JONES-STALKER BILL DISCUSSED BY BURNS

The following article on the Jones Law was written for the Crimson by J. J. Burns, Assistant Professor of Law in the Harvard Law School.

On March 2, 1929 President Coolidge signed the Jones-Stalker Bill which authorized the imposition of a maximum penalty of $10,000 fine or five years imprisonment or both for violations of the National Prohibition Law. The purpose according to Senator Jones, was to combat large scale "bootlegging" operations. By a special provision "the courts are to discriminate between casual or slight violations and so called regular bootlegging or attempts to commercialize violations of law". This latter provision has no legal effect since it is but a pious exhortation to the judges to be nice to the amateur offender and to be severe on the individual engaged in the liquor business. But that of course is what courts do anyway and it is submitted that there is no remedy if a particularly "dry" judge should visit a youthful first offender with the maximum penalty.

The most important result of this Jones Bill is that violations of the Prohibition law are now felonies and not misdemeanors. At Common law the division of crimes into Treason, Felonies and Misdemeanors was in a rough way a fairly sensible division. Felonies were grave crimes all named and defined that seriously threatened the social security and all felons were subject to the death penalty. Misdemeanors were crimes of a less serious nature and included all crimes not felonies or treason. But under the Federal law a crime is a felony or a misdemeanor according to the penalty attached there to and if the crime carries with it a maximum penalty of less than a year as was the case with the Federal Prohibition Law prior to the Jones Bill, then the crime is but a misdemeanor. On the other hand if a penalty of more than one year's imprisonment is authorized the crime is a felony and the convicted person is deemed "infamous". This arbitrary classification has been severely criticized. Thus the court in United States V GAAG, (237 FED. 728) referred to Section 335 of the United States Criminal Code providing for this distinction as "barbaric". In United States V Wood (224 FED. 278) it is pointed out that a violation of an insignificant administrative regulation of the Internal Revenue Law will brand the most honorable of men as "infamous".

Whatever doubt there existed as to the power of Prohibition officials to arrest without a warrant prior to the Jones Bill, it is now clear that not only may officers arrest without a warrant one who violates the Prohibition Law but also a private person is privileged to effect such an arrest. Such is the magic of the term "felony". This situation offers excellent opportunities to fanatical "drys" to further the cause.

Another important effect which results from the Act is that whereas prior to the Jones Law prosecution of violators of the Prohibition Law could be started by an information, now that the selfsame crimes are felonies, there must be a grand jury presentment or indictment as a condition precedent to trial. This will of course increase the burden and cost of Federal Prosecution and will result in additional delays and perhaps in large wet cities in lack of prosecution by Grand Juries. Perhaps the solution will be in a change in the Criminal Code distinction between felonies and misdemeanors.

The quantity of punishment which should be inflicted is not the subject of accurate and equitable determination. In the last analysis it must rest with the legislature which ought to be responsive to the general will of the majority. The collective judgment of the majority as to the social menace of the conduct interdicted should control. But the question of whether punishment should be severe or not is as old as society. Beccaria writing in 1764 was strongly convinced that crimes are more effectively prevented by the certainty than by the severity of punishment.

Montesquieu regarded the severity of laws as a definite hindrance to their execution. Juries will acquit and Grand Juries will not indict where a majority in the community oppose such sumptuary laws as is the Prohibition Law.

In 1553 the statute (I Mary St. I. c. I.) contains in the preamble the following recital that "the state of every King consists more assuredly in the love of the subjects toward their prince than in the dread of laws made with vigorous pains: and that laws made for the preservation of the commonwealth without great penalties, are more often obeyed and kept than laws made with extreme punishment."

Perhaps in these times "Respect for law" which is our modern substitute for "love of the King's subjects toward their prince" is a feeble safeguard for the social well being. The subsequent history of Federal enforcement ought to provide President Hoover's Commission with an opportunity for a valuable study in criminology