it — (1) That a modern control card or sheet
is made out for every complaint, a copy of which should follow the assign-
ment of the case from the court to the detention home, to the Probation
Department, to the institution or agency; (2) that an adequate official
file is kept of each case which should be the public official record, con-
taining such things as the certificates and official citations and state
ments; and (3) a probation or court record file containing all other
records pertaining to each case, with a first-page sununary containing the
essential information up to date. The official file should be open for pub-
lic inspection; the probation and court record file should be confidential
but not secret. It should also be the duty of this assistant to see that all
complaints are properly entered, assigned for investigation either to a
probation officer or to some agency thi-ough the clearing-house, or to
both a probation officer and an agency, that the facts of record are cor-
rectly copied into the form used by the probation officer and by the clear-
ing-house and that the reports come back promptly, as at present too
much time elapses between complaints and assignments and between
assignments and reports of investigation.
The chief probation officer, relieved of details by such organiza-
tion of his work, could devote his time to initiating conferences with
school officials, private agencies, different divisions of the city Depart-
ment of Public Welfare, and officials of the various State and county
institutions, upon whose cooperation the success of his work depends to
a degree yet unreahzed. It is not necessary to cite records to show that
many "background" facts are not getting the consideration their im-
portance warrants. The chief probation officer should have time to de-
vise ways and means of remedying this situation without duplication of
effort and at the lowest total cost. At the present time no information
from the probation office accompanies or follows any commitment to any
institution. Information acquired by the clearing-house is used only b}"^
[395]
the Juvenile Court and the cleaiing-house, and finally there is a complete
breakdown of the follow-up system in both probation from the court and
parole from the various institutions. After leaving the institution a case
too frequently is lost track of until it is again brought to attention
through delinquency. As a result, from 25 per cent, to 30 per cent, of
the work done is lost.
Investigations
According to the chief probation officer's report for 1919 there were
3,338 "unofficial" cases, as follows: boys, 2,137; girls, 298; male adults,
721; female adults, 106; letters of warning, 79. In 1920 there were
2,752 cases, divided as follows: boys, 1,724; girls, 187; male adults, 760;
female adults, 81. It is altogether admirable for the Probation Depart-
ment to adjust as many cases as possible without bringing the child into
court or before the judge in formal fashion, but it is a somewhat unwise
procedure in Cleveland, where there is an inadequate record and fol-
low-up system to inform the court of the details of unofficial cases in
particular. Under present conditions the judge is hardly in a position
to know enough of the pertinent facts with respect to any particular
unofficial case. In fact, no one but the chief probation officer himself
could, from a study of the records, determine what has been done.
Every such case should be carefully registered in the clearing-house and
no final decision should be made without the specific concurrence of the
judge entered upon the unofficial records of the court.
We are not impressed by those who urge that a juvenile court judge
should pass upon the details of each case, for that would mean he would
be his own chief probation officer. We are, however, strongly of the
opinion that it is the duty of the chief probation officer to furnish to the
judge a complete summary of each case, and that the judge, in writing
or upon the minutes of court, should direct the chief probation officer in
making final disposition of so-called "unofficial" cases.
There should be as careful a record of essential details in "unofficial "
cases as there is in "official" cases. Apparently this is overlooked bj^
the officials of the court, for Mr. Lewis, the chief probation officer, re-
ceives all complaints. A complainant gives his story verbally to Mr.
Lewis, who then decides whether:
(a) To handle the case himself, or
(b) To have an affidavit prepared and filed covering the subject mat-
ter of the complaint, or
(c) To have the case investigated by a probation officer.
A study of cases shows that not enough care is used in jotting down,
1390]
in report form, all tlie facts for future inve-stiRatioii. It is obviously
wrong practice to have the investigation of 2,500 to 3,5(X) "unofficial"
cases per year depend at vital points upon the al)ility of the chief proba-
tion officer to remember important details. The methods used lead the
probation officer to decide upon a line of action, either without investiga-
tion or with only partial investigation. Few cases can be handled wisely
without thorough knowledge of the child himself, the facts concerning
his family life, the attitude of the parents and all the environmental
conditions, yet in this Probation Department many .scores of cases are
handled by people who depend upon their own ability to "size up" the
situation through personal interviews and without reports from social
workers, a psychiatrist, or a probation officer.
General Crilicism
The obvious weaknesses of a system which places too much emphasis
upon the conduct of children and too little upon the responsibility of
parents are present here. There are, of course, commendable attempts
to avoid punishing the child for the offenses of parents. Evidently the
court officials aim to protect the child from such mistakes, but often the
traditional practices which are accepted as a basis for action lead to
undesirable results. It could not be otherwise where there are too few
home and field investigations. It is also the natural result where the
attempt is made to guide parents and children by telling them in effect,
" Do so and so and you will be punished," when the emphasis should be in
effect, " You must do so and so for the good of your children."
Cleveland has vested in its Juvenile Court jurisdiction over dependent
children, deUnquent children, and widows' pensions. Strictly speaking,
dependency and widows' pensions are not proper subjects for juvenile
court administration, which carries over too many traditional practices
from courts for adults. It is doubtful if probation officers will do as
efficient child placement work as some of the other organizations, al-
though there is no inherent reason why they cannot be trained to perform
placement work properly. The various agencies cooperating through the
Associated Charities Clearing-house, the Division of Outdoor Relief of
the Pubhc Welfare Department of the city, the various hospitals under
the jurisdiction of or cooperating with the city Health Department, are
also vitally concerned. The best organization for Cleveland would prob-
ably be one in which the Probation Department could call upon the
Associated Charities clearing-house, upon the school and upon the Di-
vision of Outdoor Relief for investigation and information. In that case
the Welfare Federation might organize a child welfare bureau to function
[397 1
partly in response to specific requests of the Juvenile Court Probation
Department, partly on its own initiative, and partly in response to re-
quests from other sources. If $25,000 in private funds were available to
pay and equip an executive for such a clearing-house investigation com-
mittee, the latter could secure the active cooperation of the newspapers,
as well as of reluctant or busy officials and private persons, who could see
the great advantages flowing from the intensive development of this
work.
Judge Addams should not fail to have all cases examined either by a
skilled psychiatrist or clinical psychologist, if possible, or, if not, by the
Bureau of Juvenile Research in Columbus. The ability of the judge and
the chief probation officer to "size up a case" with skill is not disputed,
and this ability undoubtedly increases with experience, but Cleveland
cannot afford to depend upon that ability, however great, as a substitute
for a more comprehensive study of its dehnquent children. Judge Addams
can also help develop still further the remarkable child welfare clinics
of the public schools by using them more frequently.
We question the adequacy of Mr. Lewis as chief probation officer as
we have envisaged that office. Mr. Lewis has many good qualities, but
he lacks those quahfications which are essential to the greatest success of
probation work in the Juvenile Court of the future. The greatest chance
for the success of this court in Cleveland is through the development of
the widest cooperation with the schools, where its success has aheady
been notable. The chief probation officer should be a man of the best
training, specifically for work with children. Not only should he be ac-
quainted with educational and public health methods, but he should
have a rank and salary equal to those of an assistant superintendent
of schools. Such a man would be in a position to secure a maximum of
cooperation with the schools.
Summary of Recommendations
In summary form, our recommendations are :
1. The budget of the court should be increased $22,000 a year, to per-
mit an increase of the judge's annual salary to $8,000, of the chief proba-
tion officer's salary to $5,000, and to allow the employment of nine addi-
tional officers, two additional clerk stenographers, and two additional
typists, and to pay whatever additional expenses this improved service
requires.
2. A highly trained and experienced person should be employed as
chief probation officer, to have rank equivalent to that of an assistant
[398]
superintendent of schools, who should be able to secure the maximum
cooperation with the schools and all public and private aRoncies in the
city. The duties of the chief probation officer of the Juvenile Court
should become wholly executive.
3. A more effective record system should be established. There should
be a complete interchange of records between the Juvenile Court and the
pubhc schools, the Associated Charities clearing-house, the Detention
Home, the various institutions to which children are committed by the
Juvenile Court and the Division of Outdoor Relief of the Department of
Public Welfare.
4. In order ]to increase their own effectiveness and cooperation
with other agencies, the Board of Education and the Superintendent
of Schools should place all functions with respect to special education
under the supervision of one assistant superintendent of schools.
5. The health work of the schools should include consideration of
mental hygiene. A capable psychiatrist should be placed, if possible, in
the Division of Special Education as part of an organization composed
of workers in the various fields, or at the head of such a group to make
psychiatric as contrasted with p-sychological measurements of school
children, or, if this is not possible, he should be the special representa-
tive of the head of schools and the liaison between the Division of Special
Education, the school dispensaries, and the Juvenile Court. Psycho-
logical measurements in that event should be made in the Division of
Special Education. There should be a mental and physical examination
of every child brought to the attention of the Juvenile Court or its Pro-
bation Department, and an extensive interchange of records of examina-
tions among all the agencies interested before the case comes up in court
for formal action.
6. If the functions of probation and parole in the Juvenile Court be not
separated, a sufficient number of probation officers should be employed
at once to permit effective parole work, not now performed at all, for
children released upon parole from the various institutions. The history
of every case, as far as it is known to the probation officer, should accom-
pany or follow the commitment papers of every case committed to an
institution. It should be the business of the probation officer to sum-
marize the clearing-house information, with the information concerning
medical, psychological, and psychiatric examinations and the child's
school record.
7. In order to increase the effectiveness of the work for dependent
children and pension work a joint investigation bureau should be estab-
[399]
lished with a paid secretarj', capable of cooperatLag with all public and
private agencies.
8. The Children's Court should be removed entiiely from the
criminal courts building and quartered either in a new building adja-
cent to the Detention Home or in a public school building.
9. If it becomes advisable to change the Children's Court from Insol-
vency Court jurisdiction to Common Pleas Court jurisdiction, the work
for children should be kept separate and apart from work for adults and
domestic relations work not directly affecting children, so that the latter
need not be brought in personal contact with the sordid details of such
cases.
10. Judge Addams should exert his own influence and the prestige of
the court to the furtherance of the fullest cooperation with the public
schools, in particular, and with the other public and private agencies of
the city.
The Detention Home
The Cleveland Detention Home is, unfortunately, located at a con-
siderable distance from the Juvenile Court, thus greatly impairing its use-
fulness to the court and to the Probation Department. It consists of a
remodeled mansion, used for offices and staff residence, and a fire-proof
extension which is thoroughly modern, except for the provision of dormi-
tories instead of private rooms. The county has recently acquired an
adjoining property, thus providing space for a fairly good playground.
It was intended, at the time of the original purchase, to convert the
residence into a home for dependent children under the care of the
Juvenile Court, but this plan was given up because the building could
not, within reasonable expense, be made fire-proof, and, therefore, under
the provisions of the city ordinances, it could not be used for housing
children. There is sufficient room on the combined plots owned by the
county to house the probation office and Juvenile Court and still leave
the same amount of playground space that is now being used. Such an
arrangement, from an administrative viewpoint, would be highly desir-
able, though the present location of the Detention Home is not as central
as would be desirable for a probation office and Juvenile Court.
The excellent new building, which has two stories and a basement,
has a roof designed for use as a playground. The second floor, which
is used exclusively for boys, contains ofiicers' quarters, two dormitories,
five cells, a dining-room, pantr}', playroom, and toilet facilities. The
first floor, laid out in much the same manner, is used exclusively for
girls. In the basement are located the kitchen, laundry, storehouse, a
room about 23 by SGJ4 feet used as a gymnasium, and shovvcr-batlis.
[400 1
The basement also has a reception room for new arrivals. The building
is clean and sanitary throuKhout.
The Detention Home staff consists of a superintendent, Miss Laura
A. Marlow, appointed by the Juvenile judge; a girls' matron and boys'
master; a housekeeper, two cooks, a laundress, a man acting as engi-
neer and fireman, a bookkeeper, a nurse, and a teacher. There are also
one or two relief officers and a night-watchman.
Children under eighteen may be sent to the Detention Home either
by the probation officer or the Juvenile judge. The police and truant
officers may also turn over to the Detention Home children under eigh-
teen to be detained until they can be produced in court. The number of
boys varies considerably from day to day. There are rarely less than
50 or more than 90, though there have been at times over 100. When
newcomers arrive, they are carefully bathed, their heads are treated
with a solution of larkspur, or washed with coal oil, their clothing fumi-
gated and put away for future use, and fresh clothing is given them.
Practically no information, except the name, age, home address, and
charge, is received with the new arrival. A physical examination is given
by a non-resident physician.
The home has no adequate means of segregation. There are two
dormitories for boys and two for girls, and when these are not over-
crowded, it is possible to segregate the younger from the older children.
The only facilities for school purposes consist of one small room
where six or eight of the younger girls receive instruction, under a teacher
appointed by Assistant Superintendent Pickell, of the Educational De-
partment of the city. Boys are given instruction in the Boys' School, a
block and a half from the home, which is under the jurisdiction of Mr.
Pickell. The boys who attend this school are taken back and forth
morning and afternoon by a relief officer from the Detention Home.
Children may be detained in the Detention Home from a few hours
to several months. When a child is to be released, a written order from
the court is presented to the superintendent by the individual into whose
custody the child is given. The superintendent has no knowledge of the
conditions of release or of what becomes of the child afterward.
The greatest criticism to be offered in the boys' department is the
utter lack of suitable employment. Under the supervision of the two
officers in charge, a matron-housekeeper and a male officer, the work
of keeping the place in order is done by the boys themselves. There is a
woeful lack of indoor recreational facilities and a failure to take advantage
of such outdoor facilities as a good playground on the roof. This failure
to use the roof was explained by the officer in charge as due to past mis-
27 [ 401 1
behavior on the part of two boys who had been allowed to play there.
During our visit there were about 30 boys playing noisily in the play-
room. The officer commanded quiet and then lined the boys up, and,
turning to the investigator, said that he would now tell him about the
boys. The following questions were then asked :
Officer: What is your name?
Boy: John Smith.
Offi^r: How many times have you been here?
Boy: Three times.
Officer: What are you here for this time?
Boy: SteaUng.
Officer: Did you ever go to Lancaster?
Boy: Yes.
Offixxr: You broke parole from Lancaster, didn't you?
Boy: Yes.
Officer: And then you stole and had to come back here?
Boy: (In a crestfallen manner) Yes.
The officer then passed to four other boys with similar questions.
Much the same answers were given in each case. The officer then said
that boy No. 2 was a very bad boy and could be depended upon to lie and
to steal if he had the chance. The investigator interrupted this brutal
interchange by talking directly with the boys.
There is practically no oversight of the boys' dormitories at night. A
watchman, whose bedroom is nearby, visits the dormitories once an hour
"to ring up." There is nothing to prevent the grossest kind of immoral-
ity, and although the officer in charge admitted that he was aware of the
existence of this problem, the night-watchman is still the only reliance
against it.
The Girls' Department is under much better supervision than the
Boys' Department, except that there is some lack of supervision in
the dormitories and not enough work or directed recreation. The laun-
dry furnishes employment for older girls. There is a resident school
teacher for the Girls' Department, but only girls under fourteen, of whom
there are few, are required to attend school. The girls are sometimes
allowed to play on the roof. It should be possible to provide them with
many simpler and more beneficial occupations.
The medical examinations made by the visiting doctors from Fair-
view Park Hospital are not always adequate or timely. Sometimes the
doctors have barely begun work when the telephone orders them to re-
turn to the hospital for some emergency. This situation could perhaps be
remedied if the visiting staff of the hospital could be induced to become
[402]
responsible for the work at the Detention Home, and an interne were
provided who should be held responsible for the ordinary medical work
at the Detention Home, subject to the general direction of the visiting
staiT.
Cooperation with the schools should be encouraged. The present
plan of conducting practically all school work in the home deprives the
children of a chance to go to school in a regular school building, and of the
opportunity to secure training in industrial classes. It also reduces the
school work to the level of pcrfunctoriness into which detention schools
degenerate, since the management cannot offer to a teacher the induce-
ments which can be offered by a school sj'stem whose work with delin-
quents is conducted not in a detention home, but in a school building.
Recommendations
1. The recent plan of cooperation with the boys' school should have
been extended instead of being abandoned.
2. A better program for both work and play should be provided for
the boys' department. The Cleveland school system offers excellent
suggestions for use along these lines.
3. It is altogether wrong and indefensible that from 30 to 50 boys
should be kept in small quarters in comparative idleness, some few of
them for periods of several months.
4. Although the man who was supervisor of the boys' department
during the spring has many excellent qualities, his entire lack of under-
standing of the problems connected with his institution nullifies his
effectiveness, and unless this can be changed, there should be a change
of supervisors.
5. Criticism may well be made of the present salary scale ($60 a
month), which is hardly enough to secure the services of a really com-
petent person.
The Boys' School
Cleveland maintains a special school for truant, delinquent, and in-
corrigible boys, known as the Boys' School. It is a part of the public
school system and is under the direct supervision of Assistant Super-
intendent Pickell, of the Department of Education, who personally ap-
proves all admissions. Apphcations to Mr. Pickell are made through the
Department of Attendance after all attempts at adjustment by family
appeal and school transfer have failed. No routine mental examinations
are made before admission, although a fairly good social study is con-
ducted. The officer or teacher recommending admission may apply to
1403]
the psychological clinic for special examination, but this is seldom done.
It is admitted by Mr. Piekell that a certain amount of odium is attached
to the compulsory attendance of children in this school, which is known
locally as "the bad boys' school."
Mental examinations are conducted principally by Miss Claire
Walters, of Mr. Pickell's division. So far as could be learned, these re-
sults are used only for the classification of the feeble-minded boys in the
school. A general classification of all boys on the basis of intelligence is
not undertaken.
As already stated, there is close cooperation between this school, the
Detention Home, and the Juvenile Court. The work of the school is
divided into three parts — regular grade work carried on as special class
instruction, manual training and handicraft work, and the Department
of Psychological Examination and Placement.
The regular grade and special class work presents no features that
are not found in other similar class-room work. Teachers in charge of
special classes are not employing modem methods of teaching this type
of child. It has been found that there is practically no direct bearing of
the psychological examinations upon class-room work. The work is
mechanical, and the only clear advantage it has is that of relieving the
grades in the regular public schools of certain backward children.
In one particular at least the vocational and manual training work in
the Boys' School is above the average. This is the printing department.
This department is in charge of a man who, besides being a master
printer, is a devoted student of boy life, as well as a capable teacher with
initiative and ingenuity. All these traits are reflected in the quality of
work being done in the pressroom.
The course of study for this work has been adapted to the various
requirements of vocational education with unusual understanding: one
part correlates history, another geography, a third arithmetic, and so on.
The class in handicrafts, which is also under capable direction, in-
cludes basketry, weaving, knitting, and the like. The kind of work
turned out is far above the average usually found in similar classes else-
where. It should be pointed out, however, that this work is performed
by boys who are practicality normal. Nevertheless, the secret of success
in these two departments is undoubtedly the fact that those in charge
are working in the closest and most harmonious relation with the Division
of Psychological Measurement and Placement.
The woodworking department is not up to the average manual train-
ing work found in grade schools, although some of the objects are fairly
well made. The work seems commonplace, because the instructor lacks
1 404 I
freshness and rosourcp. Only tho most obvious linos of work arc being
followed and tho most obvious and commonplaoo opinions expressed
about the work by the teacher. This department presents an ideal oppor-
tunity for incorporating some of the principles of free-hand and mechan-
ical drawing, as well as for teaching some of tho simpler truths of geom-
etry, but nothing of this kind is done. On the whole, it seems that the
most vital features of manual training work arc being ignored.
The Department of Psychology" and Placement is under Miss Walters'
directions. Fundamentally, this department exists for the purpose of
studying, adjusting, and replacing the truant, backward, and delinquent
children sent from the public schools to the Boys' School. Its purpose is
the application of mechanical tests for the purpose of discovering, accord-
ing to Terman's Revision, the mental ago of children with reference to its
effectiveness. We quote the following from the Cleveland Hospital and
Health Survey:
"The important relationships of juvenile delinquent boys to mental diseases
and other disorders of the mental system are well understood, and many efforts
are made to secure psychiatric and psj'chological examinations that will throw
light on this subject in individual cases. Miss Claire Walters, who is attached
to the Boys' School, makes 'intelligence tests.' At her suggestion the services of
the psychiatrist attached to the Probate Court were employed. At the Boys'
School and Detention Home children were observed while their cases were pend-
ing or while awaiting placement, but, of course, this observation was iwl made by
those trained to detect the most significant alterations in behavior" (p. 480).
There are many evidences of the fact that much thought has been
given to the question of measurement, and that the intention of the
founders was clearly to establish contact with all bureaus, courts, and
institutions which could profitably be related to this work, but the work
has not thus developed, indicating the need for a change in administra-
tive control, which we have previously recommended.
Recommendations
1. The school is one of the most potent constructive agencies for
the prevention of delinquency in the State, and its principles should be
extended throughout the city.
2. At the present time manual education is not being offered in the
public schools below the junior high school, except incidentally or through
special classes for defectives.
3. Judge Addams of the Juvenile Court should be encouraged to
continue committing boys to this school, since by doing so he is setting
[405 1
an example in cooperation between correction agencies and the school
system.
4. Boys should not be committed to this school except after mental
examinations, supplementing social investigation.
5. It is easily conceivable that readjustments in the ordinary public
schools might be made on the basis of some such examinations without
the need for admission to this school.
6. Feeble-minded delinquents could then be adjusted directly through
the Department of Special Classes in the city school system.
7. These examinations could be made by Miss Walters, as at pres-
ent, or more properly through a mental cUnic, comprising a capable
psychiatrist as well as a chnical psychologist, whose assistant Miss
Walters should be.
8. The administration of the school should be based on scientific
principles and on a scientific classification of the boys in all lines. The
printing division and handicraft work are examples of a good beginning.
Probably a better and more comprehensive examining system and course
of study could be worked out, adapted to the particular needs of each
child. The school might well adapt many of the methods developed by
the extraordinary Moraine Park Private School in Dayton, Ohio.
9. When schools for deUnquents and truants have set the example,
it will then be necessary for the city to extend to all schools proper
classification and differentiation in education based upon actual expe-
rience in Cleveland. When this is done, delinquency growing out of
truancy and lack of interest in studies or failure to keep up in school
will in all probabihty be drastically checked.
The Cleveland Boys' Farm at Hudson
The Cleveland Boys' Farm, opened in 1903, is about 35 miles from
the city. As indicated by its name, it is a city farm colony institution.
There are eight frame cottages, a power plant, greenhouse, school-house,
barns, shops, laundry, and central kitchen. The population usually
averages about 140 boys, who range in age from ten to eighteen years.
The staff consists of the superintendent, eight cottage fathers and eight
matrons, a principal of the school, a farmer, an engineer, and a general
utility man. The general training offered by the institution consists of
farming, gardening, housework, with limited opportunities for a few stu-
dents in mechanical work, and good opportunities for prevocational and
vocational work. While the equipment for manual work is limited, this
handicap is somewhat compensated for by the small numbers to be
[406]
(
taught and the intimate relationship existing between instructors and
pupils.
Boys are committed to this institution nominally by the Juvenile
Court, but in practice by virtue of a "gentlemen's agreement" between
the court and superintendent. The superintendent, John A. Eiscnhauer,
personally visits the Detention Home at Cleveland and selects the can-
didates for the farm. As a result he is able to carrj' out a well-graded
classification system along the cottage hnes. This promotes more con-
structive efforts with the boys.
When the superintendent visits the Detention Home in the city with
a view to selecting candidates for his institution, he gets some facts with
respect to their history from the matron of the home, but practically
nothing in record form. When a boy arrives at the farm he is accom-
panied by a commitment paper; beyond this there are no facts or other
information available to the superintendent. The latter may visit the
Boys' (Truant) School and learn from Miss Walters something of the
mental traits and personal characteristics of each boy. This is furnished
verbally in most cases and not, as a rule, in written form, except when a
psychological report is necessary. The probation office and the Juvenile
Court supply information only by special request.
In order to determine the intelligence level of the population as a
whole. Dr. Herman M. Adler's assistant, E. K. Wickman, administered
group intelligence tests to all the boys of the school, 121 in number,
•except 14 who were engaged about the farm. The ages of the boys ex-
amined vary from eight to fifteen years. The results for 118 are classi-
fied below.'
The results in the cases of three boys were omitted because of doubt-
ful information concerning chronological ages. The results as a whole
are computed in mental ages according to the mental age norms of the
» TABLE 2.— INTELLIGENCE SURVEY OF CLEV'EL.iND BOYS' FARM
Intelligence quotient
Below
9
9
10
11
12
13
14
15
Total
Per
cent.
40-49
50-59
60-69
70-79
80-89
90 and over
'
l'
2
4
i
8
3
3
5
6
2
5
i
2
1
2
6
i
2
2
2
14
2
2
2
9
2
1
4
10
2
7
15
25
17
52
1.7
5.9
12.7
21.2
14.4
44.1
Total
US
100.0
[407]
Delta 2 Scale of Hagerty's Intelligence Examination, and these in turn
are reduced to approximate intelligence quotients. We believe the re-
sults give a general estimate of the intelligence of the boys.
It appears that 44 per cent, of the boys have adequate intelligence;
14 per cent, are somewhat backward, and 40 per cent, are retarded or
somewhat inferior. The definitely inferior number about 24 boys out of
a total of 1 18. The results as a whole indicate that the greater proportion
of the boys are of average or above average mental development and
able to do regular school work, but it is also clear that the institution is
confronted with a problem of education and training subnormal children,
since out of 118, 25 are retarded in their mental development and 24 are
inferior mentally.
The educational work of the institution is under the general super-
vision of Assistant Superintendent Pickell, of the Cleveland Depart-
ment of Education. In addition to general training the superintendent
himself gives personal thought and oversight to character building and
training in ethics. The discipline is the same as that usually found in
institutions of this type. Corporal punishment is permitted and can be
administered only in the presence of and with the consent of the superin-
tendent. Nothing severe is countenanced. Usually punishments con-
sist of deprivation of privileges, extra work, short rations, or prolonged
stay in the institution.
Paioles and discharges are arranged chiefly over the telephone bj' the
probation officer or the judge of the Juvenile Court. It is almost always a
verbal arrangement. The superintendent's duty begins and ends with the
boy in the institution. There is no follow-up or parole work whatsoever,
either by the institution or the Juvenile Court Probation Department.
This is the most hopeful of Cleveland's penal institutions, not because
of its buildings or equipment, but because of the intelligent leadership
of the superintendent and his assistants. It is the best example of intel-
ligent thrift we have seen in the institutional life of Cleveland. There
are, however, serious administrative defects:
The administrative plan of the institution is faulty. Its superin-
tendent is appointed by the Director of Public Welfare, but the latter has
had no further active responsibility in the matter. The Juvenile Court
is concerned with commitments and recalls, and is supposed in a vague
way to have further supervising powers, but as a matter of fact does not
exercise them. The Probation Department acts as agent for the court
in placing and releasing boys from the institution, but is otherwise uncon-
cerned; hence the superintendent is responsible to no one, and succeeds
because its present head is both capable and conscientious.
1408]
It has no ailequate knowledge of the social and mental histories of its
wards.
It keeps only the usual school work record of its inmates and a record
of infractions and bad conduct, but no system of recording progress.
It furnishes no supervision, directly or indirectly, of boys on parole,
nor does it receive any information concerning their progiess or failure
while on parole.
Recommendations
1. The Director of Public Welfare should appoint a representative
group of citizens to act as an advisory board for this institution; an
administrative code should be worked out, setting forth the duties and
responsibilities of such an advisory board, its relation to the Depart-
ment of Public Welfare, the Juvenile Court, and the probation office,
and providing for a proper reception and classification system for in-
mates, a system of records, and an adequate parole plan. These should
be in thorough accord with the spirit, purposes, and work of the Juve-
nile Court, the Detention Home, the Juvenile Probation Department,
and the Department of Public Welfare.
2. A regular plan should be formulated for the exchange of informa-
tion to the end that this institution shall receive the fullest possible
family and individual histoj-j' of all inmates from the Associated Chari-
ties clearing-house.
3. There should be one final and supreme supervisory authority exer-
cised over the institution. If for any reason it be deemed advisable for
the Juvenile Court to continue any manner of supervision over this in-
stitution, a clearer demarkation should be made between executive and
judicial functions, so that this important experiment of administrative
and judicial cooperation be allowed to develop normally. All school
and other productive work of the institution should be coordinated
through mental and industrial tests. There should be the fullest devel-
opment of the medical service.
The Girls' Farm at Warrensville'
The Girls' Farm at Warrensville consists of a single wooden structure
containing two stories, an attic, and a basement, with a capacity of 39.
' The first examination of this institution by the survey was made in May, 1021.
At that time there was in progress a fundamental reorganization. .Since then the
present superintendent has taken office. In order to appraise the results of this re-
organization Mr. Lewis made another inspection in Januan.-, 1922, and changed his
statement from the form in which it appeared in the first releases of the survey to the
form in which it appears here. — Raymond Moley, Director of the Foundation.
[409]
This capacity is usually exceeded. Recent alterations have provided
four bath-tubs, two showers, six toilets and lavatories, well-lighted and
ventilated dormitories, a dining-room and kitchen on the first floor, a
school-room, and a living-room. The building is a serious fire menace.
The boilers and furnace are in the basement, and the clearance between
the top of the furnace pipe and the ceiling is about one foot. A small
heater for hot water is attached to the plant. The connection between
this heater and the smokestack has a clearance of 15 or 16 inches from
the ceiling, which consists of floor beams and flooring for the rooms
above.
The institution prior to the appointment of an advisory board bj'
the director in 1920 was administered without any thought-out plan.
It was neither a home, a school, a correctional institution, nor a recre-
ational center, but a little of each.
Such records as came to the institution were kept in bureau drawers.
There was no accounting system worthy of the name. Receipts and
memoranda of past transactions were kept on miscellaneous slips of
paper. It was impossible, by consulting the records, to find out any-
thing about the institution. There seemed to be an almost total lack
of appreciation of the problems connected with the attempt to train
and guide the type of girl committed to its charge.
The training consists of housework and school work and gardening.
The housework is simply cooking, cleaning, making beds, and the like.
An attempt is made to teach the girls the art of cooking and home-
making. The investigators who visited the farm are all of the opinion
that the housework is well performed. The girls themselves appear to be
attractively and simply attired and very well behaved. Everything
about the place indicates intelligent and able management. The
advisory board, appointed by the Director of Public Welfare, has
suggested many improvements. The new superintendent is bringing
the administration of the farm up to the level of the boys' farm. The
city should furnish equipment which the school so much needs.
The course of study provided for these delinquent girls contained
several periods a week of algebra, geometry, and art ; one period a week
for French, hygiene, and vocational guidance. These subjects were ob-
viously unsuited to the institution and the new superintendent, Miss
Colver, has completely reorganized the school.
Recommendations
1. A thoroughly experienced woman should be kept in charge.
2. Methods of good business administration should be adopted, such
[410]
as the use of proper filing cases and a store-room for supplies. A good
system of accounting should be installed.
3. Household art, physiologj', hygiene, dressmaking, millinery, and
kitchen gardening should be the basic subjects for instruction.
4. A matron should be engaged for all-night duty, and additional
officers emploj-ed for day duty in the school.
5. The windows of the cellar and the first floor should be made secure
against intrusion from without. Girls should be permitted to go to work
outside of the institution only when accompanied by a responsible and
capable woman officer of the girls' school.
6. The present building should be moved to a proper location as
soon as possible, and upon the new site one additional modern cottage
should be erected to accommodate the girls who cannot be sent there
now.
411!
CHAPTER III
PROBATION
THE city of Cleveland employs probation officers in the Municipal
and Cuyahoga County employs them in the Juvenile Court.
Probation work in Common Pleas Court is supposed to be per-
formed by parole officers attached to the State Reformatory at Mans-
field and the penitentiary in Columbus. While a detailed study of the work
of the State Parole Department did not fall within the scope of this survey,
it is obvious that the small staff of officers attached to these two State
institutions is overwhelmed with parole work and can give little time to
probation work in the various counties. The Common Pleas judges in
Cleveland have for a long time recognized that they cannot depend upon
the parole officers of the State to conduct the painstaking investigations
which the modern probation system requires. As a consequence, these
judges are attempting to settle cases in advance through the imposition
of sentences or by change of disposition. No matter how well inten-
tioned the judge, the fact that he changes his dispositions so frequently
in itself has a tendency to lower respect for the courts as impartial tri-
bunals, for to the ordinary criminal a favorable change of disposition
means that the court or some officer has been "seen." This attitude of
offenders must be appreciated in planning a proper correctional system
for Cleveland.
Municipal Court judges observe this tendency of the Common Pleas
courts and have pushed it to absurd extremes. The number of cases
municipal judges have to handle, the speed required, and all of the con-
ditions surrounding the courts are productive of results which are un-
worthy of Cleveland. Other branches of this survey have observed in
detail how cases are handled. We have confined ourselves to a study of
the results of their work as these are reflected in the disposition of cases
sent to the Warrensville workhouse. A portion of the results of this
study are summarized in Tables 3 and 4 and graphic comparisons of the
figures in the tables are presented in Diagrams 1 and 2, the former illus-
trating material in Table 3 and the latter the material in Table 4.
1412)
This analysis indicates clearly that Cleveland courts are attempting
to perform not only the services of a court, but also those of a well-
TABLE 3— ANALYSIS OF SENTENCES TERMINATED DURING THE
MONTHS OF JANUARY, FEBRUARY, AND MARCH, 1920, CLASSIFIED
BY THE KIND OF SENTENCE IMPOSED BY THE COURT
Kind of
sentence
Labor
Labor
and
coats
Expi-
ration
and
costs
Pa-
roles
Court
orders
Es-
capes
Still
in
Misc.
Totals
Per
Time, fine, and
ber
cent.
costs
33
66
107
68
17
22
1
8
322
51.4
Time and fine
23
4
■->
29
4.6
Time and costs
61
37
63
17
8
11
2
199
31.8
Time onlv
10
1
2
13
2.1
Fine and costs
24
23
3
1
2
53
8.5
Fine onlv
1
1
0.2
Costs only
4
2
2
1
9
1.4
Totals
Number
132
128
170
91
53
39
1
12
620
100.0
Per cent.
21.1
20.4
27.2
14,5
8.5
0.2
0.2
1.9
TABLE 4.— ANALYSIS OF SENTENCES TERMINATED DURING THE
MONTHS OF JULY, AUGUST, AND SEPTEMBER, 1920, CLASSIFIED
BY THE KIND OF SENTENCE IMPOSED BY THE COURT
Kind of
sentence
Labor
Labor
and
costs
Expi-
ration
and
costs
Pa-
roles
Court
orders
Es-
capes
Still
in
Misc.
Totals
Time, fine, and
costs
Time and fine
Time and costs
Time only
Fine and costs
Fine only
Costs only
51
24
1
22
9
125
i7
00
4
126
49
57
10
1
26
17
17
1
5
1
47
5
5
1
2
2
2
6
■2
i
Num-
ber
440
24
126
2
89
15
Per
cent.
63.2
3.4
18.1
0.3
12.8
2.2
Totals
Number
107
206
175
68
67
58
6
9
696
100.0
Percent.
15.4
29.6
25.1
9.8
9.6
8.3
0.9
7.3
conducted correctional system. The frequency with which fines are re-
sorted to, the relatively large number of sentences terminated by court
order, and the kind and length of sentences imposed indicate that the
I 413 1
municipal courts have made dispositions of cases which, under all cir-
cumstances prevailing, place a serious check upon the development of a
modern correctional system. This is brought out even more strikingly
by Tables 5 and 6, which indicate the quotient of the fine plus costs
132
104
M
128
103
170
91
86
53
Labor Labor Expiration Parole
and costs and costs
50
Court
order
39
37
13
Escapes Miscel-
laneous
Diagram 1. — How the sentences of 626 prisoners received at the Workhouse during
January, February, and March, 1920, were terminated. The black portions of the
columns represent sentences which consisted only of fines and costs
divided by 60 cents per day, which is the common rate utilized for
computing fines into days where prisoners do not pay their fines.
These tables show that 258, or 40.12 per cent., of these cases expired
in sixty days or less, and that practically 293, or 46.80 per cent., expired
in six months or less. These analyses, and the other studies made during
the course of this survey, indicate the crying need for a thoroughly
1414]
modem and eflBcient city probation department. It is our conclusion
that judges of municipal courts could further the development of such
COS
142
175
68
67
67
61
58
57
15
Labor labor Expiration Parolea
and co6t3 and costa
Court
orders
Escapes
E
Miscel-
laoeous
Diagram 2. — How the sentences of 696 prisoners received at the Workhouse during
July, August, and September, 1920, were terminated. The black portions of the
columns represent sentences which consisted only of fines and costs.
a modem department by refusing to impose sentence without adequate
information and demanding that the city provide a probation system
which would furnish them with information to be utilized in making
1415)
disposition of cases. The fact that the present probation system is in-
adequate, that the officers are much overworked, and that a cry of false
TABLE 5— ANALYSIS OF SENTENX'ES IN 258 CASES, EXPIRING DURING
THE MONTHS OF JANUARY, FEBRUARY, AND MARCH, 1920, BY
LENGTH OF SENTENCE AND BY THE MANNER IN WHICH THE
SENTENCE WAS TERMINATED
Manner of
termination of
sentence
1-9
days
10-19
days
20-29
days
30-39
days
40-49
days
50-59
days
Total
1-59
days
Per
cent,
of 626
cases
Labor
Labor and costs
Expiration and costs
Paroles
Court orders
Escapes
Still in
Miscellaneous
2
13
6
4
1
1
14
5
1
1
51
26
39
7
5
7
•2
11
12
14
5
2
6
11
97
(30
66
14
10
9
2
0.15
0.10
0.11
0.02
0.02
0.01
0.01
Total prisoners
2
27
21
137
44
27
258
0.41
TABLE 6.— ANALYSIS OF SENTENCES IN 293 CASES, EXPIRING DURING
THE MONTHS OF JANUARY, FEBRUARY, AND MARCH, 1920, BY
LENGTH OF SENTENCE AND BY THE MANNER IN WHICH SEN-
TENCE WAS TERMINATED
60-69
days
70-79
days
80-89
daj'8
90-99
days
100-
124
days
125-
149
days
150-
174
days
175-
199
days
Totals
Manner of
termination of
sentence
Days
Per
cent,
of 626
cases
Labor
4
23
2
->
1
2
1
35
0.06
Labor and costs
3
22
t
8
16
4
3
2
65
0.10
Expiration and
costa
11
17
20
10
25
12
4
1
100
0.16
Paroles
1
15
S
3
12
4
4
2
49
0.08
Court orders
3
3
1
5
1
1
14
0.02
Escapes
9
4
3
1
2
4
23
0.04
Still in
Miscellaneous
4
1
2
(
0.01
Total cases
19
93
45
27
62
25
15
7
293
0.47
economy is now insistent ought not discourage judges and citizens gen-
erally in pressing for this much-needed reorganization of Municipal
Court work.
I 116 I
The probation system of Cleveland Municipal Courts has two dis-
tinct branches — probation for adult men and probation for adult women.
Technically, probation for both men and women is under the supervision
of the chief probation officer, James Metlicka. As a matter of fact,
Mr. Metlicka ha.« charge only of male adult probation. Mrs. Antoinette
Callaghan regards herself as chief of the Woman's Probation Depart-
ment, holds herself wholly independent of Mr. Metlicka, and conducts
her branch of the work as an entirely separate unit.'
The physical conditions under which this department is carried on
constitute a serious handicap to effective work. It is housed in a small
room adjoining Municipal Court-room No. 1, and accommodates Mr.
Metlicka and his two assistants.
When observed on May 2 and 3, the office was continually crowded.
Three probation officers were attempting to carry on investigation work
with individuals, receive reports, collect money, make out receipts, and
at the same time keep track of the court-room. They were actually
recei%nng prisoners placed on probation by the court. As a further
aggravation, each probation officer must be his own clerk, as no clerk
or typist is provided. The record work is crude and unsatisfactory.
The records are of little value. The filing system could hardly be called
a system, and the entire volume of work is done under a strain which
makes good work impossible.
The chief probation officer collects from S3,000 to S5,000 a month
from probationers. Until a short time ago large amounts of this money
were carried on his person, as he banked monej^ but once or twice a week.
His accounts are audited but once a year. Mr. Metlicka could not tell
the surveyor how many people were on probation. He said the number
fluctuated rapidly, and since he had neither clerk nor stenographer, it
was impossible to keep this and many other vital matters up to date.
He referred to past reports as the only source of information on such
points.
Examination of the files of the department show that its work is
confined to the investigation of police reports and cases requested by
the judge, prosecutor, or police, which are reported upon generallj' by
one of the two assistants. The reports are nxitten in pencil on different
kinds of stationery, and filed generallj^ if at all, in this form. Reports
' There ought to be better cooperation between Mrs. Callaghan of the women's
division and Mr. Metlicka of the men's division and with the Women's Protective
Association. Mrs. Callaghan can bring this about, as Mr. Metlicka is more than
anxious to do his part and works in perfect harmony with the Women's Protective
Association.
2S [ 417 1
to judges or to the police department are, as a rule, in verbal form.
There are no stenographic or other notes. There is a small report card,
which becomes a part of the permanent file, and some, but not all, of
the facts obtained by investigation are placed upon this card.
Obviously, the adult probation work is lacking in efficiency. It is
clear that there is no real administrative abihty back of the work; that
the court gives no decisive direction or oversight; that the chief proba-
tion officer is without a constructive plan, but makes an effort day by
day to meet the problems of that day. In view of the absurd conditions
under which he undertakes so vast a work, the wonder is that he does
anything at all. We are of the opinion that the chief responsibility for
this condition must rest upon the Chief Justice of the Municipal Court,
who has power to appoint additional help, to cause a reorganization of
the work, and to provide better quarters.
Mrs. Callaghan labors under practically the same handicaps that
confront Mr. Methcka. She has two associates — one a college graduate
and the other, a young colored woman, who has had considerable expe-
rience in the Colored Y.W.C.A.
Mrs. Callaghan has a definite organization, a definite plan of work,
a consistent and fairly well-kept record of what she has done and is
doing, a fair system of reports, and a follow-up system which, while not
adequate, is as well thought out and as well administered as lack of
facilities will permit. She stated frankly that she had httle occasion to
call upon Mr. MetUcka's division, because there was rarely anything
in common in the cases under consideration. She said that whenever
she called upon Mr. Metlicka she found him ready to cooperate. On
the other hand, we found that she makes use of the Children's Bureau
of the Welfare Federation, of the work performed by Miss Walters in
the Boys' School, and frequently calls upon the latter for mental tests
of probationers.
The Women's Protective Association maintains an office which opens
into Municipal Court-room No. 2. The Association's work in the Muni-
cipal Court is non-official. It tries to be of assistance to both divisions
of the Probation Department, and is willing to furnish field investiga-
tions and assist even in clerical work. It is difficult to beUeve, how-
ever, that its work can be effective unless a harmonious working basis
is established between the official Probation Department and the Asso-
ciation. If this organization could be used officially, perhaps under the
direction of the Chief Justice of the Municipal Court, its cooperation
might make the probation office effective, for the Association not only
has trained workers and a competent administrator at its head, but
[418]
also a well-organized plan of work, essentials which the official Probation
Department lacks.
A modern Probation Department, serving as an aid to the court in
conducting impartial inquiries and as a potent agency for effecting the
rehabilitation of offenders, has long since passed the experimental stages
and is now a primary essential of every community. In conisidering
alternative plans for the development of an effective probationary .system
in lieu of the present inadequacies, we have inquired particularly whether
better results could be obtained if probation work in the Common Pleas
Courts were left in the hands of the State Board of Administration and
the probation work of Municipal Courts were placed either under the
control of the Board of Administration or were permitted to remain
under the jurisdiction of the city government. In this connection con-
sideration has been given to possible modern developments which might
flow from cooperation of the Parole and Probation Departments of the
new State Department of Public Welfare and its Bureau of Juvenile
Research, particularly if that Bureau were expanded into a psychopathic
clearing-house, classification and research institution for adults as well
as juveniles.
After a full inquiry, with the opportunities to consider the problem
with the Governor of the State and the various State officials, the investi-
gator reached the conclusion that the desired policy is to be found in
the so-called Gorrell Bill. The chief feature of this bill, as amended,
is its provision that probation work should be carried on under the juris-
diction and supervision of the various county courts. This provision, if
enacted, will permit the courts in Cuyahoga and other counties to
conduct their own probation work subject to the inspection and
supervision of the State Board of Administration or its successor,
the Department of Public Welfare. We are of the opinion that the
enactment of this law would lead to extensive developments in various
counties in accordance with their abiUty or desire to develop probation
work, and that these developments or experiments in probation work
would lead to helpful rivalry between the counties in developing this
necessary division of judicial administration. It is our belief that the
results obtained by such competition would more than outweigh any
disadvantages that might flow from lack of common probation standards.
At any rate, the legislature could authorize the State Department of
Public Welfare so to exercise regulatory supervision over the work of
the various counties as to prevent unwholesome rivalry or unwise experi-
ments.
This raises the question of the manner in which a proper investiga-
[419]
tion staff is to be developed, and the number of persons required for
such work. A capable and resourceful chief probation officer, an office
manager, two chiefs of field investigation, 20 parole officers, eight clerks
and stenographers should be employed at once to begin the work. Such
a staff should be increased gradually until the number of probation
officers reaches at least 56. The recommended immediate staff is smaller
by 14 than that provided for the Parole Commission of New York,
which handles about 5,000 cases per year, under a system which might
well serve as experience for consideration in developing a real Probation
Department for Cleveland and Cuyahoga County.
After considering the situation in Ohio, we are convinced that it is
not advisable from any point of view to hold back the development of
probation in Cleveland pending the possible extension of the work in
the State Bureau of Juvenile Research. The people of Cleveland should
develop in their school system, in the psychopathic and citj' hospitals,
in the various other hospitals, the Normal School, the Western Reserve
University Medical School, and in the Health Department, mental and
other diagnostic services which would insure the most careful examina-
tion of every individual handled by the courts, whether ultimately
placed on probation or sentenced to an institution. The fullest develop-
ment of this service would work a revolution in court, probation, and
institutional activities.' The city has the opportunity to provide, in its
contemplated new court-house, office building, and jail, adequate quarters
for an examining staff of physicians, psychiatrists, psj^chologists, proba-
tion officers, and other necessary attaches of a modern probation system.
Ordinary cases could be examined in the new building at a minimum
cost, while more difficult cases could be sent to the city and psychopathic
hospitals, now under construction.
Recommendations
1. The courts should stop trying to make final disposition of so many
cases and reduce the number of changes in dispositions.
2. A capable chief probation officer and 20 adult probation officers
' The investigator has given considerable attention to the identification system
in operation in Cleveland. The work appears to be thoroughly reliable and within
its limits competent, but the scope is too limited, because of the studied opposition of
habitual criminals and of the unthinking opposition of the occasional citizen who, for
some reason or another, associates finger-prints with crime. This opposition is not well
founded, for the reason that finger-print identification has been applied throughout
the army, is utilized by many banks and private corporations and by public bodies
in this and other countries, and is the least objectionable identification record yet
devised.
[420 1
should be einployod at once. An adequate office should be provided for
the department, and a capable follow-up record system and field investi-
gation system should be adopted. The chief probation officer should be
the liaison officer between the Municipal Courts and the other official
and non-official organizations capable of assisting the courts in deter-
mining all the facts of the personal, family, social, educational, and indus-
trial histories of prisoners.
3. The couits in the various counties of the State should be author-
ized to organize their own probation departments.
4. The Common Pleas and the Municipal Courts should join with
other public and private agencies in establishing proper diagnostic and
treatment centers in the public schools, the city's new general psycho-
pathic hospital, the various hospitals, the School of Education, the
Western Reserve University Medical School, the Health Department,
and the large industries of Cleveland.
5. If the two courts are combined on their criminal side, as recom-
mended in the section of this Survey devoted to the criminal courts,
the chief probation officer of the Juvenile Court should become chief
probation officer of the combined city and county criminal court.
[421
T
CHAPTER IV
PAROLES, COMMUTATIONS, AND PARDONS
HE Ohio General Code vests the managers of the workhouses
with considerable discretion in discharging and paroling inmates
committed thereto.^
In the city of Cleveland the Director of Public Welfare, the parole
' Sections 4133, 4134, 4135, 4136, and 4137 of the code granting the authority to
release, re-arrest, and return inmates of the workhouse, read as follows:
"Discharge and record thereof. An officer vested by statute with authority to
manage a workhouse, may discharge, for good and sufficient cause, a person com-
mitted thereto. A record of all such discharges shall be kept and reported to the
council, in the annual report of the officer, with a brief statement of the reasons
therefor.
"Parole of inmates. Such officer also may establish rules and regulations under
which, and specify the conditions on which, a prisoner may be allowed to go upon
parole outside of buildings and enclosures. While on parole such person shall remain
in the legal custody and under the control of the officer, and subject at any time to be
taken back within the enclosure of the institution. Full power to enforce the rules,
regvdations, and conditions, and to retake and reimprison any convict so upon parole,
is hereby conferred upon such officer, whose written order shall be sufficient warrant
for aU officers named therein to authorize them to return to actual custody any con-
ditionally released or paroled prisoner. All such officers shall execute such order the
same as ordinary criminal process.
"Violation of parole. Such officer may employ or authorize any person or persons
to see that the conditions of a parole are not violated, and in case of violation to return
to the workhouse any prisoner so violating his parole, and the time between the vio-
lation of the conditions of such parole, or conditional release by whatever name, as
entered by order of the officer on the records of the workhouse, and the reimprison-
ment or return of the prisoner, shall not be counted as any part or portion of time
served under his sentence.
"Return of paroled to custody. Any prisoner at large upon parole who fails to
return to the actual custody of the workhouse as specified as one of the conditions of
his parole, or commits a fresh crime and is convicted thereof, shall be, on the order
of the officer, treated as an escaped prisoner and subject to the penalties named in
Sec. 12840. But no parole shall be granted by any such officer without previous notice
thereof to the trial judge.
"Officers to have police powers. The superintendent, assistant superintendent,
and each guard of the workhouse shall have such powers of policeman as may be nec-
essary for the proper performance of the duties of his position."
I 422 1
officer of the department, and the superintendent of the workhouse
jointly exercise the powers conferred by law upon the director alone.
Administration
The parole officer prepares the records of prisoners whose cases are
under consideration for parole. The so-called records are in reality the
results of his own and the director's personal investigations, as no in-
formation about cases is furnished by the courts or the probation officers
save what appears upon the commitment papers. The director hence
puts in a great deal of time upon the investigation and consideration
of individual cases.
Under the existing arrangement, extensive consideration of cases is
largely labor lost, for the workhouse keeps practically no records. When
a man presents himself for consideration, information concerning him is
furnished verbally by the superintendent of the workhouse. If the
superintendent's recommendation is favorable and the man has a letter
from a friend or an alleged former employer or an alleged relation, his
chances of parole are good. If he is paroled, he is merely turned out of
the institution and aUowed to look after himself without supervision,
unless there is an unremitted fine to look after or some adjustment with
respect to children, in which case the parole officer looks after the case.
Many men who spend the winter at the workhouse at the city's expense
are released when the ice goes out with the hope that they may get jobs
on the lake during the navigation season. Under prevailing conditions
adequate and necessary supervision of men on parole is impossible.
Director Blossom and Parole Officer Miller are conscientious and
use good judgment in handling cases, but the whole system of parole is
so crude and undeveloped as to be wholly inadequate. Under existing
conditions, where there is no record system either in the institutions or
in the central office, a single parole officer should not be required to
handle more than 50 cases. If an adequate system of institutional and
parole records were installed, such as we are filing with the Survey Com-
mittee as a part of this report, a single parole officer should be able to
handle 100 cases.
If the courts did not attempt to handle the cases by the form of
sentence imposed, by the great number of changes in dispositions and
the number of recalls, the pressure exercised by the prisoners would
doubtless have forced a better parole system long ago, but, although the
judges are admittedly without adequate information concerning the
prisoners, they are apparentlj' content not only to guess and guess
again, but also to change their guesses frequently in particular cases,
[ 423 1
as statistics collected in the course of this survey clearly show. In this
connection we confine ourselves to a study of the manner in which 626
and 696 prisoners previously sentenced to the workhouse were released
therefrom during January, February, and March, 1920, and during July,
August, and September, 1920, respectively.
TABLE 7.— SUMMARY OF THE MANNER IN WHICH 626 AND 696 PRISON-
ERS WERE RELEASED FROM THE WORKHOUSE DURING STATED
PERIODS IN 1920
January,
July,
Manner of release
February,
Percentage
August, and
Percentage
and March,
of 626
September,
of 696
1920
1920
Labor
132
21.1
107
15.4
Labor and costs
128
20.4
206
29.6
Expiration and costs
170
27.2
175
25.1
Paroles
91
14.5
68
9.8
Court orders
53
8.5
67
9.6
Escapes
39
6.2
58
8.3
Still in
1
0.2
6
0.9
Miscellaneous
12
1.9
9
1.3
Total
626
100.0
696
100,0
Table 7 shows the gi-eat preponderance of court action and the relative
infrequency of parole department action in bringing about the release
of prisoners at the workhouse.
Space does not permit detailed analysis here of the data' summarized
in Table 7 and also in Tables 2 to 6 inclusive. From the material at
hand the conclusion may be drawn that judges, in sentencing prisoners
to the workhouse, are seriously overworking fines and do not give suf-
ficient attention to the factors which determine whether prisoners are
fit to return to the community as law-abiding citizens. The courts in
Cleveland, like the courts all over the country, are confining their action
too closely to the determination of innocence or guilt, and have not only
lost sight of the equally significant consideration of preparing prisoners
for return to society, but also, in attempting to determine in advance
how long prisoners shall remain in correctional institutions and the
manner of their release, have so hampered and restrict«d the institutions
that the latter have not been able to function adequately. Courts, pro-
' The detailed analysis is contained in 10 statistical tables which, because of the
limitation of space, are filed with the Cleveland Foundation, where they may be con-
sulted by those interested.
1424]
batioD officers, institutions, and parole departments all have their part*
to play, but they must not be allowed to function in isolation. The
laws, no less than the mental habits governing the work in Cleveland,
should be so modified that these agencies can and will function together.
The insistent claim as to the proneness of prisoners on parole from
State institutions to commit serious crimes led us to try to determine
the truth or falsity of these charges. As there was not sufficient time
at our disposal to complete such a study, and prcliminarj- investigation
indicated that there were not enough cases to demonstrate beyond
doubt that the charges were true, we applied to Warden P. E. Thomas,
of the penitentiary at Columbus, and were furnished by him with an
analysis of the number of cases received at the penitentiarj' during the
years 1918, 1919, and 1920. The percentage of parole violators among
those received for each of the years is reported as follows:
1918 5.6 per cent.
1919 4.9 per cent.
1920 4.4 per cent.
Warden Thomas states that his figures for the eight years from 1913
to 1921 show only 196, or 4.15 per cent., of 4,713 prisoners serving indeter-
minate sentences, previously paroled from the penitentiary, who were
returned parole violators. Also that about 18 per cent, of the total
population of the penitentiarj' at the present time previously served
terms in the State Reformatorj' at Mansfield. If we are to accept these
figures at their face value, the charges against the system in Ohio are
clearly disproved, for the percentage of violators is phenomenally low.
Only a most careful investigation would show clearly why the percentage
is so low. It is necessarj' to detennine whether released prisoners have
gone to other States, whether they have been clever enough to use
others as "cat's-paws," or whether the police iathe various Ohio cities
and the parole work of the penitentiarj' have allowed a number to operate
with immunity. These would be fruitful lines of inquiry, and until they
have been followed, the parole system is entitled to considerable benefit
of the doubt.
In order to bring about the most efficient court, probation, institu-
tional, and parole work, we recommend that a law be enacted some-
what similar to the New York legislation (Chapter 579 of the laws of
1915 of the State of New York, as amended by Chapter 287 of the laws
of 1916),' pursuant to which oflfenders of various classes, if twice con-
' Copies of these statutes were attached to this report but were omitted because of
lack of space. They are on file at the oflBce of the Cleveland Foundation.
[425]
victed of any one of a number of offenses within twenty-four months or
three times previouslj" within any period, if sentenced to imprisonment
in any institution, must be given an indeterminate sentence not to exceed
two years, which may be terminated by the parole commission at any
time. Another section of this law provides that judges imposing sen-
tence to imprisonment in a workhouse similar to the one at Warrensville
shall be members of the parole board which determines the time a pris-
oner is to remain in the workhouse and his eligibility for parole. The
law also gives judges sentencing prisoners to the penitentiary absolute
veto power over the parole commission's release on parole. Such a
method depends for its success not only upon the care exercised by
judges, but also upon the use of an infallible system of identification
which, as we have already set forth, must become the corner-stone of
any efficient correction system.
The recent enactment of the so-called Norwood Bill' complicates
the situation in Ohio. This law attempts to strike at the reported evil
of too frequent paroles by penitentiary authorities by requuing the
courts to fix, within the limit prescribed by law, a minimum period of
duration of all sentences in all felony cases, except in the case of treason
and murder in the first degree.
The objections to this measure we set forth in a memorandum to
Governor Davis, who refused to approve the bill, which, however, be-
came law without his signature.^ The objections as given in the letter
were:
1. It will produce confusion and serious inequalities because of the individual
differences in minimum sentences which will be imposed in the various courts.
2. It will lead to the imposition of short sentences in some courts for offenses
committed by frequent offenders, who will become suUen agitators and dis-
turbers in the penitentiary if the Board of Clemency or the Board of Parole, its
probable successor, imposes the usual requirement of a longer stay within the
prison enclosure before such a repeater is allowed to go out upon parole.
3. It is not the best way in which to achieve the results the introducer and
many of its supporters evidently had in mind as necessary and important.
4. It will seriously hamper, if not prevent, the progressive development of
the proper administration of the penitentiary and of the parole law, since the
whole tendency of its administration will be to place emphasis upon penalties
imposed by the various judges alleged to be necessary to fit the crime and to
' See Appendix II.
' A substitute bill was submitted as a part of this report, but was omitted because
of lack of space. It is on file at the office of the Cleveland Foundation.
[426]
push into the background questions of reformation and restoration of the prisoner
as a law-abiding citizen.
We recommend in its place the enactment of a law similar to Chapter 579, of
the laws of the State of New York for the year 1015, pursuant to which the court
sentences the prisoner to the penitentiary for the statutory maximum but with no
minimum. Within ninety days after the pri.soner is received at the penitentiary
the results of a full study of all the information the court had at the time the
prisoner was sentenced and of all information the parole board and the peniten-
tiary officials are able to secure in addition, are embodied in a classification report
which is forwarded to the judicial officer presiding in the court where sentence
was imposed, with a recommendation of what minimum requirement shall be
imposed upon the prisoner as a condition of his parole. If the judicial officer pre-
siding approves the recommendation, he affixes his signature to the report. If he
disapproves, he so states in writing, and if he so desires, he indicates in wTiting
upwn the face of the report in the space provided what minimum requirement he
thinks should be imposed. In any event, after this return is received by the
parole commission, it notifies the prisoner what the minimum requirement shall
be and both it and the prisoner know that the prisoner cannot go out upon
parole until the judicial officer presiding in the court in which sentence was im-
posed gives his approval thereto in writing.
The principal arguments in favor of this law may be summarized as
follows :
1. It breaks down the Chinese wall between the courts and the penitentiary,
and forces reasonable cooperation between these two most important correctional
forces.
2. It avoids the imposition of minimum sentences by different judges which
produce bitterness and lack of respect for the courts in the minds of the very
persons who are in most need of gaining more respect for courts and the law —
the prisoners themselves.
3. It places a reasonable check upon any undue leniency of ministerial offi-
cials and in most cases will give their work judicial sanction.
4. It pro^des a channel through which the judicial authorities may exercise
proper control over punishment and become officially and vitally interested in
administration and the rehabilitation of the prisoner.
5. It allows the judicial officer to express his judgment as to minimum re-
quirements, not when the prisoner is sentenced when conditions are abnormal
and only some of the facts about the prisoner and his crime are known, but after
a much more complete investigation of the prisoner's record and environment
has been made and after much more is known about the peculiar and particular
characteristics of the prisoner himself.
For five years such a law has been in successful operation in New
York city, and there is now a likelihood that its provisions will be made
[427 1
applicable to State prisons. It is looked upon with favor by judges and
penologists generally.
We, therefore, urge the repeal of the Norwood Bill.
It must be expected that the Norwood law will largely increase the
demands for executive clemency and conditional pardons in order to
overcome the inequalities of the minimum sentence imposed bj' the
judges in the various courts of the State. In some States the judges in
one section place on probation a man who steals chickens, while in
another section of the same State such a man is sentenced to imprison-
ment from two to eight years. Demands for executive clemency and
conditional pardons mean not only a vast increase in the work of the
Governor's office, but also develop a tendency to break away from the
present system, which vests in the Board of Clemency rather than the
chief executive officer of the State the duty of determining whether a
man shall be released on parole or recommended to the Governor for
executive clemency or pardon. This development is particularly unfor-
tunate, as the executive clemency and pardon should be reserved for
obvious miscarriage of justice or in recognition of unusual conduct dur-
ing imprisonment.
We have been furnished with a tabulation of pardons and commu-
tations gianted by the Governors of Ohio in 191.5-1916 and 1917-1918)
which indicate that the present tendency in Ohio already is for the
Governor to exercise functions which should be reserved for considera-
tion of the Pardon and Parole Department of the State government.
The too free exercise of the pardon and commutation powers of the
Governor is open to criticism because it seriously interferes with the
proper functioning of corrective agencies.'
Table 8 shows the pardons and commutations gi-anted in the years
1915 to 1918 inclusive.
In 1915 and 1916 life sentences were reduced to terms varying from
one year and two months to thirty years; and indeterminate sentences
of one to fifteen and twenty years were changed to terms carrj-ing from
one month to twelve years. During 1917 and 1918 life sentences were
reduced to terms varying from nine months to nineteen j'ears and inde-
terminate sentences of one to twenty and thirty years were reduced to
terms varying from twenty days to fourteen years.
It may be that the Governor, recognizing the imperfections of the
Ohio Indeterminate Sentence Law, was attempting to right obvious in-
' For a more detailed study of the exercise of the governor's pardoning power for
a period of twenty-two years see the report prepared for the Ohio Institute for Pub-
lic EflBciency, Appendix IV.
[428]
TABLE 8.— PARDONS AND COMMUTATIONS BY THE GOVERNOR OF
OHIO, 191.0 TO 191H
1915-1916
1917
-1918
Offense
Pardons
Commu-
tations
Pardons
Commu-
tations
Murder, first degree
3
6
5
7
Murder, second degree
13
18
20
7
Homicide
1
Manslaughter
5
1
3
1
Shooting to kill
4
3
3
1
Shooting to wound
1
Cutting to kill
1
i
1
Cutting to wound
1
Assault to kill
2
2
0
Maiming
1
i
Rape
3
'5
6
2
Assault to rape
3
1
Having carnal knowledge of insane women
i
Abortion
i
1
Incest
1
Burglarj' of inhabited dwelling
■2
3
'5
0
Burglar>'
11
7
3
Burglary and larceny
6
2
5
'5
Grand larceny
t)
2
t
3
Robbery
1
i
0
Robbery and operating motor vehicle with-
out owner's consent
1
Safe-blowing
1
Pocket picking
1
'3
'3
2
Theft of automobile
1
2
1
Horse-stealing
1
1
Having burglar tools in possession
1
Receiving stolen goods
1
■2
Forgery
5
3
0
Embezzlement
6
3
5
'3
Extortion
2
False pretenses
1
Blackmail
Carrying concealed weapons
1
■2
1
Attempt to dynamite cars
1
Arson
5
Burning building with intent to prejudice
insurer
Non-support
5
'2
Bigamy
Perjury
i
Unlawful transportation of female for pur-
pose of prostitution
Contributing to juvenile delinquency
Aiding prisoner to escape
Sub-total
93
73
118
43
Total
1
00
1
31
:429;
justices, but free use of the power of the Governor is not the best remedy
for such conditions. A Governor of a State is too busy to attend to
these matters and may easily be imposed upon. This is indicated by
the typical causes for pardons and commutations assigned in the appli-
cations submitted to the Governor or stated by the Governor in taking
action. Among these were the following:
Reconomended by county officials and reputable citizens
Recommended by prison officials
Recommended by trial judge and prosecuting attorney
Good prison record
Deske to join relatives in another State
Imminent danger of death
Long term and good prison record
Because of doubt as to guilt
Strong evidence of reform and repentance
Lack of mental responsibiUty
Weak circumstantial evidence
Poor health and good conduct in prison
Worthy of a pardon in honor of a hohday
Ignorance of our American laws
A serious objection to the wide use of executive clemency is the
encouragement it gives to disreputable lawyers to "bleed" relatives and
friends of prisoners by making promises of pardon which they hope to
secure.
Recommendations
The summary of recommendations is as follows:
1. The Department of Public Welfare in Cleveland should have an
appropriation for an adequate parole system.
2. The Norwood Bill, enacted by the 1921 session of the Ohio Legis-
lature, should be repealed.
3. A law similar to the Indeterminate Sentence and Parole Law of
New York, known as Chapter 579, Laws of 1915, as amended by Chapter
287 of the Laws of 1916, should be adopted so that the courts and insti-
tutional authorities may cooperate to the greatest advantage.
4. The governor should not exercise the pardon, parole, and com-
mutation powers vested in him by the State constitution, except to right
obvious wrongs where there is no other legal remedy, or in the event of
any unusual conduct. All other cases should be passed upon first by
the Division of Pardons and Paroles, and should go to the governor
only upon the recommendation of that division.
[430]
CHAPTER V
THE PROPOSED NEW CRIMINAL COURT, COUNTY JAIL.
AND POLICE HEADQUARTERS BUILDING
CLEVELAND'S postponement of the erection of a new building
or buildings to house criminal courts, insolvency and juvenile
courts, police headquarters, and city and county detention prisons
has brought one compensation : namely, that of being now in a position
to build in accordance with the most modern plans and at a great reduc-
tion in cost. As a result of extensive public discussions and reports, the
people of Cleveland are now in a better position to pass intelligently
upon proposed plans and to determine the most practicable administra-
tive and building programs.
Any solution of the problem is conditioned to a certain extent by
what has already been done. The city plan committee of the Chamber
of Commerce, under date of January 26, 1921, expressed the opinion
that all business offices of the city and county should be removed from
the present civil courts building and that building used exclusively for
the courts; and that the criminal court should be housed in a more
imposing building than that which would be necessary for the county
treasiu-er and other county offices, or the police department, detention
rooms, police headquarters, and the like. The committee was further of
the opinion that the latter should be housed in a completely utihtarian
type of building. The suggestion was made that the site to the west and
north of the court-house be left for the office services of the county, the
departments of the treasurj', auditor, recorder, engineer, and the like,
for in this way excavation already begun on the present site need not
be entirely lost.
While many of the suggestions of the Chamber of Commerce com-
mittee are worthy of serious consideration, they do not seem to give
sufficient attention to the desirability of placing police headquarters,
county and city jails, the various criminal courts, prosecutors' offices,
jury-rooms, witness-rooms, and probation offices in the same building.
Time and energy' spent in making transfers and in providing a staff of
officers for courts, jails, and other offices housed in separate buildings
[ 431 1
will then be saved, besides the cost of maintaining separate identifica-
tion and other record systems for courts, prosecutors, police, city, county,
and State institutions. Opportunity for this complete and necessary
record system ought not to be lost through a system of building construc-
tion and housing which would make it prohibitive.
In making this change Cleveland would be taking another step for-
ward in eliminating evil conditions which result from sentencing prison-
ers to terms in the county jail. City and county jails should be used
exclusively as detention prisons; terms should be served in the citj%
county, and State institutions provided for that purpose.
If we are to disregard for the moment the cell blocks for the jails,
and if the requirements of the Group Plan Commission limit the archi-
tect, as is claimed, we are of the opinion that the latter has made an
acceptable layout of rooms and offices. However, the requirements of
the Group Plan Commission are such as to preclude any possibility of
combining a modern jail with the remainder of this building, as a modern
jail cannot be planned except in a building where the ceils are in wings
permitting plenty of light and air, proper classification of prisoners, and
proper courts for exercise in the open air.
The building commission should not be stampeded into accepting
an architectural design which limits the possibility of thoroughly modern
and up-to-date criminal administration. If the commission were to
yield this point, it would repeat the mistakes made in designing the
Warrensville workhouse and the city infirmary at Warrens ville.
There is danger that the commission may swing to the opposite ex-
treme, for there are some who believe that the courts should be housed
in a building of classic design, and that anj'thing is good enough for a
jail and almost anything good enough for a police headquarters. This
is an erroneous viewpoint, for the reason that poor design and bad taste
lower the whole tone of administration and thus indirectly increase the
cost of administration. This has been demonstrated in public institu-
tions in the East, as well as the fact that the office building type of con-
struction can be used to advantage in public buildings.
The whole tendency in modern office building construction is to
build four walls, provide elevators, stairways, fire-escapes, and proper
corridors, and arrange the remainder of the interior as tenants desire.
There is no difficulty in constructing a modern hotel in devoting two
stories or a part of the building to a theater, dining-room, or banquet
hall.
We are, therefore, of the opinion that unless the Group Plan Com-
mission can change its requirements, as reported, so as to permit a
[432]
■ •'"" '" e;
0 V Xf JO 49
Fig. 1. — Typical floor plans of cell blocks, Westchester County Penitentiary and
Workhouse, White Plains, X. Y. Alfred Hopkins, architect
r
Fig. 2. — General view, \\estchester County Peniten
Hopkins, architect
,.;id Workhouse. Alfred
higher building with three wings containing three cell blocks which
might extend either toward the lake or toward the present Civil Courts
Building, it is advisable to build a structure of office building type to
contain the criminal court, prosecutor's office, police headquarters, and
county and city jails upon the site on the public square now occupied
by the county jail and old court-house. This site is more favorably
situated with regard to transportation and population to be served than
that on the Mall. It would not l)e difficult to wreck the buildings on
the old court-house and county jail site if temporary quarters can be
rented for the county jail and the criminal courts.
Since there is sufficient land, a building with wings for cell blocks
could be constructed to the greatest advantage. If the commission
wishes to have interior cell construction of the modernized Auburn type
for so-called desperate criminals awaiting trial, a small section of one
wing could be utiUzed for this purpose, leaving the remainder of the
building with the outside cell construction, thus providing complete
classification, which is not possible under the Auburn plan. The great
advantage of the outside cell for most cases awaiting trial is too obv^ious
to require comment here. The Westchester County (N. Y.) institution
has demonstrated that such a building can be made as secure as the
inside cell construction of the Auburn type.
If the plan of the building is changed in the manner suggested, the
three wings containing three cell blocks of outside cell construction
should be separated from police headquarters. Municipal Court, and
Common Pleas Court by corridors with exits and entrances on appro-
priate floors, in accordance with the typical floor plan of the cell blocks
of the Westchester County penitentiary and workhouse at White
Plains, New York, the plan of which is shown in Fig. 1. The space
between the three cell blocks can be used as two outdoor e.xercise courts
for the prisoners of different classes to exercise at different times. If
this plan is used, space should be left between the ends of the cells and
the cell block side of the corridors so that prisoners on each tier may be
served food at tables, in order to avoid feeding prisoners in their cells
or in a common dining-hall. This cell block construction not only pro-
vides a maximum of hght and air, as is indicated by Fig. 1, but
secures the best type of cell. (See typical cell. Fig 4.) In order to
prevent prisoners from letting down strings from outside windows to
the sidewalk on the sides of such a building, it will be necessarj- to erect
a wall as high as the top of the second tier of cells. With such a sys-
tem as the one outlined, Cleveland would avoid creating criminals while
waiting to determine innocence or guilt. It is not tenable to argue
29 [ 433 ]
that this jail system cannot be made architecturally desirable, for the
general view of the Westchester County penitentiary and workhouse
shown in Fig. 3, proves the contrary. Moreover, the low cost of the
Westchester Coimty structure shows clearly that it cannot be ruled out
on the grounds of expense.
Recommendations
The summary of recommendations is as follows:
1. Police headquarters, criminal courts, prosecutors' office, and
county and city jails should be housed in a single building of the office
building type.
2. The jail section should be included in three wings containing
three cell blocks, with a complete separation of each tier of each block
by utilizing outside cell construction, reserving the space between these
blocks for exercise courts.
3. Wherever the sides or ends of the cell blocks are on the sidewalk
line or may be approached from the groimd level, they should be sur-
rounded by a wall extending from the top of the second tier of the cell
block.
4. All food should be prepared in a single kitchen for both the city
and county jail sections, and it should be served at tables set up in
spaces at the corridor ends of the cell blocks.
5. The two jails should be served by one laundry and one emergency
hospital.
6. A single system of identification and other primary records should
be maintained. These should be open to constant use, under proper
regulations, by all the courts, the pohce, the prosecutors, and the pro-
bation officers.
7. The Juvenile Court should be eliminated from the plans for this
building and provided for as previously recommended, either in a new
building to be erected adjacent to the Detention Home or in a public
school building.
8. If the Group Plan Commission cannot be prevailed upon to allow
an office building type of construction on the Mall, this structure, as
recommended, should be placed upon the site of the present county jail
and criminal court building.
9. The county building commission should avail itself of the ser-
vices of consulting architects, so that the most economical and modern
type of structure may be provided. In carrying out this plan the studies
of the present architect should be utilized as far as possible, and the
building commission should not feel bound by any previous mistakes.
1 ^34 ]
The consideration of expenditures made up to the present should not
outweigh that of present savinRs of cost, improvements in service, and
permanent economy of operation and maintenance.
10. Legislation should be passed to keep the court from sentencing
any one to a term of imprisonment in the existing county jail or any new
county or city jail which may be erected.
435]
PART V
MEDICAL SCIENCE AND
CRIMINAL JUSTICE
BY
HERMAN M. ADLER, M.D.
MEDICAL SCIENCE AND CRIMINAL
JUSTICE
CHAPTER I
PSYCHIATRY AND CRIME
CLEVELAND, like many other communities, is beginning to rec-
ognize the medical and more especially the psychiatric aspects of
delinquency and crime, though as yet this recognition is confined
to a relatively small part of the community, even of the official com-
munity. Some provision has already been made for psychiatric service,
but only in more or less isolated centers which are not as yet correlated,
and which, therefore, fail to give comprehensive attention to the entire
field. The immediate problem, therefore, is to determine upon a policy
which will utilize all the existing elements and yet insure expansion and
development.
Specialists in the different fields of delinquency, dependency, and
criminality are fully awake to the problem; there is even some general
public interest in the subject as a result of the publicity given to it during
the war. In Cleveland this is especially true, because the education and
health surveys have dealt with the question, each from its particular
angle.
Nevertheless, from the special point of view of the administration of
criminal justice much more must be done to remove the general belief
that delinquency and crime are entirely under the volitional control of
the indi\'idual. The result of this attitude has been to make the treat-
ment applied in each case dependent in a large measure on the degree of
anger or annoyance to which the community has been aroused. Vindic-
tive and punitive treatment, even though exercised by a group, loses
little of the personal element. The communitj' says to the delinquent:
"You could behave yourself if you wanted to. If you break the laws, it
is because you intended to, and therefore we are going to get even with
you." The delinquent says to the community: " You do not need to be
so rough with me, because it is in your power to be more lenient. If you
(439)
are rough, it is because you want to be unfair to me, and therefore I have
a perfect right to hit back if I can."
There was a time when medicine was practised on much the same
basis, and even when chemistry was regarded from this point of view.
All the ailments of the human body were beheved to be the machinations
of evil spirits. The reactions of chemical substances in the retort were
thought to be presided over by good and evil spirits. The scientific atti-
tude which has removed these personal elements in the fields of pure
science and of medicine is capable of doing the same in criminology. The
introduction of exact methods in medicine has never interfered with the
highest effectiveness of personality and character in the application of
the science to the individual sufferer. In the same way the introduction
of knowledge into the field of deUnquency does not diminish the value of
personal skill and of the so-called "human element" in its application to
the administration of justice.
When the pubhc becomes convinced that there are in the community
specially trained persons who understand delinquency and are able to
evaluate the various factors in a case of behavior difficulty, the result will
be like that already witnessed in the field of public health. Few persons
today have to be coerced to be protected against disease or to be treated
when they are ill. Our dispensaries and hospitals clearly testify to that
fact. When the public has learned to regard behavior difficulties, delin-
quency, and crime as manifestations of mental difficulties requiring
treatment, just as physical ailments do, and provides institutions and
officers to deal with these troubles as mental disease, rather than from the
point of view of punitive justice, we shall be able to record advances as
notable as those of the public health movement. And just as public
health machinery has made large cities and small country villages healthy
places in which to five, so this new public mental health movement will
make our communities safe and sane places in which to live.
[440:
CHAPTER II
JITVENILE BEHAVIOR PROBLEMS
The Need for Mental Health Stations
THERE is probably no one who has not passed through difficulties
during childhood. Indeed, the great majority believe they have
been saved from becoming delinquent by some fortuitous circum-
stance, by the strict disciphne of their parents, by the friendly oflBces of
others, or perhaps that they were not saved but have in some way
merely outgrown delinquency or "gotten by" in other ways. To those
who look back from a secure position in society upon an adventurous and
unlucky childhood or youth, it must appear that every individual has
been, at one time or another, more or less delinquent. "There, but for
the grace of God, goes John Bunyan," expresses their unconscious feeling
when they consider criminality. Whatever truth there may be in this,
it does not adequately explain the phenomenon of delinquency in its
serious forms to one who differentiates between the significance of a single
act and a series of reactions as disclosed by a study of the career of a
delinquent individual. Regarded with the objectivity of the behaviorist,
acts which may appear to be identical are found to have an entirely dif-
ferent significance. This is a point of view which the law — the emphasis
of which is on the crime rather than on the criminal — does not, as yet,
sufficiently recognize, though the law, to be sure, does recognize two
groups of offenders needing special treatment — the irresponsible and the
juvenile.
In dealing with adult criminals, a finding of feeble-mindedness or of
insanitj' seems to some like condoning the crime, while to others that
decision is merely the pronouncement of what they believe to be a well-
estabUshed truth, namely, that all criminals are ipso facto insane or
feeble-minded. However, all the partisanship and bitter feeling often
aroused in cases of serious adult criminality are either absent or in abey-
ance in the case of juvenile deUnquents. The entire development of the
Juvenile Courts rests on the willingness of the communitj' to believe that
the child is not accountable for his misconduct in the same sense as the
adult.
From the point of view of the behaviorist, one cannot hazard any
1441]
generalizations as to the causation of delinquency, but must make each
case the subject of independent study. These considerations, pushed a
little further, make us realize that similarity of behavior between youth-
ful individuals does not imply identical causes, and therefore does not
demand identical treatment. Perhaps nothing will help this point of
view to gain general recognition so much as the introduction of facihties
for consultation with mental and behavior experts, of which the general
pubUc may avail itself.
Parents, teachers, even children themselves, may be taught to consult
the mental health station about their private affairs without fear of
hostile criticism or condemnation, confident that though the experts may
not be able to solve their problems, they will at least give non-partisan
counsel. There will be no question whether the expert is for or against
them any more than in the case of the hospital physician. The question
will be merely what is the matter and what can be done.
In this work all the agencies of the community should assist. The
public health system, especially with its pubhc health nurses reaching
into the homes, should direct cases suited to the mental health station.
All the welfare agencies, through their social service, should daily dis-
cover cases requiting the assistance of a mental health officer. The
police could easily be instructed in the nature of the cases that should
be directed to the public health stations.
All of this field work, however, depends upon the existence of properly
equipped mental health stations as bases. These stations, as a rule, so
far as they exist in Cleveland and other communities, resemble dispen-
saries more than hospitals. This out-patient service, if properly con-
ducted and enlarged, will take care of a large percentage of the cases.
There are certain cases, however, wliich either for diagnosis or for tem-
porary or preliminary treatment, require something more than out-
patient treatment. For these, observation or temporary care stations
should be provided.
The present plans in Cleveland include a psychopathic hospital as
part of the city hospital, and ultimately a psychiatric institute in con-
nection with Lakeside or Fairview Hospitals. The psychopathic hos-
pital will take care of certain cases of juvenile delinquency in which the
psychotic and psychopathic factors predominate. It is not likely, how-
ever, that such institutions will be able to care for a large number of
behavior cases which require observation, but in which, nevertheless, the
psychotic factor is either of minor importance or absent altogether.
In order to meet the requirements of the situation the Boys' School
and the Detention Home would either have to be converted into behavior
[442]
observation clinics with assistants and staff suitably trained in psychia-
try; or, if they are to be retained as custodial or educational institutions,
a new type of institution would have to be provided. The Bureau for
Juvenile Research at Columbus, which is a link in the institutional chain,
might serve in certain respects as a model for a local institute. The chief
defect of the bureau, as was emphasized by Dr. Thomas W. Salmon in
the health survey, is that it deals with cases only after they have been
committed.
What is needed, then, in addition to the psychopathic hospital at
Cleveland and the Bureau for Juvenile Research at Columbus, is a Chil-
dren's Institute at Cleveland, either as a branch of the Columbus bureau
or of the psychopathic hospital, or an independent unit affiliated and
coordinated with the Juvenile Court, the Department of Education, the
psychopathic hospital, and the University. It is preferable to keep such
an institute distinct from the psychopathic hospital because the emphasis
on mental disease has a deterrent effect upon the public, and also because
the work of such an institute is sufficiently important to merit exclusive
attention.
With some such provision the city of Cleveland would be able to deal
effectively with the general problem of " criminal behavior " by attacking
the problem at its source — in childhood. The saving in human careers,
quite aside from the effect upon the safety of life and property, would
more than repay the community for the relatively small expenditure
involved.
The Juvenile Behavior Problem in the Schools
Speaking solely from the point of view of the relation of mental
studies to delinquency, the Cleveland schools are now very inadequately
equipped to deal with behavior difficulties and the educational treatment
of such cases. The facts which compel this conclusion have already been
indicated by Dr. Salmon in Part VI of the health survey.
The Department of Education, as in all our larger cities, has provided
special classes for children with retarded or low inteUigence. The Boj's'
School might be considered a special class for behavior difficulties in boys.
Educational and vocational questions are considered in practically all
cases of juvenile deUnquency, especially at the Boys' School, and the
physical condition also is carefully considered by the school physicians.
But all this is done in a more or less uncorrelated way. The physician
works from too narrow a point of view. To him a boy who is a ward of
the court on account of deUnquency, if he has any physical defect or
ailment, is exactly the same as any other case suffering from the same
[443 1
physical troubles. The intelligence rating, as well as the educational
and vocational tests, are made in the same way. What is entirely lacking
is the interpretation of the behavior difficulties, and for this the social
factors, which are fully as important as the physical or intellectual
factors, must be studied. A careful analysis, not only of the environ-
mental conditions under which the child is living, but also of his
antecedents, his inheritance, and his social past, must be made. So far
as this is done at all in Cleveland it is done by the overworked and under-
staffed Probation Department of the Juvenile Court and by the Boys
School.
From this point of view it is obvious that the community must assume
an entirely different attitude toward its correctional and reformatory
institutions. When it comes to treating juvenile behavior problems, we
have an even blinder faith in the curative effects of punishment than have
the criminal courts themselves. We erect buildings in which we gather
the children who have had trouble at home or in school, or in the streets
and parks of our cities, and by the application of what is commonly re-
ferred to as "strict discipline," we propose to relieve them and ourselves
of their difficulties.
The officials who preside over these institutions are usually as ill
equipped for constructive and scientific work as the domestics and win-
dow-washers of a hospital to carry out medical and surgical measures of
relief. It would never occur to any one, in these days of modern medi-
cine, to entrust a ward full of sick persons to the professional care of a
cook, and yet that is what we do over and over again in our correctional
and reformatory institutions. When we examine their provisions for
grappling with this sort of work, is there a single institution in this
country which has provided for its wards the same grade of personnel,
the same training and expertness, that we find in a good general hospital?
Recommenda tio ns
1. A Division of Mental Health should be created in the Department
of Education.
2. This division should be either coordinated with the division deahng
with physical health, or be kept distinct from it so that mental health
shall be given independent importance and authority.
3. The Mental Health Division should include the present psycho-
logic clinics.
4. The mental health work should be closely coordinated with the
Division of Special Education, or even merged with it, provided the
mental health work does not thereby suffer partial or total eclipse.
[444]
5. The mental health staff should be under the direction of a com-
petent psychiatrist.
6. The director and staff of the Mental Health Division should devote
full time to the work.
7. A sufficiently large and comprehensive staff should be provided to
assure that the work is performed in a satisfactory' manner.
8. The Division of Mental Health should cooperate with the Juvenile
Court, the Detention Home, the Welfare Federation, and the Depart-
ment of Public Welfare, and all such public or private agencies as deal
with problems of child welfare.
The Juvenile Behavior Problem in the Courts
The Juvenile Court is practically dependent upon the city health
department and cooperating private organizations for the physical wel-
fare of the children passing through the court, and largely on the Depart-
ment of Education for mental tests. There are no regularly appointed
medical or mental examiners attached to the court.
In regard to physical health, only children committed to the Deten-
tion Home or the Boys' School are examined. A physician and a nurse
serve on part time in connection with these two institutions. There is a
full-time dentist. In addition, the court often sends cases to hospitals,
namely, the city hospital, Fairview Hospital, and Lakeside Hospital. The
Humane Society furnishes the services of a physician for occasional
cases. Judge George S. Addams, the Juvenile Court judge, hopes to have
a nurse on duty at the court who will give a preUminary examination to
all children, whether committed or not, as they pass through, and also a
physician to examine all cases in the court every day. At present there
is no money to permit such an arrangement.
The mental examinations connected with the Juvenile Court consist
almost entirely of mental tests. These are applied under the direction of
Dr. Bertha L. Luckey, the chief psychologist of the Board of Education.
Dr. Luckey and her assistants examine especially children who have
turned out to be problem cases in the special schools. Boys sent to the
Boys' School by the court are examined by Miss Claire E. Walters. Miss
Walters has her office in a temporary building at the Boys' School. She
also examines the girls and dependent boys at the Detention Home
nearby. If, in the opinion of the psychologist, a case requires further
study, it is referred to the Bureau of Juvenile Picsearch at Columbus, or
a psychiatrist may be called in to make a special examination. There is
no psychiatrist on the staff of the court, the school board, or the Depart-
ment of Health, so that, naturally, these special examinations are made
1445 1
but rarely. As a result, the reports of examinations which come back to
the judge are confined merelj' to a statement of the findings and only in
the more serious cases of feeble-mindedness is a recommendation for
commitment to the State institution risked by the examiner.
The Juvenile Court is officially without equipment for making medi-
cal and special mental examinations. Whatever is done is at the personal
request of the judge. The results of the various examinations are re-
ported to him, and frequently Miss Walters appears as a witness. Neither
Miss Walters, Dr. Luckey, nor their assistants receive any extra com-
pensation for this work. Other psychiatrists and medical examiners, if
they appear as witnesses, receive ordinary witness fees.
In spite of all these handicaps the work is extremely well done, al-
though necessarily limited by inadequacy of equipment. Judge Addams
recognizes the value of the work, however, and is not only inclined to
follow recommendations made, but strongly recommends an extension of
this work. The relation between the judge and the special examiners is
one of close cooperation on both sides. The relation of these examiners
to the probation officers is less close, although through the influence of the
judge and the chief probation officer the facts disclosed by examination
are utilized by the latter in selected cases. Much, however, could be done
to improve this part of the work. The same may be said of the relation
between the special examiners and the officers of the Detention Home.
Recommendations
1. A mental and physical examination should be made of every child
brought to the attention of the Juvenile Court, and careful records should
be kept of the results of each examination.
2. The examinations should be made whenever it appears advisable
to the examiners.
3. The present exceOent cooperation between the Juvenile Court and
the Department of Education should be extended so as to make available
for both such facihties as each may be able to provide. This applies espe-
cially to the suggested creation of a Division of Mental Health in the
Department of Education. Such a division might profitably, and with
little increase of staff, contribute to the Juvenile Court much needed
information in regard to the intelligence, mental qualities, and personal-
ity of each child under consideration by the court.
446
CHAPTER III
THE ADULT CRIMINAL
Progress of Mental Ex.\mination
A DISCUSSION of the medical relations bearing upon the adult
criminal is a matter of few words, so far as the present practice in
^ Cleveland is concerned. Except for the occasional perfectly
obvious case, practically no use is made of medical and more especially
mental treatment in dealing with adult offenders. The majority of
citizens and officials no doubt believe, as a high prison official in another
State said — "Of course, the out-and-out feeble-minded or insane prison-
ers need special attention, but surely the doctors have no interest in the
normal prisoner." Does it not depend upon the attitude with which one
approaches the question of treatment whether mental experts are to
concern themselves solely with the end stages of mental disease or de-
ficiency, or with the interpretation and treatment of all cases of behavior
difficulties, assuming them to be in the main problems of mentaUty?
The use of the word normal should be prohibited as misleading in the
field of behavior difficulties.
Experience in some of our reformatories and penitentiaries has con-
clusively shown that the study of mentality yields information which no
modem institution can neglect. One need merely refer to the well-known
work at Sing Sing, Concord, Elmira, and Bedford Hills, not to mention
the institutions of New Jersey, Michigan, and Illinois, and especially the
United States Disciplinarj' Barracks at Fort Leavenworth, Kansas. The
elaborate plans for a psychiatric clinic in the new prison at Sing Sing
clearly indicate what the New York State officials think of this work as
an adjunct of the penal system. And what has come more and more to be
considered indispensable in an institution has proved itself of similar
value to the courts. Mental examinations and personahty studies are
now insisted upon as a sine qua non in the work of practically aU the
Juvenile Courts of the country.
There is every indication that this work has so far estabhshed itself
that criminal and pohce courts are also availing themselves of the ad-
vantages. Thus, the Municipal Courts of Chicago, Boston, Detroit, and
[447]
Baltimore have psychopathic clinics or laboratories to which are referred
all doubtful cases. No city has as yet worked out a system by which all
cases coming before the court are considered from the mental angle.
When, as often in court work, selection is made by untrained persons, im-
portant cases are frequently overlooked. Routine sorting examination
of all cases, with more intensive study of those shown by first examina-
tion to require further investigation, is the only safe way.
As long as the public regards this work as a mere frill or an expression
of maudUn sympathy for the criminal, of course, it will not be encour-
aged. What the uninitiated do not realize is that work of this kind is a
very matter-of-fact and practical step toward the better administration
of the law, as well as real economy.
The Nature of Mental Examinations
Although in general the public has become familiar with the fact that
mental examinations are made in many cases where there is no reason to
suppose that insanity exists, there is a great deal of doubt in the minds of
many as to the nature of the methods and the information they may be
expected to j-ield. It may not, therefore, be amiss to give briefly the out-
Hnes of this work.
Mental examinations, as they are now made, may be divided into two
main groups: The first, or psychometric method, sometimes called the
psychological tests, consists in the application of certain standardized
sets of tests with the object of determining the native mental ability, or,
as it is called, the "intelligence" of the subject. Various forms of tests
are now used, but practically all of them are based upon the work of the
French scientist, Alfred Binet, who, together with his collaborator, Theo-
dore Simon, published in the years 1905 to 1908 the first scale for the
measurement of intelUgence in children.
This scale is arranged in accordance with the idea that as a child
grows older and his mentality develops he is able to perform more and
more comphcated acts and to carry out more and more complex intel-
lectual processes; so that, if we arrange a series of tests, questions, and
problems in the order of their difficulty and present them to a child, we
may be able to infer his degree of development by the point in such a
series beyond which he is unable to answer questions satisfactorily. The
scale thus arranged by Binet has since been tried out on a large number
of school children, and as a result of this experiment it has been pos.sible
to arrange the tests in groups of six for each year. Since pubHcation,
these tests have been used to such an extent as to indicate thoroughly the
existing need of such measurement.
It soon developed that there were in the schools and elsewhere in-
dividuals who, on i)oing subjected to these tests, failed more or less widely
to come up to the grade corres|)onding to their actual age, and since the
tests had originally been arranged for age groups, it was said that their
chronological age or actual age was, let us say, twelve years, and the
mental age as determined by the scale was, let us say, nine years.
As the tests have become more definitely standardized, and as new
tests have been devised and come into use, the exact definiteness with
which the mental ages were stated ten years ago has gradually become
subject to modification. Thus, while in the case of school children of
twelve or less it is reasonably satisfactory to express their deviation or
subnormality in terms of years, it is not so clear when the method is
applied to older persons. When applied to adolescents, and especially to
adults, these methods have frequently given rise to incredulity on the
part of many ; an instance of such a case is when an individual of twenty-
five years who is guilty of a felony, and perhaps has a wife and children,
and in other respects appears to be matiue, is said to have the mind of a
child of nine years as determined by the mental tests.
The reason for this apparent discrepancy is the fact that the original
Binet scale and its modifications and amplifications hold with consider-
able accuracy for children of twelve and less, because the innate intel-
ligence reaches its full development at about the age of puberty. This
statement is not true in an absolute sense, but for present purposes is
suflBciently accurate. The development which goes on after the age of
puberty, during the age of adolescence, and until full adolescent ma-
turity is reached, is a growth in strength, power, and the use of the innate
ability through acquired habits and experience.
As this is the period during which the greatest apparent progress is
made, when the change from childhood to adult maturity is visibly going
on, it is difficult at first glance to reconcile this fact with the previous
statement in regard to the maturing of intelligence. A child of twelve or
fourteen may have as much intelligence as an individual of twenty-five or
thirty years, and yet the adult will far exceed the child in intellectual per-
formance and ability. This is because the older person is able to use his
intelligence much more effectively because his emotional control, equi-
librium, and judgment are much greater than those of a child. Less diffi-
culty would undoubtedly be experienced in this regard had we a measure
of the development which takes place during the adolescent period corre-
sponding to the one we now have for the mental development during
childhood.
The psychometric tests, therefore, give us a fairly accurate statement
30 [ 449 1
of the degree of intelligence of any individual. All inferences regarding
the maturity of the individual in other respects, namely, emotional con-
trol, forbearance, responsibility, honesty, self-denial, respect for others,
and the other attributes of personality which determine an individual's
place in the social scale, can be determined only roughly. We can com-
pare one individual with another in regard to his intelligence rating and
can say with considerable precision by how much one excels another.
For the period of adolescent development, no such exact measurement is
possible, and we have to be content with a "more or less," "better or
worse," standardization.
So striking have been the results achieved by means of the Binet-
Simon tests that in the ten years since the first publication this type of
measurement has become firmly established in schools, courts, and insti-
tutions, in fact, wherever child welfare is concerned.
Other scales have been devised wliich furnish the information in a
somewhat different way, perhaps with greater precision than the original
Binet scale. Aside from the first important modification of the scale, the
so-called Stanford Revision, by Professor Terman, of the Leland Stanford
University, there has been developed a point scale by Professor Yerkes,
and a number of special tests, such as those of Dr. William Healy, Dr.
Guy Fernald, Professor Whipple, and many others.
The problem of giving an intelligence rating to the soldiers of the
draft army during the late war gave an impetus to another form of test
which has been claiming attention in the schools, namely, that of the
so-called "group tests." This method, based in general upon the same
logic as the Binet tests, was so arranged that any one who can read and
write may perform the test. The method consists in an instructor read-
ing certain instructions to the group, who are equipped with pencils and
test blanks, and who then carry out the instructions, answering questions
and solving problems in accordance with printed statements, while the
instructor keeps time. In this way as many as 1,000 men can be examined
simultaneously.
The scores made on these tests, which are now usually referred to as
the army tests, are expressed in figures: the highest possible score, for
instance, was 212. The performance varied throughout the entire range
from 0 to 212. In order to express the result in a usable form the score
is divided into five groups, designated by the letters A to E as follows:
A, very superior; B, superior; C, average; D, inferior; E, verj' inferior.
It was found that so many men fell into the C or average group that it
became necessary to divide this into two more groups, C plus and C
minus, high average and low average respectively. The score necessary
[450]
for a commission was judged, as a rule, to be either A or B. The men of
E intelligence included the feeble-minded, the defective, and, in the
main, men not fitted for the army because of low mentality.
In evaluating the mental status of an individual who, for one reason
or another, is a subject for examination, more than intelligence rating is
required. This further information is obtained by means of certain men-
tal examinations which have as their object the determination not so
much of the quaUtative mental abihty as of the existence of diseased or
abnormal functionings or reactions. We might visuahze this by saxing
that in the intelligence field we are taking a measure, just as we might
measure the height of an individual, and that the differences are dif-
ferences in mental stature. In the second form of examination, namely,
the psychiatric examination, we are looking not for differences in height,
but for pathological processes comparable to disease processes in the field
of physical health. This type of examination seeks to determine the
existence or absence of certain symptoms of disease, and when found, to
evaluate their significance and the severitj'^ of the condition. It yields
information upon which may be based such diagnosis as mental disease or
the less severe pathological conditions, sometimes called psychopathic
personality.
The study of the mentality of an individual from the point of view of
psychiatry requires something further, however, than merely testing the
mind or the nervous system. One cannot dissect the living human being
and deal with one portion only. One of the characteristics of a li\'ing
organism is that every part is in relation with every other. Nowhere is
this more important than in the pathology of the mind. Of late a great
deal of attention has been paid to the influence on mentality of certain
factors which lie outside the nervous system. The existence of physical
disease elsewhere in the body, as, for instance, in the delirium of fever,
various intoxications and auto-intoxications, the effect of digestive dis-
turbances, and, above all, the more newly disclosed effects of various
glands and organs, such as the thyroid and the sex glands, are examples
of these factors. It will be clear, therefore, that the examination of
mentality from this point of view cannot be conducted with the same
apparent exactness as is often possible in the investigation of the mental
age. It must also be clear that this type of investigation requires the
application of all the medical knowledge available and must, therefore,
be made by a medical man ^ath special experience in this field.
There is another point which must be understood in order to appre-
ciate why medical, especially psychiatric, knowledge must be applied in
addition to the intelligence rating. As we have seen before, the intelli-
1451]
geuce test is a matter of measuring mental stature. While these methods
must be apphed with the greatest care in order to be of any value and,
therefore, require the services of a highly trained specialist, they never-
theless do not require any medical or pathological knowledge. In the elu-
cidation of behavior difficulties we are confronted with a problem which
is comparable less to an educational problem than to a problem of
health. Even though our object is not to pin a label on the individual
and find him either insane or feeble-minded, nevertheless we must arrive
at a diagnosis of health by exclusion, for in no other way can a diagnosis
be made. We cannot make a diagnosis of health or of sanity. We can
only make a diagnosis of "no evidence of disease found." We can posi-
tively identify only the signs and symptoms of disease. In the absence of
such we are justified in assuming that a person is healthy. It must be
clear, therefore, that in making this sort of judgment upon the men-
tality of individuals and in elucidating the mental factors in behavior
reactions a true knowledge of mental pathology is necessary in order to
allow this judgment by exclusion. j
The fact that psychiatrists are interesting themselves more and more i
in the behavior problems of the non-insane should not be interpreted as •
an indication that the psychiatrist is endeavoring to adjudge everybody
insane. But, on the other hand, the commonly held fallacy that the
psychiatrist has no interest in the problems of the non-insane or mentallj'
healthy individual should be also dispelled. i
Criminal Detection By the Police
1. Departmental Health Work
The only medical officer officially connected with the Division of i
Police is the pohce surgeon. Only one pohce surgeon is employed. The !
present surgeon, Dr. G. P. O'Malley, has held this office since December,
1920. The duties of the police surgeon are, first, physical examination of
all applicants for appointment to the police force, and, second, care of
sick and disabled members of the force. It will be seen from this that he
is concerned only with the health of members of the force itself and not
at all with medical or health problems connected with the work of the
police.
Even in this restricted application the work of the police surgeon is
not adequately provided for. There are too many men to be examined
and the equipment provided is in many respects inadequate. During
March, 1921, there were 800 men to be examined. Blood tests are not
being made, although the pohce surgeon believes that such tests should
be made in every case. Neither the physical examinations of applicants
[452]
to the force nor the examination of men representing themselves as sick
can now be made in any but a superficial way.
The police surgeon has no office; — merely a desk in the office at the
central station. There is no room where men can undress, and as a result
the examinations cannot satisfactorily be made. A change is contem-
plated in this respect, and new quarters are to be provided at the Eighth
Precinct.
The present officer. Dr. O'Malley, offers the following criticisms and
recommendations :
1. Better working facilities with complete equipment for making
thorough examination and also for emergency treatment.
2. Medical and clerical assistance. The city should be redistricted and
a police surgeon hired for each district. There should be two assistants
hired immediately to enable the city to be divided into three districts.
3. A card index and records of all cases entered should be kept, and for
this office space and help are required. There should be a system of
records to show exactly the number of times each man reported sick and
how much time he loses.
4. To obviate the possibihty of mahngering there should be a constant
checking up of the records. These should also show whether or not a man
is in such poor health that he is unable to perform active duty.
5. If an officer is sick too often, he should be called before a medical
board and given a thorough examination, at which time his family physi-
cian should be present, if desired.
6. All cases of pension should be handled by such a board.
7. The poHce surgeon as well as the police officers should be entitled
to pension. This is not the case at present.
Malingering in the police department seems to be somewhat of a
problem from the point of view of health work. The men live scattered
throughout the town and at times it is impossible for the surgeon to call
upon all of them on the same day they report sick. Sometimes it is two
days or more before the surgeon can see a case. The men are aware of
this, and the surgeon believes they take advantage of the fact to take a
day off. Dr. O'Malley believes that as much as 12 per cent, of the sick-
ness might be designated as malingering, although he has no means of
saying definitely, because no records other than the daily sick report
have been kept.
2. Public Health Problems
For all health work outside the department itself, including general
cases coming to the attention of the police and the examination of
suspects and prisoners, the police depend upon the Division of Health.
[453]
The city is districted, and the Division of Health maintains district
physicians. The police may call upon these in cases requiring medical
attention. The district physicians are supposed to confine themselves to
the care of the indigent sick in their homes and to protect the com-
munity from contagious disease. In actual practice the pohce call upon
the district health offices in many cases other than those specifically
mentioned.
The pohce, furthermore, are instructed to remove any arrested person
who requires medical treatment to the nearest hospital, preferably the
city hospital, and a pohce guard is furnished in case such a person is kept
at the hospital. There is a special ward at the city hospital for such
persons, in which windows are barred, doors locked, and a guard con-
stantly in attendance.
The pohce, however, render assistance to the general public in health
matters. Owing to the fact that the pohce are always available for call,
people refer cases to them, especially emergency cases, which should
properly be taken care of by private physicians. The pohce keep on file
the names and addresses not only of the district physicians, but also of
certain private physicians who have certified their wilUngness to take
emergency cases. Vice cases are referred to the Pubhc Venereal Dis-
ease Clinics and to the Woman's Protective Association. The Division
of Health maintains a diagnostic chnic for venereal diseases at No. 64
Pubhc Square and the Fairview Chnic for Social Diseases at 3305 Frank-
lin Avenue, mainly for treatment. The diagnostic clinic, under the
federal government during the war, was taken over by the city in
September, 1919. The Fairview Chnic was started August 16, 1920.
These chnics handle private as well as court cases. Under the general
code all vice cases are to be referred for diagnosis at the discretion of
the judge. There seems to be considerable laxity, however, in referring
cases. Rape cases are occasionally handled at these chnics, although, as
a rule, such cases are referred to the city hospital.
It appears, therefore, that the problems of health, either of the pohce
force or of the general pubhc, in so far as the latter comes in contact with
the pohce and the courts, are provided for adequately — if not in practice,
at least in theory. The further improvement of this service and the
raising of the general level of its efficiency is a question of applying pres-
ent knowledge and furthering development along well-estabhshed fines.
3. Examination of Suspects and Prisoners
There are certain other problems of medical relations, however, of
growing importance in connection with crime detection which concern
[454]
the police and the crime-detecting agencies more than is commonly sup-
posed.
The police have contacts with criminal and semi-criminal elements,
which in many cases, if properly utilized, might result not only in better
understanding of the general subject of crime, but actually in a more
effective dealing with it. A patrolman on the beat can no longer ade-
quately perform his full duty in a city such as Cleveland by merely
representing in theory, and not in practice, the majesty of the law. To
be the eyes of the law and of the community his powers of observation
must be trained, so that he may be able to distinguish the significant
from the adventitious.
This is not the place to discuss the details of police administration
and police personnel. But it is relevant to consider here the equipment
and skill necessarj' for individual police officers to secure the information
needed to determine many important problems of the mentahty and
reliabihty of witnesses, and the relative honesty or dishonesty of wit-
nesses, suspects, and prisoners. One cannot depend upon chance in this
matter nor the haphazard school of experience. A very precise prepara-
tion must be made by the authorities to provide the necessary training.
There seems to be no escape from the conclusion that the Division of
Pohce should in some way be provided with the services of a speciahst
in mental science, particularly in its application to the problems of
criminal behavior.
The work of the pohce surgeon in his professional supervision of the
health of the pohce force; of the district health officers, in their relation
to the physical health of the community in general, and of prisoners,
suspects, and accidental cases in particular, should be strengthened by
the introduction of three health officers — two to act as assistants to the
present pohce surgeon in his routine work, and the third a speciahst who
should devote his time and energies to the mental aspects of the pohce
department both within and without the force. Such a speciahst would
serve not only as an advisor in the department, but also as a teacher.
Mental health work should really be a subdivision of the health depart-
ment, and it is not unlikely that before long the health department of
every large city will develop a special division for mental health.
The problems which present themselves for solution by mental science
in connection with pohce work are:
First, the general problem of the existence of mental disease or mental
defectiveness in persons under observation.
Second, the very important and broad problem of pathological per-
sonahties. In a great number of cases this seems to be one of the impor-
[455 1
tant underlying factors in the inteipretation of behavior disorders. A
greater interest in these problems and a more intelUgent application of
the knowledge obtained in their scientific solution are essential if we are
ever to reduce the seriousness of a lai'ge group of problem cases. In order
to make clear the meaning of this one needs merely to refer to the rela-
tionship between the psychopathic personality and vagrancy, non-sup-
port, desertion, inebriety, drug addiction, and the types of delinciuency
in which sex difficulties are a decisive factor.
There are certain special relations in addition to these general ones
in which mental science may be of assistance to the police. Two espe-
cially demand attention:
First, the general question of malingering, which is to some extent a
factor within the police force and is of the utmost importance in relation
to the analysis of individual delinquents and criminals. The value of a
testimony, the reliability of a witness, the question whether an individual
is shamming insanity, injury, or disability, may often be solved or at
least determined by applying the rules of mental examination to the in-
dividuals under observation.
The second has to do with forced confessions or the so-called "third
degree." A suspect is apprehended and many points of circumstantial
evidence point to his being the criminal or at least implicated in a
criminal affair. But the chain of evidence is by no means complete, and
the suspect denies more or less successfully his guilt or complicity. Under
such circumstances a confession, if gained, may be corroborated by evi-
dence now easy to secure. Such a confession almost invariably simplifies
the work of the police to such a degree that in many cases they are bent
on securing a confession rather than objectively securing the available
evidence.
It is not our wish here to discuss this method from the legal nor the
police aspect. From the point of view of the scientist it is a clearly in-
eflfectual and dangerous method. Not only is it apt to be misleading, but
its chief fault is that it tends to accustom police officers to seek the easiest
way out of a difficult situation, rather than to apply the best methods of
scientific investigation.
However, confessions probably will continue to be sought, and in
connection with this work a specialist in mental examination would prove
of assistance. A careful mental examination will disclose whether a per-
son is able to give reliable information, whether he is suggestible and to
what degree, and therefore whether he will accept readily the suggestions
of the "third degree." Furthermore, laboratory methods are of con-
siderable aid in determining whether a person is withholding informa-
I 456 ]
^
tion, whether he shows well-marked emotional reactions, and many
other points now too often ignored in the prosecution of unscientific in-
vestigations.
Recommendations
1. Three additional police surgeons should be appointed to serve as
assistants to the police surgeon.
2. These surgeons should be employed on full time.
3. They should include in their duties medical and surgical attention
to the suspects and prisoners lodged in the police jail.
4. One of the assistant police surgeons should be an expert in psy-
chiatry, and should be known as the mental health officer.
5. The mental health officer of the police department should serve full
time.
6. The mental health officer should devote his time to the mental
problems in connection with the police force and the police work.
7. The mental health officer should make a mental and personality
examination of every candidate for appointment to the police force and
should record his findings.
8. Reexaminations of every member of the police force should be
made by the surgeon and mental health officer once every year.
9. The mental health officer should be present whenever possible at
all special examinations of prisoners and suspects, especially in the case
of examinations conducted with the purpose of obtaining so-called " con-
fessions."
Crime Detection by the Coroner's Office
"The office of coroner has long been a subject of comment and unfavorable
criticism in this country. Physicians and medical societies have made frequent
efforts to secure a more efficient administration of the duties devolving upon this
office. Laws have been enacted establishing other offices as well as State boards
and commissions which have gradually taken away many of the duties formerly
belonging to the coroner. The importance of the office has so decreased that
little attention is given by the political parties or by the voters to the candidates
who seek election to the position. And even less attention is given by the public
to the actual administration of the office by the men elected."
Thus begins the report of the investigation made by the Coroner's
Committee of the Municipal Association of Cleveland in 1912, and in the
nine j'ears which have passed since the publication of this report prac-
tically nothing has been done to correct conditions or to apply any of the
recommendations made at that time. With minor changes the report is
valid today.
[ 4.57 1
The office of coroner in Ohio is governed entu'ely by statute. The
Ohio constitution of 1802 provided that one coroner should be elected in
each county; but no provision for this office is contained in the present
constitution. Under statute one coroner is elected in each county in the
even-numbered years, who holds office for two years from the first Mon-
day of the January following his election. The statutes make no pro-
vision for deputy coroners or other assistants, although reference is made
to "the official assistant of the coroner," for whom, however, no appro-
priation is made. Because of the advantage of medical knowledge in this
work it has been the custom to nominate physicians for the office of
coroner.
The coroner's chief duty is to determine in cases of sudden or unex-
plained death the causes of death and whether it resulted from unlawful
means, and, in the latter case, to fix responsibility for the crime and name
the perpetrator. It is obvious, therefore, that a consideration of the
office of coroner is well within the scope of a survey of the administration
of justice.
Upon the proper execution of the coroner's duties depends, in no small
measure, the strict enforcement of the law in homicide cases. A lax per-
formance of these duties, whether due to carelessness, intentional neglect,
or merely to ignorance, gravely affects the community. Public safety,
especially in large and congested centers of population, requires now, as
perhaps never before, that the inquiry into the cause of death shall be
conducted according to the best modern theories and with the most ex-
pert knowledge and skill. It is easy to simulate an accident or suicide
and therefore the definite determination that violence has been used
may be well-nigh impossible unless the utmost skill and scrupulous
scientific accuracy are brought to bear. It is clearly unsafe to trust such
work to any but a highly competent pathologist and medico-legal expert.
The coroner's duties are given in the following excerpt from The
Coroner's Office, Efficiency Series, Report No. 2, issued by the Municipal
Association of Cleveland in December, 1912:
Inquests
The main duty of the coroner is holding inquests. Sections 2856 and 2857
of the General Code provide for the holding of inquests and set forth the method
of procedure as follows :
"Section 2856. When informed that the body of a person whose death is
supposed to have been caused by violence has been found within the county, the
coroner shall appear forthwith at the place where the body is, issue subpoenas
for such witnesses as he deems necessary, administer to them the usual oath, and
proceed to inquire how the deceased came to his death — whether by violence
[458]
from any other person or persona, by whom, whether as principals or accessories
before or after the fact, and all circumstances relating thereto. The testimony
of such witnesses shall be reduced to WTiting, by them respectively subscribed,
except when stenographically reported by the official stenographer of the
coroner, and with the finding and recognizances hereinafter mentioned, if any,
returned by the coroner to the clerk of the Court of Common Pleas of the county.
If he deems it necessary, he shall cause .such witnesses to enter into recognizances,
in such sum as may be proper, for their appearance at the succeeding term of the
Court of Common Pleas of the county to give testimony concerning the matter.
The coroner may require any and all such witnesses to give security for their
attendance, and if they or any of them neglect to comply with his requirements,
he shall commit such person to the prison of the county, until discharged by due
course of law.
"Section 2857. The coroner shall draw up and subscribe his finding of
facts in writing. If he finds that the deceased came to his or her death by force
or violence, and by any other person or persons, so charged, and there present,
he shall arrest such person or persons, and convey him or them unmediately
before a proper officer for examination according to law. If such persons, or any
of them, are not present, the coroner forthwith shall inform one or more justices
of the peace, and the prosecuting attorney, if within the county, of the facts so
found, in order that the persons may be immediately dealt with according to
law."
The terms used in Section 2856 have been construed by the Ohio Supreme
Court (62 O.S. 307) as foUows:
"A death 'caused by \'iolence' is a death caused by unlawful means, such
as usually call for the punishment of those who employ them. A body ' is found'
within the county when it is ascertained by any means that it is within the
county."
'"Death is supposed to have been caused by violence,' whenever from such
obser\-ation as he may be able to make, and from such information as may come
to him, the coroner is, for reasons of substance, led to surmise or think that death
has been so caused."
As thus[interpreted by the Supreme Court, the statute, in referring to "death
by violence," means intentional killing as distinguished from mere negligence.
No criminal negligence act has thus far been passed in Ohio, and the terms of
the present statute are certainly not intended to confer general jurisdiction upon
the coroner in cases of accidental deaths by railroads, street cars, in manufactur-
ing plants and the like, except in cases where death is supposed to have been
caused by "unlawful violence" and not mere negligence.
However, there is one exception to the general rule, namely, that Sees. 926-7
seem to require the coroner to hold inquests in all reported cases of fatalities
occurring by explosion or accident connected with a mine, regardless of the
question of criminality. Moreover, the statutes now pro\-ide (Sees. 212-3) that
in cases of death occurring without medical attendance it shall be the duty of
[459]
the undertaker to notify the registrar of vital statistics of such death and, if
such death appears to the registrar to have been caused by unlawful or suspicious
means, he shall refer the case to the coroner for inquest.
The statutes further provide (Sees. 6268-9), in cases where the death of an
inmate of a licensed maternity boarding-house or lying-in hospital is reported
to the board of health, that such board of health shall forthwith call upon the
coroner to hold an inquest unless the certificate of a legally qualified physician
is exhibited specifying the cause of death.
The practical effect of Sec. 2856, giving the coroner jurisdiction to act in cases
where "death is supposed to have been caused by violence" is to make it dis-
cretionary with the coroner in what cases he shall act; and renders it practically
outside the power of the courts to regulate the actions of the coroner in this
regard. The language of this section is so broad that the extent of the coroner's
authority is left almost wholly to his discretion and good faith; and any criticism
of his having assumed jurisdiction unnecessarily could be met with the general
rule that a public officer's acts are presumed to be according to law and in good
faith. In brief, the coroner is his own guide as to the number of inquests he will
hold.
Autopsies
The statutes provide (Sec. 2495) that " The county commissioners may allow
a physician or surgeon, making a postmortem examination at the instance of the
coroner or other officer, such compensation as they deem proper." Although the
coroner may determine in what cases autopsies shall be performed, and who shall
perform them, the commissioners thus have entire discretion as to compensation,
and in practice their wishes largely control as to the kinds of cases in which
autopsies shall be made. Autopsy fees and the relative number of autopsies
performed vary greatly, therefore, in different counties.
Formerly in Cuj'ahoga County the coroner distributed the autopsies among
favored physicians or hospital internes. Under the present administration the
coroner has assigned this work to his "deputy," Dr. Droege, and under an agree-
ment between the county commissioners and Dr. Droege he performs all autop-
sies at a uniform charge of $15 and confines his examinations to cases of supposed
homicidal death.
Further Duties
Where the coroner attends upon the body of a deceased person it is his duty
(Sec. 2860) to notify friends or relatives of the deceased if known, or if not known,
to advertise the fact of death in a newspaper.
He is required (Sees. 2859 and 2861) to make an inventory of all articles of
profjerty found on or about the body, and to return the inventory (Sees. 2861-3)
and the articles described therein to the Probate Court, where such property
other than money becomes subject to the order of the Probate Court, for its
preiservation or other disposition, the rights of administrators and executors
(Sec. 2684) being fully recognized. The statute directs that such property (Sec.
2863) as is unidentified or unclaimed shall be advertised and sold at public sale
I 400 1
annually by the Probate Court and the proceeds paid into the county treasury.
However, money found shall be applied first (Sec. 2S62) to paying the expenses
of saving the lx)dy, and of the intiue.st and burial, and the reniaimlcr .shall be
paid into the county treasury, where, on proper proof being offered, such money
as well as the proceeds of property sold shall be paid over to the claimant entitled
to it.
Anomalous Duties of Ohio Coroners
In addition to the duties which it would seem properly belong to the office
of coroner, he is by statute in Ohio made a process server, both for the Common
Picas Court (Sec. 2835), where the sheriff is an interested party, and for the
Probate Court (Sees. 1596 and 1599), generally, and in certain eases (Sec. 11435)
he may further be called on for summoning a jury. Moreover, he is given the
additional duties (Sec. 13G06) of endeavoring to arrest convicts escaping from the
penitentiary, and (Sec. 9914) of apprehending persons selling liquor contrary to
law within two miles of the place where an agricultural fair is being held.
In all these latter cases he is assigned duties — although his services in such
instances are extremely rare — which are already enjoined upon other officers
by law, or for the performance of wliich the courts are given the power to make
special appointments in case of need. These special duties are clearly a survival
of the days when deputy sheriffs were a rarity and when the office of coroner was
not regularlj' filled by a practising physician.
Compensation
The coroner's office is the only office still maintained on a fee basis. HLs
remuneration for his services is dependent entirely upon fees earned, the amounts
of which are scheduled (Sec. 2866) as follows:
(a) For viewing a dead body, three dollars.
(b) For all necessary writings and the return thereof, 10 cents per 100
words.
(c) For traveling to the place of \'iew, 10 cents per mile.
No special fee is provided for the hearing of testimony in connection with
inquests, and the coroner's compensation in such cases, other than the fee for
viewing the body, is dependent on the allowances for necessary writings con-
nected with making up the records from the testimony and the other incidents
of the case. The statutes do not contemplate the making of autopsies by the
coroner in person and no fee is specified for this work.
The staff of the coroner is appointed by the county commissioners,
the tenure of office being subject to their pleasure. The staff is under
the jurisdiction of the coroner, although he has no authority to discharge
individuals. There is little interest in the election of the coroner, the
name of the nominee appearing usually at the end of the ballot.
The coroner receives no specified salary, his compensation being de-
pendent on the collection of fees, the only county office still thus main-
[461 1
tained. For viewing a dead body he receives a fee of $3.00, no matter
where the body may be located nor the length of time consumed in
reaching it. For traveling expenses 10 cents per mile is allowed. The
statutes do not provide special fees for the performance of autopsies by
the coroner. As a matter of practice, the county commissioners allow a
fee of $25. There is no specified fee provided for the taking of testimony
at inquests, compensation for this depending upon the allowance for the
necessary clerical work. There is no provision for extra fees and no
allowance to meet the expenses in especially comphcated cases. Salaries
and wages for the staff are as follows: morgiie keepers, $137.50 per
month; janitors, $110.
The present coroner of Cuyahoga County, A. P. Hammond, M.D.,
has been in oflBce since January, 1921. Dr. Hammond has been a prac-
tising physician and still devotes some time to general practice. He keeps
daily office hours at the Morgue, from 8.30 to 12 and from 1 to 3 o'clock.
All who have come in contact with Dr. Hammond are unanimous in their
commendation of his serious attitude toward his work and his desire to
cooperate in every way. The community is fortunate in having such an
officer in this very important position, especially in view of the anti-
quated conditions under which this work is being performed in Cuyahoga
County.
The statutes lay down no requirements for the office of coroner except
that he must not practise as an attorney or counselor-at-law.
The present practice in the coroner's office in regard to stenographic
service is to secure a stenographer from a typewriter company on the
authority of the county prosecutor. A fee of 10 cents per 100 words is
all the compensation available, although this sum appears to be less than
the salary of a regular full-time stenographer. It has been the practice
in the past for the coroner to employ a stenographer at his own expense.
Autopsies are performed by physicians selected by the coroner for this
duty. As a rule, a qualified pathologist has been employed for this work.
For this reason practically all the autopsy work has been of a high order,
a circumstance which is all the more fortunate since it is due to the good
judgment of the coroner, rather than to the provisions of the law.
There are four morgue keepers and two janitors. One of the morgue
keepers serves as a clerk, keeping and filing the records. He assists at
autopsies and acts as coroner when the latter is absent. The present in-
cumbent was formerly an undertaker and expert embalmer. He has held
his present position for eight years. The other three morgue keepers do
general utility work, such as answering the telephone, taking messages,
receipting for property and money found on bodies brought in by the
[462]
police, making entries in property books, etc. They work eight hours a
day, seven days a week, as the morgue is never closed. No bond is re-
quired and no special qualifications are named for these positions. How-
ever, the feeling among the morgue keepers is that they should be licensed
and bonded and that a qualification for this position should bo experience
as a licensed embalmer, especially on account of the possible danger to
the community of careless handling of the bodies of persons who have
died of contagious disease.
The two janitors are responsible for caring for the two floors of the
morgue. One of the janitors serves as relief man to give the morgue
keepers one day off a week. The morgue keepers and janitors are ap-
pointed and paid by the county commissioners. The discipline is not
good, and the staff, as might be expected under the conditions, lacks
esprit de corps. On account of the valuables and other propertj' which is
continuously passing through the morgue, the staff must often find them-
selves in positions where their honesty may be questioned, a circum-
stance which further tends toward bad morale and consequently lessened
eflBciency in the service.
In addition to the above, there is a special constable attached to the
coroner's oflace who serves the necessary legal papers in subpoenaing
witnesses. This officer is allowed considerable discretion in deciding
which witnesses to subpoena. Usually the selection depends entirely
upon his judgment. The fee for this work is paid by the count}' treasurer
through the auditor, and the total sum varies considerably in amount in
a year. It is said that formerly considerable sums were paid over annu-
ally for such service.
1. Relation to Police
The Division of Police sends the coroner a copy of its reports on
criminal cases. The coroner also makes a report to the police of all cases
coming to his notice. If a dead body is discovered in surroundings indi-
cating \4olence, the police assume responsibility for all weapons and
other objects which might serve as evidence and exhibits. The coroner
takes possession of the bod}' and personal belongings. The poUce later
turn over to the prosecutor all property in their possession.
The poUce emergency or ambulance conveys bodies to the morgue in
practically all cases. This has become the custom only of late, since the
police emergency has superseded the old ambulance service which used
to be in the hands of undertakers. Occasionally bodies are brought to
the morgue in undertakers' wagons. A policeman accompanies the body
and makes a hst of the clothing and property found. The morgue keeper
[463]
makes an examination of the clothing of the corpse in the presence of the
poHce officer, making an inventory of all property found, and an entry
in the property book which the policeman signs as a witness. There is
thus a double check on all property.
In murder or suspected murder cases the clothing is put in a bag and
kept in the morgue, available for use in evidence. In criminal cases
clothing and property are released to relatives only on order of the
prosecutor. Bullets taken from bodies are carefully preserved and im-
portance is attached to the necessity of proving that the bullet submitted
as evidence was actually the one taken from the body. Some years ago
a case occurred in which a person indicted for murder was not convicted
because of careless handling of the evidence, which in this instance was a
bullet. In the case of bodies which are in an unidentifiable condition, due
to exposure or long immersion in water, or to trauma, the skill of the
expert embalmer has proved of value to the morgue by so restoring the
bodies that identification was possible.
In manslaughter and murder cases police officers or detectives are
present at the autopsies. There is naturally a great deal of cooperation
between the coroner's office and the police in detecting crimes, evidence
often being obtained in the morgue in regard to the exact cause of death,
the nature of the weapon used, and many other details which prove of
value to the criminal detective agencies. The police sometimes bring
suspects to the morgue for "third degree" purposes, suddenlj' confront-
ing the suspect with the body of the victim.
2. Relation to Courts
The coroner and his assistants have relations with the Municipal
Court, the grand jury, the Common Pleas Court, and the Probate and
Juvenile Court.
The coroner or his assistants are subject to call as witnesses in the
Municipal Court before the cases are bound over to the grand jury. The
coroner testifies before the grand jury, submitting for its use copies of the
report of the autopsy and the inquest. In all Common Pleas Courts the
coroner or his assistants testify in murder cases. The present coroner
is of the opinion that this testimony would be of more value if the coroner
himself performed the autopsy. The coroner, as well as all the assistants
and employees, are, of course, subject to subpoena in court to prove corpus
delicti.
The Probate Court law of 1920 makes the coroner custodian of all
property in coroners' cases. All unclaimed money is held for a year and
then turned over to the Probate Court. A property list is made and
[464]
must be filed by the morgue keeper and the coroner. Property of any
amount or value may be released to relatives or other claimants upon
order by the Probate Court. If, however, the property is of considerable
value, it is turned over to an especial!}' appointed administrator. The
order from the Probate Court releasing property is carefully filed at the
morgue in the property book.
The relations of the coroner to the Juvenile Court are of little impor-
tance, as the coroner and his assistants are rarely called upon to appear in
this court.
S. Relation to Prosecutors
The nature of the coroner's duties and functions necessitates much
contact with the prosecutor's office. The effectiveness of the service is
somewhat influenced, therefore, by the personal relations existing be-
tween these officers. The present coroner and the city prosecutors are on
friendly terms, and as a result, cooperate satisfactorily. The county
prosecutor decides in which cases to hold autopsies. A representative of
the county prosecutor's office is usually present to assist in coroner's
inquests. The coroner and his assistants are often called to the police
station to give information regarding the bodies and to aid the police in
preparing cases. During the trial they are often called upon to testify in
court. The coroner and his assistants are called in by the prosecutor to
establish the corpus delicti and to bind the prisoners over to the grand
jury.
4. Relation to the Bar
Lawj'ers acting as counsel in both ci\'il and criminal actions may come
to the morgue for information or evidence. A lawyer may attend the
coroner's inquests and may question witnesses, but cannot enter objec-
tions.
5. Relation to the Medical Profession
Physicians report to the coroner cases of sudden death, usually by
telephone. The coroner then decides whether or not to claim the case.
When the coroner decides not to assume jurisdiction, the physician may
perform the autopsy himself, either at the morgue or at his own office.
6. Administrative Relations
The coroner issues certificates to undertakers through the Board of
Health. Sometimes the district physicians feel they cannot issue death
certificates because of suspicious circumstances, and so report to the
Board of Health, which in turn reports to the coroner. The citj' chemist
analyzes stomach contents, secretions, and excretions obtained from the
body in suspicious cases. In all cases of death occurring without medical
31 [ 405 1
attendance within the city limits the district physician may view the
body and report "Cause of death unknown." In cases of sudden death
without medical attendance occurring in the county outside of the city
of Cleveland, the sheriff performs the functions which, within the city
limits, are performed by the poUce. He notifies the coroner when such
cases are found, and accompanies the coroner to the body. The sheriff
takes the weapons and all suspicious objects; the coroner claims the
body and the property on it. In the case of probable suicide the coroner
also takes possession of the gun or other weapon.
The county commissioners " 0. K." all bills of expense of the coroner's
office. There is no supervision of the county work. At present both the
municipal and county administration are Republican. One of the morgue
keepers who is a Democrat stated to the investigator that there are no
political troubles.
The present coroner is on friendly terms with the county prosecutor.
They cooperate in inquests and in other activities connected with their
duties. This has not always been the situation, and difficulties have oc-
curred because of strained relations between coroner and prosecutors.
7. Equipment
The public morgue was created by special statute passed in 1896 (92
Ohio Laws, 678). It was placed in care of the coroner, who is directed to
see that all dead bodies received are properly preserved until identified or
claimed for burial; to collect from friends or relatives of such deceased
persons not residing in the county a sum not to exceed $10; and to have
photographed all bodies not properly identified.
The morgue occupies a two-story building. On the first floor are the
office of the morgue keeper and a safe for property, a well-equipped
autopsy room, and a viewing hall. The morgue has capacity for 100
bodies at a time. This space is arranged in four sections, the first of
which only is cooled by refrigeration, because of the fact that it is easier
to embalm bodies which have not been frozen. Hence most of the bodies
are kept in the non-refrigerated sections. On the second floor are the coro-
ner's office, a safe for property, and the office of the assistant clerk, a well-
appointed inquest room, and files and records which go back to 1828.
These files and records are kept in the inquest room. The filing cabinets
contain the following data in each case: viewing sUp, inquest slip, a
carbon copy of the police report of criminal cases, testimony of witnesses,
and the autopsy records, all filed together in a folder.
466;
S. Death Records
Only the knowledge that we are dealing with a very serious subject
prevents us from treating in a lighter vein some of the results of the coro-
ner's work as pcrfornietl under jiresent conditions. Indeed, we cannot
entirely suppress a sense of the ridiculous when we read over the list of
causes of death as ofTicially recorded by the coroner of Cuyahoga County
for the year 1919.
The first entry for the year is:
No. 22942: "Could be suicide or murder," a reassuring statement and
one calculated to promote confidence in the guardians of pul)lic safety.
Again a few lines further along we read: No. 22957 — "Auto accident
or assault." Certainly this expresses a doubt which the public wouki be
interested to have resolved further.
No. 23178: "Aunt said she complained of pneumonia, looked Hke
narcotism." Is it necessary to dwell on the extraordinary convenience of
having the subject thus obhgingly perform the work of the coroner by
confiding the diagnosis and thus settling at the same time the cause of
subsequent demise?
No. 23203: "BeUeve strychnia used — viewed as suicide." Is itnot
possible to know whether strychnia was or was not used?
No. 23241: "Looks suspicious of strychnine poisoning," and this
suspicion must forevermore poison the mind of anyone who turns the
pages of the coroner's record because the county of Cuyahoga did not be-
lieve it important to know whether this was a case of homicide, suicide, or
an accident.
Consider from the point of view of law enforcement and the public
safety such records as these:
No. 22964: "Found dead."
No. 22987: "Found dead in shanty."
No. 22990: "Head severed from body."
No. 2.30.35: "Could be assault or diabetes."
No. 2.30.50: "Premature or abortion."
No. 23135: "Found dead in alley — lobar pneumonia."
No. 23187: "Diabetes, tuberculosis, or nervous indigestion."
No. 23253: "Consider it tuberculosis."
No. 23300: "Found dead."
No. 23484: "Found crushed."
No. 23512: "Could be diabetes or poison."
No. 23551: "Died suddenly after taking medicine."
No. 235C8: "Medicinal poisoning."
No. 23574: " Body entirely burned."
[467]
No. 23577
No. 23605
No. 23670
No. 23686
No. 23687
No. 23731
"Found dead in bath-room."
"Died suddenly."
"Loss of blood."
"Shock."
"Body covered with sores."
"Acute arsenical poisoning-accident."
In none of these cases was an autopsy performed, although one would
suppose that in some, if not in all, more precise information is needed not
only to determine the exact cause of death, but definitely to exclude
foul play.
9. Cost of Administration
The apparent cost of administration of the coroner's office appears to
be about one-half what it was in 1912. The scattering of items through-
out the county work makes it impossible to be exact, but it is safe to
assume that the entire cost of administration, including the morgue and
numerous miscellaneous items, is between $10,000 and $15,000 annually.'
REPORT OF AUDITOR'S OFFICE OF CUYAHOGA COUNTY ON THE
EXPENSE OF THE CORONER'S OFFICE
September,
1912
September,
1919
September,
1920
Coroner's fees
Constable's fees
Witness' fees
Autopsy fees
Miscellaneous
$6,101.75
1,585.30
1,801.90
1,155.00
127.01
S4,629.10
14.40
1,290.00
81,876.82
5..50
12.60
2,760.00
44.55
Totals
$10,771..56
S5,933.50
$4,699.47
Even a cursory glance at the foregoing suffices to show that the work
of coroner as now performed is far from adequate. It is indeed high time
that the facts are faced and an effective arrangement commensurate with
modern scientific efficiency be instituted.
This means aboUshing the office of coroner.
10. The Remedy
During the recent (1921) session of the Ohio Legislature a bill was in-
troduced through the efforts of the present coroner of Cuyahoga County,
Dr. A. P. Hammond, which was designed to meet some of the objections
' The budget for the oflBce of chief medical examiner of New York for the year
1921 is $127,303, of which $120,653 is for salaries and wages.
1468]
without abolishing the office of coroner. This bill allows the coroner, in
counties having a population of 100,000 or more, to appoint an official
stenographer, and "in counties where there is maintained a county
morgue, the coroner may also appoint necessary assistant custodians of
the morgue, in no case to exceed three in number." Above all, in counties
having a population of 100,000 or more, " no person shall be eligible to the
office of coroner except a Ucensed physician of good standing in his pro-
fession."
The principal objections to this bill are:
1. That the coroner is elected and not appointed. Keeping the office
in politics makes it impossible to secure the quality of service required.
No competent expert can be induced to subject his work or his profes-
sional career to the uncertainties of partisan pohtics. Continuity of ser-
vice and freedom from extraneous interference are the ^ne qua non of
scientific efficiency.
2. That the decision whether or not to perform an autopsy rests not
with the coroner, but with the prosecuting attorney. This most perni-
cious custom makes the scientific determination of the cause of death
subservient to the requirements of the prosecutor's office and dependent
upon the state of his finances, instead of regarding such determination as
a complete end in itself, the results to be used in whatever way may be
considered proper by the prosecutors or anyone else.
3. That the coroner should be a physician, but not necessarily experi-
enced in pathology. It is amply demonstrated by the history of the coro-
ner's office in Cuyahoga County that securing a physician as coroner does
not in itself constitute a sufficient safeguard against unsatisfactory results.
In 1877 the General Court of Massachusetts abohshed the coroner
and created in his place a medical examiner.' Dr. George Burgess
Magi'ath, medical examiner of Suffolk County, Massachusetts, has
kindly furnished the following statement in regard to the Massachusetts
law and its functioning:
The Massachusetts Medical Examiner Law was enacted in 1877. It abol-
ished the office of coroner, assigned to physicians appointed by the governor all
of the respwnsibilities involved in the investigation of the cause and manner of
deaths supposedly due to injurj', and delegated to justices of courts of first in-
stance the magisterial function of fixing the responsibility for a death due to
an unlawful act. The only important modification of the original statute is one
made a few years ago by an amendment which substituted for the word "vio-
lence" the words "act or negligence of another" in that portion of the law
governing inquests.
' The Massachusetts law is appended.
[469]
The statute is not highly specific in its definition of the jurisdiction of a
medical examiner, in that it merely provides for his functioning in the case of
death of any person "supposed to have come to his death from violence." The
interpretation of tliis statute by the medical examiners of the commonwealth is,
however, such as to extend its provisions to include all deaths caused directly or
indirectly by traumatism, including traumatic septicemia, deaths caused by the
action of chemical substances, of thermal or electrical agencies; deaths fol-
lowing abortions, irrespective of circumstances; deaths from disease resulting
from injury or infection relating to occupation; deaths from neglect; sudden
deaths of persons not disabled by recognized disease; and the deaths of persons
found dead. This interpretation is, of course, necessary in order to make the
law of any practical value, and brings within the scope of its operation deaths
universally recognized as appropriate for medico-legal inquiry.
The principal advantages of the Massachusetts type of medico-legal inquiry
over the coroner system are as follows:
(1) The separation of medical and judicial functions and the delegating of
each to appropriate officials.
(2) The giving to the medical investigator the primary and full jurisdiction
over the body of the decedent, thereby insuring to him ample opportunity to
observe conditions or circumstances tending to show the manner as well as the
cause of death. These often include facts susceptible of recognition and proper
interpretation by a medical examiner only.
(3) The economy incidental to the use of existing courts which dispenses
with the coroner's court and jury .
(4) The placing where it belongs, in the hands of a medical man, the duty of
determining promptly the cause of death, whereby crimes against life may be
immediately brought to light and the appropriate judicial and police authorities
notified thereof; whereby also deaths from injury other than that incidental to
the act or negligence of another, as well as deaths from so-called natural causes,
may be recognized as such with equal promptness, without unnecessary pub-
licity, and without the use and incidental expense of a court or coroner's jury.
(5) The opportunity existent is an appointive position of selecting therefor
physicians qualified by special training and experience.
Dr. Charles Norris, Chief Medical Examiner of New York city, under
the recently enacted law of New York' abolishing the coroner and estab-
lishing the office of chief medical examiner, has thus summed up his expe-
riences and conclusions:^
General dissatisfaction with the work of the coroner of the city of New York
• Laws of New York, 1915, Chap. 285. "An act to amend the Greater New York
Charter and repeal certain sections thereof." (See also: Laws of New York, 1882.
Chap. 410.)
'"The Medical Examiner versus the Coroner," by Charles Norris, M.D., Na-
tional Municipal Review, Vol. IX, No. 8, August, 1920.
[470]
resulted in many attempts in the legislature at Albany to abolish this office and
to substitute an office to be known as medical examiner, after the fasliii)n of that
created many years before in Massuchusettii. Finally on April 14, l'.)lo, the
office of tlie coroner was abolished and in its place the office of chief medical
examiner was established.
The Coroner's Office Breaks Down
Unlike the coroner's office, the medical examiner's office was not given quasi-
judicial powers, but was vested with sufficient authority to administer oaths
and take affidavits, proofs, and examinations as to any matter within the juris-
diction of the office. The judicial functions formerly vested in the coroners
were, under the medical examiner's act, transferred to the proper legal authori-
ties, namely, the magistrates and the grand jury. Prisoners are now held by the
magistrates, and the defendants are indicted by the grand jury upon presentation
of the facts by the district attorney from the reports furnished by the medical
examiner, the police and witnesses.
The judicial functions of the coroner's office are now more satisfactorily and
quickly handled by the legally trained magistrates and by the grand jury under
the guidance of the district attorney. In other words, the judicial functions of
the coroner's office are redundant and have no proper place.
The correct determination of the cause of death is designated as medical
jurisprudence, the science which correlates our medical knowledge to the purpose
of the law. Thorough equipment in medicine and surgery must be supple-
mented by a knowledge of firearms, the effect of bullets on the human body,
recognition of powder marks and burns, etc. Familiarity with the biological
methods employed in testing suspected blood, .semen, and other stains; prac-
tical knowledge of botany in the examination of dust and foreign material upon
the clothes of suspects and in the examination of the intestinal contents for parti-
cles of food, that is, plant seeds and fibers of animal and vegetable origin; an
acquaintance with the flora and fauna of waters, namely, diatoms, etc., may be
of great assistance in the microscopic examination of the contents of the lungs
and stomach of persons supposed to have been drowned; and again, the de-
termination of the freezing-point and the differences in the salt content between
the blood of right and left side of the heart may be of use to confirm or negate
the diagnosis of drowning. Entomology also may be of considerable assistance
in establishing the date of death through the cadaveric flora and fauna.
This incomplete summary of the duties of the pathological expert serves to
emphasize the point I wish to make. That the officer whose duty it is to make
such examinations which have as their one and single aim the determination of
the cause of death and a correct and analytically interpretative analysis of the
surrounding circumstances attending, must be a physician by education, tech-
nically and practically trained in these branches. No lay or professional man
other than a well-trained pathologist as above defined possesses the requisite
natural or legal qualifications to discharge properly the duties of such an office.
[471]
The records of the medical examiner's office are open to the pubhc, and daily
use of such records is made by representatives of insurance companies, the
famOies or representatives of the deceased, the army and navy authorities
(especially during the late war), and the State Industrial Commission. Whereas
under the coroners, the chemical examinations, even in poison eases, were not
made except here and there, when the services of the pathological chemist of
Bellevue Hospital in Manhattan were called upon to aid in a scientific inquiry,
the office at the present time is constantly required to furnish evidence of the
presence or absence of alcohol and of poisons. We are furnishing constantly to
the department of health, the census bureau at Washington, and the various
insurance companies, information in order to give them accurate data for pur-
poses of classification, etc. The educational value of our reports is illustrated by
the curious fact that the office is now criticized in those instances where chemical
examinations are not made.
Without the aid of a properly organized chemical laboratory many certifi-
cates of death would be signed improperly. A most noteworthy illustration of
this point is the fact that before the attention of the country was called to the
so-called epidemics of wood alcohol poisoning, this office had become aware of
the iniquitous sale of methylated spirits in place of grain alcohol through the
routine chemical examination of cases which had come to autopsy in which the
pathological lesions were indefinite.
The difficulty in abolishing a long and well-established office, as was the
coroner's, is abundantly illustrated by the discussions which took place before
the senate committee on city affairs in 1915. The arguments presented by the
representatives of the coroner's system were that the coroners' phj'sicians had
surveyed a very large number of cases, that they were competent in view of this
fact, that the establishment of a medical examiner's office would entail an
extraordinary expenditure of moneys — some claiming that a satisfactor.y substi-
tute of the system could not be maintained under less than half a million dollars
a year. As a mere matter of fact, the medical examiner's office was created with
a budget of about $65,000 less than the coroner's budget for Greater New York.
The favorite arguments of the coroners were that they were the protectors of
the rights of the people, that the new system was instituted purely for the bene-
fits of the medical colleges and that the introduction of a new system was merely
a scheme to obtain sufficient autopsies for medical purposes. Glaringly false
statements were made in the hearing.
The Medical Examiner Faces Perplexing Problems
One of the most serious tasks that the medical examiner performs is the
determination of criminal negligence in accident cases. This consists in the
investigation of the circumstances surrounding the deaths in various industrial
accidents, the analysis of poisonous fumes in manholes, the deaths resulting
from careless cyanide disinfection, either in rooms or in the holds of vessels,
deaths resulting from salvarsan poisoning, deaths resulting from structural
[472]
defects in wood from dry rot and in the careless construction of buildings and
other structures in general. In fact, the policy of the office is to bring out all
the facts, medical, pathologic, or chemical, and to present all such evidence in
proper fashion, making direct and trustworthy inferences and at the same time
to avoid the danger of looking at facts through the spectacles of theon.'.
The numerous cases of asphyxiation by illuminant gas which this office
handles yearly present a subject of considerable importance to the common-
wealth. The duty of the office is not merely to give a correct determination of
the cause of death, namely, whether accidental, suicidal, or homicidal, but to
report to the proper authorities any negligence or carel&ssness on the part of
the landowner or tenant in connection with the attachments of the gas tubing
to the heating and illuminating apparatus or structural defects causing leakage
of coal gas from water heaters or furnaces. There have been a number of acci-
dental deaths due to the habit of a few of the keepers of boarding-houses of
turning off the gas at stated hours and again turning on the gas in the early
morning hours when the tenants are still asleep, the burners being turned on.
One of the difficulties we have experienced is that there is no single department
which has responsibility to whom such cases can be referred with a certainty
they will receive prompt attention and action. The inadvisability of the use of
rubber tubing for gas connections was called to the attention of the board of
iddermen a few years ago and it is expected that action will be taken to prohibit
its use in connections of this kind.
I wish to call attention to the necessity of performing autopsies upon all
suspected cases, namely, all those cases in which the diagnosis cannot be made
beyond reasonable doubt. Curious illustrations have occurred in this office to
indicate how important a matter this is to the community. For instance, we
have had two cases within the past several months of supposed criminal abor-
tions in women in their early forties, upon whom criminal abortions have been
performed, and who at autopsy were found not pregnant. The department
examines cases rejected by the department of health and death certificates
signed by apparently reputable physicians have disclosed cases of acute gastro-
enteritis which turned out to be peritonitis following criminal abortion, and cases
of suicide in women supposedly pregnant (one case up to the seventh month,
in an elderly married woman), autopsy revealing that there was no pregnancy,
pregnancy being feared due to the appearance of the menopause and poison
being taken to deliver a supposed foetus.
Recommendations
1. The office of coroner should be abolished.
2. A law sunilar to the New York or Massachusetts law creating a
medical examiner should be enacted.
3. The medical examiner should be a physician, expert in pathology
and in medico-legal investigations.
4. The Board of County Commissioners should appoint from a civil
1473)
service list a medical examiner, and in counties having more than 100,000
inhabitants should appoint a chief medical examiner.
5. The chief medical examiner should have the power to appoint and
to remove such deputies, assistant medical examiners, scientific experts,
officers, and employees as may be provided for by law.
6. The medical examiner or his deputy or assistant should take charge
of the body of any person who has died from criminal violence, or by a
casualty, or by suicide, or suddenly when in apparent health or when
unattended by a physician, or in prison, or in any suspicious or unusual
manner.
7. If, in the opinion of the medical examiner, an autopsy is necessary,
it should be performed by the medical examiner or his deputy or assis-
tants.
8. The medical examiner should be in charge of the morgue.
9. Suitable laboratories, autopsy rooms, record rooms, and vaults,
properly equipped for the performance of whatever investigations may
be required in the course of the medical examiner's work, should be pro-
vided at the morgue.
10. A budget should be drawn up for the office of medical examiner
each year, based upon the total amount of work to be done and not upon
any proportionate relation to other public expenditures.
Prosecution
There is no provision for special medical examination in connection
with prosecutions. It is left to the discretion of the prosecutor to call in
physicians or other specialists to serve as expert witnesses. This is in
accordance with the course pursued almost everywhere, and probably is
satisfactory, according to present standards. There are certain individ-
ual prosecutors who consult and who may even be advised by experts
throughout a trial without placing them upon the witness-stand. While
this is a little more progressive than the general practice, it has the dis-
advantage of being partisan.
Prosecutors, in common with others, would benefit if there were avail-
able a body of expert opinion which could be invoked, as a routine
measure, in all criminal cases.
Adjudication
1. Municipal Court
In the Municipal Court no special provision is made for expert
medical or mental examinations. Cases dealt with by this court are in
the main minor ones. They do not attract attention, and are passed
[474]
through the court in a more or less routine fashion, on the general
assumption that a doHnfiueiit requires jiunislmiont.
That the Municipal Court should constitute a process of weeding out
socially incompetent individuals or serious delinquent types not yet
guilty of a major crime is not comprehended. In a community in which
public opinion on this subject is more advanced the Municipal Court is
regarded as the most important clearing-house and sorting station for
keeping the stream of civic life pure.
2. Common Pleas Court
The Common Pleas Court, criminal branch, hears cases of insanity
under certain conditions. There are three ways in which such cases come
before this court:
1. According to Sec. 13577, General Code, the grand jury may, if it
finds the accused person insane, report that finding to the Common Pleas
Court instead of indicting the person. The court then, as provided by
law, impanels a jury to try that fact, whether or not the person is insane.
If found insane, he is committed to Lima State Hospital for the criminal
insane. The Ihlenfeld case is the first and only case to be dealt with
according to the provisions of this section. Judge Baer, who tried the
case, says this method saves time and money.
2. After a person has been indicted, and before sentence, his attorney
may present to the court a certificate from a reputable physician to the
effect that the person accused is insane, whereupon a jury is impaneled to
decide the matter. The burden of proof rests on the defense. If three-
fourths of the jury find the accused insane, he is committed to Lima State
Hospital. (Sec. 13608 ff.)
3. The defense of insanity may be made at a regular trial. If the per-
son tried upon an indictment for an offense is acquitted on the sole
ground that he was insane, he is committed to Lima State Hospital, Sec.
13679. In all cases, if restored to reason, he may be prosecuted for the
offense.
These seem to be the only ways in which such cases come before the
Common Pleas Court. The number of such cases is small. During 1919
there were but seven cases. No separate or special records are kept;
the records of the number of such trials and disposition of cases are found
in the general Common Pleas docket. The prosecution can oppose the
plea of insanity and call in doctors or other specialists as witnesses.
There is no special provision in law for caUing in experts or for their com-
pensation in such cases. Judge Levine and Judge Baer are of the opinion
that the Common Pleas judge can order examination to be made as to an
[475 1
accused person's sanity. No specific powers of that nature are men-
tioned in statutes.
In Judge Baer's opinion there should be a laboratory to investigate
the mental condition of persons indicted, especially in the case of recidi-
vists. Such work he considers belongs to a specialist and not to the
judge, who cannot detect such cases when they appear in court.
3. Probate Court
There are no medical experts specially attached to the Probate Court
to act in lunacy and feeble-minded cases. The law requires that in every
case of feeble-mindedness, epilepsy, or insanity two reputable physicians
shall be called in as medical witnesses. Technically, these are selected
by the probate judge in each case, and serve only for that case. As a mat-
ter of practice, of course, physicians appointed to this commission are
almost always the same; but this is purely dependent on the judge's
choice and judgment. The medical witnesses are paid $5.00 for each
case in which they testify, or, in other words, $5.00 for each certificate.
At present the two physicians appointed by the judge are experts in
mental diseases, having had experience in State hospitals.
There is no equipment for this work; the court does not control any
offices or laboratories, though when it is not possible to arrive at a deci-
sion without special ob.servation, the court is able, as a rule, to send the
patient for examination to the psychopathic ward of the city hospital,
which is the so-called Detention Hospital.
No selection of cases is possible ; the examinations are made in those
cases which are brought into the Probate Court on a complaint of in-
sanity, epilepsy, or feeble-mindedness. Every complaint made is ex-
amined. The original papers in all cases are kept in the office of the
court. Certified copies are sent to the hospital or other institution to
which the patient is sent for examination and observation or to which he
is committed. Reports of work are also made to the Secretary of State.
The examiners perform their work wherever necessary, according to
the requirements of the case. They visit patients in their homes and in
hospitals, at the State hospital, in jails, or wherever else they may be.
The recommendations of the medical examiners are nearly always carried
out. The judge acts upon the medical experts' advice also, and has con-
fidence in the examiners whom he selects because they, in his opinion, are
careful and conscientious in their work. Since the medical examiners are
appointed by the judge, their mutual relations are very close. Appar-
ently no other consideration than their fitness for the work enters into
their appointments.
1476)
J
This system, which is obviously open to many theoretical objcctioas,
especially the opportunity it affords for political and other considerations
to play an important part, is safeguarded by the fact that the present
probate judge is above allowing such factors to influence his judgment.
The medical examiners are free from the objection of being interested in
the State hospitals, especially since the law recjuires tliat no physician
officially connected with these may serve as examiner for the Probate
Court.
In regard to the relation of medical examiners to commitment of in-
sane persons, there is this to be said: The law which authorized the pay-
ment to the medical examiner of a fee for each case committed obviously
places a premium on committing individuals; it would .seem that the
interest of the physician was to commit persons rather than to keep them
out of institutions. Any po.ssible tendency in this direction is counter-
acted, however, bj' the equally potent restraint of laws concerning mal-
practice and other legal actions.
Nevertheless, the recompensing of these special witnesses is a bad
practice. Phj'sicians are not only open to the influence above mentioned,
but personal considerations enter in which have no place in this connec-
tion, such as the fact that these fees, which are paid through public funds,
are in the nature of a largesse and should, therefore, be distributed among
as large a number of physicians as possible. In the eyes of the more
unscrupulous it will appear as a downright "graft," which may be con-
nived at only if every one gets his full share. In Cleveland, as in other
cities where this system is used, the work is done with little, if anj', e\'i-
dence of bad influences. Nevertheless, from the point of view of effi-
ciency, and above all that of educating public opinion, it should be
changed.
The tendency in all matters pertaining to insanitj', at least since
Charles Reade published Hard Cash, has been to remove all specific
incentive in the matter of commitments. This fact, probably more than
anj' other, has resulted in the respect shown for the State hospital and
the prejudice in favor of this institution as compared with private insti-
tutions for mental cases.
The decision, whether a person should be segregated to a certain ex-
tent and deprived of his liberty, should be made on purely objective evi-
dence, and while it is true that the court makes the final decision and
examines the records, it is nevertheless upon the evidence submitted by
the medical experts that such a decision is made by the court. If, then,
medical examiners are swayed, either consciously or unconsciouslj-, by
other reasons than those based upon purelj' objective evidence, the court,
[477]
even if ignorant of this, cannot act in an unbiased way. The result is that
medical examiners should be paid either a salary or a fixed fee for every
examination they make, regardless of whether commitment is recom-
mended or not. At present they are paid for the certificate issued and
not for the examination made.
The same statements which apply to the question of expert witnesses
in general apply here. There may be, and probably should be, two kinds
of experts available to the courts, the one serving as a public official on
salary, for either full or part time, the other physicians who, in addition
to the usual medical qualifications, have qualified and been appointed as
experts. When a court or other public official or a private individual re-
quires the services of an expert other than the officially salaried expert, he
may select one from this qualified list. This system does not force any
expert upon either courts or private individuals, nor does it require the
poor man to suffer because he cannot afford the expensive speciaHst.
Furthermore, it guarantees that the public official will be non-partisan
and that the privately retained expert will at least measure up to the
minimum standard requirements.
There is another phase of the relationship between the medical and
particularly the mental expert and the Probate Court. In the Probate
Court questions of property rights, guardianship, and conservatorship
continually arise. While the question of mental disease or mental de-
ficiency may not arise, there may, nevertheless, be important considera-
tions Ln which the expert knowledge of the qualified psychiatrist would
be of considerable value to the court. This refers particularly to that
very large field of personality factors which we are just beginning to
study scientifically. Every judge of the Probate Court will readily rec-
ognize what is referred to here, and probably every judge who has served
in the Probate Court has made use of his experts in non-insane and non-
feeble-minded cases, for the purpose of evaluating the personality factors
before making a decision.
This important work requires specialization and, furthermore, cannot
be done satisfactorily unless experts making the examinations are em-
ployed on full time; that is, the experts cannot be expected to be effi-
cient if they are called in only occasionally on such cases — they must be
dealing with them as a matter of daily routine.
In the last year 560 cases have been examined by medical commis-
sions for the Probate Court at $10 a case, or a total expenditure of $5,600
for medical fees alone. This does not include the sheriff fees, witness
fees, and other incidentals.
[47S]
Recotmnendalions
1. A chief psychiatrist should be appointed by the judge of the Pro-
bate Court from a civil service list.
2. The chief psychiatrist should be empowered to appoint from a
civil service list three assistant or deputy psychiatrists, one psychologist,
and one assistant psychologist.
3. Suitable salaries should be provided to attract properly qualified
experts.
4. The necessary clerical assistance and office quarters should be pro-
vided in the new court-house office building or county jail.
5. The chief psychiatrist should examine and pass upon all cases com-
ing from the Probate Court, the Municipal Court, and the Court of
Common Pleas, in which the question of sanity or insanity, epilepsy, or
mental deficiency is raised.
6. The chief psychiatrist should cause to be examined, physically and
mentally, in so far as possible, all persons coming before the Municipal
Court.
7. The chief psychiatrist should present to the courts in writing a
statement of the findings and opinion of the psychiatrist in each case
examined.
8. In cases of dispute or doubt the court should be able to appoint a
special psychiatrist to examine a case.
9. The person to be examined, his counsel, relatives, or friends, should
be permitted to be represented by a psychiatrist who should have access
to the findings of the chief psychiatrist, and who may be present at and
participate in the examination by the chief psj-chiatrist, but who may
not interfere with the conduct of such examinations.
10. The sheriff of Cuyahoga County and the Director of Public Welfare
should be able to call upon the psychiatrist to examine any person in their
custody and to enter a petition for commitment of any person thus ex-
amined who shall be found to be insane, epileptic, or feeble-minded.
11. Whenever, in the opinion of the psychiatrist, any person exam-
ined requires more extended study or observation than can be given at
the county or city jail, application should be made to the court having
jurisdiction, for temporary care at the city psychopathic hospital for a
period of ten days, or not more than three months, or until such time as
the director of the psychopathic hospital shall depose in writing that the
examination or observation has been completed.
■4791
CHAPTER IV
PREVENTION
Early Detection of Special Cases
IF WE may correctly assume that delinquency in most instances is
not merely accidental, but is associated with characteristics and per-
sonal peculiarities inherent in the individual, it must follow that
any attempt at prevention must include elimination at the source. By
this we mean the examination of children of school age and even younger
from the point of view of mental and personality characteristics, as mani-
fested especially in behavior. It is by no means a certain or a simple
matter to determine, even after careful examination, which children will
present major behavior problems later in life. But it is certainly possible
to determine which ones are in need of immediate special training and
which show present behavior or mental deviations.
A careful study of this kind, followed by intensive training and obser-
vation of the physical, mental, and social factors involved, will, if applied
to enough children, be comparable to the results obtained in the same
circumstances by the methods of physical health training. If these
methods now succeed in the Juvenile Courts, where they are applied
after delinquency develops, there is every reason to expect even more
satisfactory results when applied earlier, before the major problems of
delinquency appear. When such a plan has been in operation for a gen-
eration, it is not unlikelj^ that the problem of delinquency in the com-
munity will have changed so much as to make jails, as we now know
them, quite unnecessary. We shall probably always require places of
detention, but with a better understanding of the real causes of delin-
quency and crime and with more effective methods of prevention and treat-
ment it is fair to assume that future detention institutions will differ from
the present ones as modern hospitals differ from the ancient pest houses.
Meanwhile the police will continue to pick up and detain a large num-
ber of individuals who are a source of trouble and loss to the community
and of little profit to themselves. Even in these cases an intelligent atti-
tude requires that suitable studies shall be made of each individual case
in order really to solve the problem, instead of depending entirely on
forcible detention and segregation and the supposedlj' curative effects of
[4S0 1
punitive imprisonment. The numlier of recidivists who pass through
our jails is ample evidence against such misplaced confidence.
Even if a thorough examination of each prisoner is not possible, a
sorting by simple examinations will identify extreme types of feeble-
minded or psychopathic individuals. Individuals who are brought to
light by these sorting examinations cannot l>e properly disposed of with-
out treatment, and the treatment which may be given is one of three
general types or combinations of these, namely, physical, mental, or social.
Physical treatment is directed against physical disease, on the one
hand, and physical handicaps and defects, on the other. It is not nec-
essary to enlarge upon this familiar topic. The main thing to emphasize
here is the importance of correcting all physical disabilities, even those of
apparenth' minor significance, in the interest of improving the mental
and behavior reactions. Physicians often err in minimizing the effects of
minor physical ailments.
For example, in the field of the psychoneuroses, as exemplified by the
cases of so-called shell-shock during the war, the slighter the physical
injury, the greater the psychic disturbance. In the field of behavior diflB-
culties this is often markedly true. It is obvious, therefore, that physical
examination must be performed with subtlety and niceness of observa-
tion. Clearly a physician, to be effective in the physical examination of
behavior cases, must approach his work from a different angle from his
general medical practice. The examination thus performed must then be
correlated with the mental and social factors of each case in order that
suitable physical treatment may be prescribed.
Mental treatment consists in the main of two kinds: first, education
and training of various mental faculties or talents, which are carried out in
accordance with established principles of educational training and certain
sorts of habit formation; second, treatment bj- various means of what
may be considered pathological mental traits. Psychotherapy, hjdro-
therapy, mechanotherapy, occupational therapy, and other modern forms
of treatment may be applied bj- trained experts to good effect.
Social treatment is perhaps the most modern and least well defined of
ail the various forms of treatment. As applied to delinquency, it consists
mainly of adjusting environmental conditions to the needs of the individ-
ual case. The important point is not merely to change the environment,
but to adapt the environment to the needs, temporary or permanent, of
an individual more or less incapable of adapting himself. This form of
treatment is consequently varied, and includes the adjustment of the in-
dividual to living conditions in his particular community, as well as social
relief, recreation, or employment.
32 [ 4S1|
Public Information and Education
One of the most potent influences in prevention is, of course, public
education. As in public health, the only effective way to educate the
public is by spreading broadcast the knowledge now available to which
the pubUc is entitled.
Unfortunately, in this era of advertising, everyone is becoming suspi-
cious of propaganda conducted under the guise of public education. It is,
therefore, necessary to force upon the public something more than off-
hand opinions and prejudices. Ultimate progress depends upon the
strict adherence to facts. For example, during recent years considerable
propaganda has been adopted to prove that feeble-mindedness is one of
the principal causes of criminality. It has been contended that if we
detect and segregate the feeble-minded early in life, we can reduce crime
by one-third to one-half, if not more. This behef was based upon the
finding that in certain institutions from one-fourth to one-third of the
institutional population was rated feeble-minded by intelligence tests.
This contention was given a most favorable reception, and for a time
promised to induce a more scientific attitude on the part of officials to-
ward the various phenomena of crime, and also to arouse a greater inter-
est in and support of the institutional care of the feeble-minded. Certain
ofiicials — police, prosecutors, attorneys, prison authorities, in short, all
who were brought in close contact with the criminal population — were
reluctant to accept these statements, but their attitude was ascribed to
natural conservatism.
More recent work has shown that while figures for the institutions
were undoubtedly correct, the interpretation placed upon them was not
correct, because it failed to take into account the nature of the population
from which the prisoners came. From information now available in re-
gard to the intelhgence distribution thi-oughout the United States it
appears that the prison populations are probably f ah-ly representative, so
far as intelhgence goes, of the communities from which they come. It
may be true, therefore, that a quarter of the persons in a given institution
are feeble-minded, but, in order to reduce crime by 25 per cent, not only
would 25 per cent, of the prison population have to be committed to an
institution for the feeble-minded, but 25 per cent, of the population
from which they came would have to be segregated, which is clearly
ridiculous.
This illustrates one of the dangers of the proposed methods, even
when appUed to a worthy purpose. Nothing could be more desirable
than the scientific treatment of criminals and the application of psj'cho-
logical, psychiatric, and other mental methods to criminals and delin-
[4821
quents. But it is a mistake to make the success of such a venture depend
upon arousinp; the public's interest by unwarranted statements. In the
business world, where an effect is desired for a short time, such methods
may be legitimate, but in the case of treatment of crime, where we are
building for generations ahead, they are nothing short of dangerous. The
psychology' of salesmanship has no place in the sphere of science. The
reaction in the pubHc mind of arousing interest on the basis of statements
which are only partly true causes a loss of confidence which retards prog-
ress more than initial conservatism.
Research
Where shall the facts and information be obtained upon which a
campaign of public education may be based?
Obviously, in an experimental subject, such as criminology, and one
in which science is just beginning to make itself felt, concrete information
is extremely scanty. In order to keep pace with the progressive demands
of modem community Ufe and the growing public interest, provision
must be made for investigation and research into the nature and treat-
ment of delinquency and crime.
Such scientific research requires the same arrangements as any other
sort of scientific investigation. In the first place, there must be properly
trained and equipped experts. They must have a place in which to work
which is officially designated the laboratory, and in which are provided all
the necessary paraphernaha for scientific research. This is not the place
to enter into detailed statements as to the exact size or arrangement of
such laboratories or staff. These depend largely upon the resources
which the community makes available for the purpose and the interest
which it arouses.
Since scientific research is at best an uncertain matter, a hberal allow-
ance or margin of safety is advisable in order to insure a minimum of re-
turn. There are no rules for this work, and there is, as yet, no standard.
It would be better, however, for Cleveland not to venture into this field at
all unless the start can be made on a scale commensurate not onlj' with
the size and importance of the city, but with the size and menace of the
problem.
A research laboratory or institution, properly staffed and equipped,
could conduct scientific investigations into behavior problems for the
police, schools, pubUc health bureaus, courts, jails, correctional and penal
institutions, and the nimierous public and private social agencies.
In another part of this section of the survey there is a brief account
of a psychological analysis of the population of the Cleveland workhouse.
[483]
It will be seen from this analysis that the workhouse has a large number
of low-grade feeble-minded men. Reference to the chart will show that
the number is out of proportion to the rest of the community. Clearly,
here is a problem for mental science — for the student of the pathology of
human behavior. We are spending several hundred million dollars in the
United States annually in dealing with the end results of criminality and
behavior disorders. Probably not $500,000 is being spent in a scientific
attack upon the causes.'
Training of Workers and Experts
The plan outlined thus far has discussed : (a) The workers for prac-
tical daily routine; (b) the research institution and staff, where new
knowledge may be sought and gained; and (c) the dissemination of in-
formation to train and direct public opinion. There is left one more item
to round out the scheme, and that is a provision for the training of work-
ers and experts who are to take their places in the ranks.
Whenever a community has been aroused on the subject of mental
problems, and particularly behavior problems, and has finally decided
to establish scientific work, the perplexing question presents itself:
"Where shall we find the workers?" It must be admitted that the
workers available for immediate employment in this field are limited in
number. This is, however, not to be wondered at, nor is it an indication
that the subject does not appeal to scientific minds.
Rather it is a manifestation of one of the many vicious circles in our
social organization. There must be a demand for this work and a realiza-
tion on the part of the public of its importance great enough to insure a
career for the workers. This, in turn, depends upon the attainment of
results of a concrete and practical sort, to stimulate public interest.
Many who might have been glad to devote their lives to this science have
been compelled to seek other fields by a failure to obtain either oppor-
tunity or remuneration enough.
In order permanently to break up this vicious circle and to make the
scheme outlined here quite clear, we must, therefore, add a provision for
the training of workers and experts. This training should be given in the
' It is as well, perhaps, to state here that the term "scientific," as used repeatedly
in this report, is not used as applied to the worker in the exact sciences. The scientist
referred to here is not a man manipulating test-tubes and galvanometers alone. The
investigation of behavior problems requires scientists equipped to deal not only with
the methods of exact science, but also those who are capable of devoting themselves
to problems of education and social organization.
1484]
main under the auspices of a research Iaborator\', as we suggested, and in
connection with the schools and universities of the community. Such
training should be offered, in the first place, to physicians, lawyers, psy-
chologists, psychiatrists, social w-orkers, administrators, and public offi-
cials. A flexible curriculum should permit these different classes of pro-
fessional workers to obtain the training needed to make their particular
contact with the problem of delinquency. In order to do this it might be
desirable to utilize existing departments of the university, perhaps the
medical school. The latter is preferable to the law school, but close
correlation between the law school and such work in the medical school is
essential.
In addition, special courses should be offered to social workers, parole
and probation officers, police officers, teachers, and nurses. Here again
the curriculum might be so arranged that police officers, for instance,
should receive a brief and intensive training, whereas social workers and
probation officers should receive a more extended training. A scheme
such as this, furthermore, makes possible part time graduate work or
special investigations, just as now a properly qualified student may enter
a laboratory for post-graduate study on a special topic.
When an organization of this sort has functioned long enough to pro-
duce the first graduates, the community can equip itself in such a way as
undoubtedly to reap the benefit in a continually lessened cost of adminis-
tration of criminal justice; and not the least of the benefits to be ex-
pected from such an organization is that other communities, no less
anxious to improve their crime statistics than Cleveland, and no better
off for staff or special workers, will turn to Cleveland for their personnel.
Recommendations
1 . If possible, a privately supported institute or clinic should be estab-
lished either independently or, preferably, in connection with Western
Reserve University.
2. The object of the institute should be:
(a) Investigation of the nature and treatment of human behavior
difficulties.
(b) The training and education of special workers and experts in the
field of behavior problems.
3. The institute should have a staff comprehensive enough to include
the methods of physical and mental health and the social sciences.
4. The institute shall be equipped with the necessar>' laboratory
space and apparatus and with bed capacity for a limited number of
patients.
1485]
j^
PART VI
LEGAL EDUCATION
IN CLEVELAND
BY
ALBERT M. KALES
I
LEGAL EDUCATION IN CLEVELAND
State Requirements and Local Facilities
BEFORE taking the bar examinations in Ohio one who is not ad-
mitted to practice in another State must have studied law for
three years and must have had a general education equivalent
to a four-year high school course. He need not complete his high school
course, or its equivalent, before commencing his legal studies. The
applicant who studies in Cleveland may do so under the instruction of
any attorney in Cleveland, or in any one of three law schools, viz., the
Law School of Western Reserve University, the Cleveland Law School,
and the John Marshall Law School.
During the past four years 58 persons who gave Cleveland as their
address have been admitted to take the bar examinations upon the
certificate of an attorney that the applicant had completed some period
of study under his direction. Of these, the greater number ai-e now
practising in Cleveland. In some instances the period of study under
the attorney was the six-month period required of those who have taken
the State bar examinations and failed. In others the period of study
was one j^ear, supplementary to a law school course of two years. Prob-
ably in few instances was the entire three-year period of study under the
direction of the attorney certifying. In a few well-authenticated in-
stances men who have studied for three years at a law school, but have
been refused a certificate by the law school, have secured a certificate
from an attorney in Cleveland or in some other part of the State and
have, on the basis thereof, been permitted to take the bar examinations.
In one instance a student who had been refused a certificate by a law
school was certified by an attorney outside of Cleveland. The attorney
stated that the student had studied law under his direction for three
years, when, as a matter of fact, the student had been for three years in
attendance at a law school in Cleveland, several hours' ride by rail from
the city where the certifying attorney resided and conducted his practice.
In the past four years 66 attorneys of Cleveland have certified that
students under their direction have satisfactorily completed some period
1489]
of legal studies as the basis for taking the bar examinations. Of these,
three gave such certificates in 1917, 17 in 1918, 25 in 1919 (one certifying
to two applicants and one to four), and 22 in 1920 (two certifying each
to two applicants and one certifying who had also certified in 1918).
Inquiry among these attorneys as to the course of study pursued
under their direction resulted in the following information: In one in-
stance an attempt was made to give a review course of six months for
those who failed in the bar examinations. In one instance the attorney
conducted an informal school for business men and certified two students
who had done sufficient work to warrant, in his judgment, the certifica-
tion. In one instance the student had taken a correspondence school
course and also done bona fide work under the direction of the attorney
certifying for three years. But it seems to be the view of many that an
attorney is justified in certifying if he has personal knowledge that the
student has actually pursued legal studies, and if the attorney has
quizzed him at least once in regard to the subjects studied. It is the
exception that a definite course is laid out by the attorney and the
student pursues it under his immediate personal direction and is quizzed
from week to week, or even from month to month.
At least one attempt has been made by a correspondence school to
secure for its students the certificate of an attorney that its students have
(on the basis of the correspondence school course alone) satisfactorily
completed a three-year course of legal study. In this instance the Su-
preme Court intimated that it would be improper for the attorney to
give the certification, and he refused to do so.
The Law School of Western Reserve University has been established
since 1892. It now has 609 graduates, of which approximately 280 are
practising law in Cleveland. It is at present contributing from 35 to 50
graduates a year, 75 per cent, of whom, it is estimated, remain in Cleve-
land for the practice of the law.
The Cleveland Law School has been established since 1897, and dur-
ing that time has been under the direction of Judge Wilhs Vickery. It
has approximately 1,000 graduates, of which about one-third are esti-
mated by Judge Vickery to be in practice, and of these by far the larger
portion are engaged in practice in Cleveland. This school for the past
two or three years has been graduating yearly between 70 and 80
students, by far the larger portion of whom remain in Cleveland for the
practice of the law.
The John Marshall Law School has been established since 1916 and
has graduated 35 students, of whom about two-thirds are estimated to
be in practice, and of these, all but two are in practice in Cleveland.
[490]
In 1921 it graduated 21 students, by far the larger portion of whom re-
mained in Cleveland to practise.
Of the members of the bar of Cleveland who have acted as prose-
cutors in the past twenty years in Cleveland, 27 are graduates of the
Cleveland Law School, 11 of the Law School of Western Reserve Uni-
versity, none of the John Marshall Law School, and 11 of other law
schools, including one from Harvard, five from Michigan, one from Cor-
nell, and two from Ohio State.
In the current lawj'ers' directory of Cleveland about 1,400 persons
are listed. Of these, it may be inferred, 280 are graduates of the Western
Reserve Law School, about 300 of the Cleveland Law School, and about
20 of the John MarshaD Law School.
The Law School of Western Reserve University
Students entering this school must have completed a four-j'ear college
course in an approved college and have obtained a degree; or they must
have satisfactorily completed three years of college work in Adelbert
College (the Liberal Arts Department of Western Reserve University),
thereby becoming candidates for a degree at Adelbert College after the
first year in the Law School.
Of the 154 students now in this school, all but three answer these re-
quirements. The school has admitted three persons as special students.
The vote of the faculty is based, in all but one of these cases, upon the
fact that the special student has probably had the equivalent of a college
course, but in an institution about whose standards exact information is
not readily obtainable. The special students are not candidates for a
degree.
Four students now in the school were foreign born — two in Aastria-
Hungary, one in Finland, and one in Russia. Three-fourths of the
students are engaged in supporting themselves partially by work outside
of the school, and 10 per cent, are supporting themselves wholly in this
way. The work engaged in by these students occurs for the most part
in the heart of the citj% about thirty minutes' ride on the street-cars from
the universit}'.
The hours devoted to recitations are from 8 a. m. to 12 noon. These
hours accommodate the men who earn a livelihood, wholly or in part,
while at the same time taking their law course.
Faculty and Curriculum
Resident teachers, viz., those who give all their time to teaching at
the school, receive salaries ranging from S4,500 to S6,000 a year. Mem-
[491]
bers of the bar in Cleveland who do a slight amount of teaching receive
compensation at the rate of five dollars an hour, but this is in practically
all cases turned back to the school, so that the services of these men are
donated.
Following is a list of the resident teachers with some facts as to the
teachers and the com-ses they conduct:
Ai'chibald Hall Throckmorton: A.B., Roanoke College, 1896; A.M., Prince-
ton University, 1897; LL.B., Washington and Lee University, 1900. Resident
professor. Not in active practice. Teaches Constitutional Law, Insurance,
Pleading, and Torts. Uses Hall's Cases in Constitutional Law; lectures and Hin-
ton's Cases in Pleading; Wambaugh's Cases in Insurance; lectures and Hep-
burn's Cases in Torts. Inspection of examination pap)ers in the above courses
shows 10 problem questions in each. These questions appear to be in accordance
with the standard of questions used by the best law schools.
Walter Thomas Dunmore: A.B., Oberhn College, 1900; A.M., Oberlin
College, 1905; LL.B., Western Reserve University, 1904. Resident professor.
Not in active practice. Teaches Property, Evidence, and Conflict of Laws.
Uses Bigelow's Cases, Volumes I and II, and Gray's Cases in Property, Volumes
III and IV; Thayer's Cases in Evidetice and Beale's Cases in Conflict of Laws.
Inspection of examination papers in the above courses shows 10 problem ques-
tions in each. These questions appear to be in accordance with the standard of
questions used by the best law schools.
Alvin Collins Brightman: A.B., Oberlin College, 1900; LL.B., Western
Reserve University, 1909. Resident professor. Not in active practice. Teaches
Contracts, Quasi-Contracts, Sales, Partnership, and Damages. Uses WiUis-
ton's Cases in Contracts; Woodruff's Cases in Quasi-Contracts; WiUiston's Cases
in Sales; Mechem's Cases in Partnership, and Mechem and Gilbert's Cases in
Damages. Inspection of examination papers in the above courses shows 10
problem questions in each. These questions appear to be in accordance with
the standard of questions used by the best law schools.
Claience Millard Finfrock: A.B., Ohio Wesleyan University, 1902; A.M.,
1907; LL.B., Western Reserve University, 1907. Resident professor. Not in
active practice. Teaches Equity Jurisdiction, Trusts, Negotiable Instruments,
and Domestic Relations. Uses Woodruff's Cases in Domestic Relations; Smith
and Moore's Cases in Bills and Notes; Ames' Cases in Equity Jurisdiction;
Scott's Cases in Tritsts. An inspection of examination papers in the above
courses shows 10 problem questions in each. These questions appear to be in
accordance with the standard of questions used by the best law schools.
Alexander Hadden: A.B., Oberlin College, 1873. Practised law until he
Isecame Probate Judge in 1905. Teaches Crimes and Criminal Procedure. Uses
lectures and Rood's Cases. Examination paper for 1920 shows 5 problem ques-
1492]
tions and 5 questions calling for definitions and conventional distinctions.
Examination paper of February, 1921, shows 4 problem questions and the bal-
ance calling for definitions and distinctions.
Frank MacMillan Cobb: A.B., Yale Uni%-ersity, 1897; LL.B., Western
Reser\e University, 1899. In active practice. Teaches Public Service Corpora-
tions two hours each week for half the year. Uses Wyman's Cases. Specimen
examination paper shows 10 problem questions. These questions appear to be
in accordance with the standard of questions used in the best law schools.
Richard Inglis: A.B., Harvard University, 1903; LL.B., 1906. Teaches
Private Corporations. In active practice. Uses Warren's Cases. Specimen
examination paper shows 10 problem questions. These questions appear to be
in accordance with the standard of questions used by the best law schools.
Clinton DeWitt: A.B., Adelbert College, 1910; LL.B., Western Reser\-e
University, 1912. In active practice. Teach&s .'suretyship and Mortgages.
Uses DeWitt's Coses in Suretyship; Durfee's Cases in Mortgages. Specimen
examination paper shows 10 problem questions. These questions appear to be
in accordance with the standard of questions used in the best law schools.
Austin V. Cannon: B.S., Buchtel College, 1892. In practice since 1894.
Teaches Bankruptcy. Lectures and selected decisions used. No examination
paper submitted.
William CuUen Keough: A.B., Harvard University, 1904; A.M., 1905;
LL.B., Western Reserve University, 1909. In practice since 1909. Teaches
Municipal Corpwrations. Uses Beale's Cases. Specimen examination pajjer
shows 10 problem questions. These questions appear to be in accordance with
the standard of questions used in the best law schools.
James Cooper Logue: A.B., Adelbert College, 1907; LL.B., Western Re-
serve University, 1909. In practice since 1909. Teaches Agency. Uses Wam-
baugh's Cases. Specimen examination paper shows 10 problem questions.
These questions appear to be in accordance with the standard of questions
used in the best law schools.
John Frederic Oberlin: Gives special lectures on Patents, Trade-mark,
and CopjTight Law.
Physical characteristics of the school: The school occupies an entire
building adjoining the campus of Western Reserve Univer.sity, with ade-
quate class-rooms, teachers' offices, library, reading-room, and library
stacks. The library consists of upward of 15,000 volumes. They in-
clude the English and American reports, statutes, and leading te.xt-books.
The library reading-room seats 90. It is open from 8 a. m. to 9.30 p. m.,
and is used by the students as a place of stud}'.
The school has a special endowment, yielding at the present time
[493]
about $7,000 per annum. The policy is to pay out of tuition fees the
difference between its endowment income and its overhead expenses
(not including the interest on the investment in the land and buildings
which it occupies). In fact, it is now operating with an annual deficit
of about $4,000, which is made up by the trustees of Western Reserve
University. The school hopes to eliminate this by an increased special
endowment.
The Cleveland Law School
Without attempting to analyze the published entrance requirements,
the fact is that anyone, regardless of his preliminary education, may be-
come a student of law at the school. From the students' registration
cards the following facts appear as to the preliminary education upon
entering the school of the 419 students now enrolled:
Number
CoUege graduates 25
Those having some college training, from one semester to
three years 74
Those having apparently a full four-year high school course 226
Those who have not completed a full four-year high school
course, but have had some high school work 47
Those who have had no high school work at all before enter-
ing the law school 24
Those about whom no information could be obtained from
the registration cards 23
Whenever the registration card contained the general statement
that the student had had a preliminary education designated as "high
school," it was assumed that he had completed the high school course.
The test of a number of such answers by inquiry of the student makes it
probable that some who wrote on their cards " high school " had not com-
pleted the high school course. Judge Vickery, the dean of the school,
made an estimate of those who had not completed a high school course
as somewhat more than 94.
Of the 25 college graduates, one was foreign born, having been born
in Hungary. Of the 74 who had some college training, 11 were foreign
born — four in Russia, three in Austria-Hungary, one in Germany, one
in Croatia, one in Canada, one in Transylvania. Of the 226 who appear
to have completed a high school course, 42 were foreign born — 15 in
Russia, four in Austria-Hungary, three in Hungary, three in Poland,
four in Czecho-Slovakia, three in Italy, one in Croatia, one in Jugo-
slavia, two in Scotland, one in Ireland, one in England, one in Canada,
[494]
one in New South Wales, one in Jamaica, one in Barbados (British West
Indies). Of the 47 who had done some high school work, nine were
foreign born — three in Russia, two in Italy, two in Austria-Hungary, one
in Rumania, one in Hungary. Of the 24 who had received no high
school education or its equivalent, eight were foreign born — two in
Russia, one in Poland, one in Austria, one in Sicily, one in England, one
in Ireland, one in Norway. Of the 23 as to whose preliminary education
no information appears on the registration cards, only three gave in-
formation as to their place of birth — one native born, one born in Russia,
and one in Ireland.
All the students with a few exceptions, not exceeding five, were,
upon entering the school, earning their livelihood in regular occupations,
such as clerk, salesman, insurance, real estate, accountant, stenographer,
and private secretary.
Classes are held from 5 to 7 and 7 to 9 p. m., Mondays, Wednesdays,
and Fridays, each of two sections having each two hours of class-room
work.
Faculty and Curriculum
All the teachers are lawyers practising in Cleveland, who perform
their duties as teachers in addition to their professional efforts as lawyers.
They receive compensation in cash at a rate which causes practising
attorneys to seek places on the teaching staff.
Following is a Ust of the teachers now actually teaching at the school,
with some facts concerning the teachers and the courses they give :
Willis Vickery: Boston University Law School, 1884. In active practice
twenty-one years; on the Common Pleas Bench ten years, and two and one-
half years on the Circuit Court of Appeals. Gives Contracts, seventy hours,
using Clark's text-book; Constitutional Law, twenty-six hours, using Black's
text^book; Criminal Law, forty hours, using Clark and Marshall; Partnership,
thirty-six hours, using Gilmore; Legal Ethics, ten hours, using lectures. From
10 to 12 per cent, of the entire class fail to receive degrees. Each year three or
four men are denied a certificate of satisfactory completion of studies for the
bar examiners. This year about five will fail to get such a certificate. Exami-
nation paper in Contracts shows about 10 problem questions out of 20, the rest
caUing for definitions and distinctions. Examination paper in Constitutional
Law shows 10 questions, of which only one appears to be a problem question,
the rest calling for discussion of general rules or the doctrine of particular cases.
Examination paper in Partnership shows 10 questions, of which three are prob-
lem questions, the rest calling for definitions or precise information. Examina-
tion paper in Criminal Law shows 12 questions, of which four are problem ques-
tions.
[495]
Melville W. Viokerj': Graduate of Cleveland Law School. Admitted to
the bar in 1914. In active practice. Teaches Domestic Relations, twenty hours,
using Schouler's text-book. Cover.s the course by lectures on the text. About
three or four out of a class of 60 failed. Examination paper shows 10 questions,
six of which are problem questions and the other four call for definitioas.
James Lind: Western Reserve Law School, 1912. In active practice as
much as possible since 1912. Teaches Criminal Law, thirty hours, using Clark
and Marshall's text-book. Examination paper shows 10 questions, of which
five are problem questions and five call for definitions.
William Fish MarsteUer: Graduate of University of Michigan Law School.
In active practice. Employed by a firm as trial lawj'er. Admitted to the bar,
1918. Teaches Contracts, seventy hours, using Clark's text-book; Partnership,
thirty-five hours, using Gilmore's text-book; Contracts, one semester, using
Huffcutt and Woodruff's Cases; Negotiable Instruments, one semester, using
Bunker. No examination paper submitted.
Alfred Clum: Graduate of George Washington University Law School.
General practice since 1890. Gives Equity, five weeks, using Merwin's text-
book; Evidence, five -weeks, using McKelvey. Examination paper shows five
questions in Evidence, all of which call for statement of rules and none of which
are problem questions. Another examination paper in Evidence shows 10 ques-
tions, none of which are problem questions, but all call for statement of rules.
Examination paper in Equity shows six questions, three of which appear to be
problem questions and the rest call for definitions or information as to particular
rules. Another examination paper in Equity shows 10 questions, none of which
are problem questions.
L. Q. Rawson: Graduate of Cincinnati Law School. Entire time given to
practice. Admitted to bar twenty-nine years. Gives Negotiable Instruments,
twenty-six hours, using Bigelow on Bills and Notes; Suretyship, twenty-six
hours, using Stearns on Suretyship. Examination paper in Negotiable Instru-
ments shows 10 questions, of which five are problem questions and the rest call
for statement of rules or definitions. Examination paper in Suretyship shows 10
questions, of which eight are problem questions and the rest call for definitions.
Howard D. Burnett: Graduate of Y. M. C. A. Law School of Cincinnati.
In general practice since 1906. Gives Wills, forty-two hours, using Gardner;
Agency, thirty-six hours, using Mechem; Sales and Personal Property, fifty-
two hours, using Benjamin on Sales. Examination paper in Wills shows 10
questions, of which three appear to be problem questions and the rest call for
definitions or statement of rules. Another examination paper in Wills shows
five questions, of which one appears to be a problem. Examination paper in
Agency shows five questions, of which four appear to be problems and one calls
for definitions. Examination paper on Sales shows five questions, of which two
appear to be problem questions. Another examination paper in Agency shows
[ 496 1
10 questions, of which six appear to be problem quest ioas. Another examination
paper in Sales and Personal Property shows 10 questions, of which eight appear
to be problem questions and the others call for definitioas.
Harry Fx^wis Beibel: Graduate of Western Reserve Law School. In gen-
eral practice. Admitted to the bar in 1914. Gives Wills, forty hours, using
Gardner; Torts, thirty-eight hours, using Cooley. Examination paper in Wills
shows 10 questions, of which five appear to be problems and the rest call for
definitions or statement of particular rules. Another examination paper in Wills
shows five questions, of which two are problem questions. Examination paper in
Torts shows five questions, of which three appear to be problems. Another
examination paper in Torts shows 10 questions, of which four appear to be
problems.
Samuel H. Silbert; Graduate of Baldwin-Wallace University and Cleveland
Law School. In active practice for eight years and six years on the bench.
Teaches Bailments, twenty-six hours, using Dobie's text-book; Domestic Rela-
tions, twenty hours, using Schouler. Examination paper in Domestic Relations
shows 10 questions and contains a mixture of slight problem questions and a test
as to definitions and statement of particular rules. Examination paper in Bail-
ments shows 10 questions, each with from two to five subdivisions, calling for a
mi.\ture of slight problems and definitions and statement of particular rules.
Arthur E. Rowley: Graduate of University of Michigan and the Chicago
College of Law. Admitted to the bar in 1892. In practice since that time.
Gives a short course of lectures on Statutory Law.
Physical characteristics of the school: Its rooms are situated on the
top floor of a modern office building, within a block of the public square,
and have the appearance of being well kept up. It has three class-
rooms and adequate seating capacity, a general office room, and Judge
Vickery's private office. Its library is kept in the oflBce room and con-
sists of the Ohio reports, digests, and statutes, a few text-books and
encyclopedias of law. Judge Vickery said he had at one time paid a
sum to secure the use, by his students, of the County Law Library which
is used by the lawyers and judges of Cleveland, but that since the
students did not avail themselves of the privilege he had ceased to
provide it.
The school is the private enterprise of Judge Vickery. It is nm for
private profit, but it is fair to state that while he has sought to make the
school a profitable investment, he has also sought to provide as good a
legal education for his students as the conditions under which they were
taught permitted. He has been insistent upon requiring full time of his
teachers.
33 [ 497 ]
The John Marshall Law School
Again, without attempting to analyze the pubhshed statement of
entrance requirements, the fact is that anyone, regardless of his pre-
liminary education, may become a student of law at this school. The
following facts concerning the preliminary education of the students in
this school appear from their answers to a questionnaire filled out by the
students themselves:
Number
College graduates 17
Those having some college training, from one semester to three
years 30
Those who have completed a four-year high school course 58
Those who have had some high school work only 36
Those who have had no high school training 6
Those from whom no information was obtained 5
Of the 17 college graduates, one was foreign born, having been born
in Germany. In two instances where the student was native born both
parents were foreign born — in one instance they were English and in the
other German. Of the 30 who had had some college work, five were
foreign born : three in Russia, one in Jugo-Slavia, one in Germany. In
five instances where the student was native born both parents were
foreign born — three Irish, one Russian, one Holland-Swiss. Of the 58
who had completed the high school course, 17 were foreign born: nine
in Russia, two in Poland, two in Hungary, two in Czecho-Slovakia, one
in Austria, one in England. In 10 instances where the student was
native born both parents were foreign born — five Russian, two German,
one Hungarian, one Czecho-Slovakian, one Syrian. Of the 36 who had
had some high school training, six were foreign born — three in Russia,
one in Austria, one in Ireland, one in Netherlands. In 12 instances
where the student was native born both parents were foreign born — four
Russian, two German, one Polish, one Austrian, one Italian, one English,
one Irish. Of the six who had received no high school education at all,
one was foreign born, having been born in Italy. In two instances where
the student was native born both parents were foreign born — one Ger-
man and one Irish.
All the students in the school, with the exception of not to exceed
five, were earning their livelihood in regular occupations while pursuing
their studies.
Classes are held from 4 to 6 and 7 to 9 p. m. on Mondays, Wednesdays,
and Fridays, which provides two hours of class-room work for each of
two sections.
I49S]
Faculty and Curriculum
All the teachers in the school except two are lawyers practising at
the bar in Cleveland. Their teaching is in addition to their regular
duties as practitioners. Their rate of compensation ranges from $5 to
$10 per each double section hour of teaching.
Following is a list of the teachers actually teaching at the school,
together with some facts about the teachers and the courses which they
give:
Robert Parsons Abbey: Graduate of Cleveland Law School. In active
practice eleven years. Teaches Bills and Notes two hours five days a week,
running for three months. Uses text-book by Tilden with Brannan as auxiliary.
Fails on an average of three men out of 20. No specimen examination paper
given.
Car}' R. Alburn: A. B. , Adelbert College. Attended Western Reserve Uni-
versitj' Law School and Oxford University, England; B.C.L. (Oxford). In
active practice twelve and one-half j'ears. Teaches Private Corporations. Uses
Clark's text-book and Wormser's Cases. Average of 7 per cent, of those taking
the course fail. None, however, have failed to receive a degree in two years.
One was denied a certificate of satisfactory completion of studies. Specimen
examination paper submitted shows 10 questions, none of which were problems;
many called for definitions and a few for general answers as to extent of Uability.
John C. Barkley: Western Reserve University Law School, 1906. In
active practice fourteen years. Teaches Bills and Notes twenty-sLx hours.
Course is based upon Ohio Negotiable Instruments Code and Ohio decisions.
An average of eight out of 41 students fail to pass the examination. A speci-
men examination papmr shows 12 questions, one-half of which call for definitions
and the other one-half are to a considerable extent problem questions.
Kenneth D. Carter: Attended the University of Wisconsin. Graduate of
Ohio State University Law School. In active practice full time. Admitted to
the bar four years. Teaches Partnership eighteen hours, using Mechem's Ele-
ments, second edition, which he completes and thereafter discusses the Ohio
cases. Also teaches Constitutional Law twenty hours, using text-book by Black,
third edition. Covers about five-sevenths of the text-book, -n-ith the Ohio and
Federal Constitutions. Has taught the course only one year and has no record
of the number of men faUed. Specimen examination paper in Partnership shows
a series of 10 substantial and rather ambitious problem questions.
Norton McGiffin: Graduate of University of Michigan Law School. In
general practice since December, 1912. Has given Suretyship, September 15 to
December 1, three hours a week, using Stearns' text-book, second edition, of
which he covers all. Also taught Equity three hours a week, September 15 to
December 15, using Pomeroy, students' edition, of which he omits Rights and
[499]
Interests of Married Women, Probate Law and Wills, and Mortgages. An
average of from 5 to 15 per cent, of his men fail to pass the examination. Speci-
men examination paper shows in one case 10 ambitious problem questions and
in two instances in another, a series of questions calling for definitions with but
two problem questions.
Ralph T. Hisey: Western Reserve Law School, 1915. Secretary of the
Pyramid Savings Co. Not in active practice. Teaches Personal Property
thirty hours, using Childs' Personal Property, of which he covers all. First
year as an instructor and presents no specimen examination paper and makes
no report as to number of students failed.
C. T. Kirkbride: Graduate of Western Reserve Law School. In practice
for fifteen years. Teaches Domestic Relations about twenty hours, using Long,
Domestic Relations. Covers entire volume. Fails from 5 to 10 per cent, of men
taking examination. Specimen examination paper attached shows six questions
calhng for definitions and four problem questions.
Dean Lawrence: Graduate of the John Marshall Law School. In practice
two years, mostly office work. Teaches Torts forty hours, using text-book by
Chapin, all of which is covered. Also teaches Suretyship thirty hours, using
Stearns, all of which is covered. An average of from 20 to 30 per cent, of his
pupils fail to pass the examination, but none fail to receive a degree and none
are denied a certificate of satisfactory completion of studies for bar examination.
Specimen examination paper attached shows a series of 20 questions, practically
all of which are problems.
Cyrus Locher : Graduate of Western Reserve Law School. In active prac-
tice since 1907. Teaches Mortgages twelve hours. Uses no text-book. An
average of 5 jjer cent, of his men fail to pass examination. Gives no specimen
examination pajjer.
Dean B. Meek: Graduate of John Marshall Law School. Assistant to the
Director of Law of the National Lamp Works of the General Electric Company.
Admitted to the bar five years. Teaches Agency thirty hours, using Huffcutt
on Agency, covering the entire volume. An average of about 15 per cent, of
the men in his course fail to pass, and about 5 per cent, of these fail to receive
a degree. About 10 per cent, fail to receive a certificate of satisfactory comple-
tion of studies for the bar examination. Specimen examination paper shows
about 20 questions, of which about eight are problem questions and about 12
call for definitions or discussion of general principles.
David C. Meek: Dean of the John Marshall Law School. Graduate of the
Cleveland Law School. Not in practice. Admitted to the bar eight years.
Teaches Contracts one-half year, using Clark's text-book, of which he covers
all, together with Throckmorton's case book and Ohio State reports. Also
teaches Bailments and Carriers one-third of year, using Dobie's text-book, of
[500 1
which he covers all, together with 60 cases from the Ohio State and Federal
reports. Fails to pass on an average of 15 per cent, of his students. Of those
taught by him who are candidates for a degree, 5 per cent, fail to receive a degree
and the same number are refused a certificate of satistfacory completion of
studies for the bar examination. A specimen examination paper shows 24 ques-
tions, all of them calling for definitions or the drawing of distinctions.
Edwin E. Miller: Graduate of Western Reserve Law School. In active
general practice to the fullest extent. Admitted to the bar twelve years. Gives
the course on E\'idence thirty-five hours, using Hughes on Evidence, covering
everj' page, including the illustrations in the back of the book. Also teaches
Wills forty-three hours, covering all the text of Gardner on Wills. In addition
students draw at least four wills and other papers for the Probate Court and go
over a series of 40 problems formulated by the instructor. Also teaches Prac-
tical Conveyancing thirteen hours. This course is taught with a series of 11
problems. A series of these problems submitted show them to cover many of
the practical details relating to Abstracts in Cleveland. Examination of a
specimen paper in E\'idence shows 20 to 30 questions calling for definitions or
statement of particular rules of evidence for the most part ; three or four were
in the form of problems. A specimen examination paper in Wills shows a series
of 10 questions, seven of which are problem questions. In 1920 no one failed
to pass the examination in WUls and only one failed in Evidence. In 1921
there were two who failed in Evidence.
Sterling Parks: A.B., University of Michigan, 1888; LL.B., George Wash-
ington, 1894. In active practice twenty-seven years. Gives course on Real
Estate, three lectures a week, four and one-half months, using Burdick's text-
book. Covers practically the entire work. One specimen examination paper
shows about 20 questions, practically all definitions. Another paper shows 10
questions, practically all of which are problems. Out of a class of 40 students,
five failed to pass the examination given.
James B. Ruhl: Graduate of Ohio Northern Law School. Degrees B.S.
M.S., LL.B., LL.M. Active practice in Cleveland since 1891. Teaches Plead-
ing forty hours, using Phillips' text-book and covering all of the text; also
Stephen's Common Law Pleading in part and Ohio decisions and statutes. Not
yet had a student who did not pass. Specimen examination paper shows eight
questions calling for definitions and statement of rules and one question calling
for the drafting of papers.
K. T. Siddall: Graduate of Harvard Law School. In active practice eight
years. Teaches course on Real Property three hours a week for six months.
Uses text-book by Burdick and covers subject as treated by Burdick. None
have failed to pass his examinations. Specimen examination paper shows five
problem questions out of nine.
J. W. Woods: Graduate of University of Michigan Law School. Very
1501]
active practice. Admitted to the bar in 1909. Teaches Criminal Law thirty
hours, using Clark's text-book, and covers entire text and procedure. Speci-
men examination paper shows 10 problems.
The following have been instructors at the John Marshall Law
School, but are not now teaching:
Howard A. Couse: Graduate of the Yale Law School. In practice since
1894.
John H. Schultz: Graduate of Western Reserve Law School. Admitted to
the bar in 1918.
E. J. Hopple: Attended Western Reserve Law School but did not graduate.
In active practice sixteen years.
Edward H. Tracy: Graduate of Yale Law School. In practice since 1895.
Taught Domestic Relations.
Physical surroundings of the school: Its rooms are situated on the
third floor of the old court-house building facing the public square.
They consist of three lecture rooms, a library and study room, office of
the dean, and law fraternity room. Its hbrary consists of the Ohio
reports, United States reports, Cyc, Corpus Juris, Ohio Digest, Federal
Digest, Ohio Statutes, and 50 reference text-books. No access to any
other hbrary is provided.
The school is a corporation for pecuniary profit. David C. Meek
holds the largest amount of stock held by any one individual. Other
stockholders are, with a few exceptions, teachers in the school. The
school has only graduated one class — that of the year 1920.
Hours of Teaching in Law Schools in Cleveland
Table 1 is a comparative study of the number of hours of teaching
given to the different subjects at Western Reserve University Law
School, Cleveland Law School, and John Marshall Law School, and
other well-known law schools throughout the country.
The only subjects offered in the Cleveland Law School and the John
Marshall Law School are those prescribed by the bar examiners for ad-
mission to the bar. Courses on Bankruptcy, Damages, Insurance,
Quasi-Contracts, Conflict of Laws, Municipal Corporations, Mortgages,
and Trusts offered at other law schools are not offered at the Cleve-
land Law School or the John Marshall Law School. These subjects
are not in the list of subjects required to be studied to qualify the appli-
cant for taking the Ohio State bar examinations.
[502]
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S55
In 1915-16 the Cleveland Law School was the only night law school
in Cleveland. It had been in operation about twenty years and had a
large body of alumni in Cleveland. Judge Vickery felt that it was
strong enough to raise the standard of night-law-school education. He
therefore proposed to put into effect a four-year course and to require
the completion of this course before giving a certificate enabling students
to take the State bar examinations. But a new night law school was
started on the basis of providing the student with a certificate after
three years of study. A considerable number of students were deflected
to the new law school, and the plan for a four-year course was given up.
Night High Schools
The bar examiners require as a condition of taking examinations that
the applicant shall have had four years of high school work in a Class 1
high school, or its equivalent, in addition to the required study of law.
It is permissible, however, that the high school and the law course be
taken at the same time. In the Cleveland Law School and the John
Marshall Law School together at least 141 students have not completed
a high school course. Of these, 30, at least, have had no part of a high
school course.
Those who have not completed a high school course, or its equiva-
lent, may do so by attending one of two night high schools, the Baldwin-
Wallace (Night) Preparatory School, affiliated with the Baldwin-Wallace
College, and the John Marshall Night High School, affiliated with Ohio
Northern University. These night high schools are operated in con-
venient proximity to the night law schools. Their classes are held on
Tuesday and Thursday evenings.
Of the 47 students at the John Marshall Law School who have not
had any high school work or who have not completed a high school
course, 21 were taking a night high school course. Of these, 15 were
taking the night high school course at the John Marshall Night High
School. Of the 94 students of the Cleveland Law School who had not
completed a high school course or had any high school training, 20 were
taking a night high school course at the Baldwin-Wallace Preparatory
Night High School. How many other students in the Cleveland Law
School were taking night high school work at other night high schools
could not be ascertained.
A report upon the night high schools was made under our direction
by E. L. Findley, a principal in a Cleveland public high school. From
his report it appears that these schools have a competent corps of teachers
and give a four-year high school course which meets the requirements
[504]
of the course for Class 1 high schools in Ohio. By adding a summer
high school term these schools enable a student to do one and one-half
years of high school work in each twelve months. It appears also that
the principals of the night high schools, except in rare and special cases,
do not permit men who have had less than two years of high school to
take the night high school course at the same time they are taking the
night law school course.
The John Marshall Night High School has an enrollment of 90, of
whom only 15 are taking a night law course. The Baldwin-Wallace has
an enrollment of 122, of whom only 20 are taking a night law course.
Both the night high schools accommodate a considerable majority of
students who are not taking any law course.
The principal in each school has full discretion in determining what
credits he will allow for work done at other .schools or in bookkeeping
and typewriting, and may admit students to any year of the night high
school work on such showing. When students so admitted have gradu-
ated from the night high school they receive a certificate that they have
completed the equivalent of a four-year high school course. This
certificat€ enables the student, in the case of the Baldwin-Wallace Night
Preparatory School, to matriculate at the Baldwin-Wallace College,
and in the case of the John ■Marshall Night High School, to matriculate
at Ohio Northern University, and these matriculations enable the student
to fulfil the requirements of the bar examiners as to their general educa-
tion. The principals of the schools in question reported to Mr. Findley
that, in this matter of allowing credits to students who had studied in
other schools or done work outside of school, they followed the usual
practice which obtains in the Ohio public high schools of the first class,
and this statement has been accepted as correct without investigation.
B.\R Ex.\MiNATiox Crammers
There are at least two quiz courses conducted in Cleveland for the
purpose of cramming candidates for the bar examinations. Both of
these draw from the Cleveland Law School. They are conducted by the
following:
Meh-ille W. Vickery (a son of Judge Vickery) : Has about 20 students. He
charges one dollar an hour and conducts the course three hours a week for about
six weeks.
Howard D. Burnett: Received his training in Judge Guswiler's quiz in
Cincinnati. He has over 100 students, divided into classes which meet in his
oflBce three times a week. He charges one dollar an hour.
[505]
Ohio Bar Examinations
During the past five years an average of 85 per cent, of all those
taking the bar examinations have passed them. We have no data as
to what proportion, if any, of those who failed come from law schools in
Cleveland. The percentage of failures in the years 1910-1919 of those
taking the bar examinations in New York is as follows :
1910 57 per cent.
1911 . 57 per cent.
1912 48 per cent.
1913 40 per cent.
1914 50 per cent.
1915 41 per cent.
1916 44 per cent.
1917 38 per cent.
1918 44 per cent.
1919 43 per cent.
The percentage of failures in the years 1912-1920 of those taking the
bar examinations in Illinois is as follows:
1912 28 per cent.
1913 48 per cent.
1914 35 per cent.
1915 23 per cent.
1916 27 per cent.
1917 37 per cent.
1918 72 per cent.
1919 55 per cent.
1920 58 per cent.
Conclusions
1. The privilege of qualifying for the bar examinations by presenting
a certificate of a member of the bar does not result to any substantial
extent in providing an adequate means of legal education. Its principal
use appears to be to enable to qualify for the bar examinations those who
have not completed a three-year course of legal study in a law school;
or who have taken the bar examinations and failed and are required to
study for at least six months before taking the bar examinations again;
or who have attempted to prepare by means of a correspondence school
course, which is not accepted by the State bar examiners as a satisfactory
course of legal study; or who have taken a three-year course in a regu-
larly organized law school, but have failed to receive a certificate of
satisfactory work from the authorities of such school.
[506]
2. The Cleveland Law School and the John Marshall Law School
succeed in giving to their students at least the minimum amount of legal
education which will enable them to pass the bar examinations. It is,
therefore, proper to conclude that those schools give such legal education
as the public authorities ha\ing control thereof in Ohio regard as suffi-
cient for admission to the bar.
No effort has been made to reach a conclusion as to the comparative
merits of the several law schools or to make a complete analysis of the
standard of legal education which each respectively maintains. It is
fair, however, to point out that the night law schools of Cleveland give
only six hours a week of class-room work for a period not to exceed
thirty-six weeks in each j'ear, or six hundred and forty-eight class-room
hours in three years. In admittedly first-class law schools the number
of class-room hours in a three-year course is, on the same basis of calcu-
lation, one thousand and eighty hours. As students in the night law
schools are earning their own living in occupations out of school hours,
as a large proportion have a very meager preliminary education, and as
the}' receive only six hundred and forty-eight hours of class-room teach-
ing in three years, a good deal of which, as evidenced by the examination
questions, has to do with definitions of legal conceptions and conventional
distinctions, it is evident that the standard of legal education in the night
law schools should be raised. In this conclusion Judge Vickery, the
dean of the Cleveland Law School, and Mr. Meek, the dean of the John
Marshall Law School, concur.
3. So long as the standard of legal education set by the State board
of bar examiners remains what it is, it is futile to make a purely destruc-
tive attack upon the existence or standard of education of night law
schools run for pecuniary profit. If it were conceivable — which it is
not — that such schools should be prohibited, the result would not be to
throw the 500 or 600 men who wish to study law into schools with a
higher standard, but would be to throw them into the hands of attorneys
under whose direction they would study, or purport to study, for the
purpose of qualifj'ing themselves to take the State bar examinations.
Nor is it practicable to call upon the night law schools run for profit
to adopt a higher standard. It is an economic fact that so long as law
schools run for private profit may freeh' enter the field of legal education,
no such school can raise its standard above the minimum which wall
enable applicants for admission to the bar to pass the bar examinations.
If one attempts to do so by requiring a longer period of study or more
hours of study a week, it will at once lose patronage to a school which
keeps to the minimum standard, or it will call into existence a school
[507]
which will secure students on the basis of the minimum standard. This
has already been demonstrated in Cleveland.
The only way to defeat the economic effect of free competition in
night law schools run for profit is to organize a night law school, regard-
less of profit, which in the same time of study and with the same con-
venient hours for students earning a livelihood, and for a smaller price,
will offer a better course and by this means draw students from the
present night law schools, or force them to raise their standards. Ex-
perience, however, indicates that up to the present time the limit of
altruistic effort by law teachers and others interested in higher standards
of legal education has been reached.
4. The practical course to pursue in raising the standard of legal
education in night law schools run for profit is to raise the standards for
admission to the bar. By this means the increased standard must be
met by all alike, and one school cannot cut in on another with a lower
standard. Such a move would receive the support of proprietors of
the present night law schools in Cleveland.
5. In asking for stricter requirements for admission to the bar it
must be borne in mind that such requests defeat their own ends if they
go too far, for the temper of those in authority is still strong that en-
trance into the legal profession shall not be more difficult than is neces-
saiy to insure the minimum capacity and talent required for the less
exacting and important positions in the profession.
6. The public is entitled to demand at least a bona fide general ele-
mentary education equivalent to four years of high school, completed
before the student commences his legal studies, so that he is not in the posi-
tion of earning his own living, attending a night high school and a night
school of law all at the same time.
7. The gap between the amount of class-room teaching in admittedly
first-class law schools and that given in the night law schools of Cleve-
land is too wide. The former provide a period of from thirty-two to
thirty-six weeks each year, with a minimum of class-room work of ten
hours per week. This equals approximately one thousand and eighty
class-room hours in the three-year course. The latter, with a maximum
of six hours a week for thirty-six weeks each year, give only six hundred
and forty-eight hours. This difference should be cut down by requiring
of the night schools that they give at least eight hundred and sixty-four
class-room hours of instruction. This can be done if the night law school
work is continued for thirty-six weeks each year with six class-room hours
a week for four years. At the same time the curriculum of the night law
schools should be enlarged so as to include at least the greater part
[508]
of the following subjects: Bankruptcy, DamaRos, Insurance, Qua.si-
Contracts, Conflict of Laws, Municipal Corporations, Mortgages and
Trusts, and a considerable addition of Real Property.
It should be kept in mind, however, that there is no use in advancing
the requirements for study in night law schools if study with an attorney
is to be permitted with no guaranty that instruction by him will be
maintained at the level required of the night law school, and if the stand-
ard of the bar examinations be not also advancetl to keep pace with the
advanced standard required of the law schools. With bar examinations
conducted as at present and the power of students to obtain certificates
from attorneys that they studied three years, Increased requirements of
the law school would be futile. The student would study at a law school
long enough to prepare for the bar examinations as at present conducted,
and then would seek the certificate of a practising attorney. The net
result would be that students taking the night-law-school course would,
in fact, spend but three years at the night law school, just as they do at
present.
8. The public is entitled to the exercise of visitorial powers by the
board of bar examiners, or by committees of the bar acting under their
direction, over all law schools and all persons giving instruction in law
whose certificates are accepted by the board. The pubUc is equally
entitled to the exercise of visitorial powers by the board of bar examiners,
or committees of lawyers acting under their direction, over all schools
(other than the public high schools) whose certificate that a student has
completed the equivalent of a four-year high school course is accepted by
the board.
9. The public is entitled to ask for a rigid inquiry into the moral
character of applicants to take bar examinations, especially those ele-
ments of moral character which, when lacking in a member of the legal
profession, are most disastrous to the public administration of justice
and to the interests of clients — such elements as his conception of the
code of legal ethics and of the oath of attorney which he takes, and his
appreciation of the meaning of his oath to support the Constitution and
the laws of the State and the United States.
Recommendations
1. No certificate of an attorney that a student has completed a
satisfactory course of study under him should be accepted by the State
board of bar examiners unless — (1) The attorney giving the certificate
shall have registered with the board before the commencement of such
[509]
course his desire to give a course of legal stud}^ and (2) at the same time
outlined the course which he proposes to give and show his means for
gi\'ing adequate and regular instruction equivalent to that given by
schools giving at least six hours a week of class-room instruction for
thirty-six weeks during the year. The attorney should submit also to
the visitorial powers of the State board of bar examiners or of a com-
mittee of lawyers acting imder their direction. The student desiring
to study imder the direction of such attorney should obtain a certificate
from him at the completion of each period of study of one year or less,
and the attornej^'s certificate should state the fact to be that he has
personally given to the student the course of study as outhned in his
application to the bar examiners.
2. It should be required that a four-year high school course, or its
equivalent, shall have been completed by the student before he com-
mences his three-year course of legal study, and that where the certifi-
cate showing the completion of the four-year high school course is given
by the principal of a school run for private profit, such school be subject
to visitorial powers by the bar examiners, or by a committee of lawj'ers
acting under their direction, with power in the bar examiners, on cause
shown, to refuse to recognize its certificate.
3. The character of the period of legal study should be specified more
in detail, both as to the subjects which the law school should offer and
the amount of time that must be spent in recitation each week by the
student and the number of weeks in each year that classes shall be held.
Thus, candidates for the bar examinations should be required to have
completed a course of legal study extending over a period equivalent to
thirty-six weeks in each year for three years, with a minimum of eight
class-room exercises a week of at least fifty minutes each, or eight hun-
dred and sixty-four class-room hours. This would mean that a night
law school giving six hours a week for thirtj'-six weeks each year would
complete the required course in four years instead of three.
The standard of the bar examinations should be raised to meet the
standard of study involved in the requirement of eight hundred and
sixty-four class-room hours of teaching, as against the present require-
ment of six hundred and forty-eight class-room hours — that is to say,
the bar examination questions should cover more subjects and with an
increased proportion of problem questions which test the student's
power of legal reasoning and grasp of legal principles as distinguished
from his mere knowledge of definitions of legal conceptions, conventional
distinctions, and fixed rules.
4. A committee of the bar should be appointed by the State bar ex-
[510]
f
amincrs to act under their direction to examine into the moral fitness of
all applicants for permission to take the bar examinations; each candi-
date should come before the committee personally for direct oral ex-
amination, and the scrutiny of the candidate's moral character should be
broadened so as to include not only his conduct and reputation for
honesty, but his conception of the fiduciary relation, his knowledge of
legal ethics, and his general training and conduct as throwing light upon
his willingness to live up to the oath of attorney. To this committee
also might well be turned over the conduct of the written examination
of the student on the subject of legal ethics.
511
i
PART VII
NEWSPAPERS AND CRIMINAL
JUSTICE
BT
M. K, WISEHART
34
NEWSPAPERS AND CRIMINAL
JUSTICE
CHAPTER I'
SUMMARY
CLEVELAND, like other large American cities, is a newspaper-
reading community. The three week-day papers, the Plain
Dealer, the Press, and the News, on April 1, 1921, had an aggre-
gate circulation of 484,215 copies. The Sunday Plain Dealer and the
Sunday News-Leader (the Simday edition of the News) have an aggregate
circulation of 394,738. The size of the circulation of week-day editions
is well over half the population, and of the Sunday editions is barely half.
It need hardly be added that the range of a newspaper's audience largely
exceeds its circulation.
In mechanical facilities and journalistic enterprise Cleveland's press
is distinctly modem. Its newspapers have excellent equipment for the
speedy presentation of news; they have large staffs of reporters and
executives incessantly on the alert to excite the interest of readers. In
short, all the devices of modern journalism, both material and psycho-
logical, find conspicuous illustration in Cleveland.
But there is an added element in any appraisal of Cleveland's press
which differentiates this city from other big centers: the field is re-
stricted to three papers — one morning paper (the Plain Dealer) and two
afternoon papers (the Press and the News), with the obvious result that
the power of the individual paper is greatly enhanced.
The intensification of the "power of the press" exerted in Cleveland
clearly furnishes ample justification, if not compelling necessity, for
study in any comprehensive survey of the administration of justice.
The present report, however, was not undertaken upon any a priori
assumption as to the responsibility of newspapers in the administration
of criminal justice. It was made because it could not be avoided.
After the survey was under way the investigators charged with the
' This chapter is contributed by Felix Frankfurter.
[515]
different divisions of the inquiry found themselves, independently, en-
countering the press as an immediate and persisting factor in their
respective problems. The separate investigations of the police, the
prosecution, and the criminal courts quickly touched the press as one
of the great sensory nerves in the organism of criminal justice. Public
officials and private citizens alike, in representative numbers, regarded
the newspapers, for weal or woe, as an indispensable factor in the situa-
tion.
This wide-spread belief as to the significant share attributable to
Cleveland's press for the quality and the results of criminal justice
soon found striking confirmations. With a view to eliciting authentic
data as to the actual functioning of criminal justice from the profession
primarily charged with its administration, a questionnaire was sent to
all the members of the Cleveland bar. While no question specifically
referred to newspapers, there was one "catch-all" question intended to
provoke suggestions deemed by the bar pertinent to the scope of the
inquiry. A surprisingly large percentage of the replies volunteered sug-
gestions or comment regarding the effect of newspapers upon the ad-
ministration of justice.' Doubtless some of these comments were neither
sufficiently objective nor duly mindful of the complexity of the problem,
but the existence of wide-spread opinion entertained by responsible
men of affairs and judgment is in itself a consideration of high impor-
tance. Finally, to the universal assumption as to the "power of the
press" and to the wide-spread testimony to this fact must be added the
volume of actual space given by the newspapers of Cleveland to news of
"crime" and its "punishment." When it is noted that the news space
given to matters covered imder the term "the administration of criminal
' The following are typical quotations from the replies referred to in the text:
" Newspapers advertise too much of the trials of the crooks, and also investiga-
tions made by the police. A crook by reading the newspapers can know just what is
being done."
"Criminal cases ought to be tried on their own merits to a court and jury and
not, as is the practice in Cleveland, to try them to the newspapers and grand-stands."
"The chief defect to me seems to be the overwhelming influence of the news-
papers. Judges and prosecutors generally seem dominated by fear of the press.
Criminal justice will never be fairly or impartially administered so long as the news-
papers have the power they now have and use it as ignorantly as they now do."
"One of the main difficulties is the desire of the Cleveland newspapers to print
sensational matters. Newspaper men fallaciously state that they print only what
the public demands, but it is just as true that they themselves create that
public taste by their policies. This the prosecutors and judges know and take
advantage of."
1516]
justice" ranges from about 6 per cent, to 28 per cent, of the total news
space, the inference is inescapable that the nature of what is printed, or
not print€d, its quality and underlying standards, above all, the general
atmosphere that is hereby generated, must exert a most potent influence
upon those who admini.ster justice as well as upon the thought of the
community, upon which, in the last analysis, the quality of the ad-
ministration of justice inevitably rests.
General Point of View
Granting the pertinence of a study of the press as the chief source of
pubhc opinion in its relation to the administration of criminal justice,
the manner of such a study — its scope and basis of evaluation — is bound
to arouse the greatest diversity of opinion. This is natural enough, for
we are here in a pioneer field. No such study as this has, as far as we
know, ever been attempted. The material is elusive, little susceptible
of quantitative measurement, and without any established standards
of judgment. Here, as elsewhere, we are seeking to appraise results.
But the appraisal is of influences on the public mind, on official conduct,
on the promotion or corruption of civic standards. All these are im-
ponderables. The work of the police, of the prosecution, of the courts,
of penal institutions, may, as this survey shows, be largely judged by
statistical standards. This is not true of the part the press plays. The
sources of opinion-making, and its consequences — the effects of the
press, that is — are not demonstrable in figures. The data are largely
tendential. All we can do is to be as accurate and objective as is pos-
sible for painstaking and disinterested effort. And we must not expect
too much from a beginning, from a first step in a new field. Of abuse or
glorification of the press there is much; of the application of the scientific
method to a study of that complicated process of business and opinion-
making which we call the press there is pitiably little.
In making this report, therefore, w-e had to go most warily. We did
not pretend to deal with the institution of the newspaper in general,
nor was it our task to deal with the fundamental inquin,' how to foster
a more critical mind in the newspaper-reading public. We were con-
cerned with those aspects of the press which are inseparably related to
the administration of criminal justice. This Umited scope of the study
must be constantly kept in mind. Nor did we apply to the problem an
ideal conception of a newspaper's functions or assume ideal means for
achieving them. We start from that conception of newspapers — their
power, their responsibilitj', their limitations — which editors and pub-
lishers themselves profess. Broadly speaking, the only assumptions
[517]
underlying this study are — (1) that the public derives its opinions
about "the administration of criminal justice" from the kind, the
quality, and the volume of newspaper matter affecting criminal justice;
(2) that the influence exerted by public opinion on the system of criminal
justice is largely dependent upon the extent of informed opinion in the
community; (3) that the whole scheme of criminal justice, particularly
under an elective system with short tenures, is pervasively affected not
so much by editorial opinion as by the views which are gradually de-
posited in the minds of the electors through the more vivid and per-
sistent, and therefore more potent, influence of the daily news column;
(4) that, with due regard to the practical limitations which confront the
press, the newspapers of Cleveland can furnish accurate, sober, well-
balanced, and interesting news of, and comment on, the functioning of
criminal justice, and thereby largely contribute toward creating and
sustaining the necessary informed public opinion.
Practical Difficulties
Every fair judgment upon the work of newspapers must be condi-
tioned by an understanding of their problem. The modern daily is
in the grip of unavoidable mechanical and social forces. Time is a
powerful factor. Particularly is this true of the afternoon papers, with
their multiple issues. The compulsion of speed affects judgment as
to what is significant, as well as the accuracy or adequacy with which
it is conveyed. The conscious necessity of appealing to the public
throughout the day, by means of successive issues, necessarily throws
the emphasis upon what excites curiosity rather than upon what in-
forms opinion. This element of speed, this momentary timeliness, is
partly the slave of the press and partly its master. Undoubtedly the
public "wants" an uninterrupted and exciting stream of "news"; but,
also undoubtedly, the public has been taught by the press to "want"
such "news," and the press continues feverishly to stimulate the "want."
Mechanical inventions have had their share in the process. Partly
they have stirred newspapers to their present-day methods; partly the
inventions themselves were stimulated by newspaper enterprise.
In all this competition has been the most responsible factor. Per-
haps no business today discloses fiercer, less restrained competition, than
the newspaper business. Since this is, in effect, a struggle for the capture
of the public's mind, the arts that are exercised, the interests that are
excited or neglected, are bound to have vital reflexes upon that most
intimate and extensive aspect of a community's Ufe called criminal
justice. So long as competition remains unbridled, so long as ephemeral
[518]
excitement may legitimately control newspaper policy, just so long is
temporary excitement bound to influence the tone of the press.
Competition is the severest pressure exerted upon the press, but not
the only one. Because of competition, other pressures assert them-
selves. The range of competition leads newspapers to go beyond the
mere reporting of crime and of the efforts of law enforcement, and drives
them to scoring "scoops" and "beats." As a result, a personal rela-
tion is sought between newspaper men and the officers of the law, with a
view to facilitating opportunities for such "scoops." In turn, a play
for the favor of newspapers is made by officials whose public or profes-
sional life not inconsiderably depends upon advertising. Eager for
special opportunities, the reporters play favorites with police officials,
judges, and prosecutors. The barriers of impersonalness which should
exist between law enforcers and the press are thus broken down. The
result is a confusion of standards, and conscious or unconscious par-
tiality and exploitation by the press.
Finally, at the core of any appraisal of the press is the stubborn fact
that newspapers are usually not regarded as civic or public undertakings,
but as private ventures primarily operated for commercial profit. It is a
notorious fact that the public does not pay for its news. It expects the
papers to recoup their losses from the expenses of news gathering through
advertising. Because of habit or training comparatively few individuals
are today ready to pay more than a nominal sum for their daily paper.
The axis on which the volume of advertising turns is circulation. There-
fore, under present conditions, to live, a newspaper must reach the
largest possible number of readers at the smallest possible price.
This low price per copy imposes upon the newspaper, especially under
competitive advertising rates, a verj' rigid ratio of expense to income.
The point of diminishing returns in the amount of salary expenditure
is very rapidly reached in the small cities, less rapidly but just as cer-
tainly in cities of the size of Cleveland, least rapidly in New York. If,
for example, all the highest salaried wTiters of the New York Times or
the New York World were engaged by one of the Cleveland newspapers
they could not possibly increase the circulation of that paper so as to
afford the increased salaries. Most of the Cleveland reporters, at
present, are on salaries comparable to the pay of high-school teachers.
Only a verj' much smaller number of higher salaried specialists are em-
ployed in the news departments. The publishers rely on low-priced men
for the bulk of the news matter. Moreover, the turnover of these re-
porters is marked. For a number of years places on Cleveland papers,
as is true in other cities, have been subject to frequent change. Some
[519]
positions are filled as many as four times a year. As a result, substantial
background of knowledge, let alone expertness, for the various assign-
ments is usually wanting.
The effect of all this upon the news of the complex processes of
criminal justice is obvious. Without specialized training, in most in-
stances, to begin with, the diversity and the frequence of his shifts
usually prevent the reporter from acquiring much obhgation toward the
reader or the material. Nor can a solid basis of knowledge or a back-
groimd for discerning judgment be thus built up. Too frequently great
versatihty in knowledge as well as understanding is expected from poorly
paid and poorly equipped men.^
Function of Newspapers in Relation to Criminal Justice
Newspapers undertake to chronicle significant events from day to
day. These include crime as well as efforts to prevent and punish crime.
The only questions which arise with reference to the recital of actual
happenings are as to the quality of the news, that is, the atmosphere,
the emphasis, the accuracy of the "story." Moreover, reiteration is
here a psychological element of enormous significance. It is by the
repetitive process that the mental habit, the community outlook, upon
criminal justice is formed. Newspapers realize very acutely that "the
emphasis makes the song." Clearly, then, it is through the presentation
of "news" that the press exercises its most comprehensive and constant
function in relation to criminal justice. But the activity of the press
does not end there. The various newspapers of Cleveland have special
articles intended for informing public opinion and for creating the
knowledge and atmosphere necessary for the improvement of the existing
system. By these articles, some of them sober and scientific, news-
papers recognize their special responsibihty for public opinion as the
generator of public justice.
Serious hmits circumscribe the function of the press as critic. News-
papers cannot be, and should not be expected to be, agencies for the
continuous scientific investigation of the actual operation of criminal
justice. That is a burden clearly to be borne by the entire community.
The want of a steady stream of such scientific data as a basis of criticism
is to be kept in mind when considering the shortcomings of the press.
' Of late, scarcity of work has had its effect also upon the newspaper men and has
tended somewhat to stabilize newspaper employment. One ventures the belief that
the immediate future will see fewer of the defects chargeable to inexperience and
rapid turnover of news writers.
[520]
I
The need, as well as the inability, of newspapers themselves to cope with
the problems is thus put by one of Cleveland's editors:
"Some time ago it seemed to me desirable that we should follow every case
that reached the police through every step until it was finally disposed of. Such
reports, it seemed to me, would show exactly what was going on in the adminis-
tration of justice. I assigned police reporters to the task. These reporters
started in at Central Station, and they were not long in finding that they had
undertaken a stupendous task. Then I called in a law firm and asked them to
do the work. Representatives of this firm worked a week, and then reported
that unless we were prepared to finance a staff of 10 or 12 men for a year for this
particular work there was no use going ahead, as the results would be too slight.
" I am of the opinion that constant reports regarding just what is going on in
the administration of justice are necessary and advisable as a check on public
officials. From my experience I question if newspapers are qualified to do the
task thoroughly and well. I am convinced that if .such reports, by way of con-
tinuous publicity as a check on public oflJicials, arc to appear in daily newspapers,
they will have to be prepared by some organization equipped for and experienced
in that kind of research."
Newspapers, then, may rightly be charged with the duties, as well
as the privileges, of chronicler and critic. More the community should
not expect; but in fact, it does. To no small degree newspapers are
deemed to be the super-government, or, at least, the supervising author-
ity over all official agencies. All too easily the community looks to its
newspapers for the detection of crime and the enforcement of law.
Partly, doubtless, the newspapers themselves are responsible for these
unreasonable expectations. Unreasonable they are, nevertheless, and
even intolerable. Newspapers are neither the government nor the
people. They cannot be charged with any of the responsibilities of
government, nor should they be allowed to assume them. Neither can
the community at large reheve itself of ultimate responsibihty for the
conditions which this survey of Cleveland's administration of criminal
justice has revealed. We must not expect the newspapers to carry the
full load of the democratic experiment. Their share is ample.
Criticism of Newspapers in Relation to Administr.\tion of Justice
The succeeding pages disclose evidence typical of methods of treat-
ment, by the press of Cleveland, of matters affecting the administration
of justice whose evil influence appears beyond controversy. Broadly
speaking, these evils operate in two ways: either as effective interference
with the orderly and just administration of law, or as the most potent
[521]
molder of the kind of public opinion which is wholly incompatible with
civilized standards of criminal justice.
1. Interferences by the press with effective law enforcement take
two forms: (a) direct participation by the press in law enforcement,
and (6) irresponsible publicity which embarrasses the official detection
of wrongdoing or hampers the impartial processes of law in the trial of
the accused.
(a) In common with papers throughout the country, the Cleveland
newspapers from time to time become not merely the chroniclers of
criminal news, but its creators. One probably encounters here a deep-
rooted tradition. So much of a city's news is police news and so many
of the staff of city news reporters came up as police reporters that it is
not at all surprising to find the transition easy from reporting to dis-
covering news. An evil it is none the less. Perhaps the greatest strug-
gle in the history of the law is the transference of its enforcement from
private to public hands. Peculiarly is this true of the criminal law.
The vindication of public wrongs must be left exclusive^ to its public
guardians. No aspect of it, not even the detection of offenders, can be
allowed to become a pawn in the game of competitive journaUsm, no
matter how much of high public motive is likewise operating. Such an
incident as the Lyons case' presents does not belong to legitimate news-
paper enterprise. A newspaper is, after all, a newspaper, not an arrest-
ing agency nor a detective bureau. Not the least of the resulting evils
is the weakening of official responsibility and the entanglement of
officers of the law in journalistic enterprise.
(6) Undoubtedly, there is a kind of unrestrained pubUcity which
seriously interferes with law enforcement, without any compensating
public gain. Too frequently there is no further standard of judgment
by the newspapers of the propriety of publication except the immediate
interest of the news. The bearing of a specific publication upon the
vindication of law is all too little heeded. Ordinary newspaper practice
(and here again the Cleveland newspapers merely reflect standards of
journalism common everywhere) is not such as to prevent the publica-
tion of information that would clearly handicap the police pursuit of
suspects, nor such as to prevent the disappearance of witnesses essential
for the prosecution. It is difficult to determine whether the press has
fostered this notion of publicity or responded to it, or whether it is a
combination of the interplay of desires for publicity by press and officials.
Undoubtedly, both police officials and prosecutors seem to act on the
1 See p. 540.
[522]
I
assumption that their efforts at law enforcement must be revealed to
the public in full detail while those efforts are still in their preparatory
and even prophetic stages. On the part of police and prosecutors
this sort of publicity is resorted to partly to avoid criticism, partly to
secure advertising, and in some instances, doubtless, with the good
faith of enlisting public support in the tracking of crime. There may
be instances when such public support should properly be enlisted.
The occasion must be left to the professional discretion of high-minded,
disinterested, and competent law officers. The practice of unlimited
publicity is at present certainly not thus circumscribed by exclusive
considerations of law enforcement. On the contrary, the abuses of the
present practice are well established and generally admitted. The
succeeding pages are full of illustrations. The Shelton case, the whiskey-
running launch incident, the Purpera case, all tell the tale (pp. 529-530).
No less embarrassing to the course of justice is the method of re-
porting cases that, for some reason or another, particularly arouse public
interest. Every lawyer, as well as every newspaperman, knows that
"in spite of forms" juries are "extremely likely to be impregnated by the
environing atmosphere." To a great extent, newspapers create that
atmosphere. The public hostility or sjTnpathy which may be en-
gendered for or against an accused may largely determine the fate of the
trial. All too frequently, extraneous factors, such as the attitude of
editors and reporters upon crimes of a particular character, influence
the nature of their news "reports." Instances are too many in which
the public is furnished not a disinterested report but a dramatic inter-
pretation of a trial. iThe Hupp, the Huettel, the Kaber trials are
instances that will readily suggest themselves to readers of Cleveland
newspapers. "Human interest" is the excuse; corruption of the com-
munity's standards may be the consequence. Instead of a sober sum-
mary regarding action taken by poUce and prosecutor, or of the evi-
dence presented in court, current methods of newspaper writing permit
the selection and treatment of newspaper material in a style plainly
intended either to condone or to condemn the accused. Moreover, it
is a standing accusation against American criminal justice that such
journalistic intention is too often successful.
2. A deeper cause for concern is the quality of public opinion re-
sulting from the treatment of individual ca.ses. In the hurly-burly of
today yesterday's paper may be dead, but not the influence which it
exerted. Whether a newspaper wills it or not, whether its readers are
alive to the process, the inescapable fact is that the flavor and substance
of daily news reporting is, for good or ill, the most potent builder of
[523]
opinion. What is "played up" or neglected from day to day gradually
determines the public's mind as well as the official mind. To a con-
siderable extent during the last fifteen years crime enforcement in Cleve-
land has oscillated between hysteria and neglect. A striking illustra-
tion, as shown by this survey, is the attitude of Cleveland toward the
parole system. How large a measure of responsibihty for such un-
healthy conditions rests with the newspapers is attested by this and
other reports of this survey. Pungent overemphasis at one time, syste-
matic sentimentahzing at another, cannot possibly furnish a basis for a
responsible and informed public opinion. Nor is it surprising that
judges and prosecutors, dependent upon passing public favor, will, con-
sciously and unconsciously, cater to the prevailing mood of the news-
papers as the molders and exponents of "public opinion." The ex-
ploitation of Judge Stevens' dramatic liquor fines, and the practical
neglect by the papers of the judge's quiet remission of the same fines,
tells the tale (p. 552).
In the nature of things, we venture to repeat, the effects of abuses
and shortcomings to which these pages call attention cannot be proved
statistically. We are dealing with the quality of opinion and its conse-
quences, for which no quantitative measurements have as yet been de-
vised. The chief evil of that aspect of the press with which this report
is concerned lies, as we see it, in the quaUty of the news. This report
proves that the Cleveland papers exemplify that evil. A low tone,
emotionalism, off-emphasis, irrelevance, and neglect are, we submit,
the outstanding sources of newspaper shortcomings. These quahties
of news matter fashion the mind of the public. The public, in its
turn, is stimulated to want this kind of news. No student of opinion-
making will deny that on public questions the newspapers give the
dominant content to the public mind. This report essays, for the first
time, the task of showing what that content is by significant illustrations.
A massive demonstration would simply reprint the treatment of crime
matters by the Cleveland press for successive years, for instance, 1914,
1916, 1919, 1920. Space prohibits such extensive proof. We were,
therefore, restricted to a comparatively few significant instances illus-
trative of the way Cleveland newspapers deal with crime matters and
its inevitable effect upon the public mind. The whole process and
atmosphere are amply illustrated, in the following pages, by the Purpera,
Hupp, and Kaber cases. The report, also illustrates how the news-
papers, and therefore the public, oscillate between hysteria and indif-
ference toward law enforcement. It also illustrates, in the treatment
of Judge Stevens' liquor fines, how "stuff" is " played up" and misguides
[524]
the community. All these are accurate and significant illustrations.
These things are the heart of the matter. A single instance may illus-
trate but does not exhaust the evil exerted. And so apologists may
explain away every incident which this report sets forth and yet leave
untouched the total result which they evidence. We wish to guard
against misapprehension due to the perversion of sensitiveness. We
do not say the Cleveland papers are signally bad; we do not say that
they are worse than the papers of comparable cities — for all we know
they may not be as bad. That, we submit, is beside the present point.
Here, as in the other studies of Cleveland institutions, we are concerned
with Cleveland. It does not advance the cause of truth nor of self-
knowledge as the basis of improvement to have the pot call the kettle
black. This survey only proves what has long been felt and widely be-
lieved. We have singled out no paper for special illustration. All of
them are of equal indifference to this survey. They are all illustrative
of habits and standards for which no one paper is responsible and which
none transcends.
Nor are we unmindful how powerful are the influences which here are
subjected to scrutiny. An adequate dissemination of the findings of
this survey depends upon them; no less, action upon these findings.
But we confidently rely upon the civic mindedness of the press and its
fundamental regard for fair play. During the course of the survey the
Cleveland newspapers have certainly manifested every desire to help,
and have generously recognized their high public responsibility.
Conclusions
Admitting all the shortcomings of the press in its relation to criminal
justice, we should, nevertheless, be exceedingly cautious of all facile
proposals of panaceas. The most significant conclusion revealed by this
survey is that the entire system of criminal justice, as actually admin-
istered, is largely a reflex of the general community standards. This is
pecuUarly true of the part the press plays. Here we can least relj^ upon
legislative or structural changes. The freedom of the press involves
one of the most vital expressions of the democratic faith. We must not
too rudely tamper with one of our great political and constitutional
principles, even in an effort to correct some of its abuses in practice.
Reform must be looked for in a steady transformation of the standards
set by the community for its newspapers and by the press for itself.
In the language of the greatest of our judges, " the main remedy . . .
for the evils of pubhc opinion is for us to grow more civihzed." A full
[525]
realization of the implications behind these few words will furnish a clue
to the problem and will fashion the means for its solution.
In seeking more specifically to translate into action the responsi-
bility of the newspapers it is not intended in the slightest to minimize
the ultimate responsibihty of the pubhc. It may truthfully be said
that every community has the press that it deserves. Here we en-
counter what logicians call mutuality of cause and effect; the press
makes "pubhc opinion," and "pubhc opinion" makes the press. As
in other aspects of our social life, we are confronted by a vicious circle.
Somehow it must be broken. It can be broken only by the insight, the
sacrifice, the daring, above all, the will to break it, of some individuals.
After all, a responsible press should not measure its standards by the
shortcomings of the pubUc. Just as the legal profession has a pro-
fessional duty, and should have the professional pride to establish and
maintain its own high standards, so journalism should be jealous for the
high quality and tone of its profession. No profession has deeper and
wider responsibility, if responsibility be proportionate to power. The
press is keenly alive to the need of lifting the whole level of the legal
profession. And rightly so. The press should be no less alive to
rigorous self-criticism. Signs of this process are not wholly wanting.
This is the shortest road toward giving us a press that will be alert and
enterprising, but devoted to the steady growth of reason.
That will necessitate certain self-denials. Just as there has been a
steady subjection of business to moral standards and a steady recogni-
tion by business that certain things are not to be done, so newspapers
must agree to restrict the field of competition in their relation to criminal
justice. "Scoops" and "beats" should, by common consent of the
profession, be surrendered where impairment for respect of the law, or
even its frustration, may be the price. Thus there might well be a
common consent not to publish evidence before its actual use in a public
trial except with the consent of the kind of prosecutor or presiding judge
whom the reports on Prosecution and Criminal Courts envisage as ade-
quate to a modern system of justice. Equally pertinent is it to suggest
that newspapers should impose upon themselves a self-denying ordinance
not to go out and make evidence. We readily appreciate that the line
is not an easy one to draw between news reporting and news making.
No one would suggest, for instance, that a newspaper like the New York
World should not engage in such an inquiry as its Ku-Klux investiga-
tion. Equally true is it that a line must be drawn, and that, however
broad the line may be, it is now often overstepped. But, surely where
a specific crime has been committed, such as the McGannon case illus-
[526]
«
tratcs, the rudimentary function of law enforcement, with all that it
implies, must be discharged exclusively by the officers of the law. If the
pohce, prosecuting or judicial machinery breaks down, it is not for the
newspapers to bolster it up. The newspapers should be free as critics
and not become involved as partisans. Only by paying the cost for
governmental neglect, incompetence, or corruption will the public finally
and fully realize its own responsibihty for the quality of government.
It wUl not do to have the public relieved of its responsibility by having
newspapers confuse their important but limited functions. The press
should neither be asked nor be allowed to assimie the tasks of the govern-
ment or of its master, the community. To the general community
standards and to the press itself, then, we must look for an improvement
of the press as the great instrument of opinion. But just as the level of
business conduct has been lifted, partly, by pressure from without, like
President Roosevelt's preachments, so the press would surely be re-
sponsive to the articulate expression of the community's needs and
hopes, if firmly and persistently voiced, by even a few of its high-minded,
influential citizens.
Recommemjations
The other reports in this survey deal with public agencies of law en-
forcement. As to these, improvement depends to a considerable extent
on the structure and organization of each agency ; changes affecting them
may be brought about by legislative and administrative action. News-
papers present a different problem. They cannot be coerced by legisla-
tion or by structural reform. Improvement must largely come from the
recognition of definite standards of public duty by the profession of
journalism and the voluntary enforcement of these standards by common
consent of the profession. To such voluntary acceptance and action by
the press we recommend the following:
1. Adherence to a rule that newspapers are to have no direct partici-
pation in the administration of criminal justice.
2. Formulation by the newspapers, in consultation with representa-
tives of the police, prosecution, and courts, of rules of practice governing
the publication of evidence before its actual use in public trials so as to
avoid possible embarrassment to the official detection of crime or to the
impartial processes of law in the trial of cases.
3. Increased effort to make "stories" of criminal trials sober and in-
formative reports of the course of a trial, giving a fair perspective, how-
ever brief, of the entire evidence presented in court.
4. Recognition of the fact, as the guiding consideration of newspaper
practice toward treatment of "crime" matters, that the administration
of criminal justice is most potentlj' influenced by "public opinion," and
that the quality and effectiveness of public opinion in its turn largely de-
pend on the quality of the daily news column.
[527]
CHAPTER II
CHARACTER OF NEWSPAPER REPORTEVG
Before Trial
REPORTS of crimes and details of police activity looking toward
the detection and arrest of guilty persons constitute a consider-
' able part of the news in Cleveland newspapers. Immediately
after a crime is reported to the police the newspapers print details of the
crime itself, together with all the available clues. If the crime has sensa-
tional features, as is not infrequently the case, these clues are worked up
with special care and emphasis, and if possible some indication of persons
suspected is given.
I. After the first report of the crime the daily news accounts consist
of new developments in the case, in the form of new clues, new suspicions,
or reports of impending arrests. These details are printed with great
lack of reserve. They are described in a manner calculated to keep alive
public interest in the police search, and without seeming to take care lest
information be given which might be useful to the culprit seeking to
escape. We are not here apportioning blame for the practice. That the
abuses are largely in the control of the police and prosecutors hardly
admits of doubt. No less true is it that the practice, prevalent through-
out the country, is partly prompted by fear of public criticism if "results"
are not immediately forthcoming. We are here merely reporting the
facts of the evil practice.
On January 4, 1921, the Plain Dealer printed a column and a half
article which included the following paragraphs:
DETECTIVES WATCH CAR, TAKE THREE'
Three youths held as suspects in connection witli the murder Friday of
Wilfred C. Sly and George K. Fanner, officers of the W. W. Sly Manufac-
turing Co., were arrested at different hours yesterday at a garage where
'No effort has been made to reproduce the typography of the headhnes of the
articles reprinted in this report. Headhnes are indicated by the use of capital
letters. In some instances only part of a headline is reprinted.
[528]
I
police have been watchiriR an automobile which they believe is the one used
b}' the murderers in their escape.
The arrests were made l>y the detectives on guard after each of the trio
had entered and sought to drive the car out into the street.
At the time this article appeared three other individuals suspected
of participation in the crime were at large, one of whom, when arrested
later in Los Angeles, confessed and named his confederates. The in-
formation on which the quoted statement was ba.sed was given by the
police to reporters at Central Station shortly after the arrests were
made.
Subsequently Samuel Purpera, who confessed his participation in
the crime and named his confederate, was arrested in Los Angeles. On
March 18 appeared in the Plain Dealer an article two-thirds of a column
in length, with the headline, "Purpera Admits Being Tipped Off,"
and proceeding as follows:
Confederates of Sam Purpera, under arrest in Los Angeles charged with
the murders of Wilfred C. Sly and GeorRe K. Fanner, gave him advance in-
formation of every action of the Cleveland police.
This was admitted by Purpera in his confession to County Prosecutor
Edward C. Stanton and Detective Inspector Charles N. Sterling on Wed-
nesday, when they confronted him with their evidence connecting him with
the crime.
Not only was Purpera apprised of the actions of the police here, but he
was provided with passports designed to get him safely into Mexico, he ad-
mitted in his confession.
Prosecutor Stanton and Inspector Sterling yesterday resumed their
questioning of Purpera in his cell in the Los Angeles jail in an effort to force
him to reveal further details of the daylight robbery and murders.
In his original confession, Purpera not only admitted his own participa-
tion in the murders, but revealed the identity of the others who were with
him.
Coinciden tally with word of Purpera 's arrest, police found that his con-
federates had received the information before the police and that they had
disappeared. Word has been dispatched to police authorities throughout
the United States, however. Ocean steamships will be watched to prevent
any member of the band from leaving the country.
Even after this clear indication that the fugitives were making use of
information which might have come from newspaper publication, the
Press printed an article three days later with the headline, "To Indict
Five," and beneath it this statement:
Police Chief Monday was awaiting word of the search being made in
suburbs of Los Angeles for an accomplice of Purpera.
35 [ 529 ]
Numerous instances are available in which matter has been printed
giving premature publicity to police activities which might better not
have been published at the time. The following cases are typical:
1. From the Press, December 10, 1919:
ARREST NEAR IN POLICE MURDER. COMPANION OF PATROL-
MAN'S ASSAILANT IS CAPTURED. KHAKI COAT GIVES
CLUE. MAN TAKEN IN RAID ON KINSMAN-RD. CON-
FESSES.
Police late Wednesday were ready to nab the slayer of Patrolman Rob-
ert Shelton.
Positive knowledge of the murderer's identity resulted Wednesday from
the capture of his "pal" in a spectacular raid upon a Kinsman-rd. house.
2. From the Plain Dealer, December 12, 1919:
DETECTIVES LEAVE ON SLAYER'S TRAIL. FOLLOW SWEET-
HEART OF POLICEMAN'S MURDERER TO DISTANT CITY.
MAN AND GIRL HELD AS WITNESSES GIVE TIP IN MYS-
TERY.
Believing that they are close upon the trail of the man who shot and
killed Patrolman Robert Shelton last Sunday morning, Captain of Detec-
tives George Matowitz and Detective WUliam Peters were searching in a city
several hundred miles from Cleveland last night.
Detective Peters was sent to identify the man, whom he arrested three
years ago on a larceny charge.
Acting upon a tip that the sweetheart of the murderer had left Cleve-
land to join him, the officers followed her. They expect to find the woman
and man together.
From information which police gathered yesterday it was practically
estabhshed that the murderer left Cleveland Monday evening after the
crime. The woman left Cleveland some time Tuesday and police are con-
vinced that before the man left he had made arrangements for her to join
him.
The practice of announcing the direction in which the police are
pursuing a criminal is common in Cleveland newspapers. Their attitude
in this regard is that they have the right to print anything the poUce
make public, and that since every criminal at large knows he is pursued,
it does no harm to disclose the direction in which the chase is being con-
ducted.
Instances of the publication of such material are not hard to find.
The Plai7i Dealer, June 13, 1921, in an article about a whisky-running
launch which was found in Rocky River, stated : " Lakewood police were
watching the craft early today, hoping some member of the crew might
retm-n." Two days later the same paper, in an article headed by an
1530]
eight-column streamer reading "Business Men Threatened; Trap
Laid," stated: "Two dummy packages resembling money which had
been planted at spots in the East End were being watched by city detec-
tives early today as a result of letters demanding from $8,000 to SIO.OOO.
. . ." These papers were sold by carriers on the Public Square as
early as 2 a. m. of the publication date. If the articles were correct in
their statements, it is obvious that at the very moment the police were
watching for the criminal, the public was being told that the trap was
set.
II. When a suspected person has been caught, the case is given some-
what different treatment by the papers. The arrest is often made the
occasion for giving again all the details of the case, adding what the
prisoner has to say, what his lawyer and his friends have to say, and
sometimes even what private citizens think about the need for speedy
trial and punishment. If the case is murder, interviews with friends and
relatives of the murdered man may appear, expressing more or less cer-
tainty of the guilt of the person under arrest. The arraignment of the
prisoner in court, or an intimation from the police that the prisoner has
expressed fear of death in the electric chair, may be made the occasion
for another complete review of the case. The reporters make frequent
visits to the offices of the prosecutors and their assistants. Names of
witnesses to appear before the grand jury, or to testify in court, and occa-
sionally advance information of the trial of the prosecution, are fre-
quently obtained in this way, and immediately appear in print.
The following extracts illustrate this tendency:
1. From the Plain Dealer, March 17, 1921:
YOUTH TELLS HOW HIS BAND KILLED MEN. PURPERA, HELD
IN LOS ANGELES, SAYS SIX ROBBERS OPENED FIRE AFTER
SLY PUT UP HIS WEAPON.
Sam Purpera, 17, under arrest in Los .\ngeles, confessed to County-
Prosecutor Edward C. Stanton and Detective Inspector Charles N. Sterling
late j'esterday how he and six others killed Wilfred C. Sly and George K.
Fanner in the daylight robbery of Dec. 31.
Dispatches from Los Angeles, quoting police officials, declare Purpera
informed Prosecutor Stanton and Inspector .Sterling how the automobile
containing Sly and Fanner was crowded to the railing of the Nickel Plate
bridge at W. 47th street by the car in which he rode. He then told how Sly
and Fanner left their car.
"Sly tumbled to the fact that something was wTong and pulled a gun
and pointed it at me," he said, according to Los Angeles police. "We con-
vinced him it was a mistake, and Sly put his gim up. Then all six of us
began to shoot up the other car."
[331]
"I did it," he is quoted as having said later. "I suppose I'l] go to the
chair for this, but there is no use bringing anybody else into it."
Then after some reflection, and apparently in a different frame of mind,
he added:
"I don't think they can land me in the chair for this job — I'm too
yoimg."
Since his arrest Friday, Purpera had steadfastly maintained his inno-
cence of any connection with the murders.
It was only after Prosecutor Stanton and Inspector Sterling had con-
vinced him, according to Los Angeles police, that they had sufficient
evidence to convict him of the charges of first degree murder on which
he was indicted that Purpera agreed to talk.
"We had talked this thing over for a long while," he is reported to have
said. "On the day of the blowoff, we went out to the bridge in two ma-
chines. We stalled until the car with the goods in it came our way, and then
the auto I was in drove alongside the other machine as close as we could.
"It was not long until we had 'em huggin' the rail of the bridge and they
had to cut their speed. Sly tumbled to the fact that something was wrong
and pulled a gun, pointing it straight at me.
"We convinced them that it was a mistake and that our steering gear
was out of whack. Sly put up his gun, and all six of us began to shoot up the
other car.
"Some of the others got the money and beat it. I never showed for
my cut and never got any of the coin."
2. From the Press, March 25, 1921 :
PRESS MAN INTERVIEWS SLY-FANNER MURDERER
Accompanying this interview was a "box" containing the fol-
lowing:
SIGNED CONFESSION IN SLY-FANNER MURDER
BY SAMUEL PURPERA
On Dec. 20, 1920, I was in Dreamland Dance HaU. I met
and he told me he needed a machine for Dec. 31. I said, "all right."
At 1 o'clock the morning of the crime I met one of the other fellows. I
said, " ,1 need a machine."
He gave me the key and I said I would fix him up. I then brought the
Steams (belonging to Fred H. Goff) on E. Ninth St., and some fellows
jumped on and we went to W. 47th St. and waited for awhile and then we
went down to the Federal Reserve Bank.
We waited for awhile and we followed Sly's machine to W. 46th st.
When we got to the bridge we cut them short. They came out with
pointed guns.
When we were thru arguing, I walked away a little and the fellows from
the other car came out and started shooting. They jumped on the car
again and when we went a few blocks I jumped off.
[532]
One of them had the money and he jumped on the machine
was at the wheel. Down W. 47th st. to Bridpe ave., and we turned west to
65th St., and then turned north and I jumped off and left them there.
This "confession" was printed in both the Plain Dealer and the News
of March 26, 1921. According to the News report of this date, this con-
fession was written by Purpera on a train while he was being brought
from Los Angeles by Prosecutor Stanton and Inspector Sterling.
Again the News, on April 14, 1921, printed the affidavits of May E.
Neely, Edward J. Allen, and Charles E. Burke, in connection with the
trial of Judge McGannon. Doubtless the News in so doing felt it was per-
forming a public service. But these aflBdavits were the basis of the
perjurj' case against McGannon and of indictments against the three
individuals named, all of which at the time of publication remained to
be tried.
No special effort is made by the newspapers to protect grand jury pro-
ceedings from undue publicity or to maintain sufficient secrecy regarding
criminal cases to insure their effective prosecution. In Cleveland as else-
where the ehmination of this particular evil (striking at the very theory
of the grand jury) is largely in the control of the prosecutor.
Obviously, this practice of "trial by newspapers" which precedes the
judicial trial may have two serious results: first, exposing the prosecu-
tion's case, and secondly, creating a definite and wide-spread public
opinion as to the merits of the case in anticipation of the trial.
Character of Newspaper Reporting During Trial
The outstanding characteristic of newspaper reporting of trials is the
presence, in abundance, of so-called "human interest" material, the in-
evitable effect of which is the creation of public sjTnpathy for one or the
other side of the case. Newspaper reports of criminal trials are not, as a
rule, in any sense summaries of the evidence and arguments presented in
court. Yet, surely, such should be their function. Their emphasis is too
frequently not upon the essential facts of the case, but upon minor or
irrelevant incidents. By the selection of these incidents and the emphasis
given them, an atmosphere either of hostility or of sympathy toward the
defendant is created. And the outcome of the trial depends, as everyone
conversant with trials knows, not a little upon that elusive "atmos-
phere."
I. A few illustrations follow, all dealing with the Hupp case. On the
night of January 10, 1918, Elmer Hupp shot Charles Joyce, a salesman,
in Hupp's home.
[533]
1. From the Plain Dealer, March 6, 1918:
Nearly every woman in court was silently weeping as Hupp told of his
devotion to his wife and daughter Hupp, nerves almost worn
out by distress and anxiety, frequently paused to wipe his eyes. Even the
men in the crowded court room were visibly affected by the pathos of the
story of his anguish. One woman was completely overcome
2. From the Press, February 28, 1918:
WHY HUPP KILLED JOYCE
Elmer Hupp's position in the social tragedy to be put to analj'sis by
chemistry of law this week, differs radically from that of most men who
claim rights under the "unwritten law."
Here was no adherence to an artificial code by which a man shot to
avenge an offense against himself and vindicate his own honor.
He says he acted not for revenge but to protect his wife.
Hupp's position was and is now as elemental as the earth from which
he won his wealth.
He believed that another man proposed to take his wife from him and
he preserved his own position by killing the man.
His point of view seems quite as simple and imaffected as a man who de-
fends his property rights by killing a burglar.
The difference between his position and the man who avenges a wrong
already committed is indicated by lack of any show of resentment against
his wife and by his own statement:
"My wife is going to stick by me and I am going to protect her."
Ethics Differ from Popular Viewpoint
Charles L. Joyce, the man who was killed, had been made to see that
his visits to the house were resented by Hupp.
Fiction and drama of recent years, reflecting popular ideas, has in-
clined to a solution of such situations by a decision of the wife — she being
j)ermitted to choose between the two.
No such fine-drawn ethics were to be expected from Hupp. Here was a
man, without much education, who had won his way by hard work as an oil
driller, in rough neighborhoods among rough men.
His simple purpose seemed to be to hold his own wife. That this
possession was threatened was indicated sufficiently for him when he found
Joyce hiding in the attic on his return to his home in Lakewood.
3. From the Press, March 1, 1918:
HUPP BOUGHT A GUN TO KILL HIMSELF— LAW^"ER SAYS.
SLAYER WEEPS AS DAUGHTER ENTERS COURT. DAVID
CALLS HUPP "ONE-WOMAN" MAN. HE PAMPERED WIFE
EVEN TO PLANNING SUICIDE TO MAKE HER LIFE A HAP-
PIER ONE.
"Elmer Hupp was a 'one-woman' man!"
Attorney W. L. David banged his fists down on the trial table Friday
afternoon as he opened his speech to the jury with this statement in Hupp's
defense
[534]
A jur>' in the caae was sworn Friday noon. Only one unmarried man
was on it
David immediately boRan his statement to the jur>'.
He told how Hupp had pampered his wife and on two occasions had
planned suicide because he thought he was standing in the way of bis wife's
happiness.
"The second of these two occasions was on the day Joyce was shot,"
David said.
"Hupp bought a revolver to shoot himself. He made one last trip to
his home intending only to take a last long look at his wife before he ended
it all. He had no thought of entering but he saw his wife with Joyce and he
lost control of himself."
It was this loss of control that Hupp's attorneys had pointed out as the
"red rage" on which they base their claim of justification for Hupp's deed.
4. From the Press, March 1, 1918:
THE RACK OF HIS OWN THOUGHTS TORTURES HUPP
A keenly sensitive mouth and a broad forehead, deeply lined by long
habit of tensely concentrated thought, seem to characterize Elmer Hupp.
The sensitive, cleanly cut mouth, matching mild blue eyes, give an al-
most boyish look to his face.
This is in spite of the deep lines and rugged outlines which are the work
of a long struggle for success and perhaps, also, of the tragedy He
seemed like a man who lies on the rack of his own thoughts. One wonders
what he is thinking.
5. From the News, March 2, 1918:
LOVE TRAGEDY FALLS HEAVIEST ON GIRL. SHE WILL TELL
ALL TO SAVE HER FATHER
Consuelo — "whose noble purity is sustained amidst temptations and
disillusions." A winsome, cream and pink blonde girl sat looking out on a
sun-lit world Saturday — autos speeding by, children romping, a bird circling
high in the air, emblem of all that is care-free and glad. As she watched, a
tear trickled down the little girl's cheek and her lips quivered.
She is living the fate her name, grewsomely tragic in the light of events
during the last month, implies.
For little Consuelo Hupp, the most pathetic figure in the love triangle
which has sent a man to his grave, which has pointed the finger of shame at
her mother and has plunged her father into a fight against spending the rest
of his life in the penitentiarj', must still show that same constancy symbol-
ized by the name her parents by some strange fancy picked for her
535]
6. From the News, March 7, 1918:
HUPP'S FATE RESTS ON GOD'S LAW. SLAYER AND CHILD SOB
SIDE BY SIDE. CROWDED COURT ROOM IS "ROOM OF
TEARS" AS ATTORNEY FOR DEFENSE PAINTS "ONE-WO-
MAN" MAN'S VAIN FIGHT FOR HOME OF HAPPINESS. SUN-
SHINE VERDICT FOR CONSUELO'S SAKE IS DEMANDED
IN SUMMING UP ARGUMENTS. THROWS ARMS ABOUT
FATHER AND CRIES.
A sweet-faced and winsome fourteen year old girl — Consuelo Hupp —
sobbed convulsively in Judge Kennedy's crowded court-room Thursday
while attorneys, who are defending her father, made an impassioned plea to
twelve men for a verdict that would put "sunshine in the little girl's heart."
Her arms were about the neck of her father, Elmer Hupp, the "one-
woman" man — when the lawyers drew the mantle of charity over any rela-
tions between Mrs. Hupp and Charles L. Joyce, friend of the Hupp house-
hold and victim of Hupp's "red rage."
"We can't have people ask this little girl 'Where is your Daddy?' and
have her answer 'He's in the penitentiary,' " David cried.
The influence exerted by such persistent news campaigns preceding
a trial and continuing during its progress is subtle but sure. Every trial
lawyer feels it. The evil is not remedied by the judge cautioning the jury
against considerations which might prejudice their judgment of the facts
brought out in the trial, or even by such drastic measm-es as locking the
jury up dui'ing the progress of a trial. The atmosphere in which the case
is tried from day to day will still be charged with an emphasis which it is
asking too much of human nature to resist.
II. This style of treatment especially characterizes "unwritten law"
cases. Exactly similar tendencies appeared in the news reports of the
trial of Mrs. Maria Huettel, charged with second degree murder for
shooting her husband just after he had obtained a divorce. The main
contention of the defense in this case was that Huettel was shot while
struggling to prevent Mrs. Huettel's suicide. Constantlj^ during the trial
space was given to lengthy reports of the defendant's fainting, weeping,
and hysteria, and the sobbing of her relatives. It should be noted that
newspaper treatment of the Huettel case differed slightly from that of
the Hupp case iu that the Press did not use signed articles by special
writers (known sometimes in newspaper language as "sob sisters"), and
the Plain Dealer was noticeably conservative in its use of headlines and
sensational emphasis.
III. More recently, during the trial of Mrs. Eva Kaber, the Plain
Dealer printed in one of its issues (July 14, 1921) a particularly striking
[536]
example of this style ot news reporting, from which we quote the follow-
ing:
THUMBS DOWN, IDLE WOMEN GLOAT OVEU FIRST MORSEL
They call for a thrill.
They got it.
The court room where Mrs. Eva Catherine Kaber is on trial for her life
was filled to overflowing with idle women sportators yesterday.
They crowded the customarj' court rules requiring judicial conduct, to
the very margin.
They brought their lunch. They came early, Tlicy stayed late.
Gladly, eagerlj' they endured the stuffiness of the old court house, the
uncomfortable chairs, the sticky heat which meant frequent powdering of
perspiring noses, all for the sake of a sensation.
They were not disappointed.
Whether she is guilty or not, insane or as clear minded as the judge
himself, Mrs. Kaber'spunishmenthasalreadybegun. With her fate still being
weighed by the hand of justice, certainly her soul must be wracked by the
drama in which she is the central figure.
Her mental torture reached a climax yesterday afternoon. In the
morning she gave way to liysterics. Shrieking and screaming, she was led
from the room. In the afternoon, however, her behavior was different.
Then Buzz Breaks Loose
She quietly crumpled up in her chair and fell in a faint.
For an instant there was a hush. Then, as she was helped to Judge
Maurice Bernon's room immediately adjoining, the buzz began. With
court thus summarily recessed, the gallery gloated over its morsel.
With the principals out of the room, the place resembled a movie matinee
audience during intennission.
The chatter rose above the noise of the traffic on the streets below.
Sticks of chewing gum were brought forth from handbags. Complexions
were freshened, and fans, real and improvised, began to keep time with the
wagging tongues.
IV. In contrast with the foregoing tendencies, some notice should be
given to newspaper reports which have the effect of creating prejudices
of a different kind. When actual or alleged "confessions" have been
made, newspaper reports of the case, before and during trial, frequently
refer to the "confession" and thereby create a presumption of guilt.
Confessions, it is well known, do not always prove guilt. A variety of
motives and influences other than guilt gives rise to them. They are of
equivocal legal value, particularly when the circumstances under which
they are given are not clearly defined. Hence the insistence by news-
papers on the conclusiveness of a "confession" before such a "con-
fession" has withstood the tests that the law imposes for its validity is
unwarranted from any aspect of fairness or justice.
[537]
V. To some extent, judging by the current newspaper practice of
presenting "human interest" reports of criminal trials, writers seem to be
unable to avoid indicating their own impressions as to the guilt or inno-
cence of the defendant. The following may be noted:
1. From the News, December 16, 1919 (editorial):
QUICK JUSTICE BEST
The restraining and corrective effects of the penalty the law and the
courts will inflict upon the murderer [John Platzky] of Robert Shelton, the
latest policeman slain in doing his duty and solely because he was doing it,
will be much greater if it comes quickly than it can be if it is long delayed.
The time to teach the plain lesson of such a crime is when it is fresh in mind
and much talked about.
And in this case the way to swift justice lies wide open. The police
have the confessed murderer. Even though he now fights to escape the
chair, he has admitted that he killed without warning, by stealth, after think-
ing over his plight. There seems to be no good reason why he might not be
brought to trial, found guilty, sentenced and executed within six or eight
weeks.
If that should be done the chill struck into the hearts of potential and
prospective murderers would be much more dismaying and paralyzing than
any possible punishment which might come after a year or so of delays and
doubts. The murderers themselves know all about that. When they want
to terrify men subject to bandit extortion, or to strike terror into the breasts
of possible informers, they kUl quickly. They know too much about the
psychology of crime, its perpetrators and its victims, to wait a year or two.
2. From the News, December 21, 1919:
PLATZKY, SHERMAN TO GET SPEEDY TRIALS. ENTER PLEAS
OF "NOT GUILTY" IN POLICE KILLING CHARGE; CASE SET
FOR JANUARY 12.
Quick disposal of the cases against John Platzky, self-confessed slayer
of Patrolman Shelton, and his pal, George Sherman, jointly indicted for the
murder, was indicated yesterday when the two, with two of their girl com-
panions, were arraigned before Criminal Judge Powell.
3. From the News, January 13, 1920:
THE PLATZKY CASE
John Platzky, confessed slayer of Policeman Robert Shelton, is on trial
for his life. The public will be vitally interested in knowing whether the
law is strong enough to exact adequate punishment for coldblooded killing
of the men who are sworn to uphold the law and protect citizens and their
property. Platzky confessed, it will be remembered, that he deliberately
shot the officer after his arrest as a burglar. He was out on parole from a
previous crime and also admitted a long list of burglaries.
[538 1
ii
Will quibbles over forms and legal technicalities avail Platzky?
Will he be able to escape with a reformatorj- or penitentiary sentence?
Or will he pay the supreme penalty in the death chair? '
' The following editorial, taken from the News, seems to express the point of
view of newspapers in regard to publicity given to criminal trials:
From the News, January 19, 1920:
TRIAL PUBLICITY
Many good citizens deplore the publicity lavished on murderers, robbers,
and other criminals when arrested or tried. These thoughtful objectors
beUeve the front page prominence of headline and cut is flattering to the
felon, convinces him he is a person of consequence, represents him to the
undiscriminating as in some sort a hero, tends to encourage other men
to seek a similar notoriety by similar criminal acts.
Not infrequently this view is communicated to newspaper editors with
remonstrances against criminal court publicity and requests for its diminu-
tion. We' would not say this opinion is wholly mistaken. We concede
that persons of moderate intelligence are sometimes moved by the news from
court-room or jail to make a siUy fuss over some worthless scoundrel.
Our own view is that notoriety accorded criminals might encourage
others to court some of it for themselves by adopting criminal careers,
providing it were favorable notoriety, represent the subject as a hero worthy
of admiration. But if publicity pictures the prisoner as a low-lived rogue
with whom no person of character coidd possibly sympathize, we cannot
see that honest men will thereby be influenced to take to crime, no matter
how large the headlines. On the contrary, we believe such advertising of
the consequences of lawbreaking would be most helpful in discouraging
crime, if only the machinery of law did its part by providing an impressive
penalty for the last chapter.
[539]
CHAPTER III
ACTI\^ PARTICIPATION BY NEWSPAPERS IN
ADMINISTRATION OF JUSTICE
A CTUAL interference with the machinery of criminal administra-
/-\ tion is shown by an incident which took place in August, 1917. On
■^ "^ August 24 or 25, Leonard Lyons, charged with the murder of John
Murphy in a gang feud, was arrested by the Cleveland police. On the
morning of August 25 the Leader, a morning paper,' in a prominently
displayed article on the front page, printed an exclusive account of the
arrest. The headline and paragraphs from the article follow:
LYONS, SLAYER, SURRENDERS HERE. COMES IN AFTER DEAL
MADE WITH BROTHER. ARRIVES IN AUTOMOBILE, GIVES
SELF UP TO DETECTIVE RABSHAW FROM RENDEZVOUS.
PROBABLY WILL BE RELEASED ON $10,000 BAIL TODAY.
ENDS FOUR DAYS OF FUTILE EFFORT BY OFFICERS.
EVEN CHIEF ROWE AND UNIFORMED MEN USED IN VAIN
HUNT— HOW IT WAS DONE.
Leonard Lyons, the man who killed John Murphy in the climax to a
gang feud covering two years, surrendered to Chief of Detectives Gideon
Rabshaw, Assistant Chief of Detectives Thomas F. Mahoney and Detective
Harry Brown shortly after midnight.
The surrender came at the end of a fourth day's vain search for Lyons
who escaped in an automobile after he shot his victim in the bar of the Oak
Cafe at Vincent Avenue and E. 6th st. last Monday night.
Surrender is "Arranged"
Arrangements for Lyons to give himself up were made through his
brother Frank (Kid) Lyons.
Chief Rabshaw and his men accompanied by Frank Lyons drove in
automobiles to an agreed point and met another machine containing the
fugitive
No hint of the fugitive's movements had reached police or detectives
prior to the time of Frank Lyons coming as an emissary for his brother and
offering his surrender. Chief Rabshaw and his men were guided to the
meeting place where Lyons appeared, according to his brother's promise,
coming in a machine from his hiding place
' The daily Leader soon afterward was sold to the Plain Deakr.
[540]
On the following daj- the Leader printed the following article:
LYONS FREED ON $10,000 BOND A FEW HOURS AFTER THE SUR-
RENDER. POLICE CHAGRLNED AT SUDDEN SURRENDER,
AS ANNOUNCED IN THE LEADER AFTER FOUR DAYS OF
VAIN HUNT.
The arrest in Painesville at 2:30 oVlopk in the morning as pub-
lished exclusively in The Leader, was the result of arrangements made by
Frank Lyons, brother of the fugitive. . . .
In the party that went to Painesville to the spot appointed for the sur-
render, were Chief of Detectives Gideon Rabshaw, Assistant Chief of
Detectives Mahoney, Detective Harry Brown and two representatives of
the Leader
Lyons smiled a bit over the apparent discomfiture of Police Chief Rowe,
who for the first time since Rabshaw was appointed Chief of Detectives
issued orders for his uniformed men to venture into the detective field.
One of the representatives of the Leader accompanied Chief of Detec-
tives Rabshaw and his party on the trip to Painesville. Furthermore,
arrangements for the surrender of Leonard Lyons were made in the first
instance by Frank or "Kid" Lj^ons through the Leader's representative.
The prisoner was held at the home of a representative of the Leader fol-
lowing his arrest in Painesville, in order, apparently, to delay the hour of
his appearance at police headquarters, where, through the formal police
record, both morning papers would have had news of his arrest at the
same time. The arrest was planned with the chief of detectives, not, as
is usual, with the chief of police, and subsequent articles in the News use
this fact to reflect discredit upon Chief of Police Rowe, while at the same
time commending Chief of Detectives Rabshaw. For several days after
the arrest there was much newspaper discussion of the case, including
talk of a proposed "investigation" of the police. In this discussion the
News and the Plain Dealer adopted widely different points of view, the
latter criticizing the poUce sharply while the News, which was owned by
the same company that owned the daily Leader, ridiculed the proposed
investigation. The difference will be apparent from the following quoted
extracts :
1. From the Plain Dealer, August 26, 1917:
COUNCIL WILL PROBE POLICE IN LYONS' C.\SE
Councilmanic and probably grand jury investigation into the failure of
city pohce to arrest Leonard Lyons, accused of the murder of "Roughhouse
Johnny" Murphy in a down town cafe, until relatives of the fugitive ar-
ranged conditions of his surrender, will be started tomorrow.
[541]
2. On August 28 the Leader printed the following:
COUNCIL VOTES NEW POLICE QUIZ. LYONS ARREST USED BY
STOLTE AS ARGUMENT FOR FRESH INQUIRY
The city council, urged oratorically by Councilman Stolte, is going to
stage another investigation of the Police Department.
Admission will be free.
Undismayed by the big printing bill pUed up as the sole accomplish-
ment of last year's probe, Stolte told the council that the police force:
"Ain't working as a unit" citing as a specific example the manner in which
Leonard Lyons, slayer of John Murphy, was arrested by detectives last
Saturday morning.
3. On August 29 the Plain Dealer printed an article containing inter-
views with various judges on faults in the administration of justice, and
this statement regarding the proposed investigation: "The entire decent
element of the city is swinging into line to prevent the pohce investiga-
tion developing into a 'whitewash.' "
4. On August 29 the News carried the following statement: "Not a
single police investigation was proposed yesterday. The entire day
passed without heavy firing or disorder on the police 'front.' "
5. The Plain Dealer of August 27, 1917, carried these paragraphs:
POLICE KNEW OF CHANGE IN LYONS' CHARGE. PROSECUTOR
SAYS HE TOLD DETECTIVES BEFORE ARREST, ALLEGA-
TION WOULD BE SOFTENED. REPORT SAYS RABSHAW'S
MEN ASKED FOR SUCH HELP AFTER FAILURE TO FIND
FUGITIVE.
Chief of Detectives Rabshaw made the arrangement with Frank "Kid"
Lyons for the delivery of his brother after Prosecutor Lind had announced
his intention of reducing it. It was also stated last night that Chief Rab-
shaw sent a detective to Prosecutor Lind and asked him to alter the charge ....
And while police defended their policy of dickering with gangsters,
Cleveland had its third murder within six weeks to climax a week-end wave of
crime which included burglary, vicious assaults on hold-up victims, confidence
trickery, automobile thefts, operation of "speakeasies" and bootlegging.
6. On August 27 the Leader printed an article under the headline,
"Lyons Makes Exit Until Case is Readv," without mentioning any
investigation into the matter of the reduction of the charge against
Lyons from first- to second-degree murder. The article contained the
following statement: "Chief Assistant County Prosecutor Babka com-
mended Rabshaw in making the deal with Lyons' relatives." No men-
tion was made by the Leader of the fact that the original charge was
changed from first- to second-degree murder by agreement between the
relatives of Lyons and Rabshaw without the knowledge of the chief of
police. The fact may, of course, have been unknown to the Leader, but
[542]
in view of the close association of members of the staff of the Leader with
this case, such a supposition seems doubtful.'
Judged casually, this entire story matter might be regarded as of
slight moment — little more than a tempest in a tea-pot. The incident
is significant, however, because the fact that a newspaper has been able
to obtain "exclusive" news in this way is apt to have far-reaching re-
sults. It may affect the poUcy of the criticism from the newspapers not
getting the news, as well as determine the subsequent attitude of the
favored newspaper toward individuals who have assisted it in making a
"scoop." It is not without some significance, for instance, that at vari-
ous times after the arrest of Lyons and the Leader's exclusive new.s
article, there appeared in the News, of which the Leader's representative
in the Lyons case subsequently became city editor, articles about Chief
Rabshaw of a very laudatory nature. The effect upon police morale of
"boosting" a police official as against his chief need not be labored. The
evil becomes still more demorahzing when the "boost" is connected with
favors shown to one newspaper in a highly competitive press.
It is well known among newspaper men, members of the police depart-
ment, and various officials of Cleveland that when Chief of Police Rowe
retired in December, 1917, the influence of the News was given to the
support of the candidacy of Captain Rowlands, now inspector, to suc-
ceed him. Chief Smith was also a candidate to succeed Rowe. Interest
taken by the News in the appointment of Rowlands was of such a nature
that Rowlands was frequently called "the News' candidate."
Whether the attitude of the News toward Chief Smith is influenced
in any way by the fact that the editors of the News preferred a rival can-
didate or is due to some other cause cannot, of course, be determined
here. What does seem clear is that the News has followed a policy of
extreme criticism and special hostihty toward the chief of police. Yet
the report on Police Administration in this survey makes it abundantly
clear that the fundamental causes for dissatisfaction with Cleveland's
police are attributable to the system.
By calling attention to this situation we do not mean to imply that
newspapers should not urge candidates for public office. But we do sug-
gest the need of drawing a line between merely enlightening the public
as to the merits or disqualifications of candidates and, on the other hand,
actually becoming selectors of candidates. A newispaper should hold
itself free to deal with the office and should not compromise itself for this
task by selecting the office holder. Particularly is this true of a non-
political, technical city service like the police department.
'An opportunity was given by the Foundation to a representative of the News to
insert in this report a statement of the considerations which in his opinion justified
the procedure in the Lj'ons ca.se.
1543]
CHAPTER IV
NEWSPAPER CAIVIPAIGNS
"Crime Waves"
IN RECENT years, since the war, much newspaper publicity has been
given to the existence and frequency of periods when crimes of
violence of all sorts seem to be on the increase. The phrase "crime
wave" was invented, and soon the idea became fixed in popular belief
that periodic outbreaks of crime were occurring, more or less referable
to the unsettling influences of the war. But the undiscriminating and
unchecked use made of the theory of "crime waves" appears from a
systematic study of the files of Cleveland papers. And the excitation of
the pubhc mind to such an emotional conception of "crime waves" is
clearly not an effective way of educating the public to understanding and
action.
On the other hand, it must be remembered that recently a succession
of dramatic crimes in Cleveland stirred an already effervescent public
feeling. The McGannon scandal, the Sly-Fanner murders, the Kaber
case, the Parma school teachers' mystery, formed an unusual combina-
tion to tempt the newspapers to exert theh arts. They were doubtlessly
influenced by the conviction that they must resort to the explosives of
sensationalism to arouse public opinion and official action.
Let us compare the actual nmnber of felonies for a given period with
the newspaper prominence crime news was given in that period. Let us
take the month of January, 1919, in which, according to the newspapers,
a " crime wave " got imder way. Table 1 shows the number of felonies by
weeks, exclusive of automobiles driven away, and the number of inches
of news space given the administration of justice, including crime news,
by the three dailies.
It will be seen that while the amount of space given the accounts of
crime and news of the administration of justice responded to an increase
in the amount of crime, yet the response was out of all proportion to the
actual increase in crime. Whereas 345 felonies were reported the first
two weeks and 363 the last two weeks of the month, the amount of space
given the administration of justice, including crime news, the first half
[544]
of the month was 925 inches ami the second half 0,642 inches. The first
half of the month the newspapers were saying nothing about a "crime
wave," the second half the readers were vehemently told that a crime
wave was sweeping the city.
TABLE 1.— NUMBER OF FELONIES, BY WEEKS, COMPARED TO NEWS
SPACE '
Felonies
Inches of news space
Week beginning
News and
News-Leader
Press
Plain DeaLT,
daily and
Sunday
January 1
January S
January 1.5
Jiinuary 22
I.').'?
192
203
160
r,9
200
1304
7G.5
51
236
1123
S13
107
272
1451
109S
' Space occupied by headlines is not included in the figures.
Space devoted to news of actual crimes did not, of course, increase to
so great an extent. A count of the inches devoted to crime news in one
of the dailies for January gives the following figures: week of January 1,
49 inches; week of January 8, 144 inches; week of January 15, 246
inches; week of January 22, 196 inches. Incidentally, the paper pub-
lishing the most news of the "crime wave" gave, in the week of January
15, 28 per cent, of its news space to news of crime and the administration
of justice.
"Crime wave" treatment by the newspapers is significant because of
the quality of the news matter. The kind of "news" and the way it is
treated, it cannot be too often repeated, makes the public mind and,
therefore, the public's attitude toward criminal justice. A few of the out-
standing tendencies of newspaper treatment of crime and the administra-
tion of criminal justice, during a "crime wave," may thus be sum-
marized :
1. An unusual amount of space and special headline emphasis are
given to crimes indiscriminately, whether great or small. News treat-
ment of such a period tends to create and sustain interest in the "crime
wave" as a daily feature or news "serial." There is little or no attempt
to give dependable statistics of the actual increase in crime, and still less
to analj'ze causes and underlying conditions.
2. A tendency to stimulate the belief that all crimes committed at
such a time are part of some special phenomenon that constitutes a
"crime wave" and can be cured by some quick panaceas.
36 [ 545 1
3. A tendency to demand summary action and quickly reportable
"results" on the part of police, prosecutors, and judges.
This last tendency is, from the point of view of the effective adminis-
tration of criminal justice, the most serious result of "crime waves" as
they are treated by the newspapers. Spurts of activity in any depart-
ment of the machinery provided for law enforcement are sure to lead to
congestion, inefficiency, and ultimate demoralization. Reform does not
come that way. Moreover, where the community is whipped up to
demand "results" of its system of criminal justice, officials responsive
to popular whims, as this survey discloses them to be, will, at least un-
consciously, care more to satisfy popular demands than to be observant
of the tried processes of law.
One of the ablest judges of the Common Pleas Court has thus indi-
cated some of the effects of newspaper agitation over "crime waves":
"During the January, 1921, term of court out of the first sixteen criminal
cases tried before me, there were twelve acquittals. This might be taken to indi-
cate that the jury system is at fault, but other elements must be considered. The
fact is that these cases came to court as a result of indictments returned the
preceding fall when the newspapers were laying stress upon the amount of crime
in Cleveland. In my opinion, there was not sufficient evidence in eleven of these
cases to warrant indictment, and I question if they would have been returned but
for the agitation at the time. Two factors must therefore be considered — the
injustice that may be done to individuals at a time of public excitement during a
so-called ' crime wave ' and the fact that the time of the court is needlessly con-
sumed by cases that should not come to trial."
A former member of the prosecutor's office, who is now a judge of the
Common Pleas Court, brings simUar testimony:
" I was in the prosecutor's office and my work was largely in the grand jury
room during one of the recent crime waves that received much newspaper promi-
nence. During this particular term of court to which I refer, I believe that we
returned more indictments than were ever before returned during one terra of
court in Cleveland. A grand jury will, in normal times, return some indictments
that ought not to be returned, but I was satisfied that of all the indictments
returned during this particular session at least one-sixth of them were unwar-
ranted. Half of this one-sixth, I believe, were returned owing to abnormal con-
ditions,— chiefly as a result of the prevailing newspaper agitation of the time."
Bail Bond Exposure
During January and Februarj^ 1919, there occurred what was known
as "the bail bond expos^." The story is told in the reports on Prosecu-
tion and Courts in this survey. It became known that a number of per-
[646]
«i
sons suspected or actually arrested and charged with crimes had been
previoush' under arrest and released on bail. Special newspaper atten-
tion was given to the fact that bail was fixed by judges on the recom-
mendation of the prosecutor, and in view of this power of fixing bail by
recommendation the prosecutor was urged to demand higher bail. It
was also said that conditions affecting bail bonds were so lax that many
persons on bail were eluding justice, while their bondsmen were not
suffering any financial loss as a result of the default.
Agitation following on these disclosures had two results almost
immediately: first, the prosecutor was led to declare that he would
recommend higher bail, which he did, and to ask writs of capias and for-
feiture of bonds in numerous cases. Then it was discovered that many of
the defendants whose bonds had been forfeited were only waiting to be
notified of the date of their trials, and in many cases the courts were
obliged to set aside the forfeiture. Undoubtedly abuses and laxity as to
bail bonds had grown up, and the newspapers' campaign directed atten-
tion to dangerous tendencies. But these "campaigns" become indis-
criminate in their attack. Too often the baby is throwTi out with the
bath water.
Let the newspapers themselves indicate some of the results.
1. From the News, January 20, 1919:
With the several investigations under way, and with bonds being for-
feited by Prosecutor Doerfler at a rate unprecedented in Cuyahoga County
history, County Jail Monday was filled to overflowing with criminals of
even,- degree.
Sheriff Hanratty said that 350 men and women were already in the jail
and that more were expected during the day as those sought on capiases
were rounded up.
2. From the News, January 23, 1919:
NO EMPTY CELLS IN JAIL AS ROBBERY CASES CLOG COURTS
The civil branch of the Common Pleas court was called on Thursday to
assist in hearing criminal trials as the result of the sudden increase in the
activity of prosecuting officials and the rush of "cases," owing to forfeiture
of bonds, surrender of hunted offenders and unprecedented number of
arrests.
The effect of these newspaper "drives" and the tendency to regard
mere numbers of indictments as evidence of efficient administration in
fact result, as this survey amply discloses, in great inefficiency and may
well involve grave injustice. A judge of the Common Pleas Court has
declared that the effect on grand juries of "publicity" of this kind is to
[547]
cause many indictments to be returned in wiiich judges have to direct
acquittal because of insufficient or ill-considered evidence.
Parole Abuse
Much criticism of the administration of the parole law has appeared
recently in Cleveland newspapers. Undoubtedly there have been abuses
due to various causes as set forth in the report on Correctional and Penal
Treatment. But many erroneous conceptions have been lodged in the
public mind by unwarranted statements. Thus, sweeping assertions
have been made as to the number of paroled men who have committed
crime while on parole, supported by the most meager statistics. The
whole parole system has consequently been jeopardized through the
reckless or careless instillation of erroneous ideas or "facts" into the
reading public's mind.
1. From the Plain Dealer, April 24, 1921 (editorial):
"PAROLED"
Tliroughout the record of the men implicated or suspected of imphca-
tion in the Sprosty murder appears time after time one all-significant word.
"Paroled."
"Bobbie" Hunt, who is charged by his "pals" with having fired the shot
that killed the patrolman, was sent to the reformatory in 1918 and paroled.
Wilham Murphy, alias Conton, member of the gang that shot Sprosty,
was paroled from the reformatory in 1918 and again in 1920.
Martin Dwj'er, companion of Murphy and other criminal escapades,
was paroled from the reformatory and is now there serving a sentence as a
parole violator.
So runs the story of criminal activities. Most bandit gangs are made
up in large part of paroled men — men who have been turned loose on the
public by some board given more to sentimentalism and leniency than to
justice.
If the parole abuse were curbed the keystone of the arch of banditry
would fall.
2. From the Press, April 26, 1921 :
CRIMES ARE PLANNED AT WORKHOUSE
Cleveland's crime wave continues to rise.
The toll of pillage and murder increases. Gangsters scoff at law and
courts. And peaceful citizens shudder.
Since the first of the year, in the months of January, February, March
and 25 days of April, 317 robberies have been listed and 13 murders
Nearly every crime horror has its parole angle. It has become second
nature for detectives, city editors, police reporters and others who are
thrown in pursuit of criminals to look for the "past." The criminal is not
cured. Free on parole, from Warrensville, or Mansfield, or Columbus
[548]
I
1
Penitential^', or having served his sentence, he get* back again on the job of
loot and death.
3. From the Press, January 4, 1921 :
PETTY CRIMINALS BECOME MURDERERS WHEN PAROLES
AND EASY BAIL FREE THEM AND RESULT IN CONTEMPT
FOR LAW. INSTANCES SHOW HOW MEN STARTED IN
CRIME BY PETTY THEFTS AND NOW ARE BEHIND BARS
FOR LIFE.
This article contained summaries of eight cases of individuals who had
committed serious crimes while out on bail or on parole.
It is the practice of Cleveland newspapers to give prominence to the
circumstances of a crime committed by a prisoner on parole. We quote
an example from the News, April 6, 1921 :
HOW ALLEGED SLAYER CONVICTED AS ROBBER WAS LEFT
FREE TO KILL
Here is an example of the way young criminals are allowed their free-
dom, under the present bond system, to continue their crimes providing the
youth identified as the slayer of Robert L. Fischer is proven guilty.
This youth, twenty years old, was arrested July 27, 1920, for complicity
in the robbery of a jewelry store the afternoon of July 26.
He was bound over to the grand jury the following day in $10,000 bail.
Bond was furnished immediately and he was free until February 26, when a
jury found him guilty of robbery.
Motion for a new trial was overruled by Judge Powell on Februarj- 28
and he was sentenced to the penitentiary. Execution of the sentence was
suspended to March 15, pending the filing of a petition in error.
A petition was filed in appellate court March 15 and a new bond of
$15,000 was fixed. This, too, was furnished at once and the youth, still at
large, is not now being sought for murder.
The case of this youthful murder suspect parallels that of Frank Motto,
now awaiting trial for first degree murder in connection with the double
kilhng of Wilfred C. Sly and George K. Fanner, during a pajToU holdup on
New Year's eve. Motto is said to have played a part in the tragedy while
free in $10,000 bail pending a decision of the appellate court on an auto
theft case of which Motto was convicted.
What notice or comment has appeared in the newspapers at the time
action was taken by prosecutors, judges, or parole board members? Has
the publicity attending the course of action of these officials been such as
to check abuses of parole, suspended sentence, and bail bond sj'stem?
An examination of the columns of Cleveland newspapers indicates
that from 1917 until late in 1920 careful observation of the action taken
by officials and intelligent appraisal of parole cases has not been a matter
1549]
of common practice. By way of caution it should be remembered that
these were partly war years, with their war preoccupations. As indica-
tions of the extent of the neglect or indifference during this period of
time, the following important cases are cited, together with a report of
the newspaper treatment the matter received on the day or on the day
after the action was taken.
Charles Calabreese convicted of burg-
lary and larceny January 25, 1917. Sen-
tenced to reformatory and paroled.
Andrew Kebort indicted for robbery
February 8, 1918. Pleaded guilty March
11, 1918. Nothing further done until
June 9, 1919, when he was sentenced to
the Ohio State Reformatory and sentence
suspended, the sentence being a mere
formaUty to clean up the record.
Adam Diefenbach, convicted Novem-
ber 5, 1920, on charge of rape and sen-
tenced to Ohio State Penitentiary. On
November 12, motion for new trial
granted. On this date Diefenbach
pleaded guilty to assault and battery
and was sentenced to thirty days.
Warren Smith, arrested July 22, 1920,
charge manslaughter. Discharged, Sep-
tember 30, 1920.
Juhus Pettianto, convicted of auto
steahng, March 22, 1920. Writ of error,
dismissed by court of appeals for want
of prosecution, November 22, 1920. Pet-
tianto meanwhile disappeared and is
still at large.
Ethel Martine, indicted December 19,
1919, charge of larceny. On May 11,
1920, bond was forfeited and capias was
issued. Defendant disappeared and is
still at large.
Louis Ettkin, grocer, found guilty of
violating liquor law by Judge Silbert, No-
vember 23, 1920. Fined $200 and costs.
Fine changed same day to $100 and costs.
Motion in mitigation. Bond forfeiture.
Again set aside. On February 21, 1921,
motion in mitigation allowed and $75
of fine suspended. Fine of $25 paid on
February 21. At least seven continu-
ances.
[550]
No mention of Calabreese in nmos-
papers of this or the following date.
No Cleveland newspaper contains men-
tion of sentence and suspension in issues of
June 9 or June 10, 1919. When Kebort
was arrested for murder some time in July
or August of the same year, all newspapers
noted the fact that his previous sentence had
been suspended.
No Cleveland newspaper mentioned the
case on November 12 or 13.
No mention in any newspaper of Sep-
tember 30 or October 1.
No mention in any newspaper of the
discharge for want of prosecution, in issues
of November 22 or 23, 1920. The aspects
of the case are alluded to in the Plain
Dealer in January, 1921.
No mention in any newspaper of May
11 or 12 of this forfeiture.
Of this extraordinary procedure, no
mention occurred in the Plain Dealer of
February 22, nor in the Press and News
of February 21 and 22.
Frank Lyons, Sr., indicted on charge No mention in Plain Dealer, April 11
of receiving stolen property, November nor Press and Hews of Ajtrit 10 and II.
14, 1916. Nolle prosequi April 10, 1919.
Frank Lyons, Sr., Frank Lyons, Jr., The case was mentioned in two-inch
and Leonard Lyons indicted on charRe of article in the Press on May If. It was
manslaughter December 22, 1911. First covered in Plain Dealer by a four-inch
defendant pleaded guilty to assault and article on the sixth page of the issue of May
battery May 4, 1912, was fined $50 and .5. No mention in the Hews of May 4 nor
was sentenced to 90 days; 90 days Leader o/ A/ay 5.
suspended. Second not. pros, same date.
Third pleaded guilty and was sentenced
to one year.
Campaigns to Reform the Courts
All the Cleveland newspapers devote considerable space to the dis-
position of cases made by the various judges, chiefly those of the Muni-
cipal Court, though frequently members of the Common Pleas Bench
receive attention. Most of this news deals with the routine work of the
courts, such as reports of the amount of bail fixed, sentences and decisions
rendered, but not infrequently the action of a judge may be featured
daily for a considerable period of time. At such times interviews with
photographs and sketches are included.
The news treatment of the traffic situation in July, 1916, may serve
as an example of the manner in which the work of individual judges
receives special but wholly erroneous emphasis. The effects of this prac-
tice, and the susceptibility of judges to evoke it, have been set forth in
the report on courts in this survey. Frequent accounts of court pro-
ceedings in traffic cases appeared in all Cleveland newspapers of this
period, though the Plain Dealer appears to have given much less atten-
tion to it than the Press and News.
1. The Neu-s of July 12, 1916, contained a three-column cut of Judge
Frank C. Phillips. The headline of the article read: "Abakdcv Hope,
All Ye Who Enter Here. Hits Nemesis of Speed Ban." The open-
ing paragraphs of the article read as follows:
When an autoist, who unfortunately has been caught speeding or
violating any one of the many auto laws, steps to the bench of the Police
Court and finds himself looking into these eyes he instinctively reaches for
his pocket-book.
This picture is that of Judge F. C. Phillips and he has the names of the
auto law violators. Many face him but few escape his judicial wTath
Since Phillips' ascent to the police court bench, July 3rd, the city has
grown $1,700 richer by reason of fines imposed on motorists.
[551]
2. The News, September 21, 1916:
DYER GETS 45 DAYS. MUST SERVE 20 OF THEM. BARRED
FROM DRIVING FOR 3 MONTHS. IS SENTENCED TO JAIL.
Police Judge Phillips sentenced J. Milton Dyer, architect who drew the
plans for the City Hall and Warrensville Farm Buildings, to 45 days in the
County Jail and ordered him to pay a fine of $50 and costs on a charge of
driving an auto, September 15th, while he was into.xicated.
With this article there appeared a three-column pictm-e of Dyer-
Judge Phillips, and a jail door. The article contained a list of men sen,
tenced to jail by Judge Phillips for traffic violations.
3. From the Plain Dealer, July 9, 1916:
SPEEDERS, LISTEN, TROUBLE BREWS. CARELESS AUTOMO-
BILE DRIVERS FACE REAL PUNISHMENT HEREAFTER.
THIRD OFFENSE AUTOISTS ARE GOING TO JAIL, WARNS
CITY JUDGE.
Speeders, listen!
Municipal Judge Frank A. Phillips warns that all third-offenders
speeders arraigned before him will be sent to jail. Common Pleas Judge
P. L. A. Leighley contends the statute providing jail sentences for speeders
is valid.
During January, 1921, the heavy penalties meted out to Uquor vio-
lators became the subject of special news treatment. Reports of these
fines and sentences were important news because of the unusual penalties
fixed by the courts.
4. From the Press, January 3, 1921:
WHAT CITIZENS SAY. FOLLOWING ARE SOME INTERVIEWS
WITH CLEVELANDERS ON THE SUBJECT "WHAT CAN BE
DONE TO MAIvE CLEVELAND SAFE."
Judge F. L. Stevens, on his first day in Criminal Court: "I am going
to strike at the root of the evil, that is, the liquor traffic. I am going to hit
that hard, and keep hitting it as long as it exists. These bandits are filled
with liquor which makes them want to shoot and kill."
5. From the Press, January 4, 1921:
FINES GOING UP. POLICE JUDGE AIDING IN CRIME CRUSADE.
Nine hundred cases continued from preceding term of court are now
before City Judge Howells and Stevens. The 900 cases include 94 liquor
cases and these will be heard by Judge Stevens.
" I will say that it is a good thing for the city that they have been placed
[552]
^
on my docket," Stevens said Tuesday. " I am informed that some attorneys
for defendants arc very sorry that the cases are to come before me."
Stevens Tuesday imposed the third fine in two days of $1,000 and costs
in liquor cases
Stevens said that in all coses where proprietors of stores were caught
selling liquor continually he would give a $1,000 fine.
6. From the Press, January 7, 1921 :
NO COURT DEL.\Y. TH.\T IS THE .\IM OF JUDGE IN REFUSING
CONTINU.\NCE. HOWELLS SPEEDS JUSTICE. STEVENS
GETS LETTER THREATENING HIS LIFE.
Judge George A. Howells refused requests for continuances by lawyers
in City Court Friday. This was a method to speed justice
Judge F. L. Stevens read in court a letter threatening his life because of
his severe fines against traffic violators and against liquor law violators who
had been fined from $1,000 to $3,000.
"Threats to kill me if such sentences are imposed in future will have no
effect on the administration of justice," Judge Stevens said.
7. In the Press of January 10, 1921, appeared a first-page editorial
with a page-wide headUne reading as follows:
"WHAT SHALL I DO?" ASKS POLICE JUDGE STEVENS— IF YOU
KNOW PLEASE TELL HIM.
Judge F. L. Stevens of Municipal Court wants advice. He has been
imposing fines of from $1,000 to $3,000 on liquor law violators. If they are
unable to pay, they are sent to Warrensville Workhouse where they earn
$.42 a day to apply on their fines.
"At this rate of pay they would have to serve anv-where from 7 to 21
years," said Stevens. "That would be obviously unjust but I shall con-
tinue to impose a heavy fine."
What Stevens wants is a system which would enable liquor law violators
to pay their fines without spending a large part of their lives in the Work-
house. He called on fifteen members of Cleveland organizations to evolve
such a system and also invited suggestions from citizens generally. If you
have any, Stevens wants them.
8. From the Press, January 24, 1921 :
DEEP MYSTERY, IT'S JUDGE STEVENS RELIEF FOR DRY VIO-
LATORS. HOW TO GET 'EM OUT OF JAIL? "WE DON'T
KNOW" REPLY MOST OF COMMITTEE MEMBERS.
The solution to Judge Stevens' dilemma is yet to be found. Stevens
asked citizens to tell him what to do with liquor law violators who can't pay
their fines. Serving out a $3,000 fine in the Workhouse at the rate of 43
cents a day would take 21 years. " What's to be done?" Stevens asks.
(The article continued with quotations from citizens who had been
asked by Judge Stevens to serve "on a committee to aid him.")
[553]
9. On January 19, the News printed the following:
STEVENS TAKES STING OUT OF $1,000 FINES. WON'T KEEP
DELINQUENTS IN WORKHOUSE TOO LONG.
The sting was missing in Judge Stevens' daily 81,000 fine for liquor vio-
lation in Police Court Wednesday, following an address by the judge Tues-
day night before the Dry Maintenance League.
Stevens told dry advocates he would assess heavy fines and send culprits
to the workhouse when they could not pay up and there would remain until
the judge thought "they had had enough" and then he would suspend the
rest of the sentence.
Both the Press and News gave much less attention to the final out-
come of Judge Stevens' procedure than to the court's dramatic pro-
nouncements. Yet effective results as contrasted with paper results,
or dramatic gestures, are the only results that matter. The futility of
Judge Stevens' "played-up" activity is conclusively dealt with in the
reports on Courts and Prosecution. The record shows that 60 persons
given extreme penalties in January were unable to pay their fines on
April 20. Of these, 24 returned to court and had their fines suspended.
Twenty-four were paroled by the parole board. Seven paid their fines,
one died, and four were still serving time in the Workhouse. On the first
Sunday in April the Leader-News did carry a prominently displayed arti-
cle indicating the futility of the Court's procedure. The headUne of the
article was: "Records Show Few Serve Rum Sentences. Many
Fined $1,000 Escape Lightly in End." The opening paragraphs read
as follows:
Fines of $3,000, $2,000, and $1,000 for liquor violations mean httle,
court records show. Eighty-two persons have been sentenced for these
amounts by one judge in police court since January 1. Only five persons
have paid the full penalty.
The total of fines imposed in these amounts upon the eighty-two per-
sons has been $88,000. Including the five who paid the full amount, the
total collected was $12,500
The quotations illustrate a tendency of newspapers in general to dis-
tribute emphasis irresponsibly, having regard neither for the proportions
of the event discussed nor for the building up of an effective public
opinion, formed, as opinion is, upon the intake of the news column. It
is this trait which causes lawyers and judges of Cleveland to say that the
newspapers are always emphasizing non-essentials in regards to judges.
Subservience to the popular response to sensation and excitement is the
only constant element. The effect is sometimes mere sensationalism,
but it may be much more serious. Such irresponsibility leaves the news-
[554]
papers free to exploit the individual judge for political ends, in fact, to
make or unmake judges; and this opportunity, as the report on the
Courts indicates, they have not left unexercised.
Judges themselves are not unconscious of the political importance of
frequent newspaper mention, however factitious, though there is great
difference among them in seeking publicity or trying to avoid it. The fol-
lowing statement made by a judge of the municipal bench is illuminating :
" I have told newspaper men that, if something is going on in the city, and if
somebody says something for which he doesn't want to be quoted, they can quote
me as saying it. I have given them this permission, but I don't know that they
have ever used it."
When the judge was asked on what grounds he had seen 5t to issue
such an unusual sanction, he said: "It doesn't matter what they say.
It's all constructive."
A judge of the Court of Common Pleas, who is regarded as one of the
able men of that court, thus summed up the situation: "You can't get
on the bench without advertising; you can't stay on without furnishing
copy."
[555 1
PART VIII
CRIMINAL JUSTICE IN THE AMERICAN
CITY— A SUMMARY
BY
ROSCOE POUND
CRIMINAL JUSTICE IN THE AMERICAN
CITY— A SUMMARY
CHAPTER I
THE NATURE OF THE PROBLEM
Men, Machinery, and Environment
PRIMITIVE man interprets all things in terms of benevolent or
malevolent powers whom he must placate and to whose caprices he
is subjected. His laws are gifts or revelations of the gods. The
need for obeying them is to avoid the wrath of the gods, which will fall
indiscriminately upon the community which harbors those who do not
walk in the divinely dictated path. He seeks to understand things in
terms of personalities, with wants and desires and wills hke his own. This
interpretation of the occurrences of nature in terms of personality is
closely connected with a primitive instinct to hurt somebody or be
avenged on something when things go wrong or one is crossed in his pur-
poses or meets with some injury. The fundamental instinct of pugnacity
reacts at once to such situations. In the Mosaic Law, if an ox gored a
man, the ox must be surrendered for vengeance. In Athens, when a man
was killed by the falling of a branch from a tree, the kinsmen of the dead
man solemnly chopped down the tree. At Rome, if a domestic animal
did any injury, the owner must surrender the animal to the vengeance of
the injured person or pay a penalty for standing between the latter and
his vengeance. When Huckleberry Finn's father stumbled over the
barrel, he promptly kicked it in response to the same instinct. So when
things go wrong in the conduct of government or in the administration of
justice, the instinct of pugnacity is aroused and the pubHc cries out for
some one to be hurt. The general assumption is that legal and political
miscarriages resolve themselves into a matter of good men and bad men,
and that the task is a simple one of discovery and elimination of the bad.
In truth, the matter is much more complicated than the bad-man in-
terpretation of social and political difficulties assumes. Formerly men
sought to imderstand history by means of a gi-eat-man interpretation.
History was the record of the actions of great men and of the effects of
[559]
those actions upon social life. Just now there is a certain tendency to
revive this interpretation, and we need not ignore the role of great men
while insisting that much else needs to be taken into account in order to
understand history. In the same way we need not ignore the importance
of good men in public life in insisting that much beside individual char-
acter needs to be considered in order to understand the shortcomings of
legal administration. For good men, if we get them, must work in the
social and political and legal environment, and with the legal and admin-
istrative tools of the time and place. Often the best of men are the
victims of bad or inadequate machinery which impedes their earnest
efforts to do right, and may even constrain them to do what they would
not do freely. Easy-going men of the best intentions become caught in
the machinery and unconsciously become part of it. Moreover, bad
men, who commonly make their liveUhood by their wits, are unceasingly
vigilant to take advantage of the opportunities which outworn or inade-
quate machinery affords. Where the good are impeded by the instru-
ments with which they must work, the easy-going give up the efifort to
do things in the face of the impediments and let the machinery take its
own course. Thus the well-intentioned drift. It may be that the ill-
intentioned secretly give direction to the drift; but quite as likely the
drift is to their profit because they are watchful to make it so. We may
not expect that any political or legal machinery may be conceived which
will eliminate wholly these opportunities for the ill-intentioned to warp
the administration of justice to their desires. Yet some machinery in-
creases them both in number and in possibilities, and it must be our
study to devise pohtical and legal apparatus which will reduce them to a
minimum in both respects.
Along with the bad-man interpretation there commonly goes a faith
in legal and pohtical machinery in and of itself: a belief that when any-
thing goes wrong we should appeal at once to the legislature to put a law
upon the statute book in order to meet the special case, and that if this
law is but abstractly just and reasonable, it will in some way enforce
itself and set things to rights. We must enact the one perfect law for each
special situation and put out of office the one bad man who perverts its
operation. Then all will go well of itself. This faith in legal and political
machinery is inherited and deep rooted. Our Puritan forbears abhorred
subordination of one man's will to another's, and sought rather a "con-
sociation" in which men should be "with one another, not over one
another." They conceived of laws as guides to the conscience of the
upright man, and believed that if laws were inherently just and reason-
able, they would appeal to his conscience as such, and secure obedience
[ 560 1
by their own moral weight. This mode of political thought, well suited to
the needs of a small group of God-fearing men founding a commonwealth
in a new world, is ill suited to the needs of the enormous groups of men
of all sorts and conditions who jostle each other in the city of today.
There, law must bo more than a guide to conscience. There, men will
not take time to consider how the intrinsic right and justice of the law
appeal to their consciences, but in the rush and turmoil of a bu.sy,
crowded life, will consider offhand how far the law may be made an
instrument of achieving their desires. There, good laws will not enforce
themselves, and the problem of enforcement becomes no less urgent than
the problem of providing just laws. The administrative element in jus-
tice, the work of adjusting the application of law to individual cases with
an eye to their unique features, becomes increasingly important as we
become more crowded and division of labor becomes more minute, and
individual wants and desires and claims come in contact or conflict at
more points. In this administrative element of justice men count for
more than machinery. And yet even here men must work with ma-
chinery. The output is a joint product of man and of machine, and it
often happens that what the man does is dictated by the capacity or the
exigencies of the machine quite as much as that what the machine does
is dictated by the will of the man.
Not the least significant discoveries of modern psychologj' are the
extent to which what we have called free will is a product, not a cause,
and the extent to which what we take to be reasons for actions are but
rationalizings of what we desire to do and do on different grounds. In
the administration of justice there are many subtle forces at work of
which we are but partially conscious. Tradition, education, physical
surroundings, race, class and professional solidarity, and economic, polit-
ical, and social influence of all sorts and degrees make up a complex
environment in which men endeavor to reach certain results by means
of legal machinery. No discussion simply in terms of men or of legal and
political machinery, or of both, ignoring this complex en\'ironment, will
serve. At whatever cost in loss of dramatic interest or satisfying sim-
plicity of plan, we must insist on plurality of causes and plurality and
relativity of remedies.
Both the bad-man interpretation and the faith in legislation and new
laws as remedies illustrate a common mode of thinking which seeks to
explain everything by some one cause and to cure every ill by some one
sovereign remedy. It is not hard for an ordinary person to toss up one
ball so as to keep it in motion continually. With practice one may learn
to keep two going at once. But only a skilful juggler can so handle three
37 [ .561 1
or more at once. In the same way the ordinary man may think of one
cause or one remedy at a time, but finds difficulty in bearing two in
mind at once and leaves consideration of larger numbers to the expert.
All branches of knowledge, theoretical and practical, have had to con-
tend with this difficulty of holding all the factors of problems in mind at
once. In all ages men have sought to avoid this difficulty by searching
for some solving word or phrase or some ultimate idea or some universal
cure-all, whereby to escape the hard task of thinking of many things in
one connection. The several sciences have struggled with the desire for
a simphfication that covers up difficulties instead of overcoming them
and the assumption of one cause for each phenomenon and one remedy
for each ill. Neither the science of law nor the science of politics has
escaped this struggle to master complex facts by giving them a fictitious
appearance of simplicity. Nor has the quest for the simple and easy
been more successful in these sciences than elsewhere. There was no easy
royal road to learning, and there is no simple and easy popular road to an
understanding of law and government and mastery of the difficult prob-
lems which each presents. The citizen who seeks such understanding
must expect to study hard and think critically and to keep many things
in mind at once while framing his judgments. He must expect those
judgments to be largely tentative and relative to time, place, and cir-
cumstances. Much as he might like to rest in some formula and to be-
lieve in the efficacy of some one specific applied once for all, he will find
such hope as futile as the quest for the philosopher's stone or the fountain
of youth or the one cure for all bodily ills in which men formerly engaged
in a like hope of achieving an easy simplicity. At the very outset we
must give up the search for a single explanation of the inadequacy to its
purposes of punitive justice in action, and hence must give up the search
for any single simple remedy.
We may say that the three chief factors in the administration of jus-
tice are — (1) the men by whom it is administered; (2) the machinery of
legal and political institutions by means of which they administer justice;
and (3) the environment in which they do so. One who surveys the work-
ings of a legal system with these three things in mind will not go far
wrong. Yet his picture will not be complete nor wholly accurate. He
must take account also of certain practical limitations and practical
difficulties inherent in the legal ordering of human relations, at least by
any legal institutions thus far devised. The purposes of law, as we know
them, and the very nature of legal institutions as we have received and
fashioned them, involve certain obstacles to our doing everything which
we should like to do by means thereof, and even to our doing well many
[562]
things which we have been trying to do thereby for generations. These
practical limitations on effective legal action explain much that, on a
superficial view, is ascribed to bad men or bad legal machinery. Hence
a fourth factor must be added, namely, (4) the bounds within which the
law may function effectively as a practical system.
The Function of Law
We look to the physical and biological sciences to augment the means
of satisfying human wants and to teach us to conserve those means. We
look to the social sciences to teach us how we may apply those means to
the purpose of satisfying human wants with a minimum of friction and
waste. Thus we may think of the legal order as a piece of social engineer-
ing; as a human attempt to conserve values and eliminate friction and
preclude waste in the process of satisfying human wants. That part of
the whole process of social engineering which has to do with the ordering
of human relations and of human conduct through applying to men the
force of politically organized society is the domain of law.
To illustrate the function of law we may consider the common case
where large numbers of persons seek admission to a baseball game or seek
to buy tickets at a theater. If each individual is left to himself, and in his
desire to get to the ticket window first and procure the best seat pushes
and shoves his individual way thereto as his strength and disposition
dictate, it is not unlikely that few will be served in any reasonable time.
When all seek to be served at once, no one may be served. In the en-
deavor of each to secure his individual desire in a crowd of fellow-men
seeking likewise to secure their individual desires, he and they are sure to
lose much of what they seek through the friction of a disorderly scramble,
the waste of time and temper in trials of individual strength and per-
sistence, and the inability to do business at the window in the push and
shove of an unregulated crowd after they get there. On the other hand,
if the crowd is "lined up," is ordered, and is required or persuaded to
pursue an orderly course to the window and await each his turn, friction
is done away with, time is conserved, waste of effort is eliminated, and
each may secure freely and with comparative speed what he seeks to the
extent that there are accommodations available. If there are not enough
for all, yet all are satisfied so far as may be with a minimum of waste.
The task of the law is similar. It is one of making the goods of existence
go as far as possible in the satisfaction of human wants by preventing
friction in the use of them and waste in the enjojTnent of them, so that
where each may not have everything that he wants or all that he claims,
he may at least have all that is reasonably possible.
[563]
In this process of adjusting and ordering human relations and order-
ing human conduct in order to eliminate friction and waste, the legal
order deals, on the one hand, with controversies between individuals.
Where their claims or wants or desires overlap, it seeks to harmonize and
reconcile those claims or wants or desires by a system of rules and
principles administered in tribunals. On the other hand, it has to deal
with certain acts or courses of conduct which run counter to the interests
involved in the existence and functioning of civilized society. Civihzed
society rests upon the general security, including the general safety, the
general health, peace, and good order, and the security of the economic
order. It is maintained through social institutions, domestic, religious
and poHtical. It involves a moral life and hence calls for protection of
the general morals. In a crowded world it presupposes conservation of
social resources. It is a society of individual human beings, and hence its
proper functioning presupposes the moral and social life of each individ-
ual therein according to its standards. These social interests, as they
may be called, namely, the general security, the secuiity of social insti-
tutions, the general morals, the conservation of social resources, and the
individual moral or social life, are threatened by the anti-social acts or
anti-social conduct or even anti-social mode of hfe of particular individ-
uals. To restrain these persons, to deter others who might follow their
example, to correct such anti-social mode of life as far as possible, and to
give effect to these social interests, the law imposes a system of duties
upon all persons in society, enforced through administrative and police
supervision, through prosecution and through penal treatment. The part
of the legal system that defines these duties and prescribes how they shall
be enforced by means of prosecutions and penal treatment is the criminal
law.
It is important to bear in mind that the law is only one of many regu-
lative agencies whereby human conduct is ordered for the securing of
social interests. The household, religious organizations, fraternal or-
ganizations, social, professional, and trade organizations may operate
also, through their internal discipline, to order the conduct of their mem-
bers and to restrain them from anti-social conduct. In the past these
organizations, whereby the force of the opinions of one's fellow-members
may be brought to bear upon him, have played a large part in maintain-
ing civilized society. When the law seems to break down in whole or in
part we may well inquire, among other things, how far it is supported or
is interfered with by some or all of these organizations, and how far they
also or some of them must bear the blame. Obviously the number and
vitality of these organizations in any society and the manner in which
[ 564 ]
I
and ends for which they are conducted are important items in the en-
vironment of the administration of justice.
To think of the legal order functionally, in terms of engineering, is
especially important in such a survey as the present. Here we are not
concerned with legal rules in their abstract nature, but in their concrete
workings. We are not seeking to know what the law is. We seek to
know what the legal system does and how what it docs measures up to
the requirements of the ends for which it is done. Hence the purpose of
the law must be before us as a critique of its achievements in action, not
some criterion drawTi from the law itself. When the growth of a city
makes the old mechanical structures, set up by the engineers of the past,
inadequate to the wants or needs of the present, and calls for newer and
larger and better structures of mechanical engineering, we do not judge
the old structures by their conformity to some ideal plan, conceived be-
fore they were built, but by their results in action. We do not abuse the
men who devised nor those who, for the time being, are operating the old
structures. We set out to plan and build new and better structures. No
less science, no less preliminary study, no less thorough preparation, no
less intelligently directed effort, is required when the growth of a city
calls for new structures in the way of social engineering. In each case the
question is one of achieving certain practical ends in view of the means
at hand, the structures of the past, the ingenuity of the engineers, the
limitations of science, and the strength or feebleness of the public desire
that those ends be met. In each case, also, the preliminary survey must
take accoimt, in the first instance, of the difficulties to be overcome.
Difficulties Involved in the Administr.\tion of Justice
Difficulties in the administration of justice, with which we must
reckon in order to appraise intelligently the workings of any particular legal
or judicial organization, are partly in the very subject matter. That is,
they are wider than time and place and inhere in all attempts to order
human conduct and human relations by the force of poUtically organized
society — at least through any legal or administrative machinery which
thus far the wit of man has been able to devise. Also they are partly in
the times in which justice is administering. That is, they are wider
than the place which we may be investigating and are involved in the
general condition of legal science in the civilized world, in a particular
time, the ideas as to the purpose of law entertained'generally in that time,
and the general attitude of the time toward law and government.
Again, they are partly in the system that has come down to us from a past
in which it was constructed imder and to cope with different conditions
[565]
and hence is ill-adapted to the social, economic, and political environ-
ment in which it must operate. Finally they may be partly in purely
local conditions. Accordingly, I shall consider these difficulties under
four heads: (1) Inherent difficulties; (2) general difficulties; (3) American
difficulties; (4) local difficulties.
56G 1
CHAPTER II
INHERENT DIFFICULTIES
Dissatisfaction with the Administration of Justice
DISSATISFACTION with the administration of justice is as old
as law. As long as there have been laws and lawyers conscien-
tious men have believed that laws were but arbitrary technical-
ities, and that the attempt to govern the relations of men in accordance
with them resulted largely in injustice. From the beginning others have
asserted that, so far as laws were good, they were perverted in their
application, and that the actual administration of justice was imequal
or inefficient or corrupt. In the first stage of legal development one of
the Greek Seven Sages said that "laws are like spiders' webs, wherein
small flies are caught, while the great break through." In the history of
Anglo-American law discontent has an ancient and unbroken pedigree
from Anglo-Saxon times to the present. The Anglo-Saxon law books are
full of complaint that the king's peace is not well kept, that justice is not
done equally, and that great men do not readily submit to the law which
is appropriate to them. Later the Mirror of Justices contains a Ust of
155 abuses in legal administration. Still later Wyclif complains that
lawj'ers try causes "by subtlety and cavilations of law," and not bj^ the
gospel, "as if the gospel were not so good as pagan's law." In the reign
of Henry VIII it was complained that good laws were obstructed in their
operation by interpretations in the courts in which "everyone that can
color reason maketh a stop to the best law that is before time devised."
James I sent for the judges on complaint of the Archbishop of Canter-
bury, and argued to them that "the law was founded upon rea.son and
that he and others had reason as well as the judges." In the eighteenth
century there was complaint that the bench was occupied by "legal
monks," utterly ignorant of human nature and of the affairs of men.
After the Revolution the administration of justice in America was the
subject of bitter attacks. Many judges were impeached, not for any
crimes or misdemeanors, but because the whole administration of justice
was suspected or objected to. The movement for an elective bench
which swept over the United States about the middle of the last century
1567]
grew out of these attacks. In England in the first half of the nineteenth
century attacks on the courts were hardly less bitter, as the reader of
Dickens may readily verify. In our own time the agitation for recall of
judges and recall of judicial decisions was strong less than a decade ago.
We must not allow this perennial and perhaps inevitable discontent with
all law to blind us to serious and well-founded complaints as to the actual
operation of the legal system today. But it may give us a needed warn-
ing that some discontent is unavoidable, that we may not hope to obviate
all grounds of complaint, and that we must begin by taking account of
the inherent difficulties, because of which a certain amount of dissatis-
faction must always be discounted.
Inherent Difficulties in All Justice According to Law
1. The Mechanical Operation of Legal Rules
To a certain extent legal rules must operate mechanically and the
most important and most constant cause of dissatisfaction with all law
in all times grows out of this circumstance. A proper balance between
strict rule and magisterial discretion is one of the most difficult problems
of the science of law. Throughout the history of law men have turned
from an extreme of the one to an extreme of the other and then back
again, without being able to attain a satisfactory administration of jus-
tice through either. Sometimes, as in the strict law of the late medieval
courts in England, or as in the maturity of American law in the last half
of the nineteenth century, men put their faith in strict confinement of the
magistrate by minute and detailed rules or by a mechanical process of
application of law through logical deduction from fixed principles. By
way of reaction at other times men pin their faith in a wide magisterial
power to fit justice to the facts of the particular case through judicial
discretion, as in the administrative tribunals of sixteenth- and seven-
teenth-century England, the executive and legislative justice of the
American colonies, and the executive boards and commissions which are
setting up in this country today on every hand. But these reactions are
followed by new periods of fixed rules. Thus experience seems to show
that the mechanical action of law may be tempered but may not be
obviated.
We seek to administer justice according to law. That is, we seek just
results by means of a machinery of legal rules. But a certain sacrifice
of justice is involved in the very attainment of it through rules, which yet
are, on the whole, the best and most certain method of attaining it
which we have discovered. Legal rules are general rules. In order to
[568]
make them general we must eliminate what by and large arc the immate-
rial elements of particular controversies. This would be of no conse-
quence if all cases were alike, or if it were possible to foresee or to reckon
precisely the degree in which actual cases approach or depart from the
types which the law defines. In practice they approximate to these types
in endless gradations, the one often shading into the next, so that in
difficult cases choice of the proper type is not easy and often gives rise to
judicial disagreement. As a result, when the law eliminates what are
taken to be immaterial factors in order to frame a general rule, it can
never avoid entirely elimination of factors which may have an important
bearing upon some particular controversy.
There are three ways of meeting this difficulty: One is to provide a
judicial or magisterial dispensing power, or even a series of devices for
introducing discretion into the administration of justice. In American
administration of criminal justice today there is a long series of such
devices, one imposed upon the other. There is the discretion of the police
as to who and what shall be brought before the tribunals. There are
wide and substantially uncontrolled powers in prosecuting attorneys to
ignore offenses or offenders, to dismiss proceedings in their earlier stages,
to present them to grand juries in such a way that no indictment follows,
to decline to prosecute after indictment, or to agree to accept a plea of
guilty of a lesser offense. There is the power of the grand jury to ignore
the charge. There is the power of the trial jury to exercise a dispensing
power through a general verdict of not guilty. Next comes judicial dis-
cretion as to sentence or suspension of sentence or mitigation of sentence.
Finally there is administrative parole or probation, and in the last resort
executive pardon. All these involve uncertainty — opportunity for per-
version of the device intended to meet exceptional cases into a means of
enabling the typical offender to escape, and a sometimes intolerable scope
for the personal equation of the official.
A second way of meeting this difficulty is to eliminate all discretion
and seek to meet exceptional cases by an elaborate series of legal excep-
tions and qualifications and detailed provisos. But human foresight has
not proved equal to foreseeing all the varieties of exception for which pro-
vision must be made, and the attempt to cover everything by special
provisions makes the legal system cumbrous and unworkable.
Hence the law usually ends by adopting a third method of compromis-
ing between wide discretion and over-minute law making. But in order
to reach a middle ground between rule and discretion some sacrifice of
flexibiUty of appUcation to individual cases is necessary. And this sacri-
fice cannot go far without a danger of occasional injustice. Moreover,
[569]
the slightest sacrifice, necessary as it is, makes legal rules appear arbitrary
and brings the application of them more or less into conflict with the
moral ideas of individual citizens. Whenever, in a complex and crowded
society containing heterogeneous elements, groups and classes and inter-
ests have conflicting ideas of justice, this cause of dissatisfaction is likely
to become acute. The individual citizen looks only at single cases, and
measures them by his individual sense of right and wrong. The courts
must look at cases by types or classes and must measure them by what
is necessarily to some extent an artificial standard. If discretion is given
the judge, his exercise of it may reflect the view of the element of society
from which he comes or with which he associates. If his hands are tied
by law, he may be forced to apply the ethical ideas of the past as formu-
lated in common law and legislation. In either event there are many
chances that judicial standards and the ethical standards of individual
critics will diverge. Herein Hes a fruitful cause of popular dissatisfaction
with the administration of justice.
2. Difference in Rate of Progress Between Law and Public Opinion
In seeking to maintain the interests of civilized society through public
administration of justice we risk a certain sacrifice of those interests
through corruption or the personal prejudices of magistrates or individual
incompetency of those to whom administration is committed. To make
this risk as small as possible, to preclude corruption, restrain personal
prejudices, and minimize the scope of incompetency, the law formulates
the moral ideas of the community in rules and requires the tribunals to
apply those rules. So far as they are formulations of public opinion,
legal rules cannot exist until public opinion has become fixed and settled,
and cannot well change until public opinion has definitely changed. It
follows that law is likely to lag somewhat behind public opinion whenever
the latter is active and growing.
Many devices have been resorted to in order to make the law more
immediately sensitive and responsive to public opinion. Some of these
are frequent and copious legislation upon legal subjects, deprofessionaliz-
ing the practice of law by opening it to all, regardless of education and
special training, putting of the courts into politics through making judges
elective for short terms, conferring wide powers upon juries at the ex-
pense of courts, setting up of administrative tribunals with large juris-
diction, to be exercised in a non-technical fashion, and recall of judges or
of judicial decisions. The first four of these expedients were tried in the
fore part of the last century, and many jurisdictions carried some or even
all of them to extremes. The last three have been urged in the present
[570 1
century, and a tendency to commit enforcement of law to administrative
agencies and tribunals has gone far. But none of them has succeeded in
its purpose, and many of them in action have subjected the administra-
tion of justice not to public opinion, but to influences destructive of the
interests which law seeks to maintain. We must recognize that this diffi-
culty in justice according to law may be minimized, but not wholly
obviated. We must make a practical compromise. Experience has
shown that pubhc opinion must afTect the administration of justice
through the rules by which justice is administered rather than through
direct pressure upon those who apply them. Interference with the uni-
form and scientific application of them, when actual controversies arise,
introduces elements of uncertainty, caprice, and deference to aggressive
interests which defeat the general security. But if public opinion affects
tribunals through the rules by which they decide, as these rules, once
established, stand till abrogated or altered, it follows that the law will
not respond quickly to new conditions. It will not change until ill effects
are felt — often not until they are felt acutely. The economic or pohtical
or moral change must come first. While it is coming and until it is so
definite and complete as to aff'ect the law and formulate itself therein,
divergence between law and a growing public opinion is likely to be acute
and to create much dissatisfaction. W^e must pay this price for the cer-
tainty and uniformity demanded by the general security. It should be
said, however, that consciousness of this inherent difficulty easily leads
lawyers to neglect the importance of reducing this difTerence in rate of
growth between law and public opinion so far as possible.
S. Popular Underestimation of the Difficulties in Administering Justice
Much popular dissatisfaction with justice according to law arises from
a popular assumption that the administration of justice is an easy task
to w^hich anyone is competent. If the task of law may be described in
terms of social engineering, laws may be compared to the formulas of
engineers. They sum up the experience of many courts with many cases
and enable the magistrate to apply that experience without being aware
of it. In the same way the formula enables the engineer to utilize the
accumulated experience of past builders even though he could not of
himself work out a step in its evolution. The lay public are no more com-
petent to construct and apply the one formula than the other. Each re-
quires special knowledge and special preparation. But the notion that
any one is competent to understand what justice requires in the intricate
controversies and complicated relations of a modern urban community
leads to all manner of obstacles to proper standards of training for the
1571]
bar, to low standards of qualification for judicial office, and to impatience
of scientific methods and a high measure of technical skill. This notion
was especially strong in pioneer America, and its influence may be seen
in extravagant powers of juries, lay judges of probate, and legislative or
judicial attacks upon the authority of precedents in most of the States of
the South and West. In criminal law it is usually manifest in legislation
committing the fixing of penalties to trial juries, not perceiving that the
trier, in order to determme the facts fairly, ought not to know certain
things without which, on the other hand, the penalty cannot be fixed in-
telligently. Popular judgments are reached by labeling acts according
to certain obvious characteristics. A judge, on the other hand, must
examine carefully into all the details of the act, the conditions, internal
and external, under which it was done, its motive and its consequences.
Hence his judgment may well differ from that of the man in the street,
although they apply the same moral standard. The man in the street is
likely to regard this disagreement as proof of defects in the administra-
tion of justice. Yet courts do not sit to register his judgment on such
data as he has but to do what the sober judgment of the community
would dictate upon the basis of all the facts.
It is not generally reaUzed how much the pubhc is interested in
maintaining the highest scientific standards in the administration of jus-
tice. It is the most certain protection against corruption, prejudice, class
feeling, and incompetence. PubUcity is important, but it is impossible
to invoke public indignation in every case, nor is it always evoked in the
right cases. Our main reliance must be put in the training of bench and
bar, whereby the judges form habits of seeking and applying principles
when called upon to act, and the lawyers are able to subject their deci-
sions to expert criticism. The latter is especially important. The daily
criticism of trained minds, the knowledge that nothing which does not
conform to the principles and received doctrines of scientific law will
escape notice, will do more than any other agency for the every-day
purity and efficiency of courts of justice. But as things are today the
best trained element of the bar more and more does its chief work out of
court, and wholly avoids criminal cases. Thus in our large cities the
most effective check upon the administration of justice becomes inopera-
tive, and this special difficulty is added to the inherent difficulty involved
in pubUc reluctance to admit the necessity of scientific justice and the
training of bench and bar which it presupposes.
[572]
4- Popular Impatience of Restraint
Law involves restraint and regulation with the sheriff and his posse or
the police force in the background to enforce it. As a society becomes
more complex, as it carries further the division of labor, as it becomes
more crowded and more diversified in race and in habits of life and
thought, the amount of restraint and regulation must increase enormously.
But however necessary and salutary this restraint, men have never been
reconciled to it entirely; and most American communities are still
so close to the frontier that pioneer hostility toward discipline, good
order, and obedience is still often a latent instinct in the better class of
citizens. The very fact that the restraint of the legal order is in some
sort a compromise between the individual and his fellows makes the
individual, who must abate some partof his activities in the interest of his
fellows, more or less restive. In a time of absolute democratic theories
this restiveness may be acute. The feeling that each individual, as an
organ of the sovereign democracy, is above the law which he helps to
make, fosters disrespect for legal methods and legal institutions and a
spirit of resistance to them. Thus the administration of justice accord-
ing to law is made more difficult. Whether the law is enforced or is not
enforced, dissatisfaction will result.
Popular impatience of restraint is aggravated in the United States
by political and legal theories of "natural law." As a political doc-
trine, they lead individuals to put into action a conviction that con-
formity to the dictates of the individual conscience is a test of the va-
lidity of a law. Accordingly, jurors will disregard statutes in perfect good
faith, as in the Sunday-closing prosecutions in Chicago Ln 1908. In the
same spirit a well-known preacher wrote not long since that a prime cause
of lawlessness was enactment of legislation at variance with the law of na-
ture. In the same spirit a sincere and, as he believed, a law-abiding labor
leader declared in a Labor Day address that he would not obey mandates
of the courts which deprived him of his natural "rights." In the same
spirit the business man may regard evasion of statutes which interfere
with his carrying on business as he chooses as something entirely legiti-
mate. In the same spirit public officials in recent addresses have com-
mended administrative violation of the legal rights of certain obnoxious
persons, and one of the law officers of the federal government has pub-
licly approved of mob violence toward such persons. Such examples
at the top of the social scale do not make for respect for law at the
bottom.
573 1
5. Inherent Limitations on Effective Legal Action
There are certain limitations inherent in the administration of justice
through legal machinery — at least, through any of which we have knowl-
edge— which prevent the law from securing all interests which ethical
considerations or social ideals indicate as proper or even desirable to be
secured. Five such limitations are of much importance in connection
with the criminal law. These are: (1) Difficulties involved in ascertain-
ment of the facts to which legal rules are to be applied, so that, especially
in certain types of case, it is difficult to discover the offender or there is
danger of convicting the innocent; (2) the intangibleness of certain
duties which morally are of much moment but legally defy enforcement,
as, for instance, many duties involved in the family relation to which
courts of domestic relations or juvenile courts seek to give effect; (3) the
subtlety of certain modes of inflicting injury and of modes of infringing
important interests which the legal order would be glad to secure effec-
tively if it might; (4) the inapplicability of the legal machinery of rule
and sanction to many human relations and to some serious wrongs, and
(5) the necessity of relying upon individuals to set the law in motion.
Three of the limitations just enumerated call for some notice. In-
trigue may seriously disturb the peace of a household. The subtle meth-
ods by which grievous wrongs may be done in this way have been the
theme of playwright and novelist for generations. One court, indeed, has
tried the experiment of enjoining a defendant from flirting with a plain-
tiff's wife. But the futiUty of legal interference in such cases is obvious
and is generally recognized. In no other cases is self-redress so persis-
tently resorted to nor so commonly approved by the public. Again,
many cases are too small for the ponderous machinery of prosecution and
yet may involve undoubted and serious wrongs to individuals. How to
deal with the small annoyances and neighborhood quarrels and petty
depredations and small-scale predatory activities which irritate the mass
of an urban population but do not seem to involve enough to justify the
expensive process of the law is by no means the least of the problems of
the legal order in the modern city. Here as elsewhere we must make a
practical compromise, and whatever the compromise, many will needs be
dissatisfied. Finally, law will not enforce itself. We must in some way
stimulate individuals to go to the trouble of vindicating it; and yet we
must not suffer them to use it as a means of extortion or of gratifying
spite. Our rules must obtain in action, not merely lie dormant in the
books. But if they are to obtain in action, the authority which prescribes
them must be so backed by social-psychological power as to be in a posi-
tion to give them effect as motives for action in spite of countervailing
[574]
individual motives. Hence the notorious futility of two sorts of lawmak-
ing which are very common: (1) Lawmaking which has nothing behind
it but the sovereign imperative, in which the mere words "be it en-
acted" are relied upon to accomplish the end sought, and (2) lawmaking
which is intended to "educate" — to set up an ideal of what men ought
to do rather than a rule of what they shall do. To a large extent law de-
pends for its enforcement upon the extent to which it can identify social
interests with individual interests, and can give rise to or rely upon
individual desire to enforce its rules. In criminal law the desire of the
offender to escape and the desire of his friends and relatives that he
escape, are strong and active. Unless the desires of other individuals
may be enlisted in the service of the law, administrative machinery is
likely to fall into an easy-going routine, readily manipulated in the inter-
est of offenders, and the law in the books to become wholly academic,
while something quite different obtains in action.
Few appreciate the far-reaching operation of the foregoing limitations
upon legal action. There is constant pressure upon the law to " do some-
thing," whether it may do anji^hing worth while or not. In periods of
expansion the tendency to call upon law to do more than it is adapted to
do is especially strong. The result is sure to be failure and the failure
affects the whole legal order injuriously.
Inherent Difficulties in All Criminal Justice
1. Public Desire for Vengeance
Historically, one of the origins of criminal law is in summary com-
munity self-help, in offhand public vengeance by a more or less orderly
mob. Regulation of this public vengeance, giving rise to a sort of orderly
lynch law, is one of the earliest forms of criminal law. The spirit which
gave rise to this institution of summary mob self-help in primitive society
is still active. It has its roots in a deep-seated instinct, and must be
reckoned with in all administration of criminal justice. Moralists and
sociologists no longer regard revenge or satisfaction of a desire for ven-
geance as a legitimate end of penal treatment. But jurists are not agreed.
Many insist upon the retributive theory in one form or another, and
Anglo-American lawj'ers commonly regard satisfaction of public desire
for vengeance as both a legitimate and a practically necessary end. This
disagreement is reflected in all our criminal legislation. Statutes enacted
at different times proceed upon different theories. Indeed, the usual
course is that adherents of one theory of penal treatment will procure
one measure, and adherents of a different theory another, from law-
1575]
makers who have no theory of their own. For nothing is done with so
little of scientific or orderly method as the legislative making of laws.
Administration is necessarily affected by the fundamental conflict
with respect to aims and purposes which pervades our penal legislation.
But apart from this, the conflicting theories are also at work in admin-
istration. One magistrate paroles freely; another may condemn the
system of parole. One executive pardons freely, another not at all. One
jury is stern and as like as not acts upon the revenge theory; another
jury is soft-hearted. One judge is sj'stematically severe and holds that
crime must inevitably be followed by retribution ; another is systematic-
ally lenient, and many others have no system or policy whatever. Thus
the fact that we are not all agreed, nor are we ourselves agreed in all our
moods, infects both legislation and administration with uncertainty, in-
consistency, and in consequence inefficiency. All attempts to better this
situation must reckon with a deep-seated popular desire for vengeance in
crimes appealing to the emotions, or in times when crimes against the
general security are numerous. Lawyers know well that the average
client is apt to be eager to begin a criminal prosecution. He is not satis-
fied to sue civilly and obtain compensation for an injury. He insists
upon something that will hurt the wrongdoer, and is willing to pay
liberally to that end. It has taken a long time to eliminate the revenge
element from the civil side of the law. Indeed, traces still remain there.
On the criminal side this element is still vigorous. The general security
requires us to repress self-help, especially mob or mass self-help. Also we
must strive to meet the demands of the moral sentiment of the com-
munity. These considerations constrain us to keep many things in the
criminal law which are purely retributive, and thus serve to preserve a
condition of fundamental conflict between different parts of the system.
Undoubtedly the law and its administration should reflect the sober
views of the community, not its views when momentarily inflamed. But
the sober views of the average citizen are by no means so advanced on
this subject as to make a wholly scientific system possible.
2. A Condition of Internal Opposition in Criminal Law Due to Historical
Causes
As has been said, criminal law exists to maintain social interests as
such; but the social interest in the general security and the social interest
in the individual life continually come into conflict, and in criminal law,
as every\vhere else in law, the problem is one of compromise ; of balancing
conflicting interests and of securing as much as may be with the least
sacrifice of other interests. The most insistent and fundamental of
[576]
social interests are involved in criminal law. Civilized society presup-
poses peace and good order, security of social institutions, security of the
general morals, and conservation and intelligent use of social resources.
But it demands no less that free individual initiative which is the basis
of economic progress, that freedom of criticism without which political
progress is impossible, and that free mental activity which is a pre-
requisite of cultural progress. Above all it demands that the individual be
able to live a moral and social life as a human being. These claims, which
may be put broadly as a social interest in the individual life, continually
trench upon the interest in the security of social institutions, and often,
in appearance at least, run counter to the paramount interest in the
general security. Compromise of such claims for the purpose of securing
as much as we may is peculiarly difficult. For historical reasons this diffi-
culty has taken the form of a condition of internal opposition in criminal
law which has always impaired its efficiency. As a result there has been
a continual movement back and forth between an extreme solicitude for
the general security, leading to a minimum of regard for the individual
accused and reliance upon summary, unhampered, arbitrary, administra-
tive punitive justice, and at the other extreme excessive solicitude for
the social interest in the individual life, leading to a minimum of regard
for the general security and security of social institutions and reliance
upon strictly regulated judicial punitive justice, hampered at all points
by checks and balances and technical obstacles. In England the medieval
legal checks upon punitive justice were followed by the rise of the Star
Chamber and other forms of executive criminal administration. This
was followed by the exaggerated legalism of a common-law prosecution.
The latter, carried to an extreme in nineteenth-century America, is
being followed hard today by the rise of administrative justice through
boards and commissions. The over-technical tenderness for the offender
in our criminal law of the last century is giving way to carelessness of
violation of the constitutional rights of accused persons and callousness
as to administrative methods of dealing with criminals, real or supposed,
in the supposed interest of efficient enforcement of penal laws. It hap-
pens that within the present century Cleveland has seen both sentimental
tenderness toward accused persons and Draconian judicial severity in
action. In this contrast, familiar to the citizens of Cleveland, may
be seen a picture in miniature of what has always gone on in the history
of criminal law.
Criminal law has its origin, historically, in legal regulation of certain
crude forms of social control. Thus it has two sides from the beginning.
On the one hand, it is made up of prohibitions addressed to the individual
38 ( 577 ]
in order to secure social interests. On the other hand, it is made up of
limitations upon the enforcement of these prohibitions in order to secure
the social interest in the individual life. In Anglo-American criminal
law, as a result of the contests between courts and king in seventeenth-
centm-y England, the accused came to be thought of not as an offender
pursued by the justice of society, but as a presumably innocent person
pursued by the potentially oppressive power of the king. The common
law, declared in bills of rights, came to be thought of as standing between
the individual and the state, and as protecting the individual from
oppression by the agents of the state. No efficient administration of
criminal law in a large urban population is possible under the reign of
such a theory. But we have abandoned it in places only. Despite an
obvious reaction, it still determines many features of American criminal
prosecution. Moreover, we must not forget that it is but a historical
form of one of the two elements of which criminal law is made up.
S. The Close Connection of Criminal Law and Administration with Politics
Criminal law has a much closer connection with politics than the civil
side of the law, and this operates to its disadvantage, particularly in re-
spect of administration. There is relatively little danger of oppression
through civil litigation. On the other hand, there has been constant
fear of oppression through the criminal law. In history drastic enforce-
ment of severe penal laws has been employed notoriously to keep a people
or a class in subjection. Not only is one class suspicious of attempts by
another to force its ideas upon the community under penalty of prosecu-
tion, but the power of a majority or even a pliu"ality to visit with punish-
ment practices which a strong minority consider in no way objectionable
is liable to abuse. Whether rightly or wrongly used, this power puts a
strain upon criminal law and administration. Also criminal prosecu-
tions are possible weapons of offense and defense in class and industrial
conflicts. Hence suspicion arises that one side or the other may get an
advantage through abuse of the prosecuting machinery, giving rise to
political struggles to get control of that machinery. Thus considera-
tions of efficient securing of social interests are pushed into the back-
ground, and the atmosphere in which prosecutions are conducted be-
comes political. In practice the result is, when the public conscience
is active or public indignation is roused, to be spectacular at the expense
of efficiency. When the public conscience is sluggish and public atten-
tion is focused elsewhere, the temptation is to be lax for fear of offending
dominant or militant political groups.
[578]
4. The Inherent Unreliability of Evidence in Criminal Cases
Inherent unreliability of evidence upon which tribunals must proceed
aifects all departments of judicial administration of justice. But in
criminal law, where passions are aroused, where the consequences are so
serious, where unscrupulous persons are so apt to be arrayed on one side
or the other, the difficulties growing out of the necessity of relying upon
human testimony are grave. Psychologists have demonstrated abun-
dantly the extent to which errors of observation and unsuspected sugges-
tion afifect the testimony of the most conscientious. Undoubtedly
there is much practical psychology and trained intuition behind the com-
mon-law rules of evidence; but they are based largely on the psychology
of the jury rather than on that of the witness. The problem of lying
witnesses, defective observation, and suggestion, as affecting proof in
criminal cases, has yet to be studied scientifically by American lawyers.
The maxims and presumptions in which we express our practical experi-
ence in these connections are too much of the rule-of-thumb type, and are
apt to be merely pieces to move in the procedural game between prose-
cutor and accused.
Moreover, in the administration of criminal law the inherent unre-
liabihty of oral evidence of witnesses is aggravated by three circumstances.
On the one hand there is the bad influence of pohce esprit de corps. The
unfortunate convictions of Beck and Edalji in England, which will long
remain classical examples of convictions of the innocent in modern times,
were clearly traceable to determination of the police to convict innocent
men whom they had erroneously assumed to be guilty. The testimony
of experienced trial lawj'ers who have written memoirs or reminiscences
is uniform to the effect that the testimony upon which prosecutors
must chiefly rely is apt to be so colored and warped as to be subject to
grave doubt. Serjeant Ballantine, whose long experience in prosecut-
ing and defending entitled him to speak with authority, says that esprit
de corps, antipathy toward the criminal classes, the habit of testifying so
that it ceases to be regarded as a serious matter, and the temptation
which besets police officers to communicate opinions or theories to the
press, thus "pledging themselves to views which it is damaging to their
sagacity to retract," so operate as to cause serious and even fatal miscar-
riages of justice. The student of criminologj' may verify this abundantly
by study of American criminal trials. Yet from the nature of the case
such testimony is the best available.
In some part police esprit de corps is counteracted by the activity of
habitual defenders of criminals and activity of friends and relatives of the
accused. But these are often more available and more eflBcacious in the
[579]
service of the guilty than of the innocent. Getting witnesses out of the
way or silencing them or modifying their testimony by importunity, so-
cial pressure, intimidation, appeals to race soUdarity, or sympathy are
thoroughly familiar matters to the observer of criminal justice in action,
and the memoirs and reminiscences of criminal trial lawyers show that
nothing new in these respects has been devised in the modern American
city. Caleb Quirk, Esq., of Alibi House, in the early part of the last cen-
tury, would be quite at home in any of our cities today.
We are dealing here with an inherent difficulty. Yet much may be
done to mitigate it which we are not doing. (1) If scientific methods of
criminal investigation were employed at the very beginning and the
preparation of the general run of criminal cases in the prosecutor's office
were as thorough and systematic as the preparation of the civil cases, for
example, of a public service company, the opportunities for subornation
that have made the ahbi notorious and the opportunity for suppression of
evidence would be much lessened. (2) If the administration of oaths
and the formalities of reception of evidence in all stages of a criminal
proceeding and before all tribunals were such as to impress those who
take part with the seriousness of what is going on, some part of the
notorious perjury which attends the administration of justice might be
precluded. (3) A better organized and better trained and better dis-
cipUned bar might eliminate the type of practitioner that promotes sub-
ornation and grows rich on systematic and scientific suppression of evi-
dence and silencing of witnesses. It is noteworthy that incorporation of
the lower branch of the legal profession in England had the effect of
driving out a low type of solicitor which still thrives in large numbers
with us. But for the most part we must hope that study of the psy-
chology of testimony will reveal better methods of ascertaining facts in
criminal prosecutions than those which are now available. Until such
methods come we must reckon with unreliabifity of evidence as a for-
midable inherent difficulty.
5. The Wider Scope for Administrative Discretion Required in Criminal
Law
As compared with the adjustment of civil relations, criminal law in-
volves a much greater scope for discretion. Much that may be done
mechanically in matters of property and contract, and hence with as-
surance that improper influences are excluded by the perfection of the
machinery, must be done by the individual judgment of judges or pubhc
officers when we are deafing with human conduct, and hence is open to all
the disturbing influences that may be brought to bear upon the individual
[580]
human being. It is one of the difficult problems of all law to maintain a
due proportion between detailed rules and judicial or administrative dis-
cretion. In criminal law the dangers involved in such discretion are
obvious. The power which it involves is large and is peculiarly liable to
abuse. Moreover, the consequences of abuse are serious, involving life
and hberty, where on the civil side of the law the efTects extend rather to
property. But there are two circumstances in criminal law that require
a wide discretion on the part of prosecutors and magistrates: (1) In the
administration of criminal law the moral or ethical element plays a large
part, and purely moral or ethical matters do not lend themselves to
strict rules. (2) As we now think, penal treatment is to fit the criminal
rather than punishment to fit the crime. Hence whether there shall be a
prosecution and what shall be done to and with the convicted offender
after prosecution must be left largely to the discretion of someone.
Even when we sought to make the punishment fit the crime the impos-
sibility of a mathematically constructed system of penalties became
manifest, and sentence, within wide limits, was a matter for the discre-
tion of the trial judge. In those days notorious inequalities in sentences
bore constant witness to the liability of unfettered discretion to abuse,
even in the best of hands. In England, review of sentences by the Court
of Criminal Appeal is relied upon to meet this particular danger. In the
United States the tendencj- is to entrust the nature and duration of penal
treatment to some administrative board. But whichever course is
taken the beginning and continuation as well as the details of the ulti-
mate result of a criminal prosecution must be left largely to the dis-
cretion of someone, with all which that may imply.
6. Inherent Inadequacy of Penal Methods
On the civil side of the law the modes of enforcement have become
very efficacious. If A dispossesses B of land, the sheriff may put A out
and B back in possession. If A dispossesses B of a chattel, the sheriff
may take it from A and give it back to B. If A does not convey to B as
he promised, an officer of the court may make a deed to which the law
gives the effect of the promised conveyance. If A does not pay a debt
he owes B, the sheriff may sell A's goods and pay B out of the proceeds.
No such thoroughgoing remedies are available in criminal law. To guard
against further harm from a particular offender, and to guard against
others who might repeat the offense, society rehes upon fear as a deter-
rent. It attempts to create a wide-spread fear of punishment and to
bring this fear home to the particular offender. Preventive justice, in
such matters as are dealt with by the criminal law, must be confined
[581]
within narrow limits, since it involves undue interference with the free-
dom of action of individuals. Accordingly, in the great mass of cases the
criminal law can only step in after an offense has been committed. But
the system of protecting society by creating a general fear of punish-
ment encounters two inherent difficulties : (1) Experience has showTi that
fear is never a complete deterrent. The venturesome will believe they
can escape. The fearless will be indifferent whether they escape. The
crafty will believe they can evade, and enough will succeed to encourage
others. (2) Threats of punishment are often Ukely to defeat themselves.
The zeal of lawmakers frequently imposes penalties to which juries will
not agree that offenders should be subjected. It sometimes defines acts
as criminal for which juries will not agree to see men punished. Thus we
get so-called dead-letter laws, which weaken the authority of law and
destroy the efficacy of fear as a deterrent. Sometimes, indeed, it has
happened that courts did not have sympathy with over-severe laws or
extreme penalties and warped the law to prevent conviction. Our
criminal procedure still suffers from the astuteness of judges in the past
to avoid convictions at a time when all felonies were punishable with
death. However efiicient the administration of criminal law, it will be
necessary to make some allowance for this inherent difficulty.
7. The Tendency to Put Too Great a Burden on the Criminal Law
It is a great disadvantage to the criminal law that it is so interesting in
action to the layman. Criminal law is the type of law which figures
chiefly in the morning papers; hence when the layman thinks of law, he
is almost certain to think of criminal law. Moreover, because of a well-
known human instinct, the layman's short and simple cure for all ills is to
hurt somebody. Hence every lay lawmaker turns instinctively to the
criminal law when he comes to provide a sanction for his new measure,
and every new statute adds one more to the mass of prescribed penalties
for which a criminal prosecution may be invoked. It is impossible for
any legal machinery to do all which our voluminous penal legislation
expects of it. Serious study of how to make our huge annual output of
legislation effective for its purpose without prosecutions and giving up
the naive faith that finds expression in the common phrase, "there ought
to be a law against it," as an article in the legislative creed, would do
much for the efficiency of criminal law.
[582]
CHAPTER III
GENERAL DIFFICULTIES
Prevalence of Dissatisfaction with Criminal Law and Its
Administration
DISSATISFACTION with criminal law and its administration is
neither a local nor an American phenomenon. It was world
wide at the beginning of the second decade of the present cen-
tury. For the past seven years other matters have occupied men's
thoughts. But there are signs already that agitation for improvement is
breaking out again or will soon break out again in many lands. In Italy
a commission is now at work upon a new criminal code and promises a
thoroughgoing reform, especially in procedure. Certain causes operating
throughout the civiUzed world, and affecting all administration of
criminal justice in the present generation, must be taken into account in
any critical appraisal of the workings of the criminal law in a particular
locaUty.
New Demands Upon Law
Law, it has been said, "is but the skeleton of social order." It must
be "clothed upon with the flesh and blood of morality." In a time of
unrest and doubt as to the very foundations of beUef and of conduct,
when absolute theories of morals and supernatural sanctions have much
less hold upon the mass of the people than when our institutions were
formative, and as a consequence conscience and individual responsibiUty
are relaxed, law is strained to do double duty, and much more is expected
of it than in a time when morals as a regulating agency were more
efficacious. In an era of secularization in which the law is looked to for
much that was formerly conceived as in the domain of the church and
the home, in an urban, industrial society in which, for example, truancy
and incorrigibility of children may be matters for a court rather than for
household discipline, we must expect that the legal administration of
justice will be affected sensibly.
1 . The Problem of Enforcement
In the present century new demands upon law and new social condi-
tions involved in our urban, industrial civiUzation have made enforce-
[583]
ment of law a conspicuous problem in legal science. In a simpler, more
homogeneous, less crowded society it was assumed that the enforcing
machinery and the efficiency of its operation were not matters of concern
to the lawyer. He might think of law as the declared will of the State.
In that event he would say that his business was to know and interpret
and apply the declaration of the State's will. If the precepts in which
that will was declared were not enforced, the trouble lay, not in the law,
but in the supineness or incompetency or corruption of the executive
officials whose duty it was to execute the law. Or he might think of law
as a body of principles of justice, discovered by human experience of con-
duct and decision, and only formulated by legislator or court or jurist.
In that event, if they were not enforced, he was inclined to say that it
was because they ought not to be enforced; because they were not sound
or accurate formulations of the principles revealed by history and tested
by experience. Or, again, he might think of law as a formulation of
moral or ethical principles, deriving their real authority from their in-
herent justice. In that case he was likely to think that they would
largely enforce themselves because of their appeal to the conscience of
the individual. Nor was this wholly untrue at a time when the program
of law was relatively simple and the reasons behind the relatively few
laws were apparent on the surface to almost any thoughtful man. But
when the area of legal interference becomes greatly enlarged, as it must
be in the complex urban industrial society of today; when law has an
ambitious program of interposing in almost every field of human activity
and regulating human conduct in all its forms and relations, the reasons
behind the multitude of legal precepts contained in our voluminous
criminal codes and administrative regulations are not readily apparent,
and often may well be disputed by those who are able to perceive them.
The lawyer, trained in ideas which were appropriate to the simple legal
program of the past, is likely to assume today that enforcement of the
law is nothing of which he need think. Accordingly, when in the en-
deavor to secure newly pressing interests ambitious but inexpert re-
formers turn to penal legislation and add new sections to the overbur-
dened penal code, or the public become alarmed in a time of reconstruc-
tion and unrest and threaten an orgy of drastic penal legislation, the
lawyer whose habit has been to study the justice of rules, rather than the
enforcement of them, is in no position to give effective assistance. Much
of popular distrust of the legal profession is due to this change in the
conditions to which legal theories are to be applied, while the theories
still obtain.
584:
£. The Demand for Concrete Justice
In the nineteenth century, with a simple program of preserving the
general security in a primarily rural agricultural society, we were wont to
think of justice in terms of the abstract claims of abstract human beings.
Today emphasis is put rather upon concrete justice in the individual case.
We are not so ready to admit, as an excuse for failure of justice in par-
ticular cases, that "John Doe must suffer for the commonwealth's sake."
It is felt that abstractly just rules do not justify results that fall short of
justice, and that injury to John Doe may be avoided if we bestir our-
selves to find more effective legal and administrative devices. Hence
today legal proceedings are judged by their results in action, not by their
conformity to some abstract, ideal scheme. Features of the administra-
tion of justice which were regarded patiently in the middle of the nine-
teenth century are spoken of now with impatience in a community in
which conservation of time and effort has become important, and men
have learned from modern business and industrial engineering to think
in terms of results. The lawyer has been trained to think of the general
or average result reached in a type or class of cases, and the demand of
the present century for results in individual cases conflicts with his
traditional ideas. Adjustment of legal thinking and judicial methods to
this demand for concrete justice — to a large extent a legitimate demand
in the conditions of today — must go forward slowly in the nature of
things, and will long contribute to an unsatisfactory administration of
law in certain types of case in which the demand is particularly insistent
and the legal tradition is specially averse thereto.
3. The Demand for Individualization
One of the most insistent demands of today is for individuahzation of
criminal justice — for a criminal justice that will not turn recidivists
through the mill of justice periodically at regular intervals, nor, on the
other hand, divert the youthful occasional offender into a habitual
criminal by treating the crime, in his person, rather than the criminal.
The nineteenth century was hostile to individualization and to adminis-
trative discretion, which is the chief agency of individuahzation, seeking
to reduce the whole administration of justice to abstractly just, formal,
rigid rules, mechanically administered. This was true the world over. It
was specially true, and true to an exaggerated degree, in America, because
of the poUtical ideas of the Puritan, who believed men should be "with
one another, not over one another," of politico-legal ideas that grew out
of contests between courts and crown in seventeenth-century England, of
experience of the American colonists with executive and legislative jus-
[585]
tice, and of pioneer jealousy of administrative and governmental action.
The result was to impose shackles of detailed rules and rigid procedure
upon every sort of judicial, administrative, and governmental activity.
In practice there was a general policy of "can't." No agency of govern-
ment was to be allowed to do anything beyond a necessary minimum.
Hence we got rigid, detailed procedure and hard and fast schemes of
penal treatment, lest prosecutor or court or prison authorities do some-
thing spontaneously in view of the exigencies of a particular case — we
got a procedure governed by a code, rather than by rule and custom of
the court, as at common law; we got in some states a police discipline
shackled by checks that deprived it of all real efficacy, and we got in
many states constitutional obstacles to legislation in the form of detailed
requirements as to the generality of laws, as to what should appear in
legislative journals, and as to title and repeal. It should be emphasized
that this spirit, which hampers effective criminal justice so seriously,
has no necessary connection with an economic policy of laissez faire.
Whatever the poUcy of a society may be as to interference with or regu-
lation of men's general activities or economic activities or business rela-
tions, it is no part of a laissez faire policy to leave individual criminal
activity as free as possible to follow its own course. The spirit of hamper-
ing judicial and administrative agencies was due rather to faith in ab-
stract rules and in machinery as inherently efficacious, and to lack of
faith in official action as such for any purpose, than to any economic
pohcy. Without regulating many things, the law may yet set out to deal
effectively with what it does attempt to regulate or to prevent.
Changed Ideas as to the End of Criminal Law
1. The Passing of the Retributive Theory
Our traditional criminal law thinks of the offender as a free moral
agent who, having before him the choice whether to do right or wrong,
intentionally chose to do wrong. In the nineteenth century we believed
that justice consisted in imposing upon this wilful wrongdoer a penalty
exactly corresponding to his crime. It was not a question of treatment of
this offender, but of the exact retribution appropriate to this crime. We
know today that the matter is much more complicated than this simple
theory assumes. We know that criminals must be classified as well as
crimes. We know that the old analysis of act and intent can stand only
as an artificial legal analysis and that the mental element in crime pre-
sents a series of difficult problems. We recognize that in order to deal
with crime in an intelligent and practical manner we must give up the
[586]
I
retributive theory. But this means that we must largely make over our
whole criminal law, which was rebuilt around that theory in the last two
centuries, and that work is going on slowly all over the world. The con-
dition of criminal law calls for continuous intelligent bringing to l^ear
upon the problem of securing social interests by law and upon the de-
tailed applications of that problem — for the bringing to bear upon them
of everj' resource of legal and social and medical science. We shall
achieve lasting results neither by some analytical scheme or rigid system
worked out logically in libraries on the sole basis of books and law re-
ports, as some lawj-ers seem to hope, nor by abandoning the experience
of the past, preserved in the law reports, and turning exclusively to ad-
ministrative, non-legal, expert agencies, which is the hope of many lay-
men. Pending this making over of criminal law we must expect that
many features of the administration of criminal justice will remain un-
satisfactory.
2. Increased Regard for Human Personality
Today we feel that when the law confers or exercises a power of con-
trol the legal order should safeguard the human existence of the person
controlled. Thus the old-time sea law, with its absolute power of the
master over the sailor, described in action by Dana in Two Years Before
the Mast, the old-time ignominious punishments that treated the human
offender like a brute, that did not save his human dignity — all such
things have been disappearing as we come to take account of the social
interest in the individual human life and to weigh that interest against
the social interest in the general security on which the last century in-
sisted so exclusively. This feeling for the human dignity, the human life,
of the offender is somewhat different from the feeling for abstract in-
dividual hberty and consequent system of checks upon prosecution and
safeguards of accused persons and loopholes for escape which developed
in Anglo- American criminal law for historical reasons from the seventeenth
to the nineteenth century. Until it crystallizes in well-settled and well-
understood legal and administrative policies, until proper compromises
between the interest in the individual human life and the general security,
security of social institutions, and general morals are worked out at
many points, there is Hkely to be vacillation, uncertainty, and ineffi-
ciency in the administration of criminal justice. This will be true espe-
cially at the two extremes of a prosecution — the beginning in police dis-
cretion when an offense has been committed, and the end in penal treat-
ment of the convicted offender. Cleveland has seen in somewhat acute
form a phenomenon that is to be seen in criminal justice throughout the
[587]
world, and is merely an incident of changing ideas as to what we are
doing through the criminal law and why we are doing it. The effect in
unsettling the administration of criminal law is unfortunate. Discontent
with the results of some of the newer methods of penal treatment is not
unlikely to lead to temporary reaction to older methods, which will but
aggravate the difficulty. Partly these newer methods and their results
have been misunderstood and misrepresented. Partly results which are
justly objected to are due to the inevitable crude fumblings involved in
all application of new methods. Naturally the public is impatient. But
we can no more return to the old methods than we can return to horse-
cars or ox-teams or flails or sickles. We must go forward scientifically and
not vacillate between extreme experiments along new lines and reaction-
ary reversions to methods that belong wholly to the past.
3. New Developments in Psychology and Psychopathology
Medical science has all but undergone a rebirth within a generation.
Within a generation psychology has risen to a practical science of the
first importance, with far-reaching applications on every side. Psycho-
pathology has overturned much that the criminal law of the past had
built upon. Indeed, the fundamental theory of our orthodox criminal
law has gone down before modern psychology and psychopathology. The
results are only beginning to be felt. One result is a just dissatisfaction
on the part of the medical profession with what they observe in judicial
administration of justice and legal treatment of criminals. In prevention,
in criminal investigation as a preliminary to prosecution, in the trial of
issues of fact and in penal treatment we have much to learn from the
physician and psychologist and psychopathologist. But during the
period of transition in which we are learning it and are learning how to
use it there will be much experimenting and some fumbling and much
dissatisfaction.
The Present Condition of Criminal Law
As a result of the several causes suggested above, the criminal law of
today, throughout the world, is made up more or less of successive
strata of rules, institutions, traditional modes of thought, and legislative
provisions representing different and inconsistent ideas of the end of
criminal law, the purpose of penal treatment, and the nature of crime.
This is true especially in Anglo-American criminal law. With us all
stages of development and all theories and all manner of combinations of
them are represented in rules and doctrines which the courts are called
upon to administer. Indeed, all or many of them may be represented in
[588]
legislative acts bearing the same date. The result is that our criminal
law is not internally consistent, much less homogeneous and well or-
ganized. Even if the administrative machinery were all that it should
be and the personnel of administration were all that it should be, the
condition of criminal law of itself woukl impede satisfactory administra-
tion.
Unfortunately, criminal law never attained the sy.stematic perfection
that marks the civil side of the law in Roman law, and is beginning to be
found on the civil side of Anglo-American law. Until the criminal law is
studied as zealously and scientifically and is regarded by teachers, stu-
dents, lawj-ers, and judges as being as worthy of their best and most
intelligent efforts as is the civil side of the law, the administration of
criminal justice will continue to fall short of public expectation.
[589 1
CHAPTER IV
AMERICAN DIFFICULTIES
Conditions for Which American Criminal Law and Procedure
Were Shaped
TO UNDERSTAND the administration of criminal justice in
American cities today we must first perceive the problems of ad-
ministration of justice in a homogeneous, pioneer, primarily agri-
cultural community of the first half of the nineteenth century, and the
difficulties involved in meeting those problems with the legal institutions
and legal doctrines inherited or received from seventeenth-century Eng-
land. We must then perceive the problems of administration of justice
in a modern heterogeneous, urban, industrial community and the diffi-
culties involved in meeting those problems with the legal and judicial
machinery inherited or received from England and adapted and given
new and fixed shape for pioneer rural America.
Professor Sumner called attention to the importance of an under-
standing of frontier or pioneer conditions in the study of American
pohtics. "Some of our worst political abuses," he said, "come from
transferring to our now large and crowded cities maxims and usages
which were convenient and harmless in backwoods country towns." This
is no less true of our most serious legal abuses. It must be remembered
that our judicial organization and the great body of our legal institutions
and common law are the work of the last quarter of the eighteenth cen-
tury and the first half of the nineteenth century. For practical purposes
American legal and judicial history begins after the Revolution. In
colonial America the administration of justice was at first executive and
legislative. American law reports begin at the end of the eighteenth
century. The America for which seventeenth-century English legal in-
stitutions and eighteenth-century EngUsh law were received and made
over was not at all the America in which those institutions and that law
must function today. Our great cities and the social and legal problems
to which they give rise are of the last half of the nineteenth century.
Many are of the last quarter of that century. Our largest city now con-
tains in 326 square miles a larger and infinitely more diversified popula-
[590]
tion than the whole 13 States when the federal judicial organization
which has served so generally as a model was adopted. The last State of
the Union was opened to settlement hy the white man within a genera-
tion. Except perhaps in the narrow fringe of original settlements along
the Atlantic coast, rural conditions prevailed every^vhere within the
memory of those now living, and in any part of the country one need do
little more than scratch the surface in order to come upon the pioneer.
Thus our law and our legal institutions got the stamp of the pioneer while
they were formative.
Our Anglo- American judicial and prosecuting organization, criminal
law and criminal procedure, as they grew up and took shape in the fore
part of the last century, presuppose a homogeneous people, jealous of its
rights, zealous to keep order, and in sympathy with institutions of gov-
errmient which it understands and in which it believes — a people which,
in all matters of moment, will conform to the precepts of law when they
are ascertained and made known, which may be relied upon to set the
machinery of the law in motion of its own initiative when wrong has been
done, and to enforce the law intelligently and steadfastly in the jury-box.
In other words, they presuppose an American farming community of the
first half of the nineteenth century. We are employing them to do justice
in a heterogeneous, diversified, crowded city population, containing ele-
ments used to being trodden on by those in authority, ignorant of our
institutions, at least in all but form, with good reason suspicious of gov-
ernment as they have known it, and hence often imbued with distrust of
all government, loth to invoke legal machinery, of w^hich they think in
terms of the social conditions in another part of the world, and inclined to
think of a jury trial as some sort of man hunt, not knowing the nature of
the proceedings that have gone before nor appreciating the manifold
guarantees by which at common law an accused person is assured every
facility for a full defense.
The Administration of Criminal Justice in the First Half of the
Nineteenth Century
1. The Criminals and Conditions of Crime
At the outset we must notice the different tj^pe of criminal and dif-
ferent conditions of crime for w^hich our formative institutions were
shaped. The occasional criminal, the criminal of passion, and the men-
tally defective, were the chief concern of the criminal law, and its task
was to restrain them in a homogeneous community under pioneer or rural
conditions, in a society little diversified economically and for the most
[591]
part restrained already by deep religious conviction and strict moral
training. So far as it was necessary to deal with vice it was the rough,
virile vice of a vigorous stock that lived out-of-doors. Organized pro-
fessional criminality on a large scale, operating over the whole country,
was unknown. The occasional band of robbers or of cattle thieves could
be dealt with by a sheriff and a posse. Commercialized vice on a large
scale, extending its operations over many localities, was unknown. Large
cities with a diversified, shifting industrial population, with extreme
divergencies of economic condition, with rapid and easy communications
with other like centers, with a population moving back and forth daily in
swarms to a business center and crowding a great volume of business into
a few hours, did not afford opportunities for specialized professional
crime. Such conditions have come upon us slowly in some parts of the
country, but with extreme rapidity in others, as in Cleveland. In either
event they have come upon an administrative and judicial machinery
made for rural communities and simply added to or patched from time to
time to meet special emergencies. The professional criminal and his ad-
visers have learned readily to use this machinery and to make devices in-
tended to temper the application of criminal law to the occasional
offender a means of escape for the habitual offender. Experience has
shown this in all our cities. But the " Mortality Tables " in the report on
Prosecution' and the examples of the facihty with which old offenders
take advantage of the series of mitigating agencies, set forth in Chapter
II of the report on Criminal Courts, tell the story eloquently.
S. Administrative Machinery
We inherited from England a medieval system of sheriffs, coroners,
and constables, devised originally for a rural society and easily adapted to
pioneer rural conditions. The town marshal was a constable with no j
civil functions and some added powers and duties. He went out of office ;
with every pohtical change. He kept order and did an occasional bit of
detection in the event of a sensational crime. A police force, as we now !
know it, is an institution of the nineteenth century, and, unhappily, our j
police organization and administration have been affected to no small '
extent by ideas derived from the older, pre-urban regime. What is par- i
ticularly noticeable about the nineteenth-century Anglo-American ad-
ministrative system is its lack of organization, decentrahzed responsi-
bility, and abundant faciUties for obstruction in comparison with means
for effective achievement of results. As a rule, none of these officials was \
>Pp. 91, 93, and 95.
[592]
answerable to any one but the electorate. He cooperated with other
officials or thwarted them as his fancy or the exigencies of politics might
dictate. Each locality had its own administrative officer, acting on his
own judgment, and responsible to no superior, and the execution or non-
execution of laws therein was its own affair.
This decentralization, division of power, and hampering of admin-
istration was part of the system of checks and balances to which we
pinned our faith in the last century. It has been said that our institu-
tions were the work of men who believed in original sin and were unwill-
ing to leave open any door for the intrinsically sinful official which they
could possibly close. To this Puritan jealousy of administration we
added a pioneer jealousy of administration. "The unthinking sons of the
sagebrush," says Owen Wister, "ill tolerate anything which stands for
discipline, good order, and obedience; and the man who lets another
command him they despise." Such has always been the spirit of the
pioneer, and institutions shaped by that spirit are well adapted to a
pioneer society. But in a crowded urban society, in holding down the
potentially sinful administrative official we give the actually sinful pro-
fessional criminal his opportunity, and in insuring a latitude of free
individual self-assertion beyond what they require for the upright, we
give a dangerous scope to the corrupt. The local conditions of cities de-
mand centralization and organization of administrative agencies, coordi-
nation of responsibiUty with power, and reliance upon personality rather
than upon checks and balances as emphaticallj' as a pioneer, rural com-
munity demands decentralization, division of power, independent mag-
istracies, and checks upon administration.
S. English Criminal Law at the Revolution
When, at the end of the eighteenth century and in the early nine-
teenth century, we began to build an American criminal law with re-
ceived English materials, the memory of the contests between courts and
crown in seventeenth-century England, of the abuse of prosecutions by
Stuart kings, and of the extent to which criminal law might be used as an
agency of religious persecution and political subjection, was still fresh.
Hence a hundred years ago the problem seemed to be how to hold down
the administration of punitive justice and protect the individual from
oppression under the guise thereof, rather than how to make criminal
law an effective agency for securing social interests. English criminal
law had grown out of royal regulations of summary local self-redress and
had been developed by judicial experience to meet violent crimes in an
age of force and violence. Later the necessities of more civilized times
39 [ 593 ]
had led to the development in the court of Star Chamber of what is now
the common law as to misdemeanors. Thus one part of the EngUsh law
of crimes as we found it at the Revolution was harsh and brutal, as
befitted a law made to put down murder by violence, robbery, rape, and
cattle-stealing in a rough and ready community. The legislation in New
York at the end of the eighteenth century which abolished the death
penalty for felonies other than murder, and the EngUsh legislation of the
legislative reform movement in the fore part of the nineteenth century,
was chiefly concerned in doing away with the brutalities of the old law as
to felonies. Another part of the English law of crimes at the Revolution
seemed to involve dangerous magisterial discretion, as might have been
expected of a body of law made in the council of Tudor and Stuart kings
in an age of absolute government and extreme theories of royal preroga-
tive. Puritan jealousy of subordination and administration, pioneer self-
reliance, and inherited fear of political oppression by governmental
agencies, since the colonists had had experience of the close connection of
law with politics, were decisive of our shaping of this body of criminal
law at the time when it was formative. In particular these things had
three important results:
(1) They led nineteenth-century American law to exaggerate the
complicated, expensive, and time-consuming machinery of a common-
law prosecution, lest some safeguard of individual liberty be overlooked.
It is only thus that we may understand the many steps set forth in
Chapter III of the report upon the Criminal Courts.
(2) They led to cmtailings of the power of the judge to control the
trial and hold the jury to its province, and to conferring of excessive
power upon juries. These had their origin in colonial America, before
true courts and judicial justice had developed, when juries were a needed
check upon the executive justice of royal governors. They were added to
through the need of checks upon royal judges. They were carried still
further during the hostility to courts and lawyers and English legal insti-
tutions that prevailed immediately after the Revolution. Finally, they
got their fullest development in frontier communities in the nineteenth
century.
(3) Both had the result of enfeebling the administration of criminal
law. But these enfeeblings did not work much evil in a time when crime
was relatively rare and abnormal; when the community did not require
the swift-moving punitive justice adjusted to the task of enforcing a
voluminous criminal code against a multitude of offenders which we
demand today. How they affect the enforcement of law today is shown
strikingly in Table 2 of the report on Criminal Courts, and Tables 1, 2,
1594]
and 3 in the report on Prosecution. Unfortunately, when the conditions
that call for a more effective criminal justice became acute, we had ceased
to take the same interest in criminal law that had been taken early in the
nineteenth century, when the leaders of the lepal profession achieved
their most consjiicuous triumphs in criminal cases, and in consequence
there has been no such systematic expert consideration of how to give
efficacy to criminal justice in the present as was devoted to the work of
enfeebUng it in the past.
4. English Criminal Procedure at the Revolution
As the substantive criminal law had been brutal in the spirit of a
substitute for lynch law, so English criminal procedure had been brutal
and unfair to the accused. The trial methods of seventeenth-century
prosecutors and the conduct of seventeenth-century trial judges, imitated
by some royal judges in eighteenth-century America, led to stringent
provisions in our bills of rights for the protection of accused persons and
for securing them a fair trial. Except in political prosecutions, criminal
prosecutions in the English polity were privately conducted. Also there
was no review of convictions except for error on the face of the formal
record and no granting of new trials to the convicted. Both of these
conditions were changed in American law. A local public prosecutor was
set up in each locality. The practice of review of administrative con-
victions before colonial legislatures and granting of new trials by colonial
legislatures after judicial judgments made us familiar with review of
criminal proceedings and led to a system of criminal appellate procedure.
But the local prosecutor, the model whereof is the federal district attor-
ney of the Judiciary Act of 1789, while suggested by the French procureur
du roi, was not made part of an organized administrative system, but in-
stead was given complete independence as a sort of attorney general in
petto. In the federal system a certain control is had through the federal
department of justice. In the States there is no such power. The local
prosecutor and the attorney general may cooperate or may ignore each
other or may clash as their dispositions or their politics lead them. The
wide powers of local prosecutors, the lack of control over them, and the
extent to which they may determine the whole course of law enforce-
ment, without leaving a tangible record of what they have done and what
they have undone, are beginning to attract attention.
No officer in our large cities has so much real power with so little
ostensible power. The easiest path to improper influence upon criminal
justice is through the office of the public prosecutor, and there is much
evidence that professional defenders of professional criminals and pro-
[595]
fessional extortioners from occasional offenders in more than one Ameri-
can city understand tiiis thoroughly. In a rural pioneer community with
a small local bar, a small criminal docket, and only occasional terms of
coirrt, the public prosecutor had relatively little power. Grand juries had
ample time to deliberate and did their work critically. What the public
prosecutor did or failed to do was evident to and subject to criticism by
alert and expert critics actively engaged in the courts. In the modern
city, with congested criminal dockets, a crowded bar, the leaders of
which seldom or never go into the cruninal courts, and continuous ses-
sions of court almost throughout the year, he is watched only by alert and
expert professional defenders who often know the game of criminal jus-
tice better than he does. There is no effective check upon him. The
series of mitigating agencies which were introduced into our criminal
justice under different conditions offer abundant opportunity to cover up
his tracks, and the pressure of judicial business makes the common-law
check of judicial approval, when required, a perfunctory ceremony. The
chief pressure upon him is pohtical, and this sort of pressure is easily ex-
erted by politician-criminal-law practitioners as a means of defeating
enforcement of the law. No feature of our administration of criminal
justice calls for thoroughgoing study so urgently as the pubUc prosecutor.
Mr. Bettman's pioneer study of a prosecutor's office in action in an
urban community should be pondered by every thoughtful lawj'er.
Review of convictions and granting of new trials by appellate courts
were called for especially in America because of the need for judicial
finding and shaping of the law which we were receiving from England
and adapting to our conditions. When James Kent went upon the
bench in New York in 1791 he tells us that there were no State law
reports and nobody knew what was the law. Later there was need of
judicial interpretation of the criminal codes which became common in the
United States after the model of the French penal code of 1810. But
this institution had the effect of enfeebling the administration of criminal
law in that settlement of the law was then more important than punish-
ment of the individual offender. Thus, in the second half of the nine-
teenth century, when the law had become settled, new trials were granted
constantly on academic legal points although no doubt of guilt could
exist. There has been a marked change in this respect in the past two
decades. Yet the function of finding the law for a pioneer community
whose criminal law is formative, as the real function of a criminal appel-
late tribunal rather than reviewing guilt or innocence of the accused,
has impressed its spirit upon our whole system of review of convictions.
How much it still affects our administration of justice may be seen by
[596]
comparing the reported decisions of an American supreme court with
those of the English Court of Criminal Appeal.
It will have been noted that all three of our American innovations
upon seventeenth-century English criminal procedure were in the direc-
tion of mitigation and afforded additional incidental opportunities for tiie
guilty to escape. Accordingly, as Enghsh criminal justice is notoriously
more feeble than criminal justice upon the Continent, American criminal
justice is more feeble than English. What this means to the habitual
offender is suggested by the statistics in Chapter I of the report on
PoUce Administration.
5. The System of Courts at the Revolution
English judicial organization at the time of the Revolution was too
arbitrary and involved to be taken as a model to be followed in detail in
this country. Yet by eliminating the more obvious anomalies, a general
outline could be perceived which was the model of our system of courts.
For the purposes of criminal justice, beginning at the bottom, this was:
(1) Local peace magistrates and local inferior courts with jurisdiction to
examine and bind over for felonies and a petty jurisdiction over misde-
meanors, subject to appeal to and retrial in the court of general jurisdic-
tion; (2) a central court of general jurisdiction at law and over crimes,
with provision for local trial of causes at circuit; (3) a supreme court
of review. The defect in that scheme that appealed to the formative
period of judicial organization was not its lack of unity, the multiplicity
of courts or the double appeals, but its over-centralization for the needs
of a sparsely settled community that sought to bring justice to every man.
In a community of long distances in a time of slow communication and
expensive travel central courts entailed intolerable expense upon htigants.
Judicial organizations were devised with a view to bringing justice to
every man's door. But the model was English at a time when English
judicial organization was at its worst. For in the eighteenth century
the English had not yet overhauled their system of courts. It had
grown up by successive creation or evolution of new courts when new
types of work arose or old tribunals ceased to function efficiently, so that
some 74 courts existed, 17 of which did the work now done in England by
three. Thus we took an archaic system for our model, and the circum-
stances of the time in which our courts were organized tended to foster
a policy of multiplication. As a result, we go on creating new courts at
a time when the conditions of our large cities call for unification.
A contributing factor in this decentralized judicial organization was
the need of judicial ascertainment of the law in a new community already
[5971
adverted to. We had to devise a body of substantive criminal law in a
time of rapid expansion. For more than a century the main energies of
our judicial system were devoted to the working out of a consistent,
logical, minutely precise body of precedents. To us the important part
of the system was not the trial judge who tried and sentenced the ac-
cused, but the judge of the appellate court who availed himself of the
occasion given by the prosecution to develop the law. We judged the
judicial system rather by the written opinions filed in its highest court
than by the efficient functioning of its prosecuting machinery. Our eyes
were fixed upon the task of providing rules. It is no wonder that our
failure to devote equal attention to application and enforcement of rules
too often allowed the machinery designed to give effect to the rules to
defeat the purposes of law in their actual operation. If one reads the
report upon the courts in Cleveland with this historical background in
mind, he will understand many things. The rise of special problems, such
as those which come before juvenile courts and our urban courts of
domestic relations, the great increase in police regulations, especially of
traffic regulations since the advent of the automobile, the increased op-
portunities for professional crime and consequent large-scale organiza-
tion of criminal enterprises, the presence in our cities of large groups of
aliens, as well as of citizens of foreign birth and no little race soUdarity,
the resulting colonies in our cities of large numbers of persons not trained
in the ideas which our legal polity presupposes, and the complex economic
organization, with its incidental results of recurring times of unemploy-
ment and continual inflow and outflow of laborers — all these things affect
court organization as well as poUce and prosecutor. They call for strong
peace magistrates, well organized and provided with ample facilities.
They call for a single court of criminal jurisdiction, in which the steps in
a prosecution may be reduced to a minimum — a court well organized and
continually in session. All this is very far from the system we inherited
from the nineteenth century.
6. The Bench at the Revolution and in the Nineteenth Century
As has been said, the administration of justice in colonial America
was at first executive and legislative, rather than judicial. Legislative
new trials persisted until the end of the eighteenth century, legislative
appellate jurisdiction until the middle of the nineteenth centurj-, and
legislative divorces until the last quarter of the nineteenth century.
Judicial justice was only just establishing itself at the time of the Revolu-
tion, and came to its own in the last decades of the eighteenth century
and the beginning of the nineteenth. In the colonies the courts were
[ .598 ]
manned by laymen, with the occasional exception of the chief justice,
and in some of the colonies the royal chief justices did not so conduct
themselves as to inspire confidence in lawyers as judicial magistrates. At
the time of the Revolution it was beginning to be thought advisable to
have judges learned in the law. But many of the States relied upon
judges without legal training until well into the nineteenth century.
Thus, two of the three justices in New Hampshire after the Revolution
were laymen, and the Chief Justice of Rhode Island from 1819 to 1826
was a farmer.
Three factors brought about a wholly different attitude toward the
bench from that which has obtained in England since 1688. Here, as in
so many cases in American legal and political institutions, we derive
from seventeenth-centurj- rather than from eighteenth-century England.
The poUtics-ridden bench of the Stuarts rather than the independent
judiciary of modern England was the original model. The federal con-
stitution and the federal judiciary act of 1789 set a better model and, on
the whole, the federal courts have kept to the best traditions of a com-
mon-law bench. Also the appointive State courts, with permanent
tenure, at the end of the eighteenth century and in the first half of the
nineteenth century, were manned b}' judges of the highest type, who
made that period a classical one in the history of Anglo-American law.
But the hostility to courts and lawyers due to economic causes after the
Revolution, and the radical democratic movement of the next genera-
tion, with its leveling tendencies, its tendency to carry out abstract
political theory to its logical conclusions, and its cult of incompetency,
which is so often a by-product of democracy, combined to work a gradual
change. Hostility to Federalist judges, some of whom, it must be ad-
mitted, followed the example of political judges in England too closely,
had much to do with the first experiments with an elective bench. Thus
a complete change took place in the mode of choice and tenure of judges
which became general after 1850.
In rural pioneer America the elective short-term judge did not work
badly, although it is significant that the great names which are the
ornaments of American judicial history belong, with scarcely an excep-
tion, to the era of appointed judges with permanent tenure. Today
judges in rural jurisdictions chosen at the polls and for relatively short
terms are, on the whole, reasonably satisfactory. But the elected short
term bench has not achieved what its adherents expected of it, and has
achieved some other things which have a bad influence upon the admin-
istration of justice.
It may be shown from the debates in constitutional conventions by
(599 1
which elective judges were provided for that the advocates of that sys-
tem expected to put the judges into the closest touch with the people, to
make them responsive to public opinion, to subject them to the pressure
of popular criticism and to liberalize the administration of justice. Eng-
lish law, which we were receiving and making over, was looked upon with
suspicion by a large part of the community and it was thought that a
permanent judiciary was over-technical. This feeUng had some justifica-
tion in the obstinacy with which some strong judges adhered to English
rules and practices simply as such, and in the impossibiUty of administer-
ing justice in the nineteenth century by the formal, involved, artificial
common-law procedure of the eighteenth century. But what the new
system of choosing judges actually did was to subject the bench to pro-
fessional pohtical pressure, to make judges responsive to political con-
siderations rather than to pubUc opinion, and, in the long run, to insure
at most a mediocre bench which has proved more narrowly technical and,
on the whole, less Uberal in practice than appointed judges with per-
manent tenure in the few jurisdictions which retained that system. On
the other hand, the judges elected for short terms soon lost effective con-
trol over the administration of justice, and common-law traditions of
legal proceeding became seriously impaired. Lack of control over the
trial bar on the part of judges who cannot afford to antagonize and can-
not insist upon expedition and high ethical forensic standards of conduct
without imperiling their positions is a chief cause of the unnecessary
continuances and postponements, the difficulties in obtaining juries, the
wranglings of counsel and the ill treatment of witnesses which have cast
discredit upon American criminal trials. It is significant that these
things are almost unknown in jurisdictions in which judicial tenm-e is
permanent and secure.
Moreover, the putting of the bench into politics and the modes of
thought of the pioneer resulted in breaking down the common-law stan-
dards of decorum and of judicial propriety. How far this decadence of
dignity and decorum may go is strikingly illustrated in the report on
Criminal Courts. The habitual presence of the higher type of lawyer in
the civil courts has prevented such things as are of common occurrence
in inferior criminal tribunals. But the judicial Barnum and even the
judicial mountebank are well-known characters in most American juris-
dictions today, and they are fostered by a system under which, in the
large city, a magistrate must keep in the public eye in order to hold his
place. Even more serious is the careless, slip-shod despatch of business
which develops in courts conducted without regard for decorum — a
method which lends itself to such things as are described in Chapter III
[600]
of the report on Propocution, and Chaptor V of tlio report on Criminal
Courts. The nadir is reached when canipaiRn funds for judges are raised
by subscription from those who practise or have Htigation before them.
That the public should see and feel that justice is done is scarcely less
important than the actual doing of justice. Order, decorum, and judicial
dignity, in fact, promote the despatch of business. More than this, they
promote respect for law and confidence in the work of the courts. No one
should wonder at the prevalence of perjury in courts so conducted as to
make the administration of oaths and the giving of testimony perfunc-
tory acts, done offhand in the midst of Babel. No one should wonder at
the lack of public confidence in the administration of justice by courts
which appear to be conducted by whispered confidential communica-
tions with politicians and criminal-law practitioners of doubtful repute,
rather than by solemn public proceedings in open court. All these things
are natural results of putting the bench into politics under the conditions
of the modern city. One of the chief items in any program of improve-
ment must be to free the court-rooms of our lower tribunals from the
atmosphere of crudity and coarseness given them by the "Jefferson
Brick" era of American politics, confirmed in them by the pioneer, and
accentuated by the press of work, mixed population, and crowd of low-
grade lawyers in the large city.
7. The Bar At and After the Revolution
At the Revolution the bar was hardly more than beginning in this
country. The colonies had little need of lawyers until after the middle
of the eighteenth century. With the rise of judicial justice administered
by courts in place of executive justice and legislative justice which pre-
vailed during the greater part of the colonial period, a tendency to go to
England for legal education began to appear, and there were a few good
lawyers in more than one colony at the Revolution. After the Revolu-
tion law and lawyers were in much disfavor; the law, because it could not
escape the odium of its English origin in the period of bitter feelings after
the war, lawyers, because they alone seemed to thrive in the economic
disorganization and disturbed conditions that followed peace. These
circumstances and the radical democratic notions of the Jefifersonian era
determined our professional organization.
In England, as now, the legal profession was organized in two
branches. The upper branch, barristers or counselors, were alone eligible
for judicial office and had e.xclusive exercise of the function of advocacy.
This branch was well organized in societies coming down from the Middle
Ages, had high professional traditions, professional discipUne, control of
1601]
admission to its ranks, and a decayed system of legal education which,
nevertheless, was capable of being modernized and made effective. The
lower branch, attorneys, solicitors, did the work of client-caretaking and
acted as agents for their clients in litigation. Although some American
jurisdictions made a distinction between counselors and attorneys, it
soon came to little in practice, and "attorney and counselor" became the
American rule. But the attorney furnished the model rather than the
counselor. The profession was not organized in any real sense. As in
the case of attorneys and soUcitors in England, each court had its roll of
practitioners, there was no professional discipUne, the power of the courts
to remove from the roll was exercised in flagrant cases only, and the
training was wholly by apprenticeship. Thus the bar was largely depro-
fessionaUzed. In rural circuits the close daily contact of a small bar, each
well known to his fellows, served to maintain traditional professional
standards. But with the obsolescence of the practice of going circuit and
the rise of large urban bars, containing numbers who are wholly unknown
to their fellow practitioners, it ceased to be possible to keep up traditional
standards in this way. Gradually also a differentiation took place and
three well-defined groups became set off from the main body of the bar,
namely, a well-educated, well-trained stratum at the top, an uneducated,
untrained, or ill-trained stratum at the bottom, and a small group of
none too scrupulous pohtician-lawyers. The practice of criminal law
came to be almost exclusively the domain of the two last.
Readers of Enghsh fiction of the fore part of the last century will
remember the condition of the lower branch of the profession in England
at that time as there portrayed. Sampson Brass, Dodson & Fogg, and
Quirk, Gammon & Snap are types that we recognize perfectly today. In
England incorporation of the lower branch of the profession, with the
consequent introduction of discipline, professional feeling, and require-
ments of education and professional training, have effected a reform. We
have moved more slowly. In the last quarter of the nineteenth century
the rise of bar associations was the beginning of better things. These
associations have done much for professional organization, professional
ethics, and professional discipline. But they are voluntary organiza-
tions, and it has happened in some cities, and may happen anywhere,
that the lower strata of the bar, seeing the advantages of voluntary or-
ganization, have formed organizations and exercised a sinister influence
upon the administration of justice.
Three stages may be perceived in the development of the American
bar. The first stage is marked by the leadership of the trial lawyer. The
great achievements of the bar were in the forum, and the most conspicu-
[602 1
ous success wi\s success before juries in the trial of criminal cases. The
bench and the legislature were recruited from the trial bar. The law
was largely fa-shioned to be a body of rules for use in the trial of causes.
This stage lasted until the Civil War and still persists in some rural com-
munities. In a second stage leadership passed to the railroad lawyer.
The proof of professional success was to represent a railroad company.
The leaders of the bar were permanently employed as defenders in civil
causes and their energies, their ingenuity, and their learning were exer-
cised in defeating or thwarting those who sought relief against pubUc ser-
vice companies in the courts. But where the bench was elective, because
of popular suspicion of those companies, judges and legislators were
seldom chosen from these leaders. Hence criminal law became the al-
most exclusive field of the lower stratum of the bar, and the recognized
leaders in abiUty and learning ceased to be the official leaders as judges,
prosecutors, and lawmakers. Today leadership seems to have passed to
the client-caretaker. The oflSce of a leader of the bar is a huge business
organization. Its function is to advise, to organize, to reorganize, and
direct busines enterpri.ses, to point out dangers and mark safe channels
and chart reefs for the business adventurer, and in our older communities
to act, as one might say, as a steward for the absentee owners of our
industries. The actual administration of justice in the courts interests
him only as it discloses reefs or bars or currents to be avoided by the
pilot of business men. Thus the leaders of the bar in the cities are com-
ing to be divorced not only from the administration of criminal justice,
but from the whole work of the courts, and the most effective check upon
judicial administration of justice is ceasing to be operative.
It may be conceded that the economic causes which have turned the
energies of the ablest and best trained in the profession into client-care-
taking are inexorable, and that we may not hope to divert the leaders to
less remunerative work and work of less magnitude with respect to the
economic interests involved. But it does not follow that those who
practise chiefly in the courts, and especially those who do the bulk of the
work in criminal cases, should be uneducated, ill trained, and undis-
cipHned.
Corporate organization of the bar, as at common law, and as both
branches of the legal profession are now organized in England, and proper
educational standards, both preliminary and professional, are items of the
first moment in any plan for improving the administration of justice m
our large cities. In such cities there must be many lawj-ers of foreign
birth or foreign parentage. To confine the practice of law to any group,
racial or linguistic or economic, would be to exclude other groups from
[603]
their just share in making, interpreting, and applying the law, and thus
to deprive them of their just share in a polity which is primarily legal.
But it is vital that these lawyers should know the spirit of our polity; and
that is the spirit of our common law. The mere rule-of-thumb train-
ing in local law and procedure or in meager generahties of definition and
abstract principle which most of them now get in night law schools gives
no adequate conception of our law nor of our legal institutions. How-
ever good their intentions, they caimot use the machinery of a common-
law prosecution inteUigently with such training, and it is no wonder that
our legal system functions badly in their hands. Chapter III of the re-
port on Prosecution, disclosing methods at variance not only with jus-
tice, but with the whole spirit of our institutions, should be read with
these things in mind.
8. Penal Treatment at the End of the Eighteenth Century
Modern criminal science begins in the second half of the eighteenth
century, after the classical treatise of Beccaria on crimes and punish-
ments. But the movement for a rational and humane penal treatment
which that treatise began did not affect our law till the end of the eigh-
teenth century, when legislation began to provide imprisonment rather
than death as a punishment for all but a few felonies. Thus our penal
treatment was grafted on a system that proceeded on radically different
ideas. The jail system, inherited from England, did not work badly in
small country county-seats in the fore part of the nineteenth century,
but became intolerable in the large city of the present centurj\ The
American Prison Congress was not organized till 1870, and the American
Institute of Criminal Law and Criminology not imtil 1910. In other
words, our system of penal treatment, experimental in its inception and
grafted on a bad system, has had not much more than a century in which
to develop, has been studied scientifically for not much more than a
generation, and before it was much more than worked out for the con-
ditions of agricultural America has had to be applied, as well as we might,
to the predominantly urban America of today. These facts explain
much.
The Problems of Criminal Justice in the American Citt op Todat
1 . Reshaping of the Substantive Criminal Law
From the foregoing discussion it will have been seen that before our
criminal justice may function satisfactorily the chaotic, internally incon-
sistent, to a large extent anachronistic, condition of our substantive
[604]
criminal law must be taken in hand. Both the report on Prosecution and
the report on the Criminal Courts hring out the relative disproportion in
the time devoted to civil as compared with criminal litigation. It Ls not
that the former receives too much judicial attention, hut that we have
acquired a habit of neglecting the latter. This is true no less of the sub-
stance of the law. We have made great strides in the civil side of the law
in a generation. Much has been done in civil procedure in the last two
decades. But criminal law has stood still, and with a few notable ex-
ceptions in one or two locaHties criminal procedure remains what it was
fifty years ago. Thus the neglect of the criminal law by the leaders of the
bar, reflected in neglect of it in our law schools, bears fruit in a backward
condition which is full of advantage to the law breaker and to those who
make their liveUhood by representing him. What we have to do is
nothing less than to reshape the substantive criminal law so as to main-
tain the general security and the security of social institutions, and at the
same time maintain the social interest in the human life of every individ-
ual, under the circumstances of the modern city; and we must do this
upon the basis of traditional rules and principles in which the latter was
chiefly regarded, and yet were warped in their application by those who
regarded only the former.
This is too large a subject for the city. As things are it calls for
nothing less than a ministry of justice, at least in each of our larger
States; for our so-called departments of justice are but offices for legal
ad\-ice to State officers, for representation of the State in its civil litiga-
tion, and for advocacy in the courts of review in criminal causes. In the
federal government the Department of Justice is more. There it is a
well-organized prosecuting bureau. But nowhere is it organized to study
the functioning of our legal institutions, the application and enforcement
of law, the cases in which and reasons for which it fails to do justice or
to do complete justice, the new situations which arise continually and
the means of meeting them, what legislation achieves its purpose and
what not and why, and thus to give expert and intelligent guidance to
those who frame and those who administer our laws. In the rural,
agricultural society of the past, the judiciary committees of the two
houses of the legislature could do efficiently so much of this as was
needed. Today, even if our crowded legislative sessions allowed the
time, no legislative committee is competent to the highly specialized
work required. In consequence, commissions are provided from time to
time to study particular subjects. But their work is not coordinated,
there is no continuity in what they do nor in what successive legislatures
do, and the whole process is wasteful, expensive and inefifective. A
[ 60.5 1
ministry of justice in the foregoing sense was proposed by Jeremy Ben-
tham during the Enghsh legislative reform movement of the last cen-
tury. It was approved by the Conference of Bar Association Delegates
at the meeting of the American Bar Association in 1917. It was recom-
mended in 1918 by a Parliamentary Commission headed by Lord Hal-
dane as one of the chief items in a plan for reconstruction of the British
administrative system.' It deserves to be kept in mind by American
lawyers as one of the things to be provided in the inevitable reconstruc-
tion of our administrative system in a country in which the center of
gravity has definitely shifted to the city.
2. Organization of the Administration of Justice
It is no less urgent, and more immediately practicable, to organize
the administration of justice as a whole and in all its branches, to prune
the accumulation of checks and mitigating agencies which discourage
prosecuting witnesses and afford opportunity of escape to the guilty
without profiting the innocent (see, for example, the manner in which
preliminary examinations are conducted in the Municipal Court, as dis-
closed in the report on Prosecution), to coordinate responsibiUty and
power, putting both in a few conspicuous officials charged with authority
to supervise and direct and plan and enforce their policies, and with
responsibihty for the due functioning of criminal justice, and to correlate
the judicial and administrative agencies, so that, instead of acting inde-
pendently, and sometimes in conflict, they will operate with one known
policy in all things and will not be able to shift responsibility from one
to the other or let it fall down between them, as in the Raleigh prosecu-
tion. Only in this way is it possible to insure an efficient machine to
dispose of the great volume of prosecution required in the modern city
and enforce the great mass of police regulation demanded by the con-
ditions of urban life.
Specifically, three points are to be urged :
(i) Unification of Courts
The system of courts should be unified. An administrative head
should be provided with large powers of organizing judicial business, of
systematizing the assignment of cases to judges and judges to types of
work, of applying the judicial force where the exigencies of the work de-
mand, and of applying it upon that work to the best advantage. Thus,
in place of rotation of judges dictated by political exigencies, the person-
nel of the bench would be employed systematically and intelHgently, as
'See Judge Cardozo's "Ministry of Justice," 35 Harv. L. Rev. 113.
[600]
the size and importance of the work demand. Also he should have power,
in connection with a council of judges, to initiate and determine policies
so that the unseemly spectacle of two judges of coordinate jurisdiction
applying the same law in two wholly different ways in two adjoining
rooms shall come to an end, and he should be responsible for the due
functioning of the judicial system in all these respects.
(ii) Organization of the Prosecuting System
The prosecuting system should be unified. The administrative head
of the system should have full power to control and responsibiUty for
the acts of his subordinates. He should be required to keep proper rec-
ords of all that goes on in the course of a prosecution from the beginning,
with recorded reasons for his action in types of proceeding where the law,
made for simpler conditions, now requires what has become a perfunc-
tory approval by the court. He should be a part of an organized general
prosecuting system of the State, not a wholly independent functionary.
Note, for example, in the report on Prosecution the extent to which the
public prosecutor may, if he chooses, neglect to assist the court of review
with proper briefs or arguments. No publicity attends his neglect of
that duty, and he has it in his power to present the State's side of a
criminal appeal or not, wholly as he likes. In the same way he may
cooperate with or operate independently or even thwart the police, and
they are in a like position with respect to him. Criminal investigation
and preparation of causes for trial have reached a high degree of develop-
ment. But our prosecuting system is not adapted to the one, and except
in sensational cases, its methods with respect to the other are usually
crude in comparison with those employed in civil Utigation. If nothing
else were to be considered, the mere waste of energy involved in an imor-
ganized prosecuting system ought not to be tolerated in view of the
volume of criminal business in the courts of a modem city. To no small
extent the effectiveness of English criminal justice isdue tothecentraUzed
administrative superv'ision exercised by the Director of PubUc Prosecu-
tions. His vigilant scrutiny of what is done and what is not done by local
prosecuting agencies has no parallel in our State prosecuting organiza-
tion.
(Hi) Organization of Administrative Agencies
All administrative agencies, including the work now done in con-
nection with the administration of justice by sheriffs, coroners, clerks,
bailiffs, and probation officers, should be unified and organized under a
responsible head, put in proper relation to the head of the judicial sys-
tem, so as to ehminate friction and insure uniform poHcies in judicial and
1607]
administrative action. This administrative head should have the power
to determine the details of organization as circmnstances require, to
systematize and supervise, to initiate and enforce policies, and to set up
such technical and expert adjuncts to the court as the business before it
may require. He should be responsible for the proper functioning of this
part of the administration of justice. He could easily save enough by
proper organization and improved administrative methods to justify his
position on that score alone. If for no other reasons, organization of the
admuiistrative agencies of our judicial system is demanded by considera-
tions of expense. The cost of administering criminal justice in the mod-
ern city by methods devised for wholly different conditions precludes
doing many things as they should be done, while wasting money in doing
other things that need not be done, or in doing them in clumsy and ex-
pensive fashion. The enormous sums of money which we spend each
year in the judicial administration of justice and its administrative inci-
dents must eventually invite scrutiny of the mode in which those sums
are employed. Through the fault of no person, but because of the sys-
tem made for other times and different conditions, they are not employed
to the best advantage. Nor can they be so long as city and county ad-
ministration of justice go on parallel and independent in the same urban
area, overlapping in many things, duplicating machinery unnecessarily,
and without effective correlation of activities. Other functions of gov-
ernment are requiring and will continue to require increased expenditures
and exacting taxation. Every source of expense that competes with
them must justify itself by economy and efficiency. Here as elsewhere
these things are not to be had through a decentraUzed congeries of inde-
pendent functionaries, but by organization, system, supervision, and
concentrated responsible authority.
3. Adequate Provision for Petty Prosecutions
Comparison of the facihties provided for and time spent upon small
civil causes as compared with small criminal causes calls for serious
reflection. The statistics on this head in the report on Prosecution and
the report on Criminal Courts may be duphcated in almost any metropol-
itan area, and are a reproach to American administration of justice. It is
at this point that the administration of criminal justice touches imme-
diately the greatest number of people. It is at this point that the great
mass of an urban population, whose experience of law is too likely to have
been only an experience of arbitrary discretion of police officers and off-
hand action of magistrates, tempered by political influence, might be
taught the spirit of our institutions and made to feel that the law was a
[608]
living force for securing their interests. Such extra-legal proceedings as
those by summons in the municipal prosecutor's office, proceedings with
no warrant in law and hence no legal safeguards that may easily degen-
erate into violation of constitutional rights under color of legal authority,
should give way to a proper administrative organization whereby the
courts in our large cities could function legally as bureaus of justice. The
legal profession as a whole has little interest in petty prosecutions. But
for the very reason that the.se proceedings are in consequence withdrawn
from the field of active scrutiny by the bulk of the profession our bar
associations should be zealous to see that adequate provision is made for
them. Few of the leaders of the profession are aware of the actual situa-
tion, and when the facts are stated publicly, some of the best, most pub-
lic-spiiited, and most respected members of the bar are not unlikely to
assume that such things cannot be true and to denounce those who reveal
them as agitators or muck-rakers.
4- Preventive Methods
Preventive justice is no less important than preventive medicine. If
we think of the legal order in terms of social engineering, it must be evi-
dent that sanitarj- engineering is not the least important feature. Pre-
vention at the source rather than penal treatment afterward must be a
large item in dealing with crime. Cleveland is well awake to this, and
has well-organized institutions for social work. But no survey would be
complete that did not emphasize the importance of correlating these in-
stitutions and agencies with police, prosecution, judicial organization,
and agencies of penal treatment. There ought to be no possibility of mis-
imderstanding, friction, or cross-purposes. And this requires that the
administrative agencies connected with the administration of justice
be unified and organized under a responsible head.
5. Justice in Family Relations
Conditions of crowded urban life, periodical unemplojnnent, shifting
of labor from city to citj', and economic pressure threaten the security of
the social institutions of marriage and the family and call for special
consideration in organizing the courts of our large cities. Administra-
tion of justice in relations of family life is difficult for two reasons: one
is that it involves questions on the borderline between law and morals,
where, from its ven,' nature, law is least efficacious; the other is that
proper judicial adjustment of controversies involving those relations
calls for wide discretion and yet they involve matters more tender than
any that can come before tribunals. Such questions must be dealt with
40 (609)
as a whole, not piecemeal, partly in criminal prosecutions, partly in
juvenile courts, partly in petty proceedings before magistrates, and
partly in courts having jurisdiction to appoint guardians. They must be
dealt with by strong judges with large experience and trained intuitions.
Anything less is a denial of justice to the mass of the population which
cannot afford protracted legal proceedings in many courts. Anything
less is a menace to the most fundamental of social institutions. To
achieve these things the courts and administrative agencies connected
therewith must be unified so that causes may be disposed of as a whole,
without repeated partial threshings over of the same straw in separate
proceedings, and so that causes that call for strong judges may receive
the treatment they deserve without regard to the sums of money in-
volved.
6. Unshackling of Administration
Above all, effective administration of criminal justice in the modern
American city calls for an unshackling of administration from the bonds
imposed when men who had little experience of popular government and
much experience of royal government sought to make rules do the whole
work of the legal order. The principle involved in the constitutional
separation of powers is really no more than the principle involved in all
speciaUzation. Certain things which involve special training or special
competency or special attention are done better by those who devote
thereto their whole time or their whole attention for the time being.
Hence if the officers of a court may best gather and study statistics of
judicial administration to the end that such administration be improved;
if they may best conduct psychological laboratories or psychopatholog-
ical examinations or laboratories for the study of criminals, there is really
nothing in the nature of a court to prevent. There is no reason why the
courts in metropohtan areas may not be so organized as to permit these
things, although they are not needed or are less needed in rural areas and
hence are not provided for therein. The nineteenth-century poUtical
idea of uniformity over geographic areas, thinking in feudal terms of soil
rather than of human beings peopling the soil, is not applicable to States
of today in which populations greater than those in whole States when
this idea took root in our State constitutions are compressed within a
few square miles of municipal jurisdiction. A unification of administra-
tive agencies with power to adapt administration to the peculiar needs of
particular localities must supersede rigid uniformity over areas laid out
according to the exigencies of the map. Regulation of pubhc utilities,
factory inspection, tenement house inspection, building laws, and a
score of things of the sort have accustomed us to administrative boards
[610]
and commissions with wide powers to organize their business and large
administrative discretion. There are no such checks upon these boards
and commissions as are operative in the case of courts. And yet, for
historical reasons, we are loth to confer upon judicial administrative agen-
cies the latitude which we freely concede to newly created executive
agencies. Undoubtedly one of the tasks of American law today is to
work out an adequate system of administrative law. But there is no
reason to suppose that judicial administration is not as adequate to this
task as executive administration.
State and City
For the larger part of what it needs in the way of machinery to cope
with crime the city must depend upon action by the State legislature or
even amendments of the State constitution. The State may do any-
thing not prohibited by the federal constitution. The State legislature
may do anything not prohibited by federal and State constitutions. The
city may do only what the State empowers it to do. Hence in order to
adapt the institutions devised for rural conditions of the past to the
rapidly changing urban conditions of today, it must first induce action by
those who Uve under quite different conditions, to whom the methods and
agencies developed for rural communities of the last century seem en-
tirely adequate. When there are several large cities in a State, each with
its own problems, and a large agricultural population with preponderant
political power, proper provision for the special needs of criminal justice
in the city becomes a matter of much difficulty. Here again a unified
judicial organization for the whole State and organization of the ad-
ministrative agencies of justice for the whole State, under a head respon-
sible for insuring an adequate functioning of the legal system in each
locality, and clothed with power to make the proper adjustments to that
end, may bring about the right compromises between urban and rural
needs from time to time as occasion requires, and preserve the balance
as changes take place, without disturbance of the fundamental organiza-
tion.
1611]
CHAPTER V
LOCAL AND TEMPORARY DIFFICULTIES
Exceptionally Rapid Growth
FEATURES of the administration of criminal justice which may be
found in large cities throughout the country and difficulties which
operate in all American cities to a greater or less degree are
exaggerated in Cleveland because of exceptionally rapid growth in popu-
lation and rapid industrial expansion. A city which has increased in
population so rapidly and in so large a proportion within the past decade
may not expect that its legal institutions will keep pace with such ex-
pansion.
Instability of the Industrial Population
Another factor of importance is the mobile population due to the
rapidity of industrial expansion in recent years. In May, 1920, there
were 127,285 children in the public schools of Cleveland. Between June,
1920, and April, 1921, 40,300 children in the public schools changed their
residence. Of these, 5,063 moved out of the city. The figures at hand
indicate that a Uttle more than 63,000, or more than 40 per cent, of the
whole number of children in the public schools, moved during the past
year. In some instances the same child moved twice or oftener during
that time. These figures show a high degree of mobility among the rela-
tively stable part of the industrial population represented by children in
the schools. Data from the census of 1920 as to the mobiUty of the
population of Cleveland are not yet available and will not be pubUshed
for some time to come. The census of 1910 showed that 52.8 per cent,
of the population was born in Ohio, 11.9 per cent, in other States, and
35 per cent, in foreign countries. Since that time the city population
has increased nearly a quarter of a million.
Some studies made during the war indicate that the moral implica-
tions of an increasingly migratory laboring population call for serious
consideration. Our institutions presuppose a stable, home-owning, tax-
paying population, of which each individual has and feels a personal
interest in its legal and political institutions and bears his share in the
[612 1
conduct of them. Irregularity and discontinuity of employment and
consequent migration from city to city, or back and forth between city
and country, preclude the sort of society for which our institutions were
shaped. That these things must make for crime and for the bad func-
tioning of criminal justice in a large urban population is self-evident, and
is shown abundantly bj' the facts disclosed by this survey. A survey of
the industrial situation with reference to these things would no doubt
disclose much that might be used with effect in preventing crime.
Post- War Conditions
Finally, a temporary difficulty of some moment is to be seen in the
conditions following the war. Legal history shows us that crime has
always increased notably for a time after a long or hard war. In this
country the increase of crime after the Revolution and after the Civil
War was marked. In England it was especially notable after the
Napoleonic wars. It is well marked in Europe today. The economic and
social conditions which contribute to this phenomenon are especially
pronounced in the large city. Moreover, the circumstances of the late
war, during which laborers were highly paid and all members of the
family were employed, leading to habits and modes of life which do not
readily readjust, cooperate with the habits of rough and ready action and
callousness toward life and limb and property, which every war has
developed for a time. Thus the conditions arose which came to be
known as "crime waves." These things belong to a social and economic
survey rather than to a survey of criminal justice. Yet we must take
account of them in any appraisal of the functioning of criminal justice
during the past three years.
Thus far I have considered the difficulties involved in the administra-
tion of criminal justice in an -\merican city of today, seeking to connect
the conditions found in Cleveland with those that exist to some degree
in all our cities, and have considered the ultimate remedies. This is a
necessarj' background. It shows also that remedying many of the clear
evils involved must be a slow process, and that the remedies immediately
available may not be expected to achieve permanent results. Yet they
may improve the administration of criminal justice in Cleveland a great
deal. These immediate measures of improvement will be considered in
the following pages.
I 613 J
CHAPTER VI
POLICE
IN reading Mr. Fosdick's study of police administration in Cleveland
one must be struck with the relation of the points which he brings
out to those which are disclosed in the studies of courts, of prosecu-
tors, and of penal treatment. In each case the primary difficulties arise
from "transient administration," suitable enough in a rural community
of the nineteenth century, and from trying to meet the needs of an urban
commimity of today by merely adding numbers to the administrative
force or by adding further incoordinated administrative agencies to a
system which was devised originally for a small town.
Seven points in connection with the report upon police, most of which
will recur in one form or another in each of the other reports, deserve to
be noted. These are: (1) The transition from rural to urban and thence
to metropolitan conditions has been met not by intelligent reconstruction,
but by patching and addition of numbers; (2) lack of continuity in
administration; (3) rigidity of organization, making adjustment to the
exigencies of rapid growth and exceptional diversity of population impos-
sible; (4) a tendency to perfunctory routine growing out of the fore-
going circumstances; (5) division of power and diffused, ill-defined
responsibility, making it difficult to hold any one to account for unsatis-
factory results; (6) an assumption of versatility on the part of the offi-
cials and subordinates, whereby they are expected to do specialized work
offhand in a system of frequent rotation without any adequate provision
for the specialization involved in the large imdertaking of enforcing the
criminal law in a modern city ; (7) want of provision for intelligent study
of the functioning of administrative machinery, either by those who
operate it or by others.
(1) As growth in population takes place the staple resource of our
lawmakers has been to provide more oflSces, more officials to each office,
and more administrative machinery of the same sort as that already
existing. Hence no student of American legal and political institutions
need be surprised to learn from Mr. Fosdick's report that Cleveland's
police force of 1921 is little more than the police department of 1866
magnified. We shall not appreciate what this means if we say merely
[614]
that the population now is more than eight times what it was before.
For the difference between the Cleveland of that day and the Cleveland
of today is one of kind, not merely one of degree. The change has been
treated as if it were but one of degree. A few examples discussed in the
report on police will bring this out.
Thus it appears that the patrol force is distributed and managed
exactlj' as it was thirty years ago, and the patrol routine is determined by
a tradition coming down from a time when demands upon and conditions
of the patrol service were wholly different. The complete change in
these demands and conditions in recent years has brought little change in
the method of distribution of the patrol force or in the supervision of its
operations. Again, we are told that the radical change in the population
of Cleveland and the consequences thereof for poUce administration have
brought about nothing new in the detective service except new faces and
a few meager records. In Cleveland, as everywhere else, it has been
assumed that given a certain number of officers, administrative machin-
ery would somehow run of its owti motion. Nor vsnll it do to say that
money is lacking or has been lacking to do more. A system of patching
and of adding more men to an organization made for different circum-
stances consumes money in doing needless things. See, for instance, the
reports on 16 cases of burglary in January, 1921, set out in Chapter VIII
of Mr. Fosdick's report. Such expenditure of time and money in per-
functory routine is worse than useless. A system that allows such things
to go on indefinitely without scrutiny and with provision of more of the
same sort as a staple remedial device cannot be expected to leave money
available for needed faciUties in a metropolitan community.
(2) "Transient administration," as Mr. Fosdick well puts it, "is fatal
to success in any complex technical enterprise." The public business is
the only sort of business in which it is tolerated in the United States of
today. Every part of the administration of criminal justice suffers from
it. It is one of the legacies of pioneer America. It results in almost com-
plete want of continuity in administration, leading to want of settled
policy, conflict of policy between successive incumbents, and waste of
time and effort by each incumbent in learning what ought to be a known
body of organized experience handed down from official to official, con-
tinually added to and continuallj- adapted by trained intelligence to the
newer conditions as they arise. But such things are impossible unless
the head of the police is a permanent official, chosen without regard to
politics or to geography. The pioneer notion of short tenure and selection
from among the voters of a politico-geographical area is out of place in
the city of today.
[615]
(3) Rigid organization applied to the entire force regardless of the
differences in the types of work appropriate to the different branches of
police service and regardless of the shiftings of population, changes in
the character of localities, and rise of new sorts of crime and instruments
of wrongdoing, is an obstacle to police efficiency, just as rigidity of
organization impedes efficiency of the courts and, indeed, of all the ad-
ministrative agencies of criminal justice. A striking example may be seen
in the organization of patrolling. The city is divided into precincts,
which are in effect so many separate pohce departments with their own
records, their own hierarchy of rank, their own complement of men, and
an organized system of commanding and of supervising officers. The
occasion of this precinct organization is to be found in old-time conditions
of transportation and of the attempt to solve the problem of pohce dis-
tribution in view of those conditions. When policemen had to go on foot
or on horseback to their posts and to the station where they reported, it
was necessary to set up substations where they could meet and report
and from which they could be sent out. Motor cycles and motor cars
have obviated the conditions for which the organization grew up. But
the hard and fast geographical hnes and precinct organization remain and
are unaffected by continual changes in the character of the several dis-
tricts and in the problem they present to police administration. Mr.
Fosdick's recommendations in this respect deserve thorough considera-
tion, not only in themselves, but because the condition of rigid organiza-
tion on which he comments is not confined to the police but pervades the
whole administration of criminal justice.
(4) Lack of continuity, rigid organization, and division of responsi-
bihty result in administrative lethargy. Officials become caught, as it
were, in the cogs of the machinery and cease to bestir themselves to
effect results or to take advantage of the opportunities of their positions.
They easily fall into a perfunctory routine and work in a rut, laborious
and conscientious it may be, but without intelligence or constructive
poUcy. The poor work of the detective bureau shown in Chapter VIII of
the report on Police Administration, the poor development of crime pre-
vention shown in Chapter IX, the circumstance that Cleveland was the
only city of over half a million population at the date of this survey
which was without pohcewomen, the want of adequate provision for use
of motors in patrolhng and in police work generally, as set forth in
Chapter VII, and the stereotyped, unelastic work of the civil service
commission set forth in Chapter IV, will be found paralleled by a Uke
failure to rise to the opportunities of administration disclosed in the re-
port on prosecution. These things are not to be attributed to the de-
[616]
ficiencies of persons holditiR office for the time being. They are deep
seated in our administrative system. The development of police training
schools in Cleveland, a notable administrative achievement, shows that,
in spite of the system, individual ingenuity and capacity will do things.
Yet by their ver>' contrast such achievements .serve to emphasize the con-
dition of drift which must go with lack of continuous policy, rigid or-
ganization, and divided or undefined or non-located responsibility.
(5) Division of power, diffu.so<l, ill-<lefined, and non-located responsi-
bility, are obstacles to efficient working of the administration of criminal
justice in every department. In police administration in Cleveland we
find a conspicuous example in the undefined line between the authority
of the chief of police and the authority of the director of pubUc safety,
(discussed in Chapter III of Mr. Fosdick's report), the curious situation in
which the chief of police is responsible to the mayor for incompetency,
but to the director of public safety for the conduct of his work, the falling
down of responsibility for discipline between the chief and the director,
and the system of two officials with much power to check and thwart
each other, but with little power of assured initiative and with indefinite
responsibility. Another example may be seen in the divided power with
respect to discipline, discussed in Chapter IV. Still another may be seen
in the lack of coordination between the civil service commission and the
police department, also discussed in Chapter IV. Such things are char-
acteristic of all American administration and have come down to us from
pioneer conditions, where division of power had an important function
and operated to meet real needs of society. Mr. Fosdick's recommenda-
tion that power be concentrated in a single responsible expert adminis-
trative head of the poUce force is in line with what must be done in every
department of the administration of criminal justice if it is to be effective
for its purpose.
(6) Police administration suffers especially from what Kipling calls
the American idea of versatility — the idea that any man can do any-
thing. A general in the Civil War tells us that for a time the notion pre-
vailed in the North that 1,CMX) men, plus 1,000 horses, plus 1,000 sabres,
would make a cavalry regiment. It was no matter that the men knew
nothing about the care of horses. There was a lively faith that they
would be able to put up their horses in some sort of peripatetic hvery
stable at the end of the day's march. In the same way w^e assume that
100 men, plus 100 uniforms, plus 100 clubs, will make 100 pohcemen. As
Mr. Fosdick points out, most policemen are recruited from occupations
whose character is as far removed as can be from the character of the
work which they are to do. Naturallj-, there is a large turnover of police
[617]
personnel which is incompatible with effective work. This pioneer idea
of succession in public employ, of continual rotation, and that there is no
need of careful development of specialists for special tasks stands in the
way of effective criminal justice in the modern city in every connection.
Examples in police administration in Cleveland are to be seen in the
work of the detective bureau, as set forth in Chapter VIII, and the want
of adequate provision for prevention of crime, as set forth in Chapter IX.
One need not have made a special study of poUce to perceive the cogency
of Mr. Fosdick's argument as to the need of specialization in both con-
nections. His recommendations on these points should be noted par-
ticularly.
(7) Finally here, as everywhere else, in our administration of criminal
justice, there is no provision and there are no facilities for intelUgent
study of the functioning of the machinery by those who operate it or are
responsible for its operation. There was no need for such study in the
rural or small urban community of the nineteenth century. The things
that had to be done were simple and were within the comprehension of
the average intelligent citizen. It is otherwise with the questions which
come up in police administration today. Such matters as those to which
Mr. Fosdick calls attention— organization of the patrol service, the use
of motors in police work, recruiting and organization of the detective
force, organization of the clerical work of the police department, and
special service in crime prevention — must be studied constantly in the
light of metropolitan conditions exactly as similar problems of organiza-
tion and management are studied in a modern business estabhshment.
To take one more instance, set forth in Chapter X of the report on poUce,
the detailing of detectives and sergeants of police to do clerical work is an
outgrowth of the simpler conditions of the past, when there was little of
such work to be done and the policemen could easily do it themselves.
Today such a system involves waste of money and waste of administra-
tive power. But there is no one person who is responsible for studying
such conditions or has power to deal with them effectively. Hence there
is no pressure upon any one comparable to the competition in business
which compels the business man to be a vigilant student of the function-
ing of his plant or to go to the wall.
All the recommendations in the report on police depend upon the one
pivotal point of entrusting complete authority to and concentrating full
responsibility in a single directing head with permanent tenure, making
police service an independent department, as is now done in the majority
of the large cities of the United States. The details are in Chapter III of
Mr. Fosdick's report, and it would not be useful to repeat them. But
[618]
the central idea of "a direct line of responsibility running from a single
head down through the whole organization," and of avoiding all "short
circuits of responsibility," is one which cannot be urged too strongly.
Overhauling of the whole administrative machinery of criminal justice
with this idea before us is the remedy to which every part of the survey
unmistakably points.
1619;
CHAPTER VII
PROSECUTION
TWO significant facts are the starting-point from which we must
begin in considering the prosecuting system in Cleveland today.
The county prosecutor's office was created and its functions were
defined more than one hundred years ago, and its traditions and methods
had been definitely shaped at the time of the Civil War. The municipal
prosecutor's office was created in 1854, and its traditions and methods
are still those of the old-time police court prosecutor. It is impressive
to compare the one county prosecutor of 1863, when the population of
Cleveland was 58,000, when there were 60 indictments and 1,600 arrests
in a year, and when the criminal code contained 249 sections, with the
eight (one prosecutor and seven assistants) county prosecutors of today,
working in a county population of 940,000, with 2,700 indictments and
27,000 arrests each year, and enforcing a criminal code of 1,053 sections.
That indictments are 45 times as many, arrests about 17 times as many,
and crimes defined by statute four times as many, as in 1863 are impres-
sive facts. But to put it thus is to divert attention from the most sig-
nificant fact. What we have to deal with is not merely an enormous
increase in population, in the number of indictments, in the number of
arrests and in the number of legislatively defined crimes. It is a radical
change in the conditions and character of crimes and in the environment
of prosecutions. The multiplication of the number of prosecutors by
eight and of the payroll of the office by 24, which has gone along with
the growth in population and in the volume of criminal prosecution,
might well have suflaced if there had been a simple question of multiplica-
tion. That easy resource has proved unequal to a situation which is not
the situation of 1863 multiplied by eight, or by 12, or by 24, but a wholly
new one to which the methods and the machinery of 1863 are not
adapted.
In connection with the report on Pohce Administration I suggested
seven points of general significance which related the difficulties in police
administration in Cleveland todaj' with those found in other depart-
ments of criminal justice. It will be worth while to note these identical
points as they are brought out no less clearly in the report on prosecution.
[620]
(1) Transition from rural to urban and thence to metropolitan con-
ditions has not been mot by intoliigont reconstruction, but simph' by
addition of more men and expenditure of more money. Take the muni-
cipal prosecutor: the methods of his office are still the methods of the
date of its origin — before the Civil War. There is no system or organiza-
tion whatever, as, indeed, there did not need to be in the simple condi-
tions of that time. Old-time casual methods of indiscriminate lumping
of all sorts of cases on one docket, the want of any intelligent segregation
of the work, and the consequent disorder and delay which wear out
witnesses and lead many lawyers to avoid practice on the criminal side of
the municipal court, were proper enough in the police court of a city of
58,000 inhabitants with a municipal code of 100 standing ordinances.'
It was well enough then to have no system of segregating cases, to
have no system of keeping affidavits,' to have no records or file or docket,
but rely wholly on the court docket for such information as could not
be held in the prosecutor's memory,' to have no stenographic record of
the testimony on preliminary examinations* and to make no systematic
preparation of the cases prosecuted.* The whole process disclosed is
that of the old-time country law office with relatively few cases to be
tried at periodical terms vnth intervals between them where pencil
memoranda on the back of a few files will eke out memorj- and suffice for
all purposes. To conduct such an office efficiently under the conditions
of today there must be system and organization and intelligent segrega-
tion of cases, as well as numerous assistants. So long as the latter is the
sole expedient relied upon to cope with the difficulties of the office it is no
wonder that complaint is made of insufficient time to handle the great
volume of work effectively. Nor is it strange that perjury is rife and
prosecution ineffective when there is no stenographic report of the testi-
mony in preliminarj' examinations. Under such circumstances the testi-
mony at the trial may vary from that at the preliminarj' examination
without any check, and there is not sufficient material available for
preparation on the part of the trial prosecutor. Nor is any indubitable
proof at hand upon which to prosecute for perjury. If one compares
this practice, suitable enough in the Cleveland of fifty years ago, with the
English practice,' he may perceive another reason for the ineffectiveness
' The municipal prosecutor's office was created in 18.54. The Revised Ordinances
of Cleveland of 1855 contained 109 standing ordinances.
' Report on Prosecution, p. 120.
» Ibid., p. 122. * Ibid., p. 118. • Ibid., pp. 138-139.
' Ibid., pp. 201-202.
[6211
of the criminal justice here as compared with Enghsh cities of greater
population.
In the county prosecutor's office, except for a good system of records
and provision of a managing clerk in June of the present year, httle has
been done beyond adding a corps of assistants to differentiate the office
from a country prosecutor's office of today or from the office as it was in
Cleveland sixty years ago. The result is what Mr. Bettman happily
terms "a system of serial unpreparedness,"' inevitable when a prosecutor
in a city of 800,000 inhabitants and a calendar of over 2,700 indictments
each year uses methods coming down from a time when 60 indictments
were a year's work and the single prosecutor could rely on his own
memory. This seems to have been aggravated by a practice of so arrang-
ing the work of the assistants that the trial prosecutor shall not know in
advance what case he is to try.^ This practice, which obviously makes
prosecution feeble and inefficient, seems to have been thought necessary
to prevent improper influences from being brought to bear upon an
assistant who is known to be in charge of a case.' Thus the absence of
organization and of responsible administrative control compels resort to
devices that merely add to the existing ineffectiveness.
(2) Want of continuity in administration is a cause of ineffectiveness
in prosecution no less than in the work of the police. Thus, in Mr. Bett-
man's report^ we find that in January, 1921, 12 of the first 16 cases tried
before one of the judges in the criminal branch of the Court of Common
Pleas resulted in acquittals. This is too large a percentage of failure to
be accounted for even by the want of systematic preparation for trial
which has prevailed in all prosecution in Cleveland and is a legacy of the
past. The opinion of the trial judge^ that the entire change in personnel
involved in a change of administration was a considerable factor in this
unfortunate result seems entirely warranted. If the reader will note the
complete turnover in the personnel of the force on January 1, 1921,* he
cannot but see that even if there had been proper organization and sys-
tematic methods of preparation, it would not have been easy to enter
at once upon the trial of 16 cases and to give proper attention imme-
diately to more than 800 indictments. If there are reasons for periodical
election of the prosecuting attorney, — which is at least debatable, — some
degree of permanent organization in the office is clearly required. When
there were but 60 indictments each year, a new prosecutor could come
into office on January 1 and pick up in a few days the relatively few
' Report on Prosecution, p. 172. ' Ibid., p. 175. » Ibid., p. 163.
« Ibid., p. 174. ' Ibid., p. 174. • Ibid., p. 165.
[622]
threads that would enable the work of the office to go forward cfTectively.
Under the conditions of today this is impossihle.
(3) Rigidity of organization is another factor in the ineffectiveness of
prosecution, as in the ineffectiveness of police administration. Both the
county prosecutor's office and the municipal prosecutor's office are laid
out along hard and fast lines of three grades of assistants at fixed, graded
salaries. In practice these assistants are largely independent func-
tionaries, acting on their own responsibility.' In the case of the munici-
pal prosecutor, the assistants are appointed by the director of law, the
same as their chief. In the case of the county prosecutor, the assistants
are appointed by the prosecuting attorney, but there seems to be a tra-
dition or habit of independent action.' In effect the positions of assistant
prosecutor have been treated as so many pohtical jobs to be handed out,
and the assistants have been set up as graded, more or less coordinate
prosecutors, instead of an organized staff of subordinates. There is much
excuse, therefore, for the incumbents who have not exerted themselves
to introduce system and organization and improve methods needed to
cope with the business with which the prosecutors' offices are now con-
fronted. Struggling with a huge volume of work, and hampered by rigid
Unes imposed by law or by traditions of independent action on the part
of assistants, who are coordinate rather than subordinate, it is no wonder
that prosecutors in Cleveland have shown little initiative in adapting
their offices to the work to be done and have not risen to the few oppor-
tunities that have been left open to them. The same situation of inde-
pendent and unsupervised action of assistants is to be seen in many cities.
Everjnvhere it produces the same results. It was much in evidence in
the recent proceedings against a prosecuting attorney in metropolitan
Boston.
(4) Naturally, as we have seen already in police administration, the
conditions just discu-ssed, coupled with division of power and diffused,
ill-defined responsibihty, have given rise to a tendency to make of prose-
cution a perfunctory routine — a tendency which is destructive of effi-
ciency. In the municipal prosecutor's office this is strikingly manifest
in the purely negative role of the prosecutor in trials in the municipal
court,' in the perfunctory preparation of cases,^ in the perfunctory draw-
ing of affidavits which often results ultimately in throwing out the case
before the grand jury or nolle prosequi because the offense charged does
not correspond to facts provable,' in the perfunctory acquiescence in
' Report on Prosecution, p. 119. ' Ibid., p. 163. » Ibid., p. 114.
« Ibid., pp. 138-139. ' Ibid., p. 139.
[623]
suspension or mitigation of sentence/ in the former laxity as to enforce-
ment of bail bonds/ and in the perfunctory attention or lack of attention
to the execution of sentences.' When we remember that admittedly there
is much more than enough work for the whole force of the prosecutor's
office to do, the perfunctory presence of an assistant in court in cases in
which there is really nothing for him to do* is a conspicuous example of
how a routine may develop which involves waste of power, precludes
efficiency, and prevents reahzing of the possibilities which exist even in an
outworn system.^
In the county prosecutor's office there are many examples of the same
tendency, such as perfunctory preparation of cases which, under the cir-
cumstances of today, amounts to no preparation,* perfunctory observ-
ance merging into non-observance of the rule as to reasons for noUes,'
the former laxity in watching bail proceedings,' laxity in the require-
ments of statute with respect to mitigation of sentence,' laxity as to the
rule requiring that the court be furnished with a list of known criminals
against whom prosecutions are pending,^" perfunctory examination of
trial jurors,'' and laxity in following cases to the appellate court. '^ This
tendency to make important features of prosecution into a mere per-
functorily followed ritual is destructive of efficiency and explains much
in the "Mortality Tables" in Mr. Bettman's report."
(5) More fundamental and more serious is the division of power and
diffused, ill-defined responsibiUty which we have seen already in police
administration. This is especially clear in the office of the municipal
prosecutor, and its results are manifest in Chapter II of the report on
Prosecution. In the first place the municipal prosecutor has no real con-
trol of his own office. His assistants are appointed by the director of law.
But the latter devotes his attention almost exclusively to civil litigation
of the city. Hence the assistant prosecutors are substantially without
executive control or supervision, and each pursues his own policy or lack
of poUcy, his own interpretation of the law, and his own methods.'* With
no real records to act as a check, in that, in contrast with the practice in
civil cases, the records and files do not show who acted in any particular
case," responsibility for the wide powers of "no papering" and nolle
prosequi falls down between the prosecutor, the assistants, and the
' Report on Prosecution, pp. 140, 141. « /{,i^,^ p 155. 3 j^yj^^ pp. 152-154.
< Ibid., p. 197. ' Ibid., p. 204. » Ibid., p. 170.
' Ibid., p. 181. 8 Ibid., p. 184. « Ibid., p. 182.
"> Ibid., p. 17.5. " Ibid., p. 162. " Ibid., p. 187. " lUd., pp. 91-95.
" Ibid., p. 119. 16 Ibid., p. 131.
[624]
court.' The opportunities for sinister influence upon the admini-stration
of justice in the lax practice of " no papering " are apparent.^ No doubt,
with the small calendars of sixty years ago, reliance upon memory served
well enough. Today, when the number of Stat« cases "no papered" in
the municipal court is about one-third of the whole criminal calendar
of 1863, it is evident that the proceeding needs a check. But nobody is
responsible for providing an effective one. A like situation is disclosed in
the matter of accepting pleas of lesser offense,' and in the power of so
presenting or failing to present a case to the grand jury as to result in the
grand jury failing to bring in an indictment.* A result is to be seen on
pages 238 to 240 of the report on the Criminal Courts. A system under
which, in ten years, the same person can be before the courts from 10 to
18 times, largely on charges of robbery, burglary, and larceny, which
make it clear that he is a habitual or professional offender, and can escape
at least half of the time by discharge on preliminary examination, no
bill, nolle, plea to lesser offense, or suspended sentence, with no records
showing who is responsible, is nothing short of an inducement to pro-
fessional crime. Much has been said heretofore about the lack of proper
preparation in criminal prosecutions, which is in startling contrast with
the careful preparation of civil litigation in the offices of those who
practise in civil cases. It is to be noted that some of the most serious
features of this habitual unpreparedness on the part of the prosecution
flow from divided responsibility.^ Mr. Bettman's suggestion*^ that all
State cases be put in exclusive charge of the county pro.secutor from the
outset is the beginning of any effective improvement of prosecution in
Cleveland.
(6) Another legacy from pioneer or rural conditions which seriously
impairs eflficacy of prosecution is the assumption of versatility on the
part of the prosecutor's assistants, which is involved in a sj'stem of
choosing them on the basis of politics or of allotment among the differ-
ent racial groups, and then throwing the work of the municipal prosecu-
tor's oflice at them as chance dictates, with no distribution or specializa-
tion, presuming that they may all rotate from one sort of work to another
with satisfactory results. In the old days of small calendars, a small penal
code and a small body of standing ordinances, this assumption of versa-
tility on the part of the prosecuting officer was sound enough, for no great
versatility was involved. When, instead of one prosecutor to 60 cases,
there comes to be one to 318, it is another story.
' Report on Prosecution, pp. 143-146. • Ibid., p. 144. ' Ibid., p. 149.
« Ibid., p. 179. ' Ibid., p. 208. • Ibid., p. 209.
41 [ 625 1
(7) Again, in prosecution, as in police administration, it is no one's
business to study the functioning of the system, nor are there adequate
facihties open to those who are in some measure definitely responsible for
the initiation of better methods, whereby they may be able to rise to that
responsibility effectively. Such matters as modernizing the system of be-
ginning every petty prosecution with arrest,' or provision of stenographic
report of testimony at preliminary examinations,^ with which all students
of EngUsh prosecution are familiar, are left in the condition in which they
were seventy-five years ago because no one is definitely charged with the
responsibility of keeping the methods of prosecution abreast of the re-
quirements of the time and of the best which experience elsewhere has de-
veloped, and in large part the crude system of records and the absence of
any proper system of statistics of criminal justice do not enable the aver-
age prosecutor, however well intentioned, to form any adequate concep-
tion of how his office is, in fact, functioning.
Results of the foregoing defects in the prosecuting machinery in pro-
moting perjury and subornation of perjury,' in creating suspicion of the
whole administration of criminal justice on the part of those who witness
its operation,^ in affording opportunities for favoritism or corruption or
abuse or extortion,^ and especially in affording opportunities to the pro-
fessional defender of accused persons,^ are abundantly shown both in Mr.
Bettman's report and in Chapter III of the [report on the Criminal
Courts. One cannot insist too strongly that the remedy is not more
prosecutors or more patchwork tinkering along the lines of the past, but
rather organization, permanence of tenure, unity and continuity of
policy, and concentration of responsibility with commensurate power.
Along with these must go a cutting off of the unnecessary steps in prose-
cution and a pruning away of the excess of mitigating agencies which
have accumulated in the course of Anglo-American legal history.^
' Report on Prosecution, p. 202. ' Ibid., p. 203. ' Ibid., pp. 116, 203.
* Ibid., p. 113. <■ Ibid., pp. 207-208. » Ibid., p. 208.
' See report on Criminal Courts, Chapter III.
[626]
I
CHAPTER VIII
CRIMINAL COURTS
CRIMINAL courts in Cleveland show other phases of the picture
at which we have been looking in surveying police and prosecution.
Here again the pivotal point is that institutions originally devised
for rural or small-town conditions are failing to function effectively under
metropoHtan conditions. Here again a change in the character of the
community in which criminal justice has to be administered has been
treated as if no more were involved than an increase of population in
the same sort of environment. Accordingly, multiplication of judges
and patchwork adaptation have been the chief means by which to meet a
situation that calls for thorough reorganization. But there is much ex-
cuse for the present state of the criminal courts in Cleveland, in that or-\
ganization of courts is something of State concern, governed largely by
constitutional provisions, and it is by no means easy to educate the State
at large to the needs of modern cities when existing institutions are work-
ing well enough in the average localitj', where the conditions for which
they were framed still exist. Moreover, when growth takes place so
rapidly and the character of a community changes within a generation it
is not to be expected that the bar will appreciate at once the significance
of growth and change in relation to judicial organization and administra-
tion. The natural and desirable conservatism of lawyers will lead them
to seek to get along as well as may be with the institutions and legal
machinery at hand. It will be convenient to consider certain facts as to
the present functioning of the criminal courts in Cleveland under the
same heads already made use of in connection with police and prosecu-
tion.
(1) On the criminal side there has been little reconstruction since
the days when the system of courts was devised for a pioneer community.
The Municipal Court on its criminal side is still, in its traditions, its
methods, its modes of doing business, its records, and its whole atmos-
phere, a pohce court of a small town of the middle of the la-st century.
One notable improvement, namely, the doing away with two trials
on the merits in petty prosecutions by reviewing proceedings in the
Municipal Court on misdemeanors within its jurisdiction only for
1627]
errors of law, stands out conspicuously. For the rest, there are simply
more judges and more prosecutors. The Court of Common Pleas
still operates on the system, appropriate to the past, of periodical
terms of court with intervals between them. It is true that in Cleve-
land, as in all large cities where the system of terms is kept up, the
intervals between the terms tend to disappear and there tends to be,
in fact, a continuous sitting, except for a long vacation during the hot
weather. But the organization of the business of the court with reference
to terms still justifies in appearance the practice of preliminary examina-
tion and binding over to another tribunal which grew up to meet the exi-
gencies of a time when the intervals between the terms were longer and
the courts were sitting intermittently. Between these terms it was nec-
essary for magistrates to conduct preKminary inquiries, bind over
accused persons, and take the other necessary intermediate steps
which could not be taken in the court when not in session. Again,
the procedure of prosecution, good enough when there were 60 indict-
ments a year, becomes impossible when there are 2,700 a year. The 14
steps in a prosecution set forth in the report on the Criminal Courts '
have tended to increase rather than diminish in the endeavor to adjust
this machinery to the exigencies of criminal justice in a large city.
Tinkering instead of intelligent reconstruction, and addition of new
devices instead of simplification, have resulted in a cumbrous process
which affords many opportunities to the habitual offender and opposes
few checks to his doubtful activities.^
On the criminal side of the Municipal Court persistence of poUce
court organization and traditions and methods is particularly unfor-
tunate. The personnel of the bench appears to suffer in particular from
that tradition. For if a tribunal is commonly known as a "police
court," that fact is bound to affect the action of the pubUc in determining
what type of judge should sit therein. But, as is true in so many local-
ities in America today, it suffers especially from the subjection of judges
to pressure and the imposition upon them of a need of keeping in the
pubhc eye which is involved in the system of primary elections. As is
well said in the report on courts,' this attempt to "adapt the democracy
of the town meeting to a great cosmopoUtan population" has dis-
appointed the expectations of its authors. The real significance of this
failm-e is that the primary system attempted to deal with new situations
by tinkering old machinery; it took the elective bench, an institution of
> The Criminal Courts, p. 235.
' See Diagram 2, report on the Criminal Courts. * Ibid., p. 260.
[ 62S i
the middle of the nineteenth century, for granted, and proposed to insure
that more citizrn.s partiripated actively in the election. Everyone could
and probably did know the character and qualifications of the few con-
spicuous lawyers who were candidates for judicial office in the juflicial
district or of the rising young lawyers who sought election as police
magistrate of the small town of 1850. Under the circumstances of that
time the greater the number of citizens that voted, the more intelligent
the choice was likely to be. Today, when the average citizen of Cleve-
land can know the lawyers and judges only from what he chances to read
in the newspapers or as he chances to meet them in the course of litiga-
tion or in social activities, it is often true that the greater the number of
citizens who vote, the more unintelligent the choice.
Again, the physical conditions and decorum of the tribunal are those
of the old-time police court of a small town.' There is no segregation of
cases, for this was not needed in the old-time police court.'' The inade-
quate system of records is inherited from the police court and was good
enough for the police court of a small town.' The scanty attention to
cases which is so unfortunate a feature of the administration of criminal
justice in the Municipal Court* belongs to the days when the police
magistrate knew the town drunkard, as did all his neighbors, and could
dispose of the case of Huck Finn's father offhand, with the assurance of
one who knew. Today the method persists, but the personal knowledge
on the part of the court and of the community which assured that
justice would be done is no more. Without this check it results in oppor-
tunities for questionable influences in the case of real offenders, danger of
irreparable injury to the occasional offender, who is not able to com-
mand such influences, and in consequence a general suspicion of the
whole process which must affect the attitude of the public toward the
administration of justice, no matter how unfounded. Such things as
the shifting of cases from one judge to another, with no effective check
upon the manner in and the reasons for which it is done, grow naturally
out of the multipUcation of judges, making the court not an organized
entity, with systematized business methods, controlled by a responsible
head on an inteUigently determined policy, but a congeries of coordinate
tribunals, each proceeding as if it had before it its own small volume of
business, as if it had the intimate personal knowledge of the men and
things before it, and was subject to the check of general knowledge of
those men and things by the whole community which obtained in the
large town or small city of the middle of the last century.
' Report on the Criminal Courts, pp. 27S, 279.
» Ibid., p. 280. » Ibid., pp. 292, 293. * Ibid., p. 282.
[629]
To a less degree the same phenomenon may be noted on the criminal
side of the Court of Common Pleas. Increase of work has led to more
judges of coordinate authority.' There is no executive head. The judges
are free to have conflicting pohcies or to fluctuate in their policies."
Judicial approval in the case of nolle prosequi, which was effective in the
days of 60 indictments in a year, and may well be a real check in a rural
community or a small city, decays into an empty form.' The supreme
court of Massachusetts has recently pointed out that the court must
rely on the prosecutor in such matters under the urban conditions of
today, and yet the only check on the prosecutor is the scrutiny of the
court. The parole system, administered in a large city in courts so
organized, leads inevitably "to paroling in the dark."* It is assumed, as
was true enough in the old days of small calendars in rural conamunities,
that everyone knows or can know all about the offender. When the
administration of justice goes on such an assumption in a city of 800,000
persons, the situation discussed on page 325 of the report on Courts is
inevitable.
(2) Bad effects of lack of continuity in administration are equally
evident. If some rotation of judges is necessary, there is the more reason
why the courts should be so organized that the rotation shall not involve
fluctuation in policy, divergence in interpretation of the law on matters
where such divergence is easily preventable, fumbling methods while the
judge for the time being is acquiring experience of a new class of work,
and pressure to put off cases or shift them so as to get them before a
judge whose policies or methods are believed or suspected to be favorable
to or lenient toward the particular accused or one of his type. Such
things not only impair efficiency — they weaken respect for courts and for
the law. The judicial council, recommended by Mr. Smith,^ would go
far as a remedj% But the ultimate cure is in unification and thorough
organization of the court under responsible administrative leadership.
(3) Organization of courts is defective not only in that there are two
courts largely dealing with the same cases where one court could deal
with all much better, and because those two courts are made up of coordi-
nate judges, with no responsible directing agency, but even more in that
the lines are rigidly laid down by law and do not admit of the judges in
the large city doing much to meet the special problems that confront
city courts, even if they had encouragement to do so. It has been noted
that the mode of choice and tenure of judges are the same for rural and for
' Report on the Criminal Courts, pp. 299, 300. ' Ibid., p. 303.
' Ibid., p. 328. * Ibid., p. 326. ' Ibid., p. 369.
[630 1
metropolitan courts, although the environment that makes tliem work
well enough in the one case insures that they will work quite differently
in the other case. No less serious is the inability to use the personnel of
the court to the best advantage under a system constructed for times
when one judge in each local district could dispose of the relatively small
calendars. When business increased, more judges were added. But
when the number increases to a certain point waste of judicial power
comes to be likely, and this waste is a serious thing when business has
grown so as to tax the energies of the bench. Moreover, provision of a
probation department' and of a bureau of information,' required by
urban though not by rural administration of criminal justice, and many
things of the sort, ought to be within the powers of the judges when and
where they are needed, and ought not to be determined with reference to
the whole State by detailed provisions of general laws, as if the condi-
tions of city and country were invariably the same, or as if things not
needed in the latter should, therefore, be denied to the former.
(4) Tendency to perfunctory routine appears no less clearly in a
judicial administration than in police and in prosecution, and it is the
product of the same general causes. In the Municipal Court the casual
routine of preliminary examination and perfunctory practice as to bind-
ing over,' the perfunctory methods whereby a robber (afterward con-
victed) is released on bail, while his victim is in jail one hundred and six
days to insure his attendance as a witness at the trial,* the laxity as to
postponements and continuances, with its inevitable results in wearing
out prosecuting witnesses and enfeebling the administration of criminal
justice,' and the perversion of the motion in mitigation of sentences^ are
examples of what must happen in a large city until the courts are unified
and given a modern organization, and until responsibility and power are
definitely located and are concentrated. Similar phenomena are to be
seen on the criminal side of the Court of Common Pleas. Laxity in the
"passing" of cases, with resulting enfeebling prosecution,' the condition
of judicial helplessness in the matter of noUes, although 20 per cent, of
felony cases are disposed of by nolle prosequi,^ judicial helplessness in the
matter of parole,' where responsibility falls down between the court and
prosecutor, and the "blanket nolle,"'" with all its possibilities and oppor-
tunities for those who habitually represent accused persons," exist be-
' Report on the Criminal Courts, pp. 329, 330. • Ibid., p. 331.
• Report on Prosecution, p. 116. • Report on the Criminal Courts, p. 314.
' /bid., pp. 282-284. » /Wd., pp. 285, 286. ' /Wd., p. 304. ' Ibid., p. 322.
• Ibid., pp. 325, 327. '» Ibid., p. 329. " Ibid., pp. 322, 328.
(6311
cause the attempt to apply the methods and organization of the middle
of the last centm-y, with no continuity in administration, with a rigid
organization of coordinated judges and no defined and concentrated re-
sponsibility, has of necessity made vital steps in the course of criminal
justice a mere ritual under the pressure of a great mass of cases to be
disposed of without possibiUty of personal knowledge of the parties or of
the circumstances by court or prosecutor.
(5) Some ill effects of division of power and diffused and ill-defined
responsibiUty have been noted already. But this point calls for special
emphasis here, no less than in pohce administration and prosecution.
The Raleigh case* is not important because it was a farce. When we have
said that, we have said no more than is obvious to everyone. The impor-
tant thing is to know that no one in particular can be held responsible for
its being a farce. Again, the situation disclosed in Table 16 of the report on
the Criminal Courts, and discussed on the same page of that report, is not
merely serious in itself, but quite as much so because no one in particular
is responsible. The wide variation in the policies of coordinate judges,
shown on pages 305 to 309, is a serious thing. It is quite as serious that it
is no one's business to do away with it. Again, the hopelessly defective
system of records in criminal cases in the Municipal Court, disclosed in
the report on Prosecution,^ with its result in the absence of any real check
on the activities of hangers-on of the police court, is not merely bad in
itself, but even worse in disclosing what may happen in the administra-
tion of justice in a large city when it is left to direct itself and no one is
responsible for making and keeping it what it should be.
(6) Closely connected with the foregoing point is the want of pro-
vision for intelligent study of the judicial system in action and want of
any system of judicial statistics. There are admirable models here in the
English system of judicial statistics and in the statistics pubhshed by the
Municipal Court of Chicago. But all improvement in this respect de-
pends ultimately on provision of an executive head, with undivided
power and undivided responsibility.
When one considers the matters just discussed in connection with
what we have seen of the same sort in police administration and in
prosecution, it is easy to see why, without anyone in particular being
responsible, and even with conscientious, hard-working men in many of
the official positions involved, the system is "worked for weak spots"
by those who know how;^ to see why, without anyone in particular being
' Report on the Criminal Courts, p. 262. ' Report on Prosecution, pp. 120-132.
'Report on the Criminal Courts, pp. 238-241.
[632]
to blame, 23 per cent, only of those who are prosecuted are found or plead
guilty;' to see why it is that the slacker agencies of justice tend to ac-
quire the business at the expense of the stricter' — in short, to sec how and
why the whole system Icniis itself to manipulation.'
It is not necessary to repeat the recommendations in the report on
courts, but four of them call for special consideration.
One immediately practicable improvement is to eliminate unnec-
essary steps in prosecution. In State cases all the st^ps in the Municipal
Court and the grand jury ought to be dispensed with, reserving the
grand jury for those occasional situations where a special inquiry is nec-
essary for some particular reason. The grand jury has been done away
with in many jurisdictions, and the matter is no longer one of conjecture
or experiment. Only good results have followed from eUminating it as an
every-day agency. Moreover, the conditions of large cities make such
demands in the way of jury service that if the grand jury is done away
with as a regular feature of prosecution, pressure upon the petit jury
system is to that extent relieved. A practice which operates successfully
in 18 States need not be feared by the most conservative, and reUef of
prosecution from the burden of two preliminary investigations must
strengthen the administration of criminal justice.
Another important measure would be to curtail the use of jurors in
civil cases. We ask too much of busy citizens in our large cities when
under the conditions of business and of employment today we ask them
to serve upon juries and use juries habitually for everj' sort of legal
business. If, as in England, the civil jury was reserved for those cases to
which civil juries are best adapted — assault and battery, mahcious prose-
cution, slander and Ubel, breach of promise, and the like, where a certain
moral element comes into play — and commercial causes and causes in-
volving property were habitually tried by the court, it might be possible
to secure better juries in criminal cases. The situation disclosed in
Chapter XI of the report on the Criminal Courts compels us to reflect
whether we really achieve anything by our endeavor to preserve the
jury system exactly as it was one hundred years ago, and operate it as an
every-day agency of justice in a large city.
The civil jury is enormously expensive. Do we succeed in doing
enough by means of this time-consuming and expensive agency to make
up for the injury that we do to the effectiveness of the criminal jury,
which we must preserve? Sooner or later this question must be answered.
If we go on as we have been going, we may succeed only in breaking
' Report on the Criminal Courts, p. 242. » Ibid., p. 242. ' Ibid., p. 244.
(633)
clown the institution of the jury as anything more than a perfunctory
adjunct to judicial justice. Something of the sort has actually happened
in the case of the gi'and jury in more than one community.
Mr. Smith recommends the institution of a " public defender,"' and
his recommendation deserves careful consideration. For myself, I am
skeptical. It seems to me that the pubhc defender is called for chiefly
because of bad organization of prosecution, bad conditions in the prose-
cutors' offices, and a tendency to perfunctory routine there and in the
courts. In other words, lack of modern organization in prosecution and
in courts calls for a remedy, and, as usual, the remedy is sought in adding
another functionary instead of in dealing with the difliculty at its source.
Unless prosecution and courts are given an organization suitable to the
needs of the large city, I suspect that after the novelty wears off the
defender's office will begin to show the same phenomena as those shown
by the prosecutor's office throughout the country. If prosecution and
courts are properly organized, I suspect that no further official need be
provided.
Most of all, however, the bar and the public need to reconsider the
whole question of mode of choice and tenure of judges. What an inde-
pendent bench appointed for life can do for a situation not unlike the one
we have been studying in Cleveland is shown strikingly in the recent
removal of a district attorney in a district including part of metropohtan
Boston. Pohtical considerations that would have been a strong deterrent
in the courts of most States did not suggest themselves to anyone, and
the court proceeded with a thoroughness and decision in marked con-
trast to the helplessness and indecision and tendency to evade responsi-
biUty which are usually manifest in American State courts when habitual
or entrenched abuses are to be dealt with. Only one who has practised
under an elective short term judiciary and then seen an appointed judi-
ciary with life tenure in action can appreciate the difference. The adver-
tising judge, the spectacular judge, the judicial "good fellow," the judge
who caters to groups and organizations and identifies himself with racial
and religious or trade organizations, is simply unknown where the com-
mon-law tradition of an independent bench still obtains. Nowhere is
such a bench so much needed as in the large city of today. The recom-
mendations on page 276 of the report on the Criminal Courts ought to be
pondered carefully by all who seek better things in the administration of
criminal justice.
1 Report on the Criminal Courts, pp. 310-312, 368.
[634]
CHAPTER IX
THE BAR
THREE checks upon those who take part in the administration of
justice are relied upon in our polity to insure that the wide powers
which the law confines to judges and prosecutors arc properly used.
These are: (1) Professional training, traditional modes of thought, and
habits of decision with reference to principles on the part of the judge;
(2) the scrutiny of all proceedings by the bar; and (3) the records
which show fully what has been done, by whom and upon what facts. In
the case of the judge, his training in law is relied on to impel him to con-
form his every action to certain known standards. Professional habit
leads him in every case to seek such standards before acting and to refer
his action thereto. Again, every decision which he renders is, in the
theory of our institutions, subject to criticism by a learned profession,
to whose opinion the judge, as a member of the profession, should be
keenly sensitive. Moreover, every decision and the case on which it is
based are supposed to appear in full in public records. In the case of the
prosecutor, our polity relies on the scrutiny of his acts by the judge, on
criticism of his conduct of his oflRce by the bar, and on the records of the
courts which are supposed to set forth all that is done in the course of
prosecution and the case in which and papers upon which it was done.
No doubt, as in the case of all officials, public opinion informed by the
press is also relied upon. But in the nature of things this check can
have only a general operation and may not be relied upon with respect to
the details of every-day conduct of the administration of justice. So
much that goes on in courts is of necessity technical in character and in-
telligible in its true setting only to experts that the press and public
opinion must be ultimate rather than ordinary agencies for holding the
administration of justice to the right course.
It has been seen that in the case of the criminal side of the Municipal
Court and the office of the municipal prosecutor the records are such as
not only to afford no real check, but actually to cover up the facts and to
baffle the investigator. When added to this, instead of scrutiny of what
goes on by the entire bar, as in the old-time magistrate's court, where law-
[635 1
yers were few, were intimately associated, were primarily engaged in trial
work, and all knew what was going on in all the tribunals, a group of
professional criminal lawyers practise criminal cases and the bulk of the
bar know little more of what goes on in criminal justice than the public at
large, it is apparent that the checks upon which the theory of our institu-
tions reUes are ineffective and it may not be expected that the system will
operate as it should. Relying in theory upon the professional feeUng of
the bar and the scrutiny of official action and criticism thereof by the bar,
which were effective regulating agencies under different conditions, we in
fact subject prosecution to the sagacious scrutiny of professional defenders
of accused persons, who study the weak points in the system and learn
how to take advantage of them. In theory the lawyer is an officer of the
court, assisting the criminal court to do justice by seeing that the case of
the accused is fully and properly presented. Instead, we are not unlikely
to find an astute, experienced player of a pohtico-procedural game,
whereby the course of criminal justice is systematically obstructed or
perverted. How the numerous steps in a prosecution — the division of
responsibility between two prosecutors, the imperfect records of the
Municipal Court, and want of continuity or consistent policy in adminis-
tration— lend themselves to his activities is shown in the report on
the Criminal Courts. ' The disclosures in the recent case in which a dis-
trict attorney in metropolitan Boston was removed by the supreme court
of Massachusetts showed a similar situation there. No projects for im-
provement will achieve much unless they take account of the relation of
the education, organization, and disciphne of the bar to the several diffi-
culties with which criminal justice must contend.
Want of education, want of organization, want of discipline of those who
are habitually most active in defending accused persons in our large cities,
are conspicuous and significant facts. But they are especially significant
when looked at in connection with what we have discovered already
with regard to pofice prosecution and courts. So looked at it becomes
evident that the present-day condition of that part of the bar which prac-
tices in criminal cases in our large cities is only a phase of a general situa-
tion, which has grown up in the transition from a pioneer rural society to
an industrial m-ban society.
For one thing, no intelligent reconstruction of the profession has come
with the profound change in environment. Two important steps forward
have been taken. Bar associations have been organized and admission to
the bar has been committed to the supreme court and conditioned upon an
• Report on the Criminal Courts, pp. 284, 285.
1636)
examination conducted under the auspices of that court, instead of being
left to the local courts. Each of these stops has groat possibilities and
each has already achieved something. But neither has done all that
might have been done nor may either, as things are, do all that needs to
be done. Except for these two steps — chiefly important in their po.ssibil-
ities — education, organization, and discipline of the bar are the same in
the metropolitan and cosmopolitan city of today as in the homogeneous
small-town or rural community of the past. For example, in 18G0 train-
ing bj" way of apprenticeship in a lawyer's office might well have been an
ideal mode of preparation. Daily contact with an upright and experi-
enced lawyer introduced the .stuilent to the very spirit of Anglo-American
law, and the highest professioniil conceptions as handed down in the com-
mon-law traditions. Today lawyers with whom such daily contact would
be profitable are too busy to look at students, and their offices are so
crowded with business that no effective study of the old tj'pe is possible
therein. We have the testimony of a committee of the American Bar As-
sociation, headed bj* Elihu Root, in a report approved by that association
at its last meeting, that studj- in the ofiice of a practising lawyer under
the conditions that obtain in our cities today can be no real legal educa-
tion. Mr. Kales' report on Legal Education in Cleveland shows that in
this community certificates of study under a practising attorney are used
chiefly in order to enable persons who have prepared in some other way
and have not qualified in that way to bring themselves withia the pur-
view of the rules. In cities this mode of training has ceased to be more
than perfunctory, and permission to quaUfy in this way is an invitation
to evade such standards as there are. Again, organization and disci-
pline in a bar of over 1,400 members are very different things from what
they were in a bar of some 60 members. Yet the methods are essen-
tially the same for the heterogeneous membership of 1,400 in the metro-
politan city as for the homogeneous bar of 50 or 75 in the large town of
the past.
Here, also, the tendency to develop a perfunctory routine is e\'ident,
and it has operated to deprive the improved method of admission to the
bar of much of its potential efficacy. Thus the general attitude of law-
yers in the matter of certificates of study under their direction, their
willingness to make such certificates, even where there has been no pre-
tense of actual study in their ofiices or under their super\'ision and their
disposition to treat such certificates as formalities, are in part a survival
of ideas from pioneer times and in part a result of lack of any conscious
responsibility for the condition of the profession. Likewise the laxity of
bar examiners is attributable to the same causes. Both of these phe-
(637 1
nomena are of general occurrence throughout the country. When every-
one at the local bar knew the candidates and knew in whose offices they
had been studying, what their antecedents were and what they had been
doing, certificates and examinations might well be thought matters of
form and disregarded in the same spirit in which the pioneers discarded
the pomp and ceremony of court etiquette and even the more important
items of dignity and decorum. Sm^val of that spirit in the bar of a
cosmopolitan city serves to recruit the ranks of the police court lawyers,
well known in all our large cities. Lack of interest in professional educa-
tion on the part of the bar is a serious factor in the ineffectiveness of
criminal justice. Where large numbers of persons of foreign birth or
foreign ancestry come to the bar — as they should do, for every element
in our population should bear its part in the administration of our
democratic and legal pohty — there is peculiar need that they have the
best education which we may afford them. Yet, as a rule, those who
most need it have the least. Whereas they need to learn the whole spirit
of our institutions, they are likely to get no more than a superficial course
in the practical details of what goes on in the courts. The need of such
persons for general education, for professional education, and for per-
sonal contact for a sufficient period with lawyers who know the traditions
and spirit of Anglo-American law and of the legal profession as our legal
institutions presuppose it, is peculiarly great. Yet none of these things is
possible when a person of foreign birth works eight hours a day for an
employer and at the same time attends a night high school and a night
law school. If we put the period of employment at eight hours and the
period required for high school study and study of law at the minimum
of six hours each, it means that, if justice is done to all three, the student
is putting in twenty hours of work each day for six days in each week.
Under the circimistances which obtain in Cleveland, where the night law
schools and the night high schools alternate in instruction, each giving
three nights a week, if we put the minimum of time spent in recitation
and in study at six hours for each during the three days respectively
devoted to high school study and to law study, the result is that the stu-
dent would devote fourteen hours of each twenty-four for six days of
each week to his work. One need not say that this is not and cannot be
done. When such things are attempted or pretended, we may not expect
that the students will understand a system of law and of legal and politi-
cal institutions wholly different from that in which they or their parents
and associates were brought up. Such students need more contact with
lawyers of high ideals than the ordinary student for that same reason.
But none is possible in any effective way in a three-year night course of
[638]
three nights a week when the student is at the same time working all day
for an employer and pursuing a high school course on alternate nights.
More than 40 students are known to have been preparing for the bar in
this way in Cleveland last year.
It is not controversial that the standard of the night law schools in
Cleveland is in important respects below the staiulard of such schools in
other cities of the size of Cleveland, and very much below what it ought to
be. The night schools in Cleveland require of the student si.x hundred
and forty-eight class-room hours as against one thousand and eighty, the
minimum in the day schools. Note what this means in the one matter
of criminal law and p)rocedurc. One of the Cleveland night schools gives
twenty-six class-room hours to this subject; the other gives thirty. On
the other hand, not to go outside of Ohio, the three admittedly first-class
schools, Cincinnati, Ohio State, and Western Reserve, give to that sub-
ject seventy-two, seventy-two, and ninety hours respectively. Yet it is
more than likely that the student with one-third of the legal training will
be the one who will practise in the criminal courts. With one exception
the night schools in Cleveland teach only the subjects required for the
bar examination. They have inadequate Ubrary facilities and their stu-
dents have no time to use libraries if such facilities were at hand. But
this means that they have no time to read the books that every lawyer
ought to read if he is to form an adequate conception of his duties and of
the system of administering justice of which he is to be a part. For few
have time to read such books after admission. These things are not the
fault of those in charge of the night schools. They arise from a practical
situation in which standards are governed not by what ought to be re-
quired, but by low requirements for admission to the bar, loosely ad-
ministered, and by competition for students.
It is noteworthy that 85 per cent, of those who apply for examination
pass the Ohio bar examination, whereas in New York 42 per cent, pass
(on an average for the past ten years) and in Illinois 62 per cent, (on an
average for the past nine years). The night schools in New York and in
Chicago require more hours of attendance and are in no wise inferior to
those in Cleveland. There is no reason to suppose that the difference
between Ohio and the States named is due to any cause other than a
relatively low standard in the examinations. Some philanthropist
might endow a night law school which could then run without regard to
competition, and could take for its object to give the best possible legal
education for students who must attend at night, rather than merely to
prepare for bar examinations. Unless this is done, the only practicable
remedy is to raise the standards for admission and thus enable the night
[639]
schools to exact a reasonable education. Mr. Kales' recommendations
as to improved standards for admission are conservative and imme-
diately practicable, and even this minimum ought to result in marked
improvement in the quality of those who are admitted to the bar. Spe-
cial attention should be called to Mr. Kales' recommendation of exercise
of visitorial powers by the bar examiners or a committee of lawyers under
their direction. If the work of visiting the law schools is done thoroughly
and intelligently, the resulting understanding of each other's aims and
methods by law schools and bar examiners will produce good results.
Education must be followed by organization and discipline. The sub-
ject of organization is complicated by the difference in conditions be-
tween city and country, and the notion that one hard and fast scheme
must be made to serve both. The possibihties of corporate organization
have been shown abundantly in the experience of incorporation of the
lower branch of the profession in England. Bar associations may do
much. Yet membership in them is voluntary, and the officers and com-
mittees of these associations are busy men, whose primary responsi-
bilities are to their clients and who can give but a residue of their energies
to professional discipline. What they can do after the event is shown
by the vigorous action of the Boston Bar Association in presenting
charges against a district attorney and seeking his removal, and in pro-
ceeding for disbarment of practitioners in the criminal courts whose
activities have become notorious. But there ought to be professional
agencies for dealing with such things before they become notorious, and
before their notoriety breeds disrespect for law and for the courts. The
plan of the American Judicature Society for corporate organization of
the bar deserves to be studied and pondered by all lawyers who have the
good of the profession and the improvement of the administration of
justice at heart.
It is easy to say that the bar has a large responsibiUty, both to im-
prove itself and to improve the whole administration of criminal justice.
When one looks beneath the surface, however, he soon sees that there is
no bar to hold responsible in any real sense. There are 1,400 lawyers.
But 1,400 lawyers of all sorts, of the most diverse antecedents and the
most divergent interests, practising in a city of 800,000 inhabitants
drawn from every part of the earth, do not constitute a bar except in
name. Nor can those lawyers who, by their standing in the profession
are in a position to lead, be held responsible. The legislature has control
of standards of education and admission. The courts have control of
disciphne. In each case, as things are, political considerations and the
timidity that goes with short tenure and choice by primary election pre-
[MO]
elude decisive action and result in occasional spasmodic efforts, with long
intervals of apathy. The real responsibility upon the leaders of the pro-
fession is one of perceiving the situation, of studying what has boon done
elsewhere to meet like situations, and of intelligently considering the
projects which have been proposed in order to make the bar an organized,
.s«'lf-governing, responsible entity, instead of a mere collective name for
1,400 money-getters, each following his own interests. When it is
deemed a sufficient answer to a proposal for incorporation of the bar to
say that "lawj-ers are as honest as other people," the lawyer is inviting
the unintelligent and destructive application of the legislative steam
roller by the layman, which always comes eventually when he refuses to
put his house in order inteUigently on his own motion.
42 [641
CHAPTER X
PENAL TREATMENT AND CORRECTIONAL INSTITUTIONS
MANY aspects of correctional institutions in Cleveland make a
bad impression on one who has studied the subject of penal
treatment and has formed some scientific conception of what
such institutions should be in order to achieve what is demanded of them
in the sight of today. But here again one cannot but see that rapid
growth and persistence of ideas and methods appropriate to conditions
only outgrown yesterday, as it were, are chiefly responsible. As one
reads Mr. Lewis' report he soon recognizes certain common points that
run through the conduct of all the institutions examined.
(1) There is no proper segregation of the inmates. At the city jail
there is no grading or segregation except according to sex, and with
respect to whether or not the case of the accused has been disposed of
judicially. At the Warrensville workhouse the prisoners are habitually
thrown together, more or less indiscriminately. At the countj^ jail
prisoners "mingle indiscriminately" during the exercise periods. At
the Detention Home there are no adequate means of segregation. In
other words, nothing adequate is done in these institutions to prevent
them from operating as seminaries or breeding-places of more crime.
All this belongs to the old-time town lock-up and old-time county jail,
and is a survival from the conditions of the past. As is true in most
localities, the city jail shows tiiis most noticeably. The careless and
indifferent handling of prisoners in that institution is something with
which the student of our penal methods becomes but too familiar. What
can happen in such institutions to innocent persons is unhappily illus-
trated by the two extreme cases in Chapter I of Mr. Lewis' report. It
is humiliating to think that such things are far too common in cities of
twentieth-century America, and nothing could point more eloquently
to the need of responsible and effective administrative supervision and
of unified administrative organization, which alone can assure such
supervision — a need which is apparent on every hand in the administra-
tion of criminal justice in large cities.
(2) Again, records are almost invariably inadequate for the require-
ments of today. In the city jail the only record is a jailer's docket,
[642]
containing the name of the prisoner and the charge. The Warrenaville
workhouse has no proper records, and reliance is had on memory rather
than on records, with unfortunate results for the system of parole.
The records of the county jail arc inadequate. There are no proper
records in the Girls' Home at Warrensvillc. The same reliance on
memory is to be seen in connection with parole, and probation work also
is handicapped by crude and unsatisfactory records. Here again we
have a survival from the time when no records were needed such as we
must have in order to deal effectively with the crowd of dehnquents
who pass in and out of the correctional institutions of today.
(3) Lack of administrative system is general. It begins at the top,
in the failure to develop any machinery to permit the Director of Public
Welfare to exercise adequate control over the different divisions which
are supposed to be subject to his authority. A mere paper federation of
divisions and bureaus with no administrative cohesion and functioning
only as an agency of suggestion to the chiefs of divisions and superin-
tendents cannot be expected to accomplish results of moment. Ex-
amples of this lack of administrative organization and system in par-
ticular institutions are to be seen in the Warrensvillc workhousjc, where
each officer is a power unto himself, and in the Girls' Home at Warrens-
ville. They are to be seen especially in the crude and undeveloped
sj'stem of parole, where the results are serious. Results of lack of
organized administrative control and definitely located responsibility
may be seen in the absence of any modern system of receiving prisoners
and eHminating vermin at the Warrensvillc workhouse, in the lack of a
modern system of identification at that institution, and in the idleness
and demoralization there. They are to be seen also in the inadequate
training of guards at the county jail and in the lack of suitable employ-
ment or directed recreation at the Detention Home. Most of all, and
most unfortunate in its consequences, want of organization of adminis-
trative agencies is making nugatory and injuring public confidence in
the most promising of American discoveries in penal treatment. There
has been much just complaint as to parole and probation in Cleveland.
But who is to be held responsible for the utterly inadequate staff of
parole officers, overwhelmed with work and unable to give proper time
to probation? Who are responsible for the utterly inadequate clerical
facilities for this work? Instead of deahng with this matter at the root
by modern administrative organization, the legislature enacts a statute
which is a distinct step backward, with the result that what ought to be
done by modern methods by a thoroughly organized and responsibly
supervised system of probation, is left to executive clemency, which
[643]
ought to be reserved for occasional and exceptional cases. The dis-
cussion in Chapter IV of Mr. Lewis' report should be read and pondered.
But here, as elsewhere, the pivotal point is thorough organization of the
administrative agencies of criminal justice, so that such matters may be
studied intelligently before mischief occurs, and someone may be held
distinctly responsible if mischief is not prevented.
How completely the administrative and the judicial are interlocked in
criminal justice is illustrated in the case of probation. The judges,
finding that they cannot rely on the inadequate staff of State parole
oflScers to make the painstaking investigations which the probation
system demands, attempt to do the work of individuahzation themselves.
But they have no means of doing it intelligently, and the consequent
fluctuation and vacillation in the disposition of cases injure respect for
the courts. The courts are forced to attempt work that belongs to a
correctional system after the tribunal is through with the accused; but
they have more than enough to do in their own province, and the results
are necessarily unfortunate. Organization of all the administrative
agencies of justice is imperatively required in order to make this essential
part of criminal justice function as it should. While this organization of
administrative agencies is coming, Mr. Lewis' recommendations will do
much to improve correctional measures and to pave the way for better
things.
A much brighter picture is presented by the Juvenile Court. Here
again the court is handicapped by too small a staff for a tribunal handling
over 4,200 cases a year. Here also legacies of the past are to be seen in a
tendency to trust too much to memory of details, in inadequate records,
in some waste of administrative power, and in some lack of coordination
with other agencies. But these are of minor importance. It is evident
that the central difficulty is that, because of rapid growth of population
and of special conditions making for juvenile delinquency, the volume
of work has increased far beyond existing faciUties for dealing with it
properly. The court itself, with an ampler budget and a larger staff,
is equal to making the needed improvements on its own initiative.
&14
CHAITEU XI
THE UTILIZING OF MEDICAL SCIENCE
THERE is much reason for the backwardness of criminal justice
in taking advantage of the enormous strides made by medical
science in the last generation. Things have moved so rapidly
that, even if the courts had not been struggling with a steadily increasing
volume of business and the continual need of new adaptations to condi-
tions of transition from a rural to an urban society, it would not have
been easj- to keep up with the march of knowledge and the rise of new
methods in medicine, in psychologj', and in psychopathology. But the
judicial system has not been so organized as to be able to take advantage
of these things in any systematic or effective way in any event. All the
phenomena that we have observed in connection with police and prosecu-
tion and courts and penal treatment stand out in this connection also.
(1) There has been no intelligent reconstruction of the medical side
of criminal justice, but only patching and tinkering and addition of more
oflBcials, without giving them organization or responsible supervision or
coordinating their activities. Each court and each administrative
agency which has seen the need of better expert medical assistance has
gone about the matter in its own way to do what it could with the means
at hand. Thus all that has been done has been done in an unrelated
fashion, with resultant overlapping, with important gaps unattended
to, and consequent ineffectiveness. In some part this is due to a sur-
vival of the old-time notion of punishing the \-icious willed. Practically
no use is made of medical, and especially of mental, treatment in dealing
with adult offenders, except in the occasional obvious case. The old
attitude of faith in the efficacy of strict discipUne and rigorous punitive
methods makes us slow to realize the need of individualization, the need
of inteUigent study of the person we are dealing with, in all cases of cor-
rectional treatment under the circumstances of today. This has come
to be recognized in connection with juvenile courts. But it is needed in
all cases in order to make the work of the courts and of administrative
officials after conviction intelligent and effective. It cannot be said too
emphatically that this is not a matter of sentimentality or of mushy
humanitarianism. It is a practical matter of saving the expense in-
1645)
volved in bungling efforts to deal with pathological cases by methods
de\'ised for the wilful wrongdoer and of insuring effective handling of
criminals instead of futile attempts to deal with crime. Experience
where courts and psychopathic hospitals have worked together intelli-
gently has demonstrated that an actual saving of expense is possible if
such agencies are properly organized in relation to court and the prose-
cution, are used in the initial stages of a prosecution, and are employed
systematically and as a settled policy. Prevention is especiallj' a
matter for medical science, and preventive justice is the weakest side of
our system. Examination of children before delinquency develops,
instead of afterward, intelligent disposition of socially incompetent and
delinquent types when they first appear in petty cases in the Municipal
Court, before they commit major crimes, and investigation of the mental
condition of all those prosecuted in the Court of Common Pleas before
indictment, or, at least, before sentence, are things for which adequate
provision ought to be made and might be made almost immediately.
Nor is addition of an expert here and one there, the setting up of a bureau
or laboratory here and another there, the real remedy. Proper utiliza-
tion of medical science in the administration of criminal justice is a part
of the whole problem of organization of courts and organization of the
administrative agencies of justice.
(2) Lack of continuity in administration operates also to prevent
thoroughgoing employment of the results of modern medical science
anj'where in the course of crmiinal justice. In general, Dr. Adler's
study shows that officials to whom these things are committed are ill
equipped for constructive work, and the occasional exception makes the
rule more marked. Cleveland is fortunate at present in a coroner who
is doing well under antiquated conditions, and gives an example of the
best that we may expect from conscientious officers under a bad system.
But he is elected for a two-year term, and the public cares little about
who is chosen or how he conducts his office. A change might occur at
any time which would alter the whole character of the office. Moreover,
even when administered as well as it can be, and, indeed, better than the
people have reason to expect, it falls far short of what ought to be and
could be done with a proper administrative organization. Dr. Adler's
recommendation that the office of coroner be abolished and an office of
medical examiner created, as in New York and in Massachusetts, is
justified by the experience of those two States, and should be followed.
In a city as large as Cleveland it is unsafe to entrust the work that now
devolves upon the coroner in connection with criminal investigation in
homicide cases to anyone but a highly trained and exceptionally compe-
[WG]
tent pathologist and medicolpgal expert. In the general run of things
no such person will Ix- secured for an elective short-term office, open to
anyone who happens to be a physician.
(3) Rigidity of organization is noticeable here as elsewhere. The
police, the coroner, the prosecutors, the Probate Court, the Juvenile
Court, and the criminal side of the Court of Common Pleas have each
their own way of securing and using medical expert a.ssistance.
(4) Also a consequence is seen in a tendency to perfunctory routine.
This is illustrated strikingly in the coroner's records. Perfunctory
entries taken from the records and set forth in Dr. Adler's report show
that the existence of records is wasteful, and, ind(>ed, investigation by
the coroner is wasteful if the records are so kept and if the records truly
reflect the actual investigations had.
(5) Division of power and authority and consequent diffused, ill-
defined responsibility, both for effective work and for utilizing the results
of medical science, arc in evidence everywhere. The police department
has a police surgeon, but his position is inadequately provided for. He
has too many men to examine and his equipment is insufficient. The
staff of the coroner is appointed by the county commissioners, and their
tenure is subject to the pleasure of those officials. The coroner has no
power over them. He is responsible to the people at the next election.
His assistants are responsible to the county commissioners. It is no
wonder that the work of the office, even under a good incumbent, is
often perfunctory. Again, a special constable is attached to the coroner's
office who has large discretion as to what witnesses to subpoena at an
inquest. It appears that selection of witnesses usually depends on his
judgment. These are large powers in cases where homicide is suspected,
and go with little responsibility. Jurisdiction over lunacy and feeble-
mindedness is in the Probate Court, which has no special experts, no
equipment for such ca.ses, and is in no position to make any selection of
cases or to coordinate its work in such matters in any way with the ad-
ministration of criminal justice. The defective delinquent may come
before the Municipal Court for violation of a city ordinance or before
the Court of Common Pleas for a felony, or before the Probate Court to
be adjudged a lunatic, and each tribunal will look at his case from its
own special angle. This is wasteful as well as ineffective. In the end a
system of examination and observation of all cases at the outset would
save money as well as insure intelligent handling of the case, as has been
demonstrated wherever it has been tried.
(6) Nowhere is the pioneer assumption of versatility so out of place
as in the relation of medical science to the administration of criminal
justice. The days have gone by when one physician is Hke another in
such matters. Physicians no longer take all medical knowledge for
their province. Only responsible and systematic organization of the
administrative agencies of justice, with secure tenure for the expert
subordinates, can insure the sort of medical assistance which the ad-
ministration of justice in criminal cases now calls for at every step. To
merely prescribe that this or that independent elective functionary or
assistant appointed for a term be a physician assures nothing.
(7) Nowhere, also, is provision for constant intelligent study of the
system of criminal justice and the possibilities of making it effective
more called for than in the present connection. The importance of
prevention of crime, rather than of punitive methods afterward, the
whole problem of dealing with criminal behavior at its source, the im-
portance of mental hygiene, the question of mental-health stations for
juvenile cases — these things and many others will press for consideration
by a responsible administrative head of a properly organized system of
criminal justice in the modern city. They will be urged in medical
associations and discussed in scientific periodicals. But the discussions
will bear no fruit until it becomes someone's business to be vigilant in
seeing to it that the best means that are at hand are intelligently sought
for and intelhgently made use of in the administration of public business,
even as in the conduct of private business.
648
CHAITER XII
GENERAL CONCLUSIONS
CERTAIN immediate improvements are practicable. The details
will be found in the several reports, where they are discussed at
length and reasons arc given. I shall do no more than sum up
what seem to mc the salient points.
(1) Mr. Fosdick's recommendations for separation of the poHce
from the department of public safety; for a director of police, a single,
civilian, administrative head with undivided authority and responsibility,
charged with laying down policies and devising programs of police
work and with seeing to it that his policies and programs are carried out
by his subordinates; for committing the subject of promotions and
disciphne to the director of police, making use of the civil service tests
as minimum qualification standards; for a board of promotion; for the
use of motor equipment in regular patrol work, the establishment of
patrol booths, consolidation of police precincts, and reorganization of
patrol beats; for giving the director of police power to recruit detectives
from outside the poUce force by original appointments where it seems
advisable; for a special service division and for a secretarial division,
show the way to put this part of the legal treatment of crime upon a
modern and effective basis bj' means which are no longer experimental,
but have proved their eflBcacy in the experience of other cities.
(2) In the municipal prosecutor's office, provision of a managing
clerk, systematic organization of the work and coordination with the
other agencies of criminal justice in Cleveland, and, above all, control
of the assistants and subordinates, and consequent responsibility for
what they do and what they fail to do; in the county pro.secutor's office,
control of the assistants, firmer and more intelligent organization of the
business, sj'stematic modern methods of criminal investigation and pre-
paration of cases, ajid, above all, continuous and systematic coordination
of the work of that office with that of the police, municipal prosecutor,
the administrative agencies of the courts and the courts themselves,
together with the laying out of policies and organized supervision to see
that they are carried out — all these things are immediately feasible im-
provements which will accomplish much. The further step of turning
1649]
over the whole course of a State prosecution from the beginning to the
county prosecutor should come next.
(3) In the Municipal Court systematic, intelligent segregation of
business upon the trial calendars, orderly handhng of the cause list, with
an established policy as to transferring cases from one session to another,
a proper system of records, better methods with respect to order and
decorum, stenographic records of testimony in binding over cases and in
misdemeanors in which habitual, professional crime or commercial vice
is involved, and better methods in the despatch of trial business, insuring
sufficient attention to each case to assure a just and inteUigent disposi-
tion of it; on the criminal side of the Court of Common Pleas, abohtion
of terms of court, provision of a permanent executive head to guide the
administrative work, give continuity and uniformity to policies, and
insure more intelligent and systematic use of the personnel of the court
in the disposition of its business and provision of an adequate probation
department, with modern facilities — these are measures of immediate
improvement which are not in any wise speculative, for which we may
vouch experience in other jurisdictions. The next step should be a
unified court, to be secured by transferring of criminal business to one
court.
(4) In criminal procedure, beginning of prosecutions by summons
rather than arrest in case of minor ofTenses, abolition of the grand jury,
simplification of the bail system,' regulation, if not abolition, of the
"no-papers" practice, — which is not known to common law nor to
legislation, — provision for requiring written statement of reasons for
"no papers," nolles, and acceptance of pleas of lesser offense, participa-
tion of the prosecutor in proceedings in mitigation of sentence, and a
clear policy with respect to new trials, are feasible improvements about
which, in the Ught of experience elsewhere, there can be no real contro-
versy.
(5) With respect to the bar, abolition of admission to take bar
examinations on certificate of study under a practising attorney, require-
ment of at least a four-year high school course, to be completed before
beginning the study of law, as a necessary preliminary education;
requirement of a minimum of class-room hours per week in all law
schools, day or night, so as to insure that the time devoted to study in
night law schools is at least approximately that required in standard day
schools, and visitorial supervision of law schools and of private schools
giving preliminary education to law students by the bar examiners or
'Report on Prosecution, p. 212.
f 650 1
under their auspices — this is a minimum program, less than that adopted
by a six to one vote at the last meeting of the American Bar Association,
and one to which the present proprietors of night luw schools in Cleve-
land entirely agree. Ultimately, the bar should urge the standards
recommended by the American Bar Association. For the rest, the Bar
Association may and should lie.-^tir itself to rid the profe.s.sion of an ele-
ment active in criminal ciuses which brings the profession and the law
into disrespect. This is a difficult and thankless task, and demands
much sacrifice on the part of the bu.sy, high-minded, public-spirited
leaders of the bar. But it is the only resource until corporate organiza-
tion of the profession provides a continuous agency for enforcing disci-
pline and insuring adherence to proper standards, acting on its own mo-
tion, and responsible for maintaining the conduct of the profession at a
high level.
(6) More adequate facilities .should be provided for the juvenile
court.
(7) The opportunities of the office of Director of Public Welfare
should be emphasized, facilities should be given that officer for rising to
tho.se opportunities, and the public should then demand that he do so.
(8) A statute on the lines of the New York Indeterminate Sentence
and Parole Law should replace the present statute in Ohio, which is a
typical product of hasty legislative striking in the dark at eviLs that are
attracting public notice for the moment.
(9) The office of coroner should be abolished and a medical examiner
provided, following experience of the wisdom of this change in New York
and Massachu.setts.
But these immediate measures of relief will not insure a continuously
efficient functioning of criminal justice as something permanent, going
on automatically after the excitement of the moment has gone down.
Perhaps nothing will do so entireh'. So far as these things can be in-
sured, we must look to unification of pohce administration, with undi-
vided authority and responsibility under a director with permanent
tenure, dependent only on results; to unification of the prosecuting
agencies, with permanent tenure and undivided authority and responsi-
bility; to unification of the courts and organization of judicial business
under a responsible administrative head; to unification and organization
of the administrative agencies of criminal justice under a responsible
administrative head with secure tenure; to the incorporation of the bar,
with provision for responsible disciplinarj- agencies; to adequate provi-
sion for legal education, and, above all, to the taking of the bench out
of politics and restoring the common-law independence of the judiciarj',
1651]
preferably by returning to the system of judges appointed for life or good
behavior, or, at least, by some of the alternative plans proposed in the
report on courts. These things must come slowly. The bar should be
thinking of them and studying them, for in the end the convictions of the
bar in these matters will be decisive. In the formative period of our
institutions faith in the efficacy of intelligent effort enabled Americans
to make over the institutions of mediaeval England, as they came to us
in the Colonial period, into a modern, workable system for pioneer rural
communities in a new world and in a wholly changed environment.
Relatively, our task today is the easier. Our judicial organization is
much better as a foundation on which to build than that which was left
to us by the Colonies, or than the eighteenth-century EngUsh organiza-
tion which was the only other model. Our law is better organized, more
accessible, and much more complete than that on which Marshall and
Kent and Story labored. The bar is better taught and in far better
public esteem than it was at the close of the eighteenth century. If
American lawyers of today have to face public suspicion, legislative
indifference to the demands of legal justice because of the more pressing
exigencies of politics, and the constant pressure of the advocates of
specious nostrums for the cure of all ills of the body-politic, the lawyers
of the end of the eighteenth century and beginning of the nineteenth
century had to face these same obstacles, and to face them with much
less effective weapons than those available to the lawyer of today. The
advantage which they had was a juristic optimism involved in their
faith that law was reason, and hence reason law, and their belief that by
sheer efforts of reason they could achieve a perfect system. A like faith
in the efficacy of effort, and a like ^determination on the part of the
present generation of lawyers to devote their energy and ingenuity to
making over the institutions of rural America for the predominantly
urban America of today, will achieve no less and will make the first half
of the twentieth century a classic period in American law no less truly
than was the first half of the nineteenth century.
1652:
I
APPENDICES
APPENDIX I
THE HISTORY OF THE SURVEY
By Raymond Moley
Dirrctor of th<? CleveUnd FouodAtion
THIS survey of criminal justice in Clevelanil wa.s authorized by
action of the Cleveland Foundation Committee on Januarj' 4, 1921 .
Field work was started on February 1 and was completed in June.
The reports were written and revised during the summer months of 1921
and were with one exception given to the public in September and Octo-
ber. A total of thirty-five staff workers were employed for various
periods of time during the progress of the work.'
The Cleveland Foundation and Its Work
The Cleveland Foundation, which conducted this survey of criminal
justice, was founded in 1914. The plan forthis, the first of the community
trusts, was formulated by F. H. Goff, and brought into existence by formal
resolution of the board of directors of the Cleveland Trust Company.
It provides a means for the distribution of bequests left by men and
women interested in the social welfare of the city of Cleveland. During
the early years of its existence its limited funds have been used for
comprehensive studies of the life and institutions of the community.
Two major surveys have been conducted by the Foundation, one on
public education in 1915 and 1916 and one on recreation completed in
1919. In addition to these the Foundation has conducted and published
the results of sc%'eral minor pieces of research such as the Cleveland Year
Book, an annual publication, and a Directory of Community Activities.
The Cleveland Foundation is governed by a committee, three of the
five members of which are chosen by the United States District Judge,
the Probate Judge, and the Mayor of Cleveland. Two are appointed
by the Cleveland Trust Company, the trustee of the funds of the Founda-
tion. Thus a majority of the governing board are chosen by public
oflScials and represent the public.
' A list of the members of the staff will be found on pages 662, 663.
1655]
The Origins of the Survey
The first demands for a survey of criminal justice came from the wel-
fare agencies of the city. In 1919 the Welfare Federation had a commit-
tee on delinquency, headed by Judge Carl D. Friebolin. This committee
was prevented by limited funds and inadequate equipment from carrying
on effective work but it clearly demonstrated the need for more informa-
tion. In December, 1919, the secretary of this committee. Professor C.
E. Gehlke, of Western Reserve University, proposed to the foundation
that it undertake a survey of the whole problem of delinquency, both
adult and juvenile. At that time there was prepared by Dr. Gehlke an
outline for a survey of the administration of Criminal Justice in Cleve-
land. From this first formulation the plan grew until it was decided
to undertake the work which was subsequently carried through along
lines laid down by the directors of the survey and their associates.
A survey of such a subject and upon so comprehensive a scale cannot
lightly be undertaken in any city at any time. Unless it has a reason-
able assurance of the support of a very considerable body of public
sentiment, a study penetrating so far into a field invested with intangible
and subtle influences cannot hope to succeed. Conditions were prob-
ably as unsatisfactory in 1920 as in 1921, but the public did not so pro-
foundly realize it. So the Foundation waited for a year for such a
sentiment to appear.
On November 10, 1921, Mayor W. S. Fitzgerald addressed a letter to
the Foundation asking that there be considered "a general survey of
vice and crime conditions . . . to be conducted without bias of any
kind and with the sole purpose of developing the facts"
A week later the Cleveland Bar Association, through its executive
committee, adopted a resolution requesting the Cleveland Foundation
"to conduct a survey of the administration of justice in Cleveland with
particular reference to the treatment of the offender, such a study to be
the basis of constructive measures to improve the machinery for the
administration of the law." It was resolved further that "the precise
scope of the survey and the selection of its personnel be left entirely
within the discretion of the Foundation Committee. " With this resolution
the Bar Association pledged "hearty cooperation not only in making the
survey but in bringing about the adoption of the constructive measures
therein recommended."
These requests were followed by formal requests of the same general
character from the Chamber of Commerce, the League of Women Voters,
the Federation of Women 's Clubs, the Welfare Federation and a number
of individuals and other organizations.
[656]
The Advisory Committee
A survey should be a cooperative enterprise in which the community
seeks to study itself. In this task the experts who perform the technical
research and the organization that sponsors it do little more than to
lead the way. The community, through its group a.ssociations, must
grow into harmony with the purposes of the study; it must feel its own
responsibility for its own institutions, and through representative per-
sons should be constantly informed of progress and plans. Moreover,
those who are engaged in the study need constant advice and guidance
from persons representing the diversified opinions of the city. To
serve as an instrument of contact between the survey workers and the
public, and to provide a source of practical advice, an advisory com-
mittee was formed which represented in its personnel a wide variety
of interest and opinion. This advi.sory committee was made up of forty-
four individuals invited to serve by the Foundation Committee.
This committee held meetings during the progress of the survey to
hear and discuss reports of progress. After the completion of the reports
subcommittees were formed from the membership of the advisorj- com-
mittee to read and discuss the reports. During the months of June and
July no less than 25 meetings were held, in which these subcommittees
went over each report in great detail with the authors. As a result of
these conferences, each report was considerably altered by the author in
the light of the suggestions made by the committees.
The chairman of the advisorj' committee was Mr. Amos Burt Thomp-
son, whose active interest in the survey was an invaluable service to the
members of the staff and to the Foundation Committee.
The members of the advisory committee were:
Amos Burt Thompson, Chairman Isador Grossman
Mrs. A. M. Allvn Judge F. A. Henr\-
A. D. Baldwin Dr. Charles S. Howe
George Bellamy Paul Rowland
A. A. Benesch Elton Hovt, II
Dr. R. H. Bishop, Jr. Dr. P. A.'Jacobs
Morris Black Dr. H. T. Karsner
Alva Bradley W. G. Lee
Rev. Dan F. Bradley Rev. Alexander McGaffia
Starr Cadwaliader Frank S. McGowan
Harold T. Clark Miss Ida McKean
W. L. David H. H. McKeehan
Dean W. T. Dunmore Sylvester V. McMahon
John D. Fackler Mrs. Walter H. Merriam
Mrs. E. H. Fishman M. P. Mooney
Judge Carl D. Friebolin Rev. Francis T. Moran
David E. Green Mrs. Frank Muhlhauser
43 ( 6.57 1
W. M. Pattison Dr. C. W. Stone
F. A. Quail Judge John J. Sullivan
F. W. Ramsey M. L. Thomsen
Dr. Henry Sanford Miss Grace Treat
A. A. Stearns Miss Alice S. Tyler
Mrs. Katherine Stebbins Peter Witt
Judge F. E. Stevens Rabbi Louis Wolsey
The Foundation Committee and Its Staff
The Foundation Committee maintains a permanent office staff con-
sisting of the director of the Foundation, a publicity and editorial
director, and office assistants. In conducting a survey of this kind a
definite cooperative plan is followed by which this permanent local staff
facilitates the work through making available to the survey directors and
specialists their knowledge of people, newspapers, locations, organiza-
tions, and governmental agencies within the city, and by acting as the
direct representatives of the Foundation in relations with the public.
In accordance with this policy the permanent Foundation staff in
this survey took no actual part in the investigation. Their responsibil-
ity consisted of determining with the approval of the committee the
methods and the time of presenting the results of the survey to the
pubhc. This included the arranging of public meetings, writing and re-
leasing press material, organizing committees and arranging for the
publication of the reports.
Conferences with Public Officials
After each report had been subjected to the committee conferences
above described, it was revised by its author and directors of the survey,
and submitted to the public official charged by the law with responsibility
for the institution surveyed. For example, the report on Police Admin-
istration was submitted to the chief of police, that part of the Prosecution
report deaUng with the city prosecutors to the city director of law and the
chief police prosecutor, the section on the Juvenile Court and the De-
tention Home to the judge of the juvenile court. Each report was gone
over in detail in this way, every objection or criticism by a public official
of a fact in the report was submitted to the author of the report for con-
sideration. This procedure, which has been followed in all of the Cleve-
land Foundation surveys, makes it possible in most cases to attain sub-
stantial agi'eement between surveyors and survej^ed upon all questions
of fact. Matters involving opinion or inference drawn from facts are
made upon the responsibility of the author of the report and the directors
of the survey and they alone should finally determine the contents of a
[658]
report. Tho only roport not thus submitted was tliat on the Criminal
Courts. This one covered the work of two courts, in which a total of 2.3
judges share almost concurrent authority. The practical difficulty of
conference with so many officials influenced the committee to decide not
to follow the usual procedure in dealing with this report, a decision in
which the presiding judge of the Common Pleas Court concurred.
These conferences with public officials were most important to the
success of the survey. Every report gained very materially from the
frank criticism which it received in this way. Every public official
participated with an honest desire to cooperate in any movement which
promised to raise the standard of the administration of the criminal
law and restore it to its former place in public esteem. Scores of alter-
ations were made in the reports as a result of the conferences with the ad-
visory committee and with officials. After this searching process of re-
vision had been completed, the individual reports were published in
paper-bound volumes of from 30 to 140 pages.
Carrying the Community
A survey such as this becomes an effective instniment of social
progress only when the results of the scientific investigation are carried
over into the public thought and action by building up within the com-
munity an informed public opinion on the subject that has been studied.
Two major processes are involved in the social survey. One is the con-
duct of the investigation, and the other is the education of the public.
The two processes are carried forward simultaneously, but the investi-
gation in the lead in point of time. In the present case, long and con-
tinuous eflfort has been devoted to bringing the results of the survey to
the interest and attention of the public.
The reports were given to the public at intervals of a few days during
September and October, 1921. Three luncheon meetings were hold under
the auspices of the Foundation for the presentation of the reports by
Messrs. Fosdick, Bettman, and Smith. Dean Pound addressed a public
meeting under the joint auspices of the Bar Association and the Founda-
tion, while Dr. Adler addressed the Academy of Medicine. Meetings of
this sort form an admirable means of focusing public attention upon re-
ports. Just as the address of Dr. Adler to the Academy of Medicine and
that of Dean Pound to the Bar Association brought forcefully to the
most interested groups the contents of two major reports, an attempt
was made to bring together the specific persons in the community whose
interest would most largely influence certain other phases of the process
of law enforcement. For example, practically all of the prosecutors and
1659]
assistant prosecutors attended Mr. Bettman's meeting, while Mr. Fos-
dick's audience included the Chief of Police, his inspectors, and many
members of the force. These luncheon meetings were attended by an
average of from 400 to 500 persons.
The newspaper support which the survey received was a very impor-
tant factor in its success. The public spirit of all three of the daily papers
was shown in the fact that many columns of space were invariably given
to all of the reports by all of the papers. This in spite of the fact that from
the standpoint of "news" value reports of this kind are long and tech-
nical. The newspaper summaries were made by the newspapers them-
selves and were in the main accurately and intelligently made. Editorial
comment, cartoons, and other special forms of emphasis very greatly
added to the public influence of the survey.
Copies of the separate reports were placed on sale at the meetings and
at the bookstores. Members of the Foundation staff have augmented the
educational campaign with over 50 addresses during the year before
groups representing all elements of city life. To reinforce and render
more permanent the effect of the survey upon public opinion addresses
and study courses upon the survey will continue throughout the present
winter. Moreover, a 32-page summary of the material contained in this
volume is being prepared and will be issued in a large edition for free
distribution. The Survey Graphic for November, 1921, featured an ac-
count of the survey prepared bj' Mr. John W. Love of the Foundation
staff.
The Cleveland Association fob Criminal Justice
The Cleveland Bar Association, in its resolution requesting the Foun-
dation to make the survey, pledged itself not only to cooperate in the
making of the survey, but to aid "in bringing about the adoption of the
constructive measures therein recommended." In line with this pledge
the Bar Association, after the survey reports had been given to the pub-
lic, selected a committee "to take up with the Cleveland Foundation
. . . the matter of establishing an organization for the promotion of
efficient administration of criminal justice." The chairman of this com-
mittee was Homer H. McKeehan.
As a result of a number of conferences of not only representatives of
the Bar Association and the Foundation, but a number of other civic
bodies, there was formed in December, 1921, the Cleveland Association
for Criminal Justice.
This organization is an association of the great civic organizations of
[660]
the city. The number of charter members is 13, including the following
organizations :
The Cleveland Bar Association
The Cleveland Automobile Club
The Cleveland Chamber of Commerce
The Cleveland Advertising Club
The Cleveland Academy of Medicine
The Cleveland Real Estate Board
The Civic I>eague of Cleveland
The I>eague of Women Voters
The Women's City Club
The Cleveland Builders' Exchange
The Cuyahoga County Council of the American Legion
The Cleveland Chamber of Industry
The Industrial Association of Cleveland
Under the articles of the association each of these organizations elects
two members of the board of directors, with an additional 12 selected at
large. This board of directors chooses an executive committee and the
oflBcers of the organization. As has been mentioned, the members of the
association are organizations, not persons. There is, however, provision
for the enlistment of smaller civic organizations, such as church clubs, as
auxiliary members and for interested individuals as associate members.
Some idea of the scope of activities of the organization may be gained
from the names of the standing committees:
Pohce P^secutions
Juries Courts
P*robation, Parole, Punishment and Medical Relations
Institutions Public Office Administration
Finance Legislation
P*ublieity
In general the functions of the association will be as follows:
1. To exercise a constant surveillance upon the processes of justice,
to the end that the public may be constantly informed as to conditions,
both good and bad, which exist in the field of criminal justice.
2. To assist those in authority to make improvements where desirable
in the organization and operation of the agencies of criminal justice.
The association has assured itself of financial support and plans to
continue for an indefinite period of not less than five years. As operating
director, the association has selected Mr. Charles DeWoody, who took
oflSce January 1, 1922.
[6611
There has thus been created an agency, backed by the aggregate
power of the most important civic organizations (including over 50,000
individual members), to represent the all-important public interest in
the processes by which life and property are protected in a great city.
Cost of the Survey
The total cost of the survey was $38,394.78. The amounts expended
on each of the main portions of the work are shown in the following cost
accounting. This amount does not include the cost of printing which
will be repaid in part through the sale of printed reports or the expenses
of the permanent staff of the Foundation.
Distribution of Costs Among Principal Divisions of Work
Police Administration $7,893.15
Prosecution 9,257.38
Criminal Courts 10,996.89
Correctional and Penal Treatment 5,065.97
Medical Science and Criminal Justice 1 ,222. 17
Legal Education in Cleveland 693.24
Newspapers and Criminal Justice 3,175.98
Total
$38,394.78
Principal Purposes for Which Funds Were Spent
Salaries
$19,918.32
Traveling and living expenses of staff
8,608.30
Clerical assistants
5,316.46
Rent and miscellaneous oflBce expenses
2,894.31
Publicity
1,229.39
Miscellaneous
428.00
Total $38,394.78
[682:
STAFF OF THE SIIIVEY
DIRECTORS
R06COE PoCND, Dean of Harvard University Law School.
Felix Frankfurter, Byrne professor of administrative law, Harvard University
Law School.
DIRECTORS' STAFF
C. E. Gehlke, statistical director for the Cleveland Foundation.
R. S. Judge, Pittsburgh, formerly special agent, Bureau of Investigation, Depart-
ment of Justice, Washington.
H.\RRT S. Richards, business statistician, Federal Reserve Bank, Cleveland; for-
merly with the Bureau of the Census, Washington.
H. B. Flinkers, of the Foundation Staff.
Charles B. Rtan, municipal accountant with the Municipal Research Bureau of
Cleveland.
JoH.v W. Love, editorial director for the Cleveland Foundation.
Helen Chew, of the Foundation Staff.
Hazel Zimmerman, of the Foundation Staff.
L. J. Wolf.
CLERICAL STAFF
Elizabeth Cummer, Alice G. Harriso.v, Mrs. Mart Hoefer, Dor£ Landau,
Orville p. Moon, Paul Keough, Rodney S. ScnTox.
SPECIAL DIVISIONS OF INQUIRY
Court Organization and Administration
Reginald Heber Smith, author of Justice and the Poor, prepared for the Carnegie
Corporation, 1919; member of Hale and Dorr, Boston law firm.
Herbert B. Ehrmann, associated with Hale and Dorr, Boston.
Pouce
Ratmond Fosdick, director; author of American Police Systems, and an authority
on police administration; formerly Under-Secretary-General of the League of
Nations.
[663]
Prosecution
Alfred Bettman, director; formerly city solicitor of Cincinnati, and special assist-
ant to the United States Attorney General; member of the Cincinnati law firm
of Moulinier, Bettman and Hunt.
Howard F. Burns, formerly of White, Johnson, Cannon and Spieth, Cleveland law
firm.
Penal and Correctional Treatment
Btjrdette G. Lewis, director; state commissioner of institutions and agencies in
New Jersey; author of The Offender, 1917.
Calvin Derrick, superintendent of the New Jersey State Home for Boys, Jamesburg,
N. J.
Edgar A. Doll, director of education and classification, Department of Institutions
of New Jersey.
Pstchiatrt and Medical Relations
Dr. Herman M. Adler, director; state criminologist of Illinois.
E. K. WiCKMAN, psychologist on the staff of Dr. Adler in Chicago.
Maurice R. Davie, assistant professor of sociology, Yale University.
Legal Education
Albert M. Kales, Chicago, member of the law firm of Fisher, Boyden, Kales and
Bell, formerly professor of law at Harvard University.
William B. Dawson, with Stanley and Horwitz, Cleveland law firm.
Newspapers and Criminal Justice
M. K. Wisehart, American Magazine, New York, formerly on the Washington staff
of the New York Evening Sun.
1664;
APPENDIX II
THE STATISTICAL MATERIAL AND METHODS
OF THE SURVEY
By C. E. Gehlke
StAtiotical Director for the CleveUnd Foundfttioo
THE statistical material used in the survey was of two main
cIa*«os. The first consisted of the official case records of indi-
vidual offenders passing through the courts and the penal in-
stitutions of the city. The second was in the main composed of data
taken from official reports and summaries made by the various agencies
themselves. It contained also a small number of case histories, treated
more individually and intensivelj' than were those in the first class.
The latter class of material was statistically analyzed by the indi-
vidual investigators incidentally to the development of their several
studies. It appears in the report practicallj' in the forms chosen by them.
The function of the statistical division of the staff was to tabulate and
summarize the material of the first class. Its task was conceived of
primarily as that of analyzing in ever>- practicable way the thou.sands
of case histories which were abstracted from the official records.
These analyses were submitted to the various investigators with the
aim of furnishing the necessarj' basis of statistical fact upon which to
estimate the efficiencj' of the courts and other penal agencies that were
studied. The tables as they appear in print represent the selection by the
investigators of only those summaries of which the sharp limitation of
space did not forbid the inclusion. A large proportion of the statistics
submitted to them were carried out in a detail that could not be included
without unduly expanding the reports. Furthermore, with few excep-
tions, the basic tables are given without percentages, an omission also
necessitated by reason of this condensation.
The material of this first class consists of the following groups of
cases:
I. In the Common Pleas Court, 3,236 cases; these were all the cases
which appeared in that court first in 1919, plus about 100 in Januan,-, 1920.
These latter cases were included by mistake, but their inclusion was not
discovered until much of the tabulation had been done. They were left
(6651
in principally because they were in all respects apparently homogeneous
with the others. The 3,236 cases did not include those misdemeanor cases
which came as an appeal from the decision of a lower court, nor those
which were brought into the court at the first instance, but which were
sent to a lower court because they involved misdemeanors, not felonies.
The facts about these cases were brought down to the date of March
1, 1921.
2. In the Common Pleas Court, 640 cases; these were all the cases
begun in the months of January, February, and March of 1921, subject
to the same omissions as indicated for the preceding class.
3. Preliminary examinations for felonies made in the Municipal
Court during 1919 and 1920, 685 cases.
4. Violations of the ordinances of the city of Cleveland arraigned in
the Municipal Court in 1919 and 1920, 1,832 cases.
5. Violations of statutes of the State of Ohio defining misdemeanors,
arraigned in the Municipal Court in 1919 and 1920, 1,953 cases.
6. Prisoners in the workhouse whose sentences were terminated
during the months of January, February, March, July, August, and
September, 1920, 1,322 cases. This material was used exclusively in the
report on Correctional and Penal Treatment.
With respect to groups 3, 4, and 5, a word of explanation is necessary.
Cases in the Municipal Court are filed when completed. A number of
cases of the same charge are often filed under the same number (see p. 130,
report on Prosecution, and p. 293, report on the Criminal Courts) . The in-
structions to the clerical assistants abstracting data from these files were
to take every tenth case by number in the files. This procedure produced
a slight disproportion of some kinds of cases. It resulted also in a discrep-
ancy between the number of records abstracted, and one-tenth the num-
ber of total persons involved. This was accentuated by the fact that
"bond forfeited" cases are filed periodically as they accumulate in a sep-
arate temporary file. In order to ascertain whether these discrepancies
affected the conclusions respecting proportions of various kinds of dis-
positions for the whole group, the following procedure was undertaken.
The number of cases of each charge was multiplied by the percentages
of dispositions of each kind. These products for all charges were summed
by dispositions. It was then found that these sums agreed almost exactly
with the figures obtained by multiplying the total number of cases for
the two years by the percentage of each kind of disposition derived
from our selected cases. This method was adapted from the familiar
one used in "correcting" the death-rate of a population.
Since importance was attached not to the relative number of cases of
[666]
each charge, but only to the proportions of each kind of dispoHition for
the given chargo, this discrepancy of totals is insignificant for the pur-
poses of the survey.
The schedules in which the case histories were abstracted from the
records are shown below. There were two for each case in groups 1 and 2,
one schedule covering the history in the Municipal and the other in the
Common Pleas Court. The Municipal Court schedules were two — one
for examinations in felony cases and one for misdemeanor cases. In the
latter a difference in color differentiated city and State cases. There was
one form of schedule for the cases of prisoners in the workiiouse. I2ach
schedule was 5 by 8 inches.
After a preUminarj- hand sort and count it was determined to use
mechanical tabulation. Through the courtesy of the Board of Education
the mechanical tabulating machiner>' of its accounting department was
put at the service of the survey at the hours in which it was not used in its
regular work. The generous assistance of the operators of this machinery
was the second factor which made the use of this machinery' possible.
Thanks are also due to Colonel Leonard P. Ayres, Vice-President of
the Cleveland Trust Company. The statistical director is indebted to
him both for his most valuable counsel and for his very generous a.ssis-
tance in the designing and execution of many of the diagrams of this
book. The director's greatest obligation is to Harmon B. Flinkers, his
chief assistant, upon whose intelligent devotion to the work of tabulation
and analysis he learned to depend with complete confidence.
Schedules of D.\ta
1. Schedule of data covering Municipal Court history of felony cases
begun in the Common Pleas Court during the year 1919, and the first
three months of 1921. (Criminal Courts and Prosecution reports.)
C. P. Docket Name Charge M. Ct. No.
Date of offence
Date of affidavit
Date of arrest
Date bound over
Date of transcript-
Judge
To what term
Amount of bail
Date — if given
Bondsman
Own recognizance..
667]
2. Schedule of data covering history of felony cases in Conxmon Pleas
Court begun in that court during the year 1919 and the first three
months of 1921. (Criminal Courts and Prosecution reports.)
Docket Name
Record Date Substance
1. From ct,
2. Bail
Record
Charge
Date Substance
8. Continuance
9. Trial&Verdict
10. Disposition.
3. Bondsman
4. Indictment
5. Bail
6. Bondsman
7. Pleas
11. M'n fr Nw Tr
12. Error or Apl
13. Various..
Judges 5 1 10, 11 ID'S Atty
C. Pr I Municipal Ct. No.
. Appt.
3. Schedule of data covering history of misdemeanor cases in Muni-
cipal Court, 1919 and 1920. (Criminal Courts and Prosecution reports.)
Docket Name Charge..
Class..
Offence
Affidavit
Arrest
Bail
Bondsman
Own recognizance..
Judge
Pleas
Jury claim
Disposition..
Motion for nw. tr..
Motion in miti
Appeal or error
Continuances..
[668]
4. Schedule of data covering preliminary hearings of felony cases in
the Municipal Court, 1919 and 1920. (Criminal Courts and Prosecution
reports.)
Docket Name Charge Class
Offence
Affidavit
Arrest
Bail
Bondsman
Own recognizance..
Judge
Examination
Exam . waived
Disposition .
Continuances
Various.
5. Schedule of data respecting prisoners in the Workhouse, whose
terms ended during January, February, March, July, August, and Sep-
tember, 1920. (Tables 3-7, Correctional and Penal Treatment report.)
Name Nationality color
Residence
sex
city state country
Name of Court Name of Offence
Sentence
Date received at Workhouse
day
month
year
Date released
day
month
year
Released by Released Returned
Court order on parole by court order..
day month year
If returned for violation of parole..
day month year
1669]
s
APPENDIX III
THE NORWOOD BILL
ENATE Bill No. 8, of the Eighty-fourth General Assembly Regular
Session, 1921, of Ohio Legislature, introduced by Senator Nor-
wood, and which became a law without the Governor's approval:
A Bill
To amend section 2166 of the General Code, relative to indeterminate
sentence to the Ohio Penitentiary.
Bk It Enacted by the General Assembly of the State of Ohio :
Section 1. That section 2166 of the General Code be amended to
read as follows:
Sec. 2166. Courts imposing sentences to the Ohio penitentiary for
felonies, except treason, and murder in the first degree, shall make them
general, . . . but they shall fix within the limits prescribed by law, a
minimum period of duration of such sentences. All terms of imprison-
ment of persons in the Ohio penitentiary may be terminated by the Ohio
board of clemency, as authorized by this chapter, but no such terms
shall exceed the maximum . . . term provided by law for the felony
of which the prisoner xoas convicted, nor be less than the minimum term
fixed by the court for such felony. If a prisoner is sentenced for two or ■
more separate felonies, his term of imprisonment may equal, but shall
not exceed, the aggregate of the maximum terms of all the felonies for
which he was sentenced and, for the purposes of this chapter he shall
be held to be serving one continuous term of imprisonment. If through
oversight or otherwise, a sentence to the Ohio penitentiary should be
for a definite term, it shall not thereby become void, but the person so
sentenced shall be subject to the liabilities of this chapter and receive
the benefits thereof, as if he had not been sentenced in the manner re-
quired by this section.
Section 2. That said original section 2166 of the General Code and
aU laws or parts of laws inconsistent with this act be, and the same are
hereby repealed.
[670]
APPENDIX IV
PARDONS IN OHIO
A STUDY OK TIIK PAHDONING POWF.U AS KXKKriSKD BY THE GOVERNORS
OF OHIO, APPLYING TO THK STATE PEMTENTIAHY
EIditor's Note — Most of the data for this report wore Rathereil by Kosciusko
Kitchen, of I»Kan, and C. J. Mueller, of Middletown, law students at Western
Reserve University, who were interested in this phase of the Ohio penal system. The
material was submitted to the Ohio Institute for I^iblic Efficiency, Columbus, Ohio,
which is responsible for the form of the report and the recommendations. The recom-
mendations were written by K. K. Miles, director of the Institute.
The data gathered relate only to pardons and commutations granted to inmates
of the Ohio Penitentiary. As these constitute, however, over twt>tlurd8 of all pardons
granted by the several governors, it is felt that the conclusions drawn may be con-
sidered substantiated.
General data weri' gathered for the period July 1, 1S99, to June 30, 1921, and
detailed analysis of the records from January 11, 1915, to January 10, 1921. The
latt«r period comprises the last three executive terms, previous to which time the
records lack sufficient accuracy to make detailed study worth while.
What is a Pardon?
According to official records, there are eight recognized ways in
which a prisoner at the Ohio Penitentiary may receive his liberty. These
eight ways are as follows:
Expiration of sentence
Parole
Full pardon
Conditional pardon
Commutation of sentence
Conditional commutation of sentence
Conditional release
Final release
Without stopping to discuss here how many of these clas.sifications
might bo considered superfluous, a pardon is distinguished from the
other methods of release in the fact that it effects a restoration of the
rights and privileges of citizenship which are forfeited by conviction of a
felony. Among these are the rights to be an elector or juror, or to hold
an office of honor, trust, or profit.'
' Ohio General Code, Sec. 12390.
1671)
Where a general pardon has been granted, it obliterates the record of
conviction, and offenses committed within its terms cannot be recon-
sidered for the purpose of sentencing one under the habitual criminal
act.i
A commutation differs from a general pardon in that, while shorten-
ing the sentence, it does not obliterate the record of conviction. General
rights of citizenship are restored.
" The main reasons for investing the chief executives of modern nations with
the wide discretion which they exercise in this regard are to prevent injustice
because of the falUbility of human laws, which sometimes work injustice in in-
dividual cases, although they may be salutary on the whole; the possibUity that
a person may be unjustly accused and convicted, which may not be discovered
until long afterward; to make it possible for the supreme authority to release
persons convicted and sentenced under harsh and oppressive laws, especially
political offenders convicted in a time of great public excitement and discord; to
enable the chief executive to reward in this manner repentance and good conduct
in prison, where he is satisfied that a thorough reform has been effected, and
justice satisfied. . . . The necessity for the exercise of this power on the
ground last named is greatly lessened by statutes allowing a graduated com-
mutation of a term of imprisonment as a reward for repentance and good conduct
in prison. "2
Another ground sometimes urged for the use of a pardon or com-
mutation is the "occasional necessity of obtaining evidence from one
wrongdoer to secure the conviction and punishment of another. In
certain forms of crime, such as bribery and conspiracy, in which more
than one person must be concerned, the precise facts usually lie in the
knowledge of the guilty parties only, and it is often very difficult, some-
times quite impossible, to secure adequate proof against any, unless one
of them can be induced to testify."'
The Governor's Powers
Under the provisions of the Ohio constitution, adopted in 1851,
almost unlimited pardoning powers are conferred upon the Governor.
Article III, Section 11, of the constitution says:
He [the Governorl shall have power, after conviction, to grant reprieves,
commutations and pardons, for all crimes and offenses, except treason and cases
of impeachment, upon such conditions as he may think proper; subject, however,
' State v. Williams, 7 O.N. P. 562, 5 O.D.(N.P.) 545.
* New Inlernalional Encyclopedia.
' Charles J. Bonaparte, in Yale Law Journal, vol. 19, 1909-10, pp. 603-8.
[672]
to such regulationii, as to the manner of applying for pardons, as may be prc-
Bcribotl hy law.
He shall comnuinicate to the general assembly, at everj' regular session each
case of reprieve, commutation, or pardon granted, stating the name and crime
of the convict, the sentence, its date, and the date of the commutation, pardon,
or reprieve, with his reason therefor.
The ro(?ular procedure for dealing with pardons, found in Sections
93-101 of the General Code, may be summarized as follows:
Notice of application furnished to prosecuting attorney of proper county and
published in newspaper, except in capital cases.
Prosecuting attorney report.-* certain information to board of pardons.
Board of pardons presents recommendation to governor.
Governor grants or rejects application.
Any or all of the foregoing provisions, however, may be duspensed
with by the governor in case of apparent imminent danger of death or
on recommendation of the warden and director of public welfare, with
reason stated therefor.
Org.wization for H.\.\dli.\g Pardoxs
It was not until 1888 that Ohio recognized the practical need of an
organized personnel to review applications for, and the data bearing
upon, pardon cases. \ Board of Pardons, consisting of four members,
was created, which functioned until 1917, when it was abolished and its
duties and powers tran.sferred to the Board of Clemency.
Four years prior to the establishment of the Board of Pardons, how-
ever, a Board of Managers had been created to supervise the parole
system. This board was abolished in 1911, and its functions were
transferred to the Board of Administration, established in that year.
From 1911 until 1917 the parole system was administered by the Board
of Administration.
During the three decades that followed the creation of the two
organized personnels to administer the pardon and parole sj'stems, re-
spectively, no efTort was made, apparently, to combine the work and
avoid the duplication and overlapping of information and effort. In
1917, however, the Board of Clemency came into existence. It con-
sisted of two members of opposite political faith, appointed by the
governor from different appellate judicial districts. It was charged
with the administration of pardons and paroles so far as they related to
"penal" institutions (i. e., the penitentiary and the two reformatories).
On July 1, 1921, the reorganization code abolished the Board of
44 ( 673 j
Clemency and transferred its powers and duties to the Department of
Public Welfare, to be exercised within the department by a Board of
Pardon and Parole, consisting of the Superintendent of Pardon and
Parole and two other persons within the department designated by the
Director of Public Welfare. This, with the addition of field officers
attached to the individual institutions, constitutes the present ma-
chinery for administering pardons and paroles.
It will be recalled that under the reorganization code now governing
State departments, each director of a department is appointed by the
governor, by and with the advice and consent of the Senate, and holds
his office during the pleasure of the governor. Under the same law, the
Superintendent of Pardon and Parole is appointed by the director of
the department of public welfare and holds his office during the pleasure
of the director. Under present conditions, therefore, the maximum term
of which any assurance can be afforded to the members of the Board of
Pardon and Parole is two years, and at any time within that period they
are subject to immediate removal at the pleasure of the director, who in
turn is subject to the same possibility by action of the governor. Such
an arrangement can hardly fail to create great difiiculty in securing ex-
perienced and qualified persons, and in addition makes it very likely that
frequent changes in personnel will take place. Under such circum-
stances the effort to build up and maintain higher standards cannot but
be seriously handicapped.
At present the functions imposed upon the Board of Pardon and
Parole are limited to passing judgment upon the applications which
come before it. It is not responsible for supervision of pardoned or
paroled prisoners to see that conditions attached to the pardon or parole
are properly enforced. It has no field staff to provide it with informa-
tion as to the home, industrial, and community conditions into which a
pardoned or paroled prisoner will return. Without such a staff, and
also without adequate records, it is entirely unreasonable to expect the
board to perform its duties effectively. The natural effect, furthermore,
of depriving the board of all responsibility for enforcement of conditions
attached to pardons and paroles is to make the board more liberal, or
even lax, in granting releases. A board whose members were not con-
scientious might easily allow its policy to degenerate into a "turn-'em-
loose" process, with serious results to the public.
How THE Pardoning Power Has Been Exercised
An analysis of available oflBcial records was made to obtain whatever
information might be afforded by them. For what they may be worth,
[674]
the results arc given in the following statements of fact, flu' int('r[)reta-
tion of which, unless stated, is left to the reader.
Number Granted
During the period from July 1, 1899, to June 30, 1921, 837 pardons
and commutations wore granted by the governors, an average of 38 a
year.' The nu!nl)er of pardons and commutations granted each year,
together with the average daily population of the Ohio penitentiary,
are given in Table 1. The number granted in the hust eight years,
according to the table, slightly exceeds the luimber granted in the pre-
ceding fourteen years. The average number granted during the first
fourteen years was 29, or 1.8 per cent, of the average annual population
of the penitentiary; the average number granted during the hist eight
years was 54, or 2.9 per cent, of the average annual population of the
penitentiary.
TABLE 1.— AVER.-Vr.E DAIl-Y POPrLATION OF THE OHIO PENITEN-
TIARY AND Nl'MHKl{ OF KKLKASKS THEREFHO.VI BY EXECUTIVE
PARDON OR COMMUTATION UY FISCAL YEARS ENDING JUNE 30,
1900, TO 1921 INCLUSIVE'
Average
Released by
.Averiige
Released by
Year
dailv
executive
Year
dailv
executive
population
action
population
action
1900
1,831
28
1911
1,.594
32
1901
1,681
26
1912
1,.586
22
1902
1,689
23
1913
1,628
41
1903
1,557
29
1914
1,628
75
1904
1,5.54
24
1915
1.781
4(>
1905
1,591
29
1916
1,884
60
1906
1,608
36
1917
1,845
70
1907
1..565
20
1918
2,000
63
1908
1,612
35
1919
1,881
37
1909
1,661
42
1920
1,984
47
1910
1,634
20
1921
2,037
32
1,720
837
Attention is drawn to the fluctuation shown in Diagram 1 in the
number of pardons and commutations granted from year to j'car. The
highest number in any one year was 75, in 1914; the lowest was 20, in
' The word "year," as used in these statements, means "twelve mouths ending
June 30."
' This table was compiled from State records which are available only for the
fiscal year ending June 30. Figures given will, therefore, not agree with the figures
given in other tables which cover the twelve months beginning with the second
Monday of January, when the governor takes office.
1675]
1907. For the three successive years, 1912, 1913, 1914, the numbers
ran respectively 22, 41, 75. A satisfactory explanation of such variation
is not evident.
Nearly two-thirds of the cases of executive action are pardons, the
remainder being commutations. From January 11, 1915, to January 10,
1921, 258 pardons and 135 commutations were granted by the respective
governors. Of the total of 393, 240 were conditional and 153 uncon-
ditional.
Tear endin;
June 30 th
0
ao
40
00
80
1900
1901
1902
1903
1904
1905
1906
1907
1908
1909
1910
1911
1912
1913
1914
1915
1915
1917
1918
1919
1920
1921
28
26
23
29
24
29
36
20
35
42
20
32
22
41
75
46
60
70
63
37
47,
32
^^^^
^"'
^"
*""""
»
^^
100
Diagram 1. — Comparison of Numbers of Releases Granted from Year to Year.
Offenses Pardoned
Of the 393 pardons and commutations granted in the last six years,
158 were granted to persons who had been convicted of murder, man-
slaughter, assault, shooting or cutting to kill, or maiming. For first-
degree murder there were 31, and for second-degree murder, 89. Of
the same 393, 160 were to persons who had been convicted of offenses
against property, and 24 were for sexual crimes.
During the ten years 1900 to 1909 inclusive, 93 commitments for
first-degree murder were received at the Ohio penitentiary, of which 41
were terminated by pardon, commutation, or parole before November
15, 1921. During the same period 118 second-degree commitments
were received, of which 94 were terminated by pardon, commutation,
or parole before November 15, 1921. Of the total 211, 135, or 64 per
[676 1
cent., wore relca.sed Ix'forc Novrmbcr 15, 1921, on which date only nine
of the 211 rnniiinod in the ponitontian'.
Tiiblc 2 is the distribution of roli'iises in the last six years by types of
offense and by kinds of official action taken.
TAHMC 2— NUMBF.R OF OKKICI.^L ACTIONS TAKKN, JANUARY U, 191.5,
TO JANUARY 10, 1921, CLASSIFIED BY PR1NC11'.\L OFFENSES AND
KIND OF ACTION
Num-
ber of
official
actions
Kind of action
Unconditional
Conditional
OITcnse of which convicted
Par-
dons
Com-
muta-
tions
Par-
dons
Com-
muta-
tions
Abandoning legitimate child
3
2
1
Anon
2
i
Anault to kill
6
•>
"3
i
Assault to rape
3
1
1
1
.Auto stealing
4
3
Hurglan,'
12
6
3
'2
Hurglar,' of inhabited dwellings
26
2
11
10
Burglarj' and larceny
25
7
11
7
Burglary- and larceny and habitual crim-
inal
o
1
1
Kuming property to prejudice insurer
2
i
1
Carrj-ing concealed weapons
5
2
3
Cuttmg to kill
5
2
2
1
Cutting to wound
2
1
1
EmbeKlement
16
'7
6
1
Embezzlement of public money
2
1
1
Forgery
16
5
7
3
Incest
2
1
1
I-arceny
25
9
io
5
Maiming
2
1
1
Manslaughter
13
i
10
1
Murder — first degree
31
5
12
6
8
Murder — second degree
89
23
19
36
11
Non-«vipport
12
10
2
Obtaining money under false pretenses
4
1
3
Operating motor vehicle without owner's
consent
3
1
1
, ,
Periury
Pocketpicking
2
1
7
i
2
'2
Rape
19
3
7
5
Receiving stolen property
6
1
3
Robben,'
10
3
3
3
Shooting to kill
12
2
7
2
Utteringand publishing forged instrument
2
1
Miscellaneous
23
io
0
6
'5
Totals
393
96
57
162
78
1.53
240
1677)
Time Served
Table 3 classifies releases for six years by sentences and time served.
This table shows that :
1. The 384 individuals who received the 393 pardons and commuta-
tions during the six-year period intensively studied served an average
of 3 years, 4 months, and 26 days each. The longest time of 23 years, 8
months, and 6 days was served by a prisoner sentenced to life; the
shortest time of 16 days was served upon a one to three-year sentence.
TABLE 3.— RELEASES, JANUARY 11, 1915, TO JANUARY 10, 1921, CLASSI-
FIED BY SENTENCES AND AVERAGE TIME SERVEDi
Original sentence
Death
Life
10 years and life
4 years and life
2 years and life
Indeterminate
Sentences
.5 to 30 years
1 to 20 years
1 to 15 years
1 to 10 years
1 to 7 years
1 to 5 years
1 to 3 years
Other sentences
Determinate
Sentences
20 years
18 years
15 years
14 years
12 years
11 years
10 years
8 years
7 years
6 years
5 years
3 years
2 years
Total
Total
number of
prisoners
receiving
clemency
2
121
1
1
1
20
44
43
17
25
11
384
Average time served
Years
10
6
15
16
18
3
Months
i)
8
1
11
10
10
8
9
Daj's
10
25
1
3
5
29
22
7
13
12
7
8
2
12
21
4
29
10
9
12
23
21
15
29
26
Number serving
before pardon
or commutation
Minimum
sentence
or more
5
11
5
2
6
1
4
34
Less than
minimum
sentence
121
1
1
1
20
39
32
12
23
5
26
21
350
' During this period the governor granted 393 pardons and commutations, but
nine prisoners received clemency two dififerent times.
[678]
2. The avoraRO time actually served by 121 persons sentenced to
life imprisonincnt was 0 years, 8 months, and 2j daj-s.
3. Of the total 384, 350 served less than the minimum sentence.
Frecpiently the time served was less than half the niiiiiiiitiiii sentence.
An analysis of the liisposition of first- and .seeond-def^ree murderers
received at the penitentiary in the ten-year period 1900-1909 inclusive
is piven in Table 4. Of the 93 first-decree murderers received in that
time, four .served less than five years, 19 between 5 and 10 years, 15 be-
tween 10 and 15 years, and three between 15 and 20 years, a total of 41
released. Of the 118 second-dcRree murderers similarlj' received, 17
served less than 5 j-ears, 38 between 5 and 10 years, 39 between 10 and 15
years, a total of 94 released.
TABLE 4.— DISPOSITION OF FIRST AND SECOND-DEGREE MURDER-
ERS COMMITTED DURING TEN YEARS, J.\N"U.\RY 1, 1900, TO DE-
CEMBER 31, 1909. COMPILED AS OF NOVEMBER 1.5, 1921
Fir9t-<legree
Second-degree
Total
murder
murder
Electrocuted
2(5
26
Died
12
5
17
Eacaped; not returned
4
4
8
Transferred
•1
12
16
Pardon or commutation
39
47
86
Less than 5 years
( 4)
(12)
(16)
5 to 10 years
(17)
(29)
(46)
10 to 1.') years
(15)
( 0)
(21)
15 to 20 years
(3)
( 3)
Paroled
2
47
49
Less than 5 years
( 5)
( 5)
5 to 10 years
(2)
( 9)
(U)
10 to 1.5 years
(33)
(33)
Still in prison
6
3
9
10 to 15 years
( 6)
(2)
(8)
15 to 20 years
( 1)
( 1)
Totals
93
lis
211
Reasons Assigned for Release
According to official records reasons assigned for release were the
following:
Recommended by Boards of Par-
don and Clemency
Recommended by tri.al judge,
prosecuting attorney, and
Clemency Board
Recommended by prison officials
Recommended by citizen.s
Imminent danger of death
In honor of a holiday
Long term and good prison record
Evidence of reform
6
00
Sentence too severe
Comparative justice, partners in
21
crime receiving light sentences
3
45
Doubt of guilt
10
13
To leave State
13
5
Lack of mental responsibility
3
48
Temporarily insane at time of
41
commission of the crime
2
28
Total
393
1679]
It is observed that in the majority of cases, comprising 218, recom-
mended by the Board of Pardons or Board of Clemencj', judges, prison
officials, and citizens, no real and valid reason for release is stated.
Among these are found 16 convicted of first-degree murder, 40 con-
victed of second-degree murder, 9 convicted of manslaughter, and 9 of
shooting or cutting to kill.
Presumably the recommendations were based on reasons which
seemed proper and adequate, and should, therefore, have been definitely
stated. If the present practice is pursued, however, it affords possi-
bilities of concealing pardons of a doubtful nature from pubhc notice.
Inquiry revealed that in a number of cases the recommendations of
the Board of Clemency were based on a belief that even the minimum
sentence imposed was excessive. To the extent that the board's belief
on this point was well founded, such criticism as might be suggested
would apply rather to the minimum sentences imposed by existing
laws than to the acts of pardon. It may be remarked that the result
of the Norwood law, enacted by the last Assembly, authorizing judges
to impose a minimum sentence in excess of that fixed by statute, will
doubtless be to increase the number of cases seeking executive pardon or
commutation.
The 41 pardons issued "in honor of a holiday" would seem to be
largely sentimental, no valid reason being stated. The list of hoHdays
thus signalized during the six-year period is as follows: New Year's,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Jewish New Year, Emancipation Day, Columbus Day, Thanksgiving
Day, Christmas Day, Greek Independence Day.
It is related that on one occasion a pardon "in honor of" St. Patrick's
Day was awarded to a prisoner who seemed to possess a good Irish name,
but who too late proved to be a Scotchman.
"Lack of mental responsibility," assigned in three cases, would seem
to be an admirable reason why release should not be granted. Is a
person convicted of "assault to kill" to be turned loose on the com-
munity because of a mental irresponsibility which increases the proba-
bility of another offense?
Release "to leave the State," if other States pursue the same process,
is only a futile attempt at getting rid of undesirables by dumping them
in our neighbors' yards.
Previous Record of Applicants
The previous record of applicants has not in all cases received suffi-
cient attention in the exercise of the pardoning power. This may safely
[680]
be t«kon for granted when the offender is again found delinquent within
a short time. One illustration is given.
Prisoner's Xumber 4S,8SO
Received July 7, 1915, for burglary and larceny; sentence, 1 to 15 years.
Previou.s record :
One term at Ohio State Rcfonnator>- at Mansfield.
No. 30S48 Ohio Penitentiarj- for horse stealing, June 27, 1898, to May 4,
1899.
No. 3565 Michigan Reformatory for receiving stolen property, June 6,
1900, to April 7, 1901.
No. 34318 Ohio Penitentiary for horse stealing, July 16, 1902, to May 3,
1906.
A31772 Auburn Prison, New York, for burglary and larceny, October
24, 1911, to October 23, 1913, when placed on parole, dis-
charged from parole October 27, 1914.
Conditional pardon granted December 20, 1916, after serving one year, five
months, and thirteen days.
Returned to penitentiary May 27, 1919, for shooting to kill, sentence one
to twenty years.
Prisoner's Numbers: 40,033 Determinate; 45,642 Indeterminate
October 11, 1910, admitted to the Ohio penitentiary upon conviction of
robbery; sentence, fifteen years; operating an automobile without owner's con-
sent, sentence, from one to five years.
February 17, 1912, paroled.
May 2, 1912, arrested and held for investigation by Columbus police.
May 7, 1912, returned to penitentiary.
April 15, 1913, parole restored.
November 17, 1913, arrested for taking an automobile without leave, by
Columbus police. Bound over on $1,000 bond.
December 23, 1913, returned to penitentiary.
June 8, 1917, conditional pardon, for which he was to abstain from the use of
intoxicating liquors, stay out of saloons, attend church regularly, and report for
two years as if on parole. Verbal understanding that he was to remain out of the
State.
September 1, 1920, arrested by Columbus police for petty larceny, after
being out of State since June, 1917. Released subject to call of prosecutor.
September 7, 1920, arrested for grand larceny by Columbus police. Case
dismissed.
October 31, 1920, arrested for petty larceny by Columbus police. Bond for-
feited.
November 1, 1920, arrested for carrying concealed weapons by Columbus
police. Bound over on a $500 bond.
1681]
May 18, 1921, arrested by Columbus police for being drunk. Bond forfeited.
June 14, 1921, arrested for illegal possession of liquor by Columbus police.
Fined $100 and costs.
October 4, 1921, arrested by Columbus police in connection with the burg-
lary of an inhabited dwelling. Bound over to grand jury.
General: While intoxicated, he visited the penitentiary and threatened the
warden for opposing a pardon and recommending his return.
The Bertillon department of the Columbus police force is now endeavoring
to secure information from the Bertillon clearing-houses at Fort Leavenworth,
Kansas, Washington, D. C, and Mansfield, Ohio.
The Columbus police docket shows a long record extending back to 1909. A
brother was killed recently by a member of the Columbus police force, when
caught driving a wagonload of stolen goods away. Two other brothers have
poUce records almost equally discouraging.
Twenty-six pardons and commutations were granted to prisoners con-
victed of burglary of an inhabited dwelling, 10 of whom had served one
previous term; one, two previous terms. Two of these were convicted
of burglary; three for robbery ; one for receiving stolen goods ; and six,
the nature of whose previous offenses was not shown upon the records.
Twenty-five pardons and commutations were issued to prisoners
convicted of burglary and larceny, nine of whom were "repeaters."
Seven of these were serving their second term ; one, his third term ; and
one, his fifth term. The offenses for which they were previously con-
victed were: burglary, burglary and larceny, horse stealing, robbery,
receiving stolen goods, perjury, larceny, and cutting to wound.
Seven pardoned were sentenced for pocketpicking, three of whom had
served a total of 10 previous terms; five for larceny, two for pocket-
picking, and three for offenses not shown.
The history of "repeaters" is not complete because prison records
do not always show former records served. From information available,
however, it was ascertained that in 393 cases 67 were "repeaters," 46
having served one previous term; 13, two terms; 5, three terms; 2, four
terms; and 1, five terms. Undoubtedly, a careful analysis of the records
of the Bertillon department would show a larger percentage of "re-
peaters" to whom pardons and commutations have been granted.
Enforcement
No argument should be necessary that when a pardon or commuta-
tion is issued conditional upon compliance with certain requirements,
these requirements should be enforced. In the case of pardons, how-
ever, the statutes governing the enforcement procedure furnishes an
[ GS2 1
excellent example of "passing the buck." The procedure Is about aa
follows :
The field officer reports to the warden, who reports to the director of
public welfare, who reports to the governor, who notifies the prosecuting
attorney, who files any information with the probate judge, who issues a
warrant to the sheriff to pursue, arrest, and bring the offender into court
for examination.
What wonder that cases like the following are the result?
Prisoner's Number, iS^J^lS
Received February 21, 1915; sentenced, one to three years for carrying con-
cealed weapons.
Released February 19, 1916, by commutation of sentence to one year,
January 24, 191G, on condition that he abstain from liquor, stay away from
places where liquor was sold, report as if on parole for two years.
Field officer reported on June 20, 1916: "ID has IxMjn drunk continually
since his conditional pardon. He i.s a gambler, bootlegger, and habitual drunk-
ard. Lies around houses of ill-fame all the time. The people are disgu-sted with
his conduct. He is delinquent on three reports. Memorandum furnished me
says that he must report for two years. Now, if this doesn't mean anything,
why burden our records with it or waste thne looking up hLs kind of cases?
Things of this kind bring us into bad odor with general public. Reported on this
case before March 3, 1916. E claims he has a full pardon and refers every
one to his attorney. Actually I would not know how to proceed if I caught him
committing murder."
E has not made a report since his release and violates the condition of
his release with impunity.
He was con\'icted of robbery and returned to Ohio Penitentiarj- May 7, 1917,
to serve one to fifteen years. At the time of the trial the prosecuting attorney
stated that " E was guilty of every crime in the catalog. Arrested a hundred
times, a gambler, robber, bootlegger, etc. Proud of it. Should be kept in for
life and then would not pay for meanness."
The trial judge said at time of trial: "The former offense he committed was
a robber}', but he pointed a gun at the victim, and so I sent him up for carrying
concealed weapons. Recommend he be kept for maximum time."
E was given a second conditional release October 22, 1918.
Prisoner's \umber, 49,061
Received December 22, 1920, for check to defraud; sentence, one to three
years.
Released January 8, 1921, by conditional pardon after serving only sixteen
days of his sentence. Under the conditions of his pardon he was to abstain from
intoxicating liquors and report as if on parole for three years, paying back the
money obtained on bad checks.
[083 1
Field agent reported on June 25, 1921: "Wrecked borrowed car, found dead
drunk a couple of times. Father says he acted much like he did years ago when
sent to Toledo Asylum for dipsomania."
No action to date as a violator.
Conclusions and Recommendations
The principal conclusions may be summarized as follows :
1. The pardoning power has, in our judgment, been more extensively
resorted to than should be necessary. In part this seems to have been
due to a view that the minimum sentence in certain cases was too long.
The fluctuation in number of pardons in different years apparently indi-
cates an absence of recognized pohcy.
2. Many pardons have been granted even for the most serious of-
fenses. During the past six years pardons and commutations were
granted to 31 persons convicted of murder in the first degree, and to 89
convicted of murder in the second degree. Of the 211 committed for
first- or second-degree murder during the ten years 1900-1909, 135, or
64 per cent., were released before November 15, 1921, on which date
only nine of the 211 remained in the penitentiary. In view of the fact
that in Ohio intent to kill is an essential element of murder in either de-
gree, question may be raised whether an average of 20 persons per year
convicted of first- or second-degree murder should receive pardons or
commutations.
3. The time served by those receiving pardons and commutations
was generally short in comparison with the sentence imposed. For
example, the average time actually served by the 121 persons sentenced
to life imprisonment and receiving pardons or commutations during the
past six years, was six years, eight months, and twenty-five days. Of
the 211 first- and second-degree murderers committed during the ten
years 1900-1909, 135 were released in less than twenty years, 132 in less
than fifteen years, 78 in less than ten years, and 21 in less than five years.
4. In a number of cases the reason stated for granting the pardon or
commutation was inadequate or improper; e. g., "in honor of a holiday"
(such as Greek Independence Day, Jewish New Year's, etc.), and "lack
of mental responsibility."
5. In some cases the information available was either insufficient to
warrant action or directly pointed to a refusal.
6. Enforcement of conditions attached to pardons and commuta-
tions has not been sufficiently strict.
As a result of these conditions, the public is justified in feeling that
its security has not been properly considered in the exercise of the
[684]
1
pardoning power. In order that the pubUc safety may be more efifec-
tually guarded, the following recommendations are offered:
1. Parilons should be granted only in cases where adequate evidence
indicates that injustice has been done, and in order at least partially
to remedy that injustice; or in rare cases to reward an extraordi-
nary deed of heroism or fidelity. In all other cases where executive
action is deemed to be necessarj', it should be in the form of a com-
mutation.
2. Commutations should be granted only where adequate evidence
indicates that the minimum sentence was unduly long and that the
interests of society as well as of the individual will be promoted ; in other
words, only in order to enable the Board of Parole to act in necessar>-
cases where the law now prevents their acting. The sentimental practice
of granting holiday commutations, with Httle or no apparent other
reason, should be di.scontinued.
3. Conditions attached to a pardon or commutation should bo strictly
enforced. The statute should be at once amended so that there may t)e
no doubt as to the power of the State's field officers to take summary
action with violators of parole conditions.
4. The parole system should be thoroughly reorganized.
The Board of Pardon and Parole should not hold office at the pleasure
of the director of public welfare as is now the case. The effect of thLs
arrangement is to render the appointment of qualified and experienced
persons much less likely, and to make them much more susceptible to
political or other pressure while in oflBce. A statutorj' amendment
would be needed to effect this change.
The Board of Pardon and Parole should not be limited to a mere
" turn-'em-loose " function. If the Board has no responsibility for seeing
that its decisions are justified and the conditions of parole imposed by
it are enforced, its action can hardly fail to become more perfunctory.
The Board should be charged with the enforcement of the parole system
as well as its quasi-judicial aspect.
In order to perform this duty, the field officers now attached to the
several institutions should be transferred to the Superintendent of
Pardon and Parole and should be increased in number. This would
also lead to greater economy, as there is at present a duplication of
traveling over the same territon.-.
An adequate record system should at once be installoil and main-
tained to afford the requisite information, without which official action
is mere guesswork.
Before release phj-sical and mental examinations should be given
[6 51
and investigations made of the home, industrial, and community condi-
tion to which the paroled prisoner would return.
Many of the foregoing recommendations can be effected without
legislation. The governor can inaugurate a more guarded use of his
constitutional pardoning powers; can establish a suitable distinction
between pardons and commutations; can direct a stricter enforcement
of conditions; and can bring about a more efficient and economical ad-
ministration of the parole system. If he believes these changes de-
sirable, there need, therefore, be no delay in proceeding to inaugurate
them.
686
APPENDIX V
REPORT OF INTELLIGENCK SURVEY OF THE CLEVELAND
l^OLICE DEPARTMENT
By E. K. WicKUAN
Pfiychologist, Division of the Criminologist, Illinoia
A SURVEY of the intelligence of the personnel of the Division of
Police of Cleveland was made in connection with the survey of the
^ administration of justice conducted by the Cleveland Foundation.
Mental ratings on 979 officers, detectives, and patrohnen were secured
by the use of the army Alpha Intelligence Examination.
The survey was made with the cooperation of the Chief of Police,
Frank W. Smith, who ordered the men of his department assembled for
the examination and who lent his cooperation and influence to their effec-
tive administration and completion. The examinations were not com-
pulsory for the men, with the exception of those in the training school.
Orders by the Chief of Police were issued for all men who were on active
duty during the three days of the survey to report for the examination,
but the actual examination was taken voluntarily. There were, however,
no men in the department who declined to submit to the tests.
The 979 men who were examined compose over 90 per cent, of the
entire department, and the men who were not rated were not actually
available for the examination during the three days of the survey. The
general orders for the assembling of the men called for one-half of one
of the four platoons for each group examination. The examinations were
made on the salary time of the men, and the groups were assembled at 1,
2, and 3 o'clock in the afternoons, and at 7.30 and 10 o'clock in the
evenings. The 979 men include officers (captains, lieutenants, and ser-
geants), detectives, men of the vice bureau, the traflfic, mounted, emer-
gency, and regular patrolmen, and the members of the training school.
The intelligence examination used was the army Alpha examination,
the scale employed for literates in the examination of officers and recruits
in the United States army. The army procedure in the administration
of the examination was adhered to in all respects. The groups varied in
size from 10 to 90 men. With the exception of the captains and detec-
1687]
tives, the groups were assembled in the training school class-room of the
Eighth Precinct Police Station. All five forms of the Alpha examination
were employed, so as to avoid possible coaching.
The papers were later scored by special clerks, and intelligence rat-
ings were assigned to all the men on the basis of the army letter rating
scale, as given on page 66, footnote 1.
The distribution of intelligence ratings for the officers, detectives, and
various divisions of the patrolmen is shown in Tables 4 and 5, page 68,
and in Diagram 1, below.
PER CENT LOW AVERAGE
AND INFERIOR
5.0
4.91
FEB CENT
AVERAGE
rm CENT. HIGH
AVERAGE
c
2S.6
28.6
n
Capt
dns
2.2|
1 21.7
39.1
1
Lleuta
lantfl
\l2
|lB.3
28.2
1
Serge
intB
1 20.6
!
47.6
23.8
1
C
Detee
tlvee
]
■ 20.0
41.3
22.5
Traf
He
2.6^10^
1
34.2
34.2
Uoun
led
4.o|8/
1
44.0
24.0
1
Emerg
mcy
(m
1
56.4
23.1
1
Training
school
■ 20.3
L
33.6
29.1
1
PJH CENT. SUPERIOR
42.3
37.0
43. T
11.2
11.)
Pat rolmen
Diagram 1. — Intelligence ratings of divisions of Cleveland police department.
About 40 per cent, of the ofiicers of the department rate in the su-
perior grades of intelligence. These ratings were secured by about 13.5
per cent, of the draft army. Another 32 per cent, of the officers are of
high average intelUgence; about 20 per cent, are average, while 6 per
cent, are low average. There are no representatives among the officers
in the inferior grades of intelligence.
Of the patrolmen, there are 12 per cent, in the superior grades, 28 per
cent, are high average, while the greatest percentage (34) are average.
There is a heavier percentage of patrolmen in the low average group than
in the superior groups, and about 3 per cent, are definitely in the inferior
grades of intelligence. Of the various divisions of the patrolmen, the
emergency and mounted police have the higher intelligence distributions.
1688]
The detectives, a group of 63 men, rate lowest in the entire depart-
ment. There are less than 5 per cent, in the superior grades, and about
23 per cent, are high average, while 70 per cent, are cither average, low
average, or inferior.
A further comparison of these divisions of police is shown in Table 3,
page (57, and in Diagrams 2 and 3, by comparing their median scores
and the range of scores of the high, middle, and low third of each divi-
sion. The median scores of the officers varies between 95 and 98.
These are high scores in the high average grade of intelligence. The
patrolmen have a median of 67, which falls in the average grade of
intelligence, while the detectives are the lowest of the divisions, with a
median of 59.
At present the detectives are ranking, as far as salary is concerned,
with the lieutenants, but a comparison of these two groups shows that
the lieutenants have 37 per cent, of representatives in the superior grades
of intelligence, as opposed to 4.8 per cent, of the detectives, and only
23.9 per cent, in the average and low average grades, as compared with
71.4 per cent, of the detectives. The lieutenants' median falls at 95,
while the detectives' is 59. Furthermore, the low third of the lieutenants
has a higher range of scores than the middle third of the detectives.
\Vhen compared with the results obtained from the recent draft
army, there is, of course, a very small percentage (3.6 per cent.) of men
in the police department who rate in the inferior grades of intelligence
in which the lowest 25 per cent, of the men in the draft army were classi-
fied. The men of the police department group themselves closely about
the average grade of intelligence, and the medians of the patrolmen are
about identical with the medians of the draft army. With the exception
of the officers, there is a smaller percentage of representatives in the
police department in the superior grades of intelligence than were found
in the draft army. The detectives have no representatives in the very
superior grade of intelhgence, a classification secured by 4.5 per cent, of
the draft army, and only three individuals of the detectives have superior
intelligence, as opposed to 9 per cent, of the draft. As a whole, however,
the police department ranks somewhat higher than the majority of the
men of the draft. This is evident in its somewhat larger percentage of
representatives of high average intelligence.
Table 4, page 68, shows a distribution of intelligence ratings of
patrolmen according to the date of entr>" into the police department.
There is very little difference in the ratings of the first year groups, who
entered between 1895-1919. There is a slight decrease with length of
service, much of which may be attributed to the deterioration of in-
45 I 689 ]
r
Captains
Lieutenants
I Sergeants
98
95
99
r
[
Detectives
I Vice Bquad
I Traffic police
r Mounted police
I Emergency police
Patrolmen
I Training school
59
61
3"
67
67
63
Diagram 2. — Median scores, Cleveland police department.
ALPHA SCO HI
40 50 eO 70 80 90 100 110 120
I ■ I ■ t • I I I I I 1 L—i I ■ I
I
1
Sergeants
1
1
Lieutenants
1
1
Captains
I
1
Emerge
ncy
1
1
Mounted
r '
1
1
Training school
r
I
1
Vice
squad'
1
1
Patrolmen
Detectives
Traffic police
Diagram 3. — Range of scores between first and third quartiles of Cleveland police
department. (The median scores are indicated by the cross lines.)
[690]
H
15
<
^1"
.lopiopp q o
tayrai'C ic o ":> o
a. g -, f, c^ - _
o
8
P«r o«nl.
135
61.5
25.0
^ 00 q u5 M » o; t';
O
8
S 00 CD O
* to Ci CO
1-^ -^
Q
H
^ CO Cl l~ M to IN
OJ
lii
^ ■ M cc -H :*? ro r^-
o c ' L^i ci c*i O ic ^
a. g «.vc^
o
8
g CO l~ o
"in r- t-
1
H
o • e<5 -< T lo CO —
2 • —M-H
lii
o o -H o ir; « oc ui ■
a. g M ro M
o
8
S CO 00 o»
* t>; -i in
O
6«.fl. t^ CO OS.* ■
S
a
<
1^==
|22
_;Or~o-.s-H05Ci
q
go CD 00
03
^^ocogco^-.
s
55
1j:2
|S2
^ _. -- Tj< in CO q 'j; CO
JJocood"^»c>ocoo
6. J; coco-<
o
1
g in 00 t^
0*
§
O
O
^^'Jjggg^-
3
•a
. -coq-: • ;
o
8
1 q
a. -^
1 : :°=S^ : :
CO
CO
ca
1o
^_;Mc^q t^iraeo •
o< 8 — coco —
o
8
g «n M CO
"in - CO
fe — 00
o»~r^cococo •
A »-< C< CO •-*
g
5
(£1
O
1^
^ .^ X Ci C: X M •
o o t-; -r lo c 'T -< ■
t. g — c^co —
o
8
g (N CO M
" t>: -: -
a*
6 CO (C) — in c^l — ■
Z — CJ CI —
00
7
0
<
a
1 III
flillsl
1 1 .1
1 1 1
22.5
+ 1
4- 1
<ifflUUC;QH
1 f.91 ]
creasing age. The table also shows that the men who entered during
the present year, 1921, have a considerably higher percentage of men
of superior intelligence. The war year, 1918, produced no men either
of superior or of inferior intelUgence. All of the entrants in that year
rate in the average classes of intelligence.
(>92
APPENDIX VI
INTELLIGENCE SURVEY OF THE CLEVELAND WORKHOUSE
Bt E. K. Wickman
PBj'cholocut, I>iviflioD of th« CrimiDologist, Illiooia
AN INTELLIGENCE survey of the workhouse of Cleveland, Ohio,
/-\ was made in connection with the survey of the Administration of
•^ -^ Justice, to illustrate some of the results which may be obtained
by mental studies. The population of this institution was about 450 men,
of whom about one-fifth were examined by the use of the Army Alpha
InteUigence Examination. This one-fifth was chosen by assembling the
men in single file and selecting everj- fifth man in hne for examination.
To this group were added all of the men who were at the workhouse on
federal charges, and also the group of men called "long termers." One
hundred and twenty-six men were thus assembled for the examination;
of these, 32 were illiterate and were unable to take the examination, inso-
far as the}' claimed to be unable to read and write, and one other man
was unable to take the examination because of poor vision.
Records were thus secured on 93 of the men, of whom 44 (47 per cent.)
were native-born whites, 32 (34 per cent.) were negroes, and 13 (14 per
cent.) were foreign born. Four men did not indicate birth or race.
The distribution of inteUigence ratings as secured by the army Alpha
examination is given in Table 5.
The literate native-born white group who took the examination fall
mostly in the average grades of intelligence, but about 15 per cent, of
them are inferior. The army statistics show about 14 per cent, inferior in
this group of native-born whites. There are, however, only about 4 per
cent, in the superior groups, as opposed to 15 per cent, in the army.
Of the negroes, 61 per cent, fall in the inferior groups of intelligence as
opposed to 43 per cent, in the army.
The average rating for the white prisoners fall in the "C" or average
group of int<?lligence, as it also did in the army, while the average for the
negro prisoners falls in the " D " or inferior group, while the army average
was "C— " or low average group.
1693)
TABLE 1.— DISTRIBUTION OF INTELLIGENCE RATINGS IN THE
WORIvHOUSE
Native
born
white
Foreign
born
AE
whites
Negroes
Race
unknown
Total
Per
Per
Per
Per
No.
cent.
No.
No.
cent.
No.
cent.
No.
No.
cent.
A
B
2
4.5
1
3
5.3
3
3.2
c+
16
36.4
16
28.0
16
17.2
c
13
29.6
1
14
24.5
2
6.2
16
17.2
c-
6
13.6
3
9
15.8
7
21.9
16
17.2
D
2
4.5
4
6
10.5
9
28.1
15
16.2
E
5
11.4
4
9
15.8
14
43.8
4
27
29.0
Total
44
100.0
13
57
99.9
32
100.0
4
93
100.0
Per cent
30
25
20
15
10
5
j
\
/
\
^"i
^
\
/
\
^^^
Workhouse "Nj
K
/
^
V
//
N
^v.
L-
N
^•<:
X
N
Diagram 1. — Comparison of intelligence distributions of Cleveland Workhouse and
United States Draft Army.
26.3
68 4
5.3
^^■■H
^^^^^^^^H
24.1
VThites, Warrensville Woriiiousa 53.3
12.1
HHIHH
Whites, United States Draft Army
71 .9 28
1
■^^■^^^^^^^^^^^^^H
43.1
Negroes, Warrensville Workhouse 531
3.8
P
Negroes, United States Draft Army
Diagram 2. — Comparison of intelligence ratings, Warrensville Workhouse with
United States Draft Army.
[694]
DiiiRnim I sliows the (listrilmtion of intrlliKctu'c ratings of the Clevo-
lanii woikliou.sf with flu> Unitod States draft army. In DiaRrain 2 the
same distribution is shown for whit«'s and nt-grocs separately.
These results would undoubtedly Ih" lowered if ratings of the illiterate
men were incluiled, so that it may safely l)e said that the intelligence of
these men at the Cleveland workhouse is somewhat lx»low the draft army
intelligence.
[6951
APPENDIX VII
TEXT OF THE MASSACHUSETTS MEDICAL EXAMINER
LAW
The Commonwealth of Massachusetts
Ge7ieral Laws, Chapter 38
Medical Ex.\miners
Section 1. The governor, with the advice and consent of the council,
shall appoint for terms of seven years able and discreet men, learned in the
science of medicine, as medical examiners in and for their respective counties,
and as associate medical examiners in and for their respective districts in coun-
ties divided into districts, otherwise in and for their respective counties, in
number as follows:
Two examiners and two associate examiners in Suffolk county, and one
examiner and one associate examiner in Nantucket county and in each of the
following districts:
Barnstable county, district one, comprising Harwich, Dennis, Yarmouth,
Brewster, Chatham, Orleans and Eastham; district two, Barnstable, Bourne,
Sandwich, Mashpee and Falmouth; and district three, Provincetown, Truro
and Wellfleet.
Berkshire county, district one, comprising North Adams, Williamstown,
Clarksburg, Adams, Florida, Savoy, New Ashford and Cheshire; district two,
Pittsfield, Lanesborough, Windsor, Dalton, Hinsdale, Peru and Hancock; dis-
trict three, Richmond, Lenox, Washington, Becket, Lee, Stockbridge, TjTing-
ham and Otis; and district four, West Stockbridge, Alford, Great Barrington,
Monterey, Sandisfield, New Marlborough, Sheffield, Egremont and Mount
Washington.
Bristol county, district one, comprising Attleboro, North Attleborough,
Seekonk, Norton, Mansfield and Rehoboth; district two, Taunton, Raynham,
Easton, Berkley, and Dighton; district three, Fall River, Somerset, Swansea,
Freetown and Westport; and district four. New Bedford, Dartmouth, Fair-
haven and Acushnet.
Dukes county, district one, comprising Edgartown and Oak Bluffs; dis-
trict two, Tisbury, West Tisbury and Gosnold; and district three, Chilmark
and Gay Head.
Essex county, district one, comprising Gloucester and Rockport; district
[696]
two, Ipswich, Rowloy, Hamilton and Rsnox; district throe, Nowhiin-port, New-
bury, West Newbur>', Anicsbury and Salisbury; district four, Haverhill and
Merrimac; district five, Lawrence, Methuen, Andover and North Andover;
district six, CJeorRetown, Boxford, Topsfield and Groveland; district seven,
Beverly, Wenhain and Manchester; district eight, Peabody, Danvers, Middle-
ton and Lynnfield; district nine, Lynn, Saugus, Nahant and Swampscott; and
district ten, Salem and Marblehead.
Franklin county, the northern district, comprising Orange, Warwick, New
Salem and Wendell; the east<'rn district, Bernardston, Er\'ing, Gill, Greenfield,
I-everett, Montague, Northfield, Shutesbun." and Sunderland; and the western
district, Ashficld, Buckland, Charleinont, Colrain, Conway, Deerfield, Hawley,
Heath, Ixyden, Monroe, Rowe, Shclburne and Whatcly.
Hampden county, district one, comprising Brimfield, Holland, Palmer,
Monson and Wales; district two, Springfield, Agawam, East liOngmeadow,
Longmeadow, West Springfield, Wilbraham and Hampden; district three,
Holyoke; district four, Blandford, Chester, Granville, Montgomen.', Russell,
South wick, Tolland and Westfield; and district five, Chicopee and Ludlow.
Hampshire county, district one, comprising Northampton, Chesterfield,
Cummington, Goshen, Hatfield, Plainfield and Williamsburg; district two,
Easthampton, Huntington, Middlefield, Southampton, Westhampton and
Worthington; district three, Amherst, Granby, Hadley, Pelham and South
Hadley; and district four, Belchertown, Enfield, Greenwich, Prescott and Ware.
Middlesex county, district one, comprising Cambridge, Belmont and Arling-
ton; district two, Maiden, Somer\-ille, Everett and Medford; district three,
Melrose, Stoneham, Wakefield, Wilmington, Reading and North Reading; dis-
trict four. Woburn, Winchester, Lexington and Burlington; district five, Lowell,
Dracut, Tewksburj-, Billerica, Chelmsford and Tyngsborough ; district six.
Concord, Carlisle, Bedford, Lincoln, Littleton, Acton and Boxborough; district
seven, Newton, W'altham, Watertown and Weston; district eight, Framingham,
Wayland, Natiek, Sherborn, Holliston, Hopkinton and .Ashland; district nine,
Marlborough, Hudson, Maynard, Stow and Sudbury; district ten, Ayer, Groton,
Westford, Dunstable, Pepperell, Shirley, Townsend and Ashby.
Norfolk county, district one, comprising Dedham, Needham, W^ellesley,
Westwood, Norwood and Dover; district two, Cohas.sot; district three, Quincy,
Milton and Randolph; district four, Weymouth, Braintrec and Holbrook; dis-
trict five, Avon, Stoughton, Canton, Walpole and Sharon; district six, Frank-
lin, Foxborough and Wrentham; district seven, Medway, Medfield, Millis,
Norfolk and Bellingham; and district eight, Brookline.
Plj-raouth county, district one, comprising Brockton, W'est Bridgewater,
East Bridgewater, Bridgewater and Whitman; district two, Abington, Rock-
land, Hanover, Hanson, Norwell and Pembroke; district three, Plj-mouth,
Halifax, Kingston, Plympton and Duxbury; district four, Middleborough,
Wareham, Mattapoisett, Carver, Rochester, Lakeville and Marion; and dis-
trict five, Hingham, Hull, Scituatc and Marshfield.
(697 1
Worcester county, district one, comprising Athol, Dana, Petersham, Phillips-
ton and Royalston; district two, Gardner, Templeton and Winchendon; dis-
trict three, Fitchburg, Ashburnham, Leominster, Lunenburg, Princeton and
Westminster; district four, Berlin, Bolton, Boylston, Clinton, Harvard, Lan-
caster and Sterling; district five, Grafton, Northborough, Southborough and
Westborough; district six, Hopedale, Mendon, Milford and Upton; district
seven, Blackstone, Douglas, Millville, Northbridge and Uxbridge; district eight,
Charlton, Dudley, Oxford, Southbridge, Sturbridge and Webster; district nine,
Brookfield, East Brookfield, North Brookfield, Spencer, Warren and West
Brookfield; district ten, Barre, Hubbardston, Hard wick. New Braintree, Oak-
ham and Rutland; and district eleven, Worcester, Auburn, Holden, Leicester,
Millbury, Paxton, Shrewsbury, Sutton and West Boylston.
Section 2. The associate medical examiners for Suffolk county shall, at
the request of either of its medical examiners, perform the duties and have
the powers of medical examiners. Each medical examiner shall in each year be
entitled to two months' service in the aggregate from the associates. Associate
examiners in the other counties shall, in the absence of the medical examiners
or in case of their inability to act, perform in their respective districts all the
duties of medical examiners.
Section 3. Each examiner and associate examiner, before entering upon
his duties, shall be sworn and give bond for the faithful performance thereof,
in the sum of five thousand dollars, to the county treasurer, with sureties by
him approved. Failure for three months after appointment to give such bond
shall render his appointment void. A surety or his executors or administrators
may be discharged from further liabiUty thereon in the manner provided in
section six of chapter thirty-seven.
Section 4. Upon breach of the condition of such bond to the injury of
any person, the principal may be removed from office and action brought thereon
in like manner as upon the bond of a sheriff.
Section 5. In Suffolk county each medical examiner shall receive from
the county a salary of five thousand dollars, and each associate medical examiner
a salary of eight hundred and thirty-three dollars; but if either associate serves
in any year more than two months, he shall for such additional ser\ice be paid
at the same rate, and the amount so paid shall be deducted from the salary of
the medical examiner at whose request he so serves. The medical examiners
for said county shall be provided with rooms suitably furnished for the per-
formance of their duties, the rent, furnishing and office equipment of which
shall be paid for by said county upon approval of the mayor of Boston. Each
of said medical examiners may, in the name of the county, contract such bills
for clerical service, postage, stationery, printing, telephone, traveling, and for
such other incidental expenses as may in his opinion be necessary for the proper
performance of liis duty, to an amount not exceeding six thousand dollars in
any one year; and each associate may so contract bills for the said purposes
[698]
to an amount not exceeding one thousand dollars in any one year; and all such
bills shall be paid by said county, U|X)n a certificate by the contracting examiner
that they were necessarily incurred in the performance of his duty, and upon
the approval of the auditor of Boston, as provided in section nineteen, and of
the mayor. Medical examiners and associate medical examiners in other coun-
ties shall receive fees as follows: For a view without an autopsy, seven dollars;
for a view and an autopsy, thirty dollars; and for travel, ten cents a mile to
and from the place of view.
Section 6. Medical examiners shall make examination upon the view of
the dead bodies of only such persons as are supposed to have died by violence.
If a medical examiner has notice that there is within his county the body of
such a person, he shall forthwith go to the place where the body lies and take
charge of the same; and if, on view thereof and personal inquiry into the cause
and manner of death, he con.siders a further examination necessar>-, he shall,
upon written authorization of the district attorney, mayor or selectmen of the
district, city or town where the body lies, make an autopsy in the presence of
two or more discreet persons, whose attendance he may compel by subpcena.
Before making such autopsy he shall call the attention of the witnesses to the
appearance and position of the body. He shall then and there carefully record
every fact and circumstance tending to show the condition of the body and the
cause and manner of death, with the names and addresses of said witnesses, which
record he shall subscribe. If a medical examiner or an associate examiner con-
siders it necessar>' to have a physician present as a witness at an autopsj-, such
physician shall receive a fee of five dollars. Other witnesses, except oiBcers
named in section fifty of chapter two hundred and sixty-two, shall be allowed
two dollars each. A clerk may be employed to reduce to wTiting the results of
a medical examination or autopsj', and shall receive two dollars a day.
The medical examiner may, if he considers it necessary, employ a chemist
to aid in the examination of the body or of substances supposed to have caused
or contributed to the death, and he shall receive such compensation as the
e.xaminer certifies to be just and reasonable.
Section 7. He shall forthwith file with the district attorney for his dis-
trict a report of each autopsy and view and of his personal inquiries, with a
certificate that, in his judgment, the manner and cause of death could not be
ascertained by view and inquirj- and that an autopsy was necessarj-. The dis-
trict attorney, if he concurs, shall so certify to the commissioners of the county
where the same was held, or in Suffolk county, to the auditor of Boston. If
upon such vievr, personal inquir>' or autopsy, the medical examiner is of opinion
that the death may have been caused by the act or negligence of another, he
shall at once notify the district attorney and a justice of a district court or trial
justice within whose jurisdiction the body was found, if the place where found
and the place of the said act or negligence are within the same county, or if
the latter place is unknown; otherwise, the district attorney and such a justice
[699]
within whose district or jurisdiction the said act or negligence occurred. He
shall also file with the district attorney thus notified, and with the justice or in
his court, an attested copy of the record of the autopsy made as provided in the
preceding section. He shall in all cases certify to the town clerk or registrar in
the place where the deceased died his name and residence, if known; otherwise
a description as full as may be, with the cause and manner of death.
Section 8. The court or trial justice shall thereupon hold an inquest,
from which all persons not required by law to attend may be excluded. The
district attorney, or any person designated by him, may attend the inquest
and examine the witnesses, who may be kept separate, so that they cannot
converse with each other until they have been examined. Within sixty days
after any case of death by accident upon a railroad, electric railroad, street
railway or railroad for private use an inquest shall be held, and the court or
justice shall give seasonable notice of the time and place thereof to the depart-
ment of public utilities. Within a like period after any case of death in which
a motor vehicle is involved, an inquest shall be held, and the court or justice
shall give seasonable notice of the time and place thereof to the department of
public works. The attorney general or the district attorney may, notwith-
standing the medical examiner's report that a death was not caused by the act
or negligence of another, direct an inquest to be held, and hkewise in case of
death by any casualty.
Section 9. If it appears that the place where the supposed act or negli-
gence occurred and the place where the body was found are both without the
limits of the judicial district of the court or the jurisdiction of the trial justice
notified by the medical examiner under section seven, the court or justice shall
nevertheless proceed with the inquest and have continuous and exclusive juris-
diction thereof if either place is within the commonwealth and within fifty rods
of the boundary line of such district or jurisdiction, unless a prior and like
notice shall have been issued by a medical examiner in another county in ac-
cordance with said section.
Section 10. A district court about to hold an inquest may appoint an
officer qualified to serve criminal process to investigate the case and to sum-
mon the witnesses, and may allow him additional compensation therefor, pay-
able in like manner as the fees of officers in criminal cases.
Section 11. If a magistrate believes that an inquest to be held by him
relates to the accidental death of a passenger or employee upon a railroad or
electric railroad or a traveler upon a public or private way at a railroad cross-
ing, or to an accidental death connected with the operation of a street railway
or of a railroad for private use, he shall cause a verbatim report of the evidence
to be made and sworn to by the person making it; and the report and the bill
for services, after examination and written approval by the magistrate, shall be
forwarded to the department of public utilities within thirty days after the
date of the inquest, and, when made, a copy of the magistrate's report on the
[700]
inquest. The bill, when approved by said department, .shall bo forwarded to
the state auditor and paid by the commonwealth, a.H.so».>(cd on the ptirson own-
ing or operating such railroad or railway, and shall Ix? collected in the Hame
manner as taxes upon corporation.s. The magi.<<trate may in his dwcretion refu.te
fees to witnesses in the employ of the person upon whose railroad or railway the
accident occurred.
Section 12. The magistrate shall report in writing when, where and by
what means the person met his death, his name, if known, and all material
circum.stances attending hLs death, and the name, if known, of any person whose
unlawful act or negligence appears to have contributed thereto. He shall file
his report in the superior court for the county where the inquest is held.
Section 13. If a person charged by the report with the commission of a
crime is at large, the magistrate shall forthwith issue process for his arrest,
returnable before any court or magistrate having jurisdiction. If he finds that
murder, manslaughter or an as-sault has been committed, he may bind over,
for appearance in said court, as in criminal cases, such witnesses as he considers
necessar>-, or as the district attorney may designate.
Section 14. No embalming fluid, or any substitute therefor, shall be in-
jected into the body of any person supposed to have met his death by violence,
until a permit, signed by the medical examiner, has first been obtained.
Section 15. After an autopsy or a view or examination without an autopsy,
the medical examiner shall deliver the body, upon application, to the husband
or wife, to the next of kin, or to any friend of the deceased, who shall have
priority in the order named. If the body is unidentified or unclaimed for forty-
eight hours after the xnew thereof, the medical examiner shall deliver it to the
overseers of the poor of the town where found, who shall bur>- it in accordance
with section seventeen of chapter one hundred and seventeen.
Section 16. Medical examiners and associate examiners within their re-
spective districts shall, on application and payment or tender of seven dollars,
view the body and make personal inquirj- concerning the death of any person
whose body is intended for cremation, and shall authorize such cremation only
when of opinion that no further examination or judicial inquiry concerning such
death is necessary*.
Section 17. The medical examiner may allow reasonable compensation,
payable by the county in the manner provided in section nineteen, for .ser\ices
rendered in bringing to land a human body found in any of the harbors, rivers
or waters of the commonwealth, but this provision shall not entitle any person
to compensation for services rendered in searching for a dead body.
Section 18. The medical examiner shall take charge of any money or
other personal property of the deceased found on or near the body, and deliver
it to the person entitled to its custody or possession, or, if not claimed within
(701)
sixty days, to a public administrator. For fraudulent neglect or refusal so to
deliver such property within three days after demand, a medical examiner or
an associate medical examiner shall be punished by a fine of not more than five
hundred dollars or by imprisonment for not more than two years.
Section 19. Every medical examiner shall return an account of the ex-
penses of each view or autopsy, including his fees, to the commissioners of the
county where held, or in Suffolk county to the auditor of Boston, and shall
annex to his return the written authorization of the autopsy. The commis-
sioners or auditor shall audit the same, and certify to the county treasurer what
items therein are just and reasonable, and he shall pay the same to the person
entitled thereto. No auditing officer shall certify any fee for an autopsy until
he has received from the district attorney the certificate required by section
seven.
Section 20. Every medical examiner and associate examiner shall an-
nually, on or before March first, transmit to the state secretary certified copies
of the records of all deaths by him investigated during the preceding year, and
within sixty days after the expiration of his term shall make like returns for so
much of the year as he held office. For a refusal or neglect so to do, he shall
forfeit not less than ten nor more than fifty dollars.
Section 21. Each medical examiner and associate examiner, including
those in Suffolk county, shall receive from the commonwealth twenty cents for
each of the first twenty deaths recorded and returned by him in any year, as
provided in the preceding section, and ten cents for each additional death so
recorded and returned, as certified by the state secretary.
Section 22. The state secretary shall, at the expense of the common-
wealth, prepare and furnish to the medical examiners blank record books and
blank forms for returns, and shall cause the returns for each year to be bound
together in one volume with indexes; and shall prepare therefrom such tables
as wUl render them of utility, and shall make annual report thereof to the gen-
eral court in connection with the report required by section twenty-one of
chapter forty-six.
,702]
APPENDIX VIII
TEXT OF THE NEW YORK MEDICAL EXAMINER LAW
Laws of New York, 1915
Chap. 284
AN ACT fo aniond the Greater New York Charter, and repeal certain
/% sections thereof and of chapter four hundred and ten of the Laws of
JL ^ eighteen hundretl and eighty-two, in relation to the abolition of the
office of Coroner and the establishment of the office of the chief medical examiner.
Became a law April 14, 1915, with the approval of the Governor. Passes,
three-fifths being present.
Accepted by the City
The People of the State of New York, represented in Senate and Assembly,
do enact as follows:
Section 1. The office of coroner in the City of New York shall be abolished
on January first, nineteen hundre<l and eighteen, and after this section takes
effect, a vacancy occurring in such an office in any borough shall not be filled
unless by reason of the occurrence thereof, there shall be no coroner in office
in such borough, in which case the vacancy in such borough last occurring shall
he filled for a term to expire on January first, nineteen hundred and eighteen.
If, by reason of the provisions of this section, the number of coroners in a borough
be reduced, the remaining coroner or coroners in such borough shall have the
powers and perform the duties conferred or imposed by law on the board of
coroners in such borough.
2. Title four of chapter twenty-three, sections fifteen hundred and seventy
and fifteen hundred and seventy-one of the Greater New York charter, as re-
enacted by chapter four luindred and sixty-six of the laws of nineteen hundred
and one is hereby repealed, and in its place is inserted a new title to be num-
bered four and to read as follows:
Title IV
Chief Medical Examiner
Section 1570. Organization of office; officers and employees.
1571. Violent and suspicious deaths; procedure.
1571a. Autopsies; findings.
1571b. Report of deaths ; removal of body.
1571c. Records.
1571d. Oaths and affidavits.
1703]
Organization of Office; Officers and Employees
1570. There is hereby established the office of Chief Medical Examiner of
the City of New York. The head of the office shall be called the "chief medical
examiner." He shall be appointed by the mayor from the classified service and
be a doctor of medicine, and a skilled pathologist and microscopist.
The mayor may remove such officer upon stating in writing his reasons
therefor, to be filed in the office of the municipal civil service commission and
served upon such officer, and allowing him an opportunitj' of making a pubUc
explanation. The chief medical examiner may appoint and remove such deputies,
assistant medical examiners, scientific experts, officers and employees as may
be provided for pursuant to law. Such deputy medical examiners and assistant
medical examiners, as may be appointed, shall possess qualifications similar to
those required in the appointment of the chief medical examiner. The office
shall be kept open every day in the year, including Sundays and holidays, with
a clerk in constant attendance at all times during the day and night.
Violent and Suspicious Deaths; Procedure
1571. When, in the city of New York, any person shall die from criminal
violence, or by a casualty, or by suicide, or suddenly when in apparent health,
or when unattended by a physician, or in prison, or in any suspicious or unusual
manner, the officer in charge of the station house in the police precinct in which
such person died shall immediately notify the office of the chief medical examiner
of the known facts, concerning the time, place, manner and circumstances of
such death. Immediately upon receipt of such notification the chief medical
examiner, or a deputy or assistant medical examiner, shall go to the dead body,
and take charge of the same. Such examiner shall fully investigate the essential
facts concerning the circumstances of the death, taking the names and address
of as many witnesses thereto as it may be practical to obtain, and before leaving
the premises, shall reduce all such facts to writing and file the same in his oflBce.
The police officer so detailed, shall, in the absence of the next of kin of deceased
person, take possession of all property of value found on such person, make an
exact inventory thereof on his report, and deliver such property to the poUce
department, which shall surrender the same to the person entitled to its custody
or possession. Such examiner shall take possession of any portable objects,
which, in his opinion, may be useful in establishing the cause of death, and
deliver them to the police department.
Nothing in this section contained shall effect the powers and duties of a
public administrator as now provided by law.
Autopsies; Findings
1571a. If the cause of such death shall be established beyond a reasonable
doubt, the medical examiner in charge shall so report to his office. If, however,
in the opinion of such medical examiner, an autopsy is necessary, the same shall
[70-1]
be porfornioci l)v a medical examiner. A detailed deflcription of the findinKs
written diiritiK the progress of siirli autopsy and the conclusions drawn there-
from shall thereupon be filed in his office.
Report of Deaths; Reinoval of Body
l."i7Ib. It .shall Ih" the duty of any citizen who may become aware of the
death of any such [lerstni to rejwrt such death forthwith to the office of the
chief medical examiner and the police officer, who shall forthwith notify the
officer in charge of the station house in the police precinct in which such person
died. .Any person who shall wilfully neglect or refu.se to report .such death or
who, without written order from a medical examiner, shall wilfully touch, re-
move or disturb the body of any such person, or wilfully touch, remove or dis-
turb the clothing, or any article upon or near such body, shall be guilty of a
misdemeanor.
Records
1571c. It shall be the duty of the office of medical examiner to keep full
and complete records. Such records shall be kept in the office, properly indexed,
stating the name, if known, of every such person, the place where the body was
found, the date of death. The record of each case shall l)e attached to the original
report of the medical examiner and the detailed findings of the autopsy, if any.
The office shall promptly deliver to the appropriate district attorney copies of
all records relating to every death as to which there is, in the judgment of the
medical examiner in charge, any indication of criminality. All other records
shall be open to public inspection as provided in section fifteen hundred and
forty-five. The appropriate district attorney and the police commissioner of
the city may require, from such officer, such further records and such daily
information as they may deem necessar>-.
Oalks and Affidavits
1371d. The chief medical examiner and all deputy or assistant medical
examiners may administer oaths and take affidasnts, proofs and examinations
as to any matter within the jurisdiction of the office.
3. Section eleven hundred and seventy-nine of such charter is hereby
amended to read as follows:
Bureaus
1179. There shall be two bureaus in the department of health. The chief
officer of one bureau shall be called the sanitary superintendent, who at the
time of his appointment shall have been, for at least ten years, a practicing
physician, and for three years a resident of the City of New York, and he shall
be the chief executive officer of said department. The chief officer of the second
bureau shall be called the registrar of records, and in said bureau shall be re-
46 [ 705 1
corded, without fees, every birth, marriage and death, which shall occur in the
City of New York.
4. Section twelve hundred and three of such charter is hereby amended
to read as follows:
Chief Medical Examiner's Returns
1203. The department of health, may, from time to time, make rules and
regulations fixing the time of rendering, and defining the form of returns and
reports to be made to said department by the office of the chief medical examiner
of the city of New York, in all cases of death which shall be investigated by it,
and the office of the chief medical examiner is hereby required to conform to
such rules and regulations.
5. Section twelve hundred and thirty-eight of such charter is hereby
amended to read as follows:
Deaths to he Reported
1238. It shall be the duty of the next of kin of any person deceased, and
of each person being with such deceased person at his or her death, to file report
in writing, with the department of health, within five days after such death,
stating the age, color, nativity, last occupation and cause of death of such
deceased person, and the borough and street the place of such person's death
and last residence. Physicians who have attended deceased persons in their
last illness shall, in the certificate of the deceased of such persons, specify, as
near as the same can be ascertained, the name and surname, age, occupation,
term of residence in said city, place of nativity, condition of life whether single
or married, widow or widower, colored, last place of residence and the cause of
death of such deceased persons, and the medical examiners of the city shall, in
their certificates, conform to the requirements of this section.
6. Such charter is hereby amended by inserting therein a new section to
be numbered fifteen hundred and eighty-five, and to read as follows:
County Clerks to Exercise Certain Statutory Powers and Duties of Coroners
1585a. In the city of New York the powers imposed and the duties con-
ferred upon coroners by the provisions of the title three of chapter two of the
code of civil procedure shall be exercised and performed by the county clerk of
the appropriate county, and said county clerk shall, in the exercise and per-
formance thereof, be subject to the same liabilities and responsibilities as are
prescribed in such title in the case of coroners.
7. Sections seventeen hundred and sixty-six to seventeen hundred and
seventy-nine, both inclusive, of chapter four hundred and ten of the laws of
eighteen hundred and eighty-two, entitled "An Act to consolidate into one act
and to declare the special and local laws affecting public interests in the city
of New York," and all acts amending such sections are hereby repealed.
[706]
8. The officers and the employees now exerciaini; the powers and duties
which hy this act are alKihshcti, or arc confrrred or imposed upon the office of
chief medical examiner including coroner's physicians, shall be transferred to
the office of chief medical examiner. Service in the office, board or lx>dy from
which transferred shall count for all purposes as service in the office of the chief
mwlical examiner.
9. All funds, property, records, Iwoks, papers and documents within the
jurisdiction or control of any such coroner or such board of coroners, shall, on
demand, be transferred and delivered to the office of the chief medical examiner.
The board of estimate and apportionment shall transfer to the office of the chief
medical examiner all uncxfiendcd appropriations made by the city to enable
any coroner, or board of coroners, to exercise any of the powers and duties
which by this act are abolished or are conferred or imposed upon such office of
chief medical examiner.
10. Section one of this act shall take effect immediately. The remainder
of the act shall take effect January first, nineteen hundred and eighteen.
707)
APPENDIX IX
BIBLIOGRAPHY
Compiled by Edward B. Adams
Librarian of the Harvard Law School
A TOLERABLY complete bibliography of the general subjects
involved in these reports on criminal justice in Cleveland would
^ require a large volume. This is obviously not the place for it.
The following list, therefore, which contains only material in EngUsh,
modern and readily accessible, is intended as merely suggestive.
Police
Anderson, Sir Robert. The Lighter Side of My Official Life. London, 1910.
Cahalane, Cornelius F. Police Practice and Procedure. New York, 1915.
Costello, A. E. Our Police Protectors. New York, 1885.
Eldridge, B. P., and Watts, W. B. Our Rival, the Rascal. Boston, 1897.
Fosdick, Raymond B. American Police Systems. New York, 1920.
European Police Systems. New York, 1915.
The Passing of the Bertillon System of Identification. 6 Jour. Crim. Law
and Criminology, 363.
Fuld, Leonard F. Police Administration. New York, 1909.
Graper, Elmer D. American Police Administration. New York, 1921.
Gross, Hans. Criminal Investigation. Translated from the German by Adam and
Adam. Calcutta, New York, 1907.
Henry, Sir Edward R. Classification and Uses of Finger Prints. Third edition.
London, 1905.
Lansdowne, Andrew. A Life's Reminiscences of Scotland Yard. London, 1890.
Lee, Capt. W. L. M. A History of Police in England. London, 1901.
McAdoo, Commissioner William. Guarding a Great City. New York, 1906.
MacNaghten, Sir Melville. Days of My Years. London, 1914.
New York City. Report of Special Committee of Board of Aldermen appointed to
investigate the Police Department. (Curran report) 1912.
Police Reports. See the periodical reports of the police departments of a few states,
and of all the larger cities.
Ray, P. O. Metropolitan and State Police. 11 Jour. Crim. Law and Criminology,
453-67.
Savage, Edward H. Chronological Record of the Boston Watch and Police from
1631 to 1865, together with the Recollections of a Boston Police Officer or Boston
by Daylight and Gaslight. Second edition. Boston, 1865.
Smith, Lieutenant Colonel Sir Henry. From Constable to Commissioner. London,
1910.
United States Census. Report on American Police Departments. Washington, 1915.
[708]
Vincent, C. E. Howard. A Police Code. Fifteenth edition. London, 1912.
VoUmer, August, rmdicil Method for Selecting Policemen. II Jour. Crira. Law and
CriminoloKy, .')7 1-^(1.
and Schneider, Albert. School for Police as Planned at Berkeley. 7 Jour.
Crim. I.iuv iind CriminoloKy, 877-898.
Walling, George W. Kocollections of a New York Chief of Police. New York, 18S8.
Wilder, H. H., and Wentworth, B. Personal Identification. Boston, 1918.
Woods, Arthur. Crime Prevention. Princeton University Press, 1918.
Policeman and Public. Yale University Press, 1919.
Criminal Courts and Procedure
Alexander, G. Glover. The .Administration of Justice in Criminal Matters (in Eng-
land and Wales). Cambridge (England), new edition, 191.').
American Bar Association Reports and Journal. P^speoially, since 1908, the Reports
of the Special Committee to Suggest Remedies and Formulate Proposed Laws to
Prevent Delay and Unnecessary Cost in Litigation and of similar committees.
American Institute of Criminal Law and Criminology. Criminal Procedure in Eng-
land. Washington, Government Printing Office, 1914.
American Judicature Society. Bulletins and, since 1917, Journal. Chicago, 1914-.
Ballantine, Sergeant. SomeExperiencesof a Barrister's Life. 2 vols. London, 1882.
Barrows, Samuel J. Children's Courts in the United States. Washington, 1904.
Cobb, W. B. Court of Prevention: the Municipal Term Court of the City of New
York. 11 Jour. Crim. Law and Criminology, 47-59, May, 1920.
Edwards, George J., Jr. The Grand Jury. Philadelphia, 1906.
Eliot, Thomas D. The Juvenile Court and the Community. New York, 1914.
Flezner, Bernard, and Baldwin, R. N. Juvenile Courts and Probation. New York,
1914.
Gamon, H. R. P. The London Police Court, Today and Tomorrow. London, 1907.
Goldman, Mayer C. The Public Defender. Second edition, New York, 1919.
Hall, James P. The Selection, Tenure and Retirement of Judges, (.\ddress before
the Ohio State Bar Association, 1915.) Bulletin X, American Judicature Society.
Harley, H. Business Management for the Courts us Exemplified by the Municipal
Court of Chicago. 5 Va. L. Rev., 1-26, October, 1917.
Detroit's New Model Criminal Court. 11 Jour. Crim. Law and Criminology,
398-412, November, 1920.
Justice or Litigation. 6 Va. L. Rev., 143-155, December, 1919.
Judicial Statistics, England and Wales. Published annually in London by the Home
Office.
Justice through Simplified Legal Procedure. By many hands. Annals of Am. Acad.
of Pol. and Soc. Science, September, 1917.
Kales, Albert M. .\ Comparative Studv of the English and the Cook Countv Judicial
Establishments. 4 111. Law Rev., 303.
Methods of Selecting and Retiring Judges. Bulletin VI, American Judicature
Society, 29.
Reorganization of the Circuit and Superior Courts of Cook County. 7 III.
Law Rev., 218, 291.
Learning, Thomas. A Philadelphia Lawyer in the London Courts. New York, 1911.
Levy, J. H. The Necessity for Criminal Appeal, as illustrated by the Maybrick case.
New York, 1902.
MacChesney, N. W. EflBcient Administration of Justice. 15 111. Law Rev., 14-23,
May, 1920.
Mack, Julian W. The Juvenile Court. Address before the Minnesota State Bar
Association, 1907.
47 [709]
Massachusetts Judicature Commission. Second and Final Report, 1921.
Massachusetts Law Quarterly. 1915-.
Moley, Raymond. The Municipal Court of Cleveland. National Municipal Review,
vol. 5, No. 3.
Miinsterburg, Hugo. On the Witness Stand. New York, 1909.
Municipal and Juvenile Courts. See periodical reports of the Municipal, Juvenile, or
similar courts of the larger cities, especially Boston, Chicago, Cleveland, New
York, and Philadelphia.
National Economic League. Eliot, Charles W., and others. Preliminary report on
Efficiency in the Administration of Justice, 1914.
Olson, Harry. Efficiency in the Administration of Criminal Justice. New York
State Bar Association. Reports, 1917.
Municipal Court of Chicago — its Organization and Administration. Cent.
L. J., 92: 81-91, February 4, 1921.
Parmelee, Maurice. The Principles of Anthropology and Sociology in their Rela-
tions to Criminal Procedure. New York, 1912.
Pound, Roscoe. Administration of Justice in the Modern City. 26 Harvard Law
Rev., 302 (1913).
Bibliography of Procedural Reform, Including Organization of Courts. 11 111.
Law Rev., 451 (1917). Reprinted, with a short supplement, in 5 Mass. Law
Quar., 332, May, 1920.
Causes of Popular Dissatisfaction with the Administration of Justice. 29 Am.
Bar Assn. Reps., 395 (1906).
The Future of the Criminal Law. 21 Columbia Law Rev., 1-16 (January,
1921).
Inherent and Acquired Difficulties in the Administration of Criminal Justice.
Proceedings Pol. Science Association, 1907, p. 222.
Justice According to Law. Columbia Law Rev., vols. 13 and 14, 1913-14.
Law in Books and Law in Action. (Address before the Maryland State Bar
Association, July, 1909.)
Limits of Effective Legal Action. (Address before the Pennsylvania Bar
Association, June, 1916.)
• Organization of Courts. (Address before the Law Association of Philadelphia,
January 31, 1913.) Bulletin VI, American Judicature Society.
Social Problems and the Courts. (Address before the National Conference
of Charities and Correction, June, 1912.) 18 Am. Jour. Sociology, 331.
Purcell, Edmund D. Forty Years at the Criminal Bar. London, 1916.
Ransom, W. L. Organization of the Courts for the Better Administration of Justice.
2 Cornell L. Q., 186-201, 261-282.
Reform of the Criminal Law and I'rocedure. Annals of Am. Acad, of Pol. and Soc.
Science, July, 1911.
Riddell, W. R. Administration of Justice. Illinois State Bar Association (1914), 353.
Robinson, Louis N. History and Organization of Criminal Statistics in the United
States. Boston, 1911.
Scoville, Samuel, Jr. The Evolution of our Criminal Procedure. Annals of the Am.
Acad, of Pol. and Soc. Science, March, 1914.
Selection and Retirement of Judges. Bulletin IVA, American Judicature Society
(1915).
Smith, Reginald H. Denial of Justice. A Study of Our Existing Administration of
Justice as it Affects Poor Citizens and Immigrants. 3 Journal American Judica-
ture Society, 112-126, December, 1919.
Justice and the Poor. New York, 1919.
Storey, Moorefield. Reform of Legal Procedure. Yale University Press, 1911.
Thompson, J. J. Machinery of Justice; a Study of Courts. 11 111. Law Rev., 406-
418, January, 1917.
1710]
Traill, Arthur. Court*, Criminal!) nnd tlio Cnmorra. New York, 1012.
Tlir I'riHoner lit fhi- Har. Seromi r<liti<in. Now York, 190S.
True .Slorir.H of Crime from the DiHtrii-t Attorney's Ofliro. New York, 1908.
Whitlock, Brand. Knfon-ement of I.iiws in Cities. In(liann|H)li8, 1910.
Wigmore, J. H. \Vimt«"<l — A Cliief Judicial Su(xTintendent. 1 Journal American
Jiuliiiitwri' .^>ciet_v, 7-9, June, 1917.
Williams, Montagu. Ix-avos of a Life. 2 vols. London, 1890.
Later Ix'aves. Ix)ndon, 1S91.
Winslow, J. B. I>-Kal Education nnd Court Reform. 3 Journal American Judicature
Society, t)9-74, Octolwr, 1919.
Pen.\l Tre.\tme.nt
Abbott, Edwin M. The Indeterminate ,'^ntence, Release on Parole and Pardon.
(i .lour. C'rim. Ijiw and Criminology, 7.3.
American I'rison Association, Proceedings of the .\nnual Congresses. 1874-.
Bacon, Corinne, compiler. I'rison Reform. White Plains, N. Y., 1917.
Barrows, Samuel J. The Indeterminate Sentence and the Parole Iaw. Washington,
isits.
Prison Systems of the I'nited States. Washington, 1900.
Reformatory Systems in the I'nited .States. Washington, 1900.
Berkman, Alexander. Prison Memoirs of an .\narchist. New York, 1912.
Boies, Henry M. The Science of Penologj'. New York, 1901.
Brockway, Zebulon R. Fifty Years of Prison Service. New York, 1912.
— The Reformatory .System in the I'nited .States. 1900.
Butler, A. W. Ten Years of the Indeterminate Sentence. Indianapolis, 1917.
Carpenter, Edward. Prisons, Police, and Punishment. London, 1905.
Cassidy, Michael J. Pris^ms and Convicts. 1S97.
Chicago, Report of the Civil Service Commission. Prison Labor and Management;
House of Correction. 1914.
Chute, Charles L. State ."Supervision of Probation. Albany, 1918.
Conti, Ugo. Comments on the .■Xmcrican Prison System. Jour. Crim. Law and
Criminology, July, 1911.
Cook, A. Our i'rison .S>-stem. London, 1914.
DeLacy, W. T. Treatment of Criminals by Probation. 1906.
Du Cane, Edmund F. The Punishment and Prevention of Crime. London, 1885.
Folks, Homer. Developments of Ten Years in New York's Probation Service. .Al-
bany, 1917.
Fomaro, Carlo de. .\ Modern Purgatory. New York, 1917.
George, W. R. The George Junior Republic: Its History and Ideals. NewjYork,
mil.
Gordon, Charles. The Old Bailey and Newgate. London, 1902.
Goring, Charles. The English Convict, a Statistical Study. London, 1913.
GriflSths, Arthur. Chronicles of Newgate. 2 vols. London, 1884.
Henderson, Charles R., ed. Correction and Prevention: Four volumes prepared for
the eighth international prison congress. New York, 1910.
Henderson, Charles R. Modern Prison Systems. Washington, 1903.
Hopkins, Tighe. Wards of the State. Boston, 1913.
Horsley, J. W. Prisons and Prisoners. New York, 1899.
Illinois — Department of Public Welfare. Rules and Laws controlling the division of
Pardons and Paroles. 1919.
Ives, George. A History of Penal Methods. London, 1914.
1711)
Jaffray, Julia K. The Prison and the Prisoner, a Sj-mposium. Boston, 1917.
Journal of Delinquency. Whittier State School, Whittier, California, 1916-.
Leeson, Cecil. The Probation System. London, 1914.
Lewis, Burdette G. The Offender. Second edition. New York, 1921.
Lowrie, D. My Life in Prison. New York, 1912.
Martyn, F. A Holiday in Goal. London, 1911.
Massachusetts Commission on Probation. Probation Manual. Boston, 1916.
Miner, Maude E. Probation Work in the Magistrates' Courts of New York City.
New York, 1909.
Murphy, Patrick C. Behind Gray Walls. 1920.
Nalder, Frank F. The American State Reformatory. University of California Press,
Berkeley, 1920.
National Probation Association. Annual Report and Proceedings of Annual Con-
ference, 1909-.
New York City Department of Correction. Annual repwrts. By Commissioner
Katharine B. Davis.
New York State Probation Commission. Manual for Probation Officers in New York
State. Second edition. Albany, 1918.
Methods of Supervising Persons on Probation. Albany, 1918.
Nitsche, Paul, and Wilmanns, Karl. The History of the Prison Psychoses. New
York, 1912.
Oppenheimer, Heinrich. The Rationale of Punishment. London, 1913.
Osborne, T. M. Society and Prisons. New Haven, 1916.
Within Prison Walls. New York, 1914.
Pardon and Parole. See periodical reports of boards in sundry states, e. g., Minnesota
and Missouri.
Potts, Charles S. Crime and the Treatment of Criminals. 1910.
Prison Association of New York. Annual Reports.
Prison Labor in Governors' Messages, 1912-13. New York.
Prison Reform, Commission on ... of the State of New York. PreUminary
report. New York, 1914.
Prison Reports. See the periodical reports of the State Prisons or Reformatories in
most of the States.
Queen, Stuart A. The Passing of the County Jail. Menasha, Wis., 1920.
Quinton, R. F. The Modern Prison Curriculum. London, 1912.
Saleilles, R. The Individualization of Punishment. Translated from the French by
Rachel S. Jastrow. Boston, 1911.
Scott, Wellington. Seventeen Years in the Underworld. Boston, 1916.
Smithers, William W. Executive Clemency in Pennsylvania. Philadelphia, 1909.
Spalding, W. F.; FoUett, M.D., et al. The Indeterminate Sentence and the Parole
Law. Washington, Government Printing Office, 1899.
State or City Probation Commissions or Bureaus. See their periodical reports in
many States, and the reports of the bureaus attached to courts in the larger cities,
e. g., the annual reports of the Probation Bureau of the New York City Magis-
trates' Courts.
Tarde, G. Penal Philosophy. Translated from the French by Rapalje Howell. Bos-
ton, 1912.
Taylor, W. L. The Man Behind the Bars. New York, 1914.
United States Census. Prisoners and Delinquents, 1910. Washington, 1913.
United States: Congress: House. Hearings before the Committee on the Probation
System for Federal Prisoners, May 13, 1916. Washington, 1916.
Report of the Committee on the Judiciary on the Probation System in United
States Courts. 1917.
[712]
— Public Health Service. CorrtM-tioiml MctlxMl)! and Rrformation of Jiivonilo
DelinqiK'iitii, liy \V I., 'rn-iulwiiv. WiuiliinKtoii, I'.tlO,
Convict I^Uir (or Knml W'ork liy I'cnnypiu-krr, Pnirbank and Dmprr.
WB«)iinK««>n, l<.)l(i.
Whiteway, A. R. Uccrnt Ohjcrt Ix-ssona in IVnnI Science. I»ndon, 1S9.S-1902.
Whitin, E. Stagg. FViml S<T\itmlc. New York, n>l2.
Wines, Frederick H. Punixhrncnt and Hcfomiation. New edition l>v Wintlirop D.
Ijiiir. N.'w York, lill'J.
General, Medical Relations, and Mircellaneods
Adam, Rargrave L. The Story of Crime from the Cradle to the Grave. London,
I'JOs.
Addams, Jane. The .'spirit of Youth nnd the City Strools. New York, 1909.
American Institute of Criminal Law and Criminology, Journal. Chicago, I9I0-.
I'roci'i^inKS of the Kirst National Conference on Criminal Law and Criminol-
ony. Chiciiijo, 1910.
Anderson, Sir Robert. Criminals an<l Crime. I>ondon, 1907.
Ascbaffenburg, Gustav. Crime and Its Repression. Translated from the German bv
Adall<ort .Mbrechf. lioston, 1913.
Bar, Carl Ludwig von. History- of Continental Criminal Law. Translated from the
(iernian. Hoeton, 19H).
Breckinridge, Sophonisba B., and Abbott, Edith. The Delinquent Child and the
Homo. 1912.
Cook, William G. H. Insanitv and Mental Deficiency in Relation to Legal Responsi-
bility. Uindon, 1921.
Culbert, Hugh E. Medical Men and the Law. Philadelphia, 1913.
Currier, Albert H. The Present Day F'roMem of Crime. Boston, 1912.
Davis, Katharine B., Fernald, Mabel Ruth, and others. A Study of Women Delin-
quents in New York City. New York, 1920.
Devon, James. The Criminal and the Community. New York, 1912.
Draehms, A. The Criminal. New York, 1900.
Dugdale, Richard L. The Jukes. Fourth e<lition. New York, 1910.
Ellis, Havelock. The Criminal. Fourth edition. London, 1913.
The Task of Stx-ial Hygiene. l»ndon, 1913.
Esmein, Adhimar. A History of Continental Criminal Procedure. Translated from
the French by John Simiiecm. Boston, 1913.
Esubrook, Arthur H. The Jukes in 191,5. Washington, 1916.
Fenton, Frances. The Influence of Newspaper Presentations upon the Growth of
Crime. Thesis. I'niversity of Chicago Press, 1911.
Ferrero, Gina Lombroso. Criminal Man .According to the Classification of Cesare
liomhro-so. New York, 1911.
Ferri, Enrico. Criminal Sociology. Translated by Kelly and Lisle. Boston, 1917.
Oarofalo, R. Criminology. Translated by Robert W. Miller. Boston, 1914.
Glueck, Bernard. Forensic Psychiatry. Boston, 1916.
Goddard, Henry H. The Criminal Imliecilc. New York, 191.5.
The Kallikak Family. New York, 1916.
Griffith, Griffith J. Crime and Criminals. Los .•Vngeles, 1910.
Gross, Hans. Criminal Psychology. Translated from fourth German edition by
Dr. Horace M. Kallen." Boston, 1911.
Hall, Arthur C. Crime in its Relations to Social Progress. (Columbia i'niversity
Studies, XV.) New York, 1902.
[713]
Healy, William. The Individual Delinquent. Boston, 1915.
Mental Conflicts and Misconduct. Boston, 1917.
and Femald, Grace M. Tests for Practical Mental Classification. Prince-
ton, 1911.
Henderson, Charles R. The Cause and Cure of Crime. Chicago, 1914.
Dependent, Defective and Delinquent Classes. Second edition, Boston, 1901.
Holmes, Thomas. Knovra to the Police. New York, 1908.
Kellor, Frances A. Experimental Sociology. Dehnquents. New York, 1901.
Kennedy, James H., and Day, Wilson M. Bench and Bar of Cleveland. Cleveland,
1889.
Lehman, Frederick W. The Law and the Newspaper. University of Missouri Bul-
letin, Dec, 1917.
Lombroso, Cesare. Crime, Its Causes and Remedies. Translated b3' Rev. Henrv P.
Horton. Boston, 1912.
McConnell, Ray M. Criminal Responsibility and Social Constraint. New York,
1912.
McDonald, Arthur. Criminology. New York, 1893.
Juvenile Crime and Reformation. Washington, 1903.
Mercier, Charles. Crime and Criminals. London, 1919.
Mitchell, C. Ainsworth. Science and the Criminal. Boston, 1911.
Modern Criminal Science Series. Published under the auspices of the American
Institute of Criminal Law and Criminology. 191 1-.
Morrison, William D. Crime and Its Causes. London, 1891.
Juvenile Offenders. London, 1896.
Mosby, Thomas S. Causes and Cures of Crime. St. Louis, 1913.
Olson, Harry. Disease and Crime. Chicago, 1916.
Pannelee, Maurice. Criminology. New York, 1918.
Personality and Conduct. New York, 1918.
Payer, Harry. Articles on Cleveland Justice. Published in the Cleveland Press,
February 3-7, 1921.
Pelham, C. The Chronicles of Crime. 2 vols. London, 1891.
Pike, Luke O. A History of Crime in England. 2 vols. London, 1873-76.
Quinton, R. F. Crime and Criminals, 1876-1910. New York, 1910.
Quiros, C. Bemaldo de. Modern Theories of Criminahty. Translated from the
Spanish. Boston, 1911.
Reed, Alfred Z. Training for the Public Profession of Law. Carnegie Foundation,
New York, 1921.
Russell, Charles E. B., and Rigby, L. M. The Making of the Criminal. New York,
1906.
Rylands, Louis G. Crime, Its Causes and Remedy. London, 1889.
Stephen, Sir James F. A History of the Criminal Law of England. 3 vols. London,
1883.
Travis, Thomas. The Young Malefactor. Third edition. New York, 1912.
[714]
INDEX
INDEX
Abbey, Robert Parsons, of John Marshall
Law School, 499
Abemcthv, A. V., secretary of the Bar
Association, 2f)S
Abortions, supposed criminal, 473
Acceptances of plea of Icss*^ offense —
practice in county court, ISO
practice in municipal court, 149
recommendations as to practice, 208
statistics, 95, 140
Addams, Judse Cieorgc S., of juvenile
court, 266, 392, 393, 398, 44.5, 446
Administration of criminal justice —
purixjst- o(, 12
standards of, 192
Admission to bar, state requirements for,
489
Adolescence, 449
Advertising Club, 223
Advertising, judges', 269, 271
Age of police npiHiintecs, 26
Agencies, child welfare, 450
juvenile behavior, 442
Album, Car>- R., of John Marshall Law
School 499
Allen, Judge Florence, 266, 303
American Judicature Society, Bulletin
IV-A, Chicago, note, 273
Animal Protective League, 223
Appeals, 2.'55
results of in court of appeals, 318
police, 10, 49
to civil service commission by police,
49
Appellate cases —
county prosecutor's work in, 187
municipal prosecutor's work in, with
statistics, 139
Appendices —
bibliography, 707
history of survey, 655
intelligence survey of workhouse,
692
Norwood bill, 669
pardons in Ohio, 670
report of intelligence survey of police
department, (i.S6
statistical material and methods of
the survey, 6tj4
Appendices —
text of Massachusetts medical ex-
aminer law, 695
text of New York medical examiner
law, 702
Appointees, age of [Kilicc, 26
Arrests, 241
Assignment commissioner —
creation of, 315
duties of, 315
Assignments, rank of police not afTectcd
by, 11
Associated Charities clearing house, 392,
397
Attorneys, certification for bar examina-
tions, 489
Automobile —
as preventive of crime, 59
police recovery squad, 9
thefts of, 3
use of for patrol, 59
Autopsv, 460, 464, 468
in Massachusetts medical examiner's
office, 472
fees, 464
ordered by prosecutor, 465
records, 466
room, 466
Ayres, Leonard P., 393
Babcock, Judge, 266
Baer, Judge George P., 266, 271, 272
on laboratory for mental investiga-
tion, 476
Bail bonds —
common pleas court, evils of, 313
enforcement by county prosecutors,
184
enforcement by municipal prosecu-
tors, 154
excessive number of bonds required,
154
forfeitures, 290
municipal court, 290
pending error, 320
recommendations as to enforcement,
212
recommendations as to reduction in
number, 212
[7171
Bail bonds-
statistics of enforcement by county
prosecutor, 185
statistics of enforcement by munici-
pal prosecutor, 155
Bail bond commissioner, established, 291
Bail jumping, possibilities of, 235
Baker, Newton D., appointment of prose-
cutors, footnote, 272
Baldwin Wallace Preparatory school,
night high school, 504
Baltimore, municipal court, 447
Bar and Bar Association, Cleveland, 229
dislikes criminal practice, 233
duties and opportunities, 219
education, organization and respon-
sibility of, 636
influence in selection of judges, 265
past activities in regard to adminis-
tration of justice, 216
prestige of criminal law practice, 218
Bar Association v. Sleeper, instance of
perjury, 361
Bar examinations — •
certification by attorneys, 489
crammers, 505
state requirements, 489
statistics of Ohio compared with
New York and Illinois, 506
Barkley, John C, of John Marshall Law
School, 499
Barry, Professor Charles S., Binet tests in
Detroit, 394
Baskin, R. A., prosecutor, footnote, 165
Bedford Hills penitentiary, 447
Beebe, Judge Wilham B., 271
Behavior —
cases, 481
criminal, 443
difficulties of interpretation, 443,
452, 456, 484, 485
juvenile in courts, 445
juvenile in schools, 443
scientific investigation of problems
of, 483
Bell, Oscar C, chief municipal prosecu-
tor, 134, 145
Bench —
effects of election laws, 254
importance of, 251
personnel of, 251
Bench and Bar of Cleveland, Kennedy and
Day, quoted, footnote, 288
Bench parole —
after new trial granted, 336
loose operation of, 324
use of, 242
Bentham, Jeremy, Rationale of Judicial
Evidence, 212
Berkelev, Cal., 20, 72
Bernon, Judge Maiu-ice, 267, 303
Bernstein, Judge A. E., 271
Bibliography, 707
Bicycles, use of by police, 58
Binet, Alfred, tests, 448
Birmingham, England, 17
Bixby, H, D., 394
Blanket nolle —
by Judge Kennedy, 305, 328
recommendations as to, 329
Blossom, Dudley S., director of public
welfare, 423
Board of county commissioners appoint
medical examiner, 473
Board of health of Cleveland, 465
Board of promotion for police, recom-
mended, 42
Boldiszar, Frank E., prosecutor in
Mazzeo case, 454
Bondsmen, professional —
in common pleas court, 313
in municipal court, 287, 290
Boston, 20, 22, 41, 44, 53
municipal court of, 447
municipal court, probation staff,
footnote, 330
Bounpane, Blase, prosecutor in Mazzeo
case, 163
Boylan bill, constitutes Cuyahoga County
separate district, 317
Boys' Farm —
commitments to, 407
discipline, 408
history of, 406
intelligence tests, 407
paroles and discharges, 408
recommendations, 409
Boys' School, 403, 442
mental clinic recommended, 406
mental examinations, 404
printing department, 404
recommendations, 405
staff of, 445
woodworking department, 404
Bribery of judges, 260
Brightman, A. C, of Western Reserve
University, 492
Budget, preparation of police, 14
Buffalo, crime comparisons with, 3
Bureau of criminal identification, division
of pohce, 238, 289
Bureau of information, police, SO
Bureau of Investigation, United States
district attorney's office, 191
Bureau of Juvenile Research, Columbus,
398, 443, 445, 419
Bureau of Municipal Research, 223
Burglary, comparative statistics, 3
Burnett, H. D., of Cleveland Law School,
496
quiz classes, 505
Bums, William J., superintendent of
workhouse, 381
Bushcr, J. J., bail bond commissioner, 291
I 71S ,
CafTi-v. Kranris C, IW)
CiihiJnni-, inHjHTtor of Ni-w York |iolire
(niiniiiK .trhiM)! (|Uot(Hl, 27
CallaKluiii, Mm. Aiitoinotte, prubatioD
offiwr, •JH.S, ;i;{0, 417, 418
Callahan, ciotoclivc. tlO
CainpaiKn fund!*, soliritntion of liy
juuKOst, 27;{
Cannon. Austin V'., of Western Reserve
Univi'rsity, 4'.i:i
CuntiUon, James D., '29i
Carter, Kenneth U., of John Monhall
Ijiw School, 499
Central bureau of information, rerom-
mended, 331
ChamlM'r of rommerce, 372
plan of jail buildinit, 431
('hapman. Judge, 21)0
Chicago-
coalition judicial ticket, footnote,
260
juvenile officers, 70
munici|Mil court of, 447
Chief of detectives, on promotion, 43
Chief of iK)lice, 13, IS, .')1
authority of. 14
how a|)pointed, 10
leadersfii|) of, 7
responsible to mayor, 15
Child welfare agencies, 4.')0
Cincinnati, juvenile court, 391
City chemist, 4tK)
City immigration bureau, .37.5
City infirmary, Warrensville, 37G
Civic League, 372
influence in selection of jud^s, 2(55
Civil and criminal administration com-
pared—
place where justice administered,
213
record and filing system, 132
time devoted to trials, 114
Civil service, 10, 22, 34
as source of police recruits, 33
examinations for police, 11
recommendations in prosecutors of-
fice, 214
Civil service commission, 32, 51
appeals to, 4(t
police recruiting by, 24
power of review. 15
Civil service examinations, police, 21
Civil service governs promotions of
police. 36
Clerk of courts —
common pleas, 314
delay in handling appeal cases, 319
election of, 315
Cleveland. See Community —
Cleveland Law School, 489
equipment. 497
faculty and curriculum, 495
(7
Clevolaml Law .^ichool. hi.story of, i'M)
private enterprise of Judge V'ickerv,
497
n'(|uin'menf<i for admission, 494
statistics of cnn)llment, 490
Cleveland recreation survey, ',i><i
Ctine. John A., blanket nolle, footnote
329
Clinii-s —
at Fairviow Hospital, 445, 4.54
behavior ob.scrvation, 443
diagnostic, 45-1
public venereal, 4.54
Clum, Alfred, of Cleveland Law School,
496
Cobb, Frank M., of Western Reserve
University. 493
Collister, Judge, 266
Commitments to Boys' Farm, no in-
formation with, 395
Common I'leas Court —
clerk's office, 314
election of clerk, 315
geographic jurisdiction of, 231
history of, 297
insanity cases in, 475
jurisdiction of, K6 231, 297
lack of executive head, 299
laxity in passing cases, 303
[jersoiuu'l, 2.52, 299
physical surroundings, 297
power to review misdemeanors,
231
professional bondsmen in, 313
recommendations, general, 316
recommendations as to jurisdiction
in misdemeanor csiscs, 247
salary of judges, 297
suspended .sentences. 1S2
svstem of records, 314, 261
terms of, 298
volume of work, 299
Community, the —
"easy town," 324
general conditions. 222
present facilities for improving ad-
ministration of justice, 2'25
recommendations as to improving
administration of justice, 225
Concord penitentiary, 347
Consumers' I^eague, '2'23
(Continuances, effect of, 2S4, 285
Coroner, 461
compensation, 461
cost of, 4t>8
court and jury, 470
crime detection by, 457
deputy coroner, 4.5.S
duties of, 4.58. 46.5
election and tenure, 461
equipment, 4t)6
history of, 458
10)
Coroner, office of, 466, 469, 478
personnel of office, 462
recommendations, 468
records of, 467
relations to police, 463
report of Municipal Association of
Cleveland, 457
staff, appointment by county com-
missioners, 461
Corrigan, assistant prosecutor, note of,
336
Costs, police, comparison with Detroit,
58
Counsel, assigned, policy of, 310
County commissioners appoint staff of
coroner, 461
County morgue, 466, 469
County prosecutor —
does not participate in early pre-
paration of cases, 138
history of office, 159
methods and practices, 161
physical surroundings of office, 164
salaries, 169
Court, Common Pleas. See Common
Pleas Court.
Court, Municipal. See Municipal Court.
Court of appeals —
histoo' of, 317
organization of, 317
power to review misdemeanor juris-
diction of Municipal court, 231
recommendations, 320
speed in handling cases, 318
statistics, 319
Couse, Howard A., of John Marshall Law
School, 502
Cousin, Victor, quoted, 192
Cowles, detective, 69
Cox, Governor, 259
Crime —
detection of, 454, 464
detection of, by coroner, 457
general problem of, 3, 439
preponderance of, in American cities,
3
research, 483
sources of, 443
statistics, 3
treatment of, 443
Crime, prevention of, 8, 19, 21, 55, 59, 75,
485, 490
education of public, 482
need of, 77
Crime waves, 85, 230, 241
and paroling, 324
Crime and criminals, influence evoked by
arrest, 233
Criminal courts —
building, proposed, 461
in practice, 233
increasing severity of, 242
Criminal courts —
organization of, 231
problem of, 229, 628
system inadequate, 229
Criminal identification, 11
Criminal investigation, superintendent
of, 11
Criminal jurisdiction —
constitutional provisions, 248
elimination of unnecessary steps, 246
Criminal lawyer —
disposition of cases, 244
professional, 233
Criminal procedure, civic responsibility
in, 371
Criminal prosecutions —
chances to escape, 238
simpUfication of, 346
too complex, 234
Criminalitv, criminology, and crime, 482
Cull, Judge Dan B., 271, 305
bench parole after new trial granted,
336
letter to American Legion, quoted,
327
Dance Hall inspection bureau, depart-
ment of police, 77
David, William L., special prosecutor in
perjury case, 337
Davis, Governor Harry L., did not sign
Norwood bill, 426
Dayton, O., Moraine Park Private
School, 406
Defectives, 451, 455
Deibel, Harry L., of Cleveland Law
School, 497
Dehnquency, 439, 480, 483
diagnosis of, 442
Delitiguency and Spare Time, by Henry
W. Thurston, 389
Demotion, police, 45
Dempsey, Judge John P., appointment
of, 268
Denby, Edwin, as head of probation
work in Detroit, footnote, 331
Department of education, co-operation
with Juvenile Court, 393, 445
Department of health, city, 440, 442, 452
Department of pohce, organization of,
recommendations, 18
Department of psychology and place-
ment in schools, 405
Department of public safety, organiza-
tion of, 10
Department of public welfare, 375
recommendations, 377
Department of Reference and Research,
393
Dependency, 439
Detective bureau, 10, 55, 64,
720]
Dctortive burraii. organiaation of, M
porBonnel, t>4
pn)motioii in, 40
reroniniendutions, 71
records, 69
reports, S
Detective service, 7
Detectives, 25
appointment of, rccommendaUons,
71
intelliKenro teats, 66
personnel, 66
promotion, recommendations, 73
salaries of, 6.')
supervision of, 70
Detention home, 400, 442, 445
equipment, 4(X)
personnel, 401
recommendations, 403
Detroit. 22, 57, ,59, 61, 77, SI, 394
crime comparisons with, 3
municipal court, 447
|)olice costs, 58
unified court of, 248
use of summons in, 291
Detroit criminal court, weakness of, 309
DeWitt, Clinton, of Western Reserve
University, 493
Direct primarv law, 254
Director of jwlice, 18
appointment of detectives, 71
recommendations for tenure, 20
recommendations on promotion, 42
selection of. 21
Director of public safety, 7, 13, 28
appointed by, 10
chief of police responsible to, 15
decision not final, 49
promotions in police department, 36
Director of public welfare —
charter provisions, 375
control over institutions of city,
376
parole power, 422
Discharge for want of prosecution, 235
Discipline, Boys' School, 408
Discipline, police, 14, 52
aisciplinar>- record, 37
recommendations, 53
trial board, 53
Disease —
contagious, 440
mental, 4.54
venereal, 455
Dismissal —
police, 22, 2S, 45
Disrespect for law, 357
Division of charities and correction, 375
Doerflcr, Samuel, prosecutor, 217
action on assigned counsel, 310
Draft army, 450, 490
Drug addiction, 456
Dry Maintenance League, 223
Diinmore. W. T., of Western Kcscrve
rniversity, 492
Dusfin, Virgil A., jury commissioner, 3-14
Eisenhauer, John A., superintendent of
Bo>'3' Farm, 407
Eldredgc, Albert C, assistant superin-
tendent of schools, 393
Election laws —
changes of, 2.')3, 254
history of, as to judges, 253
Hections-^
of judges, recommendations, 273,
365
religious appeal in, 35
Elmira reformatorj-, 447
Ence, William H., jury bailiff, 345
England, 3, 20, 31
Epilepsy, 4S6, 4S9
Estep, Judge, 267
Ettkin, Louis, case of, footnote, 285
Examinations —
police, 31,36
preliminary in felonies, 445
promotional, for police, 38
E.Tecution docket, principal record of
municipal court, 293
Fairview hospital clinic, 453, 464
Federal criminal administration, general
results, l.SS
Feeblemindedness, 441, 446, 451, 476,
482
Felonies —
histon,' of procedure in, 247
preliminary examination in munici-
pal court. 231
Felony arrests, disposition of, 236
Femald, Dr. Guy, 450
Findley, E. L., report on night high
schools, 504
Finfrock, C. M., of Western Reserve
University, 492
Fire division, 16
Foran, Judge Martin, parole experience,
327
Ford. Judge, 266, 272
F'rance, 20
Fricbolin, Judj^e Carl D., 266
Funds, police, inadequate, 9
Gafney, Thomas, 345
Girls' Farm, 409
equipment. 409
recommendations. 411
records of. 410
Glasgow, age limit, police, 28
721)
Glasgow, crime comparisons with, 3
Gorrell bill, approved, 419
Gott, Judge F.B., 266
against unions, footnote, 264
Grand jury, 231, 465, 471
action in felony cases, 231
composition, 175
present function, 91, 175, 210
recommendations as to abolition of,
210
Green, city councilman, 104, 106
Group plan commission, plans for new
jail, 432
Hadden, Judge Alexander, 492
Hall, Dean James Parker, 364
Hammond, Dr. A. P., coroner, 462, 468
Harwood, Sergeant, 33
Haserodt, E. B., clerk of courts, 314
Health department, 420
Health survey, Cleveland, 439, 443
Healy, Dr. William, 450
Henry, Peter J., clerk municipal court,
292
Hisev, Ralph T., of the Cleveland Law
School, 500
Hopple, E. J., of John Marshall Law
School, 502
Hospitals, 442, 445, 454, 476, 479
Howells, Judge George A., 271, 279
liquor law violations, 281
refuses lawyers to defend prostitutes,
287
Hudson Boys' Farm, 392
Huettel case, 523
Huge, Lieutenant, 33
Humane Society, Cleveland, 223, 445
Hupp case, 523, 533
Hydrotherapy, 481
Illinois, 447
Indianapohs, 77
Indigent defendant, representation of,
312
Information bureau, police, 11
Ingersol, Judge Alvin, 317
Inglis, Richard, of Western Reserve Uni-
versity, 493
Inquests, 458, 465, 466
Insanity, 441, 448, 476, 479
Institutions —
correctional, 443
penal, 443
reformatory, 450
Intelligence tests, Boys' Farm, 407
Intervals between stages of cases —
statistics, 170
summer accumulation, 172
Intoxication in police force, 48
Jail, city, 377
detention of prisoners, 378
equipment of, 378
recommendations, 380
sanitary conditions, 377
Jail, county, 386, 479, 483
equipment, 387
proposed, 431, 434
recommendations, 388
sanitary conditions, 386
Jalos, L. M., jury baihff, 349
John Marshall Law School, 489
equipment, 502
faculty and curriculum, 499
history of, 490
requirements for admission, 498
statistics of enrollment, 490
student body, 498
John Marshall night high school, 504
Johnson, Tom L., 323
Joint committee on judiciary, recom-
mended, 277
Judges —
assignment of Common Pleas, 309
attendance in Court of Common
Pleas, 303
career of municipal, 256
depend on prosecutors in nolles, 328
follow public clamor in imposing
sentence and in paroling, 323
legal career of Common Pleas, 255
pecuharities in dispositions of cases
of common pleas, 305
probate, 446, 477
rotation of, 303
Judiciary, joint committee on, recom-
mended, 277
Juries. See Jury.
Jurors —
occupations of, 349
reasons for failure to qualify, 345
Jury —
general dissatisfaction with, 340
haven of the unemployed, 352
history of, 340
method of selection, 341, 344
recommendations, 353
Jury commissioners, 344
Jury system, weaknesses of, 343
Juvenile court, 389, 439, 444, 465, 480
administrative shortcomings, 395
co-operation with department of
education, 446
jurisdiction of, 397
mental examinations recommended,
398
personnel, 390
procedure, 396
psychiatrist recommended, 398
recommendations as to budget, 398
recommendations, general, 398
records of, 390
1722]
Juvenilo court dhoulil not l>e inrludetj
in nrw j;iil buildinK, i'M
work of i>n)b»tion ilrpartment. '.i\H\
Juvenile |>oli(f officcni, n'cotnniPii<l<'(l, 7s
Kaber r«He, 523. 53«
Kuiuiafl Cits', AO
Kuiw, Clmrli-.M I,., footnote, 300
Kebort, Amlrew, nine of, shows evils of
parole .s\ nteni, 327
Keeler, Judue, 20»5
Kenne<lv, Judge Thomas M., 266, 272,
30.")
blanket nolle, 30.-., ;CS
Kennel, Archie J., ti.ssignnient commis-
sioner, 31.')
jury coniminsioner, 314
Keough, William C, of Wt-itern Reserve
University, 493
Keough, Judge, 267, 271
Kirkbnde, C. T., of John Marshall Ljiw
.Shool. ."iOO
Koestle, (Jeorge —
detective, footnote, l.V)
superintendent of bureau of criminal
identification, 241
Kohler, Fred, -(tolden rule," 118, 323
Kramer, Judge .Samuel K., 266, 271
Kreisberg, prosecutor, 104, IDS, 149
Labor, influence of, organized in courts,
264
Labor unions, 372
Laboratories, research, methods of, 44.'<,
4.56, 4.S{
Larceny, comparative statistics, 3
Law School of Western Reserve Univer-
sity, 489
equipment, 49.3
faculty and curriculum, 491
faculty salaries, 491
history- of, 490
requirements for admission, 491
statistics of enrollment, 490
student body, 491
Law schools, 490
courses offered, .502
faculty. 491, 49.5, 499
four-year course in night schools
recommendeti, .510
hours of work required, 502
requirements for admission, 491,
494, 4»S
student body, 491, 494, 498
I^wcs, Major Ix^wis, superintendent of
New York City Reformatory, 3K3
Lawrence, Dean, of John Marshall Law
School. .500
Legal aid society, 296
L^fal education in Cleveland, con-
clusions, o06
I>eighley, Judgi- I". L. A., prexidinK. 272
lyeliuid Stiuifonl University, 4.5<)
1-i'Viiic, Judge M.inuel, 206, 271, 47.5
picas of giiiltv, 'MtT}
lAV.in, Hurdette Ci., Thf Offm-ier,
quoted, 102
Lf'wis, Tom, chief probation officer, 39.5,
398
Lind, James, of the Cleveland Law
School. Am
Li(|uor law violations —
as tn-ated by Jud^c Stevens, 281
motion in mitigation in, 285
study of caws, 2.s;j
Liverpool, 17. 3.5
age limits of police. 28
crime comparisons with. 3
Loc-her, C'vnis. of John Marshall Law
.'School, .5(K)
Logue. James C, of Western Reserve
University. 493
London. 22. 35, 77
age limits of police, 28
crime comparisons with, 3
intoxication in police force, 49
promotions, police, 44
selection of poUce recruits, 31
Ix)S .\ngele8, 58, 77, 79
Louisville, Kv., tiO
Luckey, Dr. Jlertha L., director of school
psychological clinic, 445, 393
Luthringer v. State, footnote, 317
Lyons case as handled by newspapers
522
as treated by Neics, 540
Magrath, Dr. Geoqce Burgess, 469
Malingering by pohce, 453, 456
Manchester, age limit for police, 28
Marlow, Miss Laura A., superintendent
of Detention Home, 401
Marsteller, William Fish, of Cleveland
Law School, 496
Massachusetts medical examiner law, 695
Mayor —
appoints chief of police, 10
appoints director of public safety, 10
removal of police chief, 13
McGannon, Judge William H., 271
as executive nead of municipal court,
300
in Kagy case, 216, 527
resignation of, 208
McGannon trial, perjur\' in, 337
Mcfliffin, Norton, of Jotn Marshall Law
.School, 499
Mechanotherapy, 481
Meek, David C., dean of John Marshall
1-1 w .^hool, 500
Meek, Dean B., of John Marshall Law
School, 500
1723]
Medical advisers, for probation sta£F,
recommended, 367
Medical science, defective utilization by
law, 646
Mental clinic, at Boys' School recom-
mended, 406
Mental examinations —
Boys' School, 404
in municipal court, 474
nature of, 448
Mental health, division of, 444
Mental health officers, 455, 457
Mental health stations, 442
MetUcka, James, probation officer, 330,
417, 418
Michigan, 447
MiUer, Edwin E., of John Marshall Law
School, 501
Miller, parole officer, 423
Milwaukee, 20
Misdemeanor jurisdiction, transferred to
Common Pleas Court recommended,
247
Misdemeanors, 231
Mitigation of sentences —
practice in municipal court, 150
recommendations as to practice, 208
statistics in municipal court, 91, 141
Moraine Park Private School, Dayton,
O., 406
Morgan, Judge R. M., defeated by labor,
footnote, 264
Morgue, county, 469
equipment of, 466
Motion in mitigation —
abolition of recommended, 296
evils of, 285
Motions for new trials. See Trials.
Motor equipment for police, 9, 58, 60
Motorized patrol, 59
Moylan, Judge David, 271
Munich, 19
Municipal association of Cleveland, re-
port on coroner's office, 457
Municipal Bulletin, quoted on juries, 341
Municipal court —
average number of days between
arrest and disposition, 283
bail bond forfeitures, 290
clerk of, 292
criminal division, 231
decorum in, 279
evils in motion of mitigation, 285
geographic jurisdiction of, 231
importance of, 87
jurisdiction of, 86
methods and practices, 97, 113
no special provision for mental and
physical examinations, 474
origin of, 278
personnel, 252
physical surroundings, 97, 278
Municipal court —
police court ring, 286
preliminary examination in felony
cases, 231
probation records crude, 417
probation work in, 417
recommendations as to methods and
practices, 198
recommendations for segregated
docket, 199
recommendations, general, 295
reviewable by Common Pleas Court,
231
reviewable by Court of Appeals, 231
rule 3, continuances, 282
scant attention to individual cases,
282
separate sessions recommended, 280
shifting cases, 280
suspended sentences, 150
system of records, 286, 293, 295, 393
unclassified docket, 110
volume of work, 279
Municipal prosecutor —
history of office, 117
hours of work, 156
importance of, 87
jurisdiction of, 86
methods and practices in court, 98,
114
not best advisers of courts, 323
physical surroundings of office, 118
preparation of cases, 138
private practice, 156
record of, 119, 132, 137
relation to coroner, 465
salaries, 134
summons, use of, in neighborhood
quarrels, 291
Murders, comparative statistics, 3
Murphy, Frank J., clerk civil branch of
Common Pleas Court, 300
Neely, Miss May, witness in McGannon
case, 337
Neff, Judge William B., 266
New York, 34, 47, 59, 61, 77
training mounted police, 27
voluntary defenders' committee, 368
New York City Reformatory, 383
New York medical examiner law, 702
New York police training school, 27
New York World, 526
News, Cleveland —
Hupp case, 535
Lyons' case, 540
Newspaper reporting —
before trials, 528
during trials, 533
Newspapers —
active participation in criminal in-
vestigations, 540
24 1
Newspapers —
advertisinK judges, use of by, 273
as source >if public opinion, 517
character of, .524
circulation of, ."il.^
crime waves, .')44
equipment, HIH
importance of, in administration of
justice, .'520
interference in criminal cases, 519
law enforcement, 519
recommendations, .")27
relation to p\ihlic otTicial.s, 519
NiRhf hiRh schools, statistics of atten-
dance. 504
No billed cases, 2.35
practice concerning, 95, 179
recommendations as to practice, 207
statistics, 95
No papers, 234
practice in municipal court and
municipal prosecutors' office, 143,
145
recommendations as to practice, 207
statistics in municipal court, 91
Nolan, Frank, ciuh' of paroling, 325
Nolle prosequi, 235, 322
faults of, 32S
liquor law violations. 2.^4
practice in Common Pleas Court, LSO
practice in municipal court, 144
recommend that be in writing, 328
recommendations as to practice, 207
Non-partisan judiciary act, 254
Noms, Dr. Charles, 470
Norwood bill, 669
provisions and criticisms of, 426
repeal urge<l, 428
Novario, prosecutor, 100, 104. 147
Oberlin, John F., of Western Reserve
University, 493
Occupational therapy, 481
Offenders, adult, mental and medical
treatment, 447
Ohio indeterminate sentence law, 428
Ohio laws, election of judges, 253
Ohio legislature, 46.S
Ohio MolorUI, footnote, 239
O'Mallcy, Dr., police surgeon, 452
O'Meara, Commissioner htephen, 20
quoted, 41
Order number 73, 15
Organization of criminal courts, 231
too complex, 234
recommendations, 366
Pardons, 235, 422
recommendations, 430
report on Ohio, 670
statistics, 428
48 r
Paris, age limits, of ixiiice, 2.S
ParliH, .Sterling, of John .Marshall Uiw
.s<-h<).)i, rm
Parole, 235, 422
Ix-nch. 242, 324, 336
Hovs' Farm, 408
faults of, 32t)
system inadecjuate, 423
treatment by newspajx-rs, 548
Patholog>-, mentiU, 452, 409
Patrol-
beats, determination of, 56
booths, til
force, turnover, 28
history of, .55
methcxla of, .59
patrol service, 63
problems of, 55
Pearce, Judge Berkeley, 271
Pearson, Judge .\lvin J., 266, 305
Penal and correctional treatment, diffi-
culties of, 643
Pensions —
police, 28
poUce surgeon, 453
Perjury, 337
laxness in punishing, .338
recommendations, 339
Personnel —
and politics in courts, 362
changes due to election laws in
bench, 2.54
Common Pleas Court, effect of rota-
tion of judges, .304
conducting criminal procedure, 234
coroner's office. 462
county pro.secutor's office, 165
municipal prosecutor's office, 132
of bench, 251
of courts, general summary, 356
362, 364
police, distribution by types of work,
11
police, selection and training, 24
police department, 7, 12, 19, 58
police turnover, '28
woman's probation department, 418
Phillips, Judge F. C, 266, 272, 305
Phillips, Judge G. L., 267
Physical conditions —
county prosecutor's ofiBce, 164
municipal court, 97
municipal prosecutor's office, 118
recommendations as to place where
criminal justice administered, 213
Physicians, district, 452, 454, 465, 477
Pickell, Frank G., assistant superinten-
dent of schools, 393, 403
Plain Dealer, Cleveland —
letter of Judge Cull, 327
Lyons' case. .541
Sly-Fanner case, 528, 531
•25)
Pleas of guilty of lesser offense, 322
Police blotter, 288
Police court. See Municipal Court.
"Police court," means of advertising by
judges, 271
"Police court ring," 286
Police —
administration, 454
appointments, 22, 28, 31
army alpha test, 67, 686
chief of, 486
crime detection by, 452
discipline of, 14
distribution of personnel by types of
work, 11
equipment of, 8, 12, 13
increase in numbers, 58
intelligence survey, 686
malingering, 453, 456
motor equipment for, 60
number needed, 57
occupations of police recruits, 24
organization of, 6, 10, 20
personnel ,selection and training of ,24
problem of, 615
promotions, 14
recommendations as to police sur-
geon and mental health officer,
457
relation to coroner, 463
seniority, 37
sources of, 7, 24, 33
special service division, 75
suspension, 10, 45, 48
traffic, 11, 40
turnover, 28
Police department —
bureau of criminal identification,
238, 289
history of, 6
organization of, 6
present conditions, 6
secretarial division, 81
statistics of, 6
vice bureau, 8, 40
welfare officers, unit of, recom-
mended, 78
Police headquarters, proposed, 431
Police record of four major crimes, De-
troit court, 249
PoUce training school, 34
Police women, 77
Politicians, importance of, in relations to
courts, 261
Politics 19
Powell,'judge Homer C, 266, 272
bench parole after new trial granted,
336
handling of McGannon case, 338
Precinct stations —
distribution of, 62
history of, 62
Precinct stations — ■
recommendations, 63
reports, 8
Preparation of cases —
absence of, in early stages of case,
79, 162
county prosecutor's office, 169, 175
county prosecutor does not par-
ticipate in early stages, 138
detection and investigation by muni-
cipal prosecutor, 138
municipal prosecutor's office, 138
recommendations as to methods,
208, 210
Press, Cleveland, 1, 259, 262
on parole, 548
Purpera case, 529, 532
Raleigh case, 212
Prestige of criminal law practice —
how to improve it, 220
importance of criminal practice, 193
The Cleveland Bar, 134, 218
Prevention of crime. See Crime Preven-
tion,
Printing department. Boys' School, 404
Prison, prisoners, 447, 453, 455, 482
Probate court, no medical experts at-
tached to, 476
Probate court, recommendations for chief
psychiatrist, 479
Probation, 460, 464, 478, 412
crude records in municipal court, 417
GorreU Bill, 419
in municipal court, 417
juvenile, 396
medical advisers, recommended, 367
statistics, 413
volume of, in state, 412
Probation department, adequate, recom-
mended, 329, 330
Probation staff, adequate, recommended,
367
Promotion, police, 10, 36
by director of public safety, 30
recommendations, 42
Prosecution, problem of, 621
Prosecutors. See County and Municipal
Prosecutors.
Prostitutes, police court ring, 287
Psychiatrist —
for Juvenile Court, 399
none on stafT of courts, 445
recommendations for, 479
Psychiatry, 446, 451, 457, 479
Psychologist, appointment recommended,
479
Psychoneuroses, 483
Psychotherapy, 481
Public defender —
recommended, 368
skepticism as to, 635
Public safety, director of, 7
[720 1
PuMio safety, department of, 9, lt>
Publicity iind wlf-udvertinenient of
judp-i, 2tW, 27.1
riinisliiiierit iifl rrinic preventive, 481
Purjieru case, S'J3, .')24
nowgpniHT Btory, 5'J9
RalciRh, Tim, case of, '262
]{awxon, L. Q., of Cleveland Law School,
41M1
Hpcidivists, 2.«
KccDmniendat ions —
applicants for admiaaion to bar, 500
blanket nollen, .VJlt
Hoys' Kami, 4(W
Hoys' School, 405
chief pciychiatrist for probate court,
479
city jail. 380
committee apfxiintod by bar to
examine niond fitness of candi-
dates for bar, 510
Common I'leius Court, 'M&
completion of four years high school
before admission to law school,
510
coroner's office, 468
county jail, 388
court of appeals, 320
department of public welfare, 377
detention home, 403
election of judges, 273
four-year course in night law schools,
510
Girls' Farm, 411
juries, 353
juvenile behavior in schools, 505
juvenile court, 398
legal c<luration in Cleveland, 50ti
mental und physical examinations,
446
mental health officer, 448
motions for new trial, 330
municipal court, 295
no certificate of an attorney be ac-
cepted bj- bar examiners, 509
organization of night law school
without profit, 5(>>
pardons and paroles, 430
patrol service, ti3
placing misdemeanor jurisdiction in
common pleas court, 247
police discipline, 53
jwlice promotions, 42
police records, 82
probation, 420
proposed jail plans, 434
pubUc safety, 16
rigid inquiry into moral character
of applicants for admission to bar,
509
Rrcommemlatinns —
w.-lertiim of judges, 276
to raise standard set by bar cxarain-
ers, 507
workhouse, 385
Record bun'au, police, 11
Records —
aut<ip8y, 466
Common Picas Court.system of, 314
coroners, 467
county offices, 164
court, inadequate, 261
detective bureau, 69
( iirls' Farm, 401
municipal court, antiquated sys-
tem, '286, 292, 39:1
municipal court, importance of, 295
municipal prosecutor's office, 119,
132, 137
no papers and nolles in municipal
nrosecutor's office, 145, 149
nolles and acceptance of lesser pleas
in county prosecutor's office, 181
nolles, 123, 207
police, 8, 12, 81
|X)lice disciplinary, 47
)x)lice surgeon, 453
probation in municipal court, 417
recommendations, 204, 446
sifting of cases in municipal prosecu-
tor s office, 121, 205
Uccriiiting —
detectives, 71
police force, 24
Religious appeal in elections, 263
Reserve squadrons, 59
Resignations, police department, 28
Retail Merchants' Board, 223
I{obber>', comparative statistics, 3
Robinson, Cibson H., 345
Rogues gallery, 289
Roosevelt, Theodore, autobiography,
quoted, 42
Rosenberg, prosecutor, 106
Rowley, Arthur E., of Cleveland Law
School, 497
Ruhl, James B., of John Marshall I^w
School, ,501
Runner, pohce court, 287
Russick, prosecutor, 101, 104
St. Louis, .59, 77, 81
crime comparisons with, 3
size of police department, 58
Safety Council, '223
Salaries —
cause of police turnover, .30
<!ounty prosecutor's offioCj 169
municipal prosecutor's office, 134
recommendations as to prosecutors,
314
I 727 1
Salmon, Dr. T. W., 443
Samman, M. L., prosecutor, 147
San Francisco, 5
Sanders, Judge Fielder, 267, 271
Sanity, 452, 479
Sawicki, Judge Joseph, 271
School psychological clinic, 393
Schultz, John H., of John Marshall Law
School, 502
Schwan, Judge, 266
Scotland, 3, 20
Seattle, 59
Secretarial division, police department,
55,81
organization of, 81
personnel, 81
recommendations, 82
Selzer, Judge Charles L., 271
has witness chair removed, 280
Seniority, police, 37
Sentences, severity of, 242
Shell shock, 481
Shelton case, 523
Sheriff, duties in case of sudden death,
466
Siddal, K. T., of John Marshall Law
School, 501
Signal system, 9
Silbert, Judge Samuel, of Cleveland Law
School, 497
and Raleigh case, 262
Simon, Dr. Theodore, test, 448
Sing Sing prison, 447
Sly-Fanner case, newspaper report of,
528
Smith, Chief Frank W., 12, 34
Special service division, police, 75
Spinello, Rosario, number 9211 in Court
of Appeals, 319
Stanton, E. C, as city prosecutor, 119,
181
State department of public welfare, 419
Stevens, Judge F. E., 266, 305
bench parole after new trial granted,
336
Stevens, Judge F. L., 279
handling liquor law violations, 281,
524
Strimple, Judge, 266
Stuttgart, 19
Subnormality, determination of, 449
Sullivan, John J., president of Bar Asso-
ciation, 268
Summons —
absence of use in criminal cases, 118,
202
recommendations as to use of, 118,
202
use of, by prosecutor in neighborhood
quarrels, 291
Surgeon, police, 11
Suspects, examination of, 453
Suspended sentence, 235, 322
and criminal pohtical lawyer, 245
classified by counsel, 212
faults of, 328
practice in Common Pleas Court. 182
practice in Municipal Court, 150
recommendations, 208
Suspension, police, 10, 45, 48
Switzerland, 20
Taylor and Boggis Foundry v. Iron
Molders' Union, 264
Terrell, Judge Virgil J., 271
Thiesen, Dr. W. W., director of school
department of reference and research,
393
Thomas, Warden, Ohio penitentiarj-, 42.5
Throckmorton, A. H., of Western Re-
serve University, 492
Thurston, Henry W., Delinquency and
Spare Time, 389
Toledo, crime in, 4
Tracv, Edward H., of John Marshall Law
School, 502
Traffic-
division of police, 11, 40
regulation of, 7, 11
Train, Arthur C, The Prisoner at Ihe
Bar, quoted, 199
Training of personnel, police department,
24,27
Training school, pohce, 34
as personnel service division, 35
Travelers' Aid Society, 77
Trial board, recommendations, 53
Trials, new, 235
frequency of motion for, 332
motions for, 332
recommendations, 336
results of, 333
Trials, police, 10, 14, 47
Turnover in patrol force, 28
causes of, 30
Undertakers, 463
Unified court, recommended, 366
Uniformed patrol force, 11, 55
United States Army Alpha tests, 66
University of Michigan, 394
Vagrancy, significance of, 456
Veterinary, surgeon, police department,
11
Vice bureau-
crime prevention, 75
reports, 8, 40, 79
Vice cases, 454
Vice squad, 11, 25
Vickery, Judge Willis, dean of Cleveland
Law School, 236, 317, 495
728]
. Vicker>', Mrlvilli- W., of Cleveland Ijiw
School. 4it<J
quii class, 50.5
Vollnior, AuKuat, quulod, 77
Voluntary defender, rccoramendcd, 312,
3ie
Wales, :j
Walters, Miss Claire E., psychologist,
44'., -.mi
gives mental examinations at Hovs'
School, 4(M
Washburn. Judge, 317
Welfare Fexleration, 79, 44.')
child welfare bureau recommended,
397
Welfare officers, unit of, recommended, 78
Westchester C-ounty, N. Y., penitentiary
and workhouse, plan of, 433
Western Reserve University Medical
School, 420
Whipple, Professor, 4.59
White riains, N. Y., 433
Wilcox, Miss Marion, 390
Women police, 2.5
Women's Association for Justice, 223
WomenM bureau, [lolire (|e|i:ir1ment, 77
Women'8 probation department, 2.SJS, 417
|KT»<>nnel, 41H
Women's I'roteclivc Asaociation, 77, 223,
4.54
work of, 418
Woods, Arthur, quoted, 34, 4.5, 47, 7H
Woods, J. W., of John Marshall Law
School, .501
Woodworking department of Boj-s'
S<-h(xjl, 404
workhiiuiW', li><>3
Workhoum-, Warrensville, 380, 483, 495
adminLstration of, .'iMl
broom shop, 3S3
equipment, IJSO
e8caiM>8 from, 3H4
intelligence survey, 692
no punishment records, 3S2
personnel, 381
reception of prisoners, 3.**2
recommendations, 3>*-5
releases, 424
woodworking plant, 383
Yerkes, Professor Robert M., 450
[729]
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