UNEQUAL JUSTICE. T HE readers of Truth are familiar with what
Mr. Labouchere calls his "legal pillory." For those who have not this advantage we may explain that it is a parallel list of sentences passed during the previous week on offenders against property and offenders against the person respectively. The disparity between the two columns is sometimes very startling. A small fine appears to be considered by many Magistrates a quite adequate punishment for some gross act of cruelty to women, to children, or to animals, while a long term of imprisonment is constantly meted out to very small thefts of money or goods. This is an example of an inequality of justice which is due to the law itself, as well as to its administrators. To our ancestors robbery seemed a very much greater crime than violence. Property was hard to protect, and, the only way to counterbalance the easiness with which it could be stolen was to make the penalty for stealing it a very heavy one. Against violence, on the contrary, when not associated with robbery, a, man might defend himself. If his hand could not guard his head he was hardly worth the intervention of the law. There was oppression of the weak then as there is now, but the line between oppression and parental or marital discipline was far less distinct, and the incidents of modern poverty seem to minister to these particular offences in a greater degree than the incidents of mediseval poverty. With the growth of civilisation there has come a very great change in the public estimate of the two Classes of crime. We are more shocked at a brutal assault than at a robbery ; and brutal assaults seem decidedly more common. This is due, in part, to the general disuse of arms, which has left the ordinary citizen without any means of protection, unless he happens to know how to use his fists, and in part to the closer neighbourhood of assailants and victims which exists in great cities. But this change of view has not yet left much impression on the Statute-book or in the minds of the local Magistrates. The sentences which the law allows to be passed are more severe in the case of offences against property, than in the case of brutality or cruelty, and the use that Magistrates make of their discretion emphasises and exaggerates this discrepancy. The remedy here is com- paratively simple. The proportion of punishment and crime needs revision, and the occasion for effecting this will be the codification of the criminal law, if ever the House of Commons can spare time and thought for any- thing so trivial.
But besides inequalities in the sentences prescribed by law for different classes of crime, there are inequalities arising wholly from the temper of those who pronounce the sentences. This was the subject of a letter from Mr. Crackenthorpe in the Times of Wednesday. Mr. Craeken- thorpe is not only an eminent Equity counsel, he is also a chairman of Quarter Sessions, and he very justly points out that no improvements in prison discipline can be of much avail so long as there is so much uncertainty as to the length of time for which this prison discipline is to be inflicted upon criminals. As it is, he hints, the sentence passed upon a, prisoner may vary, not according to the greater or less magnitude of his offence, but according as the Judge who tries him is a Preventive, a Humani- tarian, or a Retributionist. There is an equal divergence, he tells us, "as to the weight that ought to be given to a previous conviction." To one Judge it may be a serious augmentation of the offence ; to another it may be a thing not worth taking account of. This latter ground of inequality is less serious, or rather more capable of re- moval, than the former. There is no reason why it should be left to the Judge to determine whether the fact that an offender has been convicted before, does or does not make him deserving of more severe punishment. The very same considerations which suggest leniency in the case of first offenders, suggest increased severity in the case of old offenders. What amount of attention these considerations deserve, is a point which it ought not to be beyond the ability of the Legislature to determine, and when deter- mined, it can easily be embodied in an Act of Parliament. It is a point, moreover, upon which certainty and publicity are especially necessary. If the fact that repeated convictions bring increased penalties with them is to be of any value as a deterrent, it must be known to the man who is tempted to add crime to crime. Embody the rule in an 'Act of Parliament, and it becomes as familiar as the fact that hanging follows a conviction for murder. Leave it to the fancy of the Judge, and the old offender comforts himself with the hope that chance will stand his friend, and send a lenient Judge to the Assizes at which he is tried.
It is when we come to the question of judicial discretion generally that the difficulty of making a change becomes apparent. Revise the scale of penalties as we will, the degrees of guilt in those who incur them will be almost infinitely various. The circumstances of each case will be individual, though the actual crime may be identical. In itself, for example, no crime can well be more brutal or more deserving of hanging than wife-murder. Yet though two men may be tried for this offence at the same Assizes, and with every particular the same, provocation may reduce the guilt of the one almost to zero, while the absence of provocation may make the other only fit for the gallows. How is this difference to be taken into account, except by an exercise of the Judge's discretion ? Provocation is not a thing that can be defined beforehand. It depends on a hundred circum- stances, each of which helps to make up the impression which in the end remains on the mind of the Judge who tries the case, and within certain wide limits determines the penalty. Still from time to time there are instances in which, after every allowance has been made for the dif- ference between merely reading about a trial and being present at one, and for the accuracy in estimating degrees of guilt which comes from long practice, the sentence inflicts a grave shock on public feeling. When this shock is caused by the extreme severity of the sentence, there is a possibility of putting things right. The Crown can be appealed to to exercise its prerog itive, and if the Home Secretary is convinced that the appeal is well founded, he may remit a part of the penalty. When, on the other hand, the failure of justice takes the form not of over- severity, but of over-lenity, redress is impossible. The offender who richly deserved penal servitude escapes i with a short imprisonment; the brute who would have been all the better for a sound flogging is let off with a fine, and the Secretary of State is powerless to give any redress. These are the cases which occasionally give rise to a cry for greater uniformity of sentences and less judicial discretion. But if the change were made, we should only have exchanged one evil for another. To make uniform sentences consistent with justice, we must first make the guilt of the prisoners uniform, and this is precisely what we cannot do. Nothing but the actual trial can show what there has been in the way of extenuation or aggravation, and only those who have a Judge's opportunities of observation and com- parison, can rightly apportion the degree of blame in eadi case. Parliament would be forced to make the penalty of each crime either very light, to meet the one type, or very heavy, to meet the other ; and whichever course it adopted, there would in the end be more failures of justice than there are under the existing system. The only remedy we can see, is the giving the Crown, under certain circumstances, a right of appeal to a higher Court, or of asking for a new trial. We are not suggesting these expedients as a corrective for perverse verdicts of juries. Happily, though these are met with from time to time, they are not frequent enough in this country to call for legislation. What we have in view is perverse sen- tences of Judges, sentences in which, from some peculiarity in the judicial mind, there is a conspicuous inadequacy in the penalty when compared with the crime. If these could be reviewed, judicial discretion would remain ; what would be new would be the provision of o. remedy for a particular misuse of it.
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