The Fate of the Guilty: Sentencing in Alameda County
Criminal justice has been described as a giant filtering system. Not everyone is caught, or arrested, or charged. Of those who are, some are dismissed; some are acquitted. At the last, a few are left: the guilty or unlucky. Some have pleaded guilty, some were convicted by a jury. The last word belongs to the judge, who will sentence the accused and thereby fix the punishment.
In our period, the judge's power to sentence fell within definite limits, limits set by law. Sometimes the jury shared in the sentencing power. Murder, for example, carried the death penalty; but the jury, if it so pleased, could sentence a murderer to life imprisonment (§ 190). For most crimes, the judge made the choices, and he had wide discretion. Inside statutory boundaries he could do as he pleased. For robbery he could fix sentence at "not less than one year" in prison; for assault with intent to commit murder, "not less than one nor more than 14" (§§ 213, 217). It was an old, persistent complaint that this was far too much discretion. Sentences varied wildly, from one judge to another, from one day to another. Hence punishment was a lottery, a poker game, a toss of the dice.
It was certainly true that the judge had, for some crimes, amazing latitude. The committed robber could go to jail for life, for one year-- or for anything in between. The sentence could be molded to the particular case. Discretion lived on despite criticism; indeed, as we shall see, it became broader than ever in our period.
In one key regard, the judge in 1880 had little choice. Prison was the basic punishment for felonies. The judge could say how long the defendant would be there; but he had to go. Suspended sentences were very rare.1 Even for juveniles, there was no real alternative before 1889. The convicted felon -- no matter how young, how penitent, how unfortunate -- was prison-bound.
This period, then, did not have the system of fixed, flat sentences____________________