The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-03-09
HUMANE AND VALID LAW
SUPREME COURT THUS DEFINES THE
INDETERMINATE SENTENCE.
Upheld by a Vote of Three to Two
Substance of the Dissent
ing Opinion.

trolling opinion was written by Judge Nc
Cabe and was concurred in by Judges
Monks and Hackney, while each of the two
remaining members Of the court, Judges
Howard and Jordan, handed down dissent
ing opinions.
The case considered was that Of George
Miller, who was sentenced by the ST. Joseph
Circuit Court, on May 8, 1897. to the Indiana
Reformatory for burglary. his term to be
not less than one year nor more than four
teen years, according to the rules and regu-
lations of the board Of managers of the
Reformatory The counsel for the prisoner
contended that the Reformatory, or indie
terminate sentence law, passed in 1897, au-
thorizing such a verdict, was unconstitu-
tional on the grounds that it violated the
provisions of the bill of rights and the Con-
stitution proper which provide that "cruel
and unusual punishment should not be in
flicted" that 1.-The punishment should be
proportional to the offense,' that trial by
jury shall not be denied, and that judicial
functions cannot be exercised by the adj
ministrative department of the government
The principal opinion of the court overruled
each of these several contentious
After giving an exhaustive review of the
law attacked, the opinion took up the claim
law authorized an excessive and cruel pun
ishment. The court, apparently, could not
on this point, resist the opportunity for
some fine writing. The opinion says:
NOT CRUEL PUNISHMENT.
1.-THE legislation was an attempt on the
part of the Legislature to obey the mandate
contained in Section Is, Article 1, of the
Constitution, demanding that: The penal
code shall be founded on the principles of
reformation and not of vindictive justice
And yet the duty to carry out one provi-
sion of the Constitution does not authorize
the Legislature to violate another. The
question still remains Does the statute in
f1ict cruel and unusual punishment? The APP
pellant was convicted of burglary, and the
punishment prescribed therefor by the
criminal code of 1881 was Imprisonment in
the state prison for any Discriminate period,
at the discretion of the jury, of not less
than two years and not more than four
teen years.
"Under the statute, If the evidence had
shown that appellant was guilty of break
ing into an old clubhouse, with intent to
commit a felony, though he found nothing
therein on which to commit a felony, and
less, yet the jury. in their uncomfortable
and unbridled discretion, could send him to
the state prison for fourteen years and ne
would be without remedy.
Certainly that is more cruel punishment
than that provided by the reformatory act
Under the law prior to that act, when the
the convict it not only shuts him in and
shuts out the bright angel of liberty. but 1t
also shuts cut of the, convicts heart all
hope which is the anchor of the SOUL Be-
cause, in the absence of such legislation, he
is utterly powerless, by any amount of good
codq Jet or peHlte IN TO asag OF at
all strange that, with liberty and hope gone,
the convict's heart should break, or that
he should in his helpless condition settle
down to the belief that society was his bit
ter-hating' enemy; and thus brooding over
the subject through the long years OF his
prison toll without recompense, and tears
all in vain is it at all strange that he
should at the expiration of his term, come
out of prison the bitter hating enemy of So
GIVES CONNECTS HOPE.
cit was to remedy this manifest evil to
society and to the criminal classes them
selves that the legislation in question was
enacted, So that when the convict is
brought within the prison walls, if his
crime be not treason or murder in the first
or second degree the hope of liberty is not
shut out of his heart, the anchor of his soul
is not taken away, but society whispers in
his ear the brotherly message through the
statute in question that the restoration of
your liberty. is largely in your own hands.
Your own good conduct and reformation
may restore you to liberty and to society as
a useful citizen, even before you have
served the minimum or shortest time fixed
in the criminal code for the punishment of
your crime namely in the year after your
Imprisonment begins The 9inlrGGn term
of Imprisonment prescribed by the criminal
code for a large majority of the felonies
falling within the reformatory act is two
years. and some three years. The minimum
term in a small number is three years and
in a still smaller number it is one year, and
in very few cases it is six months. And
fr71 q pd
counsel that this act violates the Constitu-
ton in placing 1t within the convicts pow
err by good conduct fdeiity ana trust t tbe
severity of his punishment by being re-
stored to liberty conditionally, and he may
be finally DISCHARGED long before the very
serve under the old law, because such pro-
vision is cruel punishment.
ITO say so would require us to turn back
the hands on the dial of human progress
hundred years To call these provisions
cruel punishment is to mock at all human
izing efforts. 1t IS to cast stigma on all
our benevolent institutions which stand as
noble monuments of the goodness of the
human heart In short. it is to deny the
fatherhood of God and the brotherhood of
The only plausible objection that
could be urged in reason to the act, as to
the character of the punishment when miti-
gated, as provided in the act, is that 1t is
too mild instead of being cruel. That how
ever, is a legislative and not judicial
ILLINOIS DECISION WEIGHTY.
The opinion quoted ruling by the Illinois
Supreme Court to show that the law did not
violate the bill of rights requiring the pun
ishment to be proportional to the offense.
AS to the contention that the law restricted
the right of trial by jury making the pun
ishment depend upon the determination Of a
board of managers, arrived at in ex parte
manner, in a county other than that in
which the offense was committed, the opin-
ion again quotes the Illinois Supreme Court
to the effect that at common law the jury
did not fix the punishment and that the con-
stitutional right of trial by jury is limited
to the trial of the question of guilt or in
nocence.
In regard to the last contention put for
ward that the reformatory board, being an
administration board, could not under the
Constitution exercise judicial functions, the
''The power to do this is not judicial
power but is a purely Ministerial or adj
ministrative power. 1t is no more the exer-
else of judicial power than the power of the
and pardons after conviction. Nor is it the
exercise of the pardoning power. Pardon
is remission of guilt; amnesty, oblivion or
forgetfulnesS. The act of the board only
shortens the term prescribed by the sem
tence and leaves the conviction OF guilt I'M
affected"
NOT A JUDICIAL POWER.
The act of the board in shortening the
term of imprisonment is the exercise of
exactly the same power in which it grants
credits of time for good conduct, and al
though the good time laws have been in
force in the State for over a quarter of a