Inspired by a suggestive article2 on the function of punishment by a member of the Florida bar, the assertion is made that the power to sentence should not be entrusted to, or exercised by, the trial judge. Governor Manning, a layman, in an address before the National Conference of Charities and Corrections at Pittsburgh, on June 13th, 1917, said: work of the criminal courts should be judicial merely, and not both judicial and administrative as now.3 As the punishment of crime has been regarded in this state from earliest times as a semi-legislative and semi-judicial act, the suggestion of the governor invites a review of this subject. Mr. Garrett, whose article inspired the governor's opinion, speaking of the judiciary, says: Its appropriate duty (in relation to crime) is to perform one function, the determination of the guilt or innocence of the accused. An act has been declared unlawful. Has the defendant done that act? That is all that appertains to the province of the courts of law. Consequently, the trial should end with the verdict. Sentence is not merely superfluous (aside from its mere formal aspect as approval of the verdict), it is extra judicial. That the power of sentence does not belong to the nisi prius judge may appear an unjustifiable didactic conclusion. It is, however, rested upon sound argument. The object of a criminal trial is to adjudicate guilt or innocence of one act. On the other hand, the object of sentence is according to notions now becoming current, to reform the person convicted of having done that act. ... The legislature acts only on the mass, and as the courts, without another trial of each prisoner convicted, are not sufficiently informed to give sentence, the function of punishment lies outside the purview of the legislature and the judiciary. As a consequence, if all government is 'divided into three parts,' the administrative department is the proper organ to perform the function. Administrative are here treated as executive acts. There may be a difference between them.
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