State v. Heitman

• Decision Date: 07 June 1919
• Docket Number: 22,299
• Citation: 105 Kan. 139,181 P. 630
• Parties: THE STATE OF KANSAS, Appellee, v. MRS. L. O. HEITMAN, Appellant
• Court: Kansas Supreme Court

181 P. 630

105 Kan. 139

THE STATE OF KANSAS, Appellee, v. MRS. L. O. HEITMAN, Appellant

No. 22,299

Supreme Court of Kansas

June 7, 1919

Decided January, 1919.

Appeal from Shawnee district court, division No. 1; ROBERT D GARVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

STATUTE--Establishing Industrial Farm for Women--Constitutional and Valid. Chapter 298 of the Laws of 1917, establishing an institution known as the state industrial farm for women, for the detention and care of women convicted of criminal offenses, does not violate any of the provisions of the fourteenth amendment to the constitution of the United States, because a woman convicted of misdemeanor is sentenced to the farm for an undetermined period, with a maximum limit, while a man convicted of the same misdemeanor is sentenced, under the general law, to the county jail for a definite period, within the same maximum limit.

Edward Rooney, of Topeka, for the appellant.

Richard J. Hopkins, attorney-general, and Hugh T. Fisher, county attorney, for the appellee.

OPINION

BURCH, J.:

The defendant was convicted of keeping a liquor nuisance. She was sentenced to pay a fine of $ 100, and was committed to the state industrial farm for women until discharged according to law. She appeals from the portion of the judgment assessing penalty.

The statute under which the defendant was convicted is section 1 of chapter 232 of the Laws of 1901. After declaring what places are common nuisances, the statute provides as follows:

"Every person who maintains or assists in maintaining such common nuisance shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months, for each offense." (Gen. Stat. 1915, § 5524.)

The fine was assessed under this statute. The commitment was adjudged under the provisions of section 5 of chapter 298 of the Laws of 1917, reading as follows:

"Every female person, above the age of eighteen years, who shall be convicted of any offense against the criminal laws of this state, punishable by imprisonment, shall be sentenced to the state industrial farm for women, but the court imposing such sentence shall not fix the limit or duration of the sentence. The term of imprisonment of any person so convicted and sentenced shall be terminated by the state board of administration, as authorized by this act, but such imprisonment shall not exceed the maximum term provided by law for the crime for which the person was convicted; provided, that where the person, so convicted and sentenced to said industrial farm for women, is not more than twenty-five years of age and said conviction is for her first offense, the board of administration may parole or release such person under rules and regulations prescribed by said board before the expiration of the minimum term, but in all other cases, the person so committed to said institution shall not be eligible to parole by the board of administration until the expiration of the minimum term fixed by law for the punishment of the offense for which she has been convicted; provided further, that where any person has been committed to such institution on conviction for murder in the first or second degree, such person shall not be released from said institution until the expiration of the term for which such person is sentenced, except by action of the governor exercising his pardoning or parole power."

The detention portion of the defendant's sentence was, therefore, indeterminate, with a maximum limit of six months. If the defendant had been a man, the sentence would have been to the county jail, for some definite period within the maximum and minimum limits fixed by the statute of 1901. Because the defendant was sentenced to detention for an undetermined period at the state industrial farm for women, she contends she has been denied the equal protection of the law, and that her privileges and immunities have been abridged, contrary to the fourteenth amendment to the constitution of the United States. Some other objections to the industrial-farm law are proposed, but they have already been disposed of in the cases of The State v. Dunkerton, 103 Kan. 748, 175 P. 981, and In re Dunkerton, 104 Kan. 481, 179 P. 347.

In support of the defendant's contention, the familiar decisions are cited which declare that, in the administration of criminal justice, no different or higher punishment shall be imposed on one than that which is prescribed for all, for the same offense. The reason for striving to base justice on equality is probably best stated in Rudolf von Ihering's "Law as a Means to an End," chapter VIII, section 11, translated from the German and published as volume five of the Modern Legal Philosophy Series:

"What is there so great in equality that we measure the highest concept of right--for this is what justice is--by it? Why should law strive after equality, when all nature denies it? And what value has equality independently of any particular content? Equality may be as much as anything else equality of misery. Is it a consolation for the criminal to know that the punishment which has overtaken him will also strike all others in the same position? The desire for equality seems to have its ultimate ground in an ugly trait of the human heart; in ill-will and envy. No one shall be better or less badly off than I; if I am miserable, everybody else, too, shall be so.

"But the reason we want equality in law is not because it is something worth striving after in itself, for it is not so at all. We see to it that with all the equalizing powers of the law, inequality finds its way back again by a thousand paths. But, indeed, our reason for wanting it is because it is the condition of the welfare of society. When the burdens which society imposes upon its members are distributed unequally, not only does that part suffer which is too heavily laden, but the whole of society. The center of gravity is displaced, the equilibrium is disturbed, and the natural consequence is a social struggle for the purpose of reestablishing equilibrium; which under certain conditions becomes a highly dangerous menace, and is always a shock to the existing social order." (p. 276.)

Differences, however, cannot be denied or disregarded, and the very principle of equality not only approves but necessitates classification, without which fixation of the social center of gravity and stable equilibrium of the social order would be impossible. It would revolt justice if youthful first offenders were subjected to the same penal regimen as mature recidivists. Hence, the decisions are numerous and familiar that equal protection of the law is secured if the law operate in the same way on all who belong in the same class. Classes may not be created arbitrarily or unreasonably, or the principle of equality would be violated. There must be some difference in character, condition, or situation, to justify distinction, and this difference must bear a just and proper relation to the proposed classification and regulation; otherwise, the classification is forced and unreal, and greater burdens are, in fact, imposed on some than on others of the same desert. The defendant asserts that sex does not constitute a just and reasonable ground for substituting an indeterminate sentence, within a stated limit, to the industrial farm for women, in place of a definite sentence, within the same limit, to the county jail.

In the years between enactment of the statutes of 1901 and 1917, application of the scientific method in dealing with the subjects of crime and punishment has produced noteworthy results. Crime is no longer treated abstractly, according to the a priori method, and punishment no longer consists of penalties sawed into stock lengths and corded up by the judges' bench, for use in passing sentence.

Every act condemned by our penal code is proper, perhaps laudable, somewhere in the world. Each civil society governmentally organized has a conception, more or less definite, of its own best interest and welfare, and sets up standards of conduct to which the individual is supposed to conform. Failure to measure up to the prescribed standards may be of such public concern that the state must attach sanctions to its regulations. When the state shall do this is a practical question, to be determined with respect to circumstances and conditions. Departure from the standard thus sanctioned we call crime, and the nonconformist we call a criminal.

Investigation of the facts discloses that the nonconformist generally acts through the prompting of some...