The Topeka state journal., 1900-01-31
CHANGE THE LAW.
Judge Otis Thinks Capital Punish
ment Provision Should Be Changed.

Judge Otis Thinks Capital Punish
ment Provision Should Be Changed.
E S. Earhart, of Kansas City, read
before the State Bar association meet
ing yesterday afternoon, a paper con-
cern1ng capital punishment in which it
was suggested that the governor of the
state should commute, by official ac-
tion, the death sentence to life impris-
onment, of Kansas convict murder
ers.
The paper which was prepared by
Judge A. G. Otis, of AtchiSon. contain
ed some worthy suggestions. Owing to
inability to be present Judge Otis was
represented by his son-in-law. Extracts
form the address follow:
There are at this time in the Kansas
penitentiary 49 prisoners under the SEN
tence of death and many of them have
been there from Is to 20 years. This as
gregation commenced in 1879, soon af-
ter the passage of the law of March 26,
1872. which radically changed the
course of criminal procedure in capital
cases. That law rendered the action of
the executive necessary to give force
and effect to the judgment and sentence
Of the court.
THE causes which led up to the pas
sage of this singular law, it is perhaps
useless to speak of at this late day. One
thing is however. clearly apparent and
that is that it was intended and desig-
mated to defeat the will of the majority
of the people upon the question of capi
tai punishment. For if the opponents
of capital punishment had at that time
a majority of the legislature, they GER
tainly would have squarely repealed the
law providing for capital punishment
and settled the matter definitely and
finally in that way, and would most
certainly have not reSOrted to the sub
terfuge of obtaining an amendment to
the code of criminal procedure, appar-
emily harmless, but in effect accomp-
fishing fully their purpose. The law it
self is an anomaly"
The details of the proceedings of
courts and the part which the eXecu-
tive of the state takes in these matters
were then covered by the paper. Speak
ing of the courts the judge said:
Innocent men are not convicted of
crime, especially of this highest of all
crimes enumerated in the statute. 1t is
hard enough to convict the guilty and
many escape. I have no recollection
now of any case in the state where a
conviction and final sentence for mur-
der in the first degree was ever shown
to be erroneous by after discovered .tes-
timOny. Efforts are always continuous
ly made to do this and always as con-
| tinuOusly fall
Judge Otis then calls attention to the
| fact that a judge sentences a man to
death but the court has no power to
carry out the sentence and that Wheth-
er it will ever be carried out or not de-
pends altogether upon what the COVER
nor thinks of capital punishment and
.
prisoner. The effect of such a sentence
is too apparent. The law confesses its
own weakness; its own Deficiencies;
| its own want of power. 1t loses the re-
| Spect of the community, and it's infiu-
/ ence for evil goes down among the
/ criminal classes as penetrating as the
/ air and as subtle as a peStilence to
/ breed further crime. 1t does more than
/ this, it invites the criminal class from
| other states where capital punishment
/ is resolutely inflicted.
but a more pertinent inquiry is to
! consider the condition of these cOnvicts
/ after sentence. The law nowhere con-
J templates or approves of a condition of
! suspense. The constitution guarantees
| a speedy and impartial trial. The law
! provides that an accused person in con-
/ finement, unless tried at the second
| term of court after arrest shall be re-
! leased and go acquit. After verdict
/ failure to pronounce sentence at the
same term of court would be fatal to
| the state. In this the court considers
! the natural anxiety and mental suffer
I ing of this state of uncertainty and
! suspense. 1t seems that in all these
| cases the executive has determined to
not infiict the sentence. Their failure
to act settles this point.
Then why were not these men enti-
| tied to know that fact and have a le-
| gal Communication granted them? Why
| were not the people entitled to know
| that the end of the law had been reach
| ed and what that end was? That these
| prisoners from their standpoint suffer
! often in an extreme degree from this
| uncertainty and suspense. can not be
| questioned. The organization of the
human mind compels this conclusion; it
! cannot be otherwise If any man doubts
this let him try it in his own case in
| imagination. These men do not know
/ and cannot know what day some public
sentiment; some change of opinion:
| some influence prompted by prejudice
| or passion; policy or revenge; may
not claim a victim from among their
number. The sword is over their heads
by day and night. 1t is suspended by a
single thread and that thread is the ca
| price of the executive. No other of the
1Ass4STscsss. sts.t~ =. ssss..s such = zI5e,-
/ tacle. Such a number of men held by
. the law wear after wear. in the sha dow
of the scaffoId awaiting execution. They
are outcasts. perhaps deseryedly so. but
they are helpless and they are human.
BY and through this very uncertainty
they are suffering a cruel and unusual
punishment, prohibited alike by the
constitution of the state end the com
mon reason of men.
1.-THE workings of human character
naturally make these men dangerous
and desperate prisoners in their present
position. They know not their fate nor
what day may bring forth. There is
nothing before them from their sphere
of vision, except death or the possibility
of escape through further crime. There