it has always been the province of the chief executive of a state or nation to grant pardons or clemency to those who are confined in prison. this is largely to correct the mistakes of courts and juries and is often indulged in by presidents and governors at christmas time. experience shows that during the trial of a case, especially one that causes public notice and general discussion, injustice is frequently done. often the defendant is convicted when he should have been acquitted, and still more frequently punishments are excessive and cruel. almost never is any serious inquiry made as to the heredity and environment of the accused. probably trial by jury has served to save many defendants where the judge would have convicted, and has still more often tempered and modified penalties. still, juries are by no means free from the mob psychology that surrounds and affects most important and well-known cases. jurors are generally none too intelligent and not very ready to stand against public opinion. most men agree with the crowd. the prevailing religious opinion and the dominant political and social ideas are accepted and believed by the ordinary citizen. social and business considerations cause most men to go with the crowd, and in any case of importance it is easy for a jury to tell the feeling of the populace. if the case has attracted much attention, the juror knows the prevailing ideas as to the guilt or innocence of the defendant. when he takes his seat in the box he almost always shares that feeling. if the case is not one he has heard of or discussed, he can easily tell by the actions and surroundings of the court room how public feeling lies. all lawyers know how readily men feel the sentiment of a court room and how much easier is the task when the sentiment is their way. juries are also apt to have an undue regard for the opinion of the judge. in spite of the fact that it is their province to pass upon the facts, they are very watchful of all the judge says and does and are prone to decide a case as they believe the judge wishes it to be decided. even when the judge is not permitted to express any opinions on the facts involved, it is difficult for him to hide his real feelings, and when his desire is strong for either side it is easy to make his opinions known.
a jury is more apt to be unbiased and independent than a court, but they very seldom stand up against strong public clamor. judges naturally believe the defendant is guilty. they feel that the fact that an indictment has been found is a strong presumption against the accused. the judge regards himself as a part of the administration of justice and feels that it is a part of his duty to see that no guilty man escapes. generally, in the administration of the court he is very closely connected with the state's attorney and naturally believes that the attorney would not have procured an indictment, much less pushed a trial, unless the defendant was guilty.
the whole atmosphere of the court at the time of the trial calls for a harsher and more drastic dealing with a defendant than would naturally prevail after the feeling has passed away. for this reason, the pardoning power is given to the chief executive to correct errors or undue harshness after the legal proceedings have been finished. often after months or years, the persons or family who have suffered at the hands of the defendant feel like reversing their judgment or extending charity, and it is not unusual that the prosecutor and judge who conducted the case ask for leniency and a mitigation of the sentence is imposed. so often is an appeal made and so frequently is it felt just to grant clemency, that this part of the duty of the chief executive has grown to be very burdensome and really impossible for him thoroughly to perform. the policy of the law is further to give a prisoner some consideration and in cases of good behavior and mitigating circumstances to release him before the expiration of his time. in most states this has called for the creating of a board of pardons and parole. the statutes fixing penalties for certain offenses provide for a reduction of a certain number of weeks or months each year, but as a rule courts take this provision into consideration and figure out the net time they wish to give the defendant so that there is no clemency except through pardon or parole.
in most states the duties of the board are very grave and its business large. with this has generally gone a law providing for the release of prisoners on parole before their sentences are finished. in these cases the prisoner is paroled to someone who promises the board to employ him, and a monthly report is to be made of his conduct for a stated length of time. he is then given conditional freedom, subject to the revocation of the parole by the board on the violation of its terms.
the administration of this power has made the parole board one of the most important, if not the most important, of any branch of the state government. the lives and well-being of thousands of prisoners are absolutely dependent on this board. even more important are the happiness and well-being of the families of the inmates of the prison. the power and responsibilities of this board are so great that only men of the best judgment and of humane and just tendencies should be trusted with the task. it also calls for great courage such as few men on boards possess. the public generally clamors for vengeance and unfairly and unjustly criticises the board, especially when a released man violates his parole or commits another crime. this frequently happens. perhaps on an average ten per cent of those paroled are sent back to prison before their term expires. all this makes it hard for the board to perform its duties, and makes the members of the board timid and doubtful of the result, often causing them to deny paroles in many cases where they should be given.
a great deal of criticism has been made of the parole system. public officials and that part of the crowd that is clamorous for vengeance are always ready to assail its activities unfairly and unduly. most professional criminals are against the parole board. speaking of the state of illinois, i am sure that the parole law, instead of shortening the time of imprisonment, has lengthened the terms. all lawyers in any way competent to handle the defense of a criminal case would, in the event of conviction, almost always get a shorter term for their clients from a jury or from the court, or even from the prosecutor, than from the parole board. i feel strongly that the board is too timid and unwilling to grant paroles. still in spite of this there can be no doubt that the parole law is a step in the right direction, and it should be upheld by all who believe offenders should have a better chance. if human nature in the administration of law could be relied on; if there were some method of getting men of courage and capacity with plenty of competent aid and assistance to take charge of paroles and prisons, then the ideal sentence should be one that fixed no time whatever. it should simply leave a prisoner for study and observation until it was thought wise and safe to release him from restraint. this like all the rest could not be done with the present public attitude toward criminals. so long as men subscribe to the prevailing idea of crime and punishment, no officials could stand up against public opinion in the carrying out of a new and radical theory, and even if such a board should be established, the law under which it acted would soon be repealed or the members of the board forced to resign and a new one would take its place.
in spite of the fact that the effect of parole boards has been to lengthen sentences, and in spite of my personal belief that they should be materially shortened, i am confident that the parole system should be maintained with the hope of improvement and the chance of gradually educating the public until sentences can be naturally shortened, and the care and control of prisoners be placed on a scientific and humane basis.
a board of pardons and paroles should be made up of men who are really interested in their work. they should carefully keep up with the literature on crime and punishment; they should be scientists in all matters touching their work, and they should be men of humane feelings. it is too much to expect that all of this can be found in a board for a long time to come, but with good sense and the right attitude of mind the board could employ the skill that it does not now have. every prisoner should be the subject of attention, not of spying, but of friendly interest that would inspire confidence and trust,—such an interest as a wise doctor has in a patient. this attention would in most cases gain the confidence of the prisoner and make it possible to find out how far he could be trusted, at the same time showing the treatment and environment he needed for future development. where this confidence could not be had, safety would probably require a longer term. most men respond to kind treatment. the criminal has so long looked on the world as his enemy, especially the official world, that he hesitates to trust anyone. still the really sympathetic and kindly man who is honestly trying to help him will sooner or later get his confidence and coöperation. every prisoner should understand that all of those around him are anxious to educate him so as to fit him for society and to put him in an environment where he can live. even then there would be mistakes, and a portion of the prisoners would be so defective or imperfect that they never could be released; but under proper treatment many would be restored to association with their fellow-men.
it will be a long time before it will be safe to make sentences entirely indeterminate. boards cannot be trusted to give such time and work and judgment to their task as will prevent cases of great injustice. until such time shall come either the statutes must fix an unbending and arbitrary time which takes no account of individual cases, or it must be left with the court or jury. clearly the jury should fix the maximum, leaving the members of the board to reduce the penalty if they deem it wise.
most men are forgotten when they go to prison, especially if they have no active friends on the outside. no board can fully keep in mind all the inmates of a large prison. it may be that by some system their attention is automatically called to the man at certain times, but this matters very little. someone should know he is there and why, and who he is. he should not be an abstract, but a concrete man. for these reasons, a limit should always be set on a punishment and the limit should not be too long. the idea of a tribunal, perhaps including the judge who passed sentence, having the power and the duty imposed upon him to review sentences and reduce them if it seemed best from time to time, might have a good effect. the feelings of most men in reference to the degree of punishment change as time goes by. always with the punishment is a strong feeling of both hate and fear. it is not possible really to punish, that is, to inflict suffering without hate or fear. the most necessary thing in preparing soldiers to fight, is to teach them to hate and fear the enemy. in the trial of a case, these feelings are fresh in the minds of the prosecutor and the judge when the case is finished, and they necessarily act more or less under the dominance of their passions. in time these feelings fade, and a saner and kindlier judgment takes the place of the first feelings that possessed the mind.
with the parole system is going on a movement for probation. this provides that the convicted man need not be sent to prison but may be released on certain terms, sometimes requiring that money taken shall be refunded. after that he shall be placed under the supervision of some friend or agent who will report from time to time to probation officers or to the court. probation is generally granted to young prisoners and first offenders but usually not permitted in cases that the law classifies as the most serious.
parole and probation are much the same in theory. in both these cases the clemency should depend much more upon the man than on the crime. it does not follow that a very serious crime shows a poorer moral fibre than a lesser one. it may well be that the seemingly slight transgressions, like stealing small amounts, picking pockets and the like, show a really weaker nature than goes with a more heroic crime. there is no such liability to repeat in homicide as there is in forgery, pocket-picking or swindling. the seriousness of a homicide is likely to make it impossible that the same man shall ever kill again. many such men would be perfectly safe on probation or parole. but the smaller things that are easily concealed and come from an effort of the condemned to live, either without work or in a better way than his ability or training permits him to do in the hard and unfair conditions that society imposes, are often much harder to overcome. at any rate, the main question should be in regard to the man and not the crime. in cases of parole or probation, society should do what it can to help the man make good. generally employment is necessary and a different and easier environment often indispensable. if organized society would only take the pains to make an easier environment for all the less favored, the problem would be fairly simple and most of the misery that comes from crime and prison would gradually disappear.
