. It is largely
responsible for the practice of repeated new trials which makes the
jury a most expensive tribunal. The crude individualization achieved
by juries, influenced by emotional appeals, prejudice and the
peculiar personal ideas of individual jurors, involves quite as much
injustice at one extreme as mechanical application of law by judges at
the other extreme. Indeed the unchecked discretion of juries, which
legislation has brought about in some jurisdictions, is worse than the
hobbled court and rigid mechanical application of law from which it is
a reaction.

Our administration of punitive justice is full of devices for
individualizing the application of criminal law. Our complicated
machinery of prosecution involves a great series of mitigating
agencies whereby individual offenders may be spared or dealt with
leniently. Beginning at the bottom there is the discretion of the
police as to who and what shall be brought to the judicial mill. Next
are the wide powers of our prosecuting officers who may ignore
offences or offenders, may dismiss proceedings in their earlier
stages, may present them to grand juries in such a way that no
indictment results, or may enter a _nolle prosequi_ after indictment.
Even if the public prosecutor desires to prosecute, the grand jury
may ignore the charge. If the cause comes to trial, the petit jury may
exercise a dispensing power by means of a general verdict. Next comes
judicial discretion as to sentence, or in some jurisdictions,
assessment of punishment by the discretion of the trial jury. Upon
these are superposed administrative parole or probation and executive
power to pardon. The lawyer-politician who practices in the criminal
courts knows well how to work upon this complicated machinery so as to
enable the professional criminal to escape as well as those or even
instead of those for whom these devices were intended. They have been
developed to obviate the unhappy results of a theory which would have
made the punishment mechanically fit the crime instead of adjusting
the penal treatment to the criminal. Here, as elsewhere, the attempt
to exclude the administrative element has brought about back-handed
means of individualization which go beyond the needs of the situation
and defeat the purposes of the law.

Even more striking is the recrudescence of personal government, by
way of reaction from an extreme of government of laws and not of men,
which is involved in the s