“Jack Eller,” said Judge McCook, “your flabbiness of body and soul and your associations caused you for a time to take over the business of Nick Montana. You pleaded guilty here but too late to deserve much consideration.”
The rain was pouring down; the lights were on in the courtroom to dispel a little of the gloom. Judge McCook sat on the bench like the wrath of Jehovah while before him stood the fat, perspiring Eller, and behind Eller sat the pale row of convicts awaiting sentence. Eller drew a sentence of four to eight years in prison. But out of consideration of their help to the state by turning state’s evidence, the other three bookers—Harris, Weiner, and Miller—were let off with terms of only two to four years in prison.
“You are a silly imitator of the racketeers you admire,” the judge told Ralph Liguori, Nancy Presser’s man, and gave him a term of seven and one-half to fifteen years. Little Abie Wahrman’s lawyer pleaded for mercy on grounds of his youth, but the judge gave him a stretch of fifteen to thirty years.
Jimmy Fredericks and Tommy Bull (Pennochio), were in a different category. Each had been convicted of a felony for the third time. It was mandatory that they be given sentences not less than the longest term nor more than twice the longest term prescribed for a first conviction for their offenses. They drew twenty-five years apiece.
With Little Davie Betillo the judge was tough, even though he was a first offender so far as felony convictions went.
“As Luciano’s chief and most ruthless aid, without record of legitimate occupation, you are regarded by observers as the most dangerous of the defendants, except one; an un-principled and aggressive egoist,” said Justice McCook to Little Davie. “The prosecutor points out that four years of your life remain unaccounted for in the probation report, which roughly correspond to the period when, I believe, you were in Chicago. I am therefore unable to regard as important to my problem with you, the absence of a prior conviction.”
On various counts of the indictment Justice McCook gave Little Davie three sentences to run consecutively, adding up to a term of from twenty-five to forty years.
Luciano, called to the bar, faced something worse.
“What have you got to say why judgment should not be pronounced against you according to law?” intoned the court clerk.
“Your Honor,” said Luciano, “I have nothing to say outside of—I want to say it again—that I am innocent.”
“An intelligent, courageous, and discriminating jury have found you guilty of heading the conspiracy or combination to commit these crimes. It operated widely in New York and extended into neighboring counties,” said the Court to Luciano.
“This makes you responsible in law and morals for every foul and cruel deed with accompanying elements of extortion performed by the band of co-defendants. I am not here to reproach you, but, since there appears no excuse for your conduct nor hope for your rehabilitation, to administer adequate punishment.”
He thereupon pronounced upon Luciano a sentence to serve from thirty to fifty years.
Under the New York law, Luciano, if he behaves himself in prison, will be due to be considered for parole at the expiration of twenty years, but not sooner.
The Court told the defendants he was convinced by the evidence at the trial and information since received that they would be responsible for any injury which the People’s witnesses might thereafter suffer by reason of their testimony. He told them that if any witness for the People should be injured or harassed, the Court would request the Parole Board to keep the prisoners for their maximum sentence.
The severity of Luciano’s sentence was plainly intended to be a warning to other racketeers. In consideration of Lucky’s power and abilities, it was also plainly intended as a means of protecting society against the boss gangster’s talents. Luciano got his sentence, not because he was more guilty or more despicable than his colleagues in the dock, but because he was more dangerous.
There is probably no better example of the modern tendency of the courts to make the sentence fit the criminal rather than to make the punishment fit the crime of which he has been convicted.
So far as strict construction of the law goes, every madam, booker, and every other member of the conspiracy was equally guilty with Charlie Lucky of the crime—compulsory prostitution—of which they had been convicted. But the madams, even some of the assistant bookers, who testified, were turned loose.
The Luciano prosecution was not an attempt to abolish prostitution or even to drive it from the city, for that is a social rather than a criminal problem. The prosecution was the means of putting some big gangsters out of business.
There is plainly a similarity between the long sentence of Luciano and the sentence which was meted out to Al Capone, who got the maximum on his conviction for income tax violation, a sentence much more severe than what is ordinarily meted out to tax evaders.
There is a lot of confusion in the public mind and also in the theory of law in such matters. The old idea was, of course, that punishment should always fit the crime and in the days when that idea held full sway, the usual punishment was hanging. It is basic in our law, of course, that a defendant may be convicted only of specific crimes. He cannot be convicted of being a bad man, of being a racketeer, or of being a menace to society. But to the extent that penalties are provided for the crimes of which a man has been convicted, the years of his liberty are forfeited to the State.
Elasticity enters the law when the time for sentence arrives. At that point a man’s life is truly at the mercy of a judge. The judge may turn him loose on probation and temper justice with mercy. The judge may also hold him for a long term, tempering justice with severity. It is not a pretty thought when one imagines one’s self facing a court. It is one of the reasons why we need to have wise judges.
Someday, perhaps, judges will no longer wield such power, and the power will be put in other hands. There is a tendency that way. In some states now the duration of a prisoner’s confinement is dependent entirely on the judgment of the Parole Board. Parole Boards are not supposed to be chosen for political reasons or learning in the law, as judges usually are, but they are supposed to be experts in human personality, human conduct. As a matter of fact, we have come to the point where we have a few Parole Boards in this country which are not political. Perhaps someday we shall also come to that stage of scientific wisdom in which personalities may be thoroughly analyzed, and Parole Boards may know rather than guess which men are dangerous. In the present state of human fallibility, many of our judges and many of our Parole Boards are doing a conscientious and reasonably successful job in distinguishing between dangerous criminals and those who may be given another chance without excessive danger to society.