The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-01-16
ATTORNEY GENERALS BRIEF.
The State Files Papers in the Indefer-
inmate Sentence Cases.

The attorney general yesterday filed the
brief for the State in the six cases pending
before the Supreme Court involving the
constitutionaliay of the indeterminate SEN
tence law The brief summarizes the objec-
tions made to the law in these suits as fol-
lows: % 1t denies the right of trial by
jury; 90 it violates the provision which re-
quires the punishment to be proportioned
to the offense; 90 it confers upon an adj
ministrative board judicial functions; and
"a il deprives the Governor of the pardon
ing power.
The attorney general passes the fourth
objection by with little comment. The law
expressly states that the power of the Gov
ernor to pardon is not to be impaired by
any construction placed on the act. AS to
the first objection that the law denies the
right of trial by jury, the brief shows that
the common law right of trial by jury
ceases with the determination of the guilt
or innocence of the accused, and under the
United States Constitution the judges have
always fixed the penalty. But in Indiana
there are no common law crimes, the Legis-
lature determining by statute all acts that
are criminal. These acts are divided in this
State into miSdemeanorS and felonieS, of
which only the latter are punished by i'm
prisonment in the penitentiary. The jury
still has the right to fix the punishment for
when a verdict for felony has been rem
dered and stops the jury where it always
stopped at common law. The judge then
affixes the penalty. in strict conformance
with law. 1t is the province of the Legis-
lature to pass laws for the punishment of
crime, and to maintain that the jury should
have the right to fix the punishment is to
maintain that the judicial department may
invade the legislative.
The second objection that the law vio-
lates the provision of the bill of rights
that the punishment should be proportional
to the offense is answered by the attorney
general with the argument that it is the
duty of the Legislature to fix the penalty
for crime and that the courts as courts
cannot be concerned with the wisdom or
unwisdom of legislation. They can act only
as citizens in seeing that unwise acts are
repealed.
says that it is now settled law that men
do not act judicially because they exercise
Judgment in administrative affairs that are
ntrusted to them. In closing the attorney
general says:
IF laws are TO be passed Offering induce
ments to criminals, charged, convicted and
under sentence. TO lessen their punishment
by giving outward and visible indications
of a reformation. of character, those laws
large powers and large discretion upon
those whose duty it is to come in contact
with, to oversee and supervise the conduct
of the men whose actions they are to weigh
and consider and, in the interest of So
ciety determine whether 1t is better they
should be accorded their liberty with or
without fSstrlctlons OF whether tney SnaIt
be continued in confinement and their pun
ishment indefinitely prolonged. The time is
past when men who have stepped aside
from the beaten paths are, on that account
to be treated as outlaws and incorrigible
criminals, whose permanent Incarceration
is demanded, not for purposes of reforma-
ton, but for purposes of vindictive justice.
Between that perio2 and the sentimental
period, which sends roses to depraved GRIM
finals there is Il safer middle path which
the General Assembly of this State has
sought to reach. It may not have reached
much to leniency. but time and experience
can alone determine that. and with that
this court is not concerned. Upon the
courts that duty and that power does not
rest The only duty and the only power of
the court is, If they find that some provi-
to say to the General Assembly Beyond
this line you cannot go, for the Constitu-
ton. not we, forbids.