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AND THE
OF THE
BY
ANDREWS
CHAMPE S.
Of Me New Tork Bar, Counsel Medical Sociegy County qf New Turk





PRIVATE SOCIETIES AND THE ENFORCEMENT OF THE
CRIMINAL LAW.
REGENT issues of the New York newspapers contained accounts of a
meeting of some thirty or forty citizens to ventilate their alleged griev-
ances against the American Society for the Prevention of Cruelty to
Animals. For the most part, the speeches at that meeting were directed
against certain methods of the society; and most of the suggestions ad-
vanced took the form of projects for the formation of a new association of
the same kind to be controlled by the protesting citizens instead of the
present officers. It was a proteet involving personalities only and was
not based on any dissatisfaction with the objects or principles of the
society. An editorial writer in “The New York Times,” in comment-
ing on the meeting, makes this interesting suggestion:
For our own part, we should have been better content if at least a few of the
society’s critics had raised the question whether there is a real need for private cor-
porations to execute this or that law, or even to see that this or that law is executed.
Here is a most interesting query, and one that calls for a frank dis-
cussion uninfluenced by sympathy or hatred for one or more of the many
private corporations now engaged in enforcing certain features of our
criminal law.
The citizen in communities removed from great cities sees little of
the work of such private societies, because these are called into exist-
ence, for the most part, to combat crimes that can only exist where the
stream of human life is crowded into crooked and subterranean channels.
We find, therefore, that private corporations engaged in the suppres-
sion of crime exist, for the most part, in our great cities only. In New
York, where the problem of detecting and punishing crime is made un-
usually diflicult by the abnormal crowding of its people into crowded
homes on still more crowded streets, the private society finds its great-
est field of work.
It is not alone in suppressing crime that private citizens, either as
individuals or as corporations, find work that the state is in theory ob-
ligated to perform. In almost every department of charitable endeavor,
f
{534111}
I
PRIVATE SOCIETIES AND ENFORCEMENT OF THE LAW.
the state is assisted by individual citizens. Indeed, an analysis of the
objects of charitable societies of a private nature in every large city
shows conclusively that the state invariably encourages private societies
to assist in a work which, strictly speaking, belongs to the government
itself. Once this is made clear, it would seem that, unless the work of
assisting in enforcing the criminal law differs radically from other char-
itable work, the burden of proof shifts from the societies to their critics.
The “New York Charities Directory ” for 1904 contains several
hundred pages devoted to a description of private societies, incorporated
and unincorporated, engaged in assisting the state in performing func-
tions that the state itself would have to perform if the societies did not
exist. A skeleton analysis of the objects of these institutions sufficient-
ly indicates the “increasing purpose” and necessity for them. Their
classification is as follows:
Class I. Care and Relief of Needy Families in their Homes. In-
cluded under this classification are the employment bureaus, relief
societies, day nurseries and kindergartens, burial societies, and many
societies of a similar purpose. Under this heading very properly comes
the work of the various so-called legal aid societies. The Legal Aid
Society, incorporated in 1876, has recovered for the poor of New York
over a million dollars. It has vindicated its own existence so com-
pletely that argument in favor of it is unnecessary. It is a private
society that puts into motion the civil courts for the relief of the poor.
In principle this is not radically different from a society like the Anti-
Policy Society that puts into motion the criminal courts for the relief of
the defenceless.
Class II. Relief for Destitnte, Neglected, and Delinquent Children.
In this class are the asylums, homes, cheap lodgings, and reformatories
for children. It is interesting to note that, in the official classification
of the Charities Directory, along with the many charitable societies of
this class, is found the New York Society for the Prevention of Cruelty
to Children. This society investigates and prosecutes all cases of cruelty
to children under sixteen years of age. In the broadest and truest sense,
such a society is as much a charitable institution as any asylum or
orphans’ home in New York. During the past twenty-eight years the
New York Society for the Prevention of Cruelty to Children has secured
53,620 convictions. Every one of these prosecutions involved the en-
forcement of a law for the protection of little children. The wider the
scope of such a society, the fewer asylums and homes and reformatories
there are to fill. In hygiene, an ounce of prevention is worth a pound
PRIVATE SOCIETIES AND ENFORCEMENT OF THE LAW.
of cure. In the realm of practical charity, one society that promptly‘
and surely enforces the laws for the protection of weak humanity may
obviate the necessity for a dozen societies to care for the victims of a
non-enforcement of the law.
Class III. Relief for the Sick. In the field of relief for the sick,
the state has most emphatically given its encouragement to private
societies formed to carry on some one or more public duties. As our
present ambassador to the Court of St. J ames’s many years ago pointed
out, the State of New York is irrevocably committed to the policy of
recognizing two distinct classes of hospitals: one supported entirely by
public moneys and the other supported either entirely or in part by pri-
vate donations.
The Medical Society of the County of New York has been endeavor-
ing for a hundred years.to protect the public from the ravages of the
charlatan, who is generally as criminal as he is ignorant. It is a private
corporation, but it puts into motion almost daily the laws against illegal
and criminal practice. The more dangerous the practitioners it removes
from the community, the fewer are the victims that arrive at the hos-
pitals too late for science to relieve. If the state in its constitution has
encouraged private corporations to assist in relieving the sick, why
should it not likewise encourage a private corporation whose object is
to enforce laws that will leave less work for the hospitals to do?
Class IV. Treatment of Delinquent Adults. The State of New
York has many reformatories under its own control. For the most part,
they are for prisoners under their first conviction of felony. The State
relies almost entirely upon private corporations for the reclamation of dis-
charged convicts and fallen men and women generally. The prison as-
sociations and guilds in New York have continuously proven the wisdom
of entrusting such functions to private corporations. Especially in this
class of charities, the ounce of prevention is worth more than the
pound of cure. The private corporations engaged in the suppression
of vice and crime not only tend to eliminate from society the actual
criminal himself, but they tend to minimize the number of his victims.
The Anti-Policy Society, the Society for the Suppression of Vice, the
Society for the Prevention of Crime, and many other societies in like
fields rid the community of influences which, undisturbed, would make
necessary many enlargements of our prisons and reformatories.
It is needless to multiply cases of private societies which are called
upon to do public service of a charitable nature. Their universality
seems to prove their necessity. It would also seem that enough has
PRIVATE SOCIETIES AND ENFORCEMENT OF THE LAW.
been said to warrant the statement that where private societies are nec-
essary to cure diseased conditions in our body politic, other private
societies are equally necessary to prevent those diseased conditions by
enforcement of the law.
In classifying societies for the enforcement of the criminal law as
charitable societies, the writer has used the latter expression in a non-
technical sense, and not in the sense of a “ charitable institution ” as
used in the Constitution of the State of New York. As was said by
Mr. Justice O’Brien, in speaking of the New York Society for the Pre—
vention of Cruelty to Children :
In a very broad and general sense, it may doubtless be said that any individual
or corporation that does anything to avert or alleviate human misery or human suf-
fering in any of their varied forms without gain or reward is engaged in a work of
chality. All good works of this description generally proceed from motives of char—
ity, and it is in that sense only that the defendant can with any propriety be called
a charitable institution.
However, it is not always safe to assume that because a condition
exists, and has existed for a long time, it cannot be improved upon.
There are those who say that private societies of a charitable nature en-
gaged in enforcing the criminal law stand upon a different footing from
societies conducting charitable work in the narrow sense. Our hon-
est and fair-minded editorial critic who has so forcibly presented the
question for discussion has this to say of private societies for the enforce-
ment of criminal laws:
Even at their best their effect on the regular representatives of the law is not
good, since it relieves those representatives of a part of their natural duties and gives
them an excuse for ignoring abuses which they alone are likely to see.
This criticism, however plausible it may appear at first, will not
bear the test of actual experience. To be sure, in strict theory, the
regular representatives of the law should be on the alert for all viola-
tions of the criminal law. This refers, of course, to the police depart-
ment and not to the functions of the prosecuting attorney. Theoreti-
cally, the function of a prosecuting attorney is to prosecute criminals
after the evidence has been submitted to him by the police department
and the citizens. To be sure, both the present district attorney in New
York City and the circuit attorney in St. Louis have earned a well-
deserved reputation by obtaining evidence on their own initiative against
gamblers, blackmailers, and other criminals, in addition to performing
their ordinary duty of presenting that evidence to the courts. This is,
however, due more to the fact that they have voluntarily taken upon
PRIVATE SOCIETIES AND ENFORCEMENT OF THE LAW.
themselves duties which the police departments of New York and St.
Louis have failed to discharge.
If our police departments have in these instances failed to suppress
criminals of the kind mentioned, whether from lack of facilities or other
causes, how can we expect the regular representatives of the law to
ferret out the less heinous crimes that our private corporations are daily
bringing to the courts? The truth is that the preservation of order, the
protection of property, and the suppression of violence are, in practice,
sufficient to keep any police force so busy that the lesser criminals may
go practically undisturbed. Is it not fairer to say that the activity of our
private corporations in suppressing particular classes of criminals, instead
of giving the police an excuse for ignoring abuses, gives them more op-
portunity to pursue a relentless warfare on those more violent criminals
to whom they must give their first attention?
Of course, by enlarging the police force to proportions hitherto un-
heard of, all crimes, great and small, could be detected by it, and private
corporations for suppression of crime could be done away with. But by
enlarging the eleemosynary and charitable institutions of the state indefi-
nitely, we could likewise dispense with the private corporations engaged
in this class of work. This, however, would be an unfortunate result, be-
cause the force of public opinion, which every prosecutor knows is essen-
tial to the proper enforcement of laws, is kept continually aroused by the
presence of private citizens charging themselves with the duties of en-
forcing laws. Private corporations of this nature in the City of New York
reach into every walk of life, and cause the public to maintain an in-
terest in the laws they enforce that could not be maintained were the
public authorities alone to take the initiative. In the one case the peo-
ple are participants, and in the other more spectators.
Again, the members of these societies, knowing personally the
agents and attorneys engaged in the work, will in confidence divulge
information and assist them in fighting criminals to an extent far greater
than they would in the case of the public authorities. In a sense, the
system makes every member of these societies a special policeman, who,
by reason of the pride he takes in the work of his society, will make
efforts that he would never think of making if he were not a part of the
work. To borrow an expression from the world of sport, it is the effec-
tiveness of team work as opposed to the ineffectiveness of every man
working for himself.
There is another advantage in the work of these societies that cannot
be overlooked. One of the axioms of modern life is that this is a day of
PRIVATE SOCIETIES AND ENFORCEMENT OF THE LAW.
specialists. It is not only a day where the specialist in good work ex-
ists, but a day in which the specialist in crime becomes most dangerous.
A detective in the police department may be called one day to ferret out
a murder, the next day to trace stolen property, the next day to discover
who set fire to a building, and so on, through the field of crime. The
agent or detective of the private society, however, confines his energies
to one distinct class of criminals. He learns their methods accurately,
knows all their haunts, and, more than this, by long experience
knows just what evidence the court will require to convict the criminal
who is violating the law this society is especially charged with enforc-
ing. In other words, the agent of the private society soon becomes an
expert specialist in the detection of crime to a degree which the detec-
tive of the regular police department can rarely attain.
The Court of Appeals, in discussing the functions of the New York
Society for the Prevention of Cruelty to Children, has thus pointed out
without hesitation that the results obtained by that private society in
enforcing the criminal law would not be possible under the ordinary
police regime:
The defendant receives under the charter of New York the sum of thirty thou-
sand dollars annually from the city treasury to promote the objects of its organiza-
tion. But in receiving or disbursing that sum of money, it neither receives nor ad-
ministers any charity, but it is simply allowed something by the city for doing
something that otherwise would devolve, as we shall see hereafter, on the police
department, and which the society can do better and with much less expense than
the police.
In another place the Court of Appeals said:
All the things it does or can do would naturally and primarily devolve upon the
police department, and the society exists only because it can do the work of the
police more efficiently than they can.
Again, the private society, when properly conducted, keeps a record
not only of its convictions, but of all complaints received from every
source. In time its archives become a storehouse of information of far
more value than anything the public authorities can ever hope to obtain.
A complaint against a criminal may come to one station-house and on
the same day similar complaints may be received in other station-
houses.- N 0 one of the complaints may be sufficient to warrant an
arrest by the police; but where these various complaints are all har-
monized in one central office, they may form the history of a criminal’s
operations and thereby make his detection and conviction much easier
PRIVATE SOCIETIES AND ENFORCEMENT OF THE LAW.
than if the report were made to one of the many branches of the police
department.
More than three-fourths of the cases presented to the courts annually
by the Medical Society of the County of New York are based upon the
testimony of women employed as agents. Under the police method of
securing evidence, such testimony cannot be obtained with anything
like the ease or efficiency with which it may be obtained by a private
society.
The average criminal learns ,to fear and avoid the police department
and thinks that as long as he can avoid the regular officers of the law
he is safe in his wrong-doing. The detective of the private society,
however, can work far more unobtrusively and effectively because his
presence is unknown, and he is not working in the face of preconceived
suspicion.
Neither should it be forgotten that nothing is more valuable in the
proper enforcement of the criminal law than a proper system of check-
ing and watching. The Constitution of the United States was framed
so as to keep a safe balance of power between the executive, judicial,
and legislative departments of the Government. No business system in
modern times is effective unless one branch is being watched and checked
by some other branch. So in the enforcement of the criminal law. A
watchful private society, with its eyes directed toward one particular; class
of offenders, instead of acting as an “excuse for ignoring abuses,” makes
the regular representatives of the law alert and anxious and willing to ren-
der assistance for fear that their inertness may be commented on to their
disadvantage. Private societies do not have to play politics, and have
a way of speaking out that alarms the stickler for bureaucratic methods.
Another objection urged against the private society is that the ordi-
nary citizen submits more patiently to the admonition or interference of
a policeman than to that of a “society oficer,” and in most cases can
more easily get redress from the policeman’s oppression or mistakes of
judgment. If this means that the defendant in a criminal suit insti-
gated by a private society has a greater hatred toward the society that
has convicted him than he would have toward the police department if
the latter had instituted the prosecution, I am prepared to admit it.
But is this any reflection on the society? The bitterness arises, for the
most part, from chagrin at being caught. The medical quack, having
practised free from molestation by the police, undoubtedly feels very
bitter toward the Medical Society when, by reason of its superior facili-
ties for obtaining evidence and its knowledge of the greater dangers of
PRIVATE SOCIETIES AND ENFORCEMENT OF THE LAW.
the quack, it closes his establishment. The cry of persecution is one
of the favorite cries raised by the defendant in a criminal case ; and it is
difficult to make a criminal understand that a private society has any
business to close him up after he has evaded the regularly constituted
authorities. It is a compliment to be called impudent by some people;
but to listen to the complaints of a prisoner because of his conviction
or to heed his abuse of his prosecutor is to introduce a new principle
into the ethics of criminal jurisprudence. "
As for redress, the private society must at all times respond in dam-
ages for false arrest and malicious prosecution, and this alone is suffi-
cient to curb the overzealousness of its agents. A person wrongfully
accused of crime can much more easily secure the discharge of the
offending agent at the hands of the private society than that of an of-
fending policeman at the hands of the police department. In the
former case, the contract of employment between the agent and the
society does not require legal charges and a tedious trial before dis-
missal, as is the case in the police department.
Mr. Justice Gaynor, of the Supreme Court of New York, in the
course of his recent opinion on the rights of citizens to play baseball on
Sunday, has stated the functions of the private citizen or corporation in
most admirable terms:
There are many offences which should be left for redress to the coming forward
of private accusers before the magistrates or other authorities, as our laws and the
procedure of our courts contemplate. The accusatory method of enforcing the
criminal laws is open to every citizen.
If private societies that enforce the criminal laws are to be frowned
upon, there is placed in the hands of the regular officers of the law a
monopoly in the enforcement of crime. Such a monopoly existed not
long ago in reference to the enforcement of the Sunday-closing law in
New York City, with the result that it produced a never-ending chain
of blackmail at the hands of the police. Until police departments are
perfect and all men are honest, the day will never come when the pri-
vate citizen or society can be asked to discontinue efforts to secure such
an enforcement of criminal laws as practical experience shows is beyond
the ken of the police department.
Of course, some societies may abuse their privileges and assume a
dictatorial and vindictive attitude; but such societies work their own un~
doing. Most of the societies in New York City that are to-day engaged
in enforcing the criminal law are of long standing and their methods are
well known. Their good faith has never been impugned. The district
PRIVATE SOCIETIES AND ENFORCEMENT OF THE LAW.
attorney’s office and the police department recognize in them useful and
friendly allies, and, as a rule, are ready and willing to give assistance
when needed. Such a condition of affairs is far better than if there
were no private societies in existence or if the private societies and the
regularly constituted authorities worked at cross purposes.
In one respect only has the State of New York gone too far in its
recognition of private corporations of the kind we have been discussing.
This error was committed in a desire to render financial aid to them.
Several of the laws now on the statute book of New York are so framed
as to permit all fines imposed for their violation to be returned to the
society instituting the prosecution. Private societies find the expense
of prosecuting crimes extremely heavy; and the State, in an endeavor to
alleviate these burdens, enacted the provision referred to. It has not
worked happily in practice. In the first place, it may leave in the
criminal a feeling that he has been prosecuted in order to put money
into the purse of the prosecuting society. Where a society’s income is
derived largely from fines, it may make the prosecuting ofiicer, in some
instances, insist on his pound of flesh, when the interest of the state
might best be served by a suspended sentence and a fatherly warning.
It has been said that one of the societies in New York employs an at-
torney with the understanding that his fee is to be paid out of the
excess of fines over expenditures. The charter of such an organization
should be repealed. As Dr. Parkhurst well said: “There is enough
money being made out of crime without societies going into the busi-
ness themselves.”
To be sure, the state should not require private societies to bear the
entire financial burden. It should appropriate, as it does to the New York
Society for the Prevention of Cruelty to Children, a fixed sum annually.
When the appropriation is thus made, all provisions for a return of fines
should be immediately repealed.
CHAMPE S. ANDREWS.
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