Crime and Punishment in American History - Lawrence M. Friedman [261]
This last strikes us as a bizarre question, but it was standard in the county. Sometimes the district attorney wanted to know if the defendant could sing. What he was really looking for were clues to middle-class respectability. These proceedings were little morality dramas. They tended to become routine, stereotyped, but not, of course, to the poor soul whose fate hung in the balance. The judge, after all, was going to recommend to the prison authority how to handle prisoner X; and that was of vast importance to his fate, and to the length of his term. But all the judge had to go on were bits and fragments of data that the two sides served up, and the pieces of conventional morality that rattled about in his head. Somehow, these produced decisions.
A case from 1921, in the same county, neatly illustrates the process. The defendant, Andrew Clark, was young, poor, and black. He pleaded guilty to robbery but begged the judge for another chance. The assistant district attorney, a Mr. Bridges, came down hard on Clark: he “is a wanderer upon the earth and tramps all over. You have got no ties on him, no strings on him and he simply leaves here and what is the result”; he will simply prey “upon some other community.” The judge, at first, felt some sympathy: Clark was black and the judge knew all about “the characteristics of his race.... I know their disposition—they go and commit a crime and they are the first always to acknowledge it.” But Bridges demurred: in fact, Clark was the “last one to acknowledge it. He has always denied it until he pleaded guilty here. He claimed that he bought the [stolen] watches from the other fellows.” This obstinacy turned the tide. The judge sent Clark to San Quentin.91
Clark was a loner, a rolling stone, without social connections; his repentance and confession came too late; and he was black. All this doomed him to a tough sentence. The search for good eggs and bad eggs pervaded the system. It affected sentencing to the core. It also led to more and more savage statutes on habitual criminals, since these were, of course, the worst of the worst, the incorrigibles. New York’s law, the so-called “Baumes law” (1926) was absolutely draconian. It called for life imprisonment after a fourth conviction for a felony.92 The law showed the good citizens that New York could be, when it wished, exceedingly tough on crime.
The vice of such laws came out clearly in People ex rel. Marcley v. Lawes, decided by the New York Court of Appeals in 1930.93 The Marcley case also shows, in a particularly vivid way, how the court’s power to “interpret” law can mean the power to twist law like taffy. Marcley was a fourth offender. On June 27, 1921, he pleaded guilty to a felony: attempted theft of a motorcycle. Sentence was suspended. A year later, he pleaded guilty to burglary in the third degree: he broke into a chicken house and stole some chickens. Another suspended sentence. On the same day, he pleaded guilty to a third crime: burglarizing a garage and stealing “automobile accessories.” This got him three years and six months in Sing Sing. The fourth offense was stealing an automobile; Marcley pleaded guilty and was sentenced to life imprisonment in Sing Sing.
A bare majority of the court (four judges) set the sentence aside. These judges were clearly horrified at the thought that a man of twenty-five, “because he had previously stolen chickens, certain automobile parts, and a motorcycle, must spend the remainder of his days in a state’s prison.” To avoid