58
The Green Bag
This special committee was appointed, and made its report at the annual meet ing of 1908. The recommendations of this report, with one exception, were adopted, and have been embodied in a bill which, by direction of that Asso ciation, has been presented to Congress and is now before the Judiciary Com mittees of both Houses for consideration. The recommendations relate in form only to federal procedure. But in sub stance they are applicable to procedure in the state courts, and some of them apply to the procedure by which, in criminal cases, the judgments of the state courts can be reviewed in the federal courts. I therefore ask your attention to them. There are five recommendations em bodied in the bill. The last four relate solely to procedure in criminal cases, and it will be most convenient to con sider them first. In substance they provide that writs of error in criminal cases shall not issue until a judge of the Appellate Court "has certified that there is probable cause to believe that the defendant was unjustly convicted," and that no appeal shall be taken in habeas corpus cases unless a justice of the Appellate Court has certified that there is probable cause to believe that the petitioner in such habeas corpus proceeding is unjustly deprived of his liberty. The evil which the legislation has proposed to remedy is thus stated by the committee:— A still more flagrant abuse which exists in judicial procedure is also an innovation upon the common law. This is the unrestricted right to a writ of error in criminal cases. These writs are constantly sued out solely for delay. The punishment of notorious criminals is constantly being postponed in violation of every principle of justice. This is especially flagrant in the suing out of writs of error from the Supreme Court of the United States to review the decision of the highest
courts of criminal jurisdiction in the different states. We recommend that no writ of error in criminal cases, returnable to the Supreme Court of the United States, should be allowed, unless a justice of that Court shall certify that there is probable cause to believe that the defendant was unjustly convicted. It is not proposed to divest the Supreme Court of jurisdiction of writs of error in crim inal cases which involve questions of Con stitutional law. It is, however, essential to the administration of justice that such writs of error should not be sued out as a matter of right, but only when a justice of the Supreme Court shall certify that there is probable cause to believe that the defendant was un justly convicted. It is well known that Con stitutional questions have been ostensibly raised on the record upon frivolous pretexts, and solely for the purpose of obtaining delay by writ of error returnable to the Supreme Court. It seems to have been forgotten that society has an interest in the punishment of criminals. All authorities on criminology agree that the certainty of punishment is far more important in the prevention of crime than its severity. The present system tends to make the punishment of crime as uncertain as human laws can make it. The old maxim is forgotten: Judex damnatur cum nocens absolvitor. J A favorite device of the gentlemen who achieve success in the manumission of mur derers and the protection of the criminal classes is to apply to a federal judge for a writ of habeas corpus. He finds there is no cause for its issue and orders the prisoner remanded. Then an appeal is taken to the Supreme Court and the execution of a just sentence is stayed, while hysterical appeals are being made for pardon. On the other hand, we see the populace, enraged by the delays of justice, engaged in equally hysterical lynching. The innocent suffer. The guilty escape. And we call this civilization. Every day we see fulfilled the words of the wise Hebrew monarch:— "Because sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil." To quote the language of the Honorable Andrew D. White, in an address delivered at Ithaca :— "While the number of murders is rapidly increasing, the procedure against them is becoming more and more ineffective, and in
