Crime and Punishment in American History - Lawrence M. Friedman [244]
17
THE CONTEMPORARY CRIMINAL TRIAL
IN THE TWENTIETH CENTURY, AS ENORMOUS CHANGE SWEPT OVER THE LEGAL system (and society), the organization of the criminal trial did not remain untouched. In many ways, however, the contours of an actual trial remained familiar. Rip van Winkle, waking up after a century asleep, might recognize the criminal trial more easily than most other situations, events, and institutions in society. He would be surprised, of course, to see women serving in novel roles. He would also be surprised at the rainbow of races he would see in many courtroom.
What he would not see is the non-trials. Most cases today never get to trial; they are shunted onto various sidetracks—usually plea bargaining. Proceedings in the twentieth century became even more sharply bifurcated than in the past: full-blown trials for the few, bargained justice for the many.
The Basement of Criminal Justice
It was still true in the twentieth century that there was no criminal justice system to speak of. Criminal justice was, rather, a hulking, headless creature, uncoordinated, with nobody really in charge. Each of its several layers had its own way of working, its own procedures, its own goals and strategies. At the bottom were, as before, the petty courts, processing cases by the thousands. Many defendants here were what Justice William N. Gemmill of the Municipal Court of Chicago, speaking in 1914, called “the army of defeat.” These were “not men and women, but the remnants of them only”—people without “hope, pride, ambition, courage, self-sacrifice and all those qualities which distinguish the human from the animal world.” Gemmill spoke of them with contempt, as an “army of derelicts,” an “appalling menace”; they were shiftless, were “constantly on the move.... In the summer they sleep in parks, under sidewalks and along the wharfs. In the winter they hibernate in cheap lodging houses ... upon beds of filth, vermin and disease, and from which they ... carry contagion and death to the whole community.” They were “driftwood cast upon a turbulent sea.”de
Not everyone who was tried in petty courts was “driftwood.” There were also plenty of weak reeds: people who got dead drunk or involved in a brawl, but who had social roots, a family, a job. These tended to be treated with a lot more indulgence. We have alluded to the San Diego “Sunrise Court” (chapter 16). Los Angeles, too, had a “Sunrise Court” between 1915 and 1918. It convened itself at 5:30 A.M., to process last night’s drunks. There were many of these: in the year ending June 30, 1915, 185 men and women were arrested for intoxication—over one-third of all the arrests in the city. The “court” aimed to warn men about the “the evil of overindulgence and to release them, if they have work, so that they will not lose their jobs through their weakness.” The “court” was, in the judgment of the police department, a great success: most people found “the humiliation of arrest and confinement in jail for a few hours” quite enough punishment; and the court “saved the job of many men and prevented their dependents being thrown on public charity.”df
The petty courts pulled in what the nets of the police yielded, as they trawled public spaces, keeping order and punishing those who violated norms of decency and respectable behavior. These courts separated the wheat from the chaff—the “real” criminals, the worthless, the dregs of society, from those who had a passing weakness, or who got in trouble from drink. Basically, the petty courts were places