Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1916-12-16

be stigmatized as re-actionary,
though it could as well be called re-
tracing steps taken in the wrong d.
rection. The former system was
based on the doctrine that the enforce
ment Of laws as well as the enactment
OF laws, is a State function to be ex-
ercised by the people Of the whole
State throughout the State and
through officers accountable to- them.
The present system is practically based
upon the doctrine that the question
| what laws shall be enacted for the gov
ernance Of the State: is still a question
for all the people Of the State; but that
the question what Of these laws shall
be enforced or to what extent, is
question for the people of each locality
or county. The inconsistency is appar-
ent.
| Unfortunately under the present
system the people Of individual coun-
ties do not always have in mind the
interests of the people Of all the
counties in the enforcement Of all the
laws in every county: do not always
elect vigorous. efficient and faithful
sheriffs and prosecuting attorneys.
Sometimes also when thought before
election to possess those qualities, such
officers after election are found to be
without them. or at least do not ex-
ercise them. AS to unfaithful sheriffs
they cannot during their two years.
term of Office be disciplined at all by
the people who elected them, nor by
| the people at large whom they have
offended, except through the slow and
cumbrous process Of legislature adj
dress.
1t is otherwise. however, with the
prosecuting officers, the county at
torneys. They are not protected by
the constitution, but are still within
legislative control; and here 1 think
much and even enough can be done
10 remove the reproach Of the nom
| enforcement of certain laws. To my
fn'nd the public attention and criticism
+ nave been directed too little to the
, county attorney and too much to
me sheriff, as if the enforcement of
the laws depended at least mainly
upon him. whereas at the most he can
only initiate prosecution as any mem
Der Of the Civil League or any citizen
may do. The power to control the
prosecution from the time Of indict-
ment or entry of appeal is in the
county attorney. He can push il Wig
orouslV or merely perfunctorily or ,et
IL lie dormant. He can dismiss il at
pleasure even against the protest of
tho court. despite the Salute declar-
ing ne shall not do so. He can do so
even after verdict or plea of guilty..
his control does not end until sentence
mas been imposed and he may never
nave it imposed. While it is his dutv
to proceed against the sureties in a
ue1auited recogniZance. he can neglect
10 90 so. Indeed by mere non-action
ne can nullify all the efforts of the
most efficient and faithful sheriff to
enforce the laws. I am assuming. of
course, the assent Of the respondent to
this lnaction or dismissal which assent
can usually be counted on.
In what l have written above of
the power of the county attorney to
further or hinder the enforcement of
the laws, l should not be understood
as intimating that the county attor-
neys generally hinder. On the con-
trary, believe they are generally eff
fcient and faithful. In some cases
however. they do hinder. and espec-
Tally by a too frequent abuse of their
power or nollo prosequi, the power to
dismiss prosecution. There is one
reprehensible practice in particular to
which l called attention in an article
in the Maine Law Review Of February,
1913, practice that l fear is still quite
common in some counties. l quote from
that article as follows:
"A reprehensible practice however,
is said (and fear with some TRUTH
to have obtained in some counties
! for the prosecuting officer, even after
convictions sometimes, to grant nollo
, Drosequi in consideration of the de-
ferdants paying into the county treas
ury such sum Of money as the officer
may fix upon. This practice is con-
trary to the spirit of the law entrust-
ing the power of nollo prosequi to the
prosecuting officer. 1t is a plain mex
cusable usurpation of a power entrust-
ed to the courts. the power of deter
mining what the penalty should be
within the limits fixed by the Legis-
lature. Some prosecuting officers fol-
lowing this practice, are said to at
tempt to justify it upon the plea that
the county needs the money and they
rear the court might impose imprison-
ment rather than a fine. In other
words. their plea is superior to the full
execution of the law, or that they are
better judges than the court of what
IS an adequate penalty for the offense.
Elther plea is plainly demurrable;
needs no answer. 1t was never con-
templated that the power Of the nollo
prosequi should be used to fatten a
county treasury. or to shield a defend
ant from the penalty provided by law
Tor MS orense. STATE v. CONWAY,
20 r. I. go was a case where a nollo
prosequ1 had been entered upon the
payment of 500 and the costs of the
prosecution. The court said %. 273)
we are aware that the custom has
obtained to considerable extent for
the attorney general to compromise
or settle this class Of cases, as well as
cases arising under the liquor law,
upon the payment of certain sum of
money to the State by the defend
ant; but the practice is a vicious one
and meets with our entire disapproval
There is no law authorizing a sem
tence, or any legal substitute therefor
by consent of parties. without the i'm
position thereof by the court"
For such an important office vested
with such great power over the en-