10. What, in essence, is the provision for a literacy test in the immi

gration law of 1917? 11. Name some classes which are excluded from the operation of the

test. 12. What is the special significance of the problem of Japanese immi

gration? 13. Discuss the economic objection to Japanese immigration. 14. What is the racial argument against Japanese immigration? 15. What is the attitude of California toward the Japanese question? 16. What is the prime purpose of our policy of restricting the immi

gration of Japanese to this country? 17. What effect did the World War have upon the question of Ameri

canization? 18. Name some ways in which various state and local agencies could

aid in the work of Americanization. 19. What is the goal of Americanization? 20. Discuss the movement toward the formulation of an immigration

policy. 21. What is the attitude toward immigration of the National Com

mittee for Constructive Immigration Legislation? 22. Enumerate some of the elements contained in the program proCHAPTER XXI

CRIME AND CORRECTION

1

121. Taft on the defects of criminal procedure It is a notorious fact that procedure in the courts of the United Legal pro

cedure in States is so defective as to impede rather than to guarantee justice.

the United No one has more keenly realized this fact, and no one has more States is frankly expressed his disapproval of the existing situation, than faulty. William H. Taft, Chief Justice of the United States Supreme Court. In April, 1908, the Chief Justice, then Secretary of War, delivered an address before the Civic Forum in New York City, in which he pointed out the delays and defects in the enforcement of law in this country. That part of his address which applies with particular force to criminal procedure follows:

If one were to be asked in what respect we had fallen furthest Serious short of ideal conditions in our whole government, I think he would nature of be justified in answering, in spite of the glaring defects in our system of municipal government, that it is in our failure to secure expedition and thoroughness in the enforcement of public and private rights in our courts. I do not mean to say that the judges of the courts are lacking in either honesty, industry, or knowledge of the law, but I do mean to say that the machinery of which they are a part is so cumbersome and slow and expensive for the litigants - public and private — that the whole judicial branch of the government fails in a marked way to accomplish certain of the purposes for which it was created. ... When we come to the administration of criminal law and the asser- Our crim

inal procetion of public right, which have a more direct bearing upon the

dure a diswelfare of the whole people than the settlement of private rights, grace to

. the injurious delays caused by the procedure provided by legislative civilization.

Court pro

act are greatly accentuated. No one can examine the statistics of crime in this country and consider the relatively small number of prosecutions which have been successful, without realizing that the administration of the criminal law is a disgrace to our civilization.

We have, as is well understood, certain constitutional restrictions cedure in

as to the procedure in criminal cases, which offer protection to the the United States and accused and present difficulties in the proof of his guilt. But these England

obtain as well in the English courts as in our own, and their existence contrasted.

does not offer a reason for the delays from which we suffer, for such delays do not exist in the administration of justice in England. A murder case which in this country is permitted to drag itself out for three weeks or a month, in England is disposed of in a day, two days, or, at the most, three days, - certainly in less than one-fifth the time. This is because the English judges insist upon expedition by counsel, cut short useless cross-examinations, and confine the evidence to the nub of the case. Under such practice, it would be possible for the prosecuting attorneys to clear their dockets; as

it is now they are utterly unable to do so. How the At the present time, in our larger cities, a man who is indicted criminal

and has means with which to secure bail is released on bond, unless punishment. he is confined for murder in the first degree. The pressure upon the

prosecuting officers is for the trial of those who are in jail and unable to give bail, and as a result of the delays I have mentioned, jail cases are protracted and the trial of those who are released on bail is postponed oftentimes to the indefinite future, the evidence disappears, newer and more sensational cases come on, and ultimately

nolles are entered and the indicted man escapes. The jury

Another cause of the inefficiency in the administration of the problem.

criminal law is the difficulty of securing jurors properly sensible of the duty which they are summoned to perform. In the extreme tenderness which the state legislatures exhibit toward persons accused as criminals, and especially as murderers, they allow peremptory challenges to the defendant far in excess of those allowed to the prosecution. In my own state of Ohio, for a long time, in capital cases, the law allowed the prosecution two peremptory challenges and the defendant twenty-three. This very great discrimination between the two sides of the case enabled the defendant's counsel

may escape

a

to eliminate from the panel every man of force and character, and to assemble a collection in the jury box of nondescripts of no character, who were amenable to every breeze of emotion, however maudlin or irrelevant the issue.

Another reason for delays in the enforcement of criminal law is Abuse of to be found in the right of repeated appeals which are given in criminal the right of

appeal. cases. The code of evidence, with its complicated rules and numerous technical statutory limitations designed to favor the defendant, are all used as a trap to catch the trial court in error, however technical, upon which, in appellate proceedings, a reversal of the judgment of the court below may be obtained. The rule which generally obtains in this country is, that any error, however slight, must lead to a reversal of the judgment, unless it can be shown affirmatively that it did not prejudice the defendant. The disposition on the part of the courts to think that every provision of every rule of the criminal law is one to be strictly construed in favor of the defendant, [leads to undue delay in the criminal trial.]...

122. Results of the public defender movement 1 These glaring defects in our criminal procedure are becoming better Significance known to the public at large, but as yet the reform of such procedure of the pub

lic defender has proceeded slowly and with difficulty. Here and there, however, movement. the efforts of constructive reformers have been attended with a considerable degree of success. A notable development is the public defender movement, which began as recently as 1913, but which is already sufficiently important to warrant serious attention and study. The results of the movement, which aims to provide an honest and capable public attorney to defend impoverished or ignorant defendants, are summed up by Reginald Heber Smith, of the Massachusetts Bar, in the following language: It is unquestionable that the existence of the defender must prevent The de

fender helps some unjust convictions. We believe that by a jury verdict after a fair trial we approximate the truth as closely as is possible. The fair trial.

to secure a

1 From the Carnegie Foundation for the Advancement of Teaching, Bulletin

(Justice and the Poor, by Reginald Heber Smith.) New York, 1919; pp. 119-123.

No. 13.

defender reduces the danger of error to a minimum because he guarantees a fair trial to every one.

The case for the defender rests primarily on the fact that such an office performs an essential function in the administration of justice more efficiently, more economically, and with all-round better results than any other plan. The increased efficiency can readily be appreciated. ... The attorney who devotes all his time to criminal work is more familiar with the law and the details of procedure than the attorney who is occasionally assigned a case. Centralization of work makes specialization possible. The office learns thc easiest method of conducting the work, it develops its own staff of investigators, and knows the proper authorities to consult as points arise. The defender becomes an expert in criminal law. ...

A defender's office, whether supported by the state or by contributions, obviously costs more than assigned counsel who are paid nothing. If, however, adequate representation is to be had, assigned counsel must be paid and their expenses reimbursed, so that the true comparison to determine the more economical method is between the defender and paid assigned counsel. During the first ten months the expense of the criminal department of the Los Angeles office was about $8400; during 1915, $9400; and during 1916, $11,161.40. The average cost per case was respectively $23.86, $20.88, and $21.38, or a flat average for three years in 1324 cases of $21.87 per case. In the superior court for Milwaukee, where assigned counsel are paid, the expense over a period of four years ending 1913 averaged $4934.25 per year for 121 assignments each year, or an average cost per case of $40.86. It is probably not inaccurate to estimate that to secure adequate representation for indigent prisoners by paying assigned counsel is twice as expensive as by the defender plan.

[A further result of the public defender movement is that] the whole tone of criminal trials has been raised. ... In both Los Angeles and New York the defender has the cordial support of the district attorney. The defense is conducted without resort to trickery or deliberate falsehood, and the knowledge of this fact permits the prosecution to adopt an equally high plane of conduct.

That the defender tries his cases on their merits without resort

.

The public defender raises the tone of the criminal trial,