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suspension or mitigation of sentence,' in the former laxity as to enforcement 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 realizing of the possibilities which exist even in an outworn system."

8

In the county prosecutor's office there are many examples of the same tendency, such as perfunctory preparation of cases which, under the circumstances of today, amounts to no preparation, perfunctory observance merging into non-observance of the rule as to reasons for nolles,' the former laxity in watching bail proceedings, laxity in the requirements 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,10 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 perfunctorily followed ritual is destructive of efficiency and explains much in the "Mortality Tables" in Mr. Bettman's report.13

(5) More fundamental and more serious is the division of power and diffused, ill-defined responsibility 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 control 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 policy, 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

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court. The opportunities for sinister influence upon the administration 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 State 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 professional 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 prosecutor 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 efficacy of prosecution is the assumption of versatility on the part of the prosecutor's assistants, which is involved in a system of choosing them on the basis of politics or of allotment among the different racial groups, and then throwing the work of the municipal prosecutor's office at them as chance dictates, with no distribution or specialization, 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 versatility 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.

(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 facilities 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 beginning every petty prosecution with arrest,' or provision of stenographic report of testimony at preliminary examinations,2 with which all students of English 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 requirements of the time and of the best which experience elsewhere has developed, 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 average prosecutor, however well intentioned, to form any adequate conception of how his office is, in fact, functioning.

5

Results of the foregoing defects in the prosecuting machinery in promoting 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 professional 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 prosecution and a pruning away of the excess of mitigating agencies which have accumulated in the course of Anglo-American legal history.

C

CHAPTER VIII

CRIMINAL COURTS

RIMINAL 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 metropolitan 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 excuse for the present state of the criminal courts in Cleveland, in that organization 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 working well enough in the average locality, 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 administration. 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 prosecution.

(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 atmosphere, a police court of a small town of the middle of the last 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

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 Cleveland, 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 examination and binding over to another tribunal which grew up to meet the exigencies of a time when the intervals between the terms were longer and the courts were sitting intermittently. Between these terms it was necessary for magistrates to conduct preliminary 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 indictments 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 Courts1 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.2

On the criminal side of the Municipal Court persistence of police court organization and traditions and methods is particularly unfortunate. 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 public in determining what type of judge should sit therein. But, as is true in so many localities 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 public 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 cosmopolitan population" has disappointed the expectations of its authors. The real significance of this failure is that the primary system attempted to deal with new situations by tinkering old machinery; it took the elective bench, an institution of

1 The Criminal Courts, p. 235.

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2 See Diagram 2, report on the Criminal Courts.

* Ibid., p. 260.